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1 II Federal Register / Vol. 68, No. 143 / Friday, July 25, 2003

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2 III

Contents Federal Register Vol. 68, No. 143

Friday, July 25, 2003

Agency for Healthcare Research and Quality Medicare Coverage Advisory Committee, 44091 NOTICES Organization, functions, and authority delegations: Coast Guard Director et al., 44084–44088 RULES Ports and waterways safety: Agricultural Marketing Service Detroit Captain of Port Zone, MI; safety zones, 43926– PROPOSED RULES 43927 Cherries (tart) grown in— Portland, OR— Michigan et al., 43978–43981 Portland Captain of Port Zone, OR; safety zones, 43926 Specified marketing orders; assessment rates increase, NOTICES 43975–43978 Agency information collection activities; proposals, submissions, and approvals, 44091–44093 Agriculture Department See Agricultural Marketing Service Commerce Department See Industry and Security Bureau Architectural and Transportation Barriers Compliance See International Trade Administration Board See National Oceanic and Atmospheric Administration NOTICES Meetings: Committee for Purchase From People Who Are Blind or Access Board, 44037 Severely Disabled NOTICES Arts and Humanities, National Foundation Procurement list; additions and deletions, 44037–44039 See National Foundation on the Arts and the Humanities Defense Department Blind or Severely Disabled, Committee for Purchase From NOTICES People Who Are Agency information collection activities; proposals, See Committee for Purchase From People Who Are Blind submissions, and approvals, 44053–44054 or Severely Disabled Education Department Centers for Disease Control and Prevention NOTICES NOTICES Agency information collection activities; proposals, Grants and cooperative agreements; availability, etc.: submissions, and approvals, 44054 Human immunodeficiency virus (HIV)— Grants and cooperative agreements; availability, etc.: United States; prevention projects, 44088 National Institute on Disability and Rehabilitation Meetings: Research— Disease, Disability, and Injury Prevention and Control Disability and Rehabilitation Research Projects Special Emphasis Panels; correction, 44088 Program, 44054–44059 Rehabilitation Research and Training Centers Program, Centers for Medicare & Medicaid Services 44059–44064 RULES Special education and rehabilitative services— Medicare: Individuals with disabilities; adult literacy and Third party liability insurance regulations, 43940–43942 employment outcomes improvement; model PROPOSED RULES demonstrations, 44185–44189 Medicare: Claims filing procedures; elimination of written statement Employment Standards Administration of intent, 44000–44003 NOTICES Entitlement continuation when disability benefit Minimum wages for Federal and federally-assisted entitlement ends because of substantial gainful construction; general wage determination decisions, activity, 43998–44000 44103–44104 Medicare overpayments and underpayments to providers, suppliers, home maintenance organizations, Energy Department competitive medical plans, etc.; interest calculation, See Energy Efficiency and Renewable Energy Office 43995–43998 See Federal Energy Regulatory Commission NOTICES NOTICES Medicare: Grants and cooperative agreements; availability, etc.: Multiple-seizure electroconvulsive therapy, High Energy Physics Outstanding Junior Investigator electrodiagnostic sensory nerve conduction threshold Program, 44064–44065 testing, and noncontact normothermic wound therapy Energy Efficiency and Renewable Energy Office Medicare coverage withdrawn, 44088–44089 NOTICES Meetings: Meetings: Ambulatory Payment Classification Groups Advisory Federal Energy Management Advisory Commission, Panel, 44089–44090 44065–44066

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Environmental Protection Agency Federal Energy Regulatory Commission RULES NOTICES Air programs: Electric rate and corporate regulation filings: Stratospheric ozone protection— South Carolina Electric & Gas Co. et al., 44071 Methyl bromide; ban on trade with non-parties to Hydroelectric applications, 44071–44075 Montreal Protocol, 43930–43939 Applications, hearings, determinations, etc.: Solid wastes: Midwestern Gas Transmission Co., 44066 Hazardous waste; identification and listing— National Fuel Gas Supply Corp., 44066–44067 Exclusions; withdrawn, 43939–43940 Natural Gas Pipeline Co. of America, 44067 PROPOSED RULES Northern Natural Gas Co., 44067 Air programs: Northwest Pipeline Corp., 44067–44068 Stratospheric ozone protection— Panhandle Eastern Pipe Line Co., LLC, 44068 Methyl bromide; ban on trade with non-parties to PCA Hydro, Inc., 44066 Montreal Protocol, 43991–43995 PG&E Gas Transmission, Northwest Corp., 44068 NOTICES Pinnacle Pipeline Co., 44068–44069 Agency information collection activities; proposals, Portland Natural Gas Transmission System, 44069–44070 submissions, and approvals, 44075–44078 Questar Southern Trails Pipeline Co., 44070 Air programs: Trailblazer Pipeline Co., 44070 State implementation plans; adequacy status for West Texas Gas, Inc., 44070–44071 transportation conformity purposes— Illinois, 44078 Federal Highway Administration Committees; establishment, renewal, termination, etc.: NOTICES National Drinking Water Advisory Council, 44078–44079 Environmental statements; notice of intent: Environmental statements; availability, etc.: Riverside County, CA; withdrawn, 44138 Agency statements— Comment availability, 44079–44080 Federal Reserve System Weekly receipts, 44080–44081 NOTICES Pesticide registration, cancellation, etc.: Banks and bank holding companies: Monsanto Co., 44081–44082 Formations, acquisitions, and mergers, 44083

Executive Office of the President Federal Transit Administration See Trade Representative, Office of United States NOTICES Buy America waivers: Federal Aviation Administration Cash Code, 44138–44139 RULES Fish and Wildlife Service Class E airspace; correction, 43921–43922 PROPOSED RULES NOTICES Marine mammals: Agency information collection activities; proposals, Incidental take during specified activities— submissions, and approvals, 44137 Polar bears and Pacific walrus, 44020–44036 Reports and guidance documents; availability, etc.: NOTICES Flight deck certification; applicant’s human factors Endangered and threatened species: methods of compliance; policy statement; correction, Marbled murrelet and northern spotted owl; 5-year 44138 review, 44093–44094 Environmental statements; availability, etc.: Federal Communications Commission Incidental take permits— RULES Kern County, CA; desert tortoise, 44094–44095 Common carrier services: Satellite communications— Food and Drug Administration Multichannel video distribution and data service in 12 RULES GHz band; technical and licensing rules; Animal drugs, feeds, and related products: reconsideration petitions denied, 43942–43946 Phenylbutazone paste, 43925–43926 Telephone Consumer Protection Act; implementation— Do-Not-Call Implementation Act; unwanted telephone Health and Human Services Department solicitations, 44143–44179 See Agency for Healthcare Research and Quality PROPOSED RULES See Centers for Disease Control and Prevention Common carrier services: See Centers for Medicare & Medicaid Services Public mobile services and private land mobile radio See Food and Drug Administration services— NOTICES Air-ground telecommunications services consumers; Meetings: biennial regulatory review, 44003–44011 Disease, Disability, and Injury Prevention and Control Radio frequency devices: Special Emphasis Panel, 44083–44084 Unlicensed devices operating in 5 GHz band, 44011– 44020 Homeland Security Department NOTICES See Coast Guard Common carrier services: RULES Telecommunications relay services— Immigration: State certification and renewal applications, 44082– Aliens— 44083 Health care worker certificates, 43901–43921

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Housing and Urban Development Department National Aeronautics and Space Administration PROPOSED RULES PROPOSED RULES Manufactured home construction and safety standards: Research misconduct investigation, 43982–43987 Manufactured Housing Consensus Committee; consumer complaint handling proposal rejected, 43987–43989 National Council on Disability NOTICES NOTICES Grants and cooperative agreements; availability, etc.: Meetings: Facilities to assist homeless— Youth Advisory Committee, 44105 Excess and surplus Federal property, 44093 National Foundation on the Arts and the Humanities Industry and Security Bureau NOTICES NOTICES Meetings: Export transactions: Humanities Panel, 44105–44106 List of unverified persons in foreign countries, guidance to exporters as to ‘‘red flags’’ (Supplement No. 3 to 15 CFR part 732), 44039–44040 National Highway Traffic Safety Administration RULES Interior Department Motor vehicle safety standards: See Fish and Wildlife Service Glazing materials— See Land Management Bureau Low-speed vehicles, etc., 43964–43972 See Minerals Management Service Vehicle safety rulemaking priorities (2003-2006 CYs), See Reclamation Bureau 43972–43973 NOTICES Motor vehicle safety standards; exemption petitions, etc.: International Trade Administration Saleen, Inc., 44139 NOTICES Antidumping: Floor-standing, metal-top ironing tables and parts from— National Oceanic and Atmospheric Administration China, 44040–44043 RULES Fresh Atlantic salmon from— Fishery conservation and management: Chile, 44043–44045 Northeastern United States fisheries— Honey from— Northeast multispecies, 43973 China, 44045–44047 Ocean and coastal resource management: Softwood lumber products from— Marine sanctuaries— Canada, 44048–44050 Florida Keys National Marine Sanctuary, FL; White Countervailing duties: Bank Dry Rocks Area; temporary no-entry zone; In-shell pistachios from— correction, 43922 NOTICES Iran, 44047 Grants and cooperative agreements; availability, etc.: Ocean exploration, 44050–44053 International Trade Commission NOTICES Import investigations: Nuclear Regulatory Commission Colored synthetic organic oleoresinous pigment NOTICES dispersions from— Environmental statements; availability, etc.: India, 44100 Charleston Area Medical Center, WV, 44108–44109 FPL Energy Seabrook, LLC, et al., 44109–44110 Omaha Public Power District, 44110–44111 Labor Department Applications, hearings, determinations, etc.: See Employment Standards Administration Duke Energy Corp. et al., 44107–44108 See Occupational Safety and Health Administration NOTICES Agency information collection activities; proposals, Occupational Safety and Health Administration submissions, and approvals, 44100–44103 NOTICES Grants and cooperative agreements; availability, etc.: Land Management Bureau Voluntary Protection Programs; safe and healthful NOTICES working conditions, 44181–44183 Meetings: Reports and guidance documents; availability, etc.: Resource Advisory Committees— Ergonomics for prevention of musculoskeletal disorders— Roseburg District, 44096 Poultry processing guidelines; meeting, 44104–44105 Resource Advisory Councils— Western, Central, Eastern Montana, and Dakotas, Office of United States Trade Representative 44095–44096 See Trade Representative, Office of United States

Minerals Management Service Postal Service NOTICES PROPOSED RULES Environmental statements; availability, etc.: Domestic Mail Manual: Gulf of Mexico OCS— Merchandise Return Service labels; routing barcodes, Oil and gas operations, 44096–44099 43989–43991

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Reclamation Bureau Transportation Department NOTICES See Federal Aviation Administration Environmental statements; notice of intent: See Federal Highway Administration Ventura County, CA; Lake Casitas Resource Management See Federal Transit Administration Plan, 44099–44100 See National Highway Traffic Safety Administration See Surface Transportation Board Securities and Exchange Commission RULES NOTICES Workplace drug and alcohol testing programs: Investment Company Act of 1940: Drug and alcohol management information system Exemption applications— reporting forms, 43946–43964 ReliaStar Life Insurance Co. of New York et al., 44123– NOTICES 44128 Aviation proceedings: Self-regulatory organizations; proposed rule changes: Agreements filed; weekly receipts, 44140 Government Securities Clearing Corp., 44128–44131 Certificates of public convenience and necessity and New York Stock Exchange, Inc., 44131–44132 foreign air carrier permits; weekly applications, Applications, hearings, determinations, etc.: 44136–44137 Public utility holding company filings, 44111–44123 Hearings, etc.— International Air Transport Association, 44137 Small Business Administration PROPOSED RULES Treasury Department Small business size standards: NOTICES Nonmanufacturer rule; waivers— Committees; establishment, renewal, termination, etc.: Ammunition (except small arms), 43981–43982 Bond Market Association Treasury Borrowing Advisory NOTICES Committee, 44140–44141 Disaster loan areas: Indiana, 44132 Veterans Affairs Department Kansas, 44132 RULES Texas, 44132–44133 Medical benefits: Non-VA physicians— Social Security Administration Medication prescribed by non-VA physicians; NOTICES requirements and limits, 43927–43930 Agency information collection activities; proposals, submissions, and approvals, 44133–44135 Meetings: Separate Parts In This Issue Ticket to Work and Work Incentives Advisory Panel, 44135 Part II Federal Communications Commission, 44143–44179 State Department NOTICES Part III Agency information collection activities; proposals, Labor Department, Occupational Safety and Health submissions, and approvals, 44135–44136 Administration, 44181–44183 Nonproliferation measures imposition: North Korean entity, 44136 Part IV Surface Transportation Board Education Department, 44185–44189 NOTICES Railroad operation, acquisition, construction, etc.: Burlington Northern & Santa Fe Railway Co., 44139– Reader Aids 44140 Consult the Reader Aids section at the end of this issue for Heritage Railroad Corp., 44140 phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws. Trade Representative, Office of United States To subscribe to the Federal Register Table of Contents RULES LISTSERV electronic mailing list, go to http:// Andean Trade Preference Act, as amended by Andean listserv.access.gpo.gov and select Online mailing list Trade Promotion and Drug Eradication Act; countries archives, FEDREGTOC-L, Join or leave the list (or change eligibility for benefits; petition process, 43922–43925 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.

7 CFR Proposed Rules: 922...... 43975 923...... 43975 924...... 43975 930...... 43978 8 CFR 103...... 43901 212...... 43901 214...... 43901 245...... 43901 248...... 43901 299...... 43901 13 CFR Proposed Rules: 121...... 43981 14 CFR 71...... 43921 Proposed Rules: 1275...... 43982 15 CFR 922...... 43922 2016...... 43922 21 CFR 520...... 43925 24 CFR Proposed Rules: 3282...... 43987 33 CFR 165 (2 documents) ...... 43926 38 CFR 17...... 43927 39 CFR Proposed Rules: 111...... 43989 40 CFR 82...... 43930 261...... 43939 Proposed Rules: 82...... 43991 42 CFR 411...... 43940 489...... 43940 Proposed Rules: 405...... 43995 406...... 43998 411...... 43995 424...... 44000 47 CFR 25...... 43942 64...... 44144 68...... 44144 101...... 43942 Proposed Rules: 1...... 44003 2...... 44011 15...... 44011 22...... 44003 90...... 44003 49 CFR 40...... 43946 571 (2 documents) ...... 43964, 43972 50 CFR 648...... 43974 Proposed Rules: 18...... 44020

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Rules and Regulations Federal Register Vol. 68, No. 143

Friday, July 25, 2003

This section of the FEDERAL REGISTER inspections functions transferred to the United States under the classification contains regulatory documents having general Bureau of Customs and Border specified in the application; are applicability and legal effect, most of which Protection (CBP). The DHS now has the comparable with that required for an are keyed to and codified in the Code of authority to make revisions to what American health care worker of the Federal Regulations, which is published under were previously Service regulations. For same type; are authentic; and, in the 50 titles pursuant to 44 U.S.C. 1510. the sake of simplicity, this rule will no case of a license, unencumbered; The Code of Federal Regulations is sold by longer refer to the Service but rather (2) The alien has the level of the Superintendent of Documents. Prices of DHS, even though meetings and competence in oral and written English new books are listed in the first FEDERAL publication of the previous interim considered by the Secretary of HHS, in REGISTER issue of each week. rules, publication of the proposed rule, consultation with the Secretary of and receipt of comments took place Education, to be appropriate for health under the Service prior to March 1, care work of the kind in which the alien DEPARTMENT OF HOMELAND 2003. will be engaged, as shown by an SECURITY DATES: This final rule is effective on appropriate score on one or more September 23, 2003. nationally recognized, commercially 8 CFR Parts 103, 212, 214, 245, 248 and available, standardized assessments of 299 FOR FURTHER INFORMATION CONTACT: Mari F. Johnson, Adjudications Officer, the applicant’s ability to speak and [CIS No. 2080–00] Office of Adjudications, Bureau of write English; and (3) If a majority of States licensing the RIN 1615–AA10 Citizenship and Immigration Services, Department of Homeland Security, 425 profession in which the alien intends to Certificates for Certain Health Care I Street, NW., Room 3214, Washington, work recognize a test predicting an Workers DC 20536, telephone (202) 353–8177. applicant’s success on the profession’s SUPPLEMENTARY INFORMATION: A licensing or certification examination, AGENCY: Department of Homeland proposed rule was published in the the alien has passed such a test, or has Security. Federal Register on October 11, 2002, at passed such an examination. ACTION: Final rule. 67 FR 63313. The rule proposed to Section 212(r) of the Act created an implement section 343 of the Illegal alternative certification process for SUMMARY: This rule amends the Immigration Reform and Immigrant aliens who seek to enter the United Department of Homeland Security Responsibility Act (IIRIRA) of 1996, States for the purpose of performing (DHS) regulations to provide that Public Law 104–208, 110 Stat. 3009, labor as a nurse. In lieu of a certification organizations previously authorized to 636–37 (1996), now codified at section under the standards of section issue health care worker certifications 212(a)(5)(C) of the Immigration and 212(a)(5)(C) of the Act, an alien nurse will continue to be permitted to issue Nationality Act (Act), 8 U.S.C. can present to the consular officer (or in certifications for a temporary period of 1182(a)(5)(C), and section 4(a) of the the case of an adjustment of status, the time, and to set up procedures for Nursing Relief for Disadvantaged Areas Attorney General) a certified statement authorizing organizations to issue the Act of 1999 (NRDAA), Public Law 106– from CGFNS (or an equivalent certificates, including an appeals 95, codified at section 212(r) of the Act, independent credentialing organization process in the event that requests for 8 U.S.C. 1182(r). approved for the certification of nurses) authorization are denied. In addition, that: this rule adds the requirement that all What Are the Provisions of Sections (1) The alien has a valid and nonimmigrants coming to the United 212(a)(5)(C) and (r) of the Immigration unrestricted license as a nurse in a state States for the primary purpose of and Nationality Act (Act)? where the alien intends to be employed performing labor as health care workers, Section 343 of IIRIRA created a new and that such state verifies that the including those seeking a change of ground of inadmissibility. It provides foreign licenses of alien nurses are nonimmigrant status, be required to that, subject to section 212(r) of the Act, authentic and unencumbered; submit a health care worker an alien who seeks to enter the United (2) The alien has passed the National certification. Publication of this rule States for the purpose of performing Council Licensure Examination will ensure more uniformity in the labor as a health care worker, other than (NCLEX); and adjudication of petitions and a physician, is inadmissible unless the (3) The alien is a graduate of a nursing admissibility determinations for aliens alien presents a certificate from the program that meets the following seeking to enter the United States to Commission on Graduates of Foreign requirements: engage in labor as health care workers. Nursing Schools (CGFNS), or an (i) The language of instruction was On March 1, 2003, the former equivalent independent credentialing English; and Immigration and Naturalization Service organization approved by the Attorney (ii) The nursing program was located (Service) transferred from the General in consultation with the in a country which: Department of Justice to the DHS, Secretary of the Department of Health (A) Was designated by CGFNS no pursuant to the Homeland Security Act and Human Services (HHS), verifying later than 30 days after the enactment of of 2002 (Public Law 107–296). that: the NRDAA, based on CGFNS’ Accordingly, the Service’s adjudications (1) The alien’s education, training, assessment that designation of such functions transferred to the Bureau of license, and experience meet all country is justified by the quality of Citizenship and Immigration Services applicable statutory and regulatory nursing education in that country, and (BCIS) of the DHS, and the Service’s requirements for admission into the the English language proficiency of

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those who complete such programs in The organizations that have already nurses and occupational therapists, and that country; or been granted authority to issue specified exemptions from English (B) Was designated on the basis of certifications under these interim rules, language proficiency testing. such an assessment by unanimous other than CGFNS, shall be required to The first Interim Rule applied only to agreement of CGFNS and any equivalent seek authority to issue certifications immigrants. The DHS and DOS credentialing organizations which the under the provisions of this final rule. exercised their discretion under section Attorney General has approved for the However, those organizations will retain 212(d)(3) of the Act, 8 U.S.C. 1182(d)(3), certification of nurses; and interim authority to continue issuing to waive the foreign health care worker (iii) The nursing program: certificates and certified statements certification requirement for (A) Was in operation on or before provided that they submit a request for nonimmigrant health care workers until November 12, 1999; or continued authorization on Form I–905, promulgation of final implementing (B) Has been approved by unanimous Application for Authorization to Issue regulations. The DHS and DOS agreement of CGFNS and any equivalent Health Care Worker Certificates, on or exercised their waiver discretion after credentialing organizations which the before January 27, 2004. and during the carefully considering the complexity of Attorney General has approved for the period that the Form I–905 is pending the implementation issues, including certification of nurses. adjudication with the DHS. The DHS how the health care certificate CGFNS designated the following will not require CGFNS to apply for requirements affect United States countries for purposes of this alternate authorization to issue certificates or obligations under international certification: Australia, Canada, Ireland, certified statements for those seven agreements and the need for health care New Zealand, South Africa, the United health care occupations named in the facilities across the country to remain Kingdom, and the United States. legislative history to IIRIRA. However, fully staffed and provide a high quality How Were These Requirements CGFNS will be required to submit of service to the public. The waiver of inadmissibility applied to Implemented? information regarding its certification processes via filing of Form I–905 nonimmigrant health care workers Section 212(a)(5)(C) of the Act became without fee with the Director, Nebraska already in possession of nonimmigrant effective upon enactment on September Service Center, on or before January 27, visas and visa exempt aliens, including 30, 1996. Shortly thereafter, the DHS 2004. The DHS will review CGFNS’ Canadians applying for classification met with HHS, the Department of Labor Form I–905 for content of the under section 214(e) of the Act, 8 U.S.C. (DOL), the Department of Education certificates for the seven health care 1184(e) Trade NAFTA (TN) (DoED), the Department of Commerce occupations, and content of certified classification. (DOC), the Office of the United States statements for nurses, and to ensure Trade Representative (USTR), and the What Were the Provisions of the Second compliance with the universal Interim Rule? Department of State (DOS) to reach standards set forth in this rule. Like consensus on the best approach for other credentialing organizations, In the second Interim Rule, CGFNS implementation of the new provision. CGFNS will also be subject to ongoing was temporarily authorized to issue The DHS also met with interested review by the DHS, and termination of certificates to immigrant occupational private organizations including CGFNS, credentialing status for noncompliance therapists and physical therapists, it the American Occupational Therapists with this rule. Further, the DHS will also temporarily authorized the Foreign Association, the National Board for terminate the authority of any Credentialing Commission on Physical Certification in Occupational Therapy organization currently authorized to Therapy (FCCPT) to issue certificates to (NBCOT), the Federated State Board of issue certificates or certified statements immigrant physical therapists, and Physical Therapy, and the American if the organization does not submit an established the appropriate English Physical Therapy Association. application or provide information on language competency levels for physical Section 343 of IIRIRA and NRDAA, Form I–905 on or before January 27, therapists. The DHS, in consultation was implemented via three interim rules 2004. with HHS, found that both CGFNS and published in the Federal Register as FCCPT met the ‘‘established track follows: What Were the Provisions of the First record’’ criterion, and concluded that (1) Interim Procedures for Certain Interim Rule? there was a sustained level of demand Health Care Workers, 63 FR 55007 The DHS in consultation with HHS for occupational therapists and physical (October 14, 1998) (codified at 8 CFR initially identified, on the basis of the therapists. 212.15 and 245.14) (the first Interim legislative history, seven categories of What Were the Provisions of the Third Rule); health care workers subject to the (2) Additional Authorization to Issue provisions of section 212(a)(5)(C) of the Interim Rule? Certificates for Foreign Health Care Act. See H.R. CONF. REP. NO. 104–828 In the third Interim Rule, CGFNS was Workers, 64 FR 23174 (April 30, 1999) at 227 (1996). The seven categories are temporarily authorized to issue (amending 8 CFR 212.15) (the second nurses, physical therapists, certificates to immigrant speech- Interim Rule); and occupational therapists, speech- language pathologists and audiologists, (3) Additional Authorization to Issue language pathologists, medical medical technologists (also known as Certificates for Foreign Health Care technologists (also known as clinical clinical laboratory scientists), physician Workers; Speech Language Pathologists laboratory scientists), medical assistants, and medical technicians (also and Audiologists, Medical technicians (also known as clinical known as clinical laboratory Technologists and Technicians, and laboratory technicians) and physician technicians), listed the passing scores Physician Assistants, 66 FR 3440 assistants. See 63 FR at 55008. for the English language tests for those (January 16, 2001) (amending 8 CFR In the first Interim Rule, CGFNS and health care occupations, and amended 212.15) (the third Interim Rule). the NBCOT were authorized to issue the regulations concerning which The supplementary information certificates to immigrant nurses and organizations may administer the pertaining to the October 11, 2002, occupational therapists respectively, English language tests. The DHS also proposed rule describes these earlier established the appropriate English modified the criteria it had used in the rules in more detail. language competency levels for foreign first and second Interim Rules to

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temporarily authorize organizations to (8) Providing for periodic review of certifications for health care workers. issue certificates to immigrant health the performance of certifying For example, two commenters discussed care workers. CGFNS was found to have organizations (8 CFR 212.15(l)) and the the general issue of the DHS’ role in the an established track record in issuing termination of their authority (8 CFR importation of nurses to the United certificates for the additional 212.15(m)). States while another commented on the occupations. The rule also proposed to amend 8 issue of Social Security cards and CFR 103.1 by specifying at new licenses for nurses. One commenter What Were the Provisions of the H–1C paragraphs (f)(3)(iii)(QQ) and (RR) that discussed an alleged contradiction in Interim Rule Published on June 11, the Associate Commissioner for the statutory language. These comments 2001? Examinations exercises appellate will not be discussed because they are A related interim rule was published jurisdiction over applications for not germane to the proposed rule. in response to the passage of the authorization to issue foreign health Ten commenters made general NRDAA, Petitioning Requirements for care worker certifications, and the observations on the impact of the rule the H–1C Nonimmigrant Classification termination of authorization to issue on health care in the United States. Nine under Public Law 106–95, 66 FR 31107 foreign health care worker certifications. of the commenters provided that the (June 11, 2001) (amending 8 CFR The rule proposed to amend 8 CFR rule will have an adverse affect on 214.2(h)). Among other things, the 103.7(b)(1) by adding a fee for filing health care in the United States because NRDAA created an alternative Form I–905, Application for it will make it harder for facilities to certification process for foreign nurses Authorization to Issue Certification for recruit, hire, and retain foreign health only, as provided in section 212(r) of the Health Care Workers. This form was care workers. The commenters stated Act. In the H–1C rule, the DHS previously approved for use in order to that the implementation of the announced that it would continue to ensure that organizations formally regulation will result in increased waive the certification requirements for seeking authorization to issue health backlogs and create difficulties for nonimmigrant nurses, pending the care worker certificates or certified aliens attempting to enter the United promulgation of new regulations statements will be able to submit States. The other commenter stated that implementing both certification complete and uniform applications. CGFNS will have a difficult time processes. However, because the authorization processing the number of requests it will receive for certifications. One What Provisions Were Contained in the process was never implemented through a final regulation, the Form I–905 has commenter stated that the regulation Proposed Rule Published on October takes away the authority of hospital 11, 2002? not yet been distributed for public use. The rule also proposed to amend 8 administrators to make decisions with In the October 11, 2002, rule, the DHS CFR 214.1(h) by adding a requirement respect to health care issues. Finally, proposed to implement a that an alien who seeks to enter the one commenter stated that the comprehensive process for the United States for the purpose of regulation was not flexible and would certification of foreign health care performing labor in a health care create operational difficulties for health workers under sections 212(a)(5)(C) and occupation must present a foreign care facilities. (r) of the Act. It addresses foreign health health care worker certification to the The statutory provisions relating to care workers coming to the United DHS in accordance with 8 CFR the certification process are complex. In States on a temporary basis 212.15(d). drafting the previous interim rules, the (nonimmigrant aliens) as well as on a The rule further proposed to amend 8 proposed rule, and this final rule, every permanent basis (immigrants). CFR 248.3 by adding paragraph (i) to attempt has been made to minimize the This rule proposed to amend 8 CFR mandate that a nonimmigrant seeking a adverse affects that they would have on 212.15 by: change of status to perform labor in a health care facilities and health care (1) Specifying which organizations are health care occupation must submit a workers and, at the same, ensure that authorized to issue certificates (8 CFR foreign health care worker certification. they reflect the intent of Congress. 212.15(e)); Aliens Who are Subject to the Health (2) Describing the required content of Discussion of Comments Care Certification Requirements the certificate itself (8 CFR 212.15(f)); What Comments Were Received in The DHS took the position in the (3) Specifying the English language Response to the Proposed Rule? requirements for certification (8 CFR proposed rule that the requirements of 212.15(g)); Thirty-three comments were received section 212(a)(5)(C) of the Act apply to (4) Implementing the alternative from a variety of individuals and both immigrants and nonimmigrants certification process for foreign nurses organizations including health care who seek to enter the United States for and the required content of the certified workers, attorneys, professional the purpose of performing labor as a statement (8 CFR 212.15(h)); organizations, U.S. Government health care worker. Physicians are (5) Establishing a streamlined organizations, foreign government explicitly exempted from the certification process for certain nurses, officials, and organizations granted certification requirement by the statute occupational therapists, physical authority to issue certifications to health and, therefore, are not covered by this therapists, and speech language care workers. The comments addressed rule. pathologists and audiologists (8 CFR many aspects of the proposed rule. For Further, the DHS held that with 212.15(i)); the sake of clarity, this section will respect to immigrants, the certification (6) Describing the procedure to summarize the justification for the requirement applies to both aliens qualify as a certifying organization (8 regulatory amendments contained in the overseas who are seeking an immigrant CFR 212.15(j)); proposed rule and then discuss the visa, and aliens in the United States (7) Listing the standards that an comments that relate to the specific who are applying for adjustment of organization must meet in order to amendment. status to that of a permanent resident. obtain and retain authorization to issue It must be noted that the proposed The DHS interprets the statutory foreign health care worker certifications rule generated a number of comments language, ‘‘any alien who seeks to enter (8 CFR 212.15(k)); and that were not related to the issue of the United States for the purpose of

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performing labor as a health care worker alien, not to perform labor as a health accompanying the principal alien, they ***’’ with respect to immigrants, to care worker, or in any other field. A are not coming to the United States to limit the scope of this provision to dependent alien derives his or her perform labor as a health care worker, aliens with an approved employment- nonimmigrant status from his or her or in any other field, and they will not based (EB) preference petition under familial relationship with the principal be required to obtain a certification. section 203(b) of the Act, 8 U.S.C. alien and is not required to work in a Further, the DHS will not list the 1153(b), to perform labor in a covered particular occupational field or for a specific aliens exempted from the health care occupation. Therefore, an specific employer to maintain his or her requirement to obtain health care alien is not subject to section status. Accordingly, regardless of certificates. The language contained in 212(a)(5)(C) of the Act if he or she is whether or not a dependent alien may the proposed rule at 8 CFR 212.15(a)(1) seeking an immigrant visa or adjustment intend to work in a health care provides that the provision applies only of status on any other basis pursuant to occupation listed at 8 CFR 212.15(c), he to those aliens coming to the United a family-sponsored petition under or she would not be subject to the health States for the primary purpose of section 203(a) of the Act, 8 U.S.C. care worker certification requirement. performing labor in a health care 1153(a), an EB preference petition for a Eighteen comments were received in occupation. This language clearly does non-health care occupation; under response to this portion of the proposed not apply to a nonimmigrant alien section 209 of the Act, 8 U.S.C. 1159 rule. Four commenters stated that all coming to the United States for training, (adjustment of status of refugees); under nonimmigrant aliens should be covered including an H–3 nonimmigrant alien. section 210 of the Act, 8 U.S.C. 1160 by section 212(a)(5)(C) of the Act. Six Further, the listing of specific (special agricultural workers), or commenters suggested that section nonimmigrant classifications in the pursuant to section 240A of the Act, 8 212(a)(5)(C) of the Act should not apply regulation may be erroneously U.S.C. 1229b (cancellation of removal); to TN nonimmigrants because it interpreted by some to limit the under section 249 of the Act, 8 U.S.C. conflicts with the terms of the North exemption to those nonimmigrants 1259 (record of admission for American Free Trade Agreement specifically listed in the regulation. (NAFTA). permanent residence); or under any Health Care Workers Who Were Trained other statutory provision relating to The DHS carefully considered these comments. However, as noted in the in the United States, or Who Are in admission as an immigrant. Possession of a Valid State License With respect to nonimmigrant aliens, proposed rulemaking, based on our the proposed rule applied the consideration of the relevant statutory The proposed rule provided that certification requirement to all aliens provisions, legislative history, judicial possession of a state license does not who have obtained nonimmigrant status precedent, and our prior rulemakings, exempt a foreign health care worker for the purpose of performing labor as the DHS has concluded that the health from compliance with the certification a health care worker, including, but not care certification requirement is requirement. limited to, those aliens described in intended to apply to all nonimmigrant As stated in the proposed rule, this sections 101(a)(15)(H), (J), and (O) of the health care workers. The legislative conclusion was reached after Act, 8 U.S.C. 1101(a)(15), and aliens history of IIRIRA confirms that, in this considering the language of the statute, entering pursuant to section 214(e) of instance, the DHS may not rely on the and after consultation with HHS. the Act, 8 U.S.C. 1184(e), as TN commenters’ assertions regarding an Nothing in the text of section professionals. alleged conflict with NAFTA to reach a 212(a)(5)(C) of the Act relieves alien The DHS also proposed that a different result. See H.R. CONF. REP. health care workers of this requirement, nonimmigrant entering the United NO. 104–828 at 226–27 (1996). on the ground that they were trained in States to receive training in an Four commenters also stated that the the United States or are already licensed occupation listed at 8 CFR 212.15(c) certification requirement should be here. Moreover, the certification will not be required to obtain a health applied to the spouse and dependent requires that any state license the alien care certification. This includes, but is children of an immigrant or may already have is unencumbered. not limited to, F–1 nonimmigrants nonimmigrant alien. One commenter Indeed, had Congress intended to receiving practical training and J–1 stated that nonimmigrant aliens coming exempt such aliens from the nonimmigrants coming to the United to the United States to obtain training, certification requirement, it would not States to undertake a training program such as F–1 and J–1 nonimmigrants, have explicitly provided that the in a medical field. Nonimmigrant aliens should not be required to obtain a certification must document the fact of entering the United States to receive certificate while two commenters an alien=s successful passage of any test training in a health care occupation fall suggested that they should. Likewise, or examination that is accepted as outside the ambit of section 212(a)(5)(C) two commenters suggested that an H–3 evidence of an applicant’s likely success of the Act because they are not alien should also be exempt from the on a state licensing examination, if a independently performing the full range provision because an H–3 alien is also majority of States recognize such a pre- of duties of their occupation and, coming to the United States to obtain licensing test or examination. In therefore, are not entering for the training. Finally, one commenter addition, in NRDAA, Congress purpose of performing labor as a health suggested that the DHS specifically list explicitly addressed whether a foreign care worker. Their primary purpose in the nonimmigrant aliens exempted from nurse, in possession of a full and the U.S. is not to perform health care the certification requirements in the unrestricted license issued by the state but is rather to receive training. final regulation. of intended employment, should be Finally, the DHS concluded in the The DHS will not require dependent subject to the certification requirement. proposed rule that the alien health care aliens to obtain a certificate even if they The NRDAA created a less onerous, certification requirement should not be will eventually be employed in a alternative method of certification for applied to the spouse and dependent covered health care occupation. foreign nurses who have unrestricted children of an immigrant or Sections 212(a)(5)(C) and 212(r) of the state licenses and meet certain other nonimmigrant. Dependent aliens enter Act relate to grounds of inadmissibility. conditions, as provided in section 212(r) the United States for the primary Since dependent aliens enter the United of the Act. The fact that Congress has purpose of accompanying the principal States for the primary purpose of chosen not to provide a less rigorous

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alternative certification option to state- does the DHS have the authority to on certain health care workers. This licensed foreign health care workers prevent CGFNS or any other authorized proposal has been implemented in this other than nurses supports the inference credentialing organization from making final rule at 8 CFR 215.15(i). that Congress intended state-licensed such a finding before issuing In addition, HHS has agreed to accept foreign health care workers to comply certification. graduation from the following programs with the certification process. The proposed rule invited comments in lieu of a review of educational In addition to the statutory scheme, regarding the feasibility of having a comparability and English proficiency: there are policy considerations that more streamlined certification process (1) For occupational therapists, mitigate in favor of applying the for those who train in the United States graduation from a program accredited certification requirement to state- or who are already licensed here, and by the Accreditation Council for licensed foreign health care workers. regarding specific proposals on how to Occupational Therapy Education The state screening process alone would adopt such a policy. (ACOTE) of the American Occupational not demonstrate that the other two The DHS received four comments in Therapy Association (AOTA); prongs of the certification requirement, response to the request for suggestions (2) For physical therapists, graduation English language competency, and relating to a streamlined certification from a program accredited by the comparable training and unencumbered process. Three commenters stated that Commission on Accreditation in licensing, had been met. First, the state the DHS should develop a streamlined Physical Therapy Education (CAPTE) of screening process does not always approach without providing any the American Physical Therapy measure English proficiency. Second, suggested process while one Association (APTA); and HHS had advised that the state commenter, CGFNS, provided a detailed (3) For speech language pathologists screening process may not always description of a proposed process. and audiologists, graduation from a discover encumbrances and restrictions The CGFNS proposed that an alien program accredited by the Council on on a license. nurse who graduated from an entry- Academic Accreditation in Audiology The statute and legislative history are level program accredited by the and Speech Language Pathology (CAA) silent with respect to whether foreign National League for Nursing of the American Speech-Language- health care workers, who received their Accreditation Commission (NLNAC) or Hearing Association (ASHA). training in the United States, are subject the Commission on Collegiate Nursing However, the proposal that aliens to the certification process. While such Education (CCNE) would be exempt educated in the United States in any aliens would satisfy the comparable from the educational comparability other named discipline and who have training certification requirements, their review and English language proficiency graduated from a program accredited by licensure would not be verified, as testing. The CGFNS also proposed that the discipline would be evaluated under required by the statute. Given the lack aliens educated in the United States in this same process will not be adopted as of evidence of congressional intent that any other named discipline and who general provision, because specific such aliens be exempt from the reach of have graduated from a program accrediting bodies for other professions section 212(a)(5)(C) of the Act, the DHS accredited by the discipline would be were not suggested. The HHS will has concluded that foreign health care evaluated under this same process. continue to review further proposals for workers who received their training in Pursuant to section 343 of IIRIRA, each profession on a case-by-case basis. HHS, in consultation with the Secretary the United States must comply with the Health Care Occupations That Are of Education, is required to establish a certification requirement. The DHS will Subject to 8 U.S.C. 1182(a)(5)(C) not modify the proposals contained in level of competence in oral and written the proposed rule to wholly exempt English which is appropriate for the In the proposed rule, based on foreign health care workers who health care work of the kind in which congressional history, seven categories received their training in the United the alien will be engaged, as shown by of health care workers subject to the States or who hold a license to practice an appropriate score on one or more health care certification requirements in the United States. nationally recognized, commercially were identified. See H.R. CONF. REP. One commenter suggested that the available, standardized assessments of NO. 104–828 at 227 (1996). The seven verification requirement for nurses at the applicant’s ability to speak and categories are nurses, physical proposed 8 CFR 212.15(h)(2)(i) be write. therapists, occupational therapists, amended to include the parenthetical The statute vests the Secretary of HHS speech-language pathologists, medical phrase A(including reliance on evidence with the ‘‘sole discretion’’ to determine technologists (also known as clinical provided by the alien)’’ after the word the standardized tests and appropriate laboratory scientists), medical Averified.’’ Under the suggested minimum scores required by section technicians (also known as clinical language, credentialing organizations 343 of IIRIRA. Because the organizations laboratory technicians) and physician would not be permitted to second-guess identified as the accrediting bodies for assistants. See the first Interim Rule. a state’s licensure verification. The DHS nursing go through a rigorous review The conference report also provided will not adopt this proposal. The prior to being recognized by the DoED, that the DHS could designate additional statutory language at section 212(r) of HHS has agreed that the proposal to health care occupations subject to the Act authorizes CGFNS or any other accept graduation from an NLNAC or certification by regulation. Since the authorized credentialing organization to CCNE accredited program in lieu of a DHS had limited agency expertise with verify that the alien has a valid and review of educational comparability and health care occupations and issues, it unrestricted license in a state where the English proficiency has merit. consulted extensively with HHS, the alien intends to be employed, and that Accordingly, the proposal will be agency generally responsible for such state verifies that the foreign adopted in the final rule. It will shorten overseeing health care occupations and licenses of alien nurses are authentic the certification process required for other related health care issues in the and unencumbered. The DHS does not health care workers educated in the United States, with respect to the have the authority under the statute to United States. It will also allow CGFNS question of whether aliens in additional determine whether or not a state verifies and any approved organization to health care occupations should be that the foreign licenses of alien nurses comply with the statutory requirements required to comply with 8 U.S.C. are authentic and unencumbered, nor and, at the same time, ease the burden 1182(a)(5)(C).

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The proposed rule identified two do have a direct effect on patient care, for the purpose of performing labor as factors relevant to the consideration of would be subject to the certification a health care worker to present a which health care occupations fall requirements. In the proposed rule, the certificate from CGFNS or an equivalent under the ambit of section 212(a)(5)(C) DHS acknowledged that the job credentialing organization to the of the Act. The first factor is whether the descriptions of certain occupations that consular officer or, in the case of an health care occupation generally could be added to the list may differ in adjustment of status, the Attorney requires a license in a majority of the other countries from the United States General. In the proposed rule, the DHS states. This factor reflects the states’ definition of the occupation. The also provided that the certification must historical and practical experience in differences may create confusion about be used for initial admission into the distinguishing between those health which occupation is subject to United States or for a change of status care occupations requiring extensive certification. The DHS suggested that a within 5 years of the date that it was regulation and those occupations that possible solution would be to define issued. do not. At the advice of HHS, DHS has each health care occupation subject to Two comments were received in included the District of Columbia. certification in this final rule. The DHS response to this proposal. One While not a state, Washington, DC, has again invited comments regarding the commenter suggested that the its own licensing authorities and should need to define a health care occupation organization that issues the certification be included when determining whether that is subject to certification. send it directly to either the DHS or, if a majority of states recognize a licensure In response to this provision, the DHS the alien is outside the United States, to or certification predictor exam. received nine comments. Three the consular post. Since the adoption of The second factor is whether the commenters suggested that the list of this suggestion would be contrary to health care worker has a direct effect on occupations be expanded to include statute, the requirement that the patient care, or, in other words, whether additional occupations including certificate be presented to a consular a health care worker in that occupation Radiation Therapists and Radiological officer at the time of visa issuance and could reasonably pose a risk to patient Technologists. Two commenters to the DHS at the time of admission or health. suggested that the current list of adjustment of status will continue in In response to this proposal, CGFNS occupations be retained. Three this final rule. suggested that a third factor should be commenters suggested that the DHS The other commenter suggested that considered in determining whether an should define a health care occupation the certification should be valid occupation should be included in the as any occupation that requires a license indefinitely. While the proposed certification process. The CGFNS to provide direct and indirect patient regulation did not establish a validity suggested that an additional factor that care. Another commenter suggested that date for the certification, it did require should be considered is whether a a health care occupation is any that it be submitted to the appropriate significant number of foreign nationals occupation that involves patient care. entity within 5 years of its issuance. The enter the United States workforce for the Finally, one commenter suggested that purpose of this proposal is to ensure purpose of performing labor in a job descriptions should be used to that when the certification is submitted, particular health care occupation. The define a health care occupation. the holder still has the appropriate CGFNS noted that it would not be After reviewing the comments, the language and technical skills to perform prudent to spend the time and resources DHS will not include a specific the duties of the occupation in the required to establish a certification definition of each health care United States. Foreign licenses may be process for a particular occupation in occupation subject to certification in the encumbered and therefore invalid after which very few foreign workers are regulation at this time. The definitions a prolonged period of time. seeking employment. offered by the commenters were not Additionally, it is quite possible that The DHS has considered using the sufficiently specific and could cover a over the course of time that the alien factor suggested by CGFNS. It would be range of occupations not contemplated may lose certain skills necessary to difficult to accurately measure the by the legislative history. Further, the safely perform the duties of the number of ‘‘foreign’’ workers in a given suggestions have not addressed occupation in the United States. The 5- occupation at a particular point in time, concerns that the job descriptions of year submission period provides a basis and the labor market for any occupation occupations may differ between the to ensure that the holder of the is subject to fluctuations. As the DHS is United States and other countries. The certificate continues to meet the not currently adding any other DHS will continue the past practice of regulatory requirements for issuance of occupations to the list of seven examining the duties of the position the certificate. The proposed rule also occupations requiring certification or offered to the foreign worker to provided that if an alien seeking entry certified statements, the DHS will not determine if the position falls into one to the United States to perform labor in adopt the suggestion to evaluate of the listed health care occupations. a particular health care occupation has inclusion of an occupation based on the The practice of continuing to review the already presented the certification and number of foreign nationals seeking to duties of the prospective position on a been admitted as a nonimmigrant, an enter the United States workforce in that case by case basis will allow for a immigrant, or has adjusted to permanent occupation. thorough evaluation of each application resident status, he or she will not be Under the proposed rule, health care and a determination based on the merits required to present the certificate again workers such as, but not limited to, of the case rather than the petitioner’s when he or she makes future medical teachers, medical researchers, or applicant’s ability to make the duties applications for admission to the United managers of health care facilities, and of the position conform to a narrow States to perform labor in that particular medical consultants to the insurance definition. health care occupation. The industry would not be required to presentation of a Form I–94 issued to comply with the certification When To Submit the Certification to the the alien at the initial admission to the requirement. In contrast, health care DHS United States, or a fee receipt showing workers, such as supervisory physical The statutory language at section that the alien was processed for therapists, who may not typically be 212(a)(5)(C) of the Act requires certain admission under NAFTA would be involved in hands-on patient care but aliens seeking to enter the United States used, if required, as evidence that the

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alien has previously presented a foreign apply for admission to the United issue certifications to this potentially health care worker certificate for a States, whichever event occurs first. large group of workers within a particular health care occupation. The DHS received 13 comments in reasonable amount of time. Not only are Similarly, such an alien would not have response to this provision. All 13 potentially affected health care workers been required to again present the commenters suggested that the DHS required to apply for and obtain the foreign health care worker certificate to delay the implementation of this actual certifications, but most workers the DHS, with an application for provision for a period of time in order would also be required to pass certain extension of status to perform labor in to ensure that the foreign health care standardized English language tests as a that particular health care occupation. workers already in the United States minimum requirement to obtain The DHS received no comments on would not be adversely affected. The certification. As discussed in this rule, this proposal. However, after commenters noted that some health care one of the currently authorized English considering the impact of this provision, workers may be required to travel language testing organizations advised the DHS has determined that it will only outside of the United States and would HHS and the DHS that it will no longer accept a valid health care worker not be able to obtain a certification prior provide testing services to foreign health certificate or certified statement as to their departure. Other commenters care workers because it cannot meet the evidence that the alien is admissible. noted that some health care workers demands placed upon it by foreign Currently, an alien is generally required who require an extension of their health care workers seeking health care to surrender the departure stub of Form temporary stay would not be able to certificates, and can no longer provide I–94 upon departure from the United obtain a certification in a timely fashion fair access or guarantee testing security. States. Controlling the departure of and would be forced to terminate their In addition, health care workers aliens is consistent with the DHS’s employment at the health care facility. abroad may be required to travel to The DHS believes that these efforts to fulfill a congressional mandate remote locations in order to take certain comments are well-founded. The DHS is to implement a comprehensive entry- tests and will require sufficient time to concerned about the possibility that exit program by 2005. As a result, many schedule testing and make any health care facilities and the United aliens will not be able to present a necessary travel arrangements. Although States public will be adversely affected departure stub from a previously issued the tests may be offered several times a by an immediate implementation date. Form I–94 as evidence of their year, not all required tests are offered in In addition, DOS also has recommended continuing admissibility under section one location. For example, the TSE is that the DHS continue to exercise its not always offered at the same location 212(a)(5)(C) of the Act. In addition, it is waiver authority under section 212(d)(3) as the TOEFL, so a health care worker noted that information on a Form I–94 of the Act for foreign health care may have to go through several testing does not always include the occupation workers for at least one year subsequent cycles in order to obtain a combination for an alien nonimmigrant. For this to the publication of this rule. of test scores needed for certification. reason, even in exceptional instances If this rule were effective upon Finally, it should be noted that this rule where the alien is permitted to retain publication, potentially every is implementing the requirement that all the departure stub of the Form I–94 nonimmigrant working in one of the approved credentialing organizations when departing the United States, the covered health care occupations and obtain evidence of candidate education DHS would not necessarily be able to seeking admission into the United and licensure directly from the issuing use the departure stub of the Form I–94 States would be immediately authorities. Thus, once a candidate has to verify that a particular alien was inadmissible and ineligible to work in passed the requisite tests and submitted previously admitted as a health care the United States under their current an application for certification, there worker. Accordingly, the DHS has nonimmigrant classifications. This will be additional delays while the determined that it is in the best interest would result in a serious disruption to authorized credentialing organization of affected aliens to require that they the United States health care system, obtains and reviews documents such as present valid health care worker and is contrary to the intent of the rule. educational transcripts and licensure certificates or certified statements each While the DHS does not have precise materials. time they seek admission into the figures for the number of nonimmigrant After consideration of these factors, United States. Lawful permanent health care workers within the United the DHS believes that it must continue residents will not be required to present States, health care workers in general the provision for temporary admission this evidence. comprise a significant portion of the under section 212(d)(3) of the Act for a Implementation of the Certification United States workforce. According to period of 1 year in order to allow for any Requirement the 2001 National Occupational potential delays in issuance of health Employment and Wage Estimates from care worker certification and to ensure This rule adds a new 8 CFR 248.3(i) the Bureau of Labor Statistics, there are that the United States public is not to outline the procedure for submitting approximately 9,241,840 health care adversely affected when nonimmigrant the certificate to the DHS when an workers in the United States. Of these, health care workers currently employed application is made to change approximately 2,217,990 are registered in the United States are required to nonimmigrant status within the United nurses; 683,790 are licensed practical obtain certification. Therefore, the DHS States. nurses and licensed vocational nurses; has added language at 8 CFR 215.15(n) The proposed rule also provided that, 126,450 are physical therapists; 77,080 that continues in force the First Interim on the effective date of the final rule, are occupational therapists; 94,150 are Rule’s standing provision for temporary nonimmigrants who have already speech language pathologists and admission under section 212(d)(3) of the entered the United States under a audiologists; 292,320 are medical Act. An alien qualifies for this special waiver of inadmissibility under section technologists and technicians; and provision only if the alien was admitted 212(d)(3) of the Act and are working as 56,200 are physician assistants. on or before July 26, 2004. Moreover, health care workers will be required to Further, were this rule to be effective any petition or application to extend the present a certificate to the DHS only if, upon publication, there is no evidence alien’s period of authorized stay or at any point in the future, they file an that organizations authorized to issue change the alien’s status will be denied application for an extension of stay, or health care certifications will be able to unless the alien obtains the required

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certification no later than 1 year after Service Center, with fee. The fee for meets the standards described in 8 CFR the date of the alien’s temporary Form I–905 will be $230. 212.15(k); admission. For purposes of administrative ease (2) List the health care occupations for Process for an Organization to Obtain and efficiency, the DHS will centralize which the organization is seeking Authorization to Issue Health Care all requests for designation as a approval to issue certificates, and Certificates credentialing organization at the describe the organization’s expertise in The statute provides that a foreign Nebraska Service Center, regardless of each health care occupation for which health care worker must present a the geographical location of the approval to issue certificates is sought; certificate from CGFNS or an equivalent requesting organization. Centralization (3) Describe how it will process credentialing organization or, in the of these requests will enable personnel applications and issue certificates on a case of certain foreign nurses, a certified at the Nebraska Service Center to timely basis; and statement from CGFNS or an equivalent establish and maintain the appropriate (4) Describe the procedure it has credentialing organization. In the contacts with HHS and DoED to assist designed in order for the DHS to verify legislative history to IIRIRA, the in the adjudication of applications for the validity of a certificate. The DHS will provide the conferees identified seven health care credentialing status. The DHS will organization with a written decision on occupations (which are currently accord significant weight to the opinion of HHS in the adjudication of its application. An organization granted reflected in 8 CFR 212.15(c)). It is authorization to issue certificates must reasonable to infer from the statutory applications for credentialing status because of that agency’s expertise with agree to provide the DHS with all designation of CGFNS as a credentialing requested documentation and to allow organization that Congress considered credentialing requirements for health care occupations and health care issues. the DHS access to its records relating to CGFNS to possess the resources and the certification process. If the expertise to issue certificates in at least It should be noted, however, that the DHS may deny a request for application is denied, the DHS will those seven designated health care explain the reason(s) for the denial. occupations. Accordingly, the DHS will authorization on grounds unrelated to credentialing requirements for health Applications that are denied by the DHS not require CGFNS to apply for may be appealed to the Administrative credentialing status with respect to care occupations or health care issues, despite a favorable HHS opinion. For Appeals Office pursuant to 8 CFR 103.3. those seven health care occupations. In the proposed rule, the DHS sought However, CGFNS will be required to example, the DHS may find that because an organization has been convicted, or comments on the best method of submit information regarding its the directors or officers of an authorized notifying the public when new certification processes via filing of Form credentialing organization have organizations are approved to issue I–905 Application for Authorization to individually been convicted of the certifications and certified statements. Issue Certification for Health Care violation of state or federal laws, it One method of notifying the public was Workers, without fee with the Director, would not be appropriate to authorize through the publication of an interim Nebraska Service Center, in order to an organization to issue certificates or rule in the Federal Register. enable the DHS to review the content of certified statements. In the alternative, the DHS considered its certificates for the seven health care Two comments were received with designating, by a separate and occupations, and content of its certified respect to the DHS’s treatment of comprehensive public notice in the statements for nurses, and ensure CGFNS under the proposed rule. One Federal Register, the list of compliance with the universal commenter stated that CGFNS should organizations approved to issue standards set forth in this rule. Like not be permitted to issue certificates to certification. The DHS would also other credentialing organizations, medical laboratory technologists maintain this list on its Web site at CGFNS will also be subject to ongoing because of the large number of http://www.immigration.gov). This review by the DHS, and termination of credentialing organizations for this method would allow the DHS to update credentialing status for noncompliance occupation in the United States. The the list of authorized organizations more with this rule. other commenter stated that the quickly than through publication of It is less clear, however, that Congress treatment of CGFNS in the proposed interim rules. considered whether CGFNS possessed rule is appropriate. The DHS did not receive any the expertise to issue certificates for The DHS will not limit the scope of comments on this particular issue. health care occupations other than the CGFNS’ authority to issue certificates to However, after additional consideration, seven identified in the legislative medical laboratory technologists. The the DHS has determined that it will history. Therefore, although CGFNS’ fact that other entities have established provide notice to the public that an statutory designation creates a strong different licensing and credentialing organization has been approved to issue presumption of expertise with respect to processes in the United States does not certificates and certified statements all health care occupations such that the mean that CGFNS is unable or less through the publication of a DHS will not charge a fee for review of qualified to issue certificates to foreign comprehensive notice in the Federal the Form I–905 in relation to those health care workers employed in the Register. As a result, this final rule occupations, the DHS will require same occupation. CGFNS has been provides at 8 CFR 215.15(e)(4) that the CGFNS to file an application on Form issuing certificates and certified DHS will notify the public of new I–905 with fee under the procedures statements to health care workers in the approved organizations authorized to outlined at 8 CFR 212.15(j), for field of nursing, a field that has a large issue certificates by publishing a public credentialing status with respect to any number of credentialing entities and notice in the Federal Register. This rule health care occupation other than the with varied standards. also adds the same provision with seven identified in the legislative The proposed rule noted that Form I– respect to organizations authorized to history. 905 will require the organization issue certified statements at 8 CFR Organizations other than CGFNS may seeking credentialing status to: 215.15(h)(1). The DHS would maintain be approved to issue certificates or (1) Provide a point of contact and a the list of organizations authorized to certified statements by submission of written, detailed description of the issue certificates or certified statements, Form I–905 to the Director, Nebraska organization and how the organization or whose authorization has been

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terminated, on its Web site at http:// Officers Act of 1990, Public Law 101– Since the statute and the report www.immigration.gov. 576, 104 Stat. 2838. language is intended to ensure that The proposed rule recognized that In response to the new form, the DHS aliens entering the United States for more than one organization could be received two comments. One purposes of performing labor as a health approved to issue certifications for the commenter suggested that the fee care worker are of the same quality as same health care occupation. An alien should be higher. The DHS will not United States trained workers, HHS has may obtain a certificate from any increase the fee because the rationale determined that this can be assured by organization authorized to issue used in the proposed rule to establish requiring that organizations issuing certificates for that occupation. the fee is appropriate. The DHS may certificates be held to a select group of One commenter suggested that revise the fee after the next biennial fee standards. The DHS is concerned that in recognizing more than one credentialing review. The other commenter stated that the absence of strict standards, organization could create difficulties the questions on the Form I–905 should unqualified organizations may obtain because the two organizations may be tailored to a specific occupation. authorization from the DHS to issue establish different procedures for Upon review, the DHS will not make certificates, which could ultimately issuing certifications. The DHS is aware any changes to Form I–905. The answers have adverse consequences for health that organizations may have slightly to the questions contained on the form care in the United States. Since the different requirements for issuing will provide the DHS with the provisions of section 212(r) of the Act certifications. However, the DHS is information necessary to determine an appear to share with section 212(a)(5)(C) convinced that the standards organization’s eligibility to issue of the Act the goal of ensuring a high established for approval guarantee that certifications. quality of health care service in the organizations will follow similar, The Standards an Organization Must United States, the DHS will use the although not identical, procedures for same standards to adjudicate issuance of certifications. Meet in Order To Obtain Authorization To Issue Certificates applications from credentialing This rule also adopts the language of organizations under either provision. the proposed rule and provides that the The proposed rule lists the standards DHS’s approval will be for a 5-year an organization must substantially meet The proposed rule solicited comments period of time subject to the review in order to be authorized to issue from the public and from interested process described in 8 CFR 215.15(l). certificates at 8 CFR 212.15(k). An organizations regarding the proposed Two commenters suggested that the organization seeking approval to issue standards, specifically, whether an organizations granted approval under certificates or certified statements organization seeking authorization to the previously published interim rules should submit evidence addressing each issue certificates may meet most, but not be permitted to issue certificates for a of the standards. These standards were all of the standards. The DHS sought given period of time until they could be developed by HHS in order to ensure comment on the question of whether a approved under the standards listed in that an organization meets the prospective credentialing organization’s the final rule. The proposed rule requirements contemplated by Congress. inability to meet all of the proposed provided that the authorization granted In drafting these standards, HHS drew standards should preclude the DHS to organizations under the interim rules upon the legislative history to IIRIRA, from authorizing the organization to would continue pending final and drew extensively from the issue certificates. The DHS also sought adjudication of its credentialing status standards of the National Commission public comment on the question of under the provisions contained in the for Certifying Agencies, a nationally whether the proposed standards should proposed rule. recognized body that accredits certifying be considered as guidelines or as strict criteria that would preclude an Form I–905 organizations. There are four guiding principles to the standards: organization from qualifying. Finally, The proposed rule set a filing fee of (1) The DHS should not approve a the DHS invited public comment on the $230 for Form I–905. When establishing credentialing organization, unless the question of how a prospective fees, the DHS must comply with organization is independent and free of credentialing organization can meet the guidance provided in the Office of material conflicts of interest regarding requirement that it demonstrate that it is Management and Budget (OMB) whether an alien receives a visa; independent and free of material Circular A–25. This guidance directs (2) The organization should conflicts of interest regarding whether federal agencies to charge the Afull demonstrate an ability to evaluate both an alien receives a visa. cost’’ of providing benefits when the foreign credentials appropriate for In response to this proposal, the DHS calculating fees that provide a special the profession, and the results of received 18 comments. Four benefit to recipients. Section 6(d) of examinations for proficiency in the commenters stated that organizations OMB Circular A–25 defined Afull cost’’ English language appropriate for the should be required to meet all the as including Aall direct and indirect health care field in which the alien will proposed standards and that the costs to any part of the Federal be engaged; standards should be viewed as strict Government of providing a good, (3) The organization should also criteria, not merely guidelines. Two resource, or service.’’ The DHS maintain comprehensive and current commenters stated that the determined that $230 was the information on foreign educational organizations must be independent and appropriate fee for Form I–905 after institutions, ministries of health, and free from prejudice. One commenter comparing the processing of the form to foreign health care licensing suggested that the DHS remove or the process involved with Form I–17, jurisdictions; and modify the standard that requires Petition for Approval of School for (4) If the health care field is one for organizations to compare the passing Attendance by Nonimmigrant Student, which a majority of the States require a rate of foreign health care workers on which has a processing fee of $230. The predictor examination (currently, this is licensure examinations with those of DHS noted in the proposed rule that it done only for nursing), the organization United States health care workers. will use $230 for the fee for the Form should demonstrate an ability to Another commenter suggested that I–905 until the next biennial fee review, conduct the examination outside the tracking the performance of certificate as required by the Chief Financial United States. holders would not be practical.

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One commenter suggested that submissions from applicants, and will responsibility to track the performance recognized experts should be on an ensure the authenticity of of foreign workers holding credentials. organization’s board while another documentation relating to an applicant’s These provisions are valuable tools for commenter suggested that members of education and licensure. Accordingly, determining the effectiveness of the the health care profession should be the DHS will adopt this comment and credentialing process and are essential included. One commenter suggested has added language at 8 CFR to the success of the credentialing that the standards were so complicated 212.15(k)(3)(vi). program. that they might discourage entities from In general, the standards as written in Monitoring Organizations Authorized applying for approval while one the proposed rule have been one of the To Issue Certificates or Certified commenter stated that the requirements more contentious issues in the entire Statements were not specific. Three commenters health care worker certification process; stated that the credential review process however, they were developed with In the proposed rule, the DHS developed by the approved HHS based in part on those standards provided that it intended to develop a organizations must follow established held by other currently authorized regulatory process to monitor guidelines. One commenter stated that entities. The standards are voluminous credentialing organizations, including organizations should be required to and, in some situations, can be satisfied CGFNS, to ensure that a credentialing solicit information from applicants in a number of different ways. As such, organization continues to follow the seeking a certification. Finally, one the DHS has determined that these standards described in the proposed commenter suggested that each standards are best viewed as guidelines rule. The DHS proposed to review and organization should require that health and not strict criteria. Further, since the reauthorize the credentialing care workers complete the same course approval of an organization by the DHS organizations every 5 years. The rule work for each occupation. is a matter of discretion, the final rule also proposed that the DHS notify the Two commenters made suggestions reflects that an organization seeking credentialing organization in writing of relative to the composition of the approval is required to meet the the results of the review and organization’s board, including a majority, but not all, of the listed reauthorization. If the DHS developed suggestion from one commenter that the standards. The burden to establish adverse information with respect to the proposed language at 8 CFR eligibility, however, rests with the performance of the organization, the 212.15(k)(l)(vi) be amended to clarify organization seeking approval. An DHS could institute termination that a not-for-profit corporation that has organization seeking approval to issue a proceedings. The DHS solicited a self-perpetuating board of directors health care certificate should make comments from the public regarding the may still demonstrate that it is every attempt to submit evidence frequency of review, e.g., review as part independent and free of material addressing each of the criteria listed. It of the 5-year reauthorization, or an conflicts of interest regarding whether should be noted that any organization, annual or bi-annual review, the nature an alien receives a visa. Many not-for- including a state agency, for example, of the review, and whether reviews, if profit organizations have self- could be found eligible for authorization conducted separately from perpetuating boards of directors but may to issue certification so long as it meets reauthorization, should be targeted nevertheless be considered independent the majority of the listed standards. versus random, would be of great and free of material conflicts of interest It is the opinion of the DHS that the assistance in the development of a under the statute. This provision was standards contained in this rule are review process. not intended to exclude not-for-profit specific enough to ensure that approved The DHS also proposed to assess corporations from receiving organizations will develop credentialing whether an authorized credentialing authorization to issue health care processes that are reasonably consistent organization had issued certificates or worker certifications, and the DHS given the differences in the types of certified statements in a timely manner recognizes that a not-for-profit health care occupations that will be so as to minimize any delays that may organization with a self-perpetuating reviewed. The DHS is aware that affect an alien’s ability to proceed with board of directors may yet establish that approved organizations will be required his or her application for an it has met the statutory requirement. to develop different credentialing immigration benefit, and to assess Accordingly, the DHS will adopt this processes because of the differences in whether the fee charged for a certificate suggestion and has added language at 8 the educational and training or certified statement unduly impairs an CFR 212.15(k)(l)(vi) to provide that not- requirements for the affected alien’s ability to seek an immigration for-profit corporations which have occupations. As a result, the DHS will benefit. The DHS sought comments on difficulty meeting the requirement not dictate specific credentialing what might constitute a reasonable relating to self-perpetuating boards of processes to the approved organizations. period of time within which a directors may nevertheless establish that Aside from modifications relating to credentialing organization would be the organization is independent and free not-for-profit corporations and the required to issue certificates or certified of material conflicts of interest regarding requirement that a credentialing statements, and regarding what whether an alien receives a visa. organization obtain educational and methodology the DHS should use in One commenter suggested that any licensing documents directly from the assessing whether a fee constitutes an credentialing organization that seeks issuing authorities, the DHS will not obstacle to obtaining an immigration authorization to issue health care modify the proposed regulation with benefit. worker certificates should be required to respect to the composition of its In response to this proposal the DHS request evidence of an alien’s degree governing board or the portion of the received eight comments. One and transcript from the issuing organization responsible for overseeing commenter stated that the 5-year review educational and licensing authorities, certification. The standards as currently period was appropriate while two rather than accept those documents written provide sufficient flexibility to commenters suggested that the DHS from the applicants. The DHS, in ensure that organizations will operate in conduct bi-annual reviews of approved consultation with HHS, has determined a fair and objective fashion. organizations. Two commenters that this suggestion will provide The DHS will not amend the suggested that the DHS conduct random additional protection against fraudulent standards describing an organization’s surveys during the 5-year period.

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Finally, CGFNS stated that it should be CGFNS. Thus, CGFNS is not exempt permits an alien to demonstrate that he exempt from the 5-year review process from governmental oversight. The or she has passed the profession’s because it is specifically listed in the approval and review process is a licensing or certification examination or statute as an organization authorized to guarantee that CGFNS will continue to a test predicting the success on such an issue certifications. meet the standards required for all examination, if a majority of states The DHS does not feel that it is certifying organizations. licensing the profession recognize such appropriate to modify the proposed The DHS also received two comments a predictor test. After consultation with review process at this time by relating to the fees that an organization HHS, the DHS has amended language at conducting additional scheduled charges for the certification. One 8 CFR 212.15(k)(7)(i) to clarify that reviews or by exempting any commenter stated that the CGFNS fee health care workers have the option to organizations. The DHS will adopt the was too high while the other commenter demonstrate passage of an acceptable suggestion to review an organization at proposed a rolling fee based on an predictor test for purposes of obtaining any time during the 5-year period by alien’s monthly income in his or her health care worker certification. reserving the right to conduct reviews of country. the approval of any request for The DHS will not modify the Process for Terminating an authorization to issue certificates. The proposed rule to address the fee issue. Organization’s Authorization To Issue DHS retains the right to conduct a The statute does not give the DHS the Certifications review at any time within the 5-year authority to set fees for organizations The proposed rule provided that, period of authorization. This authority approved to issue certifications or upon notification that an authorized under § 212.15(k)(8)(iii) provides that certified statements. The DHS is credentialing organization has been the DHS can request information of the confident that organizations authorized convicted, or the directors or officers of organization and its program for use in to issue certifications and statements an authorized credentialing organization investigating allegations of non- will charge a reasonable fee that covers have individually been convicted, of a compliance with standards and for the cost of their respective processes. violation of state or federal laws, so that general purposes of determining Only one comment was received the fitness of the organization to continued approval as an independent regarding what might constitute a continue to issue certificates is called credentialing organization. The DHS reasonable period of time within which into question, the DHS shall intends to use this authority to conduct a credentialing organization would be automatically terminate authorization to periodic reviews. The DHS notes the required to issue certificates. The issue certificates via notice to the concerns expressed by the commenters commenter suggested that 60 days credentialing organization. that organizations should be monitored would be an appropriate time period. Upon receipt or discovery of on a bi-annual basis to ensure The DHS has decided to information that the credentialing compliance with the approval standards accommodate this concern. As the organization is no longer complying but finds that a 5-year review period comment notes, this rule provides at 8 with the standards contained in 8 CFR appears appropriate at this time. It CFR 212.15(k)(4)(x) that certificates 212.15(k), or upon receipt or discovery should be noted that the DHS also has must be provided to applicants in a of information that termination of the the ability to initiate termination timely manner. The BCIS shares the organization’s approval is otherwise proceedings any time after approval has commenter’s concern that the warranted, the DHS will issue a Notice been granted. The DHS can initiate certification requirement may unduly of Intent to Terminate Authorization to termination proceedings at any time delay the recruitment of foreign health Issue Certificates to Foreign Health Care during the 5-year period based on care workers and adversely affect health Workers to the credentialing information received from other care in the United States. The BCIS organization. The credentialing sources, e.g., adverse information notes that in such a case, it retains organization will be given 30 days from provided by state licensing boards or authority to commence termination the date of the Notice of Intent to uncovered during the course of an proceedings against a certifying Terminate Authorization to Issue ordinary review of approval of an organization if the situation warrants. Certificates to Foreign Health Care entity’s authorization. The BCIS may also provide other Workers to rebut or cure the allegations The DHS will not exempt CGFNS remedies, such as a waiver under made in the DHS’ notice. from the 5-year review process. While section 212(d)(3) of the Act of the DHS will submit any information CGFNS is named in section 212(a)(5)(C) certification requirement in individual received in response to the Notice to of the Act, it is named as one of the cases upon request. Such a waiver will HHS upon receipt. Thirty days after the entities from which an alien may only facilitate a determination of date of the Notice of Intent to receive a valid certificate in order to admissibility in the context of an Terminate, the DHS will request an gain admission. This language relates to application for admission, change of opinion from HHS regarding whether the alien and his or her admissibility, status, and/or extension of stay, the organization’s authorization should not to CGFNS’ authority to issue however, and the alien must continue be terminated and forward any certificates, which is still subject to the process of obtaining the certificate additional evidence. The DHS shall approval by the Bureau of Citizenship as described in 8 CFR 212.15(n)(2)(i). accord HHS’ opinion great weight in and Immigration Services. Just as this The BCIS intends to monitor this determining whether the authorization language does not preclude approval of situation and welcomes input from the should be terminated. After other certifying organizations, it is the public on the performance of certifying consideration of the organization’s position of the Bureau of Citizenship organizations. response, if any, to the Notice of Intent and Immigration Services that it does Finally, it should be noted that the to Terminate, and of HHS’ opinion, the not guarantee approval in the case of proposed criteria for awarding and DHS will provide the organization with CGFNS either. Finally, Congress named governing certificate holders had the a written decision. CGFNS as an example in the statute unintended effect of requiring an alien The DHS’s decision terminating an because it was aware that this entity to submit evidence of passage of the organization’s authorization may be existed and was active in this field, but profession’s licensing or certification appealed to the AAO pursuant to 8 CFR did not mean to confer any authority on examination when in fact the statute 103.3. Termination of credentialing

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status will occur on the date of the security concerns, or issues relating to certificates must include in its decision and remain in effect until and fraud, may not lead to prosecution but revocation process a mechanism to unless the terminated organization certainly relate to the fitness of the revoke a certificate when it learns that reapplies, with fee, for credentialing organization to issue certificates. This a holder is no longer eligible to hold a status and is approved, or its appeal of clarification has been made necessary certificate. the termination decision is sustained by by events and issues identified during The third commenter suggested that the AAO. There is no waiting period for the course of the DHS’ administration of an alien that is issued a certification an organization to re-apply for this program since the proposed rule. should be required to report credentialing status. The lack of a criminal prosecution or employment information to the The DHS received six comments in conviction in cases involving national credentialing organization which will response to the DHS’s proposal on the security does not reduce the need to act then be reported to the DHS. This termination of an organization’s appropriately to protect the public in comment will not be adopted because authorization to issue certifications. One such cases. the role of credentialing organizations is commenter stated that the two grounds Revocation of Certificates to review a health care worker’s for termination of an organization’s qualifications, including education, approval were sufficient and that no The proposed rule provided that a training, license, and experience. The further grounds should be added to the credentialing organization must develop role of credentialing organizations does regulation. One commenter suggested policies and procedures for the not include making a determination that that an organization’s authorization revocation of certificates at any time if an employment offer is valid and that should be terminated only if the it finds that the certificate holder was the alien is continuing to work for the organization has failed to comply with not eligible to receive the certificate at employer. a material term of its authorization. A the time it was issued. These policies technical violation should not be and procedures include notification to Form of the Health Care Worker grounds for termination. One the DHS, via the Nebraska Service Certification or Foreign Nurse Certified commenter suggested that HHS should Center, that a certificate has been Statement have 30 days to respond to the DHS’s revoked. The DHS may then take any The proposed rule at 8 CFR 212.15(f) Notice of Intent to Terminate. One appropriate action against the described the content of the certificate. commenter suggested that the term ‘‘or individual alien, including revocation of The proposed rule at 8 CFR 212.15(h) other adverse information’’ contained in the petition, and initiation of removal described the content of the certified the proposed rule at 8 CFR 215.15(m)(2) proceedings under section 240 of the statement. The proposed rule provided is too vague. Finally, CGFNS stated that Act. that the certification should contain the it should be permitted to issue Three commenters responded to this following information: certifications while the appeal of the provision. One commenter suggested (1) The name, designated point of termination decision is pending at the that an alien’s certification should be contact to verify the validity of the AAO. revoked if the alien does not obtain a certificate, address, and telephone The DHS will not modify the language license to practice within 1 year of the number of the certifying organization; contained in the proposed rule relating issuance of the certification. Another (2) The date the certificate was issued; to the termination process. While commenter suggested that the (3) The health care occupation for certain portions of the regulatory certification should be revoked if the which the certificate was issued; and language may be vague, the regulatory alien’s ability to practice in the (4) The alien’s name, and date and language is sufficiently clear to provide occupation is restricted. place of birth. the required protection to the public. The DHS will not adopt the first The proposed rule also provided that Further, the term ‘‘or other adverse suggestion. Certifications must be used the certificate or certified statement information’’ provides the DHS with a within 5 years of their issuance. The does not constitute professional vehicle to institute termination DHS can envision a number of authorization to practice in that health proceedings based on situations that situations where the alien may be care occupation. arise that cannot be predicted at this unable to obtain licensure within 1 year The DHS received one comment time. Further, the DHS will not require of issuance of the certification. In fact, regarding the information that should be HHS to respond to the DHS’s in the case of EB petitions, there is no included on the certification. The termination notice within any specific regulatory or statutory requirement that commenter suggested that each time period because some issues are far the alien ever obtain a license. Further, certification should contain the too complex to be decided in arbitrarily sections 212(a)(5)(C) and 212(r) of the regulatory language indicating that the established timeframes. Finally, Act are merely grounds of certification did not grant the holder although CGFNS has been specifically inadmissibility to the United States and authority to work in a health care identified in the statute as an therefore address an alien’s ability to occupation. organization authorized to issue enter the United States and immediately The DHS will not adopt this certifications, there is nothing in the begin the intended employment. They suggestion because it is unnecessary. A statutory language that requires the DHS were not designed to regulate the health care worker certificate or to establish a separate process to practice of health care or the continuing certified statement is evidence of an determine whether their authorization qualifications of health care workers alien’s admissibility under section to issue certifications should be within the United States. 212(a) of the Act and not an terminated for any of the reasons However, the DHS is concerned about employment authorization document. described in this rule. events that may occur subsequent to an Acceptable employment authorization This rule also clarifies that the alien’s certification and the effect those documents are enumerated under 8 CFR immediate termination provisions of 8 events may have upon an alien’s 274a. An alien who has made an CFR 212(n)(1) may be triggered upon admissibility to and status in the United application for a certification will be receipt of any information calling into States. This final rule therefore adopts aware of the difference between the question the entity’s fitness to issue the second commenter’s suggestion and immigration requirements for entry in certificates. For example, national provides that an organization issuing order to work in a covered health care

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occupation and the various state has not designated a separate test and appropriate scores needed to satisfy the licensure requirements required to score for the occupation. English proficiency requirement. practice his or her occupation in the One commenter noted that the DHS The DHS received four comments on United States. In addition, the DHS has had failed to specify which modules of this proposal. Three commenters limited the information required on the the International English Language suggested that the DHS adopt the certification to generally address the Testing System (IELTS) would be alternative method of advising the identity of the certificate holder and his required for the covered occupations. public of the approved English tests by or her admissibility under section This information was unintentionally a notice in the Federal Register while 212(a)(5)(C) or 212(r) of the Act, rather omitted from the proposed rule. The one commenter suggested that the use of than the certificate holder’s authority to DHS will amend 8 CFR 215.15(g)(4) to an interim rule would be more practice in the health care occupation. clarify when an Academic and/or appropriate. Another commenter stated that an General Module will be required for a After consideration of the comments, organization should not issue a covered health care occupation. the DHS will adopt the alternative certification until such time as the alien The HHS had initially identified four method discussed in the proposed rule. obtains a United States license to testing services which conduct a In view of the extensive governmental practice in his or her occupation. This nationally recognized, commercially review before a test is approved, it is not comment will not be adopted because available, standardized assessment as likely that the comments received in some aliens, e.g., EB immigrants and contemplated in the statute. The four response to an interim rule would be certain nonimmigrants subject to this testing services were the Educational beneficial. As a result, this final rule at rule, such as aliens with extraordinary Testing Service (ETS), the Michigan 8 CFR 215.15(g)(4)(iv) provides that the ability (O–1) and exchange visitors (J–1), English Language Assessment Battery DHS will notify the public of new are not required to satisfy state licensure (MELAB), the Test of English in approved English testing services by requirements for classification. International Communication (TOEIC) publishing a notice in the Federal One commenter noted that the Service International, and the IELTS. Register. The DHS will also maintain proposed rule did not contain a The proposed regulation at 8 CFR the list of approved English tests and description of what an approved 212.15(g) lists the tests and appropriate the appropriate scores on its Web site at organization was required to verify scores as determined by HHS for each http://www.immigration.gov. before it issued a certification. The occupation. commenter noted that the DHS had One commenter noted that the current The DHS received 29 comments in previously required approved availability of English tests did not meet organizations to examine the alien’s response to the English language testing the demand creating significant delays education, training, and license prior to proposals. Eight commenters agreed that for health care workers. To solve this issuing a certification. This information the IELTS and TOEIC tests should be problem, other testing services are was unintentionally omitted from the included in the final rule. Six encouraged to submit information proposed rule. The DHS will amend 8 commenters expressed dissatisfaction concerning their testing services to the CFR 215.15(f) to include this with the test of spoken English (TSE) DHS, for HHS and DoED review, and information. given by ETS, asserting that it was too credentialing organizations are difficult to pass and that it prevented encouraged to develop a test specifically English Language Scores for health care facilities from recruiting designed to measure English language Certification qualified workers. One commenter even skills and to seek HHS approval of the As stated in the proposed rule, HHS, suggested that the test intentionally test. As noted in the proposed rule, HHS in consultation with DoED, is required discriminated against certain has advised the DHS that graduates of to establish a level of competence in nationalities. health profession programs in Australia, oral and written English appropriate for The English test offered by ETS has Canada (except Quebec), Ireland, New the health care field in which the alien been used by colleges, universities, and Zealand, the United Kingdom, and the will be engaged, as shown by an accrediting organizations for years to United States are deemed to have met appropriate score on one or more test English language skills. Both HHS the English language requirements. HHS nationally recognized, commercially and the DoED have reviewed this test has determined that aliens who have available, standardized assessments of prior to its inclusion in the previously graduated from these programs have the the applicant’s ability to speak and published interim rules and the requisite competency in oral and write. The statute vests the Secretary of proposed rule. The DHS is not written English. The level of English HHS with the ‘‘sole discretion’’ to persuaded that the test is not a valid test that the graduates of these health determine the standardized tests and of English language skills and, as a profession programs would need in appropriate minimum scores. In result, the option of TSE will remain in order to graduate is deemed equivalent developing the English language test this final rule. to the level that would be demonstrated scores, HHS consulted with DoED and The DHS also proposed that, as an by achieving the minimum passing appropriate health care professional alternative to listing the tests and score on the tests previously described. organizations. HHS also examined a appropriate scores by Interim Rule, the Nurses who are eligible to present an study sponsored in part by NBCOT DHS would designate, by a separate and alternate certified statement under entitled ‘‘Standards for Examinations comprehensive public notice in the section 212(r) of the Act by definition Assessing English as a Second Federal Register, the list of tests and have satisfied the English language Language.’’ The scores reflect the appropriate scores. The DHS would requirements. current industry requirements for maintain this list on its Web site. This Six commenters suggested that particular health care occupations. method would allow the DHS to update additional countries be added to the list One commenter suggested that the the list of tests and scores more quickly of countries that should be exempt from DHS adopt separate scores and a than through publication of interim the English language requirements. The specific test for the occupation of rules. The DHS will continue to list of countries has been furnished to physician assistant. This comment will coordinate with the HHS and the DoED HHS for their review for possible not be adopted in this rule because HHS to make the designation of tests and inclusion in the list of exempt countries.

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One commenter suggested that the to the certification process of section Regulatory Planning and Review. English language test be separate and 212(a)(5)(C) of the Act. It was Accordingly, this regulation has been apart from the credentialing portion of specifically designed to accommodate a submitted to OMB for review. The the certification process. This limited number of nurses who met Department of Homeland Security has suggestion cannot be adopted because it certain criteria and not all assessed both the costs and the benefits is contrary to the statute. nonimmigrant nurses. of this rule as required by Executive Finally, after publication of the Finally, CGFNS stated that the Order 12866, section 1(b)(6), and has proposed rule, the DHS was notified language in the proposed rule appeared made a reasoned determination that the that the MELAB no longer wishes to be to preclude them from obtaining benefits of this rule justify its costs. designated as an approved English test authorization to issue certifications to Briefly, that assessment is as follows: for the purpose of issuing health care audiologists. The DHS has corrected this The Department of Homeland certifications. Therefore, MELAB has oversight by amending the language at Security has determined that any entity been removed from the list of approved 8 CFR 215.15(j)(2) to include seeking authorization to issue health English tests and is not included in this audiologists among the covered care worker certifications must apply for final rule. As a result, individuals who occupations. authorization on Form I–905. The seek to meet the English language Department of Homeland Security Regulatory Flexibility Act requirements will be required to do one determined that $230 was the of the following: I have reviewed this regulation, in appropriate fee for Form I–905 after (1) Take the three tests offered by accordance with the Regulatory comparing the processing of the form to ETS; Flexibility Act (5 U.S.C. 605(b)), and, by the process involved with Form I–17, (2) Take the TOEIC offered by TOEIC approving it, I have determined that this Petition for Approval of School for Service International, in addition to the rule will not have a significant Attendance by Nonimmigrant Student, test of spoken English and the test of economic impact on a substantial which has a processing fee of $230. The written English offered by ETS; or number of small entities. It is projected Department of Homeland Security has (3) Take the IELTS examination. that there will be, at most, 21 small estimated that there will be Additional Comments Regarding the businesses that apply to the Department approximately 10 applicants who will each have a time burden of Proposed Rule of Homeland Security to issue certificates for health care workers. approximately 4 hours, and who will be Two commenters noted that the Although these small entities are required to pay a total of $2,300. Once proposed rule did not contain a required to pay a fee when submitting the Form I–905 is approved, an requirement that an organization was to their applications, these small entities authorized entity will be authorized to verify that an alien either passed a may recoup this expense if they charge issue health care worker certification for predictor examination or the state aliens who must obtain a foreign health a period of 5 years, and will be able to licensing examination for his or her care worker certificate. recoup the costs of the Form I–905 by occupation. One of the commenters charging a fee for each certificate that it noted that the DHS had previously Unfunded Mandates Reform Act of issues. listed this requirement in the previously 1995 Each credentialing organization may published interim rules. This rule will not result in the set its own fee to recover the costs of The DHS has unintentionally failed to expenditure by State, local and tribal issuing of a health care worker provide a description of what an governments, in the aggregate, or by the certificate, although the price may vary organization is required to verify before private sector, of $100 million or more between organizations. The CGFNS is it can issue a certification under section in any 1 year, and it will not the organization that is currently 212(a)(5)(C) of the Act. This information significantly or uniquely affect small authorized to issue certifications to the is now listed at 8 CFR 215.15(f). governments. Therefore, no actions were largest number of applicants because it Three commenters stated that nurses deemed necessary under the provisions is authorized to issue certifications to all should not be required to take the of the Unfunded Mandates Reform Act seven occupations. The Department of predictor examination if they have of 1995. Homeland Security has estimated that passed the NCLEX–RN state licensing the total time burden associated with examination. The statute at sections Small Business Regulatory Enforcement each certification is approximately 220 212(a)(5)(C) and 212(r) of the Act Fairness Act of 1996 minutes. The current price for a CGFNS requires that a certifying entity verify This rule is not a major rule as certificate or certified statement is that an alien has passed either the defined by section 804 of the Small approximately $325, which is charged profession’s licensing or certification Business Regulatory Enforcement Act of to an individual alien. In some cases, a examination, or a predictor test if a 1996. This rule will not result in an petitioning employer may choose to pay majority of states licensing the annual effect on the economy of $100 on behalf of the alien. Finally, the profession in which the alien intends to million or more; a major increase in Department of Homeland Security has work recognize such a predictor test. costs or prices; or significant adverse determined that the benefit to the The DHS has added language at 8 CFR effects on competition, employment, United States public of the statute 212.15(f)(1)(iv) to clarify that a nurse investment, productivity, innovation, or requiring the issuance of certificates who is obtaining a certificate under on the ability of United States-based will be to ensure that all health care section 212(a)(5)(C) of the Act must companies to compete with foreign- workers covered by the regulations, demonstrate that they have passed the based companies in domestic and including all nonimmigrants, have met profession’s licensing examination export markets. the same minimum requirements with (NCLEX–RN) or the predictor test. regard to an evaluation of their One commenter stated that some Executive Order 12866 credentials, licensing, training and nurses are not eligible to obtain a This rule is considered by the English language ability before certified statement as described in Department of Homeland Security to be commencing employment in their section 212(r) of the Act. Section 212(r) a ‘‘significant regulatory action’’ under respective occupations. Even in cases of the Act was created as an alternative Executive Order 12866, section 3(f), where all states require a foreign health

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care worker to be licensed to practice Foreign officials, Health professions, credentialing organization, listed in within the United States, as in the case Reporting and recordkeeping paragraph (e) of this section. of nurses, the underlying requirements requirements, Students. (2) In the alternative, an eligible alien for licensure differ from state to state. who seeks to enter the United States for 8 CFR Part 245 This rule will ensure that uniformly the primary purpose of performing labor qualified foreign health care Aliens, Immigration, Reporting and as a nurse may present a certified professionals enter the United States recordkeeping requirements. statement as provided in paragraph (h) workforce and that foreign health care 8 CFR Part 248 of this section. workers and the Department of (3) A certificate or certified statement Homeland Security are in compliance Aliens, Reporting and recordkeeping described in this section does not with the statutory requirements of requirements. constitute professional authorization to section 212(a)(5)(C) of the Act. 8 CFR Part 299 practice in that health care occupation. (b) Inapplicability of the ground of Executive Order 13132 Immigration, Reporting and inadmissibility. This section does not The rule will not have substantial recordkeeping requirements. apply to: direct effects on the states, on the ■ Accordingly, chapter I of title 8 of the (1) Physicians; relationship between the National Code of Federal Regulations is amended (2) Aliens seeking admission to the Government and the states, or on the as follows: United States to perform services in a distribution of power and non-clinical health care occupation. A responsibilities among the various PART 103 B—POWERS AND DUTIES non-clinical care occupation is one in levels of government. Therefore, in OF SERVICE OFFICER; AVAILABILITY which the alien is not required to accordance with section 6 of Executive OF SERVICE RECORDS perform direct or indirect patient care. Order 13132, it is determined that this ■ 1. The authority citation for part 103 Occupations which are considered to be rule does not have sufficient federalism continues to read as follows: non-clinical include, but are not limited implications to warrant the preparation to, medical teachers, medical of a federalism summary impact Authority: 5 U.S.C. 552, 522a; 8 U.S.C. researchers, and managers of health care 1101, 1103, 1304, 1356; 31 U.S.C. 9701; E.O. statement. 12356, 47 FR 14874, 15557, 3 CFR, 1982 facilities; Comp., p.166; 8 CFR part 2. (3) Aliens coming to the United States Executive Order 12988 Civil Justice to receive training as an H–3 Reform ■ 2. Section 103.7(b)(1) is amended by nonimmigrant, or receiving training as This rule meets the applicable adding a new entry for the Form ‘‘I–905’’ part of an F or J nonimmigrant program. standards set forth in sections 3(a) and to the list of fees in alpha/numeric (4) The spouse and dependent 3(b)(2) of Executive Order 12988. sequence, to read as follows: children of any immigrant or Paperwork Reduction Act of 1995 nonimmigrant alien; § 103.7 Fees. (5) Any alien applying for adjustment The information collection * * * * * of status to that of a permanent resident requirement contained in this rule (b) * * * under any provision of law other than (Form I–905) (OMB Control Number (l) * * * under section 245 of the Act, or any 1115–0238) has been approved for use * * * * * alien who is seeking adjustment of by OMB under the Paperwork Form I–905, Application for status under section 245 of the Act on Reduction Act. The information authorization to issue certification for the basis of a relative visa petition required on the health care certificate or health care workers—$230. approved under section 203(a) of the certified statement (OMB Control * * * * * Act, or any alien seeking adjustment of Number 1115–0226) has been revised to status under section 245 of the Act on reflect that a certificate must PART 212—DOCUMENTARY the basis of an employment-based demonstrate that an alien has met the REQUIREMENTS: NONIMMIGRANTS; petition approved pursuant to section requirements of section 212(a)(5)(C) of WAIVERS; ADMISSION OF CERTAIN 203(b) of the Act for employment that the Act. This revision was submitted to INADMISSIBLE ALIENS; PAROLE does not fall under one of the covered OMB for review in accordance with the ■ health care occupations listed in Paperwork Reduction Act. 3. The authority citation for part 212 paragraph (c) of this section. continues to read as follows: List of Subjects (c) Covered health care occupations. Authority: 8 U.S.C. 1101 and note, 1102, With the exception of the aliens 8 CFR Part 103 1103, 1182 and note, 1184, 1187, 1225, 1226, described in paragraph (b) of this Administrative practice and 1227, 1228; 8 CFR part 2. section, this paragraph (c) applies to any procedure, Authority delegations ■ 4. Section 212.15 is revised to read as alien seeking admission to the United (Government Agencies), Freedom of follows: States to perform labor in one of the information, Privacy, Reporting and following health care occupations, § 212.15 Certificates for foreign health regardless of where he or she received recordkeeping requirements, Surety care workers. bonds. his or her education or training: (a) General certification requirements. (1) Licensed Practical Nurses, 8 CFR Part 212 (1) Except as provided in paragraph (b) Licensed Vocational Nurses, and Administrative practice and or paragraph (d)(1) of this section, any Registered Nurses. procedures, Aliens, Immigration, alien who seeks admission to the United (2) Occupational Therapists. Passports and visas, Reporting and States as an immigrant or as a (3) Physical Therapists. recordkeeping requirements. nonimmigrant for the primary purpose (4) Speech Language Pathologists and of performing labor in a health care Audiologists. 8 CFR Part 214 occupation listed in paragraph (c) of this (5) Medical Technologists (Clinical Administrative practice and section is inadmissible unless the alien Laboratory Scientists). procedures, Aliens, Employment, presents a certificate from a (6) Physician Assistants.

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(7) Medical Technicians (Clinical (2) The National Board for will publish such changes in the Laboratory Technicians) Certification in Occupational Therapy Federal Register. (d) Presentation of certificate or (NBCOT) is authorized to issue (2) The following aliens are exempt certified statements. (1) Aliens required certificates in the field of occupational from the English language requirements: to obtain visas. Except as provided in therapy pending final adjudication of its (i) Alien nurses who are presenting a paragraph (n) of this section, if 8 CFR credentialing status under this part. certified statement under section 212(r) 212.1 requires an alien who is described (3) The Foreign Credentialing of the Act; and in paragraph (a) of this section and who Commission on Physical Therapy (ii) Aliens who have graduated from is applying for admission as a (FCCPT) is authorized to issue a college, university, or professional nonimmigrant seeking to perform labor certificates in the field of physical training school located in Australia, in a health care occupation as described therapy pending final adjudication of its Canada (except Quebec), Ireland, New in this section to obtain a nonimmigrant credentialing status under this part. Zealand, the United Kingdom, or the visa, the alien must present a certificate (f) Requirements for issuance of United States. or certified statement to a consular health care certification. (1) Prior to (3) The following English testing officer at the time of visa issuance and issuing a certification to an alien, the services have been approved by the to the Department of Homeland Security organization must verify the following: Secretary of HHS: (DHS) at the time of admission. The (i) That the alien’s education, training, (i) Educational Testing Service (ETS). certificate or certified statement must be license, and experience are comparable (ii) Test of English in International valid at the time of visa issuance and with that required for an American Communication (TOEIC) Service admission at a port-of-entry. An alien health care worker of the same type; International. (iii) International English Language who has previously presented a foreign (ii) That the alien’s education, health care worker certification or Testing System (IELTS). training, license, and experience are (4) Passing English test scores for certified statement for a particular authentic and, in the case of a license, health care occupation will be required various occupations. unencumbered; (i) Occupational and physical to present it again at the time of visa (iii) That the alien’s education, issuance or each admission to the therapists. An alien seeking to perform training, license, and experience meet labor in the United States as an United States. all applicable statutory and regulatory (2) Aliens not requiring a occupational or physical therapist must requirements for admission into the nonimmigrant visa. Except as provided obtain the following scores on the United States. This verification is not in paragraph (n) of this section, an alien English tests administered by ETS: Test binding on the DHS; and described in paragraph (a) of this Of English as a Foreign Language section who, pursuant to 8 CFR 212.1, (iv) Either that the alien has passed a (TOEFL): Paper-Based 560, Computer- is not required to obtain a nonimmigrant test predicting success on the Based 220; Test of Written English visa to apply for admission to the occupation’s licensing or certification (TWE): 4.5; Test of Spoken English United States must present a certificate examination, provided such a test is (TSE): 50. The certifying organizations or certified statement as provided in this recognized by a majority of states shall not accept the results of the section to an immigration officer at the licensing the occupation for which the TOEIC, or the IELTS for the occupation time of initial application for admission certification is issued, or that the alien of occupational therapy or physical to the United States to perform labor in has passed the occupation’s licensing or therapy. a particular health care occupation. An certification examination. (ii) Registered nurses and other health alien who has previously presented a (2) A certificate issued under section care workers requiring the attainment of foreign health care worker certification 212(a)(5)(C) of the Act must contain the a baccalaureate degree. An alien or certified statement for a particular following: coming to the United States to perform health care occupation will be required (i) The name, address, and telephone labor as a registered nurse (other than a to present it again at the time of each number of the credentialing nurse presenting a certified statement application for admission. organization, and a point of contact to under section 212(r) of the Act) or to (e) Approved credentialing verify the validity of the certificate; perform labor in another health care organizations for health care workers. (ii) The date the certificate was occupation requiring a baccalaureate An alien may present a certificate from issued; degree (other than occupational or any credentialing organization listed in (iii) The health care occupation for physical therapy) must obtain one of the this paragraph (e) with respect to a which the certificate was issued; and following combinations of scores to particular health care field. In addition (iv) The alien’s name, and date and obtain a certificate: to paragraphs (e)(1) through (e)(3) of this place of birth. (A) ETS: TOEFL: Paper-Based 540, section, the DHS will notify the public (g) English language requirements. (1) Computer-Based 207; TWE: 4.0; TSE: of additional credentialing organizations With the exception of those aliens 50; through the publication of notices in the described in paragraph (g)(2) of this (B) TOEIC Service International: Federal Register. section, every alien must meet certain TOEIC: 725; plus TWE: 4.0 and TSE: 50; (1) The Commission on Graduates of English language requirements in order or Foreign Nursing Schools (CGFNS) is to obtain a certificate. The Secretary of (C) IELTS: 6.5 overall with a spoken authorized to issue certificates under HHS has sole authority to set standards band score of 7.0. This would require section 212(a)(5)(C) of the Act for for these English language requirements, the Academic module. nurses, physical therapists, and has determined that an alien must (iii) Occupations requiring less than a occupational therapists, speech- have a passing score on one of the three baccalaureate degree. An alien coming language pathologists and audiologists, tests listed in paragraph (g)(3) of this to the United States to perform labor in medical technologists (also known as section before he or she can be granted a health care occupation that does not clinical laboratory scientists), medical a certificate. HHS will notify The require a baccalaureate degree must technicians (also known as clinical Department of Homeland Security of obtain one of the following laboratory technicians), and physician additions or deletions to this list, and combinations of scores to obtain a assistants. The Department of Homeland Security certificate:

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(A) ETS: TOEFL: Paper-Based 530, (ii) The date the certified statement (ii) List the occupations for which the Computer-Based 197; TWE: 4.0; TSE: was issued; and organization desires to provide 50; (iii) The alien’s name, and date and certificates; (B) TOEIC Service International: place of birth. (iii) Describe how the organization TOEIC: 700; plus TWE 4.0 and TSE: 50; (i) Streamlined certification process. substantially meets the standards or (1) Nurses. An alien nurse who has described at paragraph (k) of this (C) IELTS: 6.0 overall with a spoken graduated from an entry level program section; band score of 7.0. This would allow accredited by the National League for (iv) Describe the organization’s either the Academic or the General Nursing Accreditation Commission expertise, knowledge, and experience in module. (NLNAC) or the Commission on the health care occupation(s) for which (h) Alternative certified statement for Collegiate Nursing Education (CCNE) is it desires to issue certificates; certain nurses. (1) CGFNS is authorized exempt from the educational (v) Provide a point of contact; (vi) Describe the verification to issue certified statements under comparability review and English procedure the organization has designed section 212(r) of the Act for aliens language proficiency testing. in order for the DHS to verify the seeking to enter the United States to (2) Occupational Therapists. An alien validity of a certificate; and perform labor as nurses. The DHS will occupational therapist who has (vii) Describe how the organization notify the public of new organizations graduated from a program accredited by will process and issue in a timely that are approved to issue certified the Accreditation Council for manner the certificates. statements through notices published in Occupational Therapy Education (2) Applications filed by CGFNS. (i) the Federal Register. (ACOTE) of the American Occupational CGFNS shall submit Form I–905 to the (2) An approved credentialing Therapy Association (AOTA) is exempt Director, Nebraska Service Center, to organization may issue a certified from the educational comparability ensure that it will be in compliance statement to an alien if each of the review and English language proficiency with the regulations governing the following requirements is satisfied: testing. issuance and content of certificates to (i) The alien has a valid and (3) Physical therapists. An alien nurses, physical therapists, unrestricted license as a nurse in a state physical therapist who has graduated occupational therapists, speech- where the alien intends to be employed from a program accredited by the language pathologists and audiologists, and such state verifies that the foreign Commission on Accreditation in medical technologists (also known as licenses of alien nurses are authentic Physical Therapy Education (CAPTE) of clinical laboratory scientists), medical and unencumbered; the American Physical Therapy technicians (also known as clinical (ii) The alien has passed the National Association (APTA) is exempt from the laboratory technicians), and physician Council Licensure Examination for educational comparability review and assistants under section 212(a)(5)(C) of registered nurses (NCLEX–RN); English language proficiency testing. the Act, or issuing certified statements (iii) The alien is a graduate of a (4) Speech language pathologists and to nurses under section 212(r) of the nursing program in which the language audiologists. An alien speech language Act. of instruction was English; pathologists and/or audiologist who has (ii) Prior to issuing certificates for any (iv) The nursing program was located graduated from a program accredited by other health care occupations, CGFNS in Australia, Canada (except Quebec), the Council on Academic Accreditation shall submit Form I–905, Application Ireland, New Zealand, South Africa, the in Audiology and Speech Language for Authorization to Issue Certification United Kingdom, or the United States; Pathology (CAA) of the American for Health Care Workers, to the Director, or in any other country designated by Speech-Language-Hearing Association Nebraska Service Center with the unanimous agreement of CGFNS and (ASHA) is exempt from the educational appropriate fee contained in 8 CFR any equivalent credentialing comparability review and English 103.7(b)(1) for authorization to issue organizations which have been language proficiency testing. such certificates. The DHS will evaluate approved for the certification of nurses (j) Application process for CGFNS’ expertise with respect to the and which are listed at paragraph (e) of credentialing organizations. (1) particular health care occupation for this section; and Organizations other than CGFNS. An which authorization to issue certificates (v) The nursing program was in organization, other than CGFNS, seeking is sought, in light of CGFNS’ statutory operation on or before November 12, to obtain approval to issue certificates to designation as a credentialing 1999, or has been approved by health care workers, or certified organization. unanimous agreement of CGFNS and statements to nurses shall submit Form (3) Procedure for review of any equivalent credentialing I–905, Application for Authorization to applications by credentialing organizations that have been approved Issue Certification for Health Care organizations. (i) After receipt of Form for the certification of nurses. Workers, and all accompanying required I–905, the Director, Nebraska Service (3) An individual who obtains a evidence, to the Director, Nebraska Center shall, in all cases, forward a copy certified statement need not comply Service Center, in duplicate with the of the application and supporting with the certificate requirements of appropriate fee contained in 8 CFR documents to the Secretary of HHS in paragraph (f) or the English language 103.7(b)(1). An organization seeking order to obtain an opinion on the merits requirements of paragraph (g) of this authorization to issue certificates or of the application. The DHS will not section. certified statements must agree to render a decision on the request until (4) A certified statement issued to a submit all evidence required by the DHS the Secretary of HHS provides an nurse under section 212(r) of the Act and, upon request, allow the DHS to opinion. The DHS shall accord the must contain the following information: review the organization’s records related Secretary of HHS’ opinion great weight (i) The name, address, and telephone to the certification process. As required in reaching its decision. The DHS may number of the credentialing on Form I–905, the application must: deny the organization’s request organization, and a point of contact to (i) Clearly describe and identify the notwithstanding the favorable verify the validity of the certified organization seeking authorization to recommendation from the Secretary of statement; issue certificates; HHS, on grounds unrelated to the

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credentialing of health care occupations certification organization; ability to satisfied the requirement of or health care services. enter into contracts and grant independence. (ii) The DHS will notify the arrangements; ability to demonstrate (viii) The organization shall publish organization of the decision on its adequate staffing and management and make available a document which application in writing and, if the request resources to conduct the program(s) clearly defines the responsibilities of the is denied, of the reasons for the denial. including the authority to approve organization and outlines any other Approval of authorization to issue selection of, evaluate, and initiate activities, arrangements, or agreements certificates to foreign health care dismissal of the chief staff member. of the organization that are not directly workers or certified statements to nurses (D) An organization whose fees are related to the certification of health care will be made in 5-year increments, based on whether an applicant receives workers. subject to the review process described a visa may not be approved. (2) Resources of the organization. (i) at paragraph (l) of this section. (iii) The organization shall include The organization shall demonstrate that (iii) If the application is denied, the the following representation in the its staff possess the knowledge and decision may be appealed pursuant to 8 portion of its organization responsible skills necessary to accurately assess the CFR 103.3 to the Associate for overseeing certification and, where education, work experience, licensure of Commissioner for Examinations. applicable, examinations: health care workers, and the (k) Standards for credentialing (A) Individuals from the same health equivalence of foreign educational organizations. The DHS will evaluate care discipline as the alien health care institutions, comparable to those of organizations, including CGFNS, worker being evaluated who are eligible United States-trained health care seeking to obtain approval from the DHS to practice in the United States; and workers and institutions. to issue certificates for health care (B) At least one voting public member (ii) The organization shall workers, or certified statements for to represent the interests of consumers demonstrate the availability of financial nurses. Any organization meeting the and protect the interests of the public at and material resources to effectively and standards set forth in paragraph (k)(1) of large. The public member shall not be thoroughly conduct regular and ongoing this section can be eligible for a member of the discipline or derive evaluations on an international basis. authorization to issue certificates. While significant income from the discipline, (iii) If the health care field is one for CGFNS has been specifically listed in its related organizations, or the which a majority of the states require a the statute as an entity authorized to organization issuing the certificate. predictor test, the organization shall issue certificates, it is not exempt from (iv) The organization must have a demonstrate the ability to conduct governmental oversight. All balanced representation such that the examinations in those countries with organizations will be reviewed, individuals from the same health care educational and evaluation systems including CGFNS, to guarantee that they discipline, the voting public members, comparable to the majority of states. continue to meet the standards required and any other appointed individuals (iv) The organization shall have the of all certifying organizations, under the have an equal say in matters relating to resources to publish and make available following: credentialing and/or examinations. general descriptive materials on the (1) Structure of the organization. (i) (v) The organization must select procedures used to evaluate and The organization shall be incorporated representatives of the discipline using validate credentials, including as a legal entity. one of the following recommended eligibility requirements, determination (ii)(A) The organization shall be methods, or demonstrate that it has a procedures, examination schedules, independent of any organization that selection process that meets the intent locations, fees, reporting of results, and functions as a representative of the of these methods: disciplinary and grievance procedures. occupation or profession in question or (A) Be selected directly by members (3) Candidate evaluation and testing serves as or is related to a recruitment/ of the discipline eligible to practice in mechanisms. (i) The organization shall placement organization. the United States; publish and make available a (B) The DHS shall not approve an (B) Be selected by members of a comprehensive outline of the organization that is unable to render membership organization representing information, knowledge, or functions impartial advice regarding an the discipline or by duly elected covered by the evaluation/examination individual’s qualifications regarding representatives of a membership process, including information training, experience, and licensure. organization; or regarding testing for English language (C) The organization must also be (C) Be selected by a membership competency. independent in all decision making organization representing the discipline (ii) The organization shall use reliable matters pertaining to evaluations and/or from a list of acceptable candidates evaluation/examination mechanisms to examinations that it develops including, supplied by the credentialing body. evaluate individual credentials and but not limited to: policies and (vi) The organization shall use formal competence that is objective, fair to all procedures; eligibility requirements and procedures for the selection of members candidates, job related, and based on application processing; standards for of the governing body that prohibit the knowledge and skills needed in the granting certificates and their renewal; governing body from selecting a discipline. examination content, development, and majority of its successors. Not-for-profit (iii) The organization shall conduct administration; examination cut-off corporations which have difficulty ongoing studies to substantiate the scores, excluding those pertaining to meeting this requirement may provide reliability and validity of the English language requirements; in their applications evidence that the evaluation/examination mechanisms. grievance and disciplinary processes; organization is independent, and free of (iv) The organization shall implement governing body and committee meeting material conflicts of interest regarding a formal policy of periodic review of the rules; publications about qualifying for whether an alien receives a visa. evaluation/examination mechanism to a certificate and its renewal; setting fees (vii) The organization shall be ensure ongoing relevance of the for application and all other services separate from the accreditation and mechanism with respect to knowledge provided as part of the screening educational functions of the discipline, and skills needed in the discipline. process; funding, spending, and budget except for those entities recognized by (v) The organization shall use policies authority related to the operation of the the Department of Education as having and procedures to ensure that all

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aspects of the evaluation/examination certification if an individual’s original (ii) The organization shall have procedures, as well as the development certification has expired before the policies and procedures for the and administration of any tests, are individual first seeks admission to the revocation of certificates at any time if secure. United States or applies for adjustment it is determined that the certificate (vi) The organization shall institute of status. Such procedures shall be holder was not eligible to receive the procedures to protect against restricted to updating information on certificate at the time that it was issued. falsification of documents and licensure to determine the existence of If the organization revokes an misrepresentation, including a policy to any adverse actions and the need to re- individual’s certificate, it must notify request each applicant’s transcript(s) establish English competency. the DHS, via the Nebraska Service and degree(s) directly from the (ix) The organization shall publish Center, and the appropriate state educational licensing authorities. due process policies and procedures for regulatory authority with jurisdiction (vii) The organization shall establish applicants to question eligibility over the individual’s health care policies and procedures that govern the determinations, examination or profession. The organization may not length of time the applicant’s records evaluation results, and eligibility status. reissue a certificate to an individual must be kept in their original format. (x) The organization shall provide all whose certificate has been revoked. (viii) The organization shall publish qualified applicants with a certificate in (8) Criteria for maintaining and make available, at least annually, a a timely manner. accreditation. (i) The organization shall summary of all screening activities for (5) Maintenance of comprehensive advise the DHS of any changes in each discipline including, at least, the and current information. (i) The purpose, structure, or activities of the number of applications received, the organization shall maintain organization or its program(s). number of applicants evaluated, the comprehensive and current information (ii) The organization shall advise the number receiving certificates, the of the type necessary to evaluate foreign DHS of any major changes in the number who failed, and the number educational institutions and accrediting evaluation of credentials and receiving renewals. bodies for purposes of ensuring that the examination techniques, if any, or in the (4) Responsibilities to applicants quality of foreign educational programs scope or objectives of such applying for an initial certificate or is equivalent to those training the same examinations. renewal. (i) The organization shall not occupation in the United States. The (iii) The organization shall, upon the discriminate among applicants as to age, organization shall examine, evaluate, request of the DHS, submit to the DHS, sex, race, religion, national origin, and validate the academic and clinical or any organization designated by the disability, or marital status and shall requirements applied to each country’s DHS, information requested of the include a statement of accrediting body or bodies, or in organization and its programs for use in nondiscrimination in announcements of countries not having such bodies, of the investigating allegations of non- the evaluation/examination procedures educational institution itself. compliance with standards and for and renewal certification process. (ii) The organization shall also general purposes of determining (ii) The organization shall provide all evaluate the licensing and credentialing continued approval as an independent applicants with copies of formalized system(s) of each country or licensing credentialing organization. application procedures for evaluation/ jurisdiction to determine which systems (iv) The organization shall establish examination and shall uniformly follow are equivalent to that of the majority of performance outcome measures that and enforce such procedures for all the licensing jurisdictions in the United track the ability of the certificate holders applicants. Instructions shall include States. to pass United States licensure or standards regarding English language (6) Ability to conduct examinations certification examinations. The purpose requirements. fairly and impartially. An organization of the process is to ensure that (iii) The organization shall implement undertaking the administration of a certificate holders pass United States a formal policy for the periodic review predictor examination, or a licensing or licensure or certification examinations of eligibility criteria and application certification examination shall at the same pass rate as graduates of procedures to ensure that they are fair demonstrate the ability to conduct such United States programs. Failure to and equitable. examination fairly and impartially. establish such measures, or having a (iv) Where examinations are used, the (7) Criteria for awarding and record showing an inability of persons organization shall provide competently governing certificate holders. (i) The granted certificates to pass United States proctored examination sites at least organization shall issue a certificate licensure examinations at the same rate once annually. after the education, experience, license, as graduates of United States programs, (v) The organization shall report and English language competency have may result in a ground for termination examination results to applicants in a been evaluated and determined to be of approval. Information regarding the uniform and timely fashion. equivalent to their United States passage rates of certificate holders shall (vi) The organization shall provide counterparts. In situations where a be maintained by the organization and applicants who failed either the United States nationally recognized provided to HHS on an annual basis, to evaluation or examination with licensure or certification examination, the DHS as part of the 5-year information on general areas of or a test predicting the success on the reauthorization application, and at any deficiency. licensure or certification examination, is other time upon request by HHS or the (vii) The organization shall offered overseas, the applicant must DHS. implement policies and procedures to pass the examination or the predictor (v) The organization shall be in ensure that each applicant’s test prior to receiving certification. ongoing compliance with other policies examination results are held Passage of a test predicting the success specified by the DHS. confidential and delineate the on the licensure or certification (l) DHS review of the performance of circumstances under which the examination may be accepted only if a certifying organizations. The DHS will applicant’s certification status may be majority of states (and Washington, DC) review credentialing organizations every made public. licensing the profession in which the 5 years to ensure continued compliance (viii) The organization shall have a alien intends to work recognize such a with the standards described in this formal policy for renewing the test. section. Such review will occur

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concurrent with the adjudication of a additional evidence and shall request an ordinarily permit the alien’s admission Form I–905 requesting reauthorization opinion from HHS regarding whether for a longer period; to issue health care worker certificates. the organization’s authorization should (ii) The alien must obtain the The DHS will notify the credentialing be terminated. The DHS shall accord certification required by paragraph (a) of organization in writing of the results of HHS’ opinion great weight in this section within 1 year of the date of the review and request for determining whether the authorization decision to admit the alien or to extend reauthorization. The DHS may conduct should be terminated. After the alien’s stay or change the alien’s a review of the approval of any request consideration of the rebuttal evidence, if status; and, for authorization to issue certificates at any, and consideration of HHS’ opinion, (iii) Any subsequent petition or any time within the 5-year period of the DHS will promptly provide the application to extend the period of the authorization for any reason. If at any organization with a written decision. If alien’s authorized stay or change the time the DHS determines that an termination of credentialing status is alien’s nonimmigrant status must organization is not complying with the made, the written decision shall set include proof that the alien has obtained terms of its authorization or if other forth the reasons for the termination. the certification required by paragraph adverse information relating to (3) An adverse decision may be (a) of this section, if the extension or eligibility to issue certificates is appealed pursuant to 8 CFR 103.3 to the stay or change of status is sought for the developed, the DHS may initiate Associate Commissioner for primary purpose of the alien’s termination proceedings. Examinations. Termination of performing labor in a health care (m) Termination of certifying credentialing status shall remain in occupation listed in paragraph (c) of this organizations. (1) If the DHS determines effect until and unless the terminated section. that an organization has been convicted, organization reapplies for credentialing (3) Immigrant aliens. An alien or the directors or officers of an status and is approved, or its appeal of described in paragraph (a) of this authorized credentialing organization the termination decision is sustained by section, who is coming to the United have individually been convicted of the the Administrative Appeals Office. States as an immigrant or is applying for violation of state or federal laws, or There is no waiting period for an adjustment of status pursuant to section other information is developed such organization to re-apply for 245 of the Act (8 U.S.C. 1255), to that the fitness of the organization to credentialing status. perform labor in a health care continue to issue certificates or certified (n) Transition. (1) One year waiver. occupation described in paragraph (c) of statements is called into question, the Under the discretion given to the this section, must submit the certificate DHS shall automatically terminate Secretary, DHS, under section 212(d)(3) or certified statement as provided in this authorization for that organization to of the Act (and, for cases described in section at the time of visa issuance or issue certificates or certified statements paragraph (d)(1) of this section, upon adjustment of status. by issuing to the organization a notice the recommendation of the Secretary of (4) Expiration of certificate or certified of termination of authorization to issue State), the Secretary has determined that statement. The individual’s certification certificates to foreign health care until July 26, 2004 the DHS shall, or certified statement must be used for workers. The notice shall reference the subject to the conditions in paragraph any admission into the United States, specific conviction that is the basis of (n)(2) of this section, exercise favorably change of status within the United the automatic termination. the discretion given to the Secretary States, or adjustment of status within 5 (2) If the DHS determines that an under section 212(d)(3) of the Act and years of the date that it is issued. organization is not complying with the may admit, extend the period of (5) Revocation of certificate or terms of its authorization or other authorized stay, or change the certified statement. When a adverse information relating to nonimmigrant status of an alien credentialing organization notifies the eligibility to issue certificates is described in paragraph (d)(1) or DHS, via the Nebraska Service Center, uncovered during the course of a review paragraph (d)(2) of this section to the that an individual’s certification or or otherwise brought to the DHS’ United States temporarily, despite the certified statement has been revoked, attention, or if the DHS determines that alien’s inadmissibility under section the DHS will take appropriate action, an organization currently authorized to 212(a)(5)(C) of the Act and paragraph (a) including, but not limited to, revocation issue certificates or certified statements of this section in any case, if the DHS of approval of any related petitions, has not submitted an application or admits the alien, or extends the alien’s consistent with the Act and DHS provided all information required on period of authorized stay, or changes the regulations at 8 CFR 205.2, 8 CFR Form I–905 within 6 months of July 25, alien’s status on or before July 26, 2004; 214.2(h)(11)(iii), and 8 CFR 2003, the DHS will issue a Notice of and the alien is not inadmissible under 214.6(d)(5)(iii). Intent to Terminate authorization to any other provision of section 212(a) of issue certificates to the credentialing the Act (or has obtained a waiver of that PART 214—NONIMMIGRANT CLASSES organization. The Notice shall set forth inadmissibility). On or after July 26, reasons for the proposed termination. 2004, such discretion shall be applied ■ 5. The authority citation for part 214 (i) The credentialing organization on a case by case basis. continues to read as follows: shall have 30 days from the date of the (2) Conditions. Until July 26, 2004, Authority: 8 U.S.C. 1101, 1102, 1103, 1182, Notice of Intent to Terminate the temporary admission, extension of 1184, 1186a, 1187, 1221, 1281, 1282, 1301– authorization to rebut the allegations, or stay, or change of status of an alien 15 and 1372; sec. 643, Pub. L. 104–208, 110 to cure the noncompliance identified in described in paragraph (d)(1) or (d)(2) of Stat. 3009 B 708; section 141 of the Compacts the DHS’s notice of intent to terminate. this section that is provided for under of Free Association with the Federated States (ii) DHS will forward to HHS upon this paragraph (n) is subject to the of Micronesia and the Republic of the receipt any information received in following conditions: Marshall Islands, and with the Government response to a Notice of Intent to (i) The admission, extension of stay, of Palau, 48 U.S.C. 1901, note, and 1931 note, Terminate an entity’s authorization to or change of status may not be for a respectively; 8 CFR part 2. issue certificates. Thirty days after the period longer than 1 year from the date ■ 6. Section 214.1 is amended by adding date of the Notice of Intent to of the decision, even if the relevant new paragraphs (i) and (j) to read as Terminate, the DHS shall forward any provision of 8 CFR 214.2 would follows:

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§ 214.1 Requirements for admission, § 245.14 [Removed and Reserved] § 299.5 Display of control numbers. extension, and maintenance of status. ■ 8. Section 245.14 is removed and * * * * * * * * * * reserved. (i) Employment in a health care Currently PART 248—CHANGE OF INS form assigned occupation. Except as provided in 8 No. INS form title OMB con- CFR 212.15(n), any alien described in 8 NONIMMIGRANT CLASSIFICATION trol No. CFR 212.15(a) who is coming to the United States to perform labor in a ■ 9. The authority citation for part 248 ***** heath care occupation described in 8 continues to read as follows: I–905 ...... Application for Au- 1115–0238 CFR 212.15(c) must obtain a certificate Authority: 8 U.S.C. 1101, 1103, 1184, 1258; thorization to from a credentialing organization 8 CFR part 2. Issue Certifi- described in 8 CFR 212.15(e). The cation for Health ■ 11. Section 248.3 is amended by Care Workers. certificate or certified statement must be ***** presented to the Department of adding a new paragraph (i) to read as follows: Certificates for 1115–0226 Homeland Security (DHS) in accordance Health Care with 8 CFR 212.15(d). In the alternative, § 248.3 Application. Benefits. an eligible alien seeking admission as a * * * * * nurse may obtain a certified statement (i) Change of nonimmigrant status to Dated: July 17, 2003. as provided in 8 CFR 212.15(h). perform labor in a health care Tom Ridge, (j) Extension of stay or change of occupation. A request for a change of Secretary, Department of Homeland Security. status for health care worker. In the case nonimmigrant status filed by, or on of any alien admitted temporarily as a [FR Doc. 03–18710 Filed 7–24–03; 8:45 am] behalf of, an alien seeking to perform BILLING CODE 4410–10–P nonimmigrant under section 212(d)(3) labor in a health care occupation as of the Act and 8 CFR 212.15(n) for the provided in 8 CFR 212.15(c), must be primary purpose of the providing labor accompanied by a certificate as DEPARTMENT OF TRANSPORTATION in a health care occupation described in described in 8 CFR 212.15(f), or if the 8 CFR 212.15(c), a petition to extend the alien is eligible, a certified statement as Federal Aviation Administration period of the alien’s authorized stay or described in 8 CFR 212.15(h). See 8 CFR to change the alien’s status shall be 214.1(j) for a special rule concerning 14 CFR Part 71 denied if: applications for change of status for (1) The petitioner or applicant fails to aliens admitted temporarily under [Docket No. FAA–2003–15299; Airspace submit the certification required by 8 section 212(d)(3) of the Act and 8 CFR Docket No. 03–AWP–9] CFR 212.15(a) with the petition or 212.15(n). application to extend the alien’s stay or Modification of Class E Airspace; change the alien’s status; or PART 299—IMMIGRATION FORMS Window Rock, AZ; Correction (2) The petition or application to AGENCY: Federal Aviation extend the alien’s stay or change the ■ 10. The authority citation for part 299 Administration (FAA), DOT. continues to read as follows: alien’s status does include the ACTION: Direct final rule; request for certification required by 8 CFR Authority: 8 U.S.C. 1101, 1103; 8 CFR part comments; correction. 212.15(a), but the alien obtained the 2. certification more than 1 year after the SUMMARY: This action corrects a rule ■ 13. Section 299.1 is amended in the date of the alien’s admission under that was published in the Federal table by adding ‘‘Form I–905’’ to the list section 212(d)(3) of the Act and 8 CFR Register on June 19, 2003, (68 FR 36743; of prescribed forms in proper alpha/ 212.15(n). While the DHS may admit, FR Doc. 03–15526). It corrects an error numeric sequence, to read as follows: extend the period of authorize stay, or in the legal description of the 1,200 change the status of a nonimmigrant § 299.1 Prescribed forms. Class E airspace for Window Rock, AZ. health care worker for a period of 1 year * * * * * DATES: The direct final rule is effective if the alien does not have certification at 0901 UTC on September 4, 2003. on or before July 26, 2004, the alien will Form No. Edition date Title Comments for inclusion in the Rules not be eligible for a subsequent Docket must be received on or before admission, change of status, or ***** July 25, 2003. extension of stay as a health care worker I–905 ...... 04–15–02 Application for FOR FURTHER INFORMATION CONTACT: Jeri if the alien has not obtained the Authorization to Carson, Air Traffic Division, Airspace requisite certification 1 year after the Issue Certifi- Branch, AWP–520, Western-Pacific initial date of admission, change of cation for Health Care Region, Federal Aviation status, or extension of stay as a health Workers. Administration, 15000 Aviation care worker. Boulevard, Lawndale, California 90261, ***** PART 245—ADJUSTMENT OF STATUS telephone (310) 725–6611. SUPPLEMENTARY INFORMATION: The FAA TO THAT OF PERSON ADMITTED FOR ■ PERMANENT RESIDENCE 14. Section 299.5 is amended in the published FR Document 03–15526 in table by: the Federal Register on June 19, 2003, ■ 7. The authority citation for part 245 ■ a. Adding the Form ‘‘I–905’’ in proper (68 FR 36743) to modify Class E continues to read as follows: alpha/numeric sequence; and by airspace at Window Rock, AZ. The ■ b. Adding the entry ‘‘Certificates for Authority: 8 U.S.C. 1101 and note, 1103, paragraph pertaining to the legal 1182, 1255; sec. 202, Pub. L. 105–100, 111 Health Care Benefits’’ at the end of the description of the 1,200’ Class E Stat. 2160, 2193; sec. 902, Pub. L. 105–277, table. airspace was described incorrectly. The 112 Stat. 2681, 8 CFR part 2. The additions read as follows: following information corrects the

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airspace legal description for Window DATES: Effective July 24, 2003 until notification to vessels to stay out of the Rock, AZ. August 25, 2003. no-entry zones. Notification will be made by the U.S. Coast Guard via notice § 71.1 [Corrected] FOR FURTHER INFORMATION CONTACT: Billy D. Causey, Superintendent, Florida to mariners, Sanctuary radio ■ On page 36744, column 2, beginning Keys National Marine Sanctuary, announcements, press releases, press with the 2nd line from the top, change (FKNMS), Post Office Box 500368, conferences, and with assistance by the to read: That airspace extending upward Marathon, Florida 33050, (305) 743– U.S. Coast Guard and Sanctuary staff on from 1,200 feet above the surface 2467. the water within the area. This bounded by a line beginning at Lat. correction is effective upon filing at the SUPPLEMENTARY INFORMATION: 36°04′00″ N, Long. 109°27′00″ W; to Lat. Office of the Federal Register. 36°07′00″ N, Long. 109°23′00″ W; to Lat. Need for Correction Dated: July 19, 2003. 35°54′00″ N, Long. 109°03′00″; thence along Lat. 35°54′00″ N to the western The temporary rule establishing no- Jamison S. Hawkins, edge of V–421 and thence southwest entry zones at White Bank North Patch Deputy Assistant Administrator for Ocean along the western edge of V–421 to Lat. and White Bank South Patch, off of Key Services and Coastal Zone Management. 35°13′15″ N, Long. 109°06′02″ W; to Lat. Largo in the Florida Keys National [FR Doc. 03–18933 Filed 7–24–03; 8:45 am] 35°20′25″ N, Long. 109°10′42″ W; to Lat. Marine Sanctuary (68 FR 39005; July 1, BILLING CODE 3510–NK–M 35°08′00″ N, Long. 109°25′00″ W; to Lat. 2003), contained errors in the 35°08′00″ N, Long. 109°30′00″ W; thence coordinates for White Bank South Patch. north along Long. 109°30′00″ W to the The correct coordinates are: OFFICE OF THE UNITED STATES southern edge of V–95; thence northeast White Bank South Patch— TRADE REPRESENTATIVE along the southern edge of V–95 to Lat. (1) 25 degrees 02.414 seconds N 80 35°54′54″ N, Long. 109°13′10″ W; to the degrees 22.425 seconds W; 15 CFR Part 2016 point of beginning. (2) 25 degrees 02.446 seconds N 80 RIN 0350–AA06 degrees 22.267 seconds W; Issued in Los Angeles, California, July 16, (3) 25 degrees 02.314 seconds N 80 2003. Establishment of a Petition Process To degrees 22.278 seconds W; Stephen Lloyd, Review Eligibility of Countries for the (4) 25 degrees 02.336 seconds N 80 Benefits of the Andean Trade Acting Assistant Manager, Air Traffic degrees 22.408 seconds W. Division, Western-Pacific Region. Preference Act, as Amended by the Andean Trade Promotion and Drug [FR Doc. 03–18919 Filed 7–24–03; 8:45 am] Classification Eradication Act BILLING CODE 4910–13–M Under 5 U.S.C. 553(b)(B), the Assistant Administrator of the National AGENCY: Office of the United States Ocean Service, NOAA, for good cause, Trade Representative. DEPARTMENT OF COMMERCE finds that providing prior notice and ACTION: Final rule. public procedure thereon with respect National Oceanic and Atmospheric to this correction is impracticable and SUMMARY: This final rule provides for Administration contrary to the public interest. Recent the establishment of a petition process evidence has come to light of an to review the eligibility of countries for 15 CFR Part 922 outbreak of infectious coral disease in the benefits of the Andean Trade Preference Act, as amended by the [Docket No. 030613151–3151–01] areas of White Bank Dry Rocks near Key Largo. It is possible that humans Andean Trade Promotion and Drug Florida Keys National Marine entering the waters of the affected areas Eradication Act. Sanctuary; Establishment of could inadvertently carry infectious DATES: This final rule is effective on July Temporary No-Entry Zone in the White agents to healthy coral reef areas. 25, 2003. Bank Dry Rocks Area; Correction Infected corals are also most subject to FOR FURTHER INFORMATION CONTACT: Bennett M. Harman, Office of the AGENCY: National Ocean Service (NOS), stress from human activities. This action Americas, Office of the United States National Marine Sanctuary Program. is intended to limit the innocent spread of infectious agents to healthy coral and Trade Representative at (202) 395–5190. ACTION: Temporary rule; correction. to reduce stress to corals within the SUPPLEMENTARY INFORMATION: The Trade SUMMARY: This document corrects infected areas. As such, further damage Act of 2002 (Pub. L. 107–210) (Trade coordinates published on July 1, 2003 to the infected corals as well as to Act) includes the ‘‘Andean Trade for a no-entry zone in the Florida Keys healthy corals outside of the close areas Promotion and Drug Eradication Act’’ National Marine Sanctuary. The no- would occur if the prohibition (ATPDEA), which contains provision on entry zone was established by a implemented by this rule is delayed to enhanced trade benefits for eligible temporary rule and became effective provide prior notice and opportunity for Andean countries. The ATPDEA renews June 26, 2003 until August 25, 2003. public comment. and amends the Andean Trade That temporary rule created two no- Likewise, under 5 U.S.C. 553(d)(3), Preference Act (ATPA) (19 U.S.C. 3201 entry zones in the vicinity of White the Assistant Administrator of the et seq.) Section 3103(d) of the ATPDEA Bank Dry Rocks off of Key Largo to National Ocean Service, NOAA, finds requires the President to promulgate prevent the inadvertent spread by good cause to waive the 30-day delay in regulations regarding the review of swimmers and snorkelers of infectious effective date for this correction. First, if eligibility of articles and countries for agents associated with diseased corals the correction is delayed for 30 days, the benefits of the ATPA, consistent in the two zones. Each no-entry zone is significant damage to the living coral with section 203(e) of the ATPA, as approximately 0.25 square miles in size. resources could result. Further, 30 days amended by the ATPDEA, not later than This document corrects the coordinates are not necessary to give notification to 180 days after the date of enactment of of White Bank South Patch that were visitors who might use the area in the the Trade Act of 2002. The Trade Act incorrectly described in the temporary future to move to other nearby sites. The was enacted on August 6, 2002. In published on July 1, 2003. U.S. Coast Guard will give immediate Executive Order 13277 of November 19,

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2002, the President assigned this In response, USTRA notes first that were withdrawn, suspended, or limited function to the U.S. Trade section 3103(d)(1) requires the President pursuant to section 203(e) if he Representative (USTR). to promulgate regulations regarding the determines that the country in question Section 203(e) of the ATPA, as review of eligibility of articles and has resumed compliance with the amended, gives the President the countries under the ATPA, consistent eligibility criteria of the ATPA, as authority to withdraw or suspend the with section 203(e). As noted above, the amended by the ATPDEA. designation of any ATPA or ATPDEA President assigned this function to the 3. Public Comment: The procedures beneficiary country, or withdraw, USTR per Executive Order. Section set out in the regulations should more suspend, or limit the application of 203(e) gives the President the authority closely adhere to those in the GSP preferential treatment under the ATPA, to withdraw or suspend the designation regulations, in particular by limiting the as amended by the ATPDEA, to any of any ATPA or ATPDEA beneficiary right to file petitions to ‘‘interested article of any such country, if the country, or withdraw, suspend, or limit parties,’’ by establishing a petition President determines that, as a result of the application of preferential treatment process for adding products to the list changed circumstances, the country is under the ATPA, as amended by the of eligible articles, and by creating not meeting the eligibility criteria of the ATPDEA, to any article of any such procedures for submitting economic ATPA and ATPDEA. Section 203(e) also country, if the President determines data in support of such petitions. establishes certain procedural that, as a result of changed USTR Response: This commenter guidelines for taking any of the actions circumstances, the country is not makes three recommendations. First, the described above. meeting the eligibility criteria of the commenter suggests that the ATPA An interim rule, on a final and ATPA and ATPDEA. Section 203(e) also regulations, like the GSP regulations at emergency basis, was published in the establishes certain procedural 15 CFR 2007.0, should limit the right to Federal Register (68 FR 5542) for public guidelines for taking any of the actions file a petition to ‘‘interested parties.’’ comment on February 4, 2003. described above. Second, section However, only the GSP provision that Consistent with section 3103(d)(2) of the 3103(d)(2) requires the regulations to addresses petitions related to product ATPDEA, the interim rule was similar to ‘‘include procedures for requesting eligibility under the GSP program, 15 the regulations governing the annual withdrawal, suspension, or limitations CFR 2007.0(a), limits the right to review used to modify the U.S. of preferential duty treatment’’ under petition to ‘‘interested parties.’’ By Generalized System of Preferences the ATPA. contrast, the section of the GSP (GSP), which is authorized by title V of Section 3103(d)(1) calls for the regulations that addresses country the Trade Act of 1974 (19 U.S.C. 2461 President (the USTR, by delegation) to eligibility, 15 CFR 20007.0(b), affords et seq.), as amended. The interim rule promulgate regulations regarding the the right to petition to ‘‘any person.’’ established an annual review that review of eligibility of articles and Section 3103(d)(1) of the ATPDEA calls allows for public input, and includes countries under the ATPA, ‘‘consistent for regulations consistent with section procedures for requesting the with section 203(e).’’ Section 203(e) 203(e) of the ATPA, which addresses withdrawal, suspension, or limitation of refers solely to the withdrawal, preferential duty treatment under the suspension, or limitation of preferential both country and product eligibility. ATPA, as amended, and for reviewing duty treatment, and makes no reference However, section 203(e) provides that such requests and implementing granted to procedures for adding articles to the any action to remove benefits for requests. USTR received two list of those eligible for preferential products must be based on a submissions with several comments on treatment. Moreover, section 3103(d)(2), determination that a country no longer the interim rule. The following which addresses the content of the meets the eligibility criteria for ATPA summarizes the comments and USTR’s regulations that must be promulgated, benefits. It would be inappropriate to response to them. USTR has also made refers exclusively to procedures for limit petitions addressing the broad technical changes to the final requesting ‘‘withdrawal, suspension, or range of issues related to a country’s regulations that do not affect the limitations’’ of preferential duty eligibility for benefits under the ATPA substance of the provision. treatment under the ATPA, making no solely to ‘‘interested parties,’’ as that mention of procedures for adding term is defined in 15 CFR 2007.0(d). Comments articles. Thus. USTR does not agree that Rather, ‘‘any person’’ should be eligible 1. Public Comment: The regulations regulations implementing section to raise concerns about whether a must provide for an article eligibility 3103(d) must include procedures for country is continuing to meet the review as well as a country eligibility adding articles pursuant to section relevant eligibility criteria. Therefore, review. 204(b)(1). consistent with the broader approach to USTR Response: The interim rule, 2. Public Comment: The regulations country eligibility petitions in the GSP consistent with section 203(e) of the must be revised to expressly include the regulations, the final ATPA regulations ATPA, as amended, and section 3103(d) possibility of restoring benefits for an will permit ‘‘any person’’ to submit a of the ATPDEA, addressed the issue of article for which benefits have been petition seeking either the suspension or article eligibility in the context of withdrawn, suspended, or limited. withdrawal of country eligibility or country eligibility. The commenter USTR Response: Neither the GSP duty-free treatment. (The interim final suggests that the ATPDEA also requires regulations, section 203(e) of the ATPA, rule inadvertently referred to ‘‘any the regulations to allow for petitions to as amended, nor section 3103(d) of the person’’ as ‘‘any party’’ in several add articles pursuant to section ATPDEA addresses the possibility of places. That error has been corrected in 204(b)(1) of the ATPA, as amended, restoring benefits for an article for the final regulations.) which gives the President authority to which benefits have been withdrawn, Second, the commenter suggests that proclaim certain articles as eligible for suspended, or limited. Consequently, the ATPA regulations should be similar duty-free treatment under the ATPA if USTR does not consider that it is to the GSP regulations in that they he determines that an article is not required to include in the regulations should contain procedures for adding ‘‘import-sensitive in the context of procedures for restoring benefits. products in accordance with section imports from ATPDEA beneficiary However, the ATPA provides authority 204(b)(1) of the ATPA, as amended. countries.’’ for the President to restore benefits that This recommendation is addressed in

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response to the first public comment Authority: 19 U.S.C. 3201, et seq.; sec. Subcommittee with any new above. 3103(d), Pub. L. 107–210; 116 Stat. 933; E.O. information related to the issue. 13277, 67 FR 70303. Lastly, the commenter suggests that, if (c) All petitions and other USTR amends the regulations to § 2016.0 Requests for reviews submissions should be submitted in accordance with the schedule (see authorize petitions that seek to add (a) Any person may submit a request § 2016.2) and requirements for products in accordance with section (hereinafter ‘‘petition’’) that the submission that The Office of the 204(b)(1) of the ATPA, as amended, designation of a country as an Andean United States Trade Representative USTR should spell out the information Trade Preference Act (ATPA) (USTR) will publish annually in the to be provided in support of such beneficiary country be withdrawn or Federal Register in advance of each petitions. Because USTR has decided suspended, or the application of review. Foreign governments may make not to amend the interim rule in the preferential treatment under the ATPA submission in the form of diplomatic manner suggested, it is not necessary to to any article of any ATPA beneficiary address this recommendation. country be withdrawn, suspended, or correspondence and should observe the deadlines for each annual review 4. Public Comment: Columbia should limited. Such petitions should: include the name of the person or the group published in the Federal Register. meet its commitment to cease applying (d) The TPSC may at any time, on its requesting the review; identify the a price band adjustment to imports of own motion, initiate a review to ATPA beneficiary country that would be dry pet food. determine whether: the designation of a subject to the review; if the petition is USTR Response: This comment was country as an ATPA beneficiary country requesting that the preferential previously submitted in response to should be withdrawn or suspended; the treatment of an article or articles be USTR notice, published in the Federal application of preferential treatment withdrawn, suspended, or limited, Register on August 15, 2002 (67 FR under the ATPA to any article of any identify such article or articles with 53379), requesting public comment on ATPA beneficiary country should be particularity and explain why such the designation of eligible countries as withdrawn, suspended, or limited; the article or articles were selected; indicate ATPDEA beneficiary countries. The designation of a country as an ATPDEA the specific section 203(c) or (d) (19 interagency Andean subcommittee of beneficiary country should be U.S.C. 3202(c), (d)) eligibility criterion the Trade Policy Staff Committee withdrawn or suspended; or the that the petitioner believes warrant(s) (TPSC) has already considered and application of preferential treatment to review; and include all available acted on this comment. any article of any ATPDEA beneficiary supporting information. The Andean country under section 204(b)(1), (3), or The Regulatory Flexibility Act and Subcommittee of the Trade Policy Staff (4) (19 U.S.C. 3202(b)(1), (3), or (4) Executive Order 12866 Committee (TPSC) may request other should be withdrawn, suspended, or information. If the subject matter of the Under the Regulatory Flexibility Act, limited. petition was reviewed pursuant to a (e) Petitions requesting the action a Regulatory Flexibility Analysis is not previous petition, the petitioner should required under sections 603 or 604 described in paragraph (a) or (b) of this consider providing the Andean section that indicate the existence of because USTR is not publishing a Subcommittee with any new Notice of Proposed Rulemaking. This exceptional circumstances warranting information related to the issue. an immediate review may be considerd final rule is significant under Executive (b) Any person may submit a petition outside of the schedule for the annual Order 12866 of September 30, 1993, and that the designation of a country as an review announced in the Federal has been review by the Office of Andean Trade Promotion and Drug Register. Requests for such urgent Management and Budget. Eradication At (ATPDEA) beneficiary consideration should contain a country be withdrawn or suspended, or List of Subjects in 15 CFR Part 2016 statement of reasons indicating why an the application of preferential treatment expedited review is warranted. Administrative practice and to any article of any ATPDEA procedure, Confidential business beneficiary country under section § 2016.1 Action following receipt of information, Foreign Trade. 204(b)(1), (3), or (4) (19 U.S.C.. petitions. 3202(b)(1), (3), (4)) be withdrawn, ■ For the reasons set out in the (a) USTR shall publish in the Federal suspended, or limited. Such petitions Register a list of petitions filed in SUPPLEMENTARY INFORMATION section of should: Include the name of the person this document, 15 CFR part 2016 revised response to the announcement of the or the group requesting the review; to read as follows: annual review, including the subject identify the ATPDEA beneficiary matter of the request and, where PART 2016—PROCEDURES TO country that would be subject to the appropriate, the description of the PETITION FOR WITHDRAWAL OR review; if the petition is requesting that article or articles covered by the request. SUSPENSION OF COUNTRY the preferential treatment of an article or (b) Thereafter, the Andean ELIGIBILITY OR DUTY-FREE articles be withdrawn, suspended, or Subcommittee shall conduct a TREATMENT UNDER THE ANDEAN limited, identify such article or articles preliminary review of the petitions, and TRADE PREFERENCE ACT (ATPA), AS with particularity and explain why such shall submit the results of its AMENDED article or articles were selected; indicate preliminary review to the TPSC. The the specific section 204(b)(6)(B) (19 TPSC shall review the work of the Sec. U.S.C. 3203(b)(6)(B)) eligibility criterion Andean Subcommittee and shall 2016.0 Requests for reviews. or criteria that the petition believes conduct further review as necessary. 2016.1 Action following receipt of warrant(s) review; and include all The TPSC shall prepare petitions. available supporting information. The recommendations for the President on 2016.2 Timetable for reviews. 2016.3 Publication regarding requests. Andean Subcommittee may request any proposed action to modify the 2016.4 Information open to public other information. If the subject matter ATPA. The Chairman of the TPSC may, inspection. of the petition was reviewed pursuant to as appropriate, convene the Trade 2016.5 Information exempt from public a previous petition, the petitioner Policy Review Group (TPRG) to review inspection. should consider providing the Andean the matter, and thereafter refer the

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matter to the USTR for Cabinet-level § 2016.2 Timetable for reviews. USTR determines that such information review as necessary. Beginning in calendar year 2003, is not entitled to exemption under law. (c) The USTR, after receiving the reviews of pending petitions shall be In the event of such a denial, the advice of the TPSC, TPRG, or Cabinet- conducted at least once each year, information will be returned to the level officials, shall make according to the following schedule, person who submitted it, with a recommendations to the President on unless otherwise specified by Federal statement of the reasons for the denial. any proposed action to modify the Register notice: John K. Veroneau, application of the ATPA’s benefits to (a) September 15: Deadline for submission of petitions for review; General Counsel. countries or articles. The President (or [FR Doc. 03–18957 Filed 7–24–03; 8:45 am] if that function is delegated to the (b) On or about December 1: BILLING CODE 3190–01–M USTR, the USTR) shall announce in the Announcement published in the Federal Register any such action he Federal Register of the results of proposes to take. The USTR shall preliminary review; (c) Decemeber/January: Written DEPARTMENT OF HEALTH AND announce in the Federal Register notice comments submitted and a public HUMAN SERVICES of the results of the preliminary review, hearing held on any proposed actions; together with a schedule for receiving (d) February/March: Preparation of Food and Drug Administration public input regarding such proposed recommendations to the President, action consistent with section 203(e) of Presidential decision, and 21 CFR Part 520 the ATPA, as amended (19 U.S.C. implementation of Presidential 3202(e)). Oral Dosage Form New Animal Drugs; decision. (1) The schedule shall include the Phenylbutazone Paste § 2016.3 Publication regarding requests. deadline and guidelines for any person AGENCY: Food and Drug Administration, to submit written comments supporting, Following the Presidential decision HHS. opposing or otherwise commenting on and where required, the publication of ACTION: Final rule. any proposed action. a Presidential proclamation modifying (2) The schedule shall also include the application of benefits under the SUMMARY: The Food and Drug the time and place of the public hearing, ATPA to countries or articles in the Administration (FDA) is amending the as well as the deadline and guidelines Federal Register, USTR will publish a animal drug regulations to reflect for submitting requests to present oral summary of the decisions made in the approval of an abbreviated new animal testimony. Federal Register, including: drug application (ANADA) filed by (a) For petitions on which decisions Bioniche Animal Health USA, Inc. The (d) After receiving and considering were made, a description of the outcome public input, the Andean Subcommittee ANADA provides for oral use of of the review; and phenylbutazone paste in horses for shall submit the results of the final (b) A list of petitions on which no review to the TPSC. The TPSC shall relief of inflammatory conditions decision was made, and thus which are associated with the musculoskeletal review the work of the Andean pending further review. Subcommittee and shall conduct further system. review as necessary. The TPSC shall § 2016.4 Information open to public DATES: This rule is effective July 25, prepare recommendations for the inspection. 2003. President on any proposed action to With the exception of information FOR FURTHER INFORMATION CONTACT: modify the application of benefits under subject to § 2016.5, any person may, on Lonnie W. Luther, Center for Veterinary the ATPA to countries or articles. The request, inspect in the USTR Reading Medicine (HFV–104), Food and Drug Chairman of the TPSC may, as Room: Administration, 7519 Standish Pl., appropriate, convene the TPRG to (a) Any written petition, comments, or Rockville, MD 20855, 301–827–8549, e- review the matter, and thereafter refer other submission of information made mail: [email protected]. pursuant to this part; and the matter to the USTR for Cabinet-level SUPPLEMENTARY INFORMATION: (b) Any stenographic record of any Bioniche review as necessary. The USTR, after Animal Health USA, Inc., 119 Rowe Rd., receiving the advice of the TPSC, TPRG, public hearings held pursuant to this part. Athens, GA 30601, filed ANADA 200– or Cabinet-level officials, shall make 266 for the oral use of BUTEQUINE recommendations to the President on § 2016.5 Information exempt from public (phenylbutazone) Paste in horses for any proposed action to modify the inspection. relief of inflammatory conditions application of the ATPA’s benefits to (a) Information submitted in associated with the musculoskeletal countries or articles, including confidence shall be exempt from public system. Bioniche Animal Health’s recommendations that no action be inspection if USTR determines that the BUTEQUINE Paste is approved as a taken. The USTR shall also forward to disclosure of such information is not generic copy of Schering-Plough Animal the President any documentation required by law. Health’s PHENYLZONE necessary to implement the (b) A person requesting an exemption (phenylbutazone) Paste, approved under recommended proposed action or from public inspection for information NADA 116–087. The ANADA is actions to modify the application of the submitted in writing shall clearly mark approved as of February 21, 2003, and ATPA’s benefits to countries or articles. each page ‘‘BUSINESS the regulations are amended in 21 CFR (e) In considering whether to CONFIDENTIAL’’ at the top, and shall 520.1720c to reflect the approval and recommend any proposed action to submit a non-confidential summary of current format. The basis of approval is modify the ATPA, the Andean the confidential information. Such discussed in the freedom of information Subcommittee, on behalf of the TPSC, person shall also provide a written summary. TPRG, or Cabinet-level officials, shall explanation of why the material should In accordance with the freedom of review all relevant information be so protected. information provisions of 21 CFR part submitted in connection with a petition (c) A request for exemption of any 20 and 21 CFR 514.11(e)(2)(ii), a or otherwise available. particular information may be denied if summary of safety and effectiveness

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data and information submitted to DEPARTMENT OF HOMELAND DEPARTMENT OF HOMELAND support approval of this application SECURITY SECURITY may be seen in the Dockets Management Branch (HFA–305), Food and Drug Coast Guard Coast Guard Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 33 CFR Part 165 33 CFR Part 165 a.m. and 4 p.m., Monday through [CGD13–03–013] Friday. [CGD09–03–399] RIN 1625–AA00 FDA has determined under 21 CFR 25.33(a)(1) that this action is of a type Safety Zone; Fireworks Display in the RIN 1625–AA00 that does not individually or Captain of the Port Portland Zone, Safety Zones; Captain of the Port cumulatively have a significant effect on Colombia River, Astoria, OR the human environment. Therefore, Detroit Zone neither an environmental assessment AGENCY: Coast Guard, DHS. AGENCY: Coast Guard, DHS. nor an environmental impact statement ACTION: Notice of implementation of ACTION: Notice of implementation of is required. regulation. regulation. This rule does not meet the definition SUMMARY: The Captain of the Port of ‘‘rule’’ in 5 U.S.C. 804(3)(A) because SUMMARY: Portland will begin enforcing the safety The Coast Guard is it is a rule of ‘‘particular applicability.’’ implementing safety zones for annual Therefore, it is not subject to the zone for the Astoria Regatta Fireworks Display established by 33 CFR 165.1316 fireworks displays in the Captain of the congressional review requirements in 5 Port Detroit Zone during August 2003. U.S.C. 801–808. on July 17, 2003. The Captain of the Port, Portland, Oregon, is taking this This action is necessary to provide for List of Subjects in 21 CFR Part 520 action to safeguard watercraft and their the safety of life and property on occupants from safety hazards navigable waters during these events. Animal drugs. associated with the fireworks display. These zones will restrict vessel traffic ■ Therefore, under the Federal Food, Entry into this safety zone is prohibited from a portion of the Captain of the Port Drug, and Cosmetic Act and under unless authorized by the Captain of the Detroit Zone. authority delegated to the Commissioner Port. DATES: Effective from 12:01 a.m. on August 1, 2003, to 11:59 p.m. on August of Food and Drugs and redelegated to the DATES: 33 CFR 165.1316 will be Center for Veterinary Medicine, 21 CFR enforced August 9, 2003 from 9:30 p.m. 31, 2003. part 520 is amended as follows: until 10:30 p.m. (PDT). FOR FURTHER INFORMATION CONTACT: Lieutenant Junior Grade Brandon FOR FURTHER INFORMATION CONTACT: PART 520—ORAL DOSAGE FORM Sullivan, U.S. Coast Guard Marine NEW ANIMAL DRUGS Captain of the Port Portland, 6767 N. Basin Ave., Portland, OR 97217 at (503) Safety Office Detroit, at (313) 568–9580. SUPPLEMENTARY INFORMATION: ■ 240–9370 to obtain information 1. The authority citation for 21 CFR The Coast Guard is implementing the part 520 continues to read as follows: concerning enforcement of this rule. SUPPLEMENTARY INFORMATION: On July permanent safety zones in 33 CFR Authority: 21 U.S.C. 360b. 17, 2003, the Coast Guard published a 165.907 (a)(22) and (23) (66 FR 27868, ■ 2. Section 520.1720c is amended by final rule (68 FR 42289) establishing a May 21, 2001), for fireworks displays in revising paragraphs (a) and (b), by safety zone, in 33 CFR 165.1316, to the Captain of the Port Detroit Zone removing paragraph (c), and by provide for the safety of vessels in the during August 2003. The following redesignating paragraph (d) as new vicinity of the Astoria Regatta fireworks safety zones are in effect for fireworks paragraph (c) to read as follows: display. The safety zone will include all displays occurring in the month of waters of the Columbia River at Astoria, August 2003: § 520.1720c Phenylbutazone paste. Oregon enclosed by the following (1) Maritime Day Fireworks, Marine (a) Specifications—(1) Each gram of points: North from the Oregon shoreline City, MI. This safety zone will be paste contains 0.2 grams at 123°49′36″ West to 46°11′51″ North enforced on August 9, 2003, from 8 p.m. phenylbutazone. thence east to 123°48′53″ West thence until 11:59 p.m. south to the Oregon shoreline and (2) Venetian Festival Boat Parade & (2) Each gram of paste contains 0.35 Fireworks, St. Clair Shores, MI. This grams phenylbutazone. finally westerly along the Oregon shoreline to the point of origin. Entry safety zone will be enforced on August (b) Sponsors. See sponsor numbers in 9, 2003, from 7 p.m. until 11:59 p.m. § 510.600(c) of this chapter. into this zone is prohibited unless authorized by the Captain of the Port or In order to ensure the safety of (1) Nos. 000061 and 010797 for use of his designee. The Captain of the Port spectators and transiting vessels, these product described in paragraph (a)(1) of Portland will enforce this safety zone on safety zones will be enforced for the this section. August 9, 2003 from 9:30 p.m. until duration of the events. In cases where (2) No. 064847 for use of product 10:30 p.m. (PDT). The Captain of the shipping is affected, commercial vessels described in paragraph (a)(2) of this Port may be assisted by other Federal, may request permission from the section. state, or local agencies in enforcing this Captain of the Port Detroit to transit the * * * * * security zone. safety zone. Approval will be made on a case-by case basis. Requests must be Dated: July 3, 2003. Dated: July 9, 2003. made in advance and approved by the Andrew J. Beaulieu, Paul D. Jewell, Captain of the Port Detroit before Acting Director, Center for Veterinary Captain, Coast Guard, Captain of the Port, transits will be authorized. The Captain Medicine. Portland. of the Port Detroit may be contacted via [FR Doc. 03–18910 Filed 7–24–03; 8:45 am] [FR Doc. 03–18918 Filed 7–24–03; 8:45 am] U.S. Coast Guard Group Detroit on BILLING CODE 4160–01–S BILLING CODE 4910–15–P Channel 16, VHF–FM.

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Dated: July 14, 2003. available for public inspection in the such veterans are awaiting a scheduled S.K. Moon, Office of Regulation Policy and appointment with a VA health care Lieutenant Commander, Coast Guard, Acting Management, Room 1063B, between the provider. VA anticipates asking the Captain of the Port Detroit. hours of 8 a.m. and 4:30 p.m., Monday veterans whether they want to have the [FR Doc. 03–18923 Filed 7–24–03; 8:45 am] through Friday (except holidays). Please next available appointment, or whether BILLING CODE 4910–15–P call (202) 273–9515 for an appointment. they want to postpone the initial FOR FURTHER INFORMATION CONTACT: appointment. VA will schedule the Kendra Drew, Chief Business Office veterans’ initial appointments within DEPARTMENT OF VETERANS (16), at (202) 254–0329 and Virginia the period covered by the prescriptions AFFAIRS Torrise, Pharmacy Benefits written by their non-VA physicians. VA Management, Deputy Chief Consultant anticipates that some veterans will 38 CFR Part 17 (119), at (202) 273–8426. These choose to postpone the initial appointment, shortening waiting lists RIN 2900–AL68 individuals are in the Veterans Health Administration of the Department of and making appointment dates available Medication Prescribed by Non-VA Veterans Affairs, located at 810 Vermont to other veterans. VA anticipates that in the near future, Physicians Avenue, NW., Washington, DC 20420. it will be able to provide all enrolled SUPPLEMENTARY INFORMATION: Under veterans with primary care in a timely AGENCY: Department of Veterans Affairs. existing law and regulations, a veteran manner. That would effectively ACTION: Interim final rule. desiring medical care from VA must eliminate the need for providing enroll in VA’s health care system, SUMMARY: This rule amends VA’s medications under this rule. However, it except for veterans whose service- medical regulations that govern the is important that VA have such connected disabilities are 50% or provision of medication to veterans regulations in place until such time as greater, or any veteran seeking treatment when the medication is prescribed by waiting periods can be reduced. for a service-connected condition. When non-VA physicians. The rule provides VA is undertaking this rulemaking a veteran first enrolls in the VA system, that, in limited circumstances, VA may pursuant to its authority under 38 and requests an appointment for care, provide medication prescribed by a non- U.S.C. 1710(a) to furnish needed VA schedules an appointment for a visit VA physician to veterans enrolled in medical services. As clarified in with a primary care physician. During VA’s health care system prior to July 25, paragraph (a) of this rule, VA does not that first appointment, a VA health care 2003, if the veterans have requested an generally fill prescriptions for veterans provider examines the veteran and initial appointment for primary care in that are written by non-VA physicians. determines what care the veteran needs. a VA health care facility before July 25, Instead, VA usually provides only That primary care physician generally 2003, and were unable to obtain an medications prescribed by VA learns from the veteran what medication initial appointment for primary care physicians or VA contractors retained the veteran is taking, if any, assesses the within 30 days. The rule establishes for that purpose. This is consistent with need for medication, and writes specific requirements that veterans must the primary purpose of the Veterans prescriptions for any needed meet to receive such medications and it Health Administration, which is to medication. Those prescriptions written establishes limits on the types and provide integrated comprehensive by the VA physician are then filled by quantities of medication VA may health care for veterans, not simply act a VA pharmacy. provide. VA’s intent is to assist enrolled as a conduit for furnishing prescription In recent years, VA has faced an veterans who have requested primary medications. extraordinary increase in demand for care appointments but who have not In light of the backlog of veterans health care services. The increased been able to obtain one within 30 days. seeking VA care, however, the Secretary demand has been caused, at least in has determined that the filling of some DATES: Effective Date: This interim final part, by veterans enrolling in the VA prescriptions written by non-VA rule is effective on July 25, 2003; except health care system to obtain pharmacy physicians is needed during the period for 38 CFR 17.96(e) which is effective benefits at no cost or at a reasonable of time such veterans are awaiting a August 25, 2003. cost. With dramatically increased scheduled appointment with a VA Comment Dates: Comments on the enrollment, VA has been unable to health care provider. As a result, rule must be received on or before provide all enrolled veterans with paragraph (b) of this rule states that September 8, 2003; except that services in a timely manner. In many beginning September 22, 2003, VA may comments on the request for emergency places that means veterans may wait a furnish medications for veterans approval of the collection of information considerable length of time to receive an enrolled in VA’s health care system provisions must be received on or before initial primary care visit. Many of those prior to July 25, 2003, if the veterans August 25, 2003. veterans have prescriptions, written by have requested an initial appointment Applicability Date: Benefits may be non-VA physicians, that VA primary for primary care in a VA health care provided commencing September 22, care physicians may confirm and renew facility before July 25, 2003, and the 2003. when the veterans are able to have next available appointment date is ADDRESSES: Mail or hand-deliver initial primary care visits. In an effort to scheduled more than 30 days after the written comments to: Director, ease the financial burden on enrolled veteran requests the appointment. VA Regulations Management (00REG1), veterans currently waiting lengthy chose the 30-day limitation because it is Department of Veterans Affairs, 810 periods of time for their initial primary generally considered reasonable in the Vermont Ave., NW., Room 1068, care visits, VA will provide these community at large to expect that one Washington, DC 20420; or fax comments veterans with medications prior to their could obtain a first time primary care to (202) 273–9026; or e-mail comments initial primary care visits at VA if these visit with a physician within 30 days. to [email protected]. veterans present valid prescriptions VA chose to limit the provision of Comments should indicate that they are from their non-VA physicians. VA will medications in question to only those submitted in response to ‘‘RIN 2900– fill prescriptions written by non-VA veterans enrolled prior to July 25, 2003, AL68.’’ All comments received will be physicians only for the period of time in order to specifically address the

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problems of currently enrolled veterans understands that there are occasions medication is medically necessary, but facing lengthy waits for initial primary when, for good cause, veterans might be is not on VA’s formulary, VA will care appointments in a cost-effective forced to cancel appointments. For provide that medication. Finally, acute manner. (See 38 U.S.C. 1706(a) example, if the veteran had to medications, intravenous medications, requiring VA to ‘‘design, establish and reschedule an appointment because of and medications required to be manage health care programs in such a inclement weather, or because of the administered only by a medical manner as to promote cost-effective illness or death of a family member, VA professional will not be furnished delivery of health care services’’). would not disqualify the veteran from because under this rule prescriptions Moreover, without these limitations, the continuing to receive the benefits of this will be filled only by mail. very issuance of the new rule could remedial program. However, VA would invite an influx of new enrollments and not furnish medications to veterans who Paragraph (g) of this rule provides that requests for appointments, exacerbating simply cancel or reschedule and extend the existing copayment requirements the wait-time problem the rule is their appointments without good applicable to VA furnishing medication intended to address. This rule also reasons. will apply to medications furnished should benefit those who enroll after the Paragraph (e) of this rule states that under this rule. Statutes (e.g., 38 U.S.C. effective date or attempt to make VA may furnish medications beginning 1722A) require application of the appointments after that date. By on September 22, 2003, only if veterans copayment requirements. allowing those presently enrolled and provide VA with written current Paragraph (h) of this rule provides waiting more than 30 days to reschedule prescriptions for their medications that VA will furnish medications under appointments at dates closer to signed by duly licensed physicians this rule only by having the medication expiration of presently held non-VA within the previous 90 days. To ensure mailed to the veteran, typically by one prescriptions, additional near term the health and safety of veterans, VA of VA’s Consolidated Mail Out-patient appointments should become available will only fill prescriptions when Pharmacies, or with VA contract for those who are not entitled to this veterans present VA with written pharmacies. Therefore, this benefit is limited benefit. Thus, the out-of-pocket prescriptions signed by licensed not useful for veterans who require costs for prescriptions filled while physicians. VA will not accept acute medications, intravenous waiting for VA appointments should prescriptions called in by veterans’ non- medications, or medications to be also be reduced for those not VA pharmacies or non-VA health care administered only by a medical specifically included in this rule providers. VA lacks the resources to professional. VA pharmacies will not because their waiting time should be accept and manage those calls. directly furnish medications or reduced. Paragraph (f) of this rule states that reimburse veterans for medications that Paragraph (c) of this rule states that VA may furnish only medication under they obtain from non-VA pharmacies. VA may furnish an amount of paragraph (b) that (1) must be dispensed medication that will appropriately meet by prescription, (2) is not an over-the- Paragraph (i) of this rule restates, with the treatment needs of veterans until the counter medication, (3) is not listed as no substantive change, longstanding date of the veterans’ initial appointment a controlled substance under schedule I regulatory provisions regarding for primary care in a VA facility. If through V of the Comprehensive Drug prescriptions found in § 17.96. veterans choose to postpone their initial Abuse Prevention and Control Act, 21 Administrative Procedure Act appointment date until they have used U.S.C. 812, (4) is included on VA’s all of the medication prescribed by the National Formulary, unless VA Pursuant to 5 U.S.C. 553, we have non-VA provider, VA will furnish the determines a non-Formulary medication found for this rule that notice and amount prescribed, including refills. VA is medically necessary, and (5) is not an public procedure are impracticable, will furnish such medications acute medication, intravenous unnecessary, and contrary to the public consistent with long-standing pharmacy medication, nor one required to be interest, and that we have good cause to practices. The decision on the precise administered only by a medical dispense with notice and comment on quantity of medication that would be professional. By providing only this rule and to dispense with a 30-day needed is generally considered to be a medications that must be dispensed by delay of its effective date. This is an medical determination and would be prescription, VA is not furnishing over- effort to ease the financial burden on left to appropriate VA clinicians the-counter drugs. Veterans can easily enrolled veterans currently waiting including pharmacists. purchase over-the-counter medications lengthy periods of time for their initial Paragraph (d) of this rule states that if without regard to whether they are able primary care visits. Delaying VA reschedules an initial appointment to schedule visits with a physician. For implementation of this benefit would for primary care in a VA health care patient health and safety reasons, VA only exacerbate the problems veterans facility for veterans eligible under this will not furnish controlled substances are experiencing while waiting for VA rule, or if veterans reschedule their without a VA physician first seeing the treatment. appointments for good reasons, as patient and ordering the medication. VA determined by the local VA medical will furnish veterans with medications Unfunded Mandates facility, VA may furnish the eligible prescribed by non-VA physicians only if veterans with a quantity of medication the medication is on VA’s National The Unfunded Mandates Reform Act that is sufficient to meet the treatment Formulary, or approved in advance requires, at 2 U.S.C. 1532, that agencies needs of the veterans until the date of through a special approval process. If a prepare an assessment of anticipated the veterans’ rescheduled appointments veteran provides VA with a prescription costs and benefits before developing any for primary care in a VA health care for medications that are not on VA’s rule that may result in an expenditure facility. If VA reschedules veterans’ formulary, VA will contact the by State, local, or tribal governments, in initial primary care visits, it is physician who wrote the prescription to the aggregate, or by the private sector of reasonable that VA would provide determine whether a medication on $100 million or more in any given year. additional medication to meet the VA’s formulary is appropriate, and if This proposed amendment would have veterans’ needs until the date of their not, the medical reasons why it is not no such effect on State, local, or tribal rescheduled appointments. VA also appropriate. If VA determines that a governments, or the private sector.

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Paperwork Reduction Act Description of the need for pursuant to 5 U.S.C. 605(b), this OMB assigns a control number for information and proposed use of amendment is exempt from the initial each collection of information it information: This information is needed and final regulatory flexibility analysis approves. Except for emergency to determine eligibility for provision of requirements of sections 603 and 604. approvals under 44 U.S.C. 3507(j), VA medication to veterans when the Catalog of Federal Domestic Assistance may not conduct or sponsor, and a medication is prescribed by non-VA Numbers person is not required to respond to, a physicians. The Catalog of Federal Domestic collection of information unless it Description of likely respondents: Assistance numbers for the programs displays a currently valid OMB control veterans and treating physicians. affected by this document are 64.005, number. Estimated number of respondents per The interim final rule at § 17.96(e) year: 181,723. 64.007, 64.008, 64.009, 64.010, 64.011, contains collections of information Estimated frequency of responses per 64.012, 64.013, 64.014, 64.015, 64.016, under the Paperwork Reduction Act (44 year: 1. 64.018, 64.019, 64.022, and 64.025. U.S.C. 3501–3521). Accordingly, under Estimated total annual reporting and List of Subjects in 38 CFR Part 17 recordkeeping burden: 33,316 hours. section 3507(d) of the Act, VA has Administrative practice and submitted a copy of this rulemaking Estimated annual burden per collection: 11 minutes. procedure, Alcohol abuse, Alcoholism, action to OMB for its review of the Claims, Day care, Dental health, Drug collections of information. We have The Department considers comments by the public on collections of abuse, Foreign relations, Government requested OMB to approve the contracts, Grant programs-health, Grant collection of information on an information in— • Evaluating whether the collections programs-veterans, Health care, Health emergency basis by August 25, 2003. If facilities, Health professions, Health OMB does not approve the collections of information are necessary for the proper performance of the functions of records, Homeless, Medical and dental of information as requested, we will schools, Medical devices, Medical immediately remove § 17.96(e) or take the Department, including whether the information will have practical utility; research, Mental health programs, such other action as is directed by OMB. • Nursing homes, Philippines, Reporting We are also seeking an approval of the Evaluating the accuracy of the and recordkeeping requirements, information collection on a non- Department’s estimate of the burden of Scholarships and fellowships, Travel emergency basis. Accordingly, we are the collections of information, including and transportation expenses, Veterans. also requesting comments on the the validity of the methodology and assumptions used; Approved: July 17, 2003. collection of information provisions • contained in § 17.96(e) on a non- Enhancing the quality, usefulness, Anthony J. Principi, emergency basis. Comments must be and clarity of the information to be Secretary of Veterans Affairs. collected; and submitted by September 23, 2003. ■ For the reasons set out in the preamble, • Minimizing the burden of the OMB assigns a control number for VA is amending 38 CFR part 17 as collections of information on those who each collection of information it follows: approves. VA may not conduct or are to respond, including responses sponsor, and a person is not required to through the use of appropriate PART 17—MEDICAL automated, electronic, mechanical, or respond to, a collection of information ■ unless it displays a currently valid OMB other technological collection 1. The authority citation for part 17 control number. techniques or other forms of information continues to read as follows: Comments on the collections of technology, e.g., permitting electronic Authority: 38 U.S.C. 501, 1721, unless information should be submitted to the submission of responses. otherwise noted. Office of Management and Budget, OMB is required to make a decision ■ 2. Section 17.96 is revised to read as Attention: Desk Officer for the concerning the collections of follows: Department of Veterans Affairs, Office information contained in this rule of Information and Regulatory Affairs, between 30 and 60 days after § 17.96 Medication prescribed by non-VA Washington, DC 20503, or faxed to 202 publication of this document in the physicians. 395–6974, with copies mailed or hand- Federal Register. Therefore, a comment (a) General. VA may not furnish a delivered to: Director, Regulations to OMB is best assured of having its full veteran with medication prescribed by a Management (00REG1), Department of effect if OMB receives it within 30 days duly licensed physician who is not an Veterans Affairs, 810 Vermont Ave., of publication. This does not affect the employee of the VA or is not providing NW., Room 1068, Washington, DC deadline for the public to comment on care to the veteran under a contract with 20420. Comments should indicate that the interim final rule. the VA, except as provided in they are submitted in response to ‘‘RIN paragraphs (b) through (i) of this Executive Order 12866 2900–AL68.’’ section. Title: Medication Prescribed by non- The Office of Management and Budget (b) Medication furnished prior to an VA Physicians. has reviewed this document under initial primary care appointment. Summary of collection of information: Executive Order 12866. Beginning on September 22, 2003, VA The interim final rule at § 17.96(e) may furnish medication prescribed by a Regulatory Flexibility Act contains application provisions for non-VA physician for a veteran enrolled written prescriptions and information The Secretary hereby certifies that under § 17.36 of this part prior to July requirements. The interim rule at this regulatory amendment would not 25, 2003, who had prior to July 25, § 17.96(e) contains requirements for have a significant economic impact on 2003, requested an initial appointment provision of medication to veterans a substantial number of small entities as for primary care in a VA health care when the medication is prescribed by they are defined in the Regulatory facility, and the next available non-VA physicians. Flexibility Act, 5 U.S.C. 601–612. This appointment date was more than 30 Application Provisions for Written amendment would not directly affect days from the date of the request. Prescriptions and Information any small entities. Only individuals (c) Quantity of medication. VA may Requirements. could be directly affected. Therefore, furnish a quantity of medication under

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paragraph (b) of this section that is the Comprehensive Drug Abuse ENVIRONMENTAL PROTECTION sufficient to appropriately meet the Prevention and Control Act, 21 U.S.C. AGENCY treatment needs of the veteran until the 812; date of the veteran’s initial appointment (4) Is included on VA’s National 40 CFR Part 82 for primary care in a VA health care Formulary, unless VA determines a non- [FRL7529–6] facility. Formulary medication is medically (d) Appointment cancellation. If VA necessary; and RIN 2060–AK67 reschedules a veteran eligible under (5) Is not an acute medication, an Protection of Stratospheric Ozone: paragraph (b) for an initial appointment intravenous medication nor one for primary care in a VA health care Ban on Trade of Methyl Bromide with required to be administered only by a Non-Parties to the Montreal Protocol facility, or if such a veteran reschedules medical professional. the appointment for good cause, as (g) Copayments. Copayment AGENCY: Environmental Protection determined by the local VA treatment provisions in § 17.110 of this part apply Agency (EPA). facility, VA may furnish the eligible to medication furnished under ACTION: Direct final rule. veteran with a quantity of medication paragraph (b) of this section. under paragraph (b) of this section that SUMMARY: With this action, EPA is is sufficient to appropriately meet the (h) Mailing of Medications. VA may taking direct final action on the treatment needs of the veteran until the furnish medication under paragraph (b) regulations that govern the production, date of the veteran’s rescheduled of this section only by having the import, and export of substances that appointment for primary care in a VA medication mailed to the veteran. deplete the ozone layer under the health care facility. (i) Medications for veterans receiving authority of Title VI of the Clean Air Act (e) Written prescription and increased compensation or pension. (CAA or the Act) and in accordance information requirements. VA may Any prescription, which is not part of with U.S. obligations under the furnish medication under paragraph (b) authorized Department of Veterans Montreal Protocol on Substances that of this section only if the veteran Affairs hospital or outpatient care, for Deplete the Ozone Layer (Protocol). provides VA with a written prescription drugs and medicines ordered by a Specifically, today’s amendments reflect for the medication signed by a duly private or non-Department of Veterans the Montreal Amendments to the licensed physician within the previous Affairs doctor of medicine or doctor of Protocol, which ban the import or 90 days. osteopathy duly licensed to practice in export of methyl bromide (class I, Group (1) The veteran must furnish the the jurisdiction where the prescription VI controlled substance) from or to following information: is written, shall be filled by a countries that are not Parties to the 1992 (i) Name; Department of Veterans Affairs Copenhagen Amendments. (ii) Date of Birth; pharmacy or a non-VA pharmacy in a DATES: This rule is effective on October (iii) Social Security Number; state home under contract with VA for 23, 2003 without further notice, unless (iv) Home address; filling prescriptions for patients in state EPA receives adverse comment by (v) Phone number (with area code); homes, provided: August 25, 2003, or, if a public hearing (vi) Name of Health Insurance (1) The prescription is for: is requested, by September 18, 2003. If Company and Health Insurance Policy (i) A veteran who by reason of being we receive such comment, we will Number; permanently housebound or in need of publish a timely withdrawal in the (vii) List of any allergies; regular aid and attendance is in receipt Federal Register informing the public (viii) History of any adverse reaction of increased compensation under 38 that this rule will not take effect. to any medication; U.S.C. chapter 11, or increased pension Written comments on this rule must (ix) List of current medications, under section 3.1(u) (Section 306 be received on or before August 25, including over-the-counter medications Pension) or section 3.1(w) (Improved 2003, unless a public hearing is or herbal supplements; and Pension), of this title, as a veteran of the requested. Comments must then be (x) Indication of whether the VA Mexican Border Period, World War I, received on or before 30 days following pharmacist may call a non-VA World War II, the Korean Conflict, or the public hearing. Any party requesting physician for information regarding the Vietnam Era (or, although eligible a public hearing must notify the contact medications. person listed below by 5 p.m. Eastern (2) The non-VA physician must for such pension, is in receipt of Standard Time on August 4, 2003. If a furnish the following information: compensation as the greater benefit), or hearing is requested it will be held (i) Name; (ii) A veteran in need of regular aid (ii) Group practice name; and attendance who was formerly in August 19, 2003. (iii) Social Security Number or Tax ID receipt of increased pension as ADDRESSES: Comments may be number; described in paragraph (a)(1) of this submitted by mail to Air and Radiation. (iv) License Number; section whose pension has been Send two copies of your comments to: (v) Office address; discontinued solely by reason of excess Air and Radiation Docket (6102), Air (vi) Phone number and fax number; income, but only so long as such Docket No. A–92–13, Section XIII, U.S. and veteran’s annual income does not Environmental Protection Agency, (vii) E-mail address. exceed the maximum annual income Mailcode 6205J, 1200 Pennsylvania (f) Medications that may be furnished. limitation by more than $ 1,000, and Ave. NW., Washington, DC 20460. The VA may furnish medication under (2) The drugs and medicines are Docket’s hours of operation are 8:30 paragraph (b) of this section only if the prescribed as specific therapy in the a.m. until 4:30 p.m. Monday through medication: treatment of any of the veteran’s Friday. Comments may also be (1) Must be dispensed by prescription; illnesses or injuries. submitted electronically, through hand (2) Is not an over-the-counter delivery or courier. Your use of EPA’s (Authority: 38 U.S.C. 1706, 1710, 17.12(d)) medication; electronic public docket to submit (3) Is not listed as a controlled [FR Doc. 03–19011 Filed 7–24–03; 8:45 am] comments to EPA electronically is substance under schedule I through V of BILLING CODE 8320–01–P EPA’s preferred method for receiving

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comments. Go directly to EPA dockets IV. What is the Regulatory Background received, and other information related at http://www.epa.gov/edocket, and Relating Specifically to Methyl Bromide? to this action. Although a part of the follow the online instructions for V. What is the Ban on Trade of Methyl official docket, the public docket does submitting comments. For hand Bromide with non-Parties to the not include Confidential Business Protocol? delivery or courier, deliver your VI. Statutory and Executive Order Reviews Information (CBI) or other information comments to: 501 3rd Street NW., A. Executive Order 12866: Regulatory whose disclosure is restricted by statute. Washington, DC 20001, Attention Planning and Review The official public docket is the Docket ID No. A–92–13, Section XIII. B. Paperwork Reduction Act collection of materials that is available FOR FURTHER INFORMATION CONTACT: Kate C. Regulatory Flexibility Act (RFA), As for public viewing at EPA West, 1301 Choban, U.S. Environmental Protection Amended By the Small Business Constitution Ave. NW., Room B108, Agency, Global Programs Division, Regulatory Enforcement Fairness Act of Mail Code 6102T, Washington, DC Stratospheric Programs Implementation 1996 (SBREFA), 5 U.S.C. 601 et. seq. 20460, Phone: (202)–566–1742, Fax: D. Unfunded Mandates Reform Act (202)–566–1741. The materials may be Branch (6205J), 1200 Pennsylvania E. Executive Order 13132: Federalism Avenue NW., Washington, DC 20460, F. Executive Order 13175: Consultation inspected from 8:30 a.m. until 4:30 p.m. (202)–564–3524. Overnight or courier and Coordination with Indian Tribal Monday through Friday, excluding legal deliveries should be sent to 501 3rd Governments holidays. A reasonable fee may be Street, NW., Washington, DC 20001. G. Executive Order 13045: Protection of charged for copying docket materials. You may also visit the Ozone Depletion Children from Environmental Health & 2. Electronic Access. You may access web site of EPA’s Global Programs Safety Risks this Federal Register document Division at http://www.epa.gov/ozone/ H. Executive Order 13211: Actions that electronically through the EPA Internet index.html for further information about Significantly Affect Energy Supply, under the ‘‘Federal Register’’ listings at Distribution, or Use EPA’s Stratospheric Ozone Protection http://www.epa.gov/fedrgstr/. An I . National Technology Transfer electronic version of the public docket regulations, the science of ozone layer Advancement Act depletion, and other topics. VII. Congressional Review is available through EPA’s electronic SUPPLEMENTARY INFORMATION: EPA is A. Submission to Congress and the public docket and comment system, publishing this rule without prior Comptroller General EPA Dockets. You may use EPA Dockets at http://www.epa.gov/edocket/ to proposal because we view this as a I. General Information noncontroversial amendment and submit or view public comments, access anticipate no adverse comment. No A. Regulated Entities the index listing of the contents of the official public docket, and to access adverse comment is expected due to the Entities potentially regulated by this those documents in the public docket fact that the U.S. Senate gave its advice action are those associated with the that are available electronically. Once in and consent to ratification of the import and export of methyl bromide. the system, select ‘‘search,’’ then key in Montreal Amendment on October 9, Potentially regulated categories and the appropriate docket identification 2002, and this rule simply adopts one of entities include: the provisions contained in that number. Certain types of information will not Amendment. However, in the Examples of regulated Category be placed in the EPA Dockets. ‘‘Proposed Rules’’ section of today’s entities Information claimed as CBI and other Federal Register, we are publishing a information whose disclosure is separate document that will serve as the Industry ...... Importers and Exporters of methyl bromide restricted by statute, which is not proposal to implement the methyl included in the official public docket, bromide trade bans if adverse comments The above table is not intended to be will not be available for public viewing are filed. This rule will be effective on exhaustive, but rather provides a guide in EPA’s electronic public docket. EPA’s October 23, 2003 without further notice for readers regarding entities likely to be policy is that copyrighted material will unless we receive adverse comment by regulated by this action. This table lists not be placed in EPA’s electronic public August 25, 2003 (or, if a public hearing the types of entities that EPA is now docket but will be available only in is requested, by September 18, 2003). If aware could potentially be regulated by printed, paper form in the official public EPA receives adverse comment, we will this action. To determine whether your docket. Although not all docket publish a timely withdrawal in the facility, company, business, or materials may be available Federal Register informing the public organization is regulated by this action, electronically, you may still access any that the rule will not take effect. We will you should carefully examine the of the publicly available docket address all public comments in a regulations promulgated at 40 CFR part materials through the docket facility subsequent final rule based on the 82, subpart A. If you have questions identified in Unit I.B. proposed rule. We will not institute a regarding the applicability of this action For public commenters, it is second comment period on this action. to a particular entity, consult the person important to note that EPA’s policy is Any persons interested in commenting listed in the preceding FOR FURTHER that public comments, whether must do so at this time. INFORMATION CONTACT section. submitted electronically or in paper, Table of Contents will be made available for public B. How Can I Get Copies Of This I. General Information viewing in EPA’s electronic public Document and Other Related docket as EPA receives them and A. Regulated Entities Information? B. How Can I Get Copies of This Document without change, unless the comment and Other Related Information? 1. Docket. EPA has established an contains copyrighted material, CBI, or C. How and To Whom Do I Submit official public docket for this action other information whose disclosure is Comments? under the Office of Air and Radiation restricted by statute. When EPA D. How Should I Submit CBI To the Docket & Information Center, Air Docket identifies a comment containing Agency? II. What is the Legislative and Regulatory ID No. A–92–13, Section XIII. The copyrighted material, EPA will provide Background of the Phaseout Regulations official public docket consists of the a reference to that material in the for Ozone-Depleting Substances? documents specifically referenced in version of the comment that is placed in III. What is Methyl Bromide? this action, any public comments EPA’s electronic public docket. The

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entire printed comment, including the comments. Go directly to EPA dockets II. What Is the Legislative and copyrighted material, will be available at http://www.epa.gov/edocket, and Regulatory Background of the Phaseout in the public docket. follow the online instructions for Regulations for Ozone-Depleting Public comments submitted on submitting comments. Substances? computer disks that are mailed or 2. By Mail. Send two copies of your The Clean Air Act Amendments of delivered to the docket will be 1990 direct the Environmental transferred to EPA’s electronic public comments to: Air and Radiation Docket Protection Agency (EPA) to issue docket. Public comments that are (6102), Air Docket No. A–92–13, Section regulations to implement the provisions mailed or delivered to the Docket will XIII, U.S. Environmental Protection of the Protocol within the United States be scanned and placed in EPA’s Agency, Mailcode 6205J, 1200 through a system of controls on electronic public docket. Where Pennsylvania Ave. NW., Washington, production and consumption of ozone- practical, physical objects will be DC 20460. depleting substances. The current photographed, and the photograph will 3. By Hand Delivery or Courier. regulatory requirements of the be placed in EPA’s electronic public Deliver your comments to: 501 3rd Stratospheric Ozone Protection Program docket along with a brief description Street NW., Washington, DC, 20001, are codified at subpart A to Part 82 of written by the docket staff. Attention Docket ID No. A–92–13, Volume 40 of the Code of Federal C. How and To Whom Do I Submit Section XIII. Such deliveries are only Regulations (40 CFR part 82, subpart A). Comments? accepted during the Docket’s normal As the control measures of the Protocol You may submit comments hours of operation as identified under have been amended or adjusted, and in electronically, by mail or through hand ADDRESSES. consideration of other factors, subpart A delivery/courier. To ensure proper 4. By Facsimile. Fax your comments has also been amended. For example, receipt by EPA, identify the appropriate to: (202) 566–1741, Attention Docket ID the amendments to the Protocol made at docket identification number in the No. A–92–13, Section XIII. the Fourth Meeting of the Parties in subject line on the first page of your Copenhagen in 1992 included an comment. Please ensure that your D. How Should I Submit CBI To the accelerated phaseout of ODS production comments are submitted within the Agency? and consumption. EPA published a final specified comment period. Comments regulation in December of 1993, Do not submit information that you received after the close of comment implementing the United States’ period will be marked late. EPA is not consider to be CBI electronically accelerated phaseout obligation under required to consider these late through EPA’s electronic public docket the Copenhagen amendments (58 FR comments. If you plan to submit or by e-mail. Send or deliver 65018). comments, please also notify Kate information identified as CBI only to the The requirements contained in the Choban, U.S. Environmental Protection mail or courier addresses listed in Units final rules published in the Federal Agency, Global Programs Division C.2 or C.3, as appropriate, to the Register on December 20, 1994 and May (6205J), 1200 Pennsylvania Ave. NW., attention of Air Docket ID No. A–92–13, 10, 1995 establish an Allowance Washington, DC 20460, (202) 564–3524. Section XIII. You may claim information Program. The Allowance Program and 1. Electronically. If you submit an that you submit to EPA as CBI by its history are described in the notice of electronic comment as prescribed marking any part or all of that proposed rulemaking published in the below, EPA recommends that you information as CBI (if you submit CBI Federal Register on November 10, 1994 include your name, mailing address, on disk or CD ROM, mark the outside (59 FR 56276). The control and the and an e-mail address or other contact of the disk or CD ROM as CBI and then phaseout of the production and information in the body of your identify electronically within the disk or consumption of class I ozone-depleting comment. Also include this contact CD ROM the specific information that is substances as required under the information on the outside of any disk CBI). Information so marked will not be Protocol and the CAA are accomplished or CD ROM you submit, and in any disclosed except in accordance with through the Allowance Program. cover letter accompanying the disk or In developing the Allowance Program, procedures set forth in 40 CFR Part 2. CD ROM. This ensures that you can be we collected information on the In addition to one complete version of identified as the submitter of the amounts of ozone-depleting substances the comment that includes any comment and allows EPA to contact you produced, imported, exported, in case EPA cannot read your comment information claimed as CBI, a copy of transformed and destroyed within the due to technical difficulties or needs the comment that does not contain the U.S. for specific baseline years for further information on the substance of information claimed as CBI must be specific chemicals. This information your comment. EPA’s policy is that EPA submitted for inclusion in the public was used to establish the U.S. will not edit your comment, and any docket and EPA’s electronic public production and consumption ceilings identifying or contact information docket. If you submit the copy that does for these chemicals. The data were also provided in the body of a comment will not contain CBI on disk or CD ROM, used to assign company-specific be included as part of the comment that mark the outside of the disk or CD ROM production and import rights to is placed in the official public docket, clearly that it does not contain CBI. companies that were in most cases and made available in EPA’s electronic Information not marked as CBI will be producing or importing during the public docket. If EPA cannot read your included in the public docket and EPA’s specific year of data collection. These comment due to technical difficulties electronic public docket without prior production or import rights are called and cannot contact you for clarification, notice. If you have any questions about ‘‘allowances.’’ Due to the complete EPA may not be able to consider your CBI or the procedures for claiming CBI, phaseout of many of the ozone- comment. please consult the person identified in depleting chemicals, the quantities of i. EPA Dockets. Your use of EPA’s the FOR FURTHER INFORMATION CONTACT allowances granted to companies for electronic public docket to submit section. those chemicals were gradually reduced comments to EPA electronically is and eventually eliminated. Production EPA’s preferred method for receiving allowances and consumption

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allowances continue to exist for only production and consumption in 1991 Protocol in order to ensure the United one specific class I controlled ozone- should be the baseline for establishing States meets its obligations under the depleting substance—methyl bromide. the freeze. EPA published a final rule in Protocol and associated amendments. All other production or consumption of the Federal Register on December 10, Article 4, paragraph 1 qua of the class I controlled substances is 1993, listing methyl bromide as a class Protocol bans the import of methyl prohibited under the Protocol and the I, Group VI controlled substance, bromide (Annex E substances) from any CAA, but for a few narrow exemptions. freezing U.S. production and country not a Party to the Protocol In the context of the regulatory consumption at this 1991 level, and, in amendments creating control program, the use of the term § 82.7 of the rule, setting forth the obligations for methyl bromide consumption may be misleading. percentage of baseline allowances for (Copenhagen Amendments). Later Consumption does not mean the ‘‘use’’ methyl bromide granted to companies in refinements made to the methyl of a controlled substance, but rather is each control period (each calendar year) bromide phaseout schedule were in the defined as the formula: production + until the year 2001 (58 FR 65018). form of adjustments, not amendments, imports ¥ exports, of controlled Consistent with the CAA requirements and any Party that has ratified the substances (Article 1 of the Protocol and for newly listed class I ozone-depleting Copenhagen Amendments is subject to Section 601 of the CAA). Class I substances, this rule established a 2001 those adjustments. Article 4, paragraph controlled substances that were phaseout for methyl bromide. In the rule 2 qua of the Protocol bans exports of produced or imported through the published in the Federal Register on methyl bromide to any Party that has expenditure of allowances prior to their December 30, 1993 (58 FR 69235), we not ratified the Copenhagen phaseout date can continue to be used established baseline methyl bromide Amendments to the Protocol. These by industry and the public after that production and consumption bans were added as part of the 1997 specific chemical’s phaseout under allowances for specific companies in Montreal Amendments to the Protocol. these regulations, unless otherwise § 82.5 and § 82.6. Section 614 of the CAA states, ‘‘This precluded under separate regulations. At their 1997 meeting, the Parties title as added by the Clean Air Act The specific names and chemical agreed to establish the phaseout Amendments of 1990 shall be formulas for the class I controlled schedule for methyl bromide in construed, interpreted, and applied as a ozone-depleting substances are in industrialized countries. The U.S. supplement to the terms and conditions appendix A and appendix F in subpart Congress followed by amending the of the Montreal Protocol, as provided in A of 40 CFR part 82. The specific names CAA (in Oct. 1998) to direct EPA to Article 2, paragraph 11 thereof, and and chemical formulas for the class II promulgate regulations reflecting the shall not be construed, interpreted, or controlled ozone-depleting substances Protocol phaseout date of 2005, with applied to abrogate the responsibilities are in appendix B and appendix F in interim phasedown steps in 1999, 2001, or obligations of the United States to subpart A. and 2003. EPA promulgated a regulation implement fully the provisions of the that was published in the Federal III. What Is Methyl Bromide? Montreal Protocol. In the case of conflict Register on June 1, 1999 (64 FR 29240), between any provision of this title and Methyl bromide is an odorless and instituting the initial interim reduction any provision of the Montreal Protocol, colorless gas used in the U.S. and of 25 percent in the production and the more stringent provision shall throughout the world as a fumigant. import 1 of methyl bromide for the 1999 govern. Nothing in this title shall be Methyl bromide, which is toxic to living and 2000 control periods. In a construed, interpreted, or applied to things, is used in many different subsequent rule, published in the affect the authority or responsibility of situations to control a variety of pests, Federal Register on November 28, 2000 the Administrator to implement Article such as insects, weeds, pathogens, and (65 FR 70795), EPA implemented 4 of the Montreal Protocol with other nematodes. Additional characteristics reductions in the production and appropriate agencies.’’ Pursuant to and details about the uses of methyl consumption of methyl bromide for section 614, today’s action fulfills the bromide, as well as information on the 2001 and beyond, as follows: beginning U.S. obligation to implement the methyl basis for listing methyl bromide as a January 1, 2001, a 50 percent reduction bromide trade ban provisions of the class I substance, can be found in the in baseline levels; beginning January 1, Montreal Protocol. proposed rule published in the Federal 2003, a 70 percent reduction in baseline Current regulations (60 FR 24970; 40 Register on March 18, 1993 (58 FR levels; and, beginning January 1, 2005, CFR 82.4(l)(2)) prohibit the import and 15014) and the final rule published in the complete phaseout of methyl export of certain class I controlled the Federal Register on December 10, bromide. substances from or to foreign states not 1993 (58 FR 65018). Updated Parties to the Montreal Protocol or V. What Is the Ban on Trade of Methyl information on methyl bromide can be specific amendment packages to the Bromide With non-Parties to the found at the following sites of the World Protocol (e.g., the London Protocol? Wide Web: http://www.epa.gov/ozone/ Amendments). These bans on imports mbr/ and http://www.teap.org or by With today’s action EPA is proposing from and exports to non-Parties to contacting the Stratospheric Ozone to prohibit the import and export of amendment packages reflect an agreed Protection Hotline at 1–800–296–1996. methyl bromide (class I, Group VI strategy by the Parties to the Montreal controlled substance) from or to a Protocol to encourage ratification of IV. What Is the Regulatory Background foreign state that is not a Party to the each successive amendment package to Relating Specifically to Methyl 1992 Copenhagen Amendments to the the Protocol and to ensure that Bromide? Protocol. EPA is banning trade in controlled ozone-depleting substances The Parties to the Protocol established methyl bromide with non-Parties to the are not provided to countries that have a freeze in the level of methyl bromide Copenhagen Amendments to the not agreed to control measures. production and consumption for A list of Parties that have ratified the industrialized countries at the 1992 1 The formula for ‘‘consumption’’ is production + Montreal Protocol and that have ratified ¥ Meeting in Copenhagen. The Parties import export. Because ‘‘consumption’’ successive amendments to the Protocol encompasses ‘‘production and import’’, production agreed that each industrialized and import controls also have the effect of is published with today’s action in country’s level of methyl bromide controlling consumption. appendix C. For the purposes of today’s

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methyl bromide trade ban, companies adverse comment, we will publish a Clean Air Act Amendments of 1990 should refer to appendix C to subpart A timely withdrawal in the Federal (CAA). This information collection is of part 82 to identify nations that have Register informing the public that the conducted to meet U.S. obligations not yet ratified the Copenhagen rule will not take effect. We will address under Article 7, Reporting Amendments. Today’s action prohibits all public comments in a subsequent Requirements, of the Montreal Protocol imports of methyl bromide from, or final rule based on the proposed rule. on Substances that Deplete the Ozone exports of methyl bromide to, these We will not institute a second comment Layer (Protocol); and to carry out the nations that have not ratified the period on this action. Any persons requirements of Title VI of the CAA, Copenhagen Amendments. EPA will interested in commenting must do so at including sections 603 and 614. publish notices on a periodic basis to this time. The reporting requirements included update this list (appendix C) to reflect in this rule are intended to: when Parties ratify the Montreal VI. Statutory and Executive Order Reviews (1) Satisfy U.S. obligations under the Protocol and its amendments. For international treaty, The Montreal additional information on countries that A. Executive Order 12866: Regulatory Protocol on Substances that Deplete the have ratified the Protocol and its Planning and Review Ozone Layer (Protocol), to report data amendments, you may want to visit the Under Executive Order 12866 (58 FR under Article 7; website of the United Nations 51735, October 4, 1993), the Agency (2) Fulfill statutory obligations under Environmental Program (UNEP) Ozone must determine whether this regulatory Section 603(b) of Title VI of the Clean Secretariat at http://www.unep.org/ Air Act Amendments of 1990 (CAA) for ozone/ and look for the ‘‘Status of action is ‘‘significant’’ and therefore subject to OMB review and the reporting and monitoring; Ratification’’. (3) Provide information to report to Article 4, paragraph 8 of the Protocol requirements of the Executive Order. The Order defines a ‘‘significant’’ Congress on the production, use and recognizes that countries may actually consumption of class I controlled be complying with relevant control regulatory action as one that is likely to result in a rule that may: substances as statutorily required in measures without having officially section 603(d) of title VI of the CAA. ratified the Protocol or its relevant (1) Have an annual effect on the EPA informs respondents that they Amendments and permits the Parties to economy of $100 million or more, or may assert claims of business meet and determine that imports from adversely affect in a material way the confidentiality for any of the and exports to these countries are economy, a sector of the economy, information they submit. Information permitted. Therefore, EPA is reserving productivity, competition, jobs, the claimed confidential will be treated in Annex 2 of appendix C for any country environment, public health or safety, or accordance with the procedures for determined by the Parties to be State, local, or tribal governments or handling information claimed as complying with the relevant control communities; confidential under 40 CFR part 2, measures. (2) Create a serious inconsistency or EPA is publishing this rule without otherwise interfere with an action taken subpart B, and will be disclosed only to prior proposal because we view this as or planned by another agency; the extent, and by means of the a noncontroversial amendment and (3) Materially alter the budgetary procedures, set forth in that subpart. If anticipate no adverse comment. No impact of entitlements, grants, user fees, no claim of confidentiality is asserted adverse comment is expected due to the or loan programs or the rights and when the information is received by fact that the U.S. Senate gave its advice obligations of recipients thereof; or EPA, it may be made available to the and consent to ratification of the (4) Raise novel legal or policy issues public without further notice to the Montreal Amendment on October 9, arising out of legal mandates, the respondents (40 CFR 2.203). 2002, and this rule simply adopts one of President’s priorities, or the principles Burden means the total time, effort, or the provisions contained in that set forth in the Executive Order. financial resources expended by persons Amendment. The regulated producers, It has been determined by EPA and to generate, maintain, retain, or disclose importers and exporters attended both OMB that this rule is not a ‘‘significant or provide information to or for a meetings of the Parties to the Montreal regulatory action’’ within the meaning Federal agency. This includes the time Protocol the year that the trade ban of the Executive Order. needed to review instructions; develop, acquire, install, and utilize technology provisions were agreed through an B. Paperwork Reduction Act amendment. EPA did not hear from the and systems for the purposes of producers, importers and exporters The Office of Management and Budget collecting, validating, and verifying when this provision was up for (OMB) previously approved the information, processing and consideration by the Parties. Therefore, information collection requirements that maintaining information, and disclosing we do not anticipate any adverse can be used to implement today’s direct and providing information; adjust the comments on this action. Establishing final rule. The previously approved ICR existing ways to comply with any such a trade ban is now standard is assigned OMB control number 2060– previously applicable instructions and practice under the Protocol for 0170 (EPA ICR No. 1432.21). requirements; train personnel to be able controlled ozone-depleting substances. There is no additional paperwork to respond to a collection of However, in the ‘‘Proposed Rules’’ burden as a result of this rule. Current information; search data sources; section of today’s Federal Register, we record keeping will allow EPA to complete and review the collection of are publishing a separate document that implement the provisions of today’s information; and transmit or otherwise will serve as the proposal to implement action. disclose the information. the methyl bromide trade bans if The information collection previously An Agency may not conduct or adverse comments are filed. This rule approved will be used to implement the sponsor, and a person is not required to will be effective on October 23, 2003 trade ban in paragraph 1 qua under respond to a collection of information without further notice unless we receive Article 4 of the Montreal Protocol for unless it displays a currently valid OMB adverse comment by August 25, 2003 methyl bromide. The information control number. The OMB control (or, if a public hearing is requested, by collection under this rule is authorized numbers for EPA’s regulations are listed September 18, 2003). If EPA receives under sections 603(b) and 603(d) of the in 40 CFR part 9 and 48 CFR chapter 15.

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C. Regulatory Flexibility Act (RFA), as action will not have a significant the UMRA. EPA has also determined Amended by the Small Business economic impact on a substantial that this rule contains no regulatory Regulatory Enforcement Fairness Act of number of small entities. This final rule requirements that might significantly or 1996 (SBREFA), 5 U.S.C. 601 et. seq. will not impose any requirements on uniquely affect small governments; small entities. None of the entities EPA has determined that it is not therefore, EPA is not required to affected by this rule are considered necessary to prepare a regulatory develop a plan with regard to small small as defined by the NAICS Code flexibility analysis in connection with governments under section 203. Finally, listed above. this final rule. EPA has also determined because this proposal does not contain that this rule will not have a significant D. Unfunded Mandates Reform Act a significant intergovernmental economic impact on a substantial Title II of the Unfunded Mandates mandate, the Agency is not required to number of small entities. For purposes Reform Act of 1995 (UMRA), Public develop a process to obtain input from of assessing the impact of today’s rule Law 104–4, establishes requirements for elected state, local, and tribal officials on small entities, small entities are Federal agencies to assess the effects of under section 204. defined as: (1) A small business that is their regulatory actions on State, local E. Executive Order 13132: Federalism identified by the North American and tribal governments and the private Industry Classification System (NAICS) sector. Under section 202 of the UMRA, Executive Order 13132, entitled Code in the Table below; (2) a small EPA generally must prepare a written ‘‘Federalism’’ (64 FR 43255, August 10, governmental jurisdiction that is a statement, including a cost-benefit 1999), requires EPA to develop an government of a city, county, town, analysis, for proposed and final rules accountable process to ensure school district or special district with a with ‘‘Federal mandates’’ that may ‘‘meaningful and timely input by State population of less than 50,000; and (3) result in expenditures by State, local and local officials in the development of a small organization that is any not-for- and tribal governments, in the aggregate, regulatory policies that have federalism profit enterprise which is independently or by the private sector, of $100 million implications.’’ ‘‘Policies that have owned and operated and is not or more in any one year. If a written federalism implications’’ is defined in dominant in its field. statement is required under section 202, section 205 of the UMRA generally the Executive Order to include NAICS requires EPA to identify and consider a regulations that have ‘‘substantial direct small busi- reasonable number of regulatory effects on the States, on the relationship ness size between the national government and standard alternatives and adopt the least costly, NAICS SIC the States, or on the distribution of Category code code (in number most cost-effective or least burdensome of employ- alternative that achieves the objectives power and responsibilities among the ees or mil- various levels of government.’’ lions of of the rule, unless the Agency explains dollars) why this alternative is not selected or Under Section 6 of Executive Order the selection of this alternative is 13132, EPA may not issue a regulation 1. Chemical inconsistent with law. that has federalism implications, that and Al- Section 203 of the UMRA requires the imposes substantial direct compliance lied Prod- Agency to establish a plan for obtaining costs, and that is not required by statute, ucts, input from and informing, educating, unless the Federal government provides NEC ...... 424690 5169 100 and advising any small governments that may be significantly or uniquely the funds necessary to pay the direct Based on an analysis of the U.S. affected by the rule. Section 204 of the compliance costs incurred by State and exports of methyl bromide to specific UMRA requires the Agency to develop local governments, or EPA consults with countries, EPA has determined that only a process to allow elected state, local, State and local officials early in the 3 countries of the 50 to whom U.S. and tribal government officials to process of developing the regulation. producers of methyl bromide have provide input in the development of any EPA also may not issue a regulation that exported over the past three years proposal containing a significant has federalism implications and that would be impacted because they have Federal intergovernmental mandate. preempts State law, unless the Agency not yet ratified the Copenhagen EPA has determined that this rule consults with State and local officials Amendments to the Protocol. does not contain a Federal mandate that early in the process of developing the Specifically, the rule would ban the may result in expenditures of $100 regulation. export of 41 metric tonnes to Cyprus, million or more by State, local and tribal This rule does not have federalism Cote d’Ivoire, and the United Arab governments, in the aggregate, or by the implications. It will not have substantial Emriates compared to an average export private sector, in any one year. The direct effects on the States, on the from the entire U.S. of 5,236 metric provisions in today’s rule fulfill the tonnes. These countries represent less obligations of the United States under relationship between the national than 1% of all U.S. exports of methyl the international treaty, The Montreal government and the States, or on the bromide for the years 2000, 2001, and Protocol on Substances that Deplete the distribution of power and 2002. So, economic impacts for U.S. Ozone Layer, as well as those responsibilities among the various producers of methyl bromide would be requirements set forth by Congress in levels of government, as specified in extremely minimal. The rule will not section 614 of the Clean Air Act. Executive Order 13132. Today’s rule is constrain U.S. farmers’ ability to obtain Viewed as a whole, all of today’s expected to primarily affect importers methyl bromide from importers because amendments do not create a Federal and exporters of methyl bromide. EPA the major methyl bromide exporting mandate resulting in costs of $100 is not aware of any current uses of countries have already ratified the million or more in any one year for methyl bromide by public sector Copenhagen Amendments. State, local and tribal governments, in entities. Thus, the requirements of After considering the economic the aggregate, or for the private sector. section 6 of the Executive Order do not impacts of today’s final rule on small Thus, today’s rule is not subject to the apply to this rule. entities, EPA has concluded that this requirements of sections 202 and 205 of

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F. Executive Order 13175: Consultation 13211, ‘‘Actions Concerning Regulations Air pollution control, Chemicals, and Coordination With Indian Tribal That Significantly Affect Energy Supply, Exports, Imports, Methyl Bromide, Governments Distribution, or Use’’ (66 FR 28355 (May Ozone layer. Executive Order 13175, entitled 22, 2001)) because it is not a significant Dated: July 11, 2003. regulatory action under Executive Order ‘‘Consultation and Coordination with Linda J. Fisher, 12866. Indian Tribal Governments’’ (65 FR Acting Administrator. 67249, November 9, 2000), requires EPA I. The National Technology Transfer ■ For reasons set out in the preamble, to develop an accountable process to and Advancement Act ensure ‘‘meaningful and timely input by title 40 chapter I of the Code of Federal Section 12(d) of the National tribal officials in the development of Regulations is amended as follows: Technology Transfer and Advancement regulatory policies that have tribal Act of 1995 (‘‘NTTAA’’), Public Law PART 82—PROTECTION OF implications.’’ This final rule does not 104–113, Section 12(d) (15 U.S.C. 272 STRATOSPHERIC OZONE have tribal implications, as specified in note) directs EPA to use voluntary Executive Order 13175. Today’s final consensus standards in its regulatory ■ 1. The authority citation for subpart 82 rule does not significantly or uniquely activities unless to do so would be continues to read as follows: affect the communities of Indian tribal inconsistent with applicable law or governments. It does not impose any Authority: 42 U.S.C. 7414, 7601, 7671– otherwise impractical. Voluntary enforceable duties on communities of 7671q. consensus standards are technical Indian tribal governments. Thus, standards (e.g., materials specifications, Subpart A—Production and Executive Order 13175 does not apply test methods, sampling procedures, and Consumption Controls to this rule. business practices) that are developed or G. Applicability of Executive Order adopted by voluntary consensus ■ 2. Section 82.4 is amended by adding 13045: Protection of Children From standards bodies. The NTTAA directs paragraph (l)(5). Environmental Health & Safety Risks EPA to provide Congress, through OMB, § 82.4 Prohibitions for Class I Controlled Executive Order 13045: ‘‘Protection of explanations when the Agency decides Substances. Children from Environmental Health not to use available and applicable voluntary consensus standards. This * * * * * Risks and Safety Risks’’ (62 FR 19885, (1) * * * April 23, 1997) applies to any rule that: rulemaking does not involve technical (1) Is determined to be ‘‘economically standards. Therefore, EPA did not (5) Import or export any quantity of a significant’’ as defined under Executive consider the use of any voluntary controlled substance listed in Class I, Order 12866, and (2) concerns an consensus standards. Group VI, in Appendix A to this subpart, from or to any foreign state not environmental health or safety risk that VII. Congressional Review EPA has reason to believe may have a Party to the Copenhagen Amendments disproportionate effect on children. If A. Submission to Congress and the (as noted in Appendix C, Annex l, to the regulatory action meets both criteria, Comptroller General this subpart), unless that foreign state is the Agency must evaluate the The Congressional Review Act, 5 complying with the Copenhagen environmental health or safety effects of U.S.C. 801 et seq., as added by the Small Amendments (as noted in Appendix C, the planned rule on children, and Business Regulatory Enforcement Annex 2, to this subpart). explain why the planned regulation is Fairness Act of 1996, generally provides * * * * * preferable to other potentially effective that before a rule may take effect, the ■ 5. Appendix C to Subpart A is revised and reasonably feasible alternatives agency promulgating the rule must to read as follows: considered by the Agency. submit a rule report, which includes a EPA interprets E.O. 13045 as applying copy of the rule, to each House of the Appendix C to Subpart A of Part 82— only to those regulatory actions that are Congress and to the Comptroller General Parties to the Montreal Protocol, and based on health or safety risks, such that of the United States. EPA will submit a Nations Complying With, But Not the analysis required under section 5– report containing this rule and other Parties To, The Protocol 501 of the Order has the potential to required information to the U.S. Senate, Annex 1 to Appendix C of Subpart A— influence the regulation. This is not the U.S. House of Representatives, and Parties to the Montreal Protocol (as of such a rule, and therefore E.O. 13045 the Comptroller General of the United January 29, 2003) does not apply. This rule is not subject States prior to publication of the rule in ✓ to E.O. 13045 because it implements the Federal Register. A major rule The check mark [ ] means the specific trade measures adopted under cannot take effect until 60 days after it particular country ratified the Protocol the Montreal Protocol and required by is published in the Federal Register. or the specific Amendment package. section 614 of the CAA. This rule is not a ‘‘major rule’’ as Amendment packages are identified by defined by 5 U.S.C. 804(2). This rule the name of the city where the H. Executive Order 13211: Actions That will be effective October 23, 2003. amendment package was negotiated and Significantly Affect Energy Supply, agreed. Updated lists of Parties to the Distribution, or Use List of Subjects in 40 CFR Part 82 Protocol and the Amendments can be This rule is not a ‘‘significant energy Environmental protection, located at: http://www.unep.org/ozone/ action’’ as defined in Executive Order Administrative practice and procedure, ratif.shtml.

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Albania ...... ✓ ...... Algeria ...... ✓ ✓ ✓ ...... Angola ...... ✓ ...... Antigua and Barbuda ...... ✓✓✓✓ ......

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Argentina ...... ✓✓✓✓ ...... Armenia ...... ✓ ...... Australia ...... ✓✓✓✓ ...... Austria ...... ✓✓✓✓ ...... Azerbaijan ...... ✓✓✓ ✓ ...... Bahamas ...... ✓✓✓ ...... Bahrain ...... ✓✓✓✓ ...... Bangladesh ...... ✓✓✓✓ ...... Barbados ...... ✓✓✓✓✓ Belarus ...... ✓✓ ...... Belgium ...... ✓✓✓ ...... Belize ...... ✓✓✓ ...... Benin ...... ✓✓✓...... Bolivia ...... ✓✓✓✓ ...... Bosnia and Herzegovina ...... ✓ ...... Botswana ...... ✓✓✓ ...... Brazil ...... ✓✓✓ ...... Brunei Darussalam ...... ✓ ...... Bulgaria ...... ✓✓✓✓✓ Burkina Faso ...... ✓✓✓✓✓ Burundi ...... ✓✓✓✓✓ Cambodia ...... ✓ ...... Cameroon ...... ✓✓✓ ...... Canada ...... ✓✓✓✓✓ Cape Verde ...... ✓✓✓✓ ...... Central African Republic ...... ✓ ...... Chad ...... ✓✓✓✓ ...... Chile ...... ✓✓✓✓✓ China ...... ✓✓ ...... Colombia ...... ✓✓✓ ...... Comoros ...... ✓✓✓✓✓ Congo ...... ✓✓✓✓✓ Congo, Democratic Republic of ...... ✓✓✓ ...... Costa Rica ...... ✓✓✓ ...... Cote d’Ivoire ...... ✓✓ ...... Croatia ...... ✓✓✓✓✓ Cuba ...... ✓✓✓ ...... Cyprus ...... ✓✓ ...... Czech Republic ...... ✓✓✓✓✓ Denmark ...... ✓✓✓ ...... Djibouti ...... ✓✓✓✓ ...... Dominica ...... ✓✓ ...... Dominican Republic ...... ✓✓✓ ...... Ecuador ...... ✓✓✓ ...... Egypt ...... ✓✓✓✓ ...... El Salvador ...... ✓✓✓✓ ...... Estonia ...... ✓✓✓ ...... Ethiopia ...... ✓ ...... European Community ...... ✓✓✓✓✓ Federated States of Micronesia ...... ✓✓✓✓✓ Fiji ...... ✓✓✓ ...... Finland ...... ✓ ✓ ✓ ✓ ✓ France ...... ✓ ✓ ✓ ...... Gabon ...... ✓ ✓ ✓ ✓ ✓ Gambia ...... ✓ ✓ ...... Georgia ...... ✓ ✓ ✓ ✓ ...... Germany ...... ✓ ✓ ✓ ✓ ✓ Ghana ...... ✓ ✓ ✓ ...... Greece ...... ✓ ✓ ✓ ...... Grenada ...... ✓ ✓ ✓ ✓ ...... Guatemala ...... ✓ ✓ ✓ ✓ ✓ Guinea ...... ✓ ✓ ...... Guinea Bissau ...... ✓ ✓ ✓ ✓ ✓ Guyana ...... ✓ ✓ ✓ ✓ ...... Haiti ...... ✓ ✓ ✓ ✓ ...... Honduras ...... ✓ ✓ ✓ ...... Hungary ...... ✓ ✓ ✓ ✓ ✓ Iceland ...... ✓ ✓ ✓ ✓ ...... India ...... ✓ ✓ ...... Indonesia ...... ✓ ✓ ✓ ...... Iran, Islamic ...... ✓✓✓✓...... Ireland ...... ✓ ✓ ✓ ...... Israel ...... ✓ ✓ ✓ ......

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Italy ...... ✓ ✓ ✓ ✓ ...... Jamaica ...... ✓ ✓ ✓ ...... Japan ...... ✓ ✓ ✓ ✓ ✓ Jordan ...... ✓ ✓ ✓ ✓ ✓ Kazakhstan ...... ✓ ✓ ...... Kenya ...... ✓ ✓ ✓ ✓ ...... Kiribati ...... ✓ ...... Korea, Democratic People’s Republic of ...... ✓ ✓ ✓ ✓ ✓ Korea, Republic of ...... ✓ ✓ ✓ ✓ ...... Kuwait ...... ✓ ✓ ✓ ...... Kyrgyzstan ...... ✓ ...... Lao, People’s Democratic Republic ...... ✓ ...... Latvia ...... ✓ ✓ ✓ ✓ ...... Lebanon ...... ✓ ✓ ✓ ✓ ...... Lesotho ...... ✓ ...... Liberia ...... ✓ ✓ ✓ ...... Libyan Arab Jamahiriya ...... ✓ ✓ ...... Liechtenstein ...... ✓ ✓ ✓ ...... Lithuania ...... ✓ ✓ ✓ ...... Luxembourg ...... ✓ ✓ ✓ ✓ ✓ Madagascar ...... ✓ ✓ ✓ ✓ ✓ Malawi ...... ✓ ✓ ✓ ...... Malaysia ...... ✓ ✓ ✓ ✓ ✓ Maldives ...... ✓ ✓ ✓ ✓ ✓ Mali ...... ✓ ✓ ...... Malta ...... ✓ ✓ ...... Marshall Islands ...... ✓ ✓ ✓ ...... Mauritania ...... ✓ ...... Mauritius ...... ✓ ✓ ✓ ...... Mexico ...... ✓✓✓...... Moldova ...... ✓✓✓...... Monaco ...... ✓✓✓✓...... Mongolia ...... ✓✓✓✓...... Morocco ...... ✓✓✓...... Mozambique ...... ✓✓✓...... Myanmar ...... ✓✓...... Namibia ...... ✓✓...... Nauru ...... ✓ ...... Nepal ...... ✓✓...... Netherlands ...... ✓✓✓✓✓ New Zealand ...... ✓✓✓✓✓ Nicaragua ...... ✓✓✓...... Niger ...... ✓✓✓✓...... Nigeria ...... ✓✓✓✓...... Norway ...... ✓✓✓✓✓ Oman ...... ✓✓✓...... Pakistan ...... ✓✓✓...... Palau ...... ✓✓✓✓✓ Panama ...... ✓✓✓✓✓ Papua New Guinea ...... ✓✓...... Paraguay ...... ✓✓✓✓...... Peru ...... ✓✓✓...... Philippines ...... ✓✓✓...... Poland ...... ✓✓✓✓...... Portugal ...... ✓✓✓...... Qatar ...... ✓✓✓...... Romania ...... ✓✓✓✓...... Russian Federation ...... ✓✓...... Rwanda ...... ✓ ...... Saint Kitts & Nevis ...... ✓✓✓✓...... Saint Lucia ...... ✓✓✓✓✓ Saint Vincent and the Grenadines ...... ✓✓✓...... Samoa ...... ✓✓✓✓✓ Sao Tome and Principe ...... ✓✓✓✓✓ Saudi Arabia ...... ✓✓✓...... Senegal ...... ✓✓✓✓ ...... Seychelles ...... ✓✓✓✓✓ Sierra Leone ...... ✓✓✓✓✓ Singapore ...... ✓✓✓✓ ...... Slovakia ...... ✓✓✓✓✓ Slovenia ...... ✓✓✓✓✓ Solomon Island ...... ✓✓✓✓...... Somalia ...... ✓✓✓✓✓

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South Africa ...... ✓✓✓...... Spain ...... ✓✓✓✓✓ Sri Lanka ...... ✓✓✓✓✓ Sudan ...... ✓✓✓...... Suriname ...... ✓ ...... Swaziland ...... ✓ ...... Sweden ...... ✓✓✓✓✓ Switzerland ...... ✓✓✓✓✓ Syrian Arab Republic ...... ✓✓✓✓...... Tajikistan ...... ✓✓...... Tanzania, United Republic of ...... ✓✓✓✓✓ Thailand ...... ✓✓✓...... The Former Yugoslav Republic of Macedonia ...... ✓✓✓✓✓ Togo ...... ✓✓✓✓✓ Tonga ...... ✓ ...... Trinidad and Tobago ...... ✓✓✓✓...... Tunisia ...... ✓✓✓✓...... Turkey ...... ✓✓✓...... Turkmenistan ...... ✓✓...... Tuvalu ...... ✓✓✓✓...... Uganda ...... ✓✓✓✓...... Ukraine ...... ✓✓✓...... United Arab Emirates ...... ✓ ...... United Kingdom ...... ✓✓✓✓✓ United States of America ...... ✓✓✓...... Uruguay ...... ✓✓✓✓...... Uzbekistan ...... ✓✓✓...... Vanuatu ...... ✓✓✓...... Venezuela ...... ✓✓✓✓...... Viet Nam ...... ✓✓✓...... Yemen ...... ✓✓✓✓...... Yugoslavia ...... ✓ ...... Zambia ...... ✓✓......

Annex 2 to Appendix C of Subpart A— comment by July 17, 2003, we would operations, where Bekaert manufactured Nations Complying with, But Not publish a timely withdrawal in the copper plated steel cord for the Parties to, the Protocol [Reserved] Federal Register. We subsequently automobile tire industry. The rule received adverse comment on that direct would have become effective on August [FR Doc. 03–18856 Filed 7–24–03; 8:45 am] final rule. EPA is withdrawing the direct 1, 2003, without further notice, unless BILLING CODE 6560–50–P final rule on the delisting petition EPA received adverse comment by July submitted by Bekaert Steel, Inc, for the 17, 2003. The direct final rule 45-day Dyersburg, Tennessee facility. ENVIRONMENTAL PROTECTION public comment period explained that if DATES: The direct final rule published at AGENCY we received adverse comments, we 68 FR 32645, June 2, 2003, is withdrawn would withdraw the relevant direct 40 CFR Part 261 as of July 25, 2003. final action. FOR FURTHER INFORMATION CONTACT: For [FRL–7535–9] further information concerning this We received adverse comment and are withdrawal of direct final rule, please therefore withdrawing the direct final Hazardous Waste Management contact Ms. Jewell Grubbs, Chief, RCRA rule approving Bekaert’s delisting System; Identification and Listing of Enforcement and Compliance Branch, petition. Commentors argued that EPA Hazardous Waste; Withdrawal of Final (Mail Code 4WD–RCRA), U.S. could not issue a delisting petition Exclusion Environmental Protection Agency, based on another identical facility’s data, and that the regulations AGENCY: Environmental Protection Region 4, Sam Nunn Atlanta Federal specifically require the delisting to be Agency. Center, 61 Forsyth Street, SW., Atlanta, Georgia 30303, (404) 562–8568, or call, based on site specific information. ACTION: Withdrawal of direct final rule. toll free, (800) 241–1754, and leave a Therefore, for the petition to be SUMMARY: Because the United States message, with your name and phone complete Bekaert should submit at a Environmental Protection Agency (EPA) number, for Ms. Jewell Grubbs to return minimum, three additional data points received adverse comment, we are your call. Questions may also be e- from the Dyersburg, Tennessee facility withdrawing the direct final rule for mailed to Ms. Jewell Grubbs at to support the initial delisting petition. Identification and Listing of Hazardous [email protected]. The three additional data points must be Waste; Final Exclusion, delisting SUPPLEMENTARY INFORMATION: EPA collected in compliance with 40 CFR petition from Bekeart Steel, Dyersburg, published a Direct Final Rule on June 2, 260.22, and be sufficient to demonstrate Tennessee. We published the direct 2003, granting the delisting petition the temporal and spatial variability of final rule on June 2, 2003, (68 FR submitted by Bekaert Steel, Inc. the petitioned waste. EPA shall review 32645–32656). We stated in that direct (Bekaert) for an F006 waste water the data submitted and shall publish a final rule that if we received adverse treatment sludge from electroplating proposed rule to provide public notice

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on EPA’s proposed decision and collect Department of Health and Human is billed or when the lien is asserted. comments on the proposed decision. Services, Attention: CMS–1475–FC, PO After the regulations at § 411.54(c)(2) Box 8013, Baltimore, MD 21244–8013. and § 489.20(g) were published, but List of Subjects in 40 CFR Part 261 Please allow sufficient time for us to before the effective date, the American Environmental protection, Hazardous receive mailed comments on time in the Hospital Association (AHA), filed a waste, Recycling, Reporting and event of delivery delays. lawsuit on behalf of its member recordkeeping requirements. If you prefer, you may deliver (by hospitals to prevent us from Authority: Sec. 3001(f) RCRA, 42 U.S.C. hand or courier) your written comments implementing these sections. (See 6921(f). (one original and two copies) to one of American Hospital Association (AHA) v. Sullivan, 1990 WL 274639 (D.D.C. Dated: July 18, 2003. the following addresses: Room 445–G, Hubert H. Humphrey Building, 200 May 24, 1990).) During the litigation, Jewell Harper, Independence Avenue, SW., the parties stipulated to allow providers Acting Director, Waste Management Division. Washington, DC 20201, or Room C5–14– to bill liability insurers or assert or [FR Doc. 03–19005 Filed 7–24–03; 8:45 am] 03, 7500 Security Boulevard, Baltimore, maintain a lien against a beneficiary’s BILLING CODE 6560–50–P MD 21244–8013. insurance settlement. (Because access to the interior of the The court ultimately held that this HHH Building is not readily available to statutory provision (that prohibits DEPARTMENT OF HEALTH AND persons without Federal Government Medicare from making payment where HUMAN SERVICES identification, commenters are liability insurance that is expected to encouraged to leave their comments in pay promptly exists) permits a provider Centers for Medicare & Medicaid the CMS drop slots located in the main to seek payment from insurance or Services lobby of the building. A stamp-in clock assert or maintain a lien against the is available if you wish to retain proof beneficiary’s insurance settlement 42 CFR Parts 411 and 489 of filing by stamping in and retaining an during the ‘‘promptly’’ period. [CMS–1475–FC] extra copy of the comments being filed.) Therefore, we were unable to implement Comments mailed to the addresses § 411.54(c)(2) and the portion of RIN 0938–AM65 indicated as appropriate for hand or § 489.20(g) that states, ‘‘except when the courier delivery may be delayed and primary payer is a liability insurer and Medicare Program; Third Party Liability except as provided in paragraph (j) of Insurance Regulations could be considered late. For information on viewing public this section.’’ The court took no action AGENCY: Centers for Medicare & comments, see the beginning of the affecting existing special rules for Medicaid Services (CMS), HHS. SUPPLEMENTARY INFORMATION section. Oregon. The court also did not address billing a liability insurer or asserting or ACTION: Final rule with comment period. FOR FURTHER INFORMATION CONTACT: maintaining a lien after the expiration of Suzanne Ripley, (410) 786–0970. SUMMARY: This final rule with comment the ‘‘promptly’’ period. The AHA SUPPLEMENTARY INFORMATION: period removes § 411.54(c)(2) and a Inspection decision has not been appealed. portion of § 489.20(g) from our of Public Comments: Comments Therefore, to the extent that regulations. These regulations were held received timely will be available for § 411.54(c)(2) and a portion of by a court to be inconsistent with the public inspection as they are recorded § 489.20(g) are inconsistent with the Medicare Secondary Payer provisions and processed, generally beginning court’s decision, they are unenforceable. that are found in section 1862(b)(2)(a) of approximately 4 weeks after the In light of the AHA decision, we are the Social Security Act. Specifically, the publication of the document, at the continuing the policy which we court held that § 411.54(c)(2) and a headquarters of the Centers for Medicare stipulated during the AHA case with portion of § 489.20(g) are unenforceable & Medicaid Services, 7500 Security respect to all providers and suppliers to the extent that these regulations Boulevard, Baltimore, Maryland 21244, (including physicians); that is, we are require providers and suppliers to only Monday through Friday of each week allowing them to bill liability insurers bill Medicare and prohibits them from from 8:30 a.m. to 4 p.m. To schedule an or assert or maintain liens on a billing a liability insurer or asserting or appointment to view public comments, beneficiary’s liability insurance maintaining a lien against a phone (410) 786–7197. settlement rather than billing Medicare. beneficiary’s liability insurance I. Background The Commerce Clearing House, Inc. settlement during the ‘‘promptly’’ (CCH) published two policy memoranda Under section 1862(b)(2)(A) of the period. that addressed the issue of billing a Social Security Act (the Act), Medicare liability insurer or asserting or DATES: Effective date: This final rule payments may not be made for any item maintaining a lien against a with comment period is effective on or service for which payment has been beneficiary’s liability insurance August 25, 2003. made or can reasonably be expected to settlement, referring to the holding in Comment date: We will consider be made ‘‘promptly’’ (as determined in the AHA case. (Medicare & Medicaid comments if we receive them at the accordance with our regulations) under Guide (CCH) 45, 187 at 53, 508–53, 512 appropriate address, as provided in the a liability insurance policy. The (1997). The first policy memorandum ADDRESSES section, no later than 5 p.m. regulations at § 411.54(c)(2) and a entitled, ‘‘Provider and Supplier Billing on September 23, 2003. portion of § 489.20(g) require providers When Medicare is Secondary Payer to ADDRESSES: In commenting, please refer and suppliers (including physicians) to Liability Insurance—Information’’, is to file code CMS–1475–FC. Because of bill Medicare for Medicare covered dated August 21, 1995. The second staff and resource limitations, we cannot services. These regulations also prohibit policy memorandum entitled ‘‘ Charges accept comments by facsimile (FAX) those providers and suppliers from to Beneficiaries and Handling Improper transmission. Mail written comments billing a liability insurer or asserting or Collections By Providers and Suppliers (one original and two copies) to the maintaining a lien against the When Medicare is Secondary Payer to following address ONLY: Centers for beneficiary’s insurance settlement, Liability Insurance—Action’’, is dated Medicare & Medicaid Services, regardless of when the liability insurer March 12, 1996. These memoranda can

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be obtained by calling the contact Section 411.54 Limitation on Charges because the agency’s action to remove person listed in this final rule with When a Beneficiary Has Received a § 411.54(c)(2) and revise § 489.20(g) is comment period or by accessing the Liability Insurance Payment or Has a compelled by the AHA decision. CMS Web site: http://www.cms.hhs.gov. Claim Pending Against a Liability Therefore, we find good cause to To date, we have not enforced Insurer waive the notice of proposed § 411.54 (c)(2) or the portion of Section 411.54(c) states that a hospital rulemaking and to issue this final rule § 489.20(g) that is inconsistent with the must, upon request, furnish to the with comment period. court’s decision. Because § 411.54(c)(2) beneficiary or his or her representative V. Regulatory Impact was written without regard to the pre- an itemized bill of the hospital’s and post ‘‘promptly’’ period, we are charges. We have examined the impacts of this removing this section in its entirety, This requirement, which is subject to final rule with comment period as even though the AHA decision found it the PRA, is not being revised in this required by Executive Order 12866 unenforceable only during the regulation. The burden associated with (September 1993, Regulatory Planning ‘‘promptly’’ period. This final rule with this requirement is currently captured and Review), the Regulatory Flexibility comment period does not establish lien under OMB control number 0938–0565, Act (RFA) (September 16, 1980, Pub. L. rights that are not available to providers which is approved through November of 96–354), section 1102(b) of the Social and suppliers (including physicians) 2005. Security Act, the Unfunded Mandates under State law. The final rule with We have submitted a copy of this final Reform Act of 1995 (Pub. L. 104–4), and comment period does not alter the rule with comment period to OMB for Executive Order 13132. prohibition against double billing; that its review of the information collection Executive Order 12866 directs is, it does not allow a provider or requirements described above. These agencies to assess all costs and benefits supplier (including a physician) to bill requirements are not effective until they of available regulatory alternatives and, Medicare and simultaneously bill the have been approved by OMB. if regulation is necessary, to select liability insurer or assert or maintain a If you comment on these information regulatory approaches that maximize lien against the beneficiary’s liability collection and recordkeeping net benefits (including potential insurance settlement. requirements, please mail copies economic, environmental, public health directly to the following: Centers for and safety effects, distributive impacts, II. Provisions of the Final Rule Medicare and Medicaid Services, Office and equity). A regulatory impact The final rule with comment period of Strategic Operations and Regulatory analysis (RIA) must be prepared for removes § 411.54(c)(2) and revises Affairs, Division of Regulations major rules with economically paragraphs (c) and (d) of our Development and Issuances, Attn.: significant effects ($100 million or more regulations. It also removes the words Dawn Willinghan (Attn: CMS–1475–F), in any 1 year). We have determined that ‘‘except when the primary payer is a Room C5–14–03, 7500 Security the effect of this final rule on the liability insurer and except as provided Boulevard, Baltimore, MD 21244–1850. economy and the Medicare program is in paragraph (j) of this section’’ from Office of Information and Regulatory negligible. Therefore, this final rule is § 489.20(g). Affairs, Office of Management and not a major rule as defined in Title 5, Budget, Room 10235, New Executive United States Code, section 804(2) and III. Collection of Information Office Building, Washington, DC 20503, is not an economically significant rule Requirements Attn: Brenda Aguilar, CMS Desk Officer. under Executive Order 12866. Because these regulations have been Under the Paperwork Reduction Act IV. Waiver of Proposed Rulemaking unenforceable since the AHA decision, of 1995, we are required to provide 60- We ordinarily publish a notice of the impact of this regulation is limited day notice in the Federal Register and proposed rulemaking in the Federal to the expected elimination of potential solicit public comment when a Register and invite public comment on lawsuits that may be brought against collection of information requirement is the proposed rule. The notice of hospitals by beneficiaries seeking to submitted to the OMB for review and proposed rulemaking includes a require hospitals to bill Medicare for the approval. In order to fairly evaluate reference to the legal authority, under cost of their treatment. Since 1990 we whether OMB should approve an which the rule is proposed, and the have been aware of only several cases information collection, section terms and substances of the proposed where beneficiaries have brought 3506(c)(2)(A) of the Paperwork rule or a description of the subjects and litigation against hospitals seeking State Reduction Act of 1995 requires that we issues involved. This procedure can be court orders requiring the hospitals to solicit comment on the following issues: waived, however, if an agency finds bill Medicare. The beneficiaries have • The need for the information good cause that a notice-and-comment based their cases on the published collection and its usefulness in carrying procedure is impracticable, regulations. While we do not believe out the proper functions of our agency. unnecessary, or contrary to the public that many such suits have or will be • The accuracy of our estimate of the interest and incorporates a statement of filed, individual hospitals can spend information collection burden. the finding and its reasons in the rule substantial monies defending these • The quality, utility, and clarity of issued. The AHA decision holds that the types of lawsuits. Beneficiaries who the information to be collected. Medicare Secondary Payer provisions bring these suits, only to lose based on permit a provider to seek payment from the State court’s reading of CMS’ policy, • Recommendations to minimize the that insurance or assert or maintain a also may be responsible for some information collection burden on the lien against the beneficiary’s insurance attorneys’ costs and may be responsible affected public, including automated settlement during the ‘‘promptly’’ for fees for the hospital’s attorneys in collection techniques. period. To the extent that § 411.54(c)(2) some cases. To the extent that this Therefore, we are soliciting public and a portion of § 489.20(g) are regulation clarifies CMS policy by comment on each of these issues for the inconsistent with the court’s decision, eliminating unenforceable regulations, information collection requirements they are unenforceable. Good cause we believe that the number of lawsuits discussed below. exists to waive notice and comment filed may decline.

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The RFA requires agencies to analyze List of Subjects (ii) If the liability insurer does not pay options for regulatory relief of small within the 120-day period, the provider 42 CFR Part 411 entities. For purposes of the RFA, small or supplier: entities include small businesses, Kidney diseases, Medicare, Reporting (A) Must withdraw its claim with the nonprofit organizations, and and recordkeeping requirements. liability insurer and/or withdraw its lien against a potential liability settlement. government agencies. Most hospitals 42 CFR Part 485 and most other providers and suppliers (B) May only bill Medicare for are small entities, either by nonprofit Grant programs—health, Health Medicare covered services. (C) May bill the beneficiary only for status or by having revenues of $6 facilities, Medicaid, Medicare, Reporting and recordkeeping applicable Medicare deductible and co- million to $29 million in any 1 year. requirements. insurance amounts plus the amount of Individuals and States are not any charges that may be made to a considered to be small entities. Because ■ For the reasons set forth in the preamble, the Centers for Medicare & beneficiary under 413.35 of this chapter this regulation merely deletes these (when cost limits are applied to these unenforceable provisions from our Medicaid Services amends 42 CFR chapter IV as follows: services) or under 489.32 of this chapter regulations, we have determined and we (when services are partially covered). certify that this final rule will not have PART 411—EXCLUSIONS FROM a significant economic impact on a MEDICARE AND LIMITATIONS ON PART 489—PROVIDER AGREEMENTS substantial number of small entities. MEDICARE PAYMENT AND SUPPLIER APPROVAL Therefore, we are not preparing an ■ analysis for the RFA. ■ 1. The authority citation for part 411 1. The authority citation for part 489 continues to read as follows: continues to read as follows: In addition, section 1102(b) of the Act requires us to prepare a regulatory Authority: Secs. 1102 and 1871 of the Authority: Secs. 1102 and 1871 of the Social Security Act (42 U.S.C. 1302 and Social Security Act (42 U.S.C. 1302 and impact analysis if a rule or notice 1395hh). having the effect of a rule may have a 1395hh). ■ 2. Section 489.20 is amended by significant impact on the operations of ■ 2. Section 411.54 is amended by revising paragraph (g) to read as follows: a substantial number of small rural revising paragraphs (c) and (d) to read as hospitals. This analysis must conform to follows: § 489.20 Basic commitments. the provisions of section 604 of the * * * * * RFA. For purposes of section 1102(b) of § 411.54 Limitation on charges when a (g) To bill other primary payers before the Act, we define a small rural hospital beneficiary has received a liability Medicare. as a hospital that is located outside of insurance payment or has a claim pending against a liability insurer. * * * * * a Metropolitan Statistical Area and has * * * * * Authority: Section 1862(b)(2)(A) of the fewer than 100 beds. We have Social Security Act (42 U.S.C. 1395Y) (c) Itemized bill. A hospital must, determined that this final rule will not (Catalog of Federal Domestic Assistance have a significant effect on the upon request, furnish to the beneficiary or his or her representative an itemized Program No. 93.774, Medicare— operations of a substantial number of Supplementary Medical Insurance Program) bill of the hospital’s charges. small rural hospitals. Therefore, we are Dated: June 6, 2003. not preparing an analysis for section (d) Exception—(1) Prepaid health plans. If the services were furnished Thomas A. Scully, 1102(b) of the Act. through an organization that has a Administrator, Centers for Medicare & Section 202 of the Unfunded contact under section 1876 of the Act Medicaid Services. Mandates Reform Act of 1995 also (that is, an HMO or CMP), or through an Approved: June 30, 2003. requires that agencies assess anticipated organization that is paid under section Tommy G. Thompson, costs and benefits before issuing any 1833(a)(1)(A) of the Act (that is, through rule or notice having the effect of a rule an HCPP) the rules of § 417.528 of this Secretary. that may result in expenditures in any chapter apply. [FR Doc. 03–18509 Filed 7–17–03; 10:06 am] 1 year by State, local, or tribal (2) Special rules for Oregon. For the BILLING CODE 4120–01–P governments, in the aggregate, or by the State of Oregon, because of a court private sector, of $110 million. This decision, and in the absence of a final rule has no consequential effect on reversal on appeal or a statutory FEDERAL COMMUNICATIONS State, local, or tribal governments or on clarification overturning the decision, COMMISSION the private sector. there are the following special rules: 47 CFR Parts 25 and 101 Executive Order 13132 establishes (i) The provider or supplier may elect certain requirements that an agency to bill a liability insurer or place a lien [ET Docket No. 98–206; RM–9147; RM–9245; FCC 03–97] must meet when it promulgates a rule against the beneficiary’s liability settlement for Medicare covered or notice having the effect of a rule that services, rather than bill only Medicare Order To Deny Petitions for imposes substantial direct requirement for Medicare covered services, if the Reconsideration of MVDDS Technical costs on State and local governments, liability insurer pays within 120 days and Licensing Rules in the 12 GHz preempts State law, or otherwise has after the earlier of the following dates: Band Federalism implications. This final rule (A) The date the provider or supplier AGENCY: Federal Communications will not have a substantial effect on files a claim with the insurer or places State or local governments. Commission. a lien against a potential liability ACTION: Final rule. In accordance with the provisions of settlement. Executive Order 12866, this final rule (B) The date the services were SUMMARY: In this document the was reviewed by the Office of provided or, in the case of inpatient Commission affirms the technical rules Management and Budget. hospital services, the date of discharge. and procedures dealing with sharing of

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spectrum between Multichannel Video to persons with disabilities by developed through the usual notice and Distribution and Data Service (MVDDS) contacting Brian Millin at (202) 418– comment rule making process. and Direct Broadcast Satellite (DBS) and 7426 or TTY (202) 418–7365. File 3. The Commission affirms that the Non-geostationary (NGSO) fixed comments with the Office of the rules and procedures adopted in the satellite service (FSS) in the 12.2–12.7 Secretary, a copy of any comments on Second R&O do not violate other GHz band that the Commission adopted the information collection contained Commission rules or international radio in the Memorandum Opinion and Order herein should be submitted to Les regulations, and are consistent with the and Second Report and Order (Second Smith, Federal Communications regulatory history of DBS and FS R&O). The Commission also affirms the Commission, Room 1–A804, 445 12th allocations in the 12 GHz band because dismissal of the pending license Street, SW., Washington, DC 20554 or MVDDS, unlike previous FS operations, applications to provide terrestrial via the Internet to [email protected], is designed to coexist with DBS and service in the 12.2–12.7 GHz band. The and to Kim A. Johnson, OMB Desk because the adopted rules and Commission takes these actions in the Officer, Room 10236 NEOB, 725 17th procedures will prevent harmful course of addressing the petitions for Street, NW., Washington, DC 20503 or interference to DBS. reconsideration that were filed in via the Internet to Kim 4. The Commission affirms the self- response to the Second R&O in this [email protected]. mitigation responsibilities adopted in proceeding. The Commission amends or the Second R&O for new DBS receivers clarifies certain rule sections, but Summary of the Fourth Memorandum and finds that they are consistent with otherwise denies the petitions for Opinion and Order the primary status of DBS because, due reconsideration. The adoption of the to their modest, effective and 1. DBS Issues. In this Fourth amended rules and the disposition of infrequently required nature, they strike Memorandum Opinion and Order the petitions for reconsideration will an appropriate public interest balance (Fourth MO&O), the Commission facilitate initiation of MVDDS in the that will result in more efficient affirms that the four regional EPFD 12.2–12.7 GHz band. spectrum utilization and will facilitate limits and the 14 dBm EIRP limit DATES: Effective August 25, 2003, except compliance with the non-harmful § 25.146 which contains information adopted for MVDDS operation interference provisions of the statutes collection requirements that have not constitute objective standards that will while allowing initiation of a new been approved by OMB. The Federal prevent harmful interference to DBS as service. defined by § 2.1 of the Commission’s Communications Commission will 5. The Commission finds that publish a document in the Federal rules and will provide certainty that, adequate notice was given for the Register announcing the effective date. along with other reasonable procedures computer model used to derive the Written comments on the new and/or that were adopted, can be discerned and EPFD limits on MVDDS, and that the modified information collection(s) must relied upon by DBS operators. The various inputs for this model— be submitted by the public, Office of Commission declines to adopt higher including using a 10% increase in DBS Management and Budget (OMB) and EIRP and EPFD limits for rural areas unavailability as a starting point rather other interested parties on or before because the adopted standards are than as a hard limit, the ‘‘double September 23, 2003. sufficiently conservative to protect DBS averaging’’ of EPFDs, and the decision FOR FURTHER INFORMATION CONTACT: Gary in general application while preserving not to include ‘‘wing satellites’’—are Thayer, Office of Engineering and the flexibility for each MVDDS provider reasonable and supported by the Technology, (202) 418–2290, TTY (202) to make its own business decisions evidence of record particularly in light 418–2989, e-mail: [email protected]; about what type of transmission system of the deficiencies or impracticalities Jennifer Burton, Wireless best suits its needs. involved in other models that were Telecommunications Bureau, (202) 418– 2. The Commission affirms that the considered. 7581, TTY (202) 418–7581, e-mail rules and procedures adopted in the 6. The Commission affirms that the [email protected]. For additional Second R&O, (ET Docket No. 98–206), ‘‘safety valve’’ rule, as written, is information concerning the information 67 FR 43031, June 26, 2002 comply with sufficiently specific and is a useful tool collections contained in this document, the legislative history and provisions of to ensure that MVDDS operations fully contact Les Smith at (202) 418–0217, or the Rural Local Broadcast Signal Act protect DBS. Consistent with past via the Internet at [email protected]. (RLBSA) and the Satellite Home Viewer practice, the Commission notes that in SUPPLEMENTARY INFORMATION: This is a Protection Act (SHVIA) 1 that prohibit many cases it has provided summary of the Commission’s Fourth harmful interference to DBS. The opportunities for licensees to petition Memorandum Opinion and Order, ET Commission finds that, under the for adjustments to rules (outside the Docket No. 98–206, FCC 03–97, adopted powers granted by the Communications waiver process) without specifying in April 22, 2003, and released April 29, Act, it was proper to define interference exacting detail how such a filing should 2003. The full text of this Commission standards in terms of EPFD and EIRP be made. decision is available on the limits on MVDDS that it concluded 7. The Commission affirms its Commission’s Internet site at http:// would prevent harmful interference to decision to require that MVDDS conduct www.fcc.gov. It is available for DBS. The Commission further finds that a site survey as specified in inspection and copying during normal the adoption of these standards § 101.1440(b) of the Commission’s rules business hours in the FCC Reference complies with the Administrative and finds that, in conjunction with Information Center, Room CY–A257, Procedure Act (APA) because they were other adopted procedures, it has 445 12th Street, SW., Washington, DC provided sufficient detail and 20554. The complete text of this 1 Satellite Home Viewer Improvement Act Of 1999 specificity—similar in nature to the document also may be purchased from (SHVIA)/Rural Local Broadcast Signal Act (RLBSA). broad good-faith-based guidelines that the Commission’s copy contractor, See Public Law 106–113, 113 STAT. 1501, 1501A– have proven to be both workable and 544 TO 101A–545, Act of Nov. 29, 1999 (enacting Qualex International, 445 12th Street, S.1948, including the SHVIA and RLBSA. Titles I beneficial in other proceedings—that SW., Room, CY–B402, Washington, DC and II of the Intellectual Property and the Commission concludes will protect 20554. Alternative formats are available Communications Omnibus Reform Act of 1999). DBS customers in this proceeding.

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8. The Commission affirms the 45-day will reduce disputes to a minimum, and they provide reasonable interference DBS response time specified in this time frame will ensure that protection to NGSO FSS and strike a § 101.1440(d)(2) of the Commission’s licensees participate in conflict reasonable balance between affording rules, because it provides a reasonable resolution in good faith. the first in service provider with easier balance between the needs of DBS 13. The Commission affirms its and better use of the band while not licensees to ensure protection of their decision to dismiss the pending unduly precluding deployment by the customers before MVDDS begins applications of Broadwave Network, later-in provider. The Commission operation while affording MVDDS LLC (Northpoint), PDC Broadband affirms its finding that an alternate licensees the ability to initiate service Corporation (Pegasus), and Satellite NGSO FSS protection scheme proposed on a reasonably expeditious basis. Receivers, Ltd. (SRL) because the by one petitioner is unduly complex Further, the Commission concludes that original Ku-band Cut-Off Notice did not and provides no benefit over the DBS customers are protected once provide adequate notice for all entities adopted limits. MVDDS begins operation because the interested in filing applications for 19. The Commission amends MVDDS provider must correct licenses to provide terrestrial services in § 25.139(a) to reflect that the interference or cease operation if it the 12 GHz band. The Commission information NGSO FSS licensees are causes harmful interference to or further finds that its decision to dismiss required to provide MVDDS should be exceeds the permitted EPFD limits to a the pending applications is consistent construed narrowly and that only DBS customer of record. with the LOCAL TV Act because there information necessary to achieve the 9. The Commission amends is no evidence that Congress explicitly required 10 km separation under § 101.1440(e) of the rules to clarify the ordered the Commission to limit § 25.139(b) needs to be provided. responsibility of DBS licensees in regard terrestrial applications in this band to 20. The Commission clarifies the to future DBS receive antenna those already on file and validated by NGSO FSS low-angle PFD limit of installations. The Commission independent testing. § 25.208(o) for MVDDS protection. The 14. The Commission finds that the recognizes that § 101.1440(e) of the rules limit will be treated in a manner rules and procedures adopted in the adopted in the Second R&O appears to consistent with the rules for NGSO FSS Second R&O do not violate the require a DBS licensee to oversee all and BSS sharing where validation (i.e., Administrative Procedure Act (APA) future DBS receive antenna ‘‘hard limit’’) and operational (i.e., can because the decisions were fully installations, which they currently may be exceeded so long as they are not explained and rationally based upon all not do. It was not intent of the exceeded into an operational receiver) Commission to alter these arrangements. the information in the record and, EPFD limits were adopted. The low- Rather, the Commission only expects a therefore, are not arbitrary, capricious or angle PFD limit adopted by the DBS licensee to provide information contrary to law. Commission in the Second R&O for that they deem necessary so that other 15. The Commission finds that the MVDDS protection is therefore intended entities installing DBS receive antennas adoption of the Second R&O did not to be an operational limit which means may take into account the presence of violate the provisions of the that it does not need to be met in all MVDDS operations. Typically, this Government in the Sunshine Act cases so long as it is not exceeded into information could be conveyed with (Sunshine Act) because the item was not an operational MVDDS receiver. To installation guidelines for DBS adopted at an open meeting as defined clarify this intent, the Commission equipment. by the Act and that, therefore, the 10. The Commission amends Sunshine Act is not applicable. modifies § 25.146 to add paragraph (g) § 101.1440(d)(2) of the rules to allow 16. The Commission dismisses, as to specify that the required technical DBS providers to identify—instead of all repetitious, the petitions for showing shall demonstrate the NGSO DBS customers of record—only those reconsideration to the extent that they FSS system is capable of meeting the new DBS customers of record that they challenge the underlying decision in the limits specified in § 25.208(o). The believe would receive harmful First Report and Order, 66 FR 10601, Commission also amends § 25.208(o) to interference from the proposed MVDDS February 16, 2001, and Further Notice of require that the specified power flux transmitter during the 30-day period Proposed Rulemaking, 66 FR 7607, density shall not be exceeded into an specified in the rule. The Commission January 24, 2001, in this proceeding to operational MVDDS receiver. takes this action to address petitioners’ authorize MVDDS in the 12 GHz band, 21. The Commission clarifies the concern regarding the possible uses to and to the extent they challenge the MVDDS emission mask by amending which other parties could put such determination made in the the footnote immediately after the information. memorandum opinion and order definition of ‘‘B’’ in § 101.111(a)(2)(i) to 11. The Commission declines to adopt portion of the Second R&O that MVDDS add the proviso that the emission mask a methodology for measuring EPFD is authorized on a primary, rather than only applies at the 12.2–12.7 GHz band values in the field because any secondary, non-harmful interference edges and does not restrict MVDDS measurement techniques that might be basis as to DBS. channelization bandwidths within the described would artificially limit the 17. The Commission denies as not band. flexibility of the licensees to perform ripe, because it relies upon purely 22. Paperwork Reduction Act these measurements, and could speculative conjecture, a petition for Analysis: This Fourth Memorandum seemingly prohibit the use of a reconsideration that asserts that DBS Opinion and Order contains a new or technique that is satisfactory for this providers might at some time in the modified information collections. This purpose. future suffer a ‘‘regulatory taking’’ as the Commission, as part of its continuing 12. Concerning dispute resolution result of being required to increase effort to reduce paperwork burdens, procedures, the Commission clarifies satellite power to overcome MVDDS invites the general public and the Office that an MVDDS transmitter can be interference. of Management and Budget to comment turned on after expiration of the 90-day 18. NGSO FSS Issues. The on the information collections period specified in § 101.1440 of the Commission affirms the ¥135 dBW/m2/ contained in the Fourth Memorandum rules. The Commission believes that the 4kHz PFD limit at 3 km, and the 10 km Opinion and Order, as required by the adopted EPFD contour methodology separation rules for MVDDS because Paperwork Reduction Act of 1995,

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Public Law 104–13. Public and agency imposed direct responsibility on DBS and Budget (‘‘OMB’’). The Commission comments are due September 23, 2003. licensees for proper siting of future DBS will publish a document in the Federal receivers to take into account the Register announcing the effective date. Final Regulatory Flexibility presence of MVDDS. This action is taken pursuant to sections Certification 25. Licensees of NGSO FSS systems 4(i), 303(c), 303(f), 303(g) 303(r) and 23. The Regulatory Flexibility Act of are required to submit, ninety days prior 309(j) of the Communications Act of 1980, as amended (RFA),2 requires that to the initiation of service to the public, 1934, as amended, 47 U.S.C. 154(i), a regulatory flexibility analysis be a technical showing that demonstrates 303(c), 303(f), 303(g), 303(r) and 309(j). prepared for notice-and-comment rule that they are capable of meeting low- 30. It is further ordered that the making proceedings, unless the agency angle radiation limits specified in proceeding in ET Docket No. 98–206 is certifies that ‘‘the rule will not, if § 25.208(o) of the Commission’s rules terminated. promulgated, have a significant for the 12.2–12.7 GHz band. Finally, economic impact on a substantial licensees of NGSO FSS systems are List of Subjects 3 number of small entities.’’ The RFA required under the amended rules to 47 CFR Part 25 generally defines the term ‘‘small ensure that the PFD limit is not entity’’ as having the same meaning as exceeded into an operational MVDDS Communications common carriers, the terms ‘‘small business,’’ ‘‘small receiver. Taken together, these Communications equipment, Radio, organization,’’ and ‘‘small governmental requirements are less burdensome than Reporting and recordkeeping jurisdiction.’’ 4 In addition, the term those adopted in the Second R&O requirements, Satellites, Securities, and ‘‘small business’’ has the same meaning because they merely require a showing Telecommunications. as the term ‘‘small business concern’’ that the NGSO FSS system is capable of 47 CFR Part 101 under the Small Business Act.5 A meeting (instead of demonstrating the ‘‘small business concern’’ is one which: system has factually met) the specified Communications equipment, Radio, (1) Is independently owned and technical limits, and because the PFD and Reporting and recordkeeping operated; (2) is not dominant in its field limit need only be met into operational, requirements. of operation; and (3) satisfies any rather than all, MVDDS receivers. Federal Communications Commission. additional criteria established by the 26. These changes are deregulatory William F. Caton, Small Business Administration (SBA).6 because they lessen compliance Deputy Secretary. 24. Under the amended rules adopted requirements. Therefore, we certify that in the Fourth Memorandum Opinion the requirements of the Fourth Final Rules and Order, DBS licensees are required to Memorandum Opinion and Order will ■ provide the MVDDS licensee with a list not have a significant economic impact For the reasons discussed in the of only those new DBS customer on a substantial number of small preamble, the Federal Communications locations that have been installed in the entities. Commission amends 47 CFR parts 25 30-day period following the MVDDS 27. The Commission will send a copy and 101 as follows: notification and that the DBS licensee of the Fourth Memorandum Opinion believes may receive harmful PART 25—SATELLITE and Order, including a copy of this COMMUNICATIONS interference or where the prescribed Final Regulatory Flexibility equivalent power flux density (EPFD) Certification, in a report to Congress ■ 1. The authority citation for part 25 limits may be exceeded. This pursuant to the Congressional Review continues to read as follows: requirement is less burdensome than the Act.8 In addition, the Fourth rule adopted in the Second R&O 7 that Authority: 47 U.S.C. 701–744. Interprets or Memorandum Opinion and Order and applies Sections 4, 301, 302, 303, 307, 309 required disclosure of all DBS customer this final certification will be sent to the locations under similar circumstances. and 332 of the Communications Act, as Chief Counsel for Advocacy of the amended. 47 U.S.C. Sections 154, 301, 302, Furthermore, under the amended rules, SBA.9 303, 307, 309, and 332, unless otherwise DBS licensees are required to provide noted. merely the information deemed Ordering Clauses necessary by DBS licensees to enable 28. Pursuant to sections 4(i), 302, ■ 2. Section 25.139 is amended by others to take into account the presence 303(e) 303(f), 303(g), 303(r) and 405 of revising paragraph (a) to read as follows: of MVDDS transmitters. This the Communications Act of 1934, as § 25.139 NGSO FSS coordination and requirement is less burdensome than the amended, 47 U.S.C. 154(i), 302, 303(e), information sharing between MVDDS rule adopted in the Second R&O that 303(f), 303(g) and 405, the petitions for licensees in the 12.2 GHz to 12.7 GHz band. reconsideration filed by Pegasus 2 The RFA, see 5 U.S.C. 601—612, has been Broadband Corporation, MDS America, (a) NGSO FSS licensees shall amended by the Small Business Regulatory Inc., EchoStar Satellite Corporation and maintain a subscriber database in a Enforcement Fairness Act of 1996 (SBREFA), Public DIRECTV, Inc., SkyBridge L.L.C., SES format that can be readily shared with Law 104–121, Title II, 110 Stat. 857 (1996). MVDDS licensees for the purpose of 3 Americom, Inc., and Satellite 5 U.S.C. 605(b). determining compliance with the 4 5 U.S.C. 601(6). Broadcasting and Communications MVDDS transmitting antenna spacing 5 5 U.S.C. 601(3) (incorporating by reference the Association Are denied. definition of ‘‘small-business concern’’ in the Small 29. Parts 25 and 101 of the requirement relating to qualifying Business Act, 15 U.S.C. 632). Pursuant to 5 U.S.C. Commission’s rules are amended as existing NGSO FSS subscriber receivers 601(3), the statutory definition of a small business set forth in § 101.129 of this chapter. applies ‘‘unless an agency, after consultation with specified in the rule changes, effective the Office of Advocacy of the Small Business August 25, 2003, except § 25.146 which This information shall not be used for Administration and after opportunity for public contains information collection purposes other than set forth in comment, establishes one or more definitions of requirements which have not been § 101.129 of this chapter. Only sufficient such term which are appropriate to the activities of information to determine compliance the agency and publishes such definition(s) in the approved by the Office of Management Federal Register.’’ with § 101.129 of this chapter is 6 15 U.S.C. 632. 8 See 5 U.S.C. 801(a)(1)(A). required. 7 Second R&O, 17 FCC Rcd 9614 (2002). 9 See 5 U.S.C. 605(b). * * * * *

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■ 3. Section 25.146 is amended by assigned frequency by more than 50 as to avoid the MVDDS signal. These redesignating paragraphs (g) through (m) percent up to and including 250 percent later installed DBS receive antennas as paragraphs (h) through (n) and by of the authorized bandwidth: As shall have no further rights of complaint adding a new paragraph (g) to read as specified by the following equation but against the notified MVDDS follows. in no event less than 50 decibels: transmitting antenna(s). ¥ § 25.146 Licensing and operating A = 35 + 0.8(P 50) + 10 Log10 B. * * * * * authorization provisions for the non- (Attenuation greater than 80 decibels [FR Doc. 03–19090 Filed 7–24–03; 8:45 am] geostationary satellite orbit fixed-satellite is not required.) BILLING CODE 6712–01–P service (NGSO FSS) in the bands 10.7 GHz where: to 14.5 GHz. A = Attenuation (in decibels) below * * * * * the mean output power level. DEPARTMENT OF TRANSPORTATION (g) Operational power flux density, P = Percent removed from the carrier space-to-Earth direction, limits. Ninety frequency. Office of the Secretary days prior to the initiation of service to B = Authorized bandwidth in MHz. the public, the NGSO FSS system MVDDS operations in the 12.2–12.7 49 CFR Part 40 GHz band shall use 24 megahertz licensee shall submit a technical [Docket OST–2003–15676] showing for the NGSO FSS system in for the value of B in the emission the band 12.2–12.7 GHz. The technical mask equation set forth in this RIN 2105–AD14 information shall demonstrate that the section. MVDDS operations in the NGSO FSS system is capable of meeting 12.2–12.7 GHz bands shall use 24 Procedures for Transportation the limits as specified in § 25.208(o). megahertz for the value of B in the Workplace Drug and Alcohol Testing Licensees may not provide service to the emission mask equation set forth in Programs: Drug and Alcohol public if they fail to demonstrate this section. The emission mask Management Information System compliance with the PFD limits. limitation shall only apply at the Reporting 12.2–12.7 GHz band edges and does * * * * * not restrict MVDDS channelization AGENCY: Office of the Secretary, DOT. ■ 4. In § 25.208, paragraph (n), which bandwidth within the band. ACTION: Final rule. was added at 67 FR 43037, June 26, 2002, * * * * * is correctly designated as paragraph (o) SUMMARY: The Department of ■ and revised to read as follows: 8. Section 101.1440 is amended by Transportation’s Office of Drug and revising paragraph (d)(2) and (e) to read Alcohol Policy and Compliance § 25.208 Power flux density limits. as follows. (ODAPC) is revising the Management * * * * * § 101.1440 MVDDS protection of DBS. Information System (MIS) forms (o) In the band 12.2–12.7 GHz, for currently used within five U.S. NGSO FSS space stations, the specified * * * * * Department of Transportation (DOT) low-angle power flux-density at the (d) * * * agencies and the United States Coast (2) No later than forty-five days after Earth’s surface produced by emissions Guard (USCG) for submission of annual receipt of the MVDDS system from a space station shall not be drug and alcohol program data. The information in paragraph (d)(1) of this exceeded into an operational MVDDS DOT agencies are: Federal Motor Carrier section, the DBS licensee(s) shall receiver: Safety Administration (FMCSA); 2 provide the MVDDS licensee with a list (1) 158 dB(W/m ) in any 4 kHz band Federal Aviation Administration (FAA); of only those new DBS customer for angles of arrival between 0 and 2 Federal Transit Administration (FTA); locations that have been installed in the degrees above the horizontal plane; and Federal Railroad Administration (FRA); 2 30-day period following the MVDDS (2) 158 + 3.33(d ¥ 2) dB(W/m ) in any and Research and Special Programs notification and that the DBS licensee 4 kHz band for angles of arrival (d) (in Administration (RSPA). The Department believes may receive harmful degrees) between 2 and 5 degrees above is streamlining the annual reporting of interference or where the prescribed the horizontal plane. drug and alcohol program data to DOT EPFD limits may be exceeded. In Note to paragraph (o): agencies through use of a one-page MIS addition, the DBS licensee(s) could These limits relate to the power flux data collection form. The Department is indicate agreement with the MVDDS density, which would be obtained under standardizing across the DOT agencies licensee’s technical assessment, or assumed free-space propagation the information collected and reducing identify DBS customer locations that the conditions. the amount of data reported by MVDDS licensee failed to consider or transportation employers. If a DOT PART 101—FIXED MICROWAVE DBS customer locations where they agency requires supplemental data, the SERVICES believe the MVDDS licensee erred in its DOT agency will address those issues analysis and could exceed the ■ separately. 5. The authority citation for part 101 prescribed EPFD limit. continues to read as follows: * * * * * DATES: Effective July 25, 2003. Authority: 47 U.S.C. 154, 303. (e) Beginning thirty days after the DBS FOR FURTHER INFORMATION CONTACT: Jim L. Swart, Drug and Alcohol Policy ■ 6. Section 101.111 is amended by licensees are notified of a potential Advisor at 202–366–3784 (voice) 202– revising paragraph (a)(2)(i) to read as MVDDS site in paragraph (d)(1) of this 366–3897 (fax) or at: follows: section, the DBS licensees are responsible for providing information [email protected] (e-mail). § 101.111 Emission limitations. they deem necessary for those entities SUPPLEMENTARY INFORMATION: (a) * * * who install all future DBS receive Background and Purpose (2) * * * antennas on its system to take into (i) For operating frequencies below 15 account the presence of MVDDS Five DOT agencies and the USCG GHz, in any 4 KHz band, the center operations so that these DBS receive collect drug and alcohol program data frequency of which is removed from the antennas can be located in such a way from their regulated employers on an

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annual basis. Employers compile this associations. The final rule responds to of the required data and which establish data on MIS forms and each form is all those comments. The final rule also how companies are to determine the DOT-agency specific. In fact, twenty-one makes significant modifications to the number of employees upon which 2003 MIS data collection forms will be previous DOT agency MIS forms. random testing is based. replaced within the DOT agencies by Additional Background Issue Discussion of Significant Comments to the new single-format form. The the Docket Department believes that data collection In the NPRM we said, ‘‘On June 6, and entry will be greatly simplified for 2002, President Bush announced his Comment: The vast majority of transportation employers and the proposal to create a Cabinet-level commenters supported the Department’s Department if a single form is utilized homeland security department. Inside decision to streamline and simplify the throughout the transportation industries this new department, the President various MIS forms currently in use into and the DOT agencies. proposes to put several agencies, one form that will be used across all All drug and alcohol testing including the USCG. The President DOT agencies. Most expressed the belief conducted under DOT authority uses a urged Congress to pass legislation to that doing so will enhance accuracy of standard form for drug testing—Federal create the new Department of Homeland data being reported and the efficiency of Drug Testing Custody and Control Security. This process may take some those employers and service agents who Form—and a standard form for alcohol time. As a result, if you have USCG ties will be tasked with providing the testing—DOT Alcohol Testing Form. In and MIS interests, please submit your reports. A few commenters suggested essence, use of standard testing forms comments to this NPRM. We will that the new form will also be more serves to limit MIS reporting to a finite consider congressional and presidential easily processed through electronic number of data elements. Therefore, a action regarding the USCG and means (when those are up and running) core set of data elements will make up homeland security in the final rule.’’ than would the variety of past MIS the new MIS form which all The Department of Homeland iterations. transportation employers will complete, Security (DHS) has been established and Two commenters believed the new as appropriate, for their companies and the USCG’s being part of that cabinet form did not effectively address the the DOT agencies regulating them. agency is reality. However, the USCG needs of data collection. One of these This MIS form will simplify and intends to keep 49 CFR part 40 as an commenters expressed the belief that streamline data recording for incorporated part of its regulated much more information needed to be transportation employers and will industry testing rules—46 CFR part 16. collected and needed to be collected on require employers to enter less data. In Consequently, the USCG intends to a more frequent than once per year addition, because the form contains follow part 40 regulations applicable basis. The other commenter indicated fewer data elements and is on a one- (e.g., part 40 alcohol rules do not apply) that use of one specific DOT agency’s page format, it can be more easily to the marine industry until such time MIS forms should not be changed entered and processed via as resources permit them to create their because those forms best fit, the electronically-based systems. As an own rules, should that become commenter asserts, the needs of a added benefit, there is a single set of necessary in the future. The USCG particular industry which the MIS instructions for all transportation intends to rely upon 49 CFR part 40 for commenter represents (and because employers, regardless of DOT agency. testing procedures, guidance, and companies do not wish to change However, not every DOT agency interpretations. They also intend to established reporting programs which expects information for all potential remain a part of the MIS form, its are geared to provide the information data elements (e.g., RSPA does not process, and its related regulation required on current forms). conduct random alcohol testing), and section in part 40. Therefore, USCG- DOT Response: We agree with the some data elements may be collected regulated employers will continue to preponderance of commenters who through some means other than MIS report on this MIS form until further supported use of a single form across all (e.g., USCG receives alcohol data notice. modes of transportation. We agree with immediately following each post- ODAPC desires to support the USCG the majority of commenters who accident testing event). The form’s efforts to facilitate a seamless transition supported use of a trimmed-down instructions highlight some of those from DOT to DHS. In this light, we will version of the form. We agree with peculiar testing differences, and support the USCG’s use of 49 CFR part commenters who believed the new form companies not required to conduct or 40 in their regulated industry testing readily lends itself to electronic transfer report certain types of tests will simply program. [We view USCG’s use of part of items and data. In this light, it is leave those sections blank or may enter 40 as being similar to DOT’s required important to note that the new form zeros. For instance, because USCG incorporation of Department of Health represents an all important first step in wants no alcohol testing data on the and Human Services (HHS) laboratory the Department’s desire to have this MIS form, USCG-regulated employers regulations and guidance into part 40.] form on-line and to permit electronic will leave blank (or enter zeros in) In this light, the MIS regulation, form, transmission of data. The fact that one Section IV of the form. In addition, and instructions will continue to form will be used throughout the when no testing was done or no results reference the USCG as a DOT agency transportation industry makes the were received for particular data even though it became part of DHS on difficult task of designing the system elements, employers may leave those March 1, 2003. much simpler (to say nothing of our items blank or insert zeros. being able to obtain accurate data in The Department issued a notice of Effective Dates consistent fields across all DOT proposed rulemaking (NPRM) on The Department has decided that use agencies). September 30, 2002 (67 FR 61306), of the new MIS form will be required for The Department, after reaching a self- asking for comments and suggestions for employer MIS submissions in CY 2004 imposed deadline date for the changes to the MIS form and process. In documenting CY 2003 data. Therefore, publication of the NPRM, did not intend response to the NPRM, we received a employers must immediately adopt for the new form to be used to collect modest amount of comments from a provisions in the rule which will permit 2002 MIS information. To do so would dozen or so individuals, groups, and them to start, as appropriate, collection have meant a change in the way

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companies that had already collected method, expressed concern for However, those companies conducting 2002 data would have had to download companies that make random selections random draws more frequently than that information. In addition, many on a daily or weekly basis (as opposed monthly (e.g., daily, weekly, bi-weekly) companies had not been collecting vital to those selecting monthly or quarterly). will not be required to do the averaging data regarding refusals to test. Only one commenter expressed the more than once each month. And, for Therefore, use of the new form will be desire to use a number determined at example, companies selecting monthly, required in CY 2004 for collecting data the start of the year believing it simpler must calculate monthly; and companies representing CY 2003 testing. than factoring-in employee census selecting quarterly, must calculate During 2003, the Federal Transit fluctuations. This commenter believed quarterly. Administration (FTA) has agreed to that doing so would be better than Comment: One commenter believed field-test an electronic data collection having an employer determine the the requirement to capture ‘‘refusal to system using data elements of the new average number of employees at year’s test’’ data would be too complex for form. The FTA will select transit end—which was not an idea proposed employers. This commenter also stated systems for reporting MIS data as part by the Department in the NPRM. In that counting the number of cancelled of this field-test. FTA’s Volpe Center addition, this commenter indicated that tests would also add a burden to resources will coordinate the data employers represented by the employers, although the commenter collection. Through field-testing we can commenter did not know how many wished to have cancelled tests counted expose the Volpe-developed system safety-sensitive employees they actually toward satisfaction of the random software to a wide range of equipment employ throughout the year. testing rate. In short, this commenter and real-world usage. This field test will DOT Response: The Department did not favor changes to the old single- be accomplished with an eye toward believes the calculation of the employee industry-specific forms. full implementation across all DOT average will be the best way for DOT Response: The Department agencies as soon as possible. We believe employers to determine the number of believes that the testing panorama has the revised MIS form and its data format covered employees eligible for DOT changed considerably since the represent the best way to accomplish testing throughout the year. This inception of the DOT testing program. the Department’s ultimate goal of having process will more readily enable Other program forms, such as the Breath full automation for MIS submissions. employers to take into account Alcohol Testing Form and the Federal Early demonstrations of FTA’s system employment of seasonal workers; Drug Testing Custody and Control Form, have shown the design to be very user- periods of downsizing; and business have changed to reflect program friendly and uncomplicated for the start-ups and other increases in changes. We believe it is important that input required data. employee numbers. To fix the number the MIS form transform accordingly. At Comment: Several commenters of covered employees at the start of a one time the Department did not expressed the concern that employers year does not take those important envision that specific reasons for could believe the data requirements no factors into consideration. For some refusals would become important longer reflected on MIS forms are being employers, establishing the number at enough to track. However, a troubling de-emphasized by the DOT agencies. the start of the year may lead to their industry has risen whose primary goal Most of these commenters wished us to conducting much more random testing is to ‘‘beat the drug test.’’ Adulterated reiterate the importance of training than required, and for others, far too and substituted test results have information that will no longer be asked little random testing. increased considerably: when we speak for on the MIS form. Companies that do not know how of refusals, no longer are we simply DOT Response: As we stated in the many employees they employ and talking about employees failing to NPRM, the items for which we are no release from employment; do not know appear for tests. Times change and this longer asking are items that DOT how many eligible employees are in refusal delineation is now important for agencies can obtain in a variety of other each random selection pool; and do not the Department, the DOT agencies, and ways and in other venues and formats. know if eligible employees are placed employers to have. It is worth reiterating that the vast into and taken out of random selection As proposed in the NPRM, we have majority of items removed from the MIS pools have problems irrespective of how determined that refusals to test should form remain important. Employers the MIS form is completed. count as a test result—one that goes would be remiss, to say nothing about In any case, the Department believes toward satisfaction of a company’s being in violation of part 40 and DOT the best way for the random testing random testing rate. However, we do not agency regulations, if they chose not to pools to be kept current and for the believe that cancelled tests should count obtain, maintain, and furnish random testing rate to reflect the toward satisfaction of the rate. We information required by regulations. number of employees actually continue to support part 40’s contention Employers and service agents will be in performing safety sensitive duties is the that a cancelled test does not count clear violation of regulations and subject proposed averaging formula, and we toward compliance with DOT’s testing to sanctions if the DOT agency have adopted it in this regulation. It is requirements. requirements (e.g., for supervisory imperative that companies not wait Again, we believe a single MIS format training, for recordkeeping) are now until the end of the year to make this is the most appropriate approach. We ignored simply because the data calculation. Companies must place all believe that the many items we no generated by those requirements are no covered employees into the pool, know longer desire to capture on the form longer being recorded on the MIS form. how many are in the pool, and select more than offset the few new collection Comment: The bulk of commenters and test the appropriate percentages. requirements for refusals and supported how the Department While we believe that companies cancellations. proposed to count the number of conducting their random testing draws Comment: Two commenters believed covered employees (i.e., employees on a daily or weekly basis have the collection of data on separate sheets subject to testing because they perform computer systems sophisticated enough for each employee category would DOT safety-sensitive duties) using the to factor the average on a daily or present too much work for those averaging formula. Some commenters, weekly basis, the Department will not charged with completing the form. One while supporting the averaging formula require those companies to do so. commenter supported the one-page

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concept while recognizing that some you must submit OA-specific forms.’’ and reasonable suspicion, and perhaps companies may have to enter data on We have maintained that text for return-to-duty and follow-up testing. additional sheets. requirement intact. Therefore, if a Employers may have to explain her DOT Response: The Department gave company has drivers and pipeline testing data to FMCSA and FTA agency a lot of thought to this issue, but did not workers covered under FMCSA and representatives during an inspection or see a valid way around separate pages RSPA regulations respectively, and the audit. for different employee categories, at company is asked by FMCSA and by Additional Discussion of Rule least in the short term. Again, it is RSPA to submit MIS data, the company important to note that the Department should send an MIS report on its drivers The ODAPC and the DOT agencies views the use of this standard format, to the FMCSA and an MIS report on its have revised the MIS reporting one-page MIS form to be a logical first pipeline workers to RSPA. requirements to standardize the step in providing an automated system The second scenario the commenters collection of data for the agencies. The for future MIS data entry. A ‘‘must’’ for brought up, how to record MIS data for proposed rulemaking will impose a few the automated system will be the ability employees who perform cross-modal new requirements for data collection; of the employer to view entry options safety sensitive duties where an specifically, data related to information only for eligible categories of employee performs duties regulated by associated with the revised (65 FR 122, employees. For instance, an employer two or more DOT agencies (e.g., the June 23, 2000) Federal Drug Testing entering MIS data online for the FTA employee is a truck driver and a Custody and Control Form. However, will see only employee categories pipeline maintenance worker), is more the overall amount of required data is corresponding to the FTA rules. For an complex. For a number of years, DOT less than that required currently. The employer entering MIS data for the agency rules have stipulated that a Department has also placed the MIS FAA, only those FAA employee covered employee, subject to testing form and instructions for completing it categories will appear. under more than one DOT agency rule into part 40. The forms and instructions Interestingly, even if an employer has for the same employer, would be subject will be removed from all DOT agency multiple employee categories, the to random testing at the percentage rate regulations. amount of information collected equates established for the calendar year by the As stated earlier, many data elements to far less than if the employer used the DOT agency regulating more than 50 are no longer part of the MIS form. DOT old forms. There is no more actual work percent of the employee’s safety- agencies have decided that some involved in entering the employee sensitive duties. information items required on previous testing data even if using separate Further complicating the issue MIS forms are available in other formats sheets. In fact, our test runs of the form becomes the fact that some DOT or are items obtainable during (e.g., to obtain industry estimates on the agencies (i.e., RSPA and USCG) do not inspections, reviews and audits. The amount of time to fully complete the authorize random alcohol testing for following represents a listing for each form) with companies having multiple employees. So while an employee who DOT agency of most of the data employee categories were met with drives a truck and performs pipeline elements we are eliminating from positive feedback. From those estimates, maintenance for a company may carry reporting on the MIS form: we concluded that completion of the out more than 50% of his or her duties form—even with multiple sheets—will under RSPA rules and be in a RSPA FMCSA take between 45 minutes and 1.5 hours. random pool for drug testing, that 1. Number of persons denied a position For the old MIS forms, estimates employee must still be in an FMCSA following a positive drug test. showed that the ‘‘EZ’’ forms took pool for random alcohol testing. Or, the 2. Number of employees returned to duty between 30 minutes and 1 hour to company can choose to place all these following a refusal or positive drug test. complete; and the long forms took 2.5 employees in the same random drug 3. Supervisor initial drug training data. 4. Number of employees denied a position hours each (alcohol and drug) to testing pool if they test at or above the following an alcohol test of 0.04 or greater. complete. Again, we hold that the time highest random rates established by the 5. Number of employees returned to duty savings is substantial using the new DOT agency under whose jurisdiction after engaging in alcohol misuse. form rather than the multitude of old they fall. 6. Number of employees having both a forms. The Department is settling the issue positive drug test and an alcohol test of 0.04 Comment: Two commenters asked us by stating that for purposes of the MIS or greater when both tests were administered to clarify MIS requirements for form, employees covered under more at the same time. companies reporting MIS data to more than one DOT agency rule need only be 7. Actions taken for alcohol violations than one DOT agency—companies that, reported on the MIS form for the DOT other than alcohol testing. 8. Supervisor initial alcohol training data. for instance, may have full-time drivers agency under which they are randomly and full-time pipeline workers. In tested. FAA addition, they asked us to resolve For example, an employee conducting 1. Number of employees returned to duty confusion over how to record testing 51% of her safety-sensitive work under after having failed or refused a drug test. data for employees who perform duties FMCSA rules will be randomly tested 2. Actions taken for drug test refusals. that are regulated by more than one under those rules rather than under the 3. Number of persons denied employment for a positive drug test. DOT agency—for example, a company’s rules of another DOT agency under 4. Actions taken for positive drug results. employees drive trucks sometimes and which she performs the other 49% of 5. Employee initial drug training data. perform safety-sensitive railroad duties her DOT safety sensitive duties. For MIS 6. Supervisor initial drug training at other times. purposes, therefore, she will be counted data. DOT response: In its first paragraph, and her tests reported only under the 7. Supervisor recurrent drug training the NPRM’s MIS instruction form MIS submission to the FMCSA. If 49% data. provided guidance for companies of her duties are under FTA, for 8. Number of persons denied a regulated by more than one DOT instance, she will not appear on the position for an alcohol test 0.04 or agency. It said, ‘‘If you are preparing FTA MIS submission even though she greater. reports for more than one DOT would continue to be eligible for testing 9. Number of employees returned to Operating Administration (OA), then under the FTA rule for post accident duty after engaging in alcohol misuse.

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10. Actions taken for alcohol 3. Employee drug and alcohol training refusals were already in the random test regulation violations. data. numbers before the number of random 11. Number of employees having both 4. Supervisor drug and alcohol refusals had been added to the total. a positive drug test and an alcohol test training data. To clear up these discrepancies, the of 0.04 or greater when both tests were 5. Post-accident alcohol testing data. Department will count the number of administered at the same time. 6. Reasonable cause alcohol testing specimens collected as the number of 12. Number of other violations of the data. testing events resulting in negative, alcohol regulation. positive, and refusal to test results no RSPA 13. Actions taken for refusals to take matter the reason for the refusal. We an alcohol test. 1. Number of employees returned to have added all refusals to the number of 14. Supervisor alcohol training data. duty after engaging in alcohol misuse. tests because DOT agencies factor 2. Actions taken for alcohol test FTA refusals into determining whether or not results equal to or greater than 0.04. employers have met annual random 1. Number of persons denied a 3. Number of other alcohol rule testing rate requirements. We will not position for alcohol results 0.04 or violations and actions taken for them. add cancelled test results to the mix greater. 4. Actions taken for alcohol test because part 40.207(b) says, ‘‘... a 2. Number of accidents (noted as fatal refusals. cancelled test does not count toward and non-fatal) with alcohol results 0.04 5. Supervisor initial alcohol training compliance with DOT requirements or greater. data. (e.g., being applied toward the number 3. Number of fatalities from accidents 6. Number of persons denied a of tests needed to meet the employer’s resulting in alcohol results 0.04 or position following a positive drug test. minimum random testing rate).’’ greater. 7. Number of employees returned to Invalid test results are always 4. Number of employees returned to duty following a positive or refusal drug cancelled and will not be included. duty following an alcohol violation. test. However, those invalid results requiring 5. Number of employees having both 8. Actions taken for positive drug a subsequent directly observed a positive drug test and an alcohol test tests. collection will simply be considered of 0.04 or greater when both tests were 9. Actions taken for drug test refusals. another collection that will have a final administered at the same time. 10. Supervisor initial drug training result. In addition, blind testing will not 6. Actions taken for other alcohol rule data. be counted as a testing event. Counting violations. The Department will also count in this manner will enable many of the 7. Supervisor alcohol training data. collections differently than under the columns and rows of the MIS form to 8. Number of persons denied a old MIS regimen. Under the old MIS total up. position for positive drug test results. counting method a drug collection was In addition, annual random testing 9. Number of accidents (noted as fatal considered to be a testing event that rates will be determined using more and non-fatal) with positive drug test resulted in a negative, positive, or accurate counts because no cancelled results. cancellation. Refusals to test—no matter test will be mistakenly included and no 10. Number of fatalities from the reason for the refusal—were not refusals will be factored twice in the accidents resulting in positive drug tests considered appropriate for inclusion. total. DOT agency inspectors, reviewers, results. Despite the instruction to include no and auditors will count all refusals (e.g., 11. Number of persons returned to refusals, we know that many companies be they from an adulterated specimen duty following a positive drug test or included those that were the result of result or from ‘‘shy bladder’’ evaluation refusal result. adulterated or substituted results that with no medical condition) as satisfying 12. Employee drug education data. were verified by the MRO as refusals. a company’s meeting its random testing 13. Supervisor drug training data. Still other companies counted these rate. 14. Funding source information. types of refusals as well as refusal For cancellations requiring the FRA events for which no urine was sent to employee to take a second test, the test laboratories for testing (e.g., employee that is cancelled will not count. 1. Number of applicants/transfers failed to show-up at the collection site; However, the result of the subsequent denied employment/transfer for a employee left the collection site before recollection will count, provided that it positive drug test. urine had been collected). 2. Number of employees returned to too is not cancelled. These situations Similarly, in determining if duty after having failed or refused a include: invalid test cancellations companies were conducting random drug test. requiring the employee to go in for an testing at the appropriate established 3. Detailed breakouts of for-cause drug observed collection; split specimen annual rates, some DOT agencies did and alcohol testing. cancellations requiring the employee to 4. Non-qualifying accident drug not count refusals; some counted all go in for an observed collection; and testing data. refusals; and still others counted only cancellations requiring the employee to 5. Supervisor drug training data. refusals reported by the MRO (as a go in for another collection because a 6. Number of applicants/transfers result of adulteration or substitution) negative result is needed (for pre- denied employment/transfer for alcohol toward satisfaction of the random employment; return to duty; and follow- results 0.04 or greater. testing rate requirement. Furthermore, up testing). 7. Number of employees returned to in calculating the annual random rates In addition, if more than one set of duty after engaging in alcohol misuse. for testing, all DOT agency rules said the specimens is sent to the lab during one 8. Supervisor alcohol training data. following will be factored for the testing event, they will count together as positive rate: number of random one collection: These include: negative- USCG positives plus number of random dilute specimens when the employee 1. Number of persons denied a refusals divided by the number of goes in for a second collection per position for a positive drug test. random tests plus the number of employee policy [the result of the 2. Number of employees returned to random refusals. This means that some second test is the result of record]; and duty following a drug violation. cancelled random tests and random observed collections requiring both the

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original collection and the observed the number of employees against which rule will serve to reduce requirements collection be sent to the laboratory (e.g., the annual testing rate applies. and costs. The Department realizes that specimen out of temperature range) [the The Department is currently working some companies maintain their current result requiring the most stringent toward an electronic MIS form capable MIS data items on basic computer consequence will ultimately be the of Internet submission. Each form spreadsheets. However, we are requiring result of record]. would be DOT agency specific and only a minimal number of additions to The Department is also clarifying and would not have extraneous items the format while removing a larger making uniform among DOT agencies showing (for example, the USCG- number of items. how employers determine the total specific form would not include an This final rule does not have number of employees against which the alcohol testing section; the RSPA- sufficient Federalism impact to warrant annual random rate applies. Some DOT specific form would not show an a Federalism assessment under agencies have told employers to count alcohol random testing category). Executive Order 13132. With respect to the number of covered employees Additionally, the system would bring to the Regulatory Flexibility Act, the working at the start of the calendar year; the attention of the person completing certifies that, if adopted, this rule would some DOT agencies have directed the form any items that did not not have a significant economic impact employers to count the total number of accurately compute mathematically. on a substantial number of small covered employees that worked for the Finally, employee categories listed entities, so a Regulatory Flexibility company within the year; and still would only be those for the specific analysis has not been prepared. Even others have advised employers to count DOT agency. though this rule might affect a large the average number of employees on a The Department recognizes that number of small entities, we do not monthly or quarterly basis. Consortia/Third Party Administrators expect the new MIS requirements to This rule directs employers to add the (C/TPAs) are responsible for have a significant economic impact on total number of covered employees administering a large number of anyone. transportation industry drug and eligible for random testing in each The rule also contains information alcohol testing programs. For this random testing selection period for the collection requirements. As required by reason, the MIS form will contain a year and divide that total by the number the Paperwork Reduction Act of 1995, space for the employer to note the name of random testing periods. For instance, (the PRA, 44 U.S.C. 3507(d)), the of the C/TPA the company uses, if any. a company conducting random testing Department is submitting these Finally, we have made some of the quarterly will add the total of safety- requirements to the Office of minor, but useful changes sensitive employees they had in the Information and Regulatory Affairs of recommended by several commenters random pool when each selection was the Office of Management and Budget and DOT agency representatives. These made; then divide this number by 4 to include typographical, counting, and (OMB) for review, as required under the obtain the yearly average number of example errors; and the option to use PRA. For informational purposes, the covered employees. [As an example, if zeros instead of leaving testing data Department will place its entire PRA Company A had 1500 employees in the items blank. package for the MIS form on the Internet first quarter random pool, 2250 in the Finally, the Department wants when that submission is approved. second quarter, 2750 in the third reasonable suspicion and reasonable As noted elsewhere in this preamble, quarter; and 1500 in the fourth quarter; cause testing to be counted together on the proposal would amend part 40 to 1500 + 2250 + 2750 + 1500 = 8000; 8000 the MIS form with no differentiation include a new format and a new set of / 4 = 2000; the total number of between the two. The issue of how to instructions for the MIS form. This employees subject to testing for the year count these two types of tests has been single form would be used across DOT would be reported as ‘‘2000’’. (Note: complicated by the fact that neither the agencies rather than the multiple forms This number, ‘‘2000’’, would also be the CCF nor the BATF distinguish between with multiple instructions currently in number on which an employer would the two even though the DOT agencies use. The form’s data elements would be base the random testing rate.)] do. For instance, FMCSA and FTA reduced significantly as well. As stated earlier, no company will be authorize reasonable suspicion drug Completing an MIS report requires a required to factor the average number of testing; FAA, RSPA, and USCG company to collect and compile drug employees more often than once per authorize reasonable cause drug testing; and alcohol testing data generated month: No more than 12 times per year. and FRA authorizes both. FMCSA, FAA, throughout the year by that company’s Companies (and their contractors, as FTA, and RSPA authorize reasonable drug and alcohol testing program and applicable) will continue to submit the suspicion alcohol testing; and FRA placing some of that data onto the form. MIS reports in accordance with authorizes both reasonable suspicion Certainly, the more complex a requirements (e.g., dates for submission; and reasonable cause alcohol testing. company’s testing program set-up, the selection of companies required to Sufficient documentation should exist more complex assembling needed data submit, etc.) that will continue to be in with employers for DOT agency becomes. Companies having each DOT agency regulation. Likewise, representatives to tell the difference decentralized program locations may DOT agency regulations will continue to between the two during inspections and have to draw information from a variety address the manner (e.g., mail; CD; audits. of localized programs. Companies with electronic transmission) and locations a number of subsidiaries may have large for submitting the forms. Responding to Regulatory Analyses and Notices amounts of data to compile and a commenter, we have added a reference This rule is not a significant rule for authenticate. In addition, companies to this in rule text. purposes of Executive Order 12866 or failing to regularly update and bring It is important to note that MIS the DOT’s regulatory policies and together their testing data may find alcohol testing data reflects all these procedures. Nor is the rule an themselves in positions of having to do proposals made for MIS drug testing economically significant regulation. It is so in a hurried manner at the end of the data. Refusals will count as testing a reworking of existing requirements; it year. Also, companies lacking events; cancelled tests will not; and imposes no new mandates; and it will computerization of data capabilities random pool averages will determine not create any new costs. In fact, the may have to rely on manual methods.

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Because MIS reporting has been part These represent important steps in considered these Executive Orders in of the DOT testing equation for several reducing the amount of time needed to the context of this rule, and we believe years, many companies have become compile data for MIS purposes—no that the rule does not directly affect experienced in and have applied sound matter how a company chooses to matters that the Executive Orders cover. business sense to putting the report manage their drug and alcohol testing We have prepared this rulemaking in together. Many companies update their data. The Department believes the accordance with the Presidential drug and alcohol program data on a simplicity of the form will result in Directive on Plain Language. regular, throughout-the-year basis rather another significant time saving action than doing so at the last minute. Most for employers. List of Subjects in 49 CFR Part 40 companies require their localized DOT agency MIS PRA submissions for Administrative practice and programs, subsidiaries, and contractors the old MIS forms reveal that nearly procedure, Alcohol abuse, Alcohol to regularly provide program updates 6,800 companies submit 13,541 MIS testing, Drug testing, Laboratories, rather than authenticate data at the end forms annually to DOT; and the time it Reporting and recordkeeping of the year. Many companies utilize takes to fill out the forms is 18,406 requirements, Safety, Transportation. computer databases rather than ‘‘pen- hours. Estimates for the new MIS form and-ink’’ data entries. Still other indicate that these companies will send Issued this 9th day of July, 2003, at Washington, DC. companies prefer to have data entry 7,186 MIS reports to DOT and the time provided as part of their C/TPA’s to complete them will be 10,779 hours. Norman Y. Mineta, contracted services. Therefore, we foresee over 7,500 hours Secretary of Transportation. Whatever the case, the Department saved per year in filling out the new PART 40—PROCEDURES FOR does not require any particular MIS form as opposed to completing the TRANSPORTATION WORKPLACE management approach to compiling old multiple MIS forms. [Based upon DRUG AND ALCOHOL TESTING program data: We simply require that industry and DOT agency estimates, we the data be accurate; that it be in a have concluded that the new MIS report PROGRAMS system that has controlled access; that it will take between 45 minutes and 1.5 ■ For reasons set forth in the preamble, be readily auditable; and that specific hours to complete. We have chosen, for the Department of Transportation data be included in MIS reports when this paragraph and for our OMB PRA amends Part 40 of Title 49, Code of they are required or requested by DOT submission, to use the highest industry Federal Regulations, as follows: agencies. The Department would prefer and DOT agency estimate —1.5 hours. ■ that companies update their drug and We estimate that slightly over 300 1. The authority citation for 49 CFR alcohol program data throughout the companies report to more than one DOT Part 40 continues to read as follows: year; require their divisions, agency.] Authority: 49 U.S.C. 102, 301, 322, 5331, subsidiaries, and contractors to report According to OMB’s regulations 20140, 31306, and 45101 et seq. their data regularly to them; and implementing the PRA (5 CFR ■ 2. Add a new § 40.26 to read as follows: computerize their data-entry 1320.8(b)(2)(vi)), an agency may not methodologies. However, we do not conduct or sponsor, and a person need § 40.26 What form must an employer use mandate these actions even though we not respond to a collection of to report Management Information System think they are all preferable to end-of- information unless it displays a (MIS) data to a DOT agency? the-year company scrambles to currently valid OMB control number. As an employer, when you are complete MIS forms. The OMB control number for this required to report MIS data to a DOT The Department believes that information will be published in the agency, you must use the form and requiring less data entry on MIS forms Federal Register after OMB approves it. instructions at appendix H to part 40. and having only one form throughout A number of other Executive Orders You must submit the MIS report in the transportation industries will make can affect rulemakings. These include accordance with rule requirements (e.g., data gathering and compilation simpler. Executive Orders 13084 (Consultation dates for submission; selection of For instance, no longer will employers and Coordination with Indian Tribal companies required to submit, and need to provide employee and Governments), 12988 (Civil Justice method of reporting) established by the supervisor training data, violation Reform), 12875 (Enhancing the DOT agency regulating your operation. consequence data, and non-Part 40 Intergovernmental Partnership), 12630 ■ 3. Add a new Appendix H to read as violation data (among other entries). (Governmental Actions and Interference follows: Furthermore, the single-format MIS with Constitutionally Protected Property form replaces the ‘‘EZ’’ drug form, the Rights), 12898 (Federal Actions to Appendix H to Part 40—DOT Drug and ‘‘EZ’’ alcohol form, the long drug form, Address Environmental Justice in Alcohol Testing Management and the long alcohol form, the formats Minority Populations and Low-Income Information System (MIS) Data of which were different for each DOT Populations), 13045 (Protection of Collection Form agency. Therefore, employers subject to Children from Environmental Health The following form and instructions must more than one DOT agency rule will not Risks and Safety Risks), and 12889 be used when an employer is required to have to navigate their ways through (Implementation of North American report MIS data to a DOT agency. multiple MIS formats. Free Trade Agreement). We have BILLING CODE 4910–62–P

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[FR Doc. 03–18378 Filed 7–24–03; 8:45 am] Federal glazing performance II. Summary of the Notice of Proposed BILLING CODE 4910–62–C requirements for most purposes. Rulemaking (NPRM) In addition, this final rule addresses A. Benefits of Incorporating ANSI/SAE several issues not covered by the 1996 Z26.1–1996 1. Improved Safety DEPARTMENT OF TRANSPORTATION American National Standards Institute 2. Harmonization with Foreign Glazing (ANSI) standard. For example, this Standards National Highway Traffic Safety action limits the size of the shade band 3. Streamlining and Clarification Administration that glazing manufacturers place at the B. Proposed Revisions to FMVSS No. 205 top of windshields and clarifies the III. Summary of Comments to the NPRM 49 CFR Part 571 meaning of the phrase ‘‘the most A. Meaning of the ‘‘Most Difficult Part or difficult part or pattern’’ for the fracture Pattern’’ for the Fracture Test [Docket No. NHTSA–03–15712] test in the 1996 ANSI standard. This B. Xenon Light Source for the Weathering Test action also makes minor conforming C. Limiting the Width of the Shade Band RIN 2127–AH08 amendments to the standard on low D. Certification and Verification of DOT speed vehicles. Numbers Federal Motor Vehicle Safety DATES: Effective date: This final rule is E. Other Issues Standards; Glazing Materials; Low effective September 23, 2003. The 1. Applicability of Proposal to MPVs Speed Vehicles incorporation by reference of certain 2. Edge Treatment for Automotive Safety publications listed in this rule is Glass AGENCY: National Highway Traffic 3. Labeling approved by the Director of the Federal 4. Additional Tests Safety Administration (NHTSA), Register as of September 23, 2003. If you Department of Transportation. IV. Agency Discussion of Issues and wish to submit a petition for Response to Comments ACTION: Final rule. reconsideration of this rule, your A. Summary of Changes from the NPRM petition must be received by September B. Meaning of the ‘‘Most Difficult Part or SUMMARY: This rule updates the Federal 8, 2003. Pattern’’ for the Fracture Test C. Xenon Light Source for the Weathering motor vehicle safety standard on glazing ADDRESSES: Petitions for reconsideration materials so that it incorporates by Test should refer to the docket number and D. Limiting the Width of the Shade Band reference the 1996 version of the be submitted to: Administrator, Room industry standard on motor vehicle E. Certification and Verification of DOT 5220, National Highway Traffic Safety Numbers glazing. Currently, the Federal standard Administration, 400 Seventh Street, F. Other Issues references the 1977 version of the SW., Washington, DC 20590. 1. Applicability of Standard to MPVs industry standard and the 1980 2. Edge Treatment for Automotive Safety FOR FURTHER INFORMATION CONTACT: For supplement to that standard. Glass technical and policy issues: Mr. John 3. Labeling Today’s final rule also simplifies Lee, Office of Crashworthiness understanding the Federal glazing 4. Additional Tests Standards, NVS–112, National Highway V. Effective Date performance requirements. The Traffic Safety Administration, 400 VI. Plain Language amendments of the past 20 years have Seventh Street, SW., Washington, DC VII. Rulemaking Analyses resulted in a patchwork of requirements 20590. Telephone: (202) 366–4924. Fax: VIII. Regulatory Text in the Federal standard that must be (202) 366–4329. I. Background read alongside the industry standard in For legal issues: Nancy Bell, Attorney order to gain a comprehensive Advisor, Office of the Chief Counsel, By letter dated August 12, 1997, the understanding of the overall NCC–112, National Highway Traffic American Automobile Manufacturers requirements of the Federal standard. Safety Administration, 400 Seventh Association (AAMA) (which has since The incorporation by reference of the Street, SW., Washington, DC 20590. evolved into the Alliance of Automobile 1996 version of the industry standard Telephone: (202) 366–2992. Fax: (202) Manufacturers) petitioned us to amend permits the deletion of most of the 366–3820. Federal Motor Vehicle Safety Standard existing text of the Federal standard. (FMVSS) No. 205, ‘‘Glazing Materials’’ SUPPLEMENTARY INFORMATION: This change to the Federal standard (49 CFR 571.205), to incorporate the means that the industry standard will Table of Contents most recent update of the American henceforth provide a single source of I. Background National Standards Institute (ANSI)

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standard: American National Standard A. Benefits of Incorporating ANSI/SAE Transfer Advancement Act), which for Safety Glazing Materials for Glazing Z26.1–1996 requires use of voluntary consensus Motor Vehicles and Motor Vehicle NHTSA tentatively concluded that standards unless such use is infeasible Equipment Operating on Land incorporating ANSI/SAE Z26.1–1996 or otherwise inconsistent with law. • Canadian Motor Vehicle Safety Highways—ANSI/SAE Z26.1–1996 would be beneficial for (1) improved Standard No. 205, ‘‘Glazing Materials,’’ (‘‘ANSI/SAE Z26.1–1996’’). AAMA safety, (2) harmonization with foreign already incorporates ANSI/SAE Z26.1– stated in its petition that incorporating glazing standards, and (3) streamlining 1996. Therefore, we would achieve ANSI/SAE Z26.1–1996 would improve and clarification. safety, achieve international closer harmonization of our Standard harmonization, streamline and clarify 1. Improved Safety No. 205 and Canadian Standard No. 205. FMVSS No. 205, and eliminate wire ANSI Z26.1 requires a fracture test glass as an approved safety glazing (Test No. 7) of a 305 mm (12 in.) square, 3. Streamlining and Clarification option. On January 2, 1998, we granted flat sample of glazing. In contrast, ANSI/ the AAMA’s petition. The proposed incorporation by SAE Z26.1–1996 requires the use of a reference of ANSI/SAE Z26.1–1996 FMVSS No. 205 specifies performance full-size production piece of vehicle would permit the deletion of most of the requirements for the types of glazing window glass. Paragraph 5.7.2 of ANSI/ existing text of FMVSS No. 205. The that may be installed in motor vehicles. SAE Z26.1–1996 states that the amendments of the past 20 years have It also specifies the vehicle locations in specimens of glazing selected for testing resulted in a patchwork of requirements which the various types of glazing may ‘‘’shall be of the most difficult part or that must be read in conjunction with be installed. The standard incorporates pattern designation within the model the ANSI Z26.1 in order to gain a by reference ANSI Standard Z26.1, number.’’ NHTSA stated that it comprehensive understanding of the ‘‘Safety Code for Safety Glazing interpreted this to mean the portion of overall requirements of FMVSS No. 205. Materials for Glazing Motor Vehicles glazing which we consider most likely Adoption of the proposal would Operating on Land Highways,’’ as to fail the test. simplify FMVSS No. 205, consistent 1 amended through 1980 (‘‘ANS Z26.1’’). ANSI/SAE Z26.1–1996 also improves with our regulatory reform efforts. The requirements in ANS Z26.1 are safety by eliminating wire glass as an specified in terms of performance tests approved glazing material. Wire glass is B. Proposed Revisions to FMVSS No. that the various types or ‘‘items’’ of flat-rolled glass reinforced with wire 205 glazing must pass. There are 21 ‘‘items’’ mesh. Wire glass is known to shatter NHTSA discussed some proposed of glazing for which requirements are more readily at lower impact speeds and revisions to FMVSS No. 205, as currently specified in FMVSS No. 205. is more lacerative than laminated glass. described below. The Society of Automotive Engineers Wire glass was used in past automotive First, NHTSA discussed the general (SAE) Glazing Materials Standards applications. However, this practice has nature of the textual changes to ANSI Committee, acting under the been discontinued and, to our Z26.1. We stated that our substitution of sponsorship of ANSI, has revised the knowledge, no company currently the 1996 version for the 1980 version of ANSI standard periodically. However, produces wire glass for vehicle use. the ANSI standard would not make since the FMVSS cannot be changed 2. Harmonization with Foreign Glazing many substantive changes to our except through rulemaking, revisions to Standards standard since our current standard the ANSI standard do not become part already contains many provisions of the of FMVSS No. 205 unless we expressly Incorporating ANSI/SAE Z26.1–1996 1996 version. They were directly added identify and incorporate them through a will improve harmonization between to our standard in various rulemaking rulemaking. SAE previously petitioned US, Canadian, and European glazing proceedings between 1977 and 1996 to us to upgrade ANS Z26.1 with 1983 and standards in the following ways: supplement the 1977 version of the • 1990 revisions. However, we denied The test fixture for the impact, ANSI standard.2 Therefore, the practical those petitions. fracture and penetration resistance tests effect of our incorporation by reference (Tests 6, 7, 8, 9, 10, 11, 12, 13, 14 and of the 1996 ANSI standard is that it In addition to incorporating some of 26) is identical to the support frame the revisions of the ANSI standard, we would enable us to eliminate the required in Economic Commission for provisions added to our standard have occasionally updated FMVSS No. Europe (ECE) Regulation R43. 205 directly by adding provisions between 1977 and 1996. • The equipment used for the Second, NHTSA proposed to modify similar or identical to those in various abrasion test (Tests 17 and 18) is similar the application section of FMVSS No. revisions of the ANSI standard. to that used under ECE R43. 205 so that the standard explicitly II. Summary of the Notice of Proposed • The Weathering Test (Test 16) is applied to vehicles. Rulemaking (NPRM) similar to International Organization for Third, NHTSA proposed that ‘‘the Standardization (‘‘ISO’’) Standard 3917, most difficult part or pattern’’ for the On August 4, 1999, NHTSA published which requires a xenon light source, Fracture Test means that all portions of a NPRM (64 FR 42330) proposing to instead of the carbon arc light source the glazing surface must be able to pass amend FMVSS No. 205 by incorporating currently specified in FMVSS No. 205. the test requirements.3 We explained by reference ANSI/SAE Z26.1–1996. In • The solvents specified in the this notice, NHTSA discussed the chemical resistance test (Test 20) have 2 The 1996 provisions include new types of benefits of incorporating ANSI/SAE been revised to conform to the glazing, e.g. items 4A, 11C, 12, 13, 14, 15A, 15B, Z26.1–1996, and proposed revisions to 16A, and 16B. ANSI/SAE Z26.1–1996 also includes requirements of the American Society numerous editorial and minor substantive changes FMVSS No. 205. for Testing and Materials (ASTM) and made to be consistent with FMVSS No. 205 or to Occupant Safety and Health be internally consistent. We have listed these 1 The most recent revision we incorporated into Administration (OSHA). These are the changes in a table submitted to the docket for the FMVSS No. 205 was ANSI Z26.1a–1980, which NPRM (Docket No. NHTSA 99–6024). supplemented the 1977 version. It was incorporated same solvents specified in ECE R43. 3 The requirement for specimens to be tested for by a final rule published on February 23, 1984 (49 This will also result in consistency with the fracture test in section 5.7.2 of ANSI/SAE FR 6732). the NTTAA (National Technology Continued

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that we believe ‘‘the most difficult part Currently, neither FMVSS No. 205 nor Manufacturer list.9 SAE has contended or pattern’’ was intended to mean the the updated ANSI/SAE Z26.1–1996 set that only 25 percent of the part of the glazing that provides for boundaries for the area of glazing that manufacturers listed with DOT numbers ‘‘worst case’’ testing, not the type of does not have to meet the 70 percent are currently active; some of the difficulty contemplated or how we light transmittance requirement. SAE manufacturers have gone out of business select the most difficult part or pattern J100 sets limits for the shade band on without notifying us, and many other in our compliance testing. Therefore, all the windshield, rear window and fixed manufacturers have moved or merged. portions of the glazing surface must be side windows based upon the eyellipse able to pass the test requirements. of the 95th percentile male driver’s eye III. Summary of Public Comments to NHTSA proposed that this positions in a vehicle.7 the NPRM interpretation would be made explicit in Sixth, NHTSA proposed modifying NHTSA received eight comments on the regulatory text of FMVSS No. 205. S5(b)(8) of FMVSS No. 500, ‘‘Low-speed the August 1999 NPRM. Three glazing Fourth, NHTSA tentatively concluded vehicles’’ (49 CFR 571.500), to eliminate manufacturers, three vehicle that a xenon arc light source produces the incorporation by reference of ANSI manufacturers, one glazing a spectral power distribution closer to Z26.1 and any reference to the manufacturers association, and one that of sunlight than the carbon arc permitted types of glazing.8 Instead, automotive standards organization lamp currently utilized in the S5(b)(8) would simply state that low submitted the eight comments. The weathering test procedures of ANSI speed vehicles must have windshield comments are summarized below. Z26.1 and requested comment on this glazing that meets the requirements of issue.4 We said that carbon arc FMVSS No. 205. A. Meaning of the ‘‘Most Difficult Part technology, which was developed in NHTSA also proposed to revise the or Pattern’’ for the Fracture Test 1919 for textile and printing industries, applicability paragraph of FMVSS No. Several manufacturers stated that is no longer the best light source for 205 to add low speed vehicles to the list NHTSA had misinterpreted the meaning simulating sunlight because the spectral of vehicles to which the standard of ‘‘most difficult part or pattern’’ and power distribution of carbon arc is applies. This would assure that that the fracture test could be unlike that of natural sunlight.5 Further, manufacturers of glazing materials in interpreted to have many fracture we noted that most of the testing low speed vehicles certify compliance points, instead of a single point 25 mm industry is currently using xenon-arc with FMVSS No. 205. In addition, we (1 in.) in-bound along the center of the lamp test devices to simulate proposed adding a paragraph to the longest edge. weathering. requirements specifying the use of AS– Sekurit Saint-Gobain (Sekurit), a Fifth, NHTSA proposed to modify 1 or AS–4 glazing in the windshields of glazing manufacturer, suggested that FMVSS No. 205 to incorporate the June low speed vehicles. This section is NHTSA adopt ISO 3537. ISO 3537 has 1995 version of the Society of necessary because the descriptions of several fracture points [(point 1, 30 mm Automotive Engineers, Inc. (SAE), the locations of glazing specified by the (1.2 in.) from the edge in one corner; Recommended Practice J100, ‘‘Class ‘A’ ANSI standard would not otherwise point 2, 30 mm (1.2 in.) from the nearest Vehicle Glazing Shade Bands’’ (SAE allow AS–5 glazing. edge; point 3 at the geometric center, Also, NHTSA proposed to correct a J100) and requested comments on the and for curved materials, point 4 on the technical error in FMVSS No. 500. We appropriateness of that shade band longest median at a point of maximum replaced AS–5 glazing with AS–4 standard or any alternative shade band curvature)] and allows for fracture of the glazing as a permitted glazing type in standard that should be considered. windshield. NHTSA said that a visibility low speed vehicles. AS–4 is equivalent SAE encouraged NHTSA to revise requirement needs to be set to establish glazing to AS–5 but contains a light S5.1.2 to read as follows: ‘‘NHTSA may boundaries for shade bands on glazed transmittance requirement so that it can conduct the Fracture Test as specified in surfaces since we need to be able, for be used in windshields, since the ANSI/SAE Z26.1–1996 Section 5.7 on the purposes of compliance testing, to windshield is a location considered any piece of glazing material that is differentiate between those areas of a requisite for driving visibility. window that are intended to meet the 70 Finally, NHTSA requested comments required to comply with Section 5.7.’’ percent transmittance requirements and on the need to verify DOT numbers B. Xenon Light Source for Weathering those areas that are not so intended.6 based on the concern of SAE’s Glazing Test Materials Standards Committee Ford Motor Company (Ford) and SAE Z26.1–1996 states, ‘‘[t]he number of specimens regarding the accuracy of our Glazing selected from each model number of glazing shall both commented that a xenon arc light be six (6) and shall all be of the most difficult part for driving visibility may be tinted. The most source more closely simulates sunlight or pattern designation within the model number.’’ familiar location for the tinted areas is the upper than does a carbon arc and that the 4 Laboratory-accelerated weathering tests are used region of the windshield. This area is typically xenon arc is a much-improved light to test the durability of glazing materials by called a ‘‘shade band.’’ source for the weathering tests. Ford simulating the damaging effects of sunlight over an 7 As defined in SAE’s Recommended Practices, an extended period of time. The weathering tests are eyellipse is a statistical representation of driver eye also said that a xenon arc lamp would used to identify materials that are more susceptible locations in road vehicles. It is an eye movement/ meet the requirement of ECE R43 stating to sun damage, such as rigid plastics, flexible position survey designed to identify vision and that any source of radiation which plastics and glass-plastics (annealed and tempered). field of view contours. The 95th percentile male produces the same effect as a mercury Currently, the weathering test procedures of ANSI eyellipse is specified in SAE J100 because it is the Z26.1 simulate sunlight using a carbon arc lamp. highest eyellipse, and therefore is the eyellipse 5 Narrow spikes of energy in the ultraviolet range most likely to be blocked by the shade band. 9 Paragraph S6.2 of FMVSS No. 205 requires that of the electromagnetic spectrum (wavelengths of 8 On June 17, 1998, we published (63 FR 33194) the prime glazing manufacturer mark the glazing 400 nm and below) can affect how some materials a new standard for ‘‘low-speed vehicles’’ (49 CFR with, among other things, a manufacturer’s mark. will degrade. 571.500). The rule defines low-speed vehicles as a We assign the mark upon written request of the 6 ANSI Z26.1 requires most passenger car separate vehicle type, and S5(b)(8) of the rule manufacturer. We maintain a list of glazing windows to pass a light transmittance test that specifies the use of either AS–1 or AS–5 glazing for manufacturers and the marks assigned to them. One assures that they transmit 70 percent of the incident the windshield of these vehicles. The rule also use of these code marks (often referred to as a ‘‘DOT light. While all windows in passenger cars are separately incorporates by reference the 1977/1980 number’’) is during an enforcement action to considered requisite for driving visibility, certain version of ANSI Z26.1, rather than cross-referencing identify the manufacturer that produced a areas of the glazing that are not at levels requisite FMVSS No. 205. particular piece of glazing.

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vapor lamp may be used for the test application obtain a separate DOT code temperatures. According to Sekurit, ISO procedure. number from that of the prime glazing 3538 takes windscreen design, rake manufacturer who produces the glazing. angle, and field of vision into account C. Limiting the Width of the Shade Band Additionally, FGMAJ suggested that the while ANSI/SAE Z26.1–1996 tests DaimlerChrysler (DC) and SAE definition of ‘‘prime glazing optical properties by an obsolete supported the adoption of SAE J100 to manufacturer’’ should specify the method that does not take into account identify areas of glazing not requisite for inclusion of aftermarket manufacturers. the current design of windshields. driving visibility. DC also urged the E. Other Issues Additionally, Sekurit argued that a agency to clarify the definition of shade mechanical strength test using a 227 g band to mean any obscuration band on 1. Applicability of Proposal to MPVs (0.5 lb.) ball would more closely a glazing because of the variations in DC and SAE encouraged NHTSA not proximate real-life conditions than the band application to laminated safety to delete paragraph S5.1.1.6 of FMVSS strength test in ANSI. glass (dye or pigment added to No. 205, which states that glazing interlayer material prior to application) IV. Agency Discussion of Issues and intended for use in multipurpose and tempered safety glass (pattern of Response to Comments passenger vehicles (MPVs) is treated lines and dots printed onto the glass identically to glazing used in trucks. A. Summary of Changes from the NPRM surface). Toyota Motor Corporation (Toyota) ANSI/SAE Z26.1–1996 expressly In response to the comments, the and the Flat Glass Manufacturers prohibits the use of deep tinted agency is modifying the approach it Association of Japan (FGMAJ), however, windows adjacent to the driver in trucks proposed in the NPRM. The major suggested incorporating ‘‘area B,’’ but is silent with regard to tinting in deviations from the proposal are specified in ECE R43 92/22EC to MPVs. summarized below. • establish boundaries for the shade band 2. Edge Treatment for Automotive The fracture test of ANSI/SAE instead of incorporating SAE J100 Safety Glass Z26.1–1996 is clarified to indicate that any piece of glazing subject to the because it would harmonize FMVSS No. The SAE recommended that NHTSA fracture test may be tested, and that the 205 with the requirements adopted in eliminate paragraph S5.2 of FMVSS No. test procedure is a single fracture origin Europe and Japan and because 205 because it incorporates by reference or break point 25 mm (1 in.) inboard at application of the ‘‘area B’’ requirement the edge treatment requirements (SAE the edge of the midpoint of the longest of ECE R43 is current practice for Recommended Practice J673, edge of the specimen as specified in Toyota. More specifically, Toyota stated ‘‘Automotive Safety Glasses’’) that are ANSI/SAE Z26.1–1996. that FMVSS No. 205 should ‘‘prescribe already incorporated by reference in • Shade band areas are required to that the area of the windshield other ANSI/SAE Z26.1–1996.10 than the ‘area B’ may be tinted’’ and conform with the SAE J100 FGMAJ stated that the ‘‘[d]etermination 3. Labeling recommended practice. However, a of the top boundary of windshield for Toyota suggested that FMVSS No. 205 substitution of the ECE R43 procedure driving visibility should be the upper specify that the cleaning instruction ‘‘up angle’’ of 7 degrees, instead of the edge of Zone B, which is drawn in label currently required for Items 12, 13, SAE procedure ‘‘up angle’’ of 5 degrees, accordance with V1 prescribed in ECE 16A and 16B not be required for these will be used to determine the upper R43.’’ items of glazing because these items of limit of the area for driving visibility. Additionally, on the issue of whether glazing are not required to meet the 70% B. Meaning of the ‘‘Most Difficult Part or shade band requirements should be light transmittance requirement (Test 2 Pattern’’ for the Fracture Test applied to side and rear windows, of the ANSI standard). The NPRM FGMAJ stated, ‘‘[t]his non-requirement proposed deleting S5.1.2.2 and Currently, Fracture Test No. 7 provision for driving visibility should specifies dropping a 227 g (0.5 lb) ball S5.1.2.10, which contains cleaning × × be limited to the windshield, which instruction label requirements from onto 305 mm 305 mm (12 in. 12 in.) would harmonize with the international FMVSS No. 205. Since ANSI/SAE laboratory samples of glazing. The drop standard.’’ Z26.1–1996 contains the cleaning height starts at ten feet and increases instruction label requirements for the until the samples break. To pass the test, D. Certification and Verification of DOT the largest fractured particle must weigh Numbers aforementioned Items, FMVSS No. 205 would incorporate them by reference. 4.3 g (0.15 oz.) or less. Pilkington Libbey Owens Ford (LOF), The proposed fracture test in S5.7.2 and Glassig Inc. (Glassig), both glazing 4. Additional Tests specified six production parts manufacturers, commented that DOT Sekurit expressed the view that representing each construction type numbers should be kept current and additional tests, not included in ANSI/ model number. Fracture Test No. 7 suggested notification to the agency or SAE Z26.1–1996, could have been stated, ‘‘[T]he number of specimens re-certification every five years so that added to FMVSS No. 205. These tests selected from each model number of separate active and non-active include a head-impact test for glazing shall be six (6) and shall all be manufacturer lists can be prepared. SAE windshields (ISO 3537), a requirement of the most difficult part or pattern suggested that NHTSA avoid reassigning for testing of optical properties of a (emphasis added) designation within DOT numbers and also supported the windshield according to ISO 3538, and the model number.’’ The fracture origin use of separate active and non-active a mechanical strength test using a 227 or break point is 25 mm (1 in.) inboard manufacturer lists. Sekurit said that the g (0.5 lb.) ball at high and low of the edge at the midpoint of the confusion that results from the longest edge of the specimen. If the reassigning of DOT numbers could be 10 SAE Recommended Practice J673 provides specimen has two long edges of equal avoided if glass manufacturers were several mechanical treatments that shape the edge length, the edge nearer the required to apply their trade names to of the finished glazing for either laminated glazing manufacturer’s trademark is chosen. To or tempered glass glazing. The intent of these their products. FGMAJ suggested that a treatments is to reduce the risk of a lacerative injury obtain fracture, a spring loaded center manufacturer who simply cuts sections due to an exposed sharp edge or corner in the punch or a hammer of about 75 g (2.65 of glazing for use in a motor vehicle finished glazing product. oz.), each with a point having a radius

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of curvature of 0.2 mm ± 0.05 mm fracture origin or breakpoint 25 mm (1 NHTSA commissioned a study at (0.0008 in. ± 0.002 in.), is used. To pass in.) inboard at the edge of the midpoint General Test Laboratories (GTL) of the test, the largest fractured particle of the longest edge of the specimen. current industry practices (SAE J100 must weigh 4.3g (0.15 oz.) or less. They stated that the fracture test could and ECE R43) concerning shade band In the NPRM, NHTSA stated ‘‘we be interpreted to have many fracture areas.12 believe that the phrase ‘‘most difficult points. These manufacturers, however, As a preliminary matter, NHTSA part or pattern’’ was intended to mean have not demonstrated a safety need to collected data for a series of five the part of the glazing that provides for deviate from the testing specified in windshields from current production ‘worst-case’ testing.’’ After ANSI/SAE Z26.1–1996. For this reason, vehicles to evaluate the lower boundary consideration of the comments, NHTSA NHSTA believes that the test procedures of actual windshield shade bands in now agrees that this interpretation of the need not be revised at this time. comparison to the SAE J100 phrase was not the intent of the authors However, as suggested by Sekurit, recommendations. The vehicle of ANSI/SAE Z26.1–1996. In the context NHTSA will continue to explore the manufacturers supplied full size of ANSI/SAE Z26.1–1996, as clarified desirability of extending the test templates for each windshield. On these by SAE in its comment to the NPRM, procedures to multiple break points in templates, NHTSA engineers measured the ‘‘most difficult part or pattern’’ the future, through participation in the the difference between the AS–1 line refers to the most difficult application or UN/ECE Working Party 29’s Working and the boundary of the shade band component with respect to the fracture Party on General Safety Provisions zone defined in Section 4.1 of SAE J100 performance for a given glazing model (GRSG). for forward glazing (J100 line). The number. In other words, ANSI/SAE In retaining the ‘‘most difficult part or boundary value for the upper limit of Z26.1 calls for fracture testing on the pattern’’ requirement, NHTSA agrees level of visibility in SAE J100 is defined ‘‘worst-case’’ use, rather than on the with the SAE and has decided to clarify as the intersection of the windshield’s worst case target area. It does not refer that any piece of glazing subject to the centerline with an inclined plane to the fracture location on a given piece fracture test may be tested, and that the tangent to the upper edge of the 95th of glazing, nor does it refer to the part test procedure will be a single fracture eyellipse. The AS–1 line marked on the of the glazing that provides for ‘‘worst- origin or break point 25 mm (1 in.) upper edge of the windshield equipped case’’ testing. inboard at the edge of the midpoint of with a shade band shows the current For the purposes of FMVSS No. 205, the longest edge of the specimen as the phrase ‘‘the most difficult part or shade band practice by the specified in ANSI/SAE Z26.1–1996. 13 pattern’’ means the worst-case manufacturer. NHTSA’s limited component with respect to fracture C. Xenon Light Source for the survey of vehicles found that the performance, not the worst-case test Weathering Test manufacturer-provided shade bands did not extend as far downward as location on that component. The worst- As noted above, Ford and SAE permitted by SAE J100, and the distance case component could be picked from concurred with the agency’s tentative between the lower boundary of the the grouping of such articles that are conclusion that a xenon arc produces a shade bands and the boundary limit described by a common manufacturer’s spectral power distribution closer to recommended in SAE J100 ranged from model number. For instance, using the that of sunlight than carbon arc lamps 45 mm (1.8 in.) for the Chevrolet example cited by SAE in its comments and that it is an improved light source Camaro to about 191 mm (7.5 in.) for the to the NPRM,11 if a manufacturer for the weathering tests. As in the Pontiac Grand Am (Table 1). Based on produces side and rear windows with NPRM, we also note that most of the these measurements, all vehicles tested the same model number and the rear testing industry is currently using xenon exceeded the recommendations set forth window performs worse in the fracture arc lamp test devices to simulate in SAE J100. performance test, then the rear window weathering. For these reasons, the must pass the fracture performance test. agency has decided to adopt the use of Next, NHTSA determined the extent The difficulty referred to is in regard to the xenon arc lamp test device for the to which the ECE R43 requirement (ECE meeting the particle weight requirement weathering tests as specified in ANSI/ R43 line) was exceeded. It then of the fracture test. SAE Z26.1–1996. compared the extent to which the ECE Sekurit suggested requiring multiple R43 line was exceeded with the extent fracture points and other manufacturers D. Limiting the Width of the Shade Band to which the J100 line was exceeded. have objected to conducting fracture In response to comments by These comparisons are shown in Table testing on production parts with a single DaimlerChrysler, Toyota, and FGMAJ, 1.

TABLE 1.—COMPARISON OF ESTIMATED SHADE BAND COMPLIANCE WITH SAE J100 AND ECE–R43

(b) AS–1 (a) AS–1 Pass line, ECE– Manufacturer Model line, SAE SAE R43 Pass exceedance*, J100? exceedance*, ECE 43? inches inches

General Motors ...... Chevrolet Camaro ...... 1.8 Yes –0.8 No General Motors ...... Saturn LS2 ...... 4 Yes 2.4 Yes General Motors ...... Pontiac Grand Am ...... 7.5 Yes 5 Yes Mitsubishi ...... Galant ...... N/A** N/A** N/A** N/A**

11 Docket No. NHTSA–99–6024–10. having a luminous transmittance of less than 70%. which points to the area compliant with the 12 GTL is a test facility used by NHTSA to For example, if a manufacturer chooses to install a visibility requirements [minimum level of light evaluate vehicle equipment for compliance with the shade band at the upper edge of the windshield, the transmittance required for a windshield in the area FMVSSs. windshield must be permanently marked with a indicated by the direction of the arrow] of FMVSS 13 FMVSS No. 205 requires that manufacturers line indicating the line of demarcation. An arrow No. 205. mark the windshields to show the limits of the area and ‘‘AS–1’’ must also be marked on the glazing

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TABLE 1.—COMPARISON OF ESTIMATED SHADE BAND COMPLIANCE WITH SAE J100 AND ECE–R43—Continued

(b) AS–1 (a) AS–1 Pass line, ECE– Manufacturer Model line, SAE SAE R43 Pass exceedance*, J100? exceedance*, ECE 43? inches inches

Ford ...... Focus ...... 6.1 Yes 4.3 Yes * Linear distance measured on the windshield surface between the location of the AS–1 line indicated on the windshield and the lowest allow- able AS–1 line in accordance with SAE J100 or ECE R43. A positive value indicates that the AS–1 line lies above the lowest allowable AS–1 line. A negative value indicates noncompliance with the requirement, i.e., it represents a hypothetical test failure. ** Not applicable. There was no AS–1 line on the windshield because it had no shade band.

As demonstrated in Table 1, not all only slight technical differences shade bands to meet the new tested vehicles comply with ECE R43, between the two methods and the use of requirement. and differing results occur for the SAE SgRP in other FMVSS, NHTSA has With regard to shade band J100 procedure and the ECE R43 decided to adopt the SAE J100 requirements for glazing areas other procedure. The SAE procedure uses an recommended practice. This adoption than the upper edge of the windshield, ‘‘up angle’’ of 5 degrees to determine the includes, however, a substitution of the SAE J100 does not address driver lower limit of the shade band area and ECE R43 procedure ‘‘up angle’’ of 7 visibility for the bottom edge of the the ECE R43 procedure uses an ‘‘up degrees, instead of the SAE procedure windshield or for the side of the angle’’ of 7 degrees to determine the ‘‘up angle’’ of 5 degrees, to determine windshield. SAE J100 does include upper limit of the area for driving the upper limit of the area for driving shade band requirements for fixed side visibility. Other minor factors visibility. and rear windows. While SAE J100 distinguish the SAE method from the Using the 7 degree ‘‘up angle’’ method includes this requirement for side and ECE method, but these differences are for determining the location of the AS– rear windows, the majority of side and due only to the method by which the 1 line increases the total windshield rear windows are tempered glass. Shade point of origin for the 5 degree and 7 visibility. Additionally, manufacturers bands can only be applied to laminated degree lines is established.14 that presently manufacture their shade glazing (by tinting the inner layer). As stated in the NPRM, NHTSA bands in accordance with SAE J100 can Laminated glazing is required only for believes that establishing a lower continue using the same testing windshield applications. Therefore, boundary for windshield shade bands is conditions and procedures defined in shade bands rarely exist on fixed side a necessary component of the amended SAE J100, except for the ‘‘up angle.’’ and rear windows. Further, ECE R43 glazing standard. Further, no negative However, due to the substantial does not contain shade band comments were received on the similarity between the provisions of requirements for side or rear windows. proposal to institute a requirement for SAE J100 and ECE R43, except for the Because of the limited number of fixed the lower boundary for a shade band on degree of the ‘‘up angle,’’ the agency side and rear windows containing shade a windshield. anticipates the shade band boundary bands and because of harmonization The net safety benefit from the slight line under the new rule would more concerns, as commented by FGMAJ, the differences in allowable shade band closely approximate the ECE R43 line agency has decided to apply the design between SAE J100 and ECE R43 due to the 7 degree ‘‘up angle’’ for most provisions of SAE J100 exclusively to is negligible. While the SAE procedure vehicles. Therefore, we believe windshield applications. However, the offers slightly greater glare protection, manufacturers would be able to market light transmittance requirements for the ECE R43 procedure allows a greater vehicles with the same AS–1 line in side and rear windows contained in daylight opening for visibility at both Europe and the United States. FMVSS No. 205 and ANSI/SAE Z26.1– luminous transmittance values of 70% Agency testing indicates that most 1996 will continue to apply to side and or greater. NHTSA believes that the manufacturers do not use all of the rear windows. approaches set forth in both ECE R43 potential available windshield shade and SAE J100 represent reasonable band area available under ECE R43 for E. Certification and Verification of DOT approaches to determining the limits of shade band coverage. However, as Numbers a windshield shade band. demonstrated above in Table 1, not all Comments concerning the However, each procedure is tested vehicles complied with ECE R43 certification and verification of DOT dependent upon the location of a (one out of four did not comply). numbers suggest that NHTSA’s DOT seating design point defined by the Therefore, a small percentage of current registry process should require vehicle manufacturer. The ECE method production vehicles may not comply additional certification and verification relies upon the location of the European with the new shade band requirement. activities such as the re-certification of ‘‘R-point’’ whereas the SAE method However, as with the 2000 Chevrolet numbers every 5 years and the relies upon the SAE seating reference Camaro, the anticipated extent of failure maintenance of active and non-active point (SgRP). Due to the existence of for this small percentage of vehicles is manufacturer lists. Commenters did not, slight. The agency believes that however, provide evidence that the 14 The test zones used by each standard are modifying the shade band location by additional certification and verification generated using different methods. The European test zone uses the ISO ‘‘V’’ points (coordinates 25 mm (1 inch) or less on most vehicles activities would yield safety benefits. related to seat back angle) while the U.S. zones are represents a reasonable undertaking that Further, the agency believes that based on the SAE J941 eyellipse. However, the ISO should not be costly for manufacturers additional certification and verification ‘‘V’’ points are a derivative of the SAE eyellipse, and that can be accomplished within a activities would require additional and generate substantially similar zones. While the zones are not identical, the differences in practice short lead time. Based on the results of resources and manpower which would, account for only slight variations in calculated the agency’s testing, manufacturers in turn, adversely impact the agency’s outcomes. should have no difficulty adjusting use of its resources to upgrade its safety

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standards. Due to the absence of manufacturer.’’ Therefore, the agency state. This indicates to NHTSA that, apparent safety benefits and because has decided to adopt the definition of while Items 12, 13, 16A and 16B need additional registry and certification ‘‘prime glazing manufacturer’’ as not meet the 70% light transmittance activities would detract resources from proposed in the NPRM. test, it is important for these items of its safety mission, the agency is not glazing to maintain a luminous D. Other Issues amending the current DOT registry transmittance which is achieved, in process at this time. 1. Applicability of Standard to MPVs part, by proper maintenance and cleaning indicated on the cleaning As stated above, FGMAJ suggested Today’s rule retains S5.1.1.6 in the instruction label on the glazing. that a manufacturer who cuts glazing regulatory text of FMVSS 205. Additionally, ANSI/SAE Z26.1–1996 should be required to obtain a separate Paragraph S5.1.1.6 ensures that MPVs provides manufacturers with the option DOT code number from the one used by must meet the same glazing of placing cleaning instructions in the the prime glazing manufacturer who requirements as those required for vehicle’s owner’s manual rather than on produces the glazing. NHTSA is trucks. NHTSA agrees with DC and SAE a label affixed to the glazing for Items unaware of any safety benefits that the requirements for glazing to be 16A and 16B. The agency believes that associated with this suggestion. used in trucks should be applied to Additionally, this suggested action the option of placing the cleaning glazing for use in MPVs. This approach instructions in the owner’s manual would create an additional resource of applying identical requirements to 15 rather than on a cleaning instruction burden for the agency. Therefore, both trucks and MPVs is consistent with NHTSA is not adopting the suggested label on the glazing partially alleviates the treatment of trucks and MPVs in Toyota’s concern. requirement. NHTSA, however, is aware past interpretations (57 FR 2496; 63 FR of the need for clarification regarding 37820). 4. Additional Tests certification responsibilities and is adopting the language proposed in the 2. Edge Treatment for Automotive As discussed above, Sekurit suggested NPRM for S6 of FMVSS No. 205. This Safety Glass that the agency incorporate additional revised section provides a more tests for head impact into windscreens, NHTSA agrees with SAE that the optical properties, and mechanical straightforward and clearer statement of requirements of S5.2 of FMVSS No. 205 the certification and marking strength into FMVSS No. 205. Currently, are redundant with the edge treatment the agency, through participation in responsibilities of a manufacturer who provisions of Section 6 of ANSI/SAE fabricates, laminates, or tempers glazing GRSG meetings on the proposed Global Z26.1–1996, which requires that Glazing Regulation, is evaluating the material and distinguishes those exposed edges in vehicles other than responsibilities from those of a tests recommended by Sekurit. If school buses shall be treated in NHTSA tentatively concludes that these manufacturer who cuts a section of accordance with SAE J673 (April 1993 glazing material for subsequent use in a tests would have a safety benefit, the version) and that exposed edges in agency may propose adoption of one or motor vehicle application. This text also school buses shall be banded. Section 6 makes clear that the requirement to affix more of these tests in a future of ANSI/SAE Z26.1–1996 is identical to rulemaking. a manufacturer’s code mark to the the current requirements for edge glazing applies only to the prime glazing treatment in FMVSS No. 205, except V. Effective Date 16 manufacturer and not to a that FMVSS No. 205 incorporates by The agency proposed a leadtime of 45 manufacturer or distributor who simply reference an outdated (1967) version of days. AP Technoglass, a glazing cuts a piece of glazing. SAE J673. Due to the redundancy manufacturer, commented that the new The proposed regulatory text in the between FMVSS No. 205 and ANSI/SAE requirements, including shade band, NPRM included a definition of ‘‘prime Z26.1–1996 concerning the glass fracture test, and weathering test glazing manufacturer’’ as ‘‘a requirements for edge treatment and requirements, may affect glazing manufacturer that fabricates, laminates, because ANSI/SAE Z26.1–1996 contains currently under production that does or tempers glazing materials.’’ FGMAJ a more recent version of SAE J673, the not conform to the new requirements. commented that this definition should agency will delete S5.2 from FMVSS For instance, manufacturers may need also include a reference to aftermarket No. 205 and revise the regulatory text to purchase new equipment to perform manufacturers. The agency considers it accordingly. the weathering test with a xenon arc unnecessary to add a reference to 3. Labeling lamp. NHTSA agrees that these new aftermarket manufacturers in the requirements may take longer than 45 definition of ‘‘prime glazing Toyota has requested that FMVSS No. days to incorporate. In NHTSA’s manufacturer.’’ FMVSS No. 205 applies 205 state that the cleaning instruction judgment, these changes can be to all glazing for use in motor vehicles, label requirement in ANSI/SAE Z26.1– accomplished within 180 days. whether it is supplied as original 1996 is not applicable to Items 12, 13, Consequently, the changes to FMVSS equipment in a vehicle or as an 16A and 16 B. With the deletion of No. 205 will become effective, and aftermarket product. Besides this S5.1.2.2 and S5.1.2.10, the cleaning compliance will be required, 180 days suggestion by FGMAJ, the agency instruction requirements for these items following the publication of the final received no other comments concerning would be found in ANSI/SAE Z26.1– rule. However, manufacturers may the definition of ‘‘prime glazing 1996. voluntarily comply with this rule Toyota is correct that Items 12, 13, earlier. 15 The Automotive Manufacturers Equipment 16A and 16B are not required to meet Compliance Agency (AMECA) and AP Technoglass VI. Plain Language Company estimate that there are in excess of 700 the light transmittance test in ANSI/SAE prime glazing manufacturers. They further estimate Z26.1–1996. However, ANSI/SAE In accordance with Executive Order that the number of manufacturers that cut glass is Z26.1–1996 does include tests, e.g., the 12866, we have rewritten or reorganized the same or slightly more than the number of prime weathering test, which ensure that they portions of the regulatory text for clarity glazing manufacturers. 16 A ‘‘prime glazing manufacturer’’ is defined as maintain a luminous transmittance that and conformance to Plain Language one who ‘‘fabricates, laminates, or tempers the closely approximates the transmittance practices. These include portions of the glazing material.’’ found in their original manufactured regulatory text that are not being

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substantively changed by this rule. For significantly affected because this National Technology and Transfer and example, we have replaced passive rulemaking will not cause price Advancement Act of 1995 (NTTAA) verbs with active verbs, replaced ‘‘shall’’ increases. Accordingly, we have not Under the National Technology and with ‘‘must,’’ and made explicitly clear prepared a Regulatory Flexibility Transfer and Advancement Act of 1995 who has the responsibility for acting. Analysis. (NTTAA) (Public Law 104–113), ‘‘all Rewriting is especially apparent in Federalism Federal agencies and departments shall the certification and marking Executive Order 13132 requires us to use technical standards that are requirements of section 6. We developed or adopted by voluntary eliminated the marking requirement of develop an accountable process to ensure ‘‘meaningful and timely input by consensus standards bodies, using such former S6.1 because it is already technical standards as a means to carry incorporated in section 7 of ANSI/SAE State and local officials in the development of regulatory policies that out policy objectives or activities Z26.1–1996. We moved the definition of determined by the agencies and prime glazing manufacturer in S6.1 into have federalism implications.’’ ‘‘Policies that have federalism implications’’ is departments.’’ Certain technical the S4 definitions section. To eliminate standards developed by the American redundancy, former S6.2 and S6.3 have defined in the Executive Order to include regulations that have National Standards Institute (ANSI) and been combined in S6.1, and former S6.4 Society of Automotive Engineers (SAE) and S6.5 have been combined in S6.3. ‘‘substantial direct effects on the States, on the relationship between the national have been considered and incorporated We do not intend by this rule to make by reference in the formulation of these any substantive changes in S6. government and the States, or on the distribution of power and requirements. VII. Rulemaking Analyses responsibilities among the various Paperwork Reduction Act levels of government.’’ Under Executive Executive Order 12866 and DOT Under the Paperwork Reduction Act Regulatory Policies and Procedures Order 13132, we may not issue a regulation with Federalism of 1995 (PRA) (44 U.S.C. 3501, et. seq.), This rulemaking action was not implications, that imposes substantial Federal agencies must obtain approval reviewed under Executive Order 12866. direct compliance costs, and that is not from the Office of Management and The rulemaking action is not significant required by statute, unless the Federal Budget (OMB) for each collection of under Department of Transportation government provides the funds information they conduct, sponsor, or regulatory policies and procedures. The necessary to pay the direct compliance require through regulations. NHTSA has effect of the rulemaking action is to costs incurred by State and local reviewed this proposal and determined clarify existing requirements. It will not governments, or unless we consult with that it does not contain collection of impose any additional burden upon any State and local governments, or unless information requirements. person. Impacts of the final rule are, we consult with State and local officials Unfunded Mandates Reform Act of 1995 therefore, so minimal that preparation of early in the process of developing the a full regulatory evaluation is not proposed regulation. We also may not This rule does not impose a Federal warranted. issue a regulation with Federalism mandate resulting in the expenditure by State, local, and tribal governments, in Regulatory Flexibility Act implications and that preempts State law unless we consult with State and the aggregate, or by the private sector, of We have considered the impacts of local officials early in the process of $100 million or more in any one year. this rulemaking action in relation to the developing the proposed regulation. (2 U.S.C. 1531 et seq.). Regulatory Flexibility Act (5 U.S.C. 601 This final rule will not have any VIII. Regulatory Text et seq.). I certify that this rulemaking substantial direct effects on the States, action will not have a significant on the relationship between the national List of Subjects in 49 CFR Part 571 economic impact upon a substantial government and the States, or on the Imports, Incorporation by reference, number of small entities. distribution of power and Motor vehicle safety, Reporting and The following is our statement responsibilities among the various recordkeeping requirements, Tires. providing the factual basis for the levels of government, as specified in ■ In consideration of the foregoing, 49 certification (5 U.S.C. 605(b)). The final Executive Order 13132. Thus, the CFR Part 571 is amended as follows: rule affects manufacturers of motor requirements of Section 6 of the vehicles and motor vehicle glazing. Executive Order do not apply to this PART 571—FEDERAL MOTOR According to the size standards of the rule. VEHICLE SAFETY STANDARDS Small Business Association (at 13 CFR part 121.601), manufacturers of glazing Civil Justice Reform ■ 1. The authority citation for Part 571 are considered manufacturers of ‘‘Motor This rule does not have any continues to read as follows: Vehicle Parts and Accessories’’ (SIC retroactive effect. According to 49 Authority: 49 U.S.C. 322, 30111, 30115, Code 3714). The size standard for SIC U.S.C. 30103, whenever a Federal motor 30117, and 30166; delegation of authority at Code 3714 is 750 employees or fewer. vehicle safety standard is in effect, a 49 CFR 1.50. The size standard for manufacturers of state may not adopt or maintain a safety ■ 2. Section 571.205 is amended by: ‘‘Motor Vehicles and Passenger Car standard applicable to the same aspect ■ a. Revising paragraph S3, Bodies’’ (SIC Code 3711) is 1,000 of performance which is not identical to ■ b. Amending S4 by adding a new employees or fewer. This Final Rule the Federal standard. 49 U.S.C. 30161 definition in alphabetical order, will not have any significant economic sets forth a procedure for judicial review ■ c. Revising paragraph S5.1, impact on a small business in these of final rules establishing, amending, or ■ d. Revising paragraph S5.2, industries because it makes no revoking Federal motor vehicle safety ■ e. Adding paragraph S5.3, significant substantive change to standards. That section does not require ■ f. Adding paragraph S5.4, requirements currently specified in submission of a petition for ■ g. Revising paragraphs S6.1 through FMVSS No. 205. Small organizations reconsideration or other administrative S6.3, and governmental jurisdictions that proceedings before parties may file suit ■ h. Removing paragraphs S6.4 and S6.5, purchase glazing will not be in court. and

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■ i. Removing Figure 1, at the end of the J100, revised June 1995, ‘‘Class ‘A’ to the Office of Vehicle Safety section. Vehicle Glazing Shade Bands’’ (SAE Compliance, National Highway Traffic The additions and revisions read as J100, rev. June 95) is incorporated by Safety Administration, 400 Seventh follows: reference in Section S5.3, and is hereby Street, SW., Washington, DC 20590. The made part of this Standard. The Director request must include the company § 571.205 Standard No. 205, Glazing materials. of the Federal Register approved the name, address, and a statement from the material incorporated by reference in manufacturer certifying its status as a * * * * * accordance with 5 U.S.C. 552(a) and 1 prime glazing manufacturer as defined S3. Application and Incorporation CFR part 51 (see § 571.5 of this part). A in S4. by Reference. copy of SAE J100, rev. June 95 may be S6.3 A manufacturer or distributor S3.1 Application. This standard obtained from SAE at the Society of who cuts a section of glazing material to applies to passenger cars, multipurpose Automotive Engineers, Inc., 400 which this standard applies, for use in passenger vehicles, trucks, buses, Commonwealth Drive, Warrendale, PA a motor vehicle or camper, must— motorcycles, slide-in campers, pickup 15096. A copy of SAE J100, rev. 95 may (a) Mark that material in accordance covers designed to carry persons while be inspected at NHTSA’s technical with section 7 of ANSI/SAE Z26.1– in motion, and low speed vehicles, and reference library, 400 Seventh Street, 1996; and to glazing materials for use in those SW., Room 5109, Washington, DC, or at (b) Certify that its product complies vehicles. with this standard in accordance with S3.2 Incorporation by Reference. the Office of the Federal Register, 900 (a) ‘‘American National Standard for North Capitol Street, NW., Suite 700, 49 U.S.C. 30115. Safety Glazing Materials for Glazing Washington, DC. ■ 3. Section 571.500 is amended by Motor Vehicles and Motor Vehicle S4. Definitions. revising paragraph (b)(8) of S5, to read as Equipment Operating on Land *** follows: Highways-Safety Standard’’ ANSI/SAE Prime glazing manufacturer means a manufacturer that fabricates, laminates, § 571.500 Standard No. 500; Low-speed Z26.1–1996, Approved by American vehicles. National Standards Institute August 11, or tempers glazing materials. S5. Requirements 1997 (ANSI/SAE Z26.1–1996) is * * * * * incorporated by reference in Section 5.1 S5. Requirements. * * * * * and is hereby made part of this S5.1 Glazing materials for use in (b) * * * Standard. The Director of the Federal motor vehicles must conform to ANSI/ (8) A windshield that conforms to the Register approved the material SAE Z26.1–1996 unless this standard Federal motor vehicle safety standard incorporated by reference in accordance provides otherwise. on glazing materials (49 CFR 571.205). with 5 U.S.C. 552(a) and 1 CFR part 51 S5.2 NHTSA may test any portion of * * * * * (see § 571.5 of this part). A copy of the glazing when doing the fracture test Issued on: July 21, 2003. ANSI/SAE Z26.1–1996 may be obtained (Test No. 7) described in section 5.7 of Jeffrey W. Runge, ANSI/SAE Z26.1–1996. from the Society of Automotive Administrator. S5.3 Shade bands. Shade band areas Engineers, Inc., 400 Commonwealth [FR Doc. 03–18924 Filed 7–24–03; 8:45 am] Drive, Warrendale, PA 15096–0007. A for windshields shall comply with SAE copy of ANSI/SAE Z26.1–1996 may be J100, rev. June 95 except that the value BILLING CODE 4910–59–P inspected at NHTSA’s technical of 7 degrees must be used in place of the value of 5 degrees specified in Section reference library, 400 Seventh Street, DEPARTMENT OF TRANSPORTATION SW., Room 5109, Washington, DC or at 4, Shade Band Boundary Requirements, the Office of the Federal Register, 900 of SAE J100, rev. June 95. National Highway Traffic Safety North Capitol Street, NW., Suite 700, S5.4 Low speed vehicles. Administration Washington, DC. Windshields of low speed vehicles must (b) The Society of Automotive meet the ANSI/SAE Z26.1–1996 49 CFR Part 571 Engineers (SAE) Recommended Practice specifications for either AS–1 or AS–4 J673, revised April 1993, ‘‘Automotive glazing. [Docket No. NHTSA–2003–15505] S6. Certification and marking. Safety Glasses’’ (SAE J673, rev. April 93) NHTSA Vehicle Safety Rulemaking and S6.1 A prime glazing material is incorporated by reference in Section Supporting Research: Calendar Years manufacturer must certify, in S5.1, and is hereby made part of this 2003–2006 Standard. The Director of the Federal accordance with 49 U.S.C. 30115, each Register approved the material piece of glazing material to which this AGENCY: National Highway Traffic incorporated by reference in accordance standard applies that is designed— Safety Administration (NHTSA), DOT. with 5 U.S.C. 552(a) and 1 CFR part 51 (a) As a component of any specific ACTION: Vehicle safety rulemaking (see § 571.5 of this part). A copy of SAE motor vehicle or camper; or priorities document; notice of J673, rev. April 93 may be obtained from (b) To be cut into components for use availability. SAE at the Society of Automotive in motor vehicles or items of motor Engineers, Inc., 400 Commonwealth vehicle equipment. SUMMARY: This document announces the Drive, Warrendale, PA 15096. A copy of S6.2 A prime glazing manufacturer availability of a planning document that SAE J673, rev. April 93 may be certifies its glazing by adding to the describes NHTSA’s vehicle safety inspected at NHTSA’s technical marks required by section 7 of ANSI/ rulemaking priorities with supporting reference library, 400 Seventh Street, SAE Z26.1–1996, in letters and research through 2006. The plan SW., Room 5109, Washington, DC, or at numerals of the same size, the symbol includes those rulemaking actions of the Office of the Federal Register, 900 ‘‘DOT’’ and a manufacturer’s code mark highest priority for the period 2003 to North Capitol Street, NW., Suite 700, that NHTSA assigns to the 2006, based primarily on the greatest Washington, DC. manufacturer. NHTSA will assign a potential protection of lives and (c) The Society of Automotive code mark to a manufacturer after the prevention of injury, that fall within the Engineers (SAE) Recommended Practice manufacturer submits a written request immediate four-year time frame. In

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addition, NHTSA has considered the Washington, DC 20590. Telephone: The plan includes several potential realistic likelihood for successful action, 202–366–4929. E-mail: rulemaking projects that require especially considering the reality of [email protected]. additional research to determine numerous worthwhile options SUPPLEMENTARY INFORMATION: Motor whether rulemaking action is needed, competing for budgetary resources. The vehicle crashes killed more than 42,000 but are priorities based on their priorities were defined through individuals and injured 2.9 million potential for significantly sizeable death extensive discussions within the others in six million crashes in 2001. In and injury prevention benefits. The plan agency, taking into account the views addition to the terrible personal toll, also contains an appendix that discusses heard in recent years at public meetings these crashes make a huge economic some other regulatory activities that the and comments submitted to the agency impact on our society with an estimated agency considers important, although via rulemaking notices and requests for annual cost of $230.6 billion, or an not rising to the same level of comment. In addition, comments average of $820 for every person living immediate high priority as the activities submitted by the public in response to in the United States. One of the most included in the main body of the plan. a Request for Comments announcing the important ways in which NHTSA Another appendix discusses upcoming draft of this plan on July 25, 2002 carries out its safety mandate is to issue milestones in consumer information (Docket No. NHTSA–2002–12391) were and enforce Federal Motor Vehicle evaluated and incorporated, as activities that the agency plans to Safety Standards (FMVSS). Through pursue in the next few years, including appropriate, into the planned agency these rules, NHTSA strives to reduce the activities. The results produced by the New Car Assessment Program number of crashes and to minimize the (NCAP). previous NHTSA rulemaking priority consequences of those crashes that do planning exercises also provided input occur. NHTSA’s rulemaking activities, This document announces the to this process. While the plan includes via the Rulemaking Program with availability of the document to the other active areas, in addition to the support from the offices of Applied public. Received comments on the draft rulemaking priorities, it discusses only Research, Enforcement, Planning, plan were evaluated and incorporated, a portion of all rulemaking actions the Evaluation and Budget, Advanced as appropriate, into planned agency agency has begun or plans to undertake Research and Analysis, and Chief activities. Comments that could not be in the four-year period. The absence of Counsel, identify safety problem areas, accommodated in the current plan will a particular regulatory or research develop countermeasures, and collect be considered in the context of future activity from the plan does not and analyze information to develop new updates. necessarily mean that the agency will FMVSS and amendments to existing not pursue it. Although the execution of The plan will be posted on NHTSA’s FMVSS. Web site on July 21, 2003. The agency a priority plan is affected by factors As we continue into the new century, intends to periodically update the plan. beyond its control (e.g., petitions, NHTSA will strive to influence the budgets, legislation), this plan provides automotive industry to incorporate the You may also see the plan on the a blueprint for regulatory action on rapidly accelerating pace of advances in Internet by taking the following steps: those vehicle safety goals the agency vehicle and safety technology into new 1. Go to the Docket Management considers its highest priorities. vehicles while ensuring that the use of System (DMS) Web page of the ADDRESSES: Interested persons may the new technologies enhances vehicle Department of Transportation (http:// obtain a copy of the planning document safety. The plan outlines the highlights dms.dot.gov). by downloading a copy of the document of NHTSA’s vehicle safety rulemaking from the Docket Management System, plans through 2006. Agency priorities 2. On that page, click on ‘‘search.’’ U.S. Department of Transportation, at emanate from many sources, including: 3. On the next page (http:// the address provided below, or from the size of the safety problem and dms.dot.gov/search/) type in the five- NHTSA’s Web site at http:// likelihood of solutions, Executive digit Docket number shown at the www.nhtsa.dot.gov/cars/rules/rulings. initiatives, Congressional interest and beginning of this document (NHTSA– Alternatively, interested persons may mandates, petitions to the agency for 2003–15505). Click on ‘‘search.’’ obtain a copy of the document by rulemaking and other expressions of 4. On the next page, which contains contacting the agency officials listed in public interest, interest in harmonizing Docket summary information for the the section titled, ‘‘For Further safety standards with those of other Docket you selected, click on the Information Contact,’’ immediately nations, and changes needed as a result desired document. You may also below. of new vehicle technologies. The The Docket Management System is starting point for rulemaking priorities download the document. located on the Plaza level of the Nassif is the quest for the greatest potential Authority: 49 U.S.C. 30111, 30117, 30168; Building at the U.S. Department of protection of lives and prevention of delegation of authority at 49 CFR 1.50 and Transportation, PL 401, 400 Seventh injury. 501.8. Street, SW, Washington, DC 20590– The plan is organized along several Issued on: July 17, 2003. 0001. You can review public dockets broad categories: Crash Prevention there between the hours of 9 a.m. and includes crash avoidance data, driver Stephen R. Kratzke, 5 p.m., Monday through Friday, except distraction, vehicle visibility, crash Associate Administrator for Rulemaking. Federal holidays. You can also review warnings, and vehicle control and [FR Doc. 03–18914 Filed 7–24–03; 8:45 am] comments on-line at the DOT Docket handling. Occupant Protection includes BILLING CODE 4910–59–P Management System Web site at http:/ protection in frontal, side, rollover, and /dms.dot.gov. rear crashes. Other sections cover FOR FURTHER INFORMATION CONTACT: Incompatibility Between Passenger Cars Lawrence L. Hershman, Office of and Light Trucks, Heavy Truck Safety, Rulemaking, NVS–133, National and Protecting Special Populations, Highway Traffic Safety Administration, including safety for children, people Room 5320, 400 Seventh Street, SW, with disabilities, and older people.

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DEPARTMENT OF COMMERCE table is incorrect. This document landward extension of the fishing area corrects that error. north from the shoreline. National Oceanic and Atmospheric DATES: This regulation is effective July Therefore, because the final rule Administration 25, 2003. published on July 9, 2003, which was FOR FURTHER INFORMATION CONTACT: E. the subject of FR Doc. 03–17106, 50 CFR Part 648 Martin Jaffe, Fishery Policy Analyst, contained an incorrect coordinate in the table contained in § 648.80(a)(16), on [Docket No. 030514123–3162–02; I.D. 978–281–9272. page 40810, in the third column, in the 041003B] SUPPLEMENTARY INFORMATION: table contained in § 648.80(a)(16), RIN 0648–AQ76 Need for the Correction second column under ‘‘N. Lat.’’, the last ° ′ The final rule implementing measures coordinate, ‘‘44 58.5 ’’ is removed, and Fisheries of the Northeastern United in its place ‘‘43° 58.8′’’ is added. States; Northeast Multispecies contained in Framework 38 to the FMP was published in the Federal Register This document corrects the table Fishery; Framework Adjustment 38 to under § 648.80(a)(16) as follows: the Northeast Multispecies Fishery on July 9, 2003 (68 FR 40810), and Management Plan; Correcting became effective on the date of List of Subjects in 50 CFR Part 648 publication. The North Latitude Amendment Fishing, Fisheries, Reporting and coordinate for Point GRF5 (44° 58.5′) in recordkeeping requirements. AGENCY: National Marine Fisheries the table, GOM Grate Raised Footrope ■ Service (NMFS), National Oceanic and Trawl Whiting Fishery Exemption Area, For the reasons stated in the preamble, Atmospheric Administration (NOAA), contained in § 648.80(a)(16), is 50 CFR part 648 is correctly amended to Commerce. incorrect. The correct North Latitude read as follows: ° ′ ACTION: Final rule; correcting coordinate for Point GRF5 is 43 58.8 . PART 648—FISHERIES OF THE When the Council voted to include amendment. NORTHEASTERN UNITED STATES the ocean area adjacent to the original SUMMARY: NMFS issued a final rule to experimental fishery area because of its ■ 1. The authority citation for 50 CFR implement measures contained in similarity to the area in which the part 648 continues to read as follows: Framework Adjustment 38 (Framework experimental fishery took place, it Authority: 16 U.S.C. 1801 et seq. 38) to the Northeast (NE) Multispecies incorrectly listed the GRF5 decimal ■ 2. In § 648.80, the table contained in Fishery Management Plan (FMP) to point reference as 44.98 N. Latitude in paragraph (a)(16) is corrected to read as exempt a fishery from the Gulf of Maine the EA. This point reference should follows: (GOM) Regulated Mesh Area mesh size have been 43.98 N. Latitude, which regulations. The final rule implementing converts to the geographic coordinates § 648.80 Multispecies regulated mesh Framework 38 was published in the equivalent of 43 58.8’. While areas and restrictions on gear and methods Federal Register on July 9, 2003. One of substitution of the correct geographic of fishing. the coordinates contained in the Gulf of coordinates for Point GRF5 does not * * * * * Maine (GOM) Grate Raised Footrope change the seaward boundaries of the (a) * * * Trawl Whiting Fishery Exemption Area fishing area, it removes the erroneous (16) * * * GOM GRATE RAISED FOOTROPE TRAWL WHITING FISHERY EXEMPTION AREA (July 1 through November 30)

Point N. Lat.W. Long.

GRF1 43° 15′ 70° 35.4′ GRF2 43° 15′ 70° 00′ GRF3 43° 25.2′ 70° 00′ GRF4 43° 41.8′ 69° 20′ GRF5 43° 58.8′ 69° 20′

* * * * * Dated: July 18, 2003. John Oliver, Deputy Assistant Administrator for Operations, National Marine Fisheries Service. [FR Doc. 03–18894 Filed 07–24–03; 8:45 am] BILLING CODE 3510–22–S

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Proposed Rules Federal Register Vol. 68, No. 143

Friday, July 25, 2003

This section of the FEDERAL REGISTER Independence Avenue SW, STOP 0237, now in effect, handlers in the contains notices to the public of the proposed Washington, DC 20250–0237; Fax: (202) designated areas are subject to issuance of rules and regulations. The 720–8938, or E-mail: assessments. Funds to administer the purpose of these notices is to give interested [email protected]. Comments orders are derived from such persons an opportunity to participate in the should reference the docket number and assessments. It is intended that the rule making prior to the adoption of the final rules. the date and page number of this issue assessment rates as proposed herein of the Federal Register and will be would be applicable to all assessable available for public inspection in the Washington apricots, Washington sweet DEPARTMENT OF AGRICULTURE Office of the Docket Clerk during regular cherries, and Washington-Oregon fresh business hours, or can be viewed at: prunes beginning April 1, 2003, and Agricultural Marketing Service http://www.ams.usda.gov/fv/moab.html. continue until amended, suspended, or FOR FURTHER INFORMATION CONTACT: terminated. This rule will not preempt 7 CFR Parts 922, 923, and 924 Teresa L. Hutchinson, Marketing any State or local laws, regulations, or [Docket No. FV03–922–1 PR] Specialist, Northwest Marketing Field policies, unless they present an Office, Marketing Order Administration irreconcilable conflict with this rule. Increased Assessment Rates for Branch, Fruit and Vegetable Programs, The Act provides that administrative Specified Marketing Orders AMS, USDA, 1220 SW Third Avenue, proceedings must be exhausted before suite 385, Portland, OR 97204; parties may file suit in court. Under AGENCY: Agricultural Marketing Service, telephone: (503) 326–2724, Fax: (503) section 608c(15)(A) of the Act, any USDA. 326–7440; or George J. Kelhart, handler subject to an order may file ACTION: Proposed rule. Technical Advisor, Marketing Order with USDA a petition stating that the Administration Branch, Fruit and order, any provision of the order, or any SUMMARY: This rule would increase the obligation imposed in connection with assessment rates established for the Vegetable Programs, AMS, USDA, 1400 the order is not in accordance with law Washington Apricot Marketing Independence Avenue SW, STOP 0237, and request a modification of the order Committee, the Washington Cherry Washington, DC 20250–0237; telephone: or to be exempted therefrom. Such Marketing Committee, and the (202) 720–2491, Fax: (202) 720–8938. Small businesses may request handler is afforded the opportunity for Washington-Oregon Fresh Prune information on complying with this a hearing on the petition. After the Committee (Committees) for the 2003– regulation by contacting Jay Guerber, hearing USDA would rule on the 2004, and subsequent fiscal periods. Marketing Order Administration petition. The Act provides that the This rule would increase the assessment Branch, Fruit and Vegetable Programs, district court of the United States in any rates established for the Committees AMS, USDA, 1400 Independence SW, district in which the handler is an from $2.50 to $3.00 per ton for STOP 0237, Washington, DC 20250– inhabitant, or has his or her principal Washington apricots, from $0.75 to 0237; telephone: (202) 720–2491, Fax: place of business, has jurisdiction to $1.00 per ton for Washington sweet (202) 720–8938. review USDA’s ruling on the petition, cherries, and $1.00 to $1.50 per ton for provided an action is filed not later than Washington-Oregon fresh prunes. The SUPPLEMENTARY INFORMATION: This rule 20 days after the date of the entry of the Committees are responsible for local is issued under Marketing Agreement ruling. administration of the marketing orders and Order No. 922 (7 CFR part 922), This rule would increase the which regulate the handling of apricots regulating the handling of apricots assessment rates established for the and cherries grown in designated grown in designated counties in Committees for the 2003–2004 and counties in Washington, and prunes Washington; Marketing Agreement and subsequent fiscal periods from $2.50 to grown in designated counties in Order No. 923 (7 CFR part 923) $3.00 per ton for Washington apricots, Washington and in Umatilla County, regulating the handling of sweet from $0.75 to $1.00 per ton for Oregon. Authorization to assess apricot, cherries grown in designated counties in Washington sweet cherries, and $1.00 to cherry, and prune handlers enables the Washington; and Marketing Agreement $1.50 per ton for Washington-Oregon Committees to incur expenses that are and Order No. 924 (7 CFR part 924) fresh prunes. reasonable and necessary to administer regulating the handling of fresh prunes The orders provide authority for the the programs. The fiscal period for these grown in designated counties in Committees, with the approval of marketing orders begins April 1 and Washington and Umatilla County, USDA, to formulate an annual budget of ends March 31. The assessment rates Oregon, hereinafter referred to as the expenses and collect assessments from would remain in effect indefinitely Aorders.’’ The orders are effective under handlers to administer the program. The unless modified, suspended or the Agricultural Marketing Agreement members of the Committees are terminated. Act of 1937, as amended (7 U.S.C. 601– 674), hereinafter referred to as the producers and handlers in designated DATES: Comments must be received by ‘‘Act.’’ counties in Washington and in Umatilla August 11, 2003. The Department of Agriculture County, Oregon. They are familiar with ADDRESSES: Interested persons are (USDA) is issuing this rule in the Committees’ needs and with the invited to submit written comments conformance with Executive Order costs for goods and services in their concerning this rule. Comments must be 12866. local areas and are thus in a position to sent to the Docket Clerk, Marketing This rule has been reviewed under formulate appropriate budgets and Order Administration Branch, Fruit and Executive Order 12988, Civil Justice assessment rates. The assessment rates Vegetable Programs, AMS, USDA, 1400 Reform. Under the marketing orders are formulated and discussed in public

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meetings. Thus, all directly affected production due to the adverse effect of All three Committees are managed persons have an opportunity to cooler temperatures on the size and from the same office, and as such, major participate and provide input. quality of the 2003 cherry crop. expenses recommended by the For the 2002–2003 and subsequent The assessment rate recommended by Committees for the 2003–2004 year fiscal periods, the Washington Apricot the Washington Cherry Marketing include salaries ($54,500), rent and Marketing Committee recommended, Committee was derived by dividing maintenance ($7,200), compliance and USDA approved, an assessment rate anticipated expenses by expected officer ($4,840), and Committee travel that would continue in effect from fiscal shipments of sweet cherries grown in and compensation ($4,000). Budgeted period to fiscal period unless modified, designated counties in Washington. expenses for these items in 2002–2003 suspended, or terminated by USDA Applying the $1.00 per ton rate of were $49,100, $6,800, $5,120, and upon recommendation and information assessment to the Washington Cherry $6,100, respectively. submitted by the Committee or other Marketing Committee’s 64,000-ton The proposed assessment rates would information available to USDA. shipment estimate should provide continue in effect indefinitely unless The Washington Apricot Marketing $64,000 in assessment income. Income modified, suspended, or terminated by Committee met on May 21, 2003, and derived from handler assessments, along USDA upon recommendation and unanimously recommended 2003–2004 with funds from the Committee’s information submitted by the expenditures of $10,559 and an authorized reserve, would be adequate Committees or other available assessment rate of $3.00 per ton of to cover budgeted expenses. Funds in information. apricots. In comparison, last year’s the reserve ($33,064 as of March 31, Although the assessment rates would budgeted expenditures were $11,685. 2003) would be kept within the be in effect for an indefinite period, the The assessment rate of $3.00 is $0.50 maximum permitted by the order Committees would continue to meet higher than the rate currently in effect. (approximately one fiscal period’s prior to or during each fiscal period to The increase is necessary to offset an operational expenses; § 923.42). recommend a budget of expenses and anticipated decrease in production due For the 2001–2002 and subsequent consider recommendations for to the adverse effect of cooler fiscal periods, the Washington-Oregon modification of the assessment rates. temperatures on the size and quality of Fresh Prune Marketing Committee The dates and times of the Committees’ the 2003 apricot crop. recommended, and USDA approved, an meetings are available from the The assessment rate recommended by assessment rate that would continue in Committees or USDA. The Committees’ the Washington Apricot Marketing effect from fiscal period to fiscal period meetings are open to the public and Committee was derived by dividing unless modified, suspended, or interested persons may express their anticipated expenses by expected terminated by USDA upon views at these meetings. USDA would shipments of apricots grown in recommendation and information evaluate the Committees’ designated counties in Washington. submitted by the Committee or other recommendations and other available Applying the $3.00 per ton rate of information available to USDA. information to determine whether assessment to the Washington Apricot The Washington-Oregon Fresh Prune modification of the assessment rates is Marketing Committee’s 3,600 ton Marketing Committee met on June 3, needed. Further rulemaking would be shipment estimate should provide 2003, and unanimously recommended undertaken as necessary. The $10,800 in assessment income. Income 2003–2004 expenditures of $7,411 and Committees’ 2003–2004 budgets and derived from handler assessments an assessment rate of $1.50 per ton of those for subsequent fiscal periods would be adequate to cover budgeted prunes. In comparison, last year’s would be reviewed and, as appropriate, expenses and allow the Apricot budgeted expenditures were $8,095. The approved by USDA. Committee to maintain an acceptable assessment rate of $1.50 is $0.50 higher financial reserve. Funds in the reserve than the rate currently in effect. The Initial Regulatory Flexibility Analysis ($8,360 as of March 31, 2003) would be higher assessment rate is necessary to Pursuant to requirements set forth in kept within the maximum permitted by bring the assessment rate closer to the Regulatory Flexibility Act (RFA), the the order (approximately one fiscal budgeted expenses, and to use less of Agricultural Marketing Service (AMS) period’s operational expenses; § 922.42). the reserve to fund expenses. has considered the economic impact of For the 1997–98 and subsequent fiscal The assessment rate recommended by this rule on small entities. Accordingly, periods, the Washington Cherry the Washington-Oregon Fresh Prune AMS has prepared this initial regulatory Marketing Committee recommended, Committee was derived by dividing flexibility analysis. and the USDA approved, an assessment anticipated expenses by expected The purpose of the RFA is to fit rate that would continue in effect from shipments of fresh prunes grown in regulatory actions to the scale of fiscal period to fiscal period unless designated counties in Washington, and business subject to such actions in order modified, suspended, or terminated by Umatilla County, Oregon. Applying the that small businesses will not be unduly USDA upon recommendation and $1.50 per ton rate of assessment to the or disproportionately burdened. information submitted by the Washington-Oregon Fresh Prune Marketing orders issued pursuant to the Committee or other information Marketing Committee’s 4,300-ton Act, and the rules issued thereunder, are available to USDA. shipment estimate should provide unique in that they are brought about The Washington Cherry Marketing $6,450 in assessment income. Income through group action of essentially Committee met on May 22, 2003, and derived from handler assessments, along small entities acting on their own unanimously recommended 2003–2004 with funds from the Washington-Oregon behalf. Thus, both statutes have small expenditures of $71,865 and an Fresh Prune Marketing Committee’s entity orientation and compatibility. assessment rate of $1.00 per ton of authorized reserve, would be adequate There are approximately 272 cherries. In comparison, last year’s to cover budgeted expenses. Funds in Washington apricot producers, 1,800 budgeted expenditures were $68,715. the reserve ($5,407 as of March 31, Washington sweet cherry producers, The assessment rate of $1.00 is $0.25 2003) would be kept within the and 215 Washington-Oregon fresh prune higher than the rate currently in effect. maximum permitted by the order producers in the respective production The higher assessment rate is necessary (approximately one fiscal period’s areas. In addition, there are to offset an anticipated decrease in operational expenses; § 924.42). approximately 28 Washington apricot

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handlers, 69 Washington sweet cherry for apricots, from $0.75 to $1.00 per ton assessments, along with funds from the handlers, and 10 Washington-Oregon for cherries, and from $1.00 to $1.50 per authorized reserve, would be adequate fresh prune handlers subject to ton for prunes. For the 2003–2004 fiscal to cover budgeted expenses. Funds in regulation under the respective period, the quantity of assessable fruit is the reserve ($5,407 as of March 31, marketing orders. Small agricultural estimated at 3,600 tons for apricots, 2003) would be kept within the producers are defined by the Small 64,000 tons for cherries, and 4,300 tons maximum permitted by the order Business Administration (13 CFR for prunes. (approximately one fiscal period’s 121.201) as those having annual receipts All three Committees are managed operational expenses; § 924.42). of less than $750,000, and small from the same office, and as such, major A review of historical information and agricultural service firms are defined as expenses recommended by the preliminary information pertaining to those whose annual receipts are less Committees for the 2003–2004 year the upcoming crop year indicates that than $5,000,000. include salaries ($54,500), rent and the producer price for the 2003–2004 Based on a three-year average fresh maintenance ($7,200), compliance season could range between $783 and apricot production of 4,225 tons officer ($4,840), and Committee travel $1,050 per ton for Washington apricots, (Washington Apricot Marketing and compensation ($4,000). Budgeted between $1,580 and $2,000 per ton for Committee records), a three-year average expenses for these items in 2002–2003 Washington sweet cherries, and producer price of $893 per ton as were $49,100, $6,800, $5,120, and between $166 and $252 per ton for reported by National Agricultural $6,100, respectively. Washington-Oregon fresh prunes. Statistics Service (NASS), and 272 The higher assessment rates are Therefore, the estimated assessment Washington apricot producers, the necessary to offset increases in salaries revenue for the 2003–2004 fiscal period average annual producer revenue is and rent and maintenance, and as a percentage of total producer approximately $13,871. In addition, projected decreases in the production of revenue could range between 0.29 and based on Washington Apricot Marketing each crop due to the adverse effect of 0.38 percent for Washington apricots, Committee records and 2002 f.o.b. cooler temperatures on the size and between 0.05 and 0.06 percent for prices ranging from $12.50 to $16.50 per quality of the fruit. The additional Washington sweet cherries, and 24-pound container as reported by assessment income would also permit between 0.60 and 0.90 for Washington- USDA’s Market News Service (MNS), all the Washington Apricot Marketing Oregon fresh prunes. of the Washington apricot handlers ship Committee and the Washington-Oregon This action would increase the under $5,000,000 worth of apricots. Fresh Prune Committee to meet assessment obligation imposed on Based on a three-year average fresh budgeted expenses and maintain an handlers. While assessments impose cherry production of 71,220 tons acceptable financial reserve. For the some additional costs on handlers, the (Washington Cherry Marketing Washington Cherry Marketing costs are minimal and uniform on all Committee records), a three-year average Committee, the increased assessment handlers. Some of the additional costs producer price of $1,857 per ton as rate would allow it to use less reserve may be passed on to producers. reported by NASS, and 1,800 funds to meet its budgeted expenses. However, these costs would be offset by Washington cherry producers, the The Committees discussed the benefits derived by the operation of average annual producer revenue is alternatives to this rule, including the marketing orders. In addition, the approximately $73,475. In addition, alternative expenditure levels. Lower Committees’ meetings were widely based on Washington Cherry Marketing assessment rates were considered, but publicized throughout the Washington Committee records and an average 2002 not recommended because they would apricot, Washington sweet cherry, and f.o.b. price of $28.00 per 20-pound not generate the income necessary to Washington-Oregon fresh prune container as reported by MNS, 81 administer the programs with adequate industries and all interested persons percent of the Washington cherry reserves. were invited to attend and participate in handlers ship under $5,000,000 worth Apricot shipments for 2003 are the Committees’ deliberations on all of cherries. estimated at 3,600 tons, which should issues. Like all meetings of these Based on a three-year average fresh provide $10,800 in assessment income. Committees, the May 21, May 22, and prune production of 4,893 tons Income derived from handler June 3 meetings were public meetings (Washington-Oregon Fresh Prune assessments would be adequate to cover and all entities, both large and small, Marketing Committee records), a three- budgeted expenses. Funds in the reserve were able to express views on the year average producer price of $210 per ($8,360 as of March 31, 2003) would be issues. Finally, interested persons are ton as reported by NASS, and 215 kept within the maximum permitted by invited to submit information on the Washington-Oregon prune producers, the order (approximately one fiscal regulatory and informational impacts of the average annual producer revenue is period’s operational expenses; § 923.42). this action on small businesses. approximately $4,779. In addition, Sweet cherry shipments for 2003 are This proposed rule would impose no based on Washington-Oregon Fresh estimated at 64,000 tons, which should additional reporting or recordkeeping Prune Marketing Committee records and provide $64,000 in assessment income. requirements on either small or large 2002 f.o.b. prices ranging from $8.50 to Income derived from handler Washington apricot, Washington sweet $9.50 per 30-pound container as assessments, along with funds from the cherry, or Washington-Oregon fresh reported by MNS, all of the Washington- authorized reserve, would be adequate prune handlers. As with all Federal Oregon prune handlers ship under to cover budgeted expenses. Funds in marketing order programs, reports and $5,000,000 worth of prunes. the reserve ($33,064 as of March 31, forms are periodically reviewed to In view of the foregoing, the majority 2003) would be kept within the reduce information requirements and of Washington apricot, Washington maximum permitted by the order (one duplication by industry and public sweet cherry, and Washington-Oregon fiscal period’s operational expenses; sector agencies. fresh prune producers and handlers may § 923.42). USDA has not identified any relevant be classified as small entities. Fresh prune shipments for 2003 are Federal rules that duplicate, overlap, or This rule would increase the estimated at 4,300 tons, which should conflict with this rule. assessment rates established for the provide $6,450 in assessment income. A small business guide on complying Committees from $2.50 to $3.00 per ton Income derived from handler with fruit, vegetable, and specialty crop

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marketing agreements and orders may § 923.236 Assessment rate. be sent to the Docket Clerk, Fruit and be viewed at: http://www.ama.usda.gov/ On or after April 1, 2003, an Vegetable Programs, AMS, USDA, 1400 fv/moab.html. Any questions about the assessment rate of $1.00 per ton is Independence Avenue, SW., STOP compliance guide should be sent to Jay established for the Washington Cherry 0237, Washington, DC 20250–0237; Fax: Guerber at the previously mentioned Marketing Committee. (202) 720–8938, or E-mail: address in the FOR FURTHER INFORMATION [email protected]. All CONTACT section. PART 924—FRESH PRUNES GROWN comments should reference the docket A 15-day comment period is provided IN DESIGNATED COUNTIES IN number and the date and page number to allow interested persons to respond WASHINGTON AND UMATILLA of this issue of the Federal Register and to this proposed rule. Fifteen days is COUNTY, OREGON will be made available for public deemed appropriate because: (1) The 4. Section 924.236 is revised to read inspection in the Office of the Docket 2003–2004 fiscal period began on April as follows: Clerk during regular business hours or 1, and the marketing orders require that can be viewed at: http://www.ams/ the rate of assessment for each fiscal § 924.236 Assessment rate. usda.gov/fv/moab/html. period apply to all assessable On or after April 1, 2003, an FOR FURTHER INFORMATION CONTACT: Washington apricots, Washington sweet assessment rate of $1.50 per ton is Patricia A. Petrella or Kenneth G. cherries, and Washington-Oregon fresh established for the Washington-Oregon Johnson, Marketing Order prunes handled during such fiscal Fresh Prune Marketing Committee. Administration Branch, Fruit and period; (2) the Committees need to have Vegetable Programs, AMS, USDA, Suite sufficient funds to pay for expenses Dated: July 22, 2003. A.J. Yates, 2A04, Unit 155, 4700 River Road, which are incurred on a continuous Riverdale, MD 20737, telephone: (301) basis; and (3) handlers are aware of this Administrator, Agricultural Marketing Service. 734–5243, or Fax: (301)–734–5275; or action which was unanimously George Kelhart, Technical Advisor, recommended by each of the [FR Doc. 03–18984 Filed 7–24–03; 8:45 am] Marketing Order Administration Committees at public meetings and are BILLING CODE 3410–02–P Branch, Fruit and Vegetable Programs, similar to other assessment rate actions AMS, USDA, 1400 Independence issued in past years. DEPARTMENT OF AGRICULTURE Avenue, SW., STOP 0237, Washington, List of Subjects DC 20250–0237; telephone: (202) 720– Agricultural Marketing Service 2491, or Fax: (202) 720–8938. 7 CFR Part 922 Small businesses may request Apricots, Marketing agreements, 7 CFR Part 930 information on complying with this Reporting and recordkeeping regulation by contacting Jay Guerber, [Docket No. FV03–930–3 PR] requirements. Marketing Order Administration 7 CFR Part 923 Tart Cherries Grown in the States of Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Cherries, Marketing agreements, Michigan, et al.; Increased Assessment Rate Avenue, SW., STOP 0237, Washington, Reporting and recordkeeping DC 20250–0237; telephone: (202) 720– requirements. AGENCY: Agricultural Marketing Service, 2491, or Fax: (202) 720–8938, or e-mail: 7 CFR Part 924 USDA. [email protected]. ACTION: Proposed rule. Plums, Prunes, Marketing agreements, SUPPLEMENTARY INFORMATION: This rule is issued under Marketing Agreement Reporting and recordkeeping SUMMARY: This proposed rule would and Order No. 930 (7 CFR part 930), requirements. increase the assessment rate for tart regulating the handling of tart cherries For the reasons set forth in the cherries that are utilized in the grown in the States of Michigan, New preamble, 7 CFR parts 922, 923, and 924 production of tart cherries products York, Pennsylvania, Oregon, Utah, are proposed to be amended as follows: from $0.0019 to $0.0021 per pound. The Washington, and Wisconsin, hereinafter 1. The authority citation for 7 CFR assessment rate was recommended by referred to as the ‘‘order.’’ The parts 922, 923, and 924 continues to the Cherry Industry Administrative marketing agreement and order are read as follows: Board (Board) under Marketing Order effective under the Agricultural No. 930 for the 2003–2004 and Authority: 7 U.S.C. 601–674. Marketing Agreement Act of 1937, as subsequent fiscal periods. The Board is amended (7 U.S.C. 601–674), hereinafter PART 922—APRICOTS GROWN IN responsible for local administration of referred to as the ‘‘Act.’’ DESIGNATED COUNTIES IN the marketing order which regulates the The Department of Agriculture WASHINGTON handling of tart cherries grown in the (USDA) is issuing this rule in production area. Authorization to assess 2. Section 922.235 is revised to read conformance with Executive Order tart cherry handlers enables the Board to as follows: 12866. incur expenses that are reasonable and This rule has been reviewed under § 922.235 Assessment rate. necessary to administer the program. Executive Order 12988, Civil Justice On or after April 1, 2003, an The fiscal period begins July 1, 2003, Reform. Under the marketing order now assessment rate of $3.00 per ton is and ends June 30, 2004. The assessment in effect, tart cherry handlers are subject established for the Washington Apricot rate would remain in effect indefinitely to assessments. Funds to administer the Marketing Committee. unless modified, suspended, or order are derived from such terminated. PART 923—SWEET CHERRIES assessments. It is intended that the DATES: Comments must be received by assessment rate as issued herein would GROWN IN DESIGNATED COUNTIES August 25, 2003. IN WASHINGTON be applicable to all assessable tart ADDRESSES: Interested persons are cherries beginning July 1, 2003, and 3. Section 923.236 is revised to read invited to submit written comments continue until amended, suspended, or as follows: concerning this action. Comments must terminated. This rule will not preempt

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any State or local laws, regulations, or proceeding which amended the years. There is considerable belief that policies, unless they present an assessment rate section by authorizing juice will be one of the growth outlets irreconcilable conflict with this rule. one assessment rate rather than two for tart cherries. This results from the The Act provides that administrative assessment rates for different tart cherry industry’s promotional efforts being proceedings must be exhausted before products [67 FR 51697]. The provisions undertaken for juice and concentrate parties may file suit in court. Under requiring the establishment of different products, the segmentation of the section 608c(15)(A) of the Act, any assessment rates for different products market into retail and industrial handler subject to an order may file were removed. In their place, the Board components, and the nutritional/ with USDA a petition stating that the is required to consider the volume of nutraceutical profile of the product. As order, and provision of the order, or any cherries used in making various a result, there has been an increase in obligation imposed in connection with products and the relative market value consumer recognition, acceptance, the order is not in accordance with law of those products in deciding whether purchases, and the value of tart cherry and request a modification of the order the assessment rate should be a single, juice and concentrate. or to be exempted therefrom. Such uniform rate applicable to all cherries or According to the Board, prices handler is afforded the opportunity for whether varying rates should be received for tart cherry juice concentrate a hearing on the petition. After the recommended for cherries are now $25.00 per gallon or more. This hearing USDA would rule on the manufactured into different products. is derived by using the fairly common petition. The Act provides that the In addition, the amended order conversion ratio of 100 pounds to the district court of the United States in any provides that the assessment rate should gallon for mid-west production, which district in which the handler is an not apply to cherries diverted in orchard has a raw product value of $0.25 per inhabitant, or has his or her principal by growers, and those diverted by pound. Using a 50 pound to the gallon place of business, has jurisdiction to handlers through destruction at their conversion for the product, typical for review USDA’s ruling on the petition, plants. The Board recommended the west coast production, this represents a provided an action is filed not later than amendment to allow one assessment per pound value of $0.50. The 20 days after the date of the entry of the rate for all tart cherry products handled. difference in the west and mid-west ruling. In making its recommendation, the conversion factors is that tart cherries This rule would increase the Board stated that while a two-tiered produced in the western United States assessment rate established for the assessment rate scheme may be generally have a higher sugar content Board for the 2003–2004 and appropriate in some years, it may not be and larger fruit size, thus fewer raw subsequent fiscal periods for cherries in others. product is needed. The average grower that are utilized in the production of tart The amended order specifically price received ranges between $0.17 to cherry products from $0.0019 to $0.0021 provides that under § 930.41(f)(1) and $0.20 per pound. per pound of cherries. (2) the established assessment rate may According to the Board, puree The tart cherry marketing order be uniform, or may vary depending on products are as valuable and provides authority for the Board, with the product the cherries are used to comparable to juice and juice the approval of USDA, to formulate an manufacture. The Board consider the concentrate products. The Board annual budget of expenses and collect differences in the number of pounds of reported that the spot price for single assessments from handlers to administer cherries utilized for various cherry strength puree for 2001 was about 60 the program. The members of the Board products and the relative market values cents per pound. The raw product are producers and handlers of tart of such cherry products. equivalent (RPE) volume of pureed fruit cherries. They are familiar with the On June 25, 2003 (68 FR 37726), a was 539,504 pounds which is about 0.15 Board’s needs and with the costs for final rule was published in the Federal percent of all processed fruit. The Board goods and services in their local area Register that established a single also reported for 2001 that the price for and are thus in a position to formulate assessment rate for the 2002–2003 fiscal five plus one product was 67 cents per an appropriate budget and assessment period for all tart cherries handled pound. Five plus one is a product of rate. The assessment rate is formulated regardless of the product the cherries cherries and sugar which is and discussed in a public meeting. are used to manufacture. The Board manufactured by many processors (25 Thus, all directly affected persons have determined that the markets for juice, pounds of cherries and five pounds of an opportunity to participate and juice concentrate, and puree were sugar to make a 30 pound commercial provide input. gaining in importance and that cherries container). It is the main product that For the 2002–2003 fiscal period, the used in such products should be handlers produce. Five plus one Board recommended, and the assessed the same as those sold for use cherries are primarily sold and Department approved, an assessment in assorted bakery items, as canned pie remanufactured into assorted bakery rate that would continue in effect from fill, and as dried cherries. The items, canned pie fill, and dried fiscal period to fiscal period unless assessment rate for tart cherry products cherries. Since, juice, juice concentrate, modified, suspended, or terminated by other than juice, juice concentrate, or and puree are not considered to be low the USDA upon recommendation and puree was increased from $0.00175 to value products at this time the Board information submitted by the Board or $0.0019 per pound of cherries. The considers one assessment to be other information available to USDA. assessment rate for cherries utilized for appropriate. The product is moved Section 930.42(a) of the order juice, juice concentrate, or puree was between production areas and may be authorizes a reserve sufficient to cover increased from $0.000875 to $0.0019 per converted into puree or concentrate at a one year’s operating expenses. The pound. later date, depending on the market increased rate is expected to generate The Board considered the above items demand for these products. enough income to meet the Board’s and decided that one assessment rate In comparing the costs of juice, juice operating expenses in 2003–2004. should be recommended for all cherry concentrate, and puree, the Board has The Board met on January 23, 2003, products during 2003–2004. According determined that current prices are and unanimously recommended 2003– to the Board, processors have developed similar for these products when 2004 expenditures of $532,000. The a strong market for juice and compared to the 5 plus 1 product. The industry completed a formal rulemaking concentrate products over the past few information received from the Board

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indicates that puree products are The assessment rate established in cherries in the regulated area. Small becoming a viable market and should be this rule would continue in effect agricultural service firms have been assessed at a higher assessment rate. indefinitely unless modified, defined by the Small Business As a result of last season’s short crop, suspended, or terminated by USDA Administration (13 CFR 121.201) as much of the tart cherry products upon recommendation and other those having annual receipts less than released from inventory were in the information submitted by the Board or $5,000,000, and small agricultural form of tart cherry juice and/or juice other available information. producers are those whose annual concentrate. There is not much, if any, Although the assessment rate would receipts are less than $750,000. A of this product available on the market be effective for an indefinite period, the majority of the tart cherry handlers and today. The Board contends that given Board would continue to meet prior to producers may be classified as small these factors, it is hard to suggest that or during each fiscal period to entities. juice/concentrate, or puree, are of lesser recommend a budget of expenses and The Board unanimously value than the more traditional products consider recommendations for recommended 2003–2004 expenditures such as pie-fill or individually quick modification of the assessment rate. The of $532,000 and an assessment rate frozen tart cherries. Thus, the Board dates and times of Board meetings are increase from $0.0019 to $0.0021 per determined that one assessment rate is available from the Board or the USDA. pound. This rule would increase the appropriate for the 2003–04 fiscal Board meetings are open to the public assessment rate established for the period. and interested persons may express Board and collected from handlers for Budgeted expenditures for the 2003– their views at these meetings. USDA the 2003–2004 and subsequent fiscal 04 fiscal period were unanimously will evaluate Board recommendations periods for cherries that are utilized in recommended at $532,000. The major and other available information to the production of tart cherry products. expenditures recommended by the determine whether modification of the The quantity of assessable tart cherries Board for 2003–04 include $81,000 for assessment rate is needed. Further expected to be produced during the meetings, $149,000 for compliance, rulemaking would be undertaken as 2003–2004 crop year is estimated at 260 $191,000 for personnel, $106,000 for necessary. The Board’s 2003–2004 million pounds. Assessment income, office expenses, and $5,000 for industry budget and those for subsequent fiscal based on this crop, along with interest educational efforts. Budgeted expenses periods would be reviewed and, as income and reserves, would be adequate for those items in 2002–2003 were appropriate, approved by the USDA. to cover budgeted expenses. The major expenditures $85,000 for meetings, $170,000 for The Regulatory Flexibility Act and recommended by the Board for the compliance, $185,000 for personnel, Effects on Small Businesses 2003–2004 fiscal period include $81,000 $80,000 for office expenses, and $2,500 The Agricultural Marketing Service for meetings, $149,000 for compliance, for industry educational efforts, (AMS) has considered the economic $191,000 for personnel, $106,000 for respectively. impact of this action on small entities office expenses, and $5,000 for industry Last fiscal period’s budgeted and has prepared this initial regulatory educational efforts. Budgeted expenses expenditures were $522,500. However flexibility analysis. The Regulatory for those items in 2002–2003 were last season, the tart cherry industry Flexibility Act (RFA) allows AMS to $85,000 for meetings, $170,000 for experienced a significant frost mainly in certify that regulations do not have a compliance, $185,000 for personnel, Michigan which severely impacted the significant economic impact on a $80,000 for office expenses, and $2,500 crop. Only 60 million pounds of substantial number of small entities. for industry educational efforts, cherries were produced in comparison However, as a matter of general policy, respectively. to a normal crop of about 260 million AMS’ Fruit and Vegetable Programs The Board discussed the alternative of pounds. The Board staff responded to (Programs) no longer opts for such continuing the existing assessment rate, this decrease in funds by cutting its certification, but rather performs but concluded that would cause the expenditures. The Board reduced its regulatory flexibility analyses for any amount in the operating reserve to be staff and Committee travel for meetings rulemaking that would generate the reduced to an unacceptable level. and used reserve funds to continue interest of a significant number of small The principal demand for tart cherries administrative operations in 2002–2003. entities. Performing such analyses shifts is in the form of processed products. The recommended assessment rate of the Programs’ efforts from determining Tart cherries are dried, frozen, canned, $0.0021 is higher than the current rate whether regulatory flexibility analyses juiced, and pureed. Data from the of $0.0019 per pound. The Board are required to the consideration of National Agricultural Statistics Service recommended an increased assessment regulatory options and economic or (NASS) states that during the period rate to generate larger revenue to meet regulatory impacts. 1995/96 through 2002/03, its expenses and keep its reserves at an The purpose of the RFA is to fit approximately 92 percent of the U.S. acceptable level. regulatory actions to the scale of tart cherry crop, or 285.7 million In deriving the recommended business subject to such actions in order pounds, was processed annually. Of the assessment rate, the Board determined that small businesses will not be unduly 285.7 million pounds of tart cherries assessable tart cherry production for the or disproportionately burdened. processed, 58 percent was frozen, 30 fiscal period at 260 million pounds. Marketing orders issued pursuant to the percent was canned, and 12 percent was Therefore, total assessment income for Act, and the rules issued thereunder, are utilized for juice. 2003–2004 is estimated at $546,000. unique in that they are brought about Based on NASS data, acreage in the This amount plus adequate funds in the through group action of essentially United States devoted to tart cherry reserve and interest income would be small entities acting on their own production has been trending adequate to cover budgeted expenses. behalf. Thus, both statutes have small downward. Since 1987/88 tart cherry Funds in the reserve (approximately entity orientation and compatibility. bearing acres have decreased from $66,000) would be kept within the There are approximately 40 handlers 50,050 acres, to 36,900 acres in the approximately six months’ operating of tart cherries who are subject to 2002/03 crop year. In 2002/03, 93 expenses as recommended by the Board regulation under the order and percent of domestic tart cherry acreage consistent with § 930.42(a). approximately 900 producers of tart was located in four States: Michigan,

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New York, Utah, and Wisconsin. marketing order requires that the rate of would be to allow otherwise qualified Michigan leads the nation in tart cherry assessment for each fiscal period apply regular dealers to supply the products of acreage with 74 percent of the total. to all assessable tart cherries handled any domestic manufacturer on a Federal Michigan produces about 75 percent of during such fiscal period; (2) the Board contract set aside for small businesses or the U.S. tart cherry crop each year. Tart needs the funds to operate the program; awarded through the SBA 8(a) Program. cherry acreage in Michigan decreased and (3) handlers are aware of this action The purpose of this notice is to solicit from 28,500 acres in 2000–2001, to which was unanimously recommended comments and potential source 27,400 acres in 2002–2003. by the Board at a public meeting. All information from interested parties. In deriving the recommended written comments timely received will assessment rate, the Board estimated be considered before a final DATES: Comments and sources must be assessable tart cherry production for the determination is made on this matter. submitted on or before August 8, 2003. fiscal period at 260 million pounds. List of Subjects in 7 CFR Part 930 ADDRESSES: Address comments to: Edith Cherries used for handler destruction Butler, Program Analyst, U.S. Small and grower diversion outlets are exempt Marketing agreements, Reporting and Business Administration, 409 3rd Street, from assessment obligations. Funds in recordkeeping requirements, Tart SW., Washington DC, 20416, Tel: (202) the reserve (approximately $66,000) will cherries. 619–0422. be kept within the approximately six For the reasons set forth in the months’ operational expenses as preamble, 7 CFR part 930 is proposed to FOR FURTHER INFORMATI0N CONTACT: recommended by the Board which be amended as follows: Edith Butler, Program Analyst, (202) would be consistent with the order 619–0422 FAX (202) 205–7280. (§ 930.42(a)). PART 930—TART CHERRIES GROWN While this action will impose IN THE STATES OF MICHIGAN, NEW SUPPLEMENTARY INFORMATION: Pub. L. additional costs on handlers, the costs YORK, PENNSYLVANIA, OREGON, 100–656, enacted on November 15, are in the form of assessments which are UTAH, WASHINGTON, AND 1988, incorporated into the Small applied uniformly. Some of the costs WISCONSIN Business Act the previously existing may also be passed on to producers. regulation that recipients of Federal However, these costs are offset by the 1. The authority citation for 7 CFR contracts set aside for small businesses benefits derived from the operation of part 930 continues to read as follows: or SBA 8(a) Program procurement must the marketing order. The Board’s Authority: 7 U.S.C. 601–674. provide the product of a small business meeting was widely publicized 2. Section 930.200 is revised to read manufacturer or processor, if the throughout the tart cherry industry and as follows: recipient is other than the actual all interested persons were invited to manufacturer or processor. This attend the meeting and participate in § 930.200 Handler assessment rate. requirement is commonly referred to as Board deliberations on all issues. Like On and after July 1, 2003, the the Nonmanufacturer Rule. The SBA all Board meetings, the January 23, assessment rate imposed on handlers regulations imposing this requirement 2003, meeting was a public meeting and shall be $0.0021 per pound of tart are found at 13 CFR 121.406(b). Section all entities, both large and small, were cherries grown in the production area 303(h) of the law provides for waiver of able to express views on this issue. and utilized in the production of tart this requirement by SBA for any ‘‘class Finally, interested persons are invited to cherry products. of products’’ for which there are no submit information on the regulatory Dated: July 22, 2003. small business manufacturers or and informational impacts of this action A.J. Yates, processors in the Federal market. on small businesses. This action will impose no additional Administrator, Agricultural Marketing To be considered available to reporting or recordkeeping requirements Services. participate in the Federal market on on either small or large tart cherry [FR Doc. 03–18985 Filed 7–24–03; 8:45 am] these classes of products, a small handlers. As with all Federal marketing BILLING CODE 3410–02–M business manufacturer must have order programs, reports and forms are submitted a proposal for a contract periodically reviewed to reduce solicitation or received a contract from information requirements and SMALL BUSINESS ADMINISTRATION the Federal government within the last duplication by industry and public 24 months. The SBA defines ‘‘class of sector agencies. 13 CFR Part 121 products’’ based on six digit coding USDA has not identified any relevant Small Business Size Standards; systems. Federal rules that duplicate, overlap, or Waiver of the Nonmanufacturer Rule The first coding system is the Office conflict with this rule. of Management and Budget North A small business guide on complying AGENCY: U.S. Small Business American Industry Classification with fruit, vegetable, and specialty crop Administration. System (NAICS). The second is the marketing agreements and orders may ACTION: Notice of intent to waive the Product and Service Code established be viewed at: http://www.ams.usda.gov/ nonmanufacturer rule for ammunition by the Federal Procurement Data fv/moab/html. Any questions about the (except small arms) manufacturing. System. compliance guide should be sent to Jay Guerber at the previously mentioned SUMMARY: The U.S. Small Business The U.S. Small Business address in the FOR FURTHER INFORMATION Administration (SBA) is considering Administration is currently processing a CONTACT section. granting a waiver of the request to waive the Nonmanufacturer A 30-day comment period is provided Nonmanufacturer Rule for Ammunition Rule for Ammunition (Except Small to allow interested persons to respond (Except Small Arms) Manufacturing. Arms) Manufacturing, North American to this proposed rule. Thirty days is The basis for waivers is that no small Industry Classification System (NAICS) deemed appropriate because: (1) The business manufacturers are supplying 332993. The public is invited to 2003–2004 fiscal begins on July 1, 2003, these classes of products to the Federal comment or provide source information and ends on June 30, 2004, and the government. The effect of a waiver to SBA on the proposed waiver of the

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nonmanufacturer rule for this NAICS fabrication, falsification or plagiarism, and possible remedial administrative code. and the definitions of each of these sub- action. If the OIG deferred NASA’s components; the requirements for a procedures pending review of the Linda G. Williams, finding of research misconduct; and the results of the research institution’s Associate Administrator for Government four-stage process for determining investigative process, the OIG shall Contracting. research misconduct; i.e., inquiry, decide whether to recommend to the [FR Doc. 03–18986 Filed 7–24–03; 8:45 am] investigation, adjudication, and appeal. NASA Adjudication Official acceptance BILLING CODE 8025–01–P NASA’s research mission involves the of the research institution’s advancement of research in the fields of investigation report and final aeronautics, space science, earth determination, in whole or in part. If the NATIONAL AERONAUTICS AND science, biomedicine, biology, OIG makes such a recommendation, the SPACE ADMINISTRATION engineering, and physical sciences OIG shall provide copies of the (physics and chemistry). NASA fulfills investigation report, evidentiary record, 14 CFR Part 1275 this objective through intramural and final determination to the NASA [Notice 03–083] research performed by NASA Adjudication Official. If not, the OIG researchers and through extramural can initiate its own investigation or RIN 2700–AC50 contracts, cooperative agreements, remand to the institution for further grants, and Space Act agreements with Investigation of Research Misconduct investigation. the private sector, and with other With regard to any investigation AGENCY: National Aeronautics and governmental entities. Because of this conducted by the OIG, the OIG shall Space Administration (NASA). multiplicity of research arrangements, forward the copies of the investigation ACTION: Notice of proposed rulemaking. allegations of research misconduct report and evidentiary record to the could arise in any number of ways. NASA Adjudication Official. All cases SUMMARY: The National Aeronautics and In addition, the core principle of the involving NASA-funded or -supported Space Administration (NASA) proposes Federal Policy is that while research research that have gone through the this rule to implement the ‘‘Federal institutions have the primary investigation stage must receive an Policy on Research Misconduct’’ (the responsibility for the inquiry, independent decision by the NASA investigation, and adjudication of Federal Policy). This proposed rule sets Adjudication Official, which may be allegations of research misconduct, out the definition of research appealed. Federal agencies have ultimate oversight misconduct, procedure for investigating The possible administrative actions authority for the research it funds or allegations of research misconduct and that may be taken by NASA after supports. While there is some overlap in recommending findings, and procedure research misconduct is determined to for adjudicating and appealing such the actions that may be pursued by Federal agencies and research have occurred are set out in the findings. Findings of research proposed rule. The rule cannot misconduct must be accompanied by institutions, the proposed rule is designed to provide procedures and prescribe the manner in which such recommendations for administrative action will be taken, however, as that action by NASA to discourage such criteria for the interaction of NASA with its research partners in dealing with the will depend on whether the research is behavior and ensure the integrity of intramural or extramural, and if the research funded or supported by NASA. various contingencies that could arise in the processing of research misconduct latter, on the type of transaction being DATES: Comments must be received on used to fund or support the research. or before September 23, 2003. allegations. For example, an allegation of research For example, Federal law prescribes ADDRESSES: Send comments to: NASA misconduct might first be submitted to different procedural frameworks for Policy on Research Misconduct (NPRM) NASA through the NASA Office of adverse contract actions, adverse grant Comments, Office of the Chief Scientist, Inspector General (OIG). If the research actions, suspensions, or debarments Code AS, National Aeronautics and in question is conducted by NASA from competing for Federal Space Administration, 300 E Street SW., researchers, NASA shall conduct the procurement or grant awards, and for Washington, DC 20546–0001. NASA inquiry, investigation, adjudication, and adverse personnel actions against will consider late comments to the appeal stages. If the research is Federal civil service employees. In the extent practicable. conducted by a research institution, the latter instance, the OIG may proceed FOR FURTHER INFORMATION CONTACT: OIG shall ordinarily forward the under its previously existing Mayra N. Montrose, (202) 358–1492 allegation to that institution for inquiry administrative investigation process (voice), (202) 358–3931 (fax). and investigation and decide whether when misconduct is alleged against SUPPLEMENTARY INFORMATION: The NASA shall conduct a parallel inquiry Federal civil service employees. The objective of the Federal Policy is to or investigation or defer its procedures proposed rule provides that the create a uniform policy framework for pending completion of the investigative recommendations for administrative Federal agencies for the handling of proceedings of the institution. The action, which must be included with a allegations of misconduct in Federally criteria for these decisions are set forth determination of research misconduct, funded or supported research. Within in the proposed rule. shall be forwarded to the relevant NASA this framework, each Federal agency On the other hand, if the allegation is officials for their consideration. funding or supporting research is received by the institution, the Nevertheless, a final determination of expected to fashion its own regulations institution must inform the OIG if its research misconduct can serve as the to accommodate the various types of inquiry determines that an investigation basis for correcting the research record research transactions in which it is is warranted at which time, the OIG and for notifying the relevant scientific engaged. determines whether the OIG should review groups. In keeping with these objectives, the conduct a parallel investigation. NASA shall amend 14 CFR part 1260 proposed NASA rule incorporates key In all cases, the investigation report (Grants Handbook), 14 CFR 1274 aspects of the Federal policy, including and supporting evidence must be (Commercial agreements with cost the definition of research misconduct as forwarded to NASA for adjudication sharing), and 48 CFR Chapter 18 (NASA

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FAR Supplement), to reflect the Civil Justice Reform has occurred in proposing, performing, implementation of this policy. This proposed rule meets applicable reviewing, or reporting results from research activities funded or supported Regulatory Evaluation standards in section 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice by NASA; and This proposed rule is not a Reform, to minimize litigation, (2) Recommendations on appropriate ‘‘significant regulatory action’’ under eliminate ambiguity, and reduce administrative actions that may be section 3(f) of Executive Order 12866, burden. undertaken by NASA in response to Regulatory Planning and Review, and research misconduct determined to have does not require an assessment of Unfunded Mandates Reform Act occurred. potential costs and benefits under The Unfunded Mandates Reform Act (b) This part applies to all research section 6(a)(3) of that Order. of 1995 (2 U.S.C. 1531–1538) requires wholly or partially funded or supported by NASA. This includes any research Small Entities Federal agencies to assess the effects of their discretionary regulatory actions. In conducted by a NASA installation and As required by the Regulatory particular, the Act addresses actions any research conducted by a public or Flexibility Act (5 U.S.C. 601–612), that may result in the expenditure in private entity receiving NASA funds or NASA has considered whether this any 1 year of $100 million or more by using NASA facilities, equipment or proposed rule would have a significant a State, local, and tribal government in personnel, under a contract, grant, economic impact on a substantial the aggregate, or by the private sector. cooperative agreement, Space Act number of small entities. The term NASA certifies that this regulation agreement, or other transaction with ‘‘small entities’’ comprises small will not compel the expenditure in any NASA. businesses, not-for-profit organizations 1 year of $100 million or more by State, (c) NASA shall make a determination that are independently owned and local, and tribal governments in the of research misconduct only after operated and are not dominant in their aggregate, or by the private sector. careful inquiry and investigation by an fields, and governmental jurisdictions Therefore, the detailed statement under awardee institution, another Federal with populations of less than 50,000. section 202 of the Unfunded Mandates agency, or NASA, and an adjudication NASA certifies under 5 U.S.C. 605(b) Reform Act is not required. conducted by NASA. NASA shall afford that this proposed rule will not have a the accused individual or institution a significant economic impact on small List of Subjects in 14 CFR Part 1275 chance to comment on the investigation business entities. Administrative practice and report and a chance to appeal the procedure, Grant programs, Human decision resulting from the Collection of Information research subjects, Research, Science and adjudication. In structuring procedures This proposed rule does not contain technology, Scientists. in individual cases, NASA may take any information collection requirements For the reasons discussed in the into account procedures already subject to the Paperwork Reduction Act preamble, the National Aeronautics and followed by other entities investigating of 1995 (44 U.S.C. 3501–3520). Space Administration proposes to the same allegation of research amend 14 CFR Chapter V by adding part misconduct. Investigation of allegations Federalism 1275 to read as follows: which, if true, would constitute A rule has implications for federalism criminal offenses, are not covered by under Executive Order 13132, PART 1275—RESEARCH this part. Federalism, if it has a substantial direct MISCONDUCT (d) A determination that research effect on State or local governments and misconduct has occurred must be Sec. accompanied by recommendations on would either preempt State law or 1275.100 Purpose and scope. impose a substantial direct cost of 1275.101 Definitions. appropriate administrative actions. compliance on them. NASA has 1275.102 OIG handling of research However, the administrative actions analyzed this proposed rule under that misconduct matters. themselves may be imposed only after Order and has determined that it does 1275.103 Role of awardee institutions. further procedures described in not have implications for federalism. 1275.104 Conduct of the OIG inquiry. applicable NASA regulations 1275.105 Conduct of the OIG research concerning contracts, cooperative Indian Tribal Governments misconduct investigation. agreements, grants, Space Act 1275.106 Administrative actions. This rule does not have tribal 1275.107 Adjudication. agreements, or other transactions, implications under Executive Order 1275.108 Appeals. depending on the type of agreement 13175, Consultation and Coordination used to fund or support the research in with Indian Tribal Governments, Appendix to Part 1275—NASA question. Administrative actions because it does not have a substantial Research Disciplines and its Associated involving NASA civil service employees direct effect on one or more Indian Enterprises may be imposed only in compliance tribes, on the relationship between the with all relevant Federal laws and Authority: The National Aeronautics and Federal Government and Indian tribes, Space Act of 1958, as amended (42 U.S.C. policies. or on the distribution of power and 2473). (e) Allegations of research misconduct responsibilities between the Federal concerning NASA research may be Government and Indian tribes. §1275.100 Purpose and scope. transmitted to NASA in one of the (a) The purpose of this part is to following ways: by mail addressed to Taking of Private Property establish procedures to be used by the Office of Inspector General (OIG), Code This proposed rule would not effect a National Aeronautics and Space W, National Aeronautics and Space taking of private property or otherwise Administration (NASA) for the handling Administration, 300 E Street, SW, have taking implications under of allegations of research misconduct. Washington, DC 20546–0001; via the Executive Order 12630, Governmental Specifically, the procedures contained NASA OIG Hotline at 1–800–424–9183, Action and Interference with in this part are designed to result in: or the NASA OIG cyber hotline at Constitutionally Protected Property (1) Findings as to whether research www.hq.nasa.gov/office/oig/hq/ Rights. misconduct by a person or institution hotline.html.

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(f) To the extent permitted by law, the misconduct has substance and warrants research misconduct to the entities identity of the Complainant, witnesses, an investigation. involved and determine whether to— or other sources of information who (i) Investigation means the formal (1) Defer its inquiry or investigation wish to remain anonymous shall be kept development of a factual record and the pending review of the results of an confidential. To the extent permitted by examination of that record leading to inquiry or investigation conducted at law, NASA shall protect the research recommended findings on whether the awardee institution or at the Federal misconduct inquiry, investigation, research misconduct has occurred, and agency (referred to for purposes of this adjudication, and appeal records if the recommended findings are that part as external investigations); or maintained by NASA as exempt from such conduct has occurred, to include (2) Commence its own inquiry or mandatory disclosure under 5 U.S.C. recommendations on appropriate investigation. 552, the Freedom of Information Act, as administrative actions. (b) The OIG must inform the NASA amended, and 5 U.S.C. 552a, the Privacy (j) Complainant is the individual Office of the Chief Scientist of all Act, as amended. bringing an allegation of research allegations that meet the definition of research misconduct received by the § 1275.101 Definitions. misconduct related to NASA research. (k) Respondent is the individual or OIG and of the determinations of the (a) Research misconduct means institution who is the subject of an OIG required by § 1275.101. The NASA fabrication, falsification, or plagiarism allegation of research misconduct Office of the Chief Scientist shall notify in proposing, performing, or reviewing related to NASA research. the NASA Office of the Chief Engineer research, or in reporting research or the NASA Office of the Chief (l) Adjudication means the formal results. Research misconduct does not Technologist when the research is either procedure for reviewing and evaluating include honest error or differences of engineering or technology research. the investigation report and the opinion. Research as used in this part (c) The OIG should defer its inquiry accompanying evidentiary record and includes all basic, applied, and or investigation pending review of the for determining whether to accept the demonstration research in all fields of results of an external investigation recommended findings and any science, engineering, and mathematics, whenever possible. Nevertheless, the recommendations for administrative such as research in economics, OIG retains the right to proceed at any actions resulting from the investigation. education, linguistics, medicine, time with a NASA inquiry or psychology, social sciences, statistics, (m) NASA Adjudication Official is the investigation. Circumstances in which and research involving human subjects NASA Associate Administrator for the the OIG may elect not to defer its or animals. Enterprise with the greatest expertise in inquiry or investigation include, but are (b) Fabrication means making up data the NASA research discipline involved not limited to, the following: or results and recording or reporting in the research misconduct allegation. (1) When the OIG determines that the them. The appendix to this part contains the awardee institution is not prepared to (c) Falsification means manipulating list of NASA research disciplines and handle the allegation in a manner research materials, equipment, or their associated Enterprises. consistent with this part; processes, or changing or omitting data (n) Appeal means the formal (2) When the OIG determines that or results such that the research is not procedure initiated at the request of the NASA involvement is needed to protect accurately represented in the research Respondent for review of a the public interest, including public record. determination resulting from the health and safety; (d) Plagiarism means the adjudication and for affirming, (3) When the OIG determines that the appropriation of another person’s ideas, overturning, or modifying it. allegation involves an awardee processes, results, or words without (o) NASA Appeals Official is the institution of sufficiently small size that giving appropriate credit. NASA Deputy Administrator or other it cannot reasonably conduct the (e) Awardee institution means any official designated by the NASA investigation itself; public or private entity or organization Administrator. (4) When the OIG determines that a (including a Federal, State, or local NASA program or project could be agency) that is a party to a NASA § 1275.102 OIG handling of research jeopardized by the occurrence of misconduct matters. contract, grant, cooperative agreement, research misconduct; or Space Act agreement, or to any other (a) When an allegation is made to the (5) When the OIG determines that any transaction with NASA, whose purpose OIG, rather than to the awardee of the notifications or information includes the conduct of research. institution, the OIG shall determine required to be given to the OIG by the (f) NASA research means research whether the allegation concerns NASA awardee institution pursuant to wholly or partially funded or supported research and whether the allegation, if § 1275.103(b) requires NASA to cease its by NASA involving an awardee true, falls within the definition of deferral to the awardee institution’s institution or a NASA installation. This research misconduct in § 1275.101(a). procedures and to conduct its own definition includes research wholly or Investigation of allegations which, if inquiry or investigation. partially funded by NASA appropriated true, would constitute criminal offenses, (d) A copy of the investigation report, funds, or research involving the use of are not covered by this part. If these evidentiary record, and final NASA facilities, equipment, or criteria are met and the research in determination resulting from an external personnel. question is being conducted by NASA investigation must be transmitted to the (g) NASA research discipline means researchers, the OIG shall proceed in OIG. The OIG shall determine whether one of the following areas of research accordance with § 1275.104. If the to recommend to the NASA that together comprise NASA’s research research in question is being conducted Adjudication Official acceptance of the mission for aeronautics, space science, at an awardee institution, another investigation report and final earth science, biomedicine, biology, Federal agency, or is a collaboration determination in whole or in part. The engineering and physical sciences between NASA researchers and OIG’s decision must be made within 45 (physics and chemistry). coinvestigators at either academia or days of receipt of the investigation (h) Inquiry means the assessment of industry, the OIG must refer the report and evidentiary record. This whether an allegation of research allegation that meets the definition of period of time may be extended by the

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OIG for good cause. The OIG shall make inquiry or investigation, or when an initiated its own investigation, the OIG this decision based on the OIG’s allegation of research misconduct may defer its inquiry or investigation assessment of the completeness of the related to NASA research is made until it receives the results of that investigation report, and the OIG’s directly to the awardee institution external investigation. When the OIG assessment of whether the investigating which commences an inquiry or does not receive the results within a entity followed reasonable procedures, investigation, the awardee institution is reasonable time, the OIG shall including whether the Respondent had required to: ordinarily proceed with its own an adequate opportunity to comment on (1) Notify the OIG immediately of the investigation. the investigation report and whether allegation and inform if an initial (b) When the OIG decides to initiate these comments were given due inquiry supports a formal investigation a NASA investigation, the OIG must consideration. If the OIG decides to as soon as this is determined. give prompt written notice to the recommend acceptance of the results of (2) Keep the OIG informed during individual or institution to be the external investigation, in whole or such an investigation. investigated, unless notice would in part, the OIG shall transmit a copy of (3) Notify the OIG immediately at any prejudice the investigation or unless a the final determination, the time during an inquiry or criminal investigation is underway or investigation report, and the evidentiary investigation— under active consideration. If notice is record to the NASA Adjudication (i) If the seriousness of the apparent delayed, it must be given as soon as it Official, and to the NASA Office of the research misconduct warrants an will no longer prejudice the Chief Scientist. When the OIG decides investigation; investigation or contravene not to recommend acceptance, the OIG (ii) If public health or safety is at risk; requirements of law or Federal law- must initiate its own investigation. (iii) If Federal resources, reputation, enforcement policies. (e) In the case of an investigation or other interests need protecting; (c) When alleged misconduct may conducted by the OIG, the OIG shall (iv) If research activities should be involve a crime, the OIG shall determine transmit copies of the investigation suspended; whether any criminal investigation is (v) If there is reasonable indication of report, including the Respondent’s already pending or projected. If not, the possible violations of civil or criminal written comments (if any), the OIG shall determine whether the matter law; evidentiary record and its should be referred to the Department of (vi) If Federal action is needed to recommendations, to the NASA Justice. Adjudication Official and to the NASA protect the interests of those involved in (d) When a criminal investigation by Office of the Chief Scientist. the investigation; or (f) Upon learning of alleged research (vii) If the research community or the the Department of Justice or another misconduct, the OIG shall identify public should be informed. Federal agency is underway or under potentially implicated awards or (4) Provide the OIG with a copy of the active consideration, the OIG shall proposals and, when appropriate, shall investigation report, including the determine what information, if any, may ensure that program, grant, or recommendations made to the awardee be disclosed to the Respondent or to contracting officers handling them are institution’s adjudication official and NASA employees. informed. Neither a suspicion nor the Respondent’s written comments (if (e) To the extent possible, the identity allegation of research misconduct, nor a any), along with a copy of the of sources who wish to remain pending inquiry or investigation, shall evidentiary record. anonymous shall be kept confidential. normally delay review of proposals. (5) Provide the OIG with the awardee To the extent allowed by law, Subject to paragraph (g) of this section, institution’s final determination, documents and files maintained by the reviewers or panelists shall not be including any corrective actions taken OIG during the course of an inquiry or informed of allegations or of ongoing or planned. investigation of misconduct shall be inquiries or investigations in order to (c) If an awardee institution wishes treated as investigative files exempt avoid influencing reviews. the OIG to defer its own inquiry or from mandatory public disclosure upon (g) If, during the course of an OIG investigation, the awardee institution request under the Freedom of conducted inquiry or investigation, it shall complete any inquiry and decide Information Act. appears that immediate administrative whether an investigation is warranted (f) When the OIG proceeds with its action, as described in § 1275.106, is within 60 days. It should similarly own inquiry, it is responsible for necessary to protect public health or complete any investigation, ensuring that the inquiry is completed safety, Federal resources or interests, or adjudication, or other procedure within 60 days after it is commenced. the interests of those involved in the necessary to produce a final The OIG may extend this period of time inquiry or investigation, the OIG shall determination, within an additional 180 for good cause. inform the appropriate NASA officials. days. If completion of the process is (g) On the basis of what the OIG delayed, but the awardee institution learns from an inquiry, and in § 1275.103 Role of awardee institutions. wishes NASA’s deferral of its own consultation as appropriate with other (a) The awardee institutions have the procedures to continue, NASA may NASA offices, the OIG shall decide primary responsibility for prevention require submission of periodic status whether a formal investigation is and detection of research misconduct reports. warranted. and for the inquiry, investigation, and (d) Each awardee institution must adjudication of research misconduct maintain and effectively communicate § 1275.105 Conduct of the OIG research misconduct investigation. alleged to have occurred in association to its staff, appropriate policies and with their own institutions, although procedures relating to research (a) The OIG shall make every NASA has ultimate oversight authority misconduct, including the requirements reasonable effort to complete a NASA for NASA research. on when and how to notify NASA. research misconduct investigation and (b) When an allegation of research issue a report within 120 days after misconduct related to NASA research is § 1275.104 Conduct of the OIG inquiry. initiating the investigation. The OIG made directly to the OIG and the OIG (a) When an awardee institution or may extend this period of time for good defers to the awardee institution’s another Federal agency has promptly cause.

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(b) A NASA investigation may § 1275.106 Administrative actions. §1275.107 Adjudication. include: (a) Listed in paragraphs (a)(1) through (a) The NASA Adjudication Official (1) Review of award files, reports, and (a)(3) of this section are possible must review and evaluate the other documents readily available at administrative actions that may be investigation report and the evidentiary NASA or in the public domain; recommended by the investigation record required to be transmitted (2) Review of procedures or methods report and adopted by the adjudication pursuant to §1275.102(d) and (e). The and inspection of laboratory materials, process. They are not exhaustive and are NASA Adjudication Official may specimens, and records at awardee in addition to any administrative initiate further investigations, which institutions; actions necessary to correct the research may include affording the Respondent (3) Interviews with parties or record. The administrative actions range another opportunity for comment, witnesses; from minimal restrictions (Group I before issuing a decision regarding the (4) Review of any documents or other Actions) to severe restrictions (Group III case. The NASA Adjudication Official evidence provided by or properly Actions), and do not include possible may also return the investigation report to the OIG with a request for further obtainable from parties, witnesses, or criminal sanctions. fact-finding or analysis. other sources; (1) Group I Actions. (i) Send a letter (b) Based on a preponderance of the (5) Cooperation with other Federal of reprimand to the individual or evidence, the NASA Adjudication agencies; and institution. Official shall issue a decision setting (6) Opportunity for the Respondent to (ii) Require as a condition of an award forth the Agency’s findings as to be heard. that for a specified period of time an whether research misconduct has (c) The OIG may invite outside individual, department, or institution occurred and recommending consultants or experts to participate in obtain special prior approval of appropriate administrative actions that a NASA investigation. particular activities from NASA. may be undertaken by NASA in (d) During the course of the (iii) Require for a specified period of response to research misconduct investigation, the OIG shall provide a time that an institutional official other determined to have occurred. The draft of the investigation report to the than those guilty of research misconduct NASA Adjudication Official shall Respondent, who shall be invited to certify the accuracy of reports generated render a decision within 30 (thirty) days submit comments. The Respondent under an award or provide assurance of after receiving the investigation report must submit any comments within 20 compliance with particular policies, and evidentiary record, or after days of receipt of the draft investigation regulations, guidelines, or special terms completion of any further proceedings. report. This period of time may be and conditions. The NASA Adjudication Official may extended by the OIG for good cause. (2) Group II Actions. (i) Restrict for a extend this period of time for good Any comments submitted by the specified period of time designated cause. Respondent shall receive full activities or expenditures under an (c) The decision shall be sent to the consideration before the investigation active award. Respondent and, if appropriate, to the report is made final. (ii) Require for a specified period of Complainant. If the decision confirms (e) At the end of the investigation time special reviews of all requests for the alleged research misconduct, it must proceedings, an investigation report funding from an affected individual, include instructions on how to pursue must be prepared, that shall include department, or institution to ensure that an appeal to the NASA Appeals Official. recommended findings as to whether steps have been taken to prevent The decision shall also be transmitted to research misconduct has occurred. A repetition of the research misconduct. the NASA Office of the Chief Scientist and the OIG. recommended finding of research (3) Group III Actions. (i) Immediately misconduct requires that: suspend or terminate an active award. §1275.108 Appeals. (1) There be a significant departure (ii) Debar or suspend an individual, (a) The Respondent may appeal the from accepted practices of the relevant department, or institution from decision of the NASA Adjudication research community for maintaining the participation in NASA programs for a Official by notifying the NASA Appeals integrity of the research record; specified period of time. Official in writing of the appeal within (2) The research misconduct be 30 days after Respondent’s receipt of the committed intentionally, knowingly, or (iii) Prohibit participation of an individual as a NASA reviewer, advisor, decision. If the decision is not appealed in reckless disregard of accepted within the 30-day period, the decision practices; and or consultant for a specified period of time. becomes the final Agency action insofar (3) The allegation be proven by a as the findings are concerned. preponderance of evidence. (b) In deciding what actions are appropriate when research misconduct (b) The NASA Appeals Official shall (f) The investigation report must also inform the Respondent of a final be transmitted with the is found, NASA officials should consider the seriousness of the determination within 30 days after recommendations for administrative receiving the appeal. The NASA action, when recommended findings of misconduct, including, but not limited to: Appeals Official may extend this period research misconduct are made. Section of time for good cause. The final 1275.106 lists possible recommended (1) The degree to which the determination may affirm, overturn, or administrative actions and misconduct was knowing, intentional, modify the decision of the NASA considerations for use in determining or reckless; Adjudication Official and shall appropriate recommendations. (2) Whether the misconduct was an constitute the final Agency action (g) NASA OIG may elect to proceed isolated event or part of a pattern; insofar as the findings are concerned. with its administrative investigation (3) Whether the misconduct had a The final determination shall also be processes in lieu of a research significant impact on the research transmitted to the NASA Office of the misconduct investigation under this record, research subjects, or other Chief Scientist and the OIG. part when the allegation is against a researchers, institutions, or the public (c) Once final Agency action has been civil service employee. welfare. taken pursuant to paragraphs (a) or (b)

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of this section, the recommendations for this number at TTY by calling the toll- Congress placed responsibilities for the administrative action shall be sent to the free Federal Information Relay Service correction and notification of defects in relevant NASA components for further at (800) 87–8339. manufactured homes on manufacturers, proceedings in accordance with SUPPLEMENTARY INFORMATION: The and set guidelines for manufacturers to applicable laws and regulations. Manufactured Housing Consensus meet these responsibilities. Section 613 of the Act (42 U.S.C. 5412) imposes Appendix to Part 1275—NASA Committee (MHCC) has transmitted to the Secretary a recommendation dated additional repair and repurchase Research Disciplines and Respective requirements on manufacturers. Subpart Associated Enterprises March 26, 2003 (MHCC proposal), that the Manufactured Home Procedural and I, which the MHCC proposal would 1. Aeronautics Research—Aerospace Enforcement Regulations, 24 CFR part amend, contains the regulations by Technology Enterprise 3282, be amended by revising Subpart I, which the Department has implemented 2. Space Science Research—Space Science Consumer Handling and Remedial the intent to Congress with respect to Enterprise notification and correction 3. Earth Science Research and Actions (24 CFR 3282.401–416) Applications—Earth Science Enterprise (Subpart I). requirements. The MHCC proposal seeks to limit the 4. Biomedical Research—Biological and Background Physical Research Enterprise statutory responsibilities of 5. Fundamental Biology—Biological and The MHCC as established by the manufacturers while imposing similar Physical Research Enterprise National Manufactured Housing duties on parties on whom Congress did 6. Fundamental Physics—Biological and Construction and Safety Standards Act not place these responsibilities, such as Physical Research Enterprise of 1974, 42 U.S.C. 5401–5426 (the Act) retailers, distributors, transporters, and 7. Other engineering research not covered for the purpose of providing periodic landscapers. HUD does not have by disciplines above—NASA Chief Engineer recommendations to the Secretary to authority to shift statutory 8. Other technology research not covered responsibilities away from by disciplines above—NASA Chief adopt, revise, and interpret the federal Technologist manufactured housing construction and manufacturers. The MHCC has not established that HUD has authority to Dated: July 10, 2003. safety standards and the procedural and enforcement regulations. 42 U.S.C. hold these newly identified parties Sean O’Keefe, 5403(a)(3)(A). It may submit to the responsible for correction and Administrator. Secretary proposed procedural and notification of defects in manufactured [FR Doc. 03–18982 Filed 7–24–03; 8:45 am] enforcement regulations and homes. BILLING CODE 7510–01–P recommendations for the revision of the The MHCC proposal adds regulations. 42 U.S.C. 5403(b)(1). To be significantly to the administrative promulgated by HUD, the regulation responsibilities of HUD and the states, DEPARTMENT OF HOUSING AND and revisions recommended by the by making HUD and the State URBAN DEVELOPMENT MHCC must be consistent with the Act. Administrative Agencies (SAA’s) the Within 120 days from the date on initial arbiters of responsibility on all 24 CFR Part 3282 which the Secretary receives a proposed complaints and information about problems in manufactured homes. The [Docket No. FR–4867–N–02] procedural or enforcement regulation from the MHCC, the Secretary approve proposal does not take into account the Manufactured Housing Consensus a reject the proposal. If the Secretary self-policing responsibilities of the Committee—Rejection of Consumer rejects the proposal, HUD must provide manufacturers set out in section 615 of Complaint Handling Proposal to the MHCC a written explanation of the Act (42 U.S.C. 5414). The concern the reasons for rejection and publish in about additional administrative burdens AGENCY: Office of the Assistant the Federal Register the rejected also applies to the provisions that make Secretary for Housing-Federal Housing proposal and the reasons for the SAA’s responsible for assuring that all Commissioner, HUD. rejection. 42 U.S.C. 5403(b)(4). notifications are sent and all concerns ACTION: Denial for recommendation for are made. In addition, the MHCC proposed regulatory changes. Procedural Explanation proposal may define roles for HUD and The Secretary recognizes and the SAAs that require them to interfere SUMMARY: The Secretary has rejected a appreciates that the members of the in matters that are traditionally settled proposed recommendation by the MHCC are working hard to implement through private contracts. Further, HUD Manufactured Housing Consensus the role of the MHCC in the federal cannot permit voluntary undertakings Committee to revise regulations manufactured housing program. by private parties to constitute concerning how manufacturers are Although this proposal is inconsistent governmental action for purposes of required to handle reports of problems with the authority granted to the MHCC judicial review. with manufactured homes. The under the Act, HUD is publishing this The MHCC proposal would, in effect, Secretary has determined that the proposal (Appendix A) and the create a warranty for products found in proposal conflicts in several ways with Secretary’s reasons for rejecting the the home, and would then limit the the requirements of the National proposal, as if the proposal were subject applicable time of the warranty. There Manufactured Housing Construction to the procedures in section 604(b). is not authority in the Act to create a and Safety Standards Act of 1974. warranty. In fact, during consideration FOR FURTHER INFORMATION CONTACT: Decision of the Secretary of the most recent amendments to the William W. Matchneer III, The Secretary rejects the MHCC’s Act, Congress heard testimony Administrator, Manufactured Housing proposal for the revision of regulations suggesting a statutory warranty but Program, U.S. Department of Housing in Subpart I for the handling of reports declined to adopt this approach. and Urban Development, 451 Seventh of problems in manufactured housing Instead, the Act was amended in section Street, SW., Washington, DC 20410– for reasons that include the following: 623 (42 U.S.C. 5422) to establish an 8000; telephone (202) 708\6401 (this is The MHCC proposal is in direct additional protection for consumers not a toll-free number). Hearing- or conflict with parts of the Act. In section through a dispute resolution program speech-impaired individuals may access 615 of the Act (42 U.S.C. 5414), that covers problems reported in the

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first year after a manufactured home is Dated: July 17, 2003. purchaser under any contract or applicable installed. John C. Weicher, law. (b) The liability of manufactured home Assistant Secretary for Housing-Federal The MHCC proposal does not manufacturers to provide remedial actions Housing Commissioner. adequately implement the provision in under this subpart is limited by the principle section 615(h) of the Act (43 U.S.C. Appendix A—Manufactured Housing that manufacturers are not responsible for 5414(h)), which requires manufactures Consensus Committee Proposal To failures that occur in manufactured homes or to submit a notification and correction Amend Manufactured Housing Home parts thereof as the result of the actions of other responsible parties, normal wear and plan to the Secretary for approval before Procedural and Enforcement aging, gross and unforeseeable consumer the plan is implemented. Under the Regulations 24 CFR Part 3282 abuse, or unforeseeable neglect of MHCC proposal, a party would be March 26, 2003. maintenance. permitted to correct a home without (c) Responsibility for remedial actions first having a plan of correction § 3282.7 Definitions. under this subpart may also be assessed to responsible parties to the extent that they approved. (i) Dealer—See Retailer. have contributed to or caused the failure. (j) Defect means a failure to comply, or the The MHCC proposal seeks to establish (d) The extent of a responsible party’s failure of a component used to comply with responsibility for providing notification and/ time limits for a manufacturer’s an applicable Federal Manufactured home or correction depends upon the seriousness responsibilities under section 615 (42 safety and construction standard that renders U.S.C. 5414) that are not consistent with of problems for which they may be the manufactured home or any part thereof responsible under this subpart. the Act. Section 615 contemplates not fit for the ordinary use for which it was (e) It is the policy of these regulations that enforcement authority over certain intended, but does not result in an all consumer complaints or other information defects about which the consumer unreasonable risk of injury or death to indicating the possible existence of an would not have knowledge unless occupants of the affected manufactured imminent safety hazard, serious defect, home. See related definitions of imminent defect, or non-compliance should be referred notified or until his or her safety is safety hazard (definition q), non-compliance compromised. While the Act places to the manufacturer and/or retailer and/or (definition x), and serious defect (definition other responsible party of the potentially affirmative notification and correction ff). affected manufactured home as early as requirements on manufacturers for (dd) Retailer means any person engaged in possible so that the manufacturer or other defects as a protective measure even if the sale, leasing, or distribution of new responsible party can begin to timely respond an affected consumers has not yet manufactured homes primarily to persons to the consumer and take any necessary complained, the MHCC proposal would whom in good faith purchase or lease a remedial actions. If the responsible party manufactured home for purposes other than limit a manufacturer’s responsibility to receiving the notice believes the issue is the resale. responsibility of another responsible party, act until after a consumer complains. (ee) Responsible party means any of the the information may be forwarded to that Further, the MHCC proposal would following: manufactured home party. limit the responsibility of manufacturers manufacturers, retailers, distributors, and retailers to those defects discovered contractors, product suppliers, product § 3282.403 Limitations within 5 years from the date of the first distributors, installers, transporters, This shall limit the requirements under developers, landscapers, and/or this subpart for notification or correction to sale. An even shorter period of 2 years homeowners. would be established for defects that the time frames listed below; (a) By a manufactured home manufacturer could be attributed to other parties. Subpart—Consumer Complaint or retailer, to a period of five (5) years from Section 615 includes no such limits. Handling and Remedial Actions the date of first sale and completion of set- up of the manufactured home to the first The MHCC proposal raises further § 3282.401 Purpose and scope. questions relating to section 623 of the purchaser. Any home over five (5) years in (a) The purpose of this subpart is to age from the date of sale and delivery to the act (42 U.S.C. 5422). Section 623 establish a system under which the first purchaser is exempt from these requires HUD to implement a dispute protections of the Act are provided with a regulations or requirements for notification resolution program by December 2005, minimum of formality and delay, but in or correction by a manufactured home which would be used to resolve which the rights of all parties are protected. manufacturer or retailer; disputes among manufacturers, retailers, (b) This subpart sets out the procedures to (b) By an installer, contractor, product and installers about responsibilities for be followed by responsible parties, State supplier, product distributor, transporter, Administrative Agencies, primary inspection developer, or landscaper for work completed the correction of defects reported in the agencies, and the Secretary to assure proper and/or product supplied, to a period of two first year after a manufactured home is notification and/or correction with respect to (2) years from the date such work is installed. The MHCC proposal is not in manufactured homes as required by the Act. completed or such product is supplied. Any agreement with the section 623 process Notification and correction may be required home over two (2) years after the date of because the proposal; adds potentially to be provided with respect to manufactured completion of such work is exempt from responsible parties (e.g., landscapers, homes that have been sold or otherwise these regulations by an installer, contractor, contractors, product suppliers); creates released by the manufacturer to another party product supplier, product distributor, when the responsible party, an SAA or the transporter, developer, or landscaper. the limits that are inconsistent with Secretary determines that an imminent safety (c) The homeowner has a continuing section 623; and fails to provide for a hazard, serious defect, or defect may exist in obligation for providing adequate upkeep and forum in which the disputes are to be those manufactured homes as set out herein. maintenance of their manufactured home. resolved. For non-compliances, correction shall be (d) Manufacturers and/or other responsible required to the single home it’s reported in. parties are not liable for the notification and Text of MHCC Proposal (c) This subject sets out the rights of correction of work done by others. retailers under section 613 of the Act, 42 The text of the rejected proposal U.S.C. 5412, to obtain remedies from § 3282.404 Consumer complaint and submitted by the MHCC is published as manufacturers in certain circumstances. information referral. Appendix A. When a consumer complaint or other § 3282.402 General principles. information indicating the likely existence of (a) Nothing in this subpart or in these a non-compliance, defect, serious defect, or regulations shall limit the rights of the imminent safety hazard is received by a State

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Administrative Agency or the Secretary, the be submitted via fax to 703–292–4058, Mailers using Delivery Confirmation SAA or the Secretary shall forward the ATTN: Obataiye B. Akinwole or via Service (DelCon) must use a single complaint or other information to the email to [email protected]. concatenated barcode that combines the responsible party. The responsibility to FOR FURTHER INFORMATION CONTACT: postal routing code and Delivery assure proper investigation and assignment of responsible party belongs to the SAA in Obataiye B. Akinwole, (703) 292–3643. Confirmation using the symbologies in the state in which the home is located. The SUPPLEMENTARY INFORMATION: DMM C850. Delivery Confirmation SAA or the Secretary may, when it appears Service is not mandatory; however, from the complaint or other information that Background customers using the service option must more than one manufactured home may be Under current Postal Service use the label format in this notice. involved, simultaneously send a copy of the standards, there is no requirement for Mailers will be required to submit 10 complaint or other information to the SAA of barcodes on Merchandise Return samples of new labels to the office the state where the manufactured home was Service (MRS) labels with the exception where the permit was originally issued manufactured or to the Secretary if there is of those using Delivery Confirmation no later than the next anniversary date no such SAA. When it appears that an Service. of the permit, or within six months of imminent safety hazard or serious defect may be involved, the SAA shall send a copy to the The Postal Service is concerned that the effective date of this notice, Secretary. The SAA in the state of production optimum service may not be realized whichever occurs last. Although of the manufactured home shall assist the when MRS labels are not barcoded. As customers will not be required to SAA in the state in possession of the a result, the Postal Service will, upon provide samples when MRS labels are manufactured home as needed. The SAA in publication of a final rule, require a reprinted, it is recommended that they the state of production shall be responsible Postal routing barcode that represents work with their local office to ensure to assure the manufacturer’s records reflect the correct 5-digit ZIP Code information pieces meet postal standards. the proper investigation, record keeping, for the delivery address of the MRS Although exempt from the notice and corrective action, and responses of label. This is in line with the Postal comment requirements of the manufacturer actions. Service’s obligation to ensure prompt, Administrative Procedure Act [5 U.S. C. § 3282.405 Investigation, determination, efficient service for all product lines. of 553 (b), (c)] regarding proposed repair and notification by responsible Effective Date rulemaking by 39 U.S.C. 410(a), the parties. Postal Service invites public comment (a) The manufacturer shall review its The Postal Service is proposing that of the following proposed revisions to records to determine whether or not a defect, the following revisions become effective the DMM, incorporated by reference in serious defect, or imminent safety hazard is January 5, 2004. Mailers are permitted the Code of Federal Regulations. See 39 indicated as set out in this subpart with to prepare labels under the revised CFR 111.1. respect to all manufactured homes produced standards immediately upon by the manufacturer within five (5) years of publication of the final rule. Effective List of Subjects in 39 CFR Part 111 the date of sale to the first purchaser, in with required compliance on June 2, Administrative practice and which there likely exists an imminent safety 2005 nonbarcoded labels will not be procedure, Postal Service. hazard, serious defect, or defect. accepted. PART 111—[AMENDED] [FR Doc. 03–18908 Filed 7–24–03; 8:45 am] Proposed Changes BILLING CODE 4210–27–M Under this proposal, all MRS labels 1. The authority citation for 39 CFR must include a properly prepared Part 111 continues to read as follows: barcode that represents the correct ZIP POSTAL SERVICE Authority: 5 U.S. C. 552(a); 39 U.S.C. 101, Code information for the delivery 401,403,404,414,3001–3011,3201–3219, 39 CFR Part 111 address on the MRS label plus the 3403–3406, 3621, 3626, 5001. appropriate verifier character suffix or 2. Revise the following sections of the Merchandise Return Service Label application identifier prefix characters Domestic Mail Manual (DMM) as set Changes appropriate for the barcode symbology forth below: as described in Domestic Mail Manual AGENCY: Postal Service. (DMM) C850 for machinable parcels. Domestic Mail Manual (DMM) ACTION: Proposed rule. Effective January 10, 2004, only the * * * * * UCC/EAN Code 128 symbology may be SUMMARY: The Postal Service proposes used for all parcel barcodes. All S Special Services revisions to the Domestic Mail Manual mailable hazardous materials sent at S900 Special Postal Services that would require a Postal routing First-Class Mail, Priority Mail, or * * * * * barcode on all Merchandise Return Express rates are exempt from this Service labels. standard. S920 Convenience DATES: Submit comments on or before The Postal Service is replacing the * * * * * August 25, 2003. Small Parcel and Bundle Sorter (SPBS) ADDRESSES: Mail or deliver written with the new Automated Parcel S923 Merchandise Return Service comments to the Manager, Mail Processing System (APPS). The APPS * * * * * Preparation and Standards, U. S. Postal machine is capable of processing small Service, 1735 N. Lynn Street, Room parcels that would normally by pass 5.0 FORMAT 3025, Arlington, VA 22209–6038. Bulk Mail Center (BMC) operations, at * * * * * Copies of all written comments will be more than twice the efficiency of the available for inspection and SBPS machine. This machine is capable 5.6 Format Elements photocopying between 9 a.m. and 4 of reading a variety of barcode * * * * * p.m., Monday through Friday, at Postal symbologies. As a result, customers [Add new item j to read as follows:] Service Headquarters Library, 475 distributing labels for parcels that will j. Every MRS label must include a L’Enfant Plaza SW, 11 Floor N, bypass the BMC environment must use properly prepared barcode that Washington, DC 20260. Comments may the standards in this notice. represents the correct ZIP Code

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information for the delivery address on following requirement must be met in side and not overlap any adjacent item. the label plus the appropriate verifier preparing MRS labels: The barcode must be parallel to the character suffix or application identifier (1) Barcode Location. If a separate address as read. label is used, a minimum clear zone of prefix characters appropriate for the * * * * * barcode symbology as described in C850 1⁄8 inch must be maintained on all sides for machinable parcels. MRS labels with of the barcode. If a barcoded label is Exhibit 5.6a Merchandise Return Delivery Confirmation items must use a used it must be placed either above the Label With No Special Services or With single concatenated barcode as delivery address and to the right of the Insurance, Special Handling, or Pickup return address or to the left of the described in C850. In addition to the Service (see 5.6d) delivery address. In all cases the barcode requirements in C850, the barcode must be placed on the address [Revise Exhibit 5.6a as follows:]

* * * * * Exhibit5.6e Merchandise Return Label [Add new Exhibit 5.6e to read as With a Single Concatenated Barcode follows:]

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* * * * * Protocol in order to ensure the United ADDRESSES: Comments on the We will publish appropriate States meets its obligations under the companion direct final rule may be amendment to 39 CFR 11.3 to reflect the Protocol and associated amendments. submitted by mail to Air and Radiation. changes if the proposal is adopted. In the ‘‘Rules and Regulations’’ Send two copies of your comments to: Air and Radiation Docket (6102), Air Stanley F. Mires, section of the Federal Register, we are Docket No. A–92–13, Section XIII, U.S. Chief Counsel, Legislative. adopting these prohibitions as a direct Environmental Protection Agency, [FR Doc. 03–18996 Filed 7–24–03; 8:45 am] final rule without prior proposal because we view this as a Mailcode 6205J, 1200 Pennsylvania BILLING CODE 7710–12–P noncontroversial action and anticipate Ave. NW., Washington, DC 20460. The no adverse comment. We have Docket’s hours of operation are 8:30 explained our reasons for this action in a.m. until 4:30 p.m. Monday through ENVIRONMENTAL PROTECTION the preamble to the direct final rule. If Friday. Comments may also be AGENCY we receive no relevant adverse submitted electronically, through hand delivery or courier. Refer to the 40 CFR Part 82 comment, we will not take further action on this proposed rule. If we companion direct final for detailed [FRL–7529–5] receive relevant adverse comment, we instructions on submitting comments RIN 2060–AK67 will withdraw the direct final rule and electronically, or through hand delivery it will not take effect. We will address or courier. Protection of Stratospheric Ozone: all public comments in a subsequent FOR FURTHER INFORMATION CONTACT: For Ban on Trade of Methyl Bromide With final rule based on this proposed rule. further information about this proposed Non-Parties to the Montreal Protocol We will not institute a second comment rule, contact Kate Choban by telephone period on this action. Any parties AGENCY: Environmental Protection at (202) 564–3524, or by e-mail at interested in commenting must do so at [email protected], or by mail at Kate Agency (EPA). this time. ACTION: Notice of proposed rule. Choban, U.S. Environmental Protection DATES: Written comments on the Agency, Global Programs Division, SUMMARY: With this action, EPA is companion direct final rule must be Stratospheric Program Implementation proposing to prohibit the import and received on or before August 25, 2003, Branch (6205J), 1200 Pennsylvania export of methyl bromide (class I, Group unless a public hearing is requested. Avenue, NW., Washington, DC 20460, VI controlled substance) from or to a Comments must then be received on or 202–564–3524. Overnight or courier foreign state that is not a Party to the before 30 days following the public deliveries should be sent to 501 3rd 1992 Copenhagen Amendments to the hearing. Any party requesting a public Street, NW., Washington, DC, 20001. Montreal Protocol on Substances that hearing must notify the contact person You may also visit the Ozone Depletion Deplete the Ozone Layer (Protocol). EPA listed below by 5 p.m. Eastern Standard Web site of EPA’s Global Programs is proposing to ban trade in methyl Time on August 4, 2003. If a hearing is Division at http://www.epa.gov/ozone/ bromide with non-Parties to the requested it will be held August 19, index.html for further information about Copenhagen Amendments to the 2003. EPA’s Stratospheric Ozone Protection

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regulations, the science of ozone layer the types of entities that EPA is now docket but will be available only in depletion, and other topics. aware could potentially be regulated by printed, paper form in the official public SUPPLEMENTARY INFORMATION: This this action. To determine whether your docket. Although not all docket action concerns the import and export facility, company, business, materials may be available of methyl bromide (class I, Group VI organization is regulated by this action, electronically, you may still access any controlled substance) from or to a you should carefully examine the of the publicly available docket foreign state that is not a Party to the regulations promulgated at 40 CFR 82, materials through the docket facility 1992 Copenhagen Amendments to the Subpart A. If you have questions identified in Unit I.B. Montreal Protocol on Substances the regarding the applicability of this action For public commenters, it is Deplete the Ozone Layer (Protocol). EPA to a particular entity, consult the person important to note that EPA’s policy is is proposing to ban trade in methyl listed in the preceding FOR FURTHER that public comments, whether bromide with non-Parties to the INFORMATION CONTACT section. submitted electronically or in paper, will be made available for public Copenhagen Amendments to the B. How Can I Get Copies of This Protocol in order to ensure the United viewing in EPA’s electronic public Document and Other Related docket as EPA receives them and States meets its obligations under the Information? Protocol and associated amendments. without change, unless the comment For further information, please see the 1. Docket. EPA has established an contains copyrighted material, CBI, or official public docket for this action information provided in the direct final other information whose disclosure is under the Office of Air and Radiation action that is located in the ‘‘Rules and restricted by statute. When EPA Docket & Information Center, Air Docket Regulations’’ section of this Federal identifies a comment containing ID No. A–92–13, Section XIII. The Register publication. copyrighted material, EPA will provide official public docket consists of the a reference to that material in the Table of Contents documents specifically referenced in version of the comment that is placed in I. General Information this action, any public comments EPA’s electronic public docket. The A. Regulated entities received, and other information related entire printed comment, including the B. How Can I Get Copies Of This Document to this action. Although a part of the copyrighted material, will be available and Other Related Information? official docket, the public docket does in the public docket. C. How and To Whom Do I Submit not include Confidential Business Public comments submitted on Comments? Information (CBI) or other information computer disks that are mailed or D. How Should I Submit Confidential Business Information (CBI) To the whose disclosure is restricted by statute. delivered to the docket will be Agency? The official public docket is the transferred to EPA’s electronic public II. Statutory and Executive Order Reviews collection of materials that is available docket. Public comments that are A. Executive Order 12866: Regulatory for public viewing at EPA West, 1301 mailed or delivered to the Docket will Planning and Review Constitution Ave. NW., Room B108, be scanned and placed in EPA’s B. Paperwork Reduction Act Mail Code 6102T, Washington, DC electronic public docket. Where C. Regulatory Flexibility Act (RFA), As 20460, Phone: (202)–566–1742, Fax: practical, physical objects will be Amended By the Small Business (202)–566–1741. The materials may be photographed, and the photograph will Regulatory Enforcement Fairness Act of inspected from 8:30 am until 4:30 pm be placed in EPA’s electronic public 1996 (SBREFA), 5 U.S.C. 601 et.seq. D. Unfunded Mandates Reform Act Monday through Friday, excluding legal docket along with a brief description E. Executive Order 13132: Federalism holidays. A reasonable fee may be written by the docket staff. F. Executive Order 13175: Consultation charged for copying docket materials. 2. Electronic Access. You may access C. How and To Whom Do I Submit and Coordination with Indian Tribal Comments? Governments this Federal Register document G. Executive Order 13045: Protection of electronically through the EPA Internet You may submit comments Children from Environmental Health & under the ‘‘Federal Register’’ listings at electronically, by mail or through hand Safety Risks http://www.epa.gov/fedrgstr/. An delivery/courier. To ensure proper H. Executive Order 13211: Actions that electronic version of the public docket receipt by EPA, identify the appropriate Significantly Affect Energy Supply, is available through EPA’s electronic docket identification number in the Distribution, or Use public docket and comment system, subject line on the first page of your I . National Technology Transfer Advancement Act EPA Dockets. You may use EPA Dockets comment. Please ensure that your at http://www.epa.gov/edocket/ to comments are submitted within the I. General Information submit or view public comments, access specified comment period. Comments A. Regulated Entities the index listing of the contents of the received after the close of comment official public docket, and to access period will be marked late. EPA is not Entities potentially regulated by this those documents in the public docket required to consider these late action are those associated with the that are available electronically. Once in comments. If you plan to submit import and export of methyl bromide. the system, select ‘‘search,’’ then key in comments, please also notify Kate Potentially regulated categories and the appropriate docket identification Choban, U.S. Environmental Protection entities include: number. Agency, Global Programs Division Certain types of information will not (6205J), 1200 Pennsylvania Ave. NW., Examples of regulated Category entities be placed in the EPA Dockets. Washington, DC 20460, (202)–564–3524. Information claimed as CBI and other Information designated as Industry ...... Importers and Exporters of information whose disclosure is Confidential Business Information (CBI) methyl bromide restricted by statute, which is not under 40 CFR, Part 2, Subpart 2, must included in the official public docket, be sent directly to the contact person for The above table is not intended to be will not be available for public viewing this notice. However, the Agency is exhaustive, but rather provides a guide in EPA’s electronic public docket. EPA’s requesting that all respondents submit a for readers regarding entities likely to be policy is that copyrighted material will non-confidential version of their regulated by this action. This table lists not be placed in EPA’s electronic public comments to the docket as well.

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1. Electronically. If you submit an information as CBI (if you submit CBI B. Paperwork Reduction Act electronic comment as prescribed on disk or CD ROM, mark the outside The Office of Management and Budget below, EPA recommends that you of the disk or CD ROM as CBI and then (OMB) previously approved the include your name, mailing address, identify electronically within the disk or information collection requirements that and an e-mail address or other contact CD ROM the specific information that is can be used to implement today’s information in the body of your CBI). Information so marked will not be proposed rule. The previously approved comment. Also include this contact disclosed except in accordance with ICR is assigned OMB control number information on the outside of any disk procedures set forth in 40 CFR Part 2. 2060–0170 (EPA ICR No. 1432.21). or CD ROM you submit, and in any In addition to one complete version of There is no additional paperwork cover letter accompanying the disk or the comment that includes any burden as a result of this rule. Current CD ROM. This ensures that you can be information claimed as CBI, a copy of record keeping will allow EPA to identified as the submitter of the the comment that does not contain the implement the provisions of today’s comment and allows EPA to contact you information claimed as CBI must be action. in case EPA cannot read your comment submitted for inclusion in the public The information collection previously due to technical difficulties or needs docket and EPA’s electronic public approved will be used to implement the further information on the substance of docket. If you submit the copy that does trade ban in paragraph 1 qua under your comment. EPA’s policy is that EPA not contain CBI on disk or CD ROM, Article 4 of the Montreal Protocol for will not edit your comment, and any mark the outside of the disk or CD ROM methyl bromide. The information identifying or contact information clearly that it does not contain CBI. collection under this rule is authorized provided in the body of a comment will Information not marked as CBI will be under sections 603(b) and 603(d) of the be included as part of the comment that included in the public docket and EPA’s Clean Air Act Amendments of 1990 is placed in the official public docket, electronic public docket without prior (CAA). This information collection is and made available in EPA’s electronic notice. If you have any questions about conducted to meet U.S. obligations public docket. If EPA cannot read your CBI or the procedures for claiming CBI, under Article 7, Reporting comment due to technical difficulties please consult the person identified in and cannot contact you for clarification, Requirements, of the Montreal Protocol the FOR FURTHER INFORMATION CONTACT on Substances that Deplete the Ozone EPA may not be able to consider your section. comment. Layer (Protocol); and to carry out the i. EPA Dockets. Your use of EPA’s Summary of Supporting Analysis requirements of Title VI of the CAA, electronic public docket to submit including sections 603 and 614. II. Statutory and Executive Order The reporting requirements included comments to EPA electronically is Reviews EPA’s preferred method for receiving in this rule are intended to: comments. Go directly to EPA dockets A. Executive Order 12866: Regulatory (1) Satisfy U.S. obligations under the at http://www.epa.gov/edocket, and Planning and Review international treaty, The Montreal Protocol on Substances that Deplete the follow the online instructions for Under Executive Order 12866 (58 FR submitting comments. Ozone Layer (Protocol), to report data 51735, October 4, 1993), the Agency under Article 7; 2. By Mail. Send two copies of your must determine whether this regulatory comments to: Air and Radiation Docket (2) Fulfill statutory obligations under action is ‘‘significant’’ and therefore Section 603(b) of Title VI of the Clean (6102), Air Docket No. A–92–13, Section subject to OMB review and the XIII, U.S. Environmental Protection Air Act Amendments of 1990 (CAA) for requirements of the Executive Order. reporting and monitoring; Agency, Mailcode 6205J, 1200 The Order defines a ‘‘significant’’ Pennsylvania Ave. NW., Washington, (3) Provide information to report to regulatory action as one that is likely to Congress on the production, use and DC, 20460. result in a rule that may: 3. By Hand Delivery or Courier. consumption of class I controlled (1) Have an annual effect on the Deliver your comments to: 501 3rd substances as statutorily required in economy of $100 million or more, or Street NW., Washington, DC 20001, Section 603(d) of Title VI of the CAA. adversely affect in a material way the Attention Docket ID No. A–92–13, EPA informs respondents that they economy, a sector of the economy, Section XIII. Such deliveries are only may assert claims of business productivity, competition, jobs, the accepted during the Docket’s normal confidentiality for any of the environment, public health or safety, or hours of operation as identified under information they submit. Information State, local, or tribal governments or ADDRESSES. claimed confidential will be treated in communities; 4. By Facsimile. Fax your comments accordance with the procedures for to: (202) 566–1741, Attention Docket ID (2) Create a serious inconsistency or handling information claimed as No. A–92–13, Section XIII. otherwise interfere with an action taken confidential under 40 CFR part 2, or planned by another agency; Subpart B, and will be disclosed only to D. How Should I Submit Confidential (3) Materially alter the budgetary the extent, and by means of the Business Information (CBI) to the impact of entitlements, grants, user fees, procedures, set forth in that subpart. If Agency? or loan programs or the rights and no claim of confidentiality is asserted Do not submit information that you obligations of recipients thereof; or when the information is received by consider to be CBI electronically (4) Raise novel legal or policy issues EPA, it may be made available to the through EPA’s electronic public docket arising out of legal mandates, the public without further notice to the or by e-mail. Send or deliver President’s priorities, or the principles respondents (40 CFR 2.203). information identified as CBI only to the set forth in the Executive Order. Burden means the total time, effort, or mail or courier addresses listed in Units It has been determined by EPA and financial resources expended by persons C.2 or C.3, as appropriate, to the OMB that this rule is not a ‘‘significant to generate, maintain, retain, or disclose attention of Air Docket ID No. A–92–13, regulatory action’’ within the meaning or provide information to or for a Section XIII. You may claim information of the Executive Order and will be Federal agency. This includes the time that you submit to EPA as CBI by signed by the Administrator only after needed to review instructions; develop, marking any part or all of that completion of review by OMB. acquire, install, and utilize technology

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and systems for the purposes of control number. The OMB control Small entities include small businesses, collecting, validating, and verifying numbers for EPA’s regulations are listed small organizations, and small information, processing and in 40 CFR part 9 and 48 CFR chapter 15. governmental jurisdictions. For maintaining information, and disclosing purposes of assessing the impacts of C. Regulatory Flexibility Act (RFA), as and providing information; adjust the today’s rule on small entities, small Amended by the Small Business existing ways to comply with any entity is defined as: (1) A small business Regulatory Enforcement Fairness Act of previously applicable instructions and that is identified by the North American 1996 (SBREFA), 5 U.S.C. 601 et. seq. requirements; train personnel to be able Industry Classification System (NAICS) to respond to a collection of The RFA generally requires an agency Code in the Table below; (2) a small information; search data sources; to prepare a regulatory flexibility governmental jurisdiction that is a complete and review the collection of analysis of any rule subject to notice government of a city, county, town, information; and transmit or otherwise and comment rulemaking requirements school district or special district with a disclose the information. under the Administrative Procedure Act population of less that 50,000; and (3) An Agency may not conduct or or any other statute unless the agency a small organization that is any not-for- sponsor, and a person is not required to certifies that the rule will not have a profit enterprise which is independently respond to a collection of information significant economic impact on a owned and operated and is not unless it displays a currently valid OMB substantial number of small entities. dominant in its field.

SIC small business size standard (in Category NAICS Code SIC Code number of employ- ees or millions of dollars)

1. Chemical and Allied Products, NEC ...... 424690 5169 100

Based on an analysis of the U.S. and tribal governments and the private Protocol on Substances that Deplete the exports of methyl bromide to specific sector. Under section 202 of the UMRA, Ozone Layer, as well as those countries, EPA has determined that only EPA generally must prepare a written requirements set forth by Congress in 3 countries of the 50 to whom U.S. statement, including a cost-benefit section 614 of the Clean Air Act. producers of methyl bromide have analysis, for proposed and final rules Viewed as a whole, all of today’s exported over the past three years with ‘‘Federal mandates’’ that may amendments do not create a Federal would be impacted because they have result in expenditures by State, local mandate resulting in costs of $100 not yet ratified the Copenhagen and tribal governments, in the aggregate, million or more in any one year for Amendments to the Protocol. or by the private sector, of $100 million State, local and tribal governments, in Specifically, the rule would ban the or more in any one year. If a written the aggregate, or for the private sector. export of 41 metric tonnes to Cyprus, statement is required under section 202, Thus, today’s rule is not subject to the Cote d’Ivoire, and the United Arab section 205 of the UMRA generally requirements of sections 202 and 205 of Emriates compared to an average export requires EPA to identify and consider a the UMRA. EPA has also determined from the entire U.S. of 5,236 metric reasonable number of regulatory that this rule contains no regulatory tonnes. These countries represent less alternatives and adopt the least costly, requirements that might significantly or than 1% of all U.S. exports of methyl most cost-effective or least burdensome uniquely affect small governments; bromide for the years 2000, 2001, and alternative that achieves the objectives therefore, EPA is not required to 2002. So, economic impacts for U.S. of the rule, unless the Agency explains develop a plan with regard to small producers of methyl bromide would be why this alternative is not selected or governments under section 203. Finally, extremely minimal. The rule will not the selection of this alternative is because this proposal does not contain constrain U.S. farmers’ ability to obtain inconsistent with law. a significant intergovernmental methyl bromide from importers because Section 203 of the UMRA requires the mandate, the Agency is not required to the major methyl bromide exporting Agency to establish a plan for obtaining develop a process to obtain input from countries have already ratified the input from and informing, educating, elected state, local, and tribal officials Copenhagen Amendments. and advising any small governments under section 204. After considering the economic that may be significantly or uniquely impacts of today’s proposed rule on affected by the rule. Section 204 of the E. Executive Order 13132: Federalism small entities, I certify that this action UMRA requires the Agency to develop will not have a significant economic a process to allow elected state, local, Executive Order 13132, entitled impact on a substantial number of small and tribal government officials to ‘‘Federalism’’ (64 FR 43255, August 10, entities. This proposed rule will not provide input in the development of any 1999), requires EPA to develop an impose any requirements on small proposal containing a significant accountable process to ensure entities. None of the entities affected by Federal intergovernmental mandate. ‘‘meaningful and timely input by State this rule are considered small as defined EPA has determined that this rule and local officials in the development of by the NAICS Code listed above. does not contain a Federal mandate that regulatory policies that have federalism may result in expenditures of $100 implications.’’ ‘‘Policies that have D. Unfunded Mandates Reform Act million or more by State, local and tribal federalism implications’’ is defined in Title II of the Unfunded Mandates governments, in the aggregate, or by the the Executive Order to include Reform Act of 1995 (UMRA), Pub. L. private sector, in any one year. The regulations that have ‘‘substantial direct 104–4, establishes requirements for provisions in today’s rule fulfill the effects on the States, on the relationship Federal agencies to assess the effects of obligations of the United States under between the national government and their regulatory actions on State, local the international treaty, The Montreal the States, or on the distribution of

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power and responsibilities among the EPA has reason to believe may have a DEPARTMENT OF HEALTH AND various levels of government.’’ disproportionate effect on children. If HUMAN SERVICES Under Section 6 of Executive Order the regulatory action meets both criteria, 13132, EPA may not issue a regulation the Agency must evaluate the Centers for Medicare & Medicaid that has federalism implications, that environmental health or safety effects of Services imposes substantial direct compliance the planned rule on children, and costs, and that is not required by statute, explain why the planned regulation is 42 CFR Parts 405 and 411 unless the Federal government provides preferable to other potentially effective [CMS–6014–P] the funds necessary to pay the direct and reasonably feasible alternatives compliance costs incurred by State and considered by the Agency. RIN 0938–AL14 local governments, or EPA consults with EPA interprets E.O. 13045 as applying State and local officials early in the Medicare Program; Interest Calculation only to those regulatory actions that are process of developing the regulation. based on health or safety risks, such that AGENCY: Centers for Medicare & EPA also may not issue a regulation that the analysis required under section 5– Medicaid Services (CMS), HHS. has federalism implications and that 501 of the Order has the potential to ACTION: Proposed rule. preempts State law, unless the Agency influence the regulation. This is not consults with State and local officials SUMMARY: This proposed rule would early in the process of developing the such a rule, and therefore E.O. 13045 does not apply. This rule is not subject change the way we calculate interest, on regulation. Medicare overpayments and This rule does not have federalism to E.O. 13045 because it implements specific trade measures adopted under underpayments to providers, suppliers, implications. It will not have substantial health maintenance organizations, direct effects on the States, on the the Montreal Protocol and required by section 614 of the CAA. competitive medical plans, and health relationship between the national care prepayment plans to be more government and the States, or on the H. Executive Order 13211: Actions That reflective of current business practices. distribution of power and Significantly Affect Energy Supply, This change would reduce the amount responsibilities among the various Distribution, or Use of interest assessed on overpayments levels of government, as specified in and underpayments and simplify the Executive Order 13132. Today’s rule is This rule is not a ‘‘significant energy way the interest is calculated. expected to primarily affect importers action’’ as defined in Executive Order DATES: We will consider comments if and exporters of methyl bromide. EPA 13211, ‘‘Actions Concerning Regulations we receive them at the appropriate is not aware of any current uses of That Significantly Affect Energy Supply, address, as provided below, no later methyl bromide by public sector Distribution, or Use’’ (66 FR 28355 (May than 5 p.m. on September 23, 2003. entities. Thus, the requirements of 22, 2001)) because it is not a significant ADDRESSES: In commenting, please refer section 6 of the Executive Order do not regulatory action under Executive Order to file code CMS–6014–P. Because of apply to this rule. 12866. staff and resource limitations, we cannot F. Executive Order 13175: Consultation I. The National Technology Transfer accept comments by facsimile (FAX) and Coordination With Indian Tribal and Advancement Act transmission. Mail written comments Governments (one original and two copies) to the Section 12(d) of the National Executive Order 13175, entitled following addresses ONLY: Centers for Technology Transfer and Advancement ‘‘Consultation and Coordination with Medicare and Medicaid Services, Act of 1995 (‘‘NTTAA’’), Pub. L. No. Indian Tribal Governments’’ (65 FR Department of Health and Human 104–113, section 12(d) (15 U.S.C. 272 67249, November 9, 2000), requires EPA Services, Attention: CMS–6014–P, P.O. note) directs EPA to use voluntary to develop an accountable process to Box 8013, Baltimore, MD 21244–8013. consensus standards in its regulatory ensure ‘‘meaningful and timely input by Please allow sufficient time for mailed activities unless to do so would be tribal officials in the development of comments to be timely received in the inconsistent with applicable law or regulatory policies that have tribal event of delivery delays. otherwise impractical. Voluntary implications.’’ This proposed rule does If you prefer, you may deliver (by consensus standards are technical not have tribal implications, as specified hand or courier) your written comments standards (e.g., materials specifications, in Executive Order 13175. Today’s rule (one original and two copies) to one of test methods, sampling procedures, and does not significantly or uniquely affect the following addresses: business practices) that are developed or the communities of Indian tribal Hubert H. Humphrey Building, Room adopted by voluntary consensus governments. The rule does not impose 445–G, 200 Independence Avenue, standards bodies. The NTTAA directs any enforceable duties on communities SW., Washington, DC 21201, or EPA to provide Congress, through OMB, of Indian tribal governments. Thus, Centers for Medicare & Medicaid explanations when the Agency decides Executive Order 13175 does not apply Services, Room C5–14–03, 7500 not to use available and applicable to this rule. Security Boulevard, Baltimore, MD voluntary consensus standards. This 21244–1850. G. Applicability of Executive Order rulemaking does not involve technical (Because access to the interior of the 13045: Protection of Children From standards. HHH Building is not readily available to Environmental Health & Safety Risks Therefore, EPA is not considering the persons without Federal Government Executive Order 13045: ‘‘Protection of use of any voluntary consensus identification, commenters are Children from Environmental Health standards. encouraged to leave their comments in Risks and Safety Risks’’ (62 FR 19885, Dated: July 11, 2003. the CMS drop slots located in the main April 23, 1997) applies to any rule that: lobby of the building. A stamp-in clock (1) is determined to be ‘‘economically Linda J. Fisher, is available for persons wishing to retain significant’’ as defined under E.O. Acting Administrator. proof of filing by stamping in and 12866, and (2) concerns an [FR Doc. 03–18855 Filed 7–24–03; 8:45 am] retaining an extra copy of the comments environmental health or safety risk that BILLING CODE 6560–50–P being filed.)

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Comments mailed to the addresses not paid within 30 days of the date of III. Collection of Information indicated as appropriate for hand or the final determination of the Requirements courier delivery may be delayed and overpayment or underpayment. We This document does not impose could be considered late. determine the rate of interest in information collection and For information on viewing public accordance with 42 CFR 405.378 by recordkeeping requirements. comments, see the beginning of the comparing the Private Consumer Rate Consequently, it need not be reviewed SUPPLEMENTARY INFORMATION section. with the Current Value of Funds Rate by the Office of Management and FOR FURTHER INFORMATION CONTACT: and assessing the interest at the higher Budget (OMB) under the authority of the Nancy Braymer, (410) 786–4323. of the two rates that is in effect on the Paperwork Reduction Act of 1995 SUPPLEMENTARY INFORMATION: Inspection date of the final determination of the (PRA). of Public Comments: Comments amount of the overpayment or received timely will be available for underpayment. IV. Response to Comments public inspection as they are received, Interest is calculated from the date of Because of the large number of items generally beginning approximately 3 the final determination and is owed if of correspondence we normally receive weeks after the publication of a the amount of the overpayment or on Federal Register documents document, at the headquarters of the underpayment is not paid within 30 published for comment, we are not able Centers for Medicare & Medicaid days. Interest is calculated in 30-day to acknowledge or respond to them Services, 7500 Security Boulevard, periods. A period that is less than 30 individually. We will consider all Baltimore, Maryland 21244, Monday days is considered to be a full 30-day comments we receive by the date and through Friday of each week from 8:30 period. time specified in the DATES section of a.m. to 4 p.m. To schedule and In this proposed rule, we are this preamble, and, if we proceed with appointment to view public comments, proposing to change the method of a subsequent document, we will telephone (410) 786–7197. calculating the amount of interest that is respond to the major comments in the Copies: To order copies of the Federal assessed on overpayments and preamble to that document. Register containing this document, send underpayments to better align our V. Regulatory Impact Analysis your request to: New Orders, practices to a commercial business Superintendent of Documents, P.O. Box model. We now assess interest A. Overall Impact 371954, Pittsburgh, PA 15250–7954. prospectively (30 days into the future). We have examined the impacts of this Specify the date of the issue requested Under private sector practices, interest rule as required by Executive Order and enclose a check or money payable is assessed on delinquent debts 12866, (September 1993, Regulatory to the Superintendent of Documents, or retrospectively. Planning and Review), the Regulatory enclose your Visa or Master Card We are proposing that periods of less Flexibility Act (RFA) (September 16, number and expiration date. Credit card than 30 days would not be treated as a 1980, Pub. L. 96–354), section 1102(b) of orders can also be placed by calling the full 30-day period. Interest would be the Social Security Act, the Unfunded order desk at (202) 512–1800 (or toll- assessed only for full 30-day periods Mandates Reform Act of 1995 (Pub. L. free at 1–888–293–6498) or by faxing to when payment is not made on time. 104–4), and Executive Order 13132. (202) 512–2250. The cost for each copy The change in the method of Executive Order 12866 directs is $9. As an alternative, you can view calculation would apply only to agencies to assess all costs and benefits and photocopy the Federal Register overpayments and underpayments of available regulatory alternatives and, document at most libraries designated whose date of final determination if regulation is necessary, to select as Federal Depository Libraries and at occurred after the effective date of the regulatory approaches that maximize many other public and academic final regulation implementing this net benefits (including potential libraries throughout the country that proposed rule. economic, environmental, public health receive the Federal Register. B. Technical Correction and safety effects, distributive impacts, This Federal Register document is and equity). A regulatory impact also available from the Federal Register We are making a technical correction analysis (RIA) must be prepared for online database through GPO Access, a to correct a reference that was cited in major rules with economically service of the U.S. Government Printing a previous revision of the Code of significant effects ($100 million or more Office. The Web site address is: http:// Federal Regulations (CFR). In § 411.24, in any 1 year). www.access.gpo.gov/nara/index.html. the rate of interest to be assessed on the This proposed rule is not a major rule. I. Background recovery of Medicare conditional It simply changes the way we calculate payments is incorrectly referenced as interest on overpayments and A. Interest Calculation appearing in § 405.376(d), rather than underpayments. It does not change how Sections 1815(d) and 1833(j) of the § 405.378(d), which is the correct overpayments or underpayments are Social Security Act (the Act) require reference. determined, nor does it require that whenever a payment to a provider, II. Provisions of the Proposed providers, suppliers, or other entities to supplier, or other entity is more than Regulations change the way they interact with us in (overpayment) or less than determining overpayments and (underpayment) the amount that was The provisions of this proposed rule underpayments. due to the provider, supplier, or other are as follows: During fiscal year (FY) 2001, we entity, we assess interest on the amount • In § 405.378, we would revise recovered $167 million in interest on of the overpayment that the provider, paragraph (b)(2) to delete the delinquent overpayments. Had this supplier, or other entity owes to us or requirement that periods of less than 30 proposed rule been in effect, interest the underpayment that we owe to the days be treated as a full 30-day period. recoveries would have been $153 provider, supplier, or other entity. This • In § 411.24, we would revise million, a difference of $14 million due interest becomes due if the overpayment paragraph (m)(2)(iii) to correct the to the change in the interest calculation. amount owed to us or the reference to § 405.376(d) by changing During FY 2002, we recovered $115.7 underpayment amount owed by us is the reference to § 405.378(d). million in interest on delinquent

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overpayments. Had this proposed rule hospitals. The proposed rule simply direct requirement costs on State and been in effect, interest recoveries would changes the way we calculate interest local governments, would not preempt have been $106.1 million, a difference we assess on overpayments and State law, or have any Federalism of $9.6 million. During FY 2001, we underpayments. It does not change how implications. By changing how we paid $2.6 million in interest on overpayments or underpayments are calculate interest, we are reducing the underpayments. Had this proposed rule determined nor require providers, amount of interest assessed on been in effect, interest payments would suppliers, or other entities to change overpayments owed to us and have been $2.4 million, a difference of how they interact with us in underpayments owed by us to $0.2 million. During FY 2002, we paid determining overpayments or providers, suppliers, and other entities. $5.2 million in interest on underpayments. Therefore, we have B. Effects on the Medicare and Medicaid underpayments. Had this proposed rule determined that this proposed rule Programs been in effect, interest payments would would not have a significant effect on have been $4.8 million, a difference of the operations of a substantial number This proposed rule would reduce the $0.4 million. of rural hospitals. Because the interest amount of interest assessed on Medicare The RFA requires agencies to analyze we collect in a year far exceeds the overpayments and underpayments. options for regulatory relief of small interest we pay, the majority of During FY 2001, we recovered $167 businesses, nonprofit organizations, and providers, suppliers, and other entities million in interest on delinquent government agencies. Most hospitals, would benefit from changing the overpayments. Had this proposed rule and most other providers, suppliers, method of calculating interest. been in effect, interest recoveries would health maintenance organizations, Section 202 of the Unfunded have been $153 million, a difference of competitive medical plans, and health Mandates Reform Act of 1995 (UMRA) $14 million. During FY 2001, we paid care prepayment plans are small also requires that agencies assess $2.6 million in interest on entities, either by nonprofit status or by anticipated costs and benefits before underpayments. Had this proposed rule having revenues of $29 million or less issuing any rule that may result in an been in effect, we would have paid $2.4 in any 1 year. During FY 2001, we expenditure in any 1 year by State, million, a difference of $0.2 million. recovered $167 million in interest on local, or tribal governments, in the During FY 2002, we recovered $115.7 delinquent overpayments; during FY aggregate, or by the private sector, of million in interest on delinquent 2002, we recovered $115.7 million. Had $110 million. During FY 2001 and FY overpayments. Had this proposed rule this proposed rule been in effect, 2002, we recovered $167 million and been in effect, interest recoveries would interest recoveries would have been $115.7 million, respectively, in interest have been $106.1 million, a difference $153 million during FY 2001 and $106.1 on delinquent overpayments. Had this of $9.6 million. During FY 2002, we million during FY 2002, a difference of proposed rule been in effect, interest paid $5.2 million in interest on $14 million and $9.6 million, recoveries would have been $153 underpayments. Had this proposed rule respectively. This would amount to 0.1 million during FY 2001, a difference of been in effect, we would have paid $4.8 percent of the $13.5 billion in $14 million. For FY 2002, interest million, a difference of $0.4 million. overpayments recovered during FY 2001 recoveries would have been $106.1 There is no effect on the Medicaid and less than 0.1 percent of the $13.4 million, a difference of $9.6 million. program. billion recovered during FY 2002. During FY 2001, we paid $2.6 million C. Alternatives Considered During FY 2001, we paid $2.6 million in interest on underpayments. Had this in interest on underpayments; during proposed rule been in effect, we would We considered a number of other FY 2002, we paid $5.2 million. Had this have paid $2.4 million, a difference of methods to use in calculating the proposed rule been in effect, we would $0.2 million. During FY 2002, we paid amount of interest owed. We assessed have paid $2.4 million during FY 2001 $5.2 million in interest on the relative merits of alternative and $4.8 million during FY 2002, a underpayments. Had this proposed rule calculation methods based on two difference of $0.2 million and $0.4 been in effect, interest payments would primary criteria: Comparability to a million, respectively. This would have been $4.8 million, a difference of commercial business model and amount to less than 0.1 percent of the $0.4 million. secondly, relative ease and cost of $236 billion and $246.8 billion in This proposed rule would have no administration. Applying the first benefit payments made during FY 2001 impact on State, local, or tribal criterion precludes continuing our and FY 2002. For further details, see the governments. It would reduce annual current calculation method. Under the Small Business Administration’s expenditures by providers, suppliers, or proposed rule, we would be able to use regulation that set forth size standards other entities in the private sector commercially obtained off-the-shelf for health care industries at 65 FR because it changes the way that we software to calculate interest. As in the 69432. compute interest on any delinquent private sector, the debtor would still In addition, section 1102(b) of the Act overpayments owed to us. Additionally, have a set payment period (30 days) to requires us to prepare a regulatory the change in interest calculation that pay the amount owed without impact analysis if a rule may have a we pay on underpayments owed to additional interest being assessed significant impact on the operations of providers, suppliers, and other entities during the payment period. We a substantial number of small rural would not be an expenditure by a State, considered calculating and assessing hospitals. This analysis must conform to local, or tribal government. interest on a daily basis but determined the provisions of section 603 of the Executive Order 13132 establishes this would be prohibitively expensive RFA. For purposes of section 1102(b) of certain requirements that an agency and administratively burdensome for the Act, we define a small rural hospital must meet when it promulgates a Medicare contractors, providers and as a hospital that is located outside of proposed rule (and subsequent final beneficiaries. a Metropolitan Statistical Area and has rule) that imposes substantial direct fewer than 100 beds. requirement costs on State and local D. Conclusion This proposed rule has no operations governments, preempts State law, or This proposed rule is not a major rule. impact on any provider, supplier, or otherwise has Federalism implications. It would not change the way other entity including small rural This proposed rule would impose no overpayments or underpayments are

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determined. It would not have a (2) Interest will accrue from the date ACTION: Proposed rule. significant impact on a substantial of the final determination as defined in number of rural hospitals. Since a paragraph (c) of this section, and will SUMMARY: This proposed rule would partial period would no longer be either be charged on the overpayment conform the existing Medicare considered a full 30-day period, interest balance or paid on the underpayment eligibility regulations to reflect a change assessed on amounts owed to us would balance for each full 30-day period that made by the Ticket to Work and Work be reduced. Therefore, this proposed payment is delayed. Incentives Improvement Act of 1999. That statutory change, which was rule would reduce State, local, and * * * * * tribal government expenditures. The implemented effective October 1, 2000, proposed rule does not impose any PART 411—EXCLUSIONS FROM provides working disabled individuals direct requirement costs on State and MEDICARE AND LIMITATIONS ON with continued Medicare entitlement local governments and does not preempt MEDICARE PAYMENT for an additional 54 months beyond the State law or have any Federalism previous limit of 24 months, for a total implications. 3. The authority citation for part 411 of 78 months of Medicare coverage For these reasons, we are not continues to read as follows: following the 15th month of the preparing analyses for either the RFA or Authority: Secs. 1102 and 1871 of the reentitlement period. section 1102(b) of the Act because we Social Security Act (42 U.S.C. 1302 and DATES: We will consider comments if have determined, and we certify, that 1395hh). we receive them at the appropriate this rule would not have a significant address, as provided below, no later Subpart B—Insurance Coverage That economic impact on a substantial than 5 p.m. on September 23, 2003. Limits Medicare Payment; General number of small entities or a significant ADDRESSES: Provisions In commenting, please refer impact on the operations of a substantial to file code CMS–4018–P. Because of number of small rural hospitals. 4. In § 411.24, paragraph (m)(2)(iii) is staff and resource limitations, we cannot In accordance with the provisions of revised to read as follows: accept comments by facsimile (FAX) Executive Order 12866, this proposed transmission. Mail written comments regulation was reviewed by the Office of § 411.24 Recovery of conditional (one original and two copies) to the Management and Budget. payments. following address only: Centers for * * * * * List of Subjects Affected Medicare & Medicaid Services, (m) * * * Department of Health and Human 42 CFR Part 405 (2) * * * Services, Attention: CMS–4018–P, P.O. Administrative practice and (iii) The rate of interest is that Box 8010, Baltimore, MD 21244–8010. procedure, Health facilities, Health provided at § 405.378(d) of this chapter. Please allow sufficient time for mailed professions, Kidney diseases, Medical (Catalog of Federal Domestic Assistance comments to be timely received in the devices, Medicare, Reporting and Program No. 93.778, Medical Assistance event of delivery delays. recordkeeping requirements, Rural Program) If you prefer, you may deliver (by areas, X-rays. (Catalog of Federal Domestic Assistance hand or courier) your written comments Program No. 93.773, Medicare—Hospital (one original and two copies) to one of 42 CFR Part 411 insurance; and Program No. 93.774, the following addresses: Room 445–G, Medicare—Supplementary Medical Hubert H. Humphrey Building, 200 Kidney diseases, Medicare, Reporting Insurance Program) Independence Avenue, SW., and recordkeeping requirements. Dated: September 10, 2002. For the reasons set forth in the Washington, DC 20201, or Room C5–14– preamble, the Centers for Medicare & Thomas A. Scully, 03, 7500 Security Boulevard, Baltimore, Medicaid Services amends 42 CFR Administrator, Centers for Medicare & MD 21244–8010. (Because access to the chapter IV as set forth below: Medicaid Services. interior of the HHH Building is not Approved: April 10, 2003. readily available to persons without PART 405—FEDERAL HEALTH Tommy G. Thompson, Federal Government identification, INSURANCE FOR THE AGED AND Secretary. commenters are encouraged to leave DISABLED [FR Doc. 03–18859 Filed 7–24–03; 8:45 am] their comments in the CMS drop slots located in the main lobby of the 1. The authority citation for part 405, BILLING CODE 4120–01–P building. A stamp-in clock is available subpart C, continues to read as follows: for persons wishing to retain a proof of Authority: Secs. 1102, 1815, 1833, 1842, DEPARTMENT OF HEALTH AND filing by stamping in and retaining an 1866, 1870, 1871, 1879, and 1892 of the HUMAN SERVICES extra copy of the comments being filed.) Social Security Act (42 U.S.C. 1302, 1395g, Comments mailed to the addresses 1351, 1395u, 1395cc, 1395gg, 1395hh, Centers for Medicare & Medicaid indicated as appropriate for hand or 1395pp, and 1395ccc) and 31 U.S.C. 3711. Services courier delivery may be delayed and Subpart C—Suspension of Payment, could be considered late. Recovery of Overpayments, and 42 CFR Part 406 For information on viewing public Repayment of Scholarships and Loans [CMS–4018–P] comments, see the beginning of the SUPPLEMENTARY INFORMATION section. 2. In § 405.378, paragraph (b)(2) is RIN 0938–AK94 FOR FURTHER INFORMATION CONTACT: revised to read as follows: Denise Cox, (410) 786–3195. Medicare Program; Continuation of § 405.378 Interest charges on Medicare Entitlement When Disability SUPPLEMENTARY INFORMATION: Inspection overpayments and underpayments to Benefit Entitlement Ends Because of of Public Comments: Comments providers, suppliers, and other entities. Substantial Gainful Activity received timely will be available for * * * * * public inspection as they are received, (b) * * * AGENCY: Centers for Medicare & generally beginning approximately 3 (1) * * * Medicaid Services (CMS), HHS. weeks after publication of a document,

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at the headquarters of the Centers for with a subsequent document, we will individuals are already receiving this Medicare & Medicaid Services, 7500 respond to the major comments in the extended Medicare benefit. This Security Boulevard, Baltimore, preamble to that document. regulation would merely codify Maryland 21244, Monday through V. Regulatory Impact Statement statutory provisions that have already Friday of each week from 8:30 a.m. to been implemented and would not 4 p.m. To schedule an appointment to A. Overall Impact impose any regulatory burdens on small view public comments, phone (410) We have examined the impact of this entities. Therefore, we have determined, 786–9994. proposed rule as required by Executive and we certify that this proposed rule I. Background Order 12866 (September 1993, will not have a significant economic Regulatory Planning and Review) and impact on a substantial number of small Before October 1, 2000, section 226(b) the Regulatory Flexibility Act (RFA) of the Social Security Act (the Act) entities. (September 19, 1980 Pub. L. 96–354), provided that disabled beneficiaries In addition, section 1102(b) of the Act section 1102(b) of the Social Security who continued to engage in substantial requires us to prepare a regulatory Act, the Unfunded Mandates Reform gainful activity after completing a trial impact analysis if a rule may have a Act of 1995 (Pub. L. 104–4), and work period would receive Medicare significant impact on the operations of Executive Order 13132. This proposed coverage for 24 months following the a substantial number of small rural rule would essentially conform our 15th month of the reentitlement period. regulations to the plain language of the hospitals. This analysis must conform to Effective October 1, 2000, section 202 the provisions of section 603 of the of the Ticket to Work and Work statute. Executive Order 12866 directs RFA. For purposes of section 1102(b) of Incentives Improvement Act of 1999 agencies to assess all costs and benefits the Act, we define a small rural hospital (Pub. L. 106–170) amended section of available regulatory alternatives and, as a hospital that is located outside of 226(b) of the Act to extend the period if regulation is necessary, to select a Metropolitan Statistical Area and has of Medicare coverage to 78 months after regulatory approaches that maximize fewer than 100 beds. This proposed rule the 15th month of the reentitlement net benefits (including potential would not significantly affect the period. Because Section 202 was economic, environmental, public health operations of a substantial number of implemented effective October 1, 2000, and safety effects, distributive impacts, small rural hospitals because it simply Medicare coverage has already been and equity). A regulatory impact extended to 78 months for all disabled codifies a statutory extension of the analysis (RIA) must be prepared for individuals who continue to engage in period of Medicare entitlement for major rules with economically substantial gainful activity after individuals who are already entitled to significant effects ($100 million or more completing a trial work period. This and receiving the coverage. Therefore, in any 1 year). We estimate a cost of regulation is intended to codify these we have determined, and we certify, $100 million to the Medicare trust fund statutory provisions. that this proposed rule will not have a in 2005. This cost estimate includes significant impact on the operation of a II. Provisions of the Proposed Medicare payments for disabled substantial number of small rural Regulations beneficiaries who are currently working hospitals. We are proposing to revise and entitled to Medicare coverage, as well as payments for individuals who Section 202 of the Unfunded § 406.12(e)(2)(i) of our regulations to be Mandates Reform Act of 1995 also consistent with the amended section will become entitled to disability requires that agencies assess anticipated 226(b) of the Act, which was benefits in the future and subsequently costs and benefits before issuing any implemented effective October 1, 2000. return to work with extended Medicare We are proposing to change the 24 coverage. As noted above, the plain rule that may result in expenditure in months of extended Medicare coverage language of the statute leaves us no any 1 year by State, local, or tribal to 78 months of Medicare coverage discretion in interpreting this provision, governments, in the aggregate, or by the following the 15th month of the re- and these costs flow directly from the private sector, of $110 million. State, entitlement period. statute, with or without this proposed local, or tribal governments will not be rule. Therefore, this proposed rule is not affected since this proposed rule simply III. Collection of Information a major rule and does not have a extends the length of time individuals Requirements significant economic effect. who complete a trial work period and This proposed rule does not impose The RFA requires agencies to analyze continue to work can receive Medicare information collection and options for regulatory relief of small benefits. businesses. For purposes of the RFA, recordkeeping requirements. Executive Order 13132 establishes Consequently, it need not be reviewed small entities include small businesses, certain requirements that an agency by the Office of Management and nonprofit organizations, and must meet when it promulgates a Budget under the authority of the government agencies. Most hospitals proposed rule (and subsequent final Paperwork Reduction Act of 1995 (44 and most other providers and suppliers U.S.C. 35). are small entities, either by nonprofit rule) that imposes substantial direct status or by having revenues of $6 to requirement costs on State and local IV. Response to Comments $29 million in any 1 year. For purposes governments, preempts State law, or Because of the large number of items of the RFA, beneficiaries are not otherwise has Federalism implications. of correspondence we normally receive considered to be small entities. This proposed rule, which was on Federal Register documents Individuals and States are not included implemented effective October 1, 2000, published for comment, we are not able in the definition of a small entity. This would not have a substantial effect on to acknowledge or respond to them regulation proposes to codify provisions State or local governments because the individually. We will consider all of the Ticket to Work and Work extension of Medicare entitlement is for comments we receive by the date and Incentives Improvement Act of 1999 individuals already receiving the time specified in the ‘‘DATES’’ section that were implemented on October 1, coverage. of this preamble, and, if we proceed 2000. Eligible working disabled

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B. Anticipated Effects Medicare coverage following the 15th 2. Effects on the Medicare Programs month of their re-entitlement period. 1. Effects on Beneficiaries Effective October 1, 2000, these Anticipated expenditures to the Before October 1, 2000, disabled beneficiaries receive 78 months of Medicare program have been projected beneficiaries who returned to work Medicare coverage following the 15th over a 5-year period and are shown in received 24 additional months of month of the re-entitlement period. the following chart:

Year 2004 2005 2006 2007 2008

Cost 1 ...... 100 110 130 140 160 Disabled individuals affected 2 ...... 35,000 39,000 42,000 45,000 48,000 1 Rounded to the nearest 10 million. 2 Rounded to nearest thousand.

C. Alternatives Considered the end of the trial work period, procedures extend the time to file a We considered excluding individuals Medicare entitlement continues until claim by 6 months after the month in whose disability benefit entitlement, the earlier of the following: which a Medicare contractor (i) The last day of the 78th month and thus Medicare coverage, should acknowledges the receipt of a valid following the first month of substantial have ended September 30, 2001 or statement of intent. We are proposing to gainful activity occurring after the 15th earlier, but determined that it would be remove the SOI procedures because month of the individual’s re-entitlement appropriate to extend the additional beneficiaries, whom the SOI procedures period or, if later, the end of the month Medicare coverage to all beneficiaries were intended to benefit, rarely file following the month the individual’s who were entitled to Medicare as of claims or SOIs. Instead, SOIs are filed in disability benefit entitlement ends. October 1, 2000. The aggregate great numbers on behalf of, especially, economic effect of this approach is * * * * * dually-eligible beneficiaries by States negligible. Authority: (Catalog of Federal Domestic that have previously made Medicaid In accordance with the provisions of Assistance Program No. 93.773, Medicare— payments, and occasionally by Executive Order 12866, this proposed Hospital Insurance; and Program No. 93.774, providers and suppliers. The large Medicare—Supplementary Medical number of SOIs imposes a significant regulation was reviewed by the Office of Insurance Program) Management and Budget. expenditure of resources on our Dated: November 1, 2002. contractors, and may also be due to, in List of Subjects Affected in 42 CFR Part Thomas A. Scully, part, a lack of careful screening as to 406 Administrator, Centers for Medicare & whether claims should have initially Health facilities, Medicare. Medicaid Services. been presented to and paid by For the reasons set forth in the Medicaid. In the absence of an SOI, Dated: March 26, 2003. providers and suppliers (and, where preamble, the Centers for Medicare & Tommy G. Thompson, Medicaid Services proposes to amend applicable, beneficiaries) would still Secretary. 42 CFR, chapter 4, part 406, subpart B have from 15–27 months (depending on as set forth below: [FR Doc. 03–19068 Filed 7–24–03; 8:45 am] the date of service) to file claims with BILLING CODE 4120–01–P Medicare contractors. PART 406—HOSPITAL INSURANCE DATES: We will consider comments if ELIGIBILITY AND ENTITLEMENT we receive them at the appropriate DEPARTMENT OF HEALTH AND address, as provided below, no later Subpart B—Hospital Insurance HUMAN SERVICES than 5 p.m. on September 23, 2003. Without Monthly Premiums Centers for Medicare & Medicaid ADDRESSES: In commenting, please refer 1. The authority citation for part 406 Services to file code CMS–1185–P. Because of continues to read as follows: staff and resource limitations, we cannot Authority: Secs. 1102 and 1871 of the 42 CFR Part 424 accept comments by facsimile (FAX) transmission. Mail written comments Social Security Act (42 U.S.C. 1302 and [CMS–1185–P] 1395hh). (one original and three copies) to the RIN 0938–AK79 following address ONLY: Centers for 2. In § 406.12, revise the introductory Medicare & Medicaid Services, text to paragraph (e)(2) and revise Medicare Program; Elimination of Department of Health and Human paragraph (e)(2)(i) to read as follows: Statement of Intent Procedures for Services, Attention: CMS–1185–P, P.O. § 406.12 Individual under age 65 who is Filing Medicare Claims Box 8014, Baltimore, MD 21244–8014. entitled to social security or railroad AGENCY: Centers for Medicare & Please allow sufficient time for mailed retirement disability benefits. Medicaid Services (CMS), HHS. comments to be timely received in the event of delivery delays. * * * * * ACTION: Proposed rule. (e) * * * If you prefer, you may deliver (by (2) Duration of continued Medicare SUMMARY: This proposed rule would hand or courier) your written comments entitlement. If an individual’s remove the written statement of intent (one original and three copies) to one of entitlement to disability benefits or (SOI) procedures used to extend the the following addresses: Room 445–G, status as a qualified disabled railroad time for filing Medicare claims. One of Hubert H. Humphrey Building, 200 retirement beneficiary ends because he the goals of our regulatory reform efforts Independence Avenue, SW., or she engaged in, or demonstrated the is to update our regulations based on Washington, DC 20201, or Room C5–14– ability to engage in, substantial gainful recent experiences with filing practices 03, 7500 Security Boulevard, Baltimore, activity after the 36 months following and changes in the law. The SOI MD 21244–1850.

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(Because access to the interior of the benefits was codified at 20 CFR beneficiary with respect to claims filing HHH Building is not readily available to 405.1693, and was based on 20 CFR and appeals. For example, States are not persons without Federal Government 404.613, which pertained to required to obtain a beneficiary’s identification, commenters are applications for Social Security benefits. signature in order to request providers encouraged to leave their comments in Section 404.613 reflected the Social to file a Part A claim or in order to file the CMS drop slots located in the main Security program’s interest in allowing an appeal. We also have permitted lobby of the building. A stamp-in clock virtually any type of writing to be a States and their contractors to file SOIs is available for commenters wishing to placeholder for filing a claim for Social on the States’ behalf or as appointed retain a proof of filing by stamping in Security benefits, provided that a representatives of the beneficiaries. and retaining an extra copy of the perfected claim was submitted shortly The great majority of these SOIs are comments being filed.) thereafter. Because we believed that filed on paper and thus must be Comments mailed to the addresses Medicare beneficiaries might sometimes manually processed to determine indicated as appropriate for hand or need extra time to file a Part B claim whether they are valid SOIs. (According courier delivery may be delayed and due to extenuating circumstances such to our requirements, SOIs must contain could be considered late. as poor health or unfamiliarity with the detailed and specific information to For information on viewing public claims filing process, we instituted the ensure that a subsequently filed claim comments, see the beginning of the SOI procedures. was in fact protected by an SOI. (See SUPPLEMENTARY INFORMATION section. Experience has shown, however, that Program Memorandum AB–03–61)). FOR FURTHER INFORMATION CONTACT: beneficiaries rarely submit SOIs Also, these SOIs are typically filed in David Walczak, (410) 786–4475. directly. Medicare contractors that we large batches near the end of the timely SUPPLEMENTARY INFORMATION: surveyed reported no SOIs were directly filing period. All of these factors Inspection of Public Comments: submitted by beneficiaries for the claims contribute to the amount of resources Comments received timely will be filing period ending December 31, 2000, and consequent cost incurred in available for public inspection as they the latest year for which we have processing the SOIs. are received, generally beginning complete data. One reason for the lack We also believe that the SOI approximately 3 weeks after publication of beneficiary-initiated SOIs is the fact procedures may contribute to States of a document, at the headquarters of that beneficiaries rarely need to file ‘‘paying and chasing’’ instead of the Centers for Medicare & Medicaid claims. The percentage of Part B claims following the required cost-avoidance Services, 7500 Security Boulevard, taken on assignment is about 98 percent procedures, and to the incorrect Baltimore, Maryland 21244, Monday today, compared to about 52 percent in submission of claims to Medicaid by through Friday of each week from 8:30 1975. (‘‘Assignment’’ is the process by providers. Our regulations at a.m. to 4 p.m. by calling (410) 786–7197. which the physician or other supplier § 433.139(b) provide that, unless a agrees to accept Medicare payment in waiver is granted under § 433.139(e), a I. Background full for a Part B item or service and file State Medicaid agency that has The purpose of the statement of intent the claim for such payment.) Even for established the probable existence of (SOI) procedures is to extend the timely Part B claims not taken on assignment, third party liability (including Medicare filing period for the submission of an the law now requires the physician or liability) at the time a claim for initial Medicare claim. An SOI, by itself, other supplier to file the claim and Medicaid payment is presented to it, does not constitute a claim, but rather provides for sanctions for failure to do must reject the claim and return it to the is a means of extending the deadline for so. (See section 1848(g)(4) of the Act (42 provider for a determination of liability. filing a timely and valid claim. Our U.S.C. 1395w–4(g)(4)). The number of This process is known as cost regulations at 42 CFR 424.32, ‘‘Basic Part A claims filed by beneficiaries has avoidance. Some States, however, have requirements for all claims,’’ and always been minimal because the law been paying thousands of Medicaid § 424.44, ‘‘Time limits for filing claims,’’ requires that payment for Part A claims, despite the knowledge that the require that Medicare claims be filed on services generally be made only to beneficiaries involved are entitled to Medicare-designated claims forms by providers of services, with very limited Medicare. These States subsequently providers, suppliers, and beneficiaries exceptions. (See section 1814(a) of the identify a significant portion of the according to Medicare instructions, by Act (42 U.S.C. 1395f(a)). Thus, we claims that they have paid as ones for the end of the year following the year in believe that the SOI procedures are no which Medicare should be the proper which the services were furnished. longer necessary insofar as they are not payor, and use the SOI procedures to Services furnished in the last 3 months serving their intended purpose. extend the time for providers to file of a calendar year are deemed to be Further, we believe retention of the claims. furnished in the subsequent calendar SOI procedures is counterproductive The fact that such large numbers of year, and thus, in this situation, a because of the amount of resources claims are paid first by Medicaid and provider, supplier, or beneficiary has needed to process SOIs submitted by then identified as payable by Medicare until December 31 of the second year States and because the SOI procedures raises the inference that providers are following the year in which the services may encourage or facilitate not as careful as they should be as to were furnished to file claims. Where an inappropriate behavior on the part of which payor they initially submit SOI has been filed with the appropriate some States and some providers. claims, and that States, by initially Medicare contractor and the contractor Each year, our contractors receive an paying such claims, are not fully notifies the submitter of the SOI that the enormous number of SOIs that are practicing cost avoidance. We are SOI is valid (that is, the SOI sufficiently submitted by States that, having first concerned that the availability of the identifies the beneficiary and the items made Medicaid payments to dually- SOI procedures to extend the time for or services rendered), the period in eligible (that is, Medicare and Medicaid) filing claims is contributing to such which to file a claim may be extended beneficiaries, subsequently believe that inappropriate behavior. We also note an additional 6 months after the month Medicare should be the proper payor. that many of the claims filed with of the contractor’s notice. Subsequent to several court decisions in Medicare subsequent to the SOIs are The original regulation on extending the early 1990s, we permitted States to ‘‘demand bills,’’ which require full the time to file claims for Medicare ‘‘stand in the shoes’’ of a dually-eligible medical review, thus increasing the

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claims processing cost for our II. Provisions of the Proposed IV. Response to Comments contractors. (Where a provider believes Regulation Because of the large number of items that a service is not covered by This regulation proposes to remove 42 of correspondence we normally receive Medicare but the beneficiary (or the CFR 424.45. In the absence of § 424.45, on Federal Register documents State as the beneficiary’s subrogee) providers, suppliers and beneficiaries published for comment, we are not able requests the provider to bill Medicare still would have from 15–27 months to to acknowledge or respond to them regardless, the provider’s Medicare submit claims to Medicare. individually. We will consider all provider agreement requires it to bill comments we receive by the date and Medicare. Such a bill is known as a III. Collection of Information Requirements time specified in the DATES section of ‘‘demand bill.’’ It requires full medical this preamble, and, if we proceed with review because the fact that the provider This document does not impose new a subsequent document, we will initially believed that the service was information collection and respond to the major comments in the not covered by Medicare raises the recordkeeping requirements but does preamble to that document. question of whether Medicare should remove an old one. pay it.) The elimination of §424.45 will V. Regulatory Impact Statement Finally, we are cognizant that reduce costs and workload burdens on We have examined the impacts of this providers and suppliers sometimes file providers and suppliers. Specifically, by rule as required by Executive Order SOIs. We believe, however, that the eliminating the written SOI procedures, 12866 (September 1993, Regulatory filing periods in § 424.44 (15 to 27 we hope to: (1) Reduce provider, Planning and Review), the Regulatory months, depending on the date the supplier and Medicare contractor Flexibility Act (RFA) (September 19, service was rendered) are more than an resource burdens; (2) reduce the burden 1980, Pub. L. 96–354), section 1102(b) of adequate amount of time to submit placed on providers and suppliers from the Social Security Act, the Unfunded claims. having to resubmit claims, and also Mandates Reform Act of 1955 (Pub. L. Based on a survey of SOI requests from having to reimburse States for 104–4), and Executive Order 13132. filed with Medicare contractors for the claims that were incorrectly paid for by Executive Order 12866 (as amended claims filing period that ended the States; (3) reduce Medicare by Executive Order 13258, which December 31, 2001 (the latest year for contractor administrative costs; (4) merely reassigns responsibility of which data was available), a very small eliminate changes to existing duties) directs agencies to assess all percentage of claims were processed intermediary/carrier claims payment costs and benefits of available regulatory and paid compared to the total number systems; (5) encourage States to pursue alternatives and, if regulation is cost-avoidance procedures to ensure of SOI requests received. The entire necessary, to select regulatory that Medicaid is truly the payor of last process of receiving an SOI request, approaches that maximize net benefits resort, and thus reduce the need to use determining if an SOI is valid or invalid, (including potential economic, ‘‘pay and chase’’ procedures; (6) reduce examining a later-submitted claim to environmental, public health and safety the necessity for medical review at the determine whether the claim was in fact effects; distributive impacts; and contractor level; (7) strengthen Medicare protected by the earlier-submitted SOI, equity). A regulatory impact analysis and Medicaid program integrity efforts and adjudicating the claim (which, in (RIA) must be prepared for major rules to ensure correct payment the first time; many cases involves full medical with economically significant effects and (8) improve coordination efforts review) are all done manually, and the ($100 million or more annually). This is costs associated with such manual between the Medicare and Medicaid programs. not a major rule. This proposed rule will processing are not included in our Given that CMS, in the past, did not have no substantial economic impact on contractors’ budgets (contractors are not specifically quantify the burden either costs or savings to the Medicare required to calculate costs at this level). associated with this regulatory or Medicaid programs. Therefore, the expenditure of resources requirement, we are seeking public The RFA requires agencies to analyze and money for such manual processing comment on the burden reduction options for regulatory relief of small takes away from the resources needed to associated with the elimination of businesses. For purposes of the RFA, do the activities and functions that are section 42 CFR 424.45. small entities include small businesses, included in our contractors’ budgets. If you have any comments on any of nonprofit organizations, and This proposed rule, if finalized, should these information collection and record government agencies. Most hospitals have little financial impact on entities keeping requirements, please mail the and most other providers and suppliers that currently submit SOI requests. The original and three copies directly to the are small entities, either by nonprofit rule would simply require these entities following: status or by having revenues of $6 to submit their claims six months or so Centers for Medicare & Medicaid million to $29 million annually (see 65 earlier, to comply with Medicare’s Services, Office of Strategic FR 69432). Individuals and States are timely filing requirements (that is, 15 to Operations and Regulatory Affairs, not included in the definition of small 27 months after the date of service, DRDI, DRD–B, Baltimore, MD 21244– entities. depending on the particular month the 1850, ATTN: Julie Brown, CMS–1185- In addition, section 1102(b) of the Act service was rendered). Given that the P; and requires us to prepare a regulatory requirements for submitting a claim are Office of Information and Regulatory impact analysis if a rule may have a not much different than submitting a Affairs, Office of Management and significant impact on the operations of valid SOI, and given that an SOI must Budget, Room 10235, New Executive a substantial number of small rural be filed within the timely filing period, Office Building, Washington, DC hospitals. This analysis must conform to we anticipate no significant difficulty 20503, ATTN: Brenda Aguilar, CMS the provisions of section 604 of the for such entities to timely submit Desk Officer CMS–1185-P. RFA. For purposes of section 1102(b) of claims. Comments submitted to OMB may the Act, we define a small rural hospital Therefore, for the above reasons, we also be emailed to the following as a hospital located outside of a propose removing § 424.45 from our address: email: [email protected]; Metropolitan Statistical Area with fewer regulations. or faxed to OMB at (202) 395–6974. than 100 beds.

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We are not preparing analyses for standard recovery process in the ACTION: Proposed rule. either the RFA or section 1102(b) of the Medicaid regulations to assure that Act because we have determined, and claims are filled within the (15–27 SUMMARY: In this document, the we certify, that this rule will not have months) Medicare timely filing Commission seeks comment on its rules a significant impact on a substantial requirements. governing the provision of air-ground number small entities or rural hospitals For the reasons discussed earlier in telecommunications services on because providers and suppliers will this regulation, we believe this time commercial airplanes in order to still have 15 to 27 months to file claims. frame is adequate to address the States’ enhance the options available to the Although some providers and suppliers need for recovering claims from public. The Commission also proposes may be small entities or rural hospitals, Medicare. We will continue to address to revise or eliminate certain Public they are not filing a significant number the States’ concerns on these payment Mobile Services (PMS) rules that have of SOIs and the information required to and recoupment issues, through the become obsolete as the result of file a valid SOI is essentially the same efforts of the State Technical Advisory technological change, increased competition in the Commercial Mobile information that providers and Group (TAG) on Third Party Liability, Radio Services (CMRS), supervening suppliers are required to provide when and will continue to consult with States changes to related rules, or a filing a valid claim. We are aware that about issues affecting their ability to combination of these factors. In some States rely on the SOI process at recover expenditures for some of their addition, the Commission proposes to the end of the period for Medicare claims that should have been covered by recodify and amend several rules, and timely claims filing, to pay and recover Medicare. make several conforming amendments expenditures for some of their claims In accordance with the provisions of to the Commission’s rules. The that could have been paid by Medicare. Executive Order 12866, this regulation Commission also seeks comment on Elimination of the SOI process will was reviewed by the Office of providing licensees of nationwide require that these States revert to the Management and Budget. standard recovery process in the paging channels flexibility to provide Medicaid regulations to assure that List of Subjects in 42 CFR Part 424 other services and on whether rules claims are filed within the (15–27 Emergency medical services, Health limiting the provision of dispatch months) Medicare timely filing facilities, Health professions, Medicare, service by paging licensees are too restrictive. requirements. While the elimination of Reporting and recordkeeping the SOI process will not completely requirements. DATES: Comments are due on or before eliminate the issue of ‘‘pay and chase,’’ September 23, 2003, and reply we believe it will encourage States to PART 424—CONDITIONS FOR comments are due on or before October pursue cost-avoidance procedures to MEDICARE PAYMENT 23, 2003. ensure that Medicaid is truly the payer ADDRESSES: Part 424 is amended as follows: Federal Communications of last resort, reducing the need to use 1. The authority citation for part 424 Commission, 445 12th Street, SW., TW– ‘‘pay and chase’’ procedures. We solicit continues to read as follows: A325, Washington, DC 20554. See comment on the impact of this SUPPLEMENTARY INFORMATION for filing regulation on States and providers. Authority: Secs. 1102 and 1871 of the instructions. Section 202 of the Unfunded Social Security Act (42 U.S.C. 1302 and FOR FURTHER INFORMATION CONTACT: Mandates Reform Act of 1995 requires 1395hh). Richard Arsenault, Commercial that agencies assess anticipated costs § 424.45 [Removed] Wireless Division, Wireless and benefits before issuing any rule that Telecommunications Bureau, at (202) may result in an expenditure in any one 2. Section 424.45 is removed. 418–0920, e-mail year by State, local, or tribal (Catalog of Federal Domestic Assistance [email protected]. governments, in the aggregate, or by the Program No. 93.774, Medicare— private sector, of $110 million. This rule Supplementary Medical Insurance Program) SUPPLEMENTARY INFORMATION: This is a would not have such an effect on State, Dated: December 20, 2002. summary of the Commission’s Notice of local, or tribal governments, or on the Thomas A. Scully, Proposed Rulemaking, FCC 03–95, in private sector. Administrator, Centers for Medicare & WT Docket No. 03–103, adopted on Executive Order 13132 establishes Medicaid Services. April 17, 2003, and released on April certain requirements that an agency 28, 2003. The full text of this document must meet when it promulgates a Approved: April 18, 2003. is available for inspection and copying proposed rule that would impose Tommy G. Thompson, during normal business hours in the substantial direct requirement costs on Secretary. FCC Reference Information Center, 445 State and local governments, preempts [FR Doc. 03–18994 Filed 7–24–03; 8:45 am] 12th Street, SW., Washington, DC State law, or otherwise has Federalism BILLING CODE 4120–01–P 20554. The complete text may be implications. purchased from the FCC’s copy While this rule would not have a contractor, Qualex International, 445 substantial effect on State and local FEDERAL COMMUNICATIONS 12th Street, SW., Room CY–B402, governments, States need to preserve COMMISSION Washington, DC 20554. The full text their ability to appropriately recover may also be downloaded at: expenditures for Medicaid benefits that 47 CFR Parts 1, 22 and 90 http://www.fcc.gov. Alternative formats should have been paid by Medicare. We are available to persons with disabilities [WT Docket No. 03–103; FCC 03–95] are aware that some States rely on the by contacting Brian Millin at (202) 418– SOI process, at the end of the period for Rules To Benefit the Consumers of Air- 7426 or TTY (202) 418–7365 or at Medicare timely claims filing, to recover Ground Telecommunications Services; [email protected]. expenditures for some of their claims Biennial Regulatory Review 1. In this Notice of Proposed that could have been paid by Medicare. Rulemaking (NPRM), the Commission Elimination of the SOI process will AGENCY: Federal Communications undertakes a fundamental require that these States revert to the Commission. reexamination of its rules governing the

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provision of air-ground Offshore Radiotelephone—other than NPRM seeks comment on recodification telecommunications services on cellular as well as its rules governing of § 22.157 (computation of distance) commercial airplanes (i.e., those rules developmental authorizations. In and § 22.159 (computation of terrain affecting the availability of wireless addition to eliminating unnecessary elevation) to part 1 of the Commission’s services to passengers on commercial regulatory hurdles, many of these rules. Subject to several exceptions, aircraft) in order to enhance the options proposals provide licensees with greater recodification of these rules to part 1 available to the public. The flexibility regarding the use of their would harmonize the methods for Commission’s goal is to promote service spectrum, which in turn leads to greater computing distance and terrain provision that better meets the needs of technical, economic, and marketplace elevation applicable to Wireless Radio the public for wireless air-ground efficiency. Services described in parts 1, 20, 21, 22, communications services. At present, 3. In this NPRM, the Commission also 24, 27, 80, 87, 90, 95, 97, and 101 so that only one of the six available licenses in proposes to revise or eliminate certain they are subject to the same this service is used to serve the public. part 22 Public Mobile Services (PMS) requirements. In this NPRM, the Commission seeks rules that may have become obsolete as Procedural Matters comment on whether any changes to its the result of technological change, rules could provide greater increased competition in the Initial Regulatory Flexibility Analysis opportunities for the competitive Commercial Mobile Radio Services (CMRS), supervening changes to related 6. As required by section 603 of the provision of these services, leading to Regulatory Flexibility Act, the lower prices to consumers and Commission rules, or a combination of these factors. This NPRM in addition Commission has prepared an Initial increased choices in wireless services Regulatory Flexibility Analysis (IRFA) and enhancements while traveling by proposes to recodify certain part 22 PMS rules to part 1 of the Commission’s of the expected impact on small entities commercial airliner. To this end, the of the proposals suggested in this Commission is open to all possible rules, amend several of the part 1 rules, and make several conforming document. Below contains the IRFA. suggestions for fundamental reform. In The Commission requests written public addition, in this context, the amendments to the Commission’s part 90 rules. comments on the IRFA. In order to Commission seeks comment regarding fulfill the mandate of the Contract with whether the commercial air-ground 4. In this NPRM, the Commission also seeks comment on ways to increase America Advancement Act of 1996 spectrum is being efficiently used, since regarding the Final Regulatory there is now only one operating licensee flexibility to enable licensees to better serve the public. For example, the Flexibility Analysis, the Commission in a regulatory plan that originally asks a number of questions regarding contemplated six competing service Commission seeks comment on providing licensees of nationwide the prevalence of small businesses in providers. The Commission also seeks paging channels flexibility to provide the affected industries. comment on possible amendment of other services and on whether its rules 7. Interested parties must file rules for other wireless services to limiting the provision of dispatch comments in accordance with the same permit the provision of commercial air- service by paging licensees are too filing deadlines as comments filed in ground service by licensees of such restrictive. this NPRM, but they must have a spectrum. 5. Specifically, to illustrate the separate and distinct heading 2. The Commission initiates this proposals outlined above, the NPRM designating them as responses to the proceeding partly in furtherance of its seeks comment on elimination or IRFA. The Commission’s Consumer biennial review of regulations pursuant modification of numerous part 22 Information Bureau, Reference to section 11 of the Communications technical, operational and service rules. Information Center, shall send a copy of Act of 1934, as amended. Section 11 For example, the NPRM tentatively this NPRM, including the IRFA, to the requires the Commission to review its concludes that the directional antenna Chief Counsel for Advocacy of the Small regulations applicable to providers of requirements set forth in § 22.363 and Business Administration in accordance telecommunications service and to Table C–2 to § 22.361 should be with section 603(a) of the Regulatory ‘‘determine whether any such regulation eliminated. In addition to these rule Flexibility Act. is no longer necessary in the public changes, the NPRM seeks comment on interest as the result of meaningful elimination of the requirement to file Ex Parte Rules—Permit-but-Disclose economic competition between FCC Form 409 (Airborne Mobile Proceedings providers of such service,’’ and to repeal RadioTelephone License Application) to 8. This is a permit-but-disclose notice or modify any regulation that the apply for authority to operate an and comment rulemaking proceeding. Commission finds no longer necessary airborne station. The NPRM also seeks The Commission’s rules permit ex parte in the public interest. This NPRM, in comment regarding whether presentations, except during the part, is one of the steps in the § 1.929(c)(1) of the Commission’s rules Sunshine Agenda period, provided they Commission’s implementation of staff should be amended to specify that are disclosed as provided in the recommendations under section 11 for expansion of a composite interference Commission’s rules. See generally 47 deleting or modifying various part 22 contour (CIC) of a site-based licensee in CFR 1.1202, 1.1203, and 1.2306(a). rules. In addition, this NPRM considers the Paging and Radiotelephone other proposals submitted to the Service—as well as the Rural Comment Dates Commission by members of the public Radiotelephone Service and 800 MHz 9. Pursuant to §§ 1.415 and 1.419 of regarding changes to the part 22 Specialized Mobile Radio Service—over the Commission’s rules, interested regulations, including those that do not water, on a secondary, non interference parties may file comments on or before fall within the scope of section 11. The basis, should be classified as a minor September 23, 2003, and reply Commission accordingly seeks comment (rather than major) modification of comments October 23, 2003. Comments on changes to rules for each of the part license. Such reclassification would may be filed using the Commission’s 22 services—Paging and substantially reduce the filing Electronic Comment Filing System Radiotelephone, Rural Radiotelephone, requirements associated with these (ECFS), http://www.fcc.gov/e-file/ Air-Ground Radiotelephone, and license modifications. Finally, the ecfs.html, or by filing paper copies.

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10. Comments filed through the ECFS and should be submitted in ‘‘read only’’ information is necessary for the proper can be sent as an electronic file via the mode. The diskette should be clearly performance of the functions of the Internet to http://www.fcc.gov/e-file/ labeled with the commenter’s name, Commission, including whether the ecfs.html. Generally, only one copy of proceeding (including the lead docket information shall have practical utility; an electronic submission must be filed. number, type of pleading (comment or (b) the accuracy of the Commission’s If multiple docket or rulemaking reply comment), date of submission, burden estimates; (c) ways to enhance numbers appear in the caption of this and the name of the electronic file on the quality, utility, and clarity of the proceeding, however, commenters must the diskette. The label should also information collection; and (d) ways to transmit one electronic copy of the include the following phrase ‘‘Disk minimize the burden of the collection of comments to each docket or rulemaking Copy—Not an Original.’’ Each diskette information on the respondents, number referenced in the caption. In should contain only one party’s including the use of automated completing the transmittal screen, pleading, preferably in a single collection techniques or other forms of commenters should include their full electronic file. In addition, commenters technology. name, U.S. Postal Service mailing must send diskette copies to the 16. Written comments by the public address, and the applicable docket or Commission’s copy contract, Qualex on the proposed and/or modified rulemaking number. Parties may also International, Portals II, 445 12th Street, information collections are due submit an electronic comment by SW, Room CY–B402, Washington, D.C. September 23, 2003. Written comments Internet e-mail. To get filing instructions 20554, telephone 202–863–2893, must be submitted by the Office of for e-mail comments, commenters facsimile 202–863–2898, or via e-mail Management and Budget (OMB) on the should send an e-mail to [email protected], [email protected]. proposed and/or modified information and should including the following 13. Alternative formats (computer collections on or before September 23, words in the body of the message, ‘‘get diskette, large print, audio cassette, and 2003. In addition to filing comments form

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the public for wireless air-ground technical, economic, and marketplace elevation applicable to Wireless Radio communications services. At present, efficiency. Services described in parts 1, 20, 21, 22, only one of the six available licenses in 20. In this NPRM, the Commission 24, 27, 80, 87, 90, 95, 97, and 101 so that this service is used to serve the public. also proposes to revise or eliminate they are subject to the same In this NPRM, the Commission seeks certain part 22 Public Mobile Services requirements. (PMS) rules that may have become comment on whether any changes to its Legal Basis rules could provide greater obsolete as the result of technological opportunities for the competitive change, increased competition in the 23. The potential actions on which provision of these services, leading to Commercial Mobile Radio Services comment is sought in this NPRM would lower prices to consumers and (CMRS), supervening changes to related be authorized under sections 1, 4(i), 11, and 303(r) of the Communications Act increased choices in wireless services Commission rules, or a combination of of 1934, as amended, 47 U.S.C. 151, and enhancements while traveling by these factors. This NPRM in addition 154(i), 161, and 303(r). commercial airliner. To this end, the proposes to recodify certain part 22 PMS rules to part 1 of the Commission’s Commission is open to all possible Description and Estimate of the Number rules, amend several of the part 1 rules, suggestions for fundamental reform. In of Small Entities Subject to the Rules and make several conforming addition, in this context, the amendments to the Commission’s part 24. The RFA directs agencies to Commission seeks comment regarding 90 rules. provide a description of, and where whether the commercial air-ground 21. In this NPRM, the Commission feasible, an estimate of the number of spectrum is being efficiently used, since also seeks comment on ways to increase small entities that may be affected by there is now only one operating licensee flexibility to enable licensees to better the proposed rules, if adopted. The RFA in a regulatory plan that originally serve the public. For example, the generally defines the term ‘‘small contemplated six competing service Commission seeks comment on entity’’ as having the same meaning as providers. The Commission also seeks providing licensees of nationwide the terms ‘‘small business,’’ ‘‘small comment on possible amendment of paging channels flexibility to provide organization,’’ and ‘‘small governmental rules for other wireless services to other services and on whether its rules jurisdiction.’’ In addition, the term permit the provision of commercial air- limiting the provision of dispatch ‘‘small business’’ has the same meaning ground service by licensees of such service by paging licensees are too as the term ‘‘small business concern’’ spectrum. restrictive. under the Small Business Act. A ‘‘small business concern’’ is one which: (1) Is 19. The Commission initiates this 22. Specifically, to illustrate the independently owned and operated; (2) proceeding partly in furtherance of its proposals outlined above, the NPRM is not dominant in its field of operation; biennial review of regulations pursuant seeks comment on elimination or and (3) satisfies any additional criteria to section 11 of the Communications modification of numerous part 22 established by the SBA. Act of 1934, as amended. Section 11 technical, operational and service rules. For example, the NPRM tentatively 25. This NPRM could result in rule requires the Commission to review its changes that, if adopted, would affect regulations applicable to providers of concludes that the directional antenna requirements set forth in § 22.363 and small businesses that currently are or telecommunications service and to Table C–2 to § 22.361 should be may become Paging and ‘‘determine whether any such regulation eliminated. In addition to these rule Radiotelephone, Rural Radiotelephone, is no longer necessary in the public changes, the NPRM seeks comment on Air-Ground Radiotelephone, or Offshore interest as the result of meaningful elimination of the requirement to file Radiotelephone service providers economic competition between FCC Form 409 (Airborne Mobile regulated under subparts E, F, G, and I providers of such service,’’ and to repeal RadioTelephone License Application) to of part 22 of the Commission’s rules, or modify any regulation that the apply for authority to operate an respectively. The proposed changes to Commission finds no longer necessary airborne station. The NPRM also seeks § 22.7 of the Commission’s rules would, in the public interest. This NPRM, in comment regarding whether if adopted, affect Cellular part, is one of the steps in the § 1.929(c)(1) of the Commission’s rules Radiotelephone Service providers that Commission’s implementation of staff should be amended to specify that are regulated under subpart H of part 22 recommendations under section 11 for expansion of a composite interference of the Commission’s rules. In addition, deleting or modifying various part 22 contour (CIC) of a site-based licensee in pursuant to § 90.493(b) of the rules. In addition, this NPRM considers the Paging and Radiotelephone Commission’s rules, paging licensees on other proposals submitted to the Service—as well as the Rural exclusive channels in the 929–930 MHz Commission by members of the public Radiotelephone Service and 800 MHz bands are subject to the licensing, regarding changes to the part 22 Specialized Mobile Radio Service—over construction, and operation rules set regulations, including those that do not water, on a secondary, non interference forth in part 22. As this rulemaking fall within the scope of section 11. The basis, should be classified as a minor proceeding applies to multiple services, Commission accordingly seeks comment (rather than major) modification of the Commission will analyze the on changes to rules for each of the part license. Such reclassification would number of small entities affected on a 22 services—Paging and substantially reduce the filing service-by-service basis, and discuss the Radiotelephone, Rural Radiotelephone, requirements associated with these number of small equipment Air-Ground Radiotelephone, and license modifications. Finally, the manufacturing entities that are Offshore Radiotelephone—other than NPRM seeks comment on recodification potentially affected by the proposed rule cellular as well as its rules governing of § 22.157 (computation of distance) changes. developmental authorizations. In and § 22.159 (computation of terrain 26. Cellular Radiotelephone Service. addition to eliminating unnecessary elevation) to part 1 of the Commission’s Neither the Commission nor the SBA regulatory hurdles, many of these rules. Subject to several exceptions, has developed a definition of small proposals provide licensees with greater recodification of these rules to part 1 entities applicable to cellular licensees. flexibility regarding the use of their would harmonize the methods for Therefore, the applicable definition of spectrum, which in turn leads to greater computing distance and terrain small entity is the definition under the

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SBA rules applicable to radiotelephone reported that they were engaged in the 32. Equipment Manufacturers. Some (wireless) companies. This provides that provision of paging and messaging of the proposed actions in the NPRM a small entity is a radiotelephone service. Only 19 of the 576 carriers have could also affect equipment company employing no more than 1,500 more than 1,500 employees; the manufacturers. The Commission does persons. There are 1,758 cellular remaining 557 are small business not know how many equipment licenses; however, a cellular licensee concerns under the SBA’s definition. manufacturers are in the current market. may own several licenses. According to Consequently, the Commission The 1994 County Business Patterns the most recent Trends in Telephone estimates that there are 557 small paging Report of the Bureau of the Census Service data, 858 carriers reported that carriers that may be affected by the estimates that there are 920 companies they were engaged in the provision of proposed rules, if adopted. The that make communications subscriber cellular service, PCS, or SMR telephony, Commission estimates that the majority equipment. This category includes not which are grouped together in the data. of private and common carrier paging only cellular, paging, air-ground, Of these, 567 have more than 1,500 providers would qualify as small offshore, and rural radiotelephone employees; the remaining 291 are small entities under the SBA definition. equipment manufacturers, but television business concerns under the SBA’s 29. Air-Ground Radiotelephone and AM/FM radio manufacturers as definition. However, because data for Service. The Commission has not well. Thus, the number of cellular, cellular service, PCS, and SMR adopted a definition of small business paging, air-ground, offshore, and rural telephony are reported collectively, the specific to the Air-Ground radiotelephone equipment Commission is unable at this time to Radiotelephone Service. Accordingly, manufacturers is lower than 920. Under estimate how many of the 291 small the Commission uses the SBA definition SBA regulations, a ‘‘communications business concerns are cellular service applicable to cellular and other wireless equipment manufacturer’’ must have a carriers. Consequently, the Commission telecommunication companies, i.e., an total of 1000 or fewer employees in estimates that there are 291 or fewer entity employing no more than 1,500 order to qualify as a small business small cellular service carriers that may persons. There are approximately 100 concern. Census Bureau data from 1992 be affected by the proposal to amend licensees in the Air-Ground indicate that at that time there were an § 22.7, if adopted. Radiotelephone Service, and the estimated 858 such U.S. manufacturers 27. Paging and Radiotelephone Commission estimates that almost all of and that 778 (91 percent) of these firms Service. The Commission has defined a them qualify as small entities under the had 750 or fewer employees and would ‘‘small business’’ as an entity that, SBA definition. therefore be classified as small entities. together with its affiliates and 30. Offshore Radiotelephone Service. Using the Commission’s current controlling principals, has average gross This service operates on several ultra estimate of equipment manufacturers revenues for the three preceding years of high frequency (UHF) TV broadcast and the previous percentage estimate of not more than $15 million. A ‘‘very channels that are not used for TV small entities, the Commission small business’’ is defined as an entity broadcasting in the coastal area of the estimates that this current action may that, together with affiliates and states bordering the Gulf of Mexico. At affect approximately 837 small controlling principals, has average gross present, there are approximately 55 equipment manufacturers. revenues for the three preceding licensees in this service. The 33. Description of Projected calendar years of not more than $3 Commission has not adopted a Reporting, Recordkeeping and Other million. The SBA has approved these definition of small business specific to Compliance Requirements. definitions. An auction of MEA licenses the Offshore Radiotelephone Service. 34. This NPRM neither proposes nor commenced on February 24, 2000, and Accordingly, the Commission uses the anticipates any additional reporting, closed on March 2, 2000. Of the 985 SBA definition applicable to cellular recordkeeping, or other compliance licenses auctioned, 440 were sold. Fifty- and other wireless telecommunication measures. If certain of the proposals in seven companies claiming small companies, i.e., an entity employing no the NPRM (e.g., eliminating the § 22.655 business status won licenses. An more than 1,500 persons. The requirement that certain paging auction of MEA and EA paging licenses Commission is unable at this time to licensees file channel usage reports, or commenced on October 30, 2001, and estimate the number of licensees that elimination of the requirement to file closed on December 5, 2001. Of the would qualify as small entities under FCC Form 409 (Airborne Mobile 15,514 licenses auctioned, 5,323 were the SBA definition. The Commission Radiotelephone License Application) to sold. In this auction, high bids were assumes, for purposes of this IRFA, that apply for authority to operate an placed by 130 entities that qualify as all of the 55 licensees are small entities, airborne station) are adopted as a result small businesses under the as that term is defined by the SBA. of this proceeding, then the Commission Commission’s definition. Licenses have 31. Rural Radiotelephone Service. The contemplates a reduction in these been granted to 128 of these entities, Commission has not adopted a requirements. The reduction would be and the applications of the other entities definition of small entity specific to the the same for all entities. remain pending. Thus, in addition to Rural Radiotelephone Service. A 35. In addition to these rule changes, existing licensees, should the significant subset of the Rural the NPRM also seeks comment Commission adopt the rule changes Radiotelephone Service is the Basic regarding whether § 1.929(c)(1) of the proposed in the NPRM, 130 license Exchange Telephone Radio Systems Commission’s rules should be amended winners in the recent auction would be (BETRS). The Commission therefore to specify that expansion of a composite affected small entities. uses the SBA definition applicable to interference contour (CIC) of a site- 28. In addition, the SBA defines small cellular and other wireless based licensee in the Paging and paging companies as an entity telecommunication companies, i.e., an Radiotelephone Service—as well as the employing no more than 1,500 persons. entity employing no more than 1,500 Rural Radiotelephone Service and 800 At present, there are approximately persons. There are approximately 1000 MHz Specialized Mobile Radio 24,000 Private Paging licenses and licensees in the Rural Radiotelephone Service—over water on a secondary, 74,000 Common Carrier Paging licenses. Service, and the Commission estimates non interference basis should be According to the most recent Trends in that almost all of them qualify as small classified as a minor (rather than major) Telephone Service data, 576 carriers entities under the SBA definition. modification of license. Such

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reclassification, if adopted, would small entities that could benefit from PART 1—PRACTICE AND substantially reduce the filing this rule change. PROCEDURE requirements associated with these 38. In the NPRM, then, the license modifications. 1. The authority citation for part 1 Commission has set forth various continues to read as follows: Steps Taken To Minimize Significant options it is considering for each rule, from modifying rules to eliminating Authority: 47 U.S.C. 151, 154(i), 154(j), Economic Impact on Small Entities, and 155, 225, 303(r), 309 and 325(e). Significant Alternatives Considered them altogether. As discussed in the NPRM, the effect of any rule change on 2. Section 1.903 is amended by 36. The RFA requires an agency to revising paragraph (c) to read as follows: describe any significant alternatives that the regulatory burden of licensees will it has considered in reaching its be a significant criterion in determining § 1.903 Authorization required. proposed approach, which may include appropriate Commission action. With the exception of the reexamination of * * * * * the following four alternatives (among (c) Subscribers. Authority for the rules governing the provision of air- others): (1) The establishment of subscribers to operate mobile or fixed ground telecommunications services on differing compliance or reporting stations in the Wireless Radio Services, commercial airplanes in order to requirements or timetables that take into except for certain stations in the Rural enhance the options available to the account the resources available to small Radiotelephone Service, is included in public, the entire intent underlying the entities; (2) the clarification, the authorization held by the licensee Commission’s actions here is to lessen consolidation, or simplification of providing service to them. Subscribers the levels of regulation, consistent with compliance or reporting requirements are not required to apply for, and the its mandate for undertaking biennial under the rule for small entities; (3) the Commission does not accept, reviews. The Commission seeks use of performance, rather than design, applications from subscribers for comment on any additional appropriate standards; and (4) an exemption from individual mobile or fixed station alternatives and especially alternatives coverage of the rule, or any part thereof, authorizations in the Wireless Radio that may further reduce economic for small entities. Services. Individual authorizations are impacts on small entities. 37. As stated earlier, a number of the required to operate rural subscriber Commission’s part 22 technical, Federal Rules That May Duplicate, stations in the Rural Radiotelephone operational and service rules may be Overlap or Conflict With the Proposed Service, except as provided in § 22.703 determined to be outdated. Therefore, Rules of this chapter. Individual modifying or eliminating these rules authorizations are required for end users should decrease the costs associated 39. None. of certain Specialized Mobile Radio with regulatory compliance for service Ordering Clauses Systems as provided in § 90.655 of this providers, provide additional flexibility chapter. In addition, certain ships and in the provision of service and 40. Pursuant to the authority aircraft are required to be individually manufacturing of equipment, and contained in sections 1, 4(i), 11, and licensed under Parts 80 and 87 of this enhance the market demand for some 303(r) of the Communications Act of chapter. See §§ 80.13, 87.18 of this services. The Commission therefore 1934, as amended, 47 U.S.C. 151, 154(i), chapter. anticipates that, although it seems likely 161, and 303(r), this Notice of Proposed 3. Section 1.929 is amended by that there will be a significant economic Rulemaking is adopted. revising paragraph (c)(1) to read as impact on a substantial number of small follows: entities, there will be no adverse 41. The Commission’s Consumer and economic impact on small entities. In Governmental Affairs Bureau, Reference § 1.929 Classification of filings as major or fact, certain of the proposed rule Information Center, shall send a copy of minor. changes may particularly benefit small this Notice of Proposed Rulemaking, * * * * * entities. For example, the NPRM including the Initial Regulatory (c) * * * proposes that § 1.929(c)(1) should be Flexibility Analysis, to the Chief (1) In the Paging and Radiotelephone amended to specify that expansion of Counsel for Advocacy of the Small Service, Rural Radiotelephone Service the composite interference contour (CIC) Business Administration in accordance and 800 MHz Specialized Mobile Radio of a site-based licensee in the Paging with section 603(a) of the Regulatory Service (SMR), any change that would and Radiotelephone Service—as well as Flexibility Act, 5 U.S.C. 603(a). increase or expand the applicant’s the Rural Radiotelephone Service and List of Subjects in 47 CFR Parts 1, 22 existing composite interference contour, 800 MHz Specialized Mobile Radio and 90 except extensions of a composite Service—over water, on a secondary, interference contour over bodies of non interference basis to any geographic 42. Administrative practice and water that extend beyond county area licensee in the same area, is a procedure, Communications common boundaries (i.e., including but not minor, not a major, modification of carriers, Communications equipment, limited to oceans, the Gulf of Mexico, license. Although adoption of such an Metric system , Radio, Reporting and and the Great Lakes) on a secondary amendment would benefit both small recordkeeping requirements, Rural basis. and large entities (because minor areas, Telecommunications. * * * * * modifications are self-effectuating, Federal Communications Commission. 4. Section 1.958 is added to subpart while major modifications require FCC F of part 1 to read as follows: approval), the majority of businesses in William F. Caton, these three radio services are small Deputy Secretary. § 1.958 Distance computation. entities. The NPRM further proposes Rule Changes The method given in this section must that a site-based licensee expanding its be used to compute the distance CIC over water as defined above could For the reasons stated in the between any two locations, except that, do so on a permissive basis, with no preamble, the Federal Communications for computation of distance involving notification to the Commission required. Commission proposes to amend 47 CFR stations in Canada and Mexico, methods Many licensees in these services are parts 1, 22, and 90 as follows: for distance computation specified in

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the applicable international agreement, (5) KPD sublon is the number of § 22.1 Basis and purpose. if any, must be used instead. The result kilometers per degree of longitude at a * * * * * of a distance calculation under parts 21 given mean geodetic latitude. (b) Purpose. The purpose of these and 101 of this chapter must be rounded (6) NS is the North-South distance in rules is to establish the requirements to the nearest tenth of a kilometer. The kilometers. and conditions under which domestic method set forth in this paragraph is (7) DIST is the distance between the radio stations may be licensed and used considered to be sufficiently accurate two locations, in kilometers. in the Public Mobile Services. for distances not exceeding 475 km (295 5. Section 1.959 is added to subpart 10. Section 22.3 is amended by miles). F of part 1 to read as follows: revising paragraph (b) to read as follows: (a) Convert the latitudes and § 1.959 Computation of average terrain § 22.3 Authorization required. longitudes of each reference point from elevation. degree-minute-second format to degree- * * * * * decimal format by dividing minutes by Except as otherwise specified in (b) Authority for subscribers to 60 and seconds by 3600, then adding § 90.309(a)(4) of this chapter, average operate mobile or fixed stations in the the results to degrees. terrain elevation must be calculated by Public Mobile Services, except for computer using elevations from a 30 certain stations in the Rural MM SS second point or better topographic data Radiotelephone Service, is included in LATX=÷ DD + file. The file must be identified. If a 30 dd 60 3600 the authorization held by the licensee second point data file is used, the providing service to them. Subscribers =÷+MM SS elevation data must be processed for are not required to apply for, and the LONXdd DDD 60 3600 intermediate points using interpolation FCC does not accept applications from (b) Calculate the mean geodetic techniques; otherwise, the nearest point subscribers for, individual mobile or latitude between the two reference may be used. In cases of dispute, fixed station authorizations in the points by averaging the two latitudes: average terrain elevation determinations Public Mobile Services, except that can also be done manually, if the results individual authorizations are required ÷ differ significantly from the computer LAT12dd LAT dd to operate rural subscriber stations in ML = derived averages. 2 the Rural Radiotelephone Service, (a) Radial average terrain elevation is except as provided in § 22.703. (c) Calculate the number of kilometers calculated as the average of the per degree latitude difference for the 11. Section 22.7 is revised to read as elevation along a straight line path from follows: mean geodetic latitude calculated in 3 to 16 kilometers (2 and 10 miles) paragraph (b) of this section as follows: extending radially from the antenna site. § 22.7 General eligibility. ¥ KPD sublat = 111.13209 0.56605 cos If a portion of the radial path extends Any entity, other than those 2ML +0.00120 cos 4ML over foreign territory or water, such precluded by section 310 of the (d) Calculate the number of kilometers portion must not be included in the Communications Act of 1934, as per degree of longitude difference for computation of average elevation unless amended, 47 U.S.C. 310, is eligible to the mean geodetic latitude calculated in the radial path again passes over United hold a license under this part. paragraph (b) of this section as follows: States land between 16 and 134 Applications are granted only if the KPD sublon = 111.41513 cos kilometers (10 and 83 miles) away from applicant is legally, financially, ML¥0.09455 cos 3ML +0.00012 cos the station. At least 50 evenly spaced technically and otherwise qualified to 5ML data points for each radial should be render the proposed service. (e) Calculate the North-South distance used in the computation. 12. Amend § 22.99 as follows: in kilometers as follows: (b) Average terrain elevation is the a. Revise the definitions of Air- NS = KPD sublat × (LAT1 subdd¥LAT2 average of the eight radial average Ground Radiotelephone Service, subdd) terrain elevations (for the eight cardinal Cellular Radiotelephone Service, radials). (f) Calculate the East-West distance in Channel, Communications channel, (c) For locations in Dade and Broward kilometers as follows: Control channel, Ground station, Counties, Florida, the method Offshore Radiotelephone Service, Public EW = KPD sublon x (LON1 prescribed above may be used or Mobile Services, and Rural subdd¥LON2 subdd) average terrain elevation may be Radiotelephone Service. (g) Calculate the distance between the assumed to be 3 meters (10 feet). b. Remove the definitions of ‘‘Meteor locations by taking the square root of the burst propagation mode,’’ ‘‘Radio § 1.1102 [Amended] sum of the squares of the East-West and Common Carrier,’’ and ‘‘Wireline North-South distances: 6. Section 1.1102 is revised by Common Carrier.’’ removing paragraph (16)(h). c. Remove the reference to ‘‘Air- =+22 DIST NS EW § 1.2003 [Amended] ground Radiotelephone Service’’ and (h) Terms used in this section are 7. Section 1.2003 is revised by add in its place ‘‘Air-Ground defined as follows: removing the phrase ‘‘FCC 409 Airborne Radiotelephone Service’’ wherever it (1) LAT1 subdd and LON1 subdd are Mobile Radio Telephone License appears. The revisions read as follows: the coordinates of the first location in Application;’’ degree-decimal format. § 22.99 Definitions. (2) LAT2 subdd and LON2 subdd are PART 22—PUBLIC MOBILE SERVICES the coordinates of the second location in * * * * * degree-decimal format. 8. The authority citation for part 22 Air-Ground Radiotelephone Service. (3) ML is the mean geodetic latitude continues to read as follows: A radio service in which licensee are in degree-decimal format. Authority: 47 U.S.C. 154, 222, 303, 309 and authorized to offer and provide radio (4) KPD sublat is the number of 332. telecommunications service for hire to kilometers per degree of latitude at a 9. Section 22.1 is amended by revising subscribers in aircraft. given mean geodetic latitude. paragraph (b) to read as follows: * * * * *

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Cellular Radiotelephone Service. A notified the appropriate Regional Office § 22.379 [Removed] radio service in which common carriers of the Federal Aviation Administration 22. Section 22.379 is removed. are authorized to offer and provide (FAA Form 7460–1), filed a request for cellular service for hire to the general antenna height clearance and § 22.381 [Removed] public. This service was formerly titled obstruction marking and lighting 23. Section 22.381 is removed. Domestic Public. specifications (FCC Form 854) with the § 22.383 [Removed] * * * * * FCC at WTB, Database Management Channel. The portion of the Division, Analysis and Development 24. Section 22.383 is removed. Branch, 1120 Fairfield Road, Gettysburg, electromagnetic spectrum assigned by § 22.415 [Removed] the FCC for one emission. In certain PA 17325 or electronically via the FCC circumstances, however, more than one Antenna Structure Registration 25. Section 22.415 is removed. emission may be transmitted on a homepage, http://wireless.fcc.gov/ 26. Section 22.503 is amended by channel. antenna/; adding paragraph (g)(4) to read as follows: * * * * * * * * * * Communications channel. In the § 22.157 [Removed] § 22.503 Paging geographic area Cellular Radiotelephone and Air- authorizations. 14. Remove § 22.157. Ground Radiotelephone Services, a * * * * * channel used to carry subscriber § 22.159 [Removed] (g)*** communications. 15. Remove § 22.159. (4) The application is for a minor * * * * * modification of license to expand a Control channel. In the Cellular § 22.161 [Removed] licensee’s composite interference Radiotelephone Service and the Air- 16. Remove § 22.161. contour over water on a secondary, non- Ground Radiotelephone Service, a 17. Section 22.351 is revised to read interference basis under § 1.929(c)(1) of channel used to transmit information as follows: this chapter. necessary to establish or maintain * * * * * communications. In the other Public § 22.351 Channel assignment policy. Mobile Services, a channel that may be The channels allocated for use in the § 22.539 [Removed] assigned to a control transmitter. Public Mobile Services are listed in the 27. Section 22.539 is removed. * * * * * applicable subparts of this part. 28. Section 22.563 is revised to read Ground station. In the Air-Ground Channels and channel blocks are as follows: Radiotelephone Service, a stationary assigned in such a manner as to transmitter that provides service to facilitate the rendition of service on an § 22.563 Provision of rural radiotelephone service. airborne mobile stations. interference-free basis in each service * * * * * area. Except as otherwise provided in Channels in the frequency ranges Offshore Radiotelephone Service. A this part, each channel or channel block 152.03–152.81, 157.77–158.67, 454.025– radio service in which common carriers is assigned exclusively to one licensee 454.650 and 459.025–459.650 MHz, are authorized to offer and provide radio in each service area. All applicants for, inclusive, are also allocated for telecommunication services for hire to and licensees of, stations in the Public assignment in the Rural Radiotelephone subscribers on structures in the offshore Mobile Services shall cooperate in the Service. selection and use of channels in order coastal waters of the Gulf of Mexico. § 22.569 [Removed] to minimize interference and obtain the * * * * * most efficient use of the allocated 29. Section 22.569 is removed. Public Mobile Services. Radio services spectrum. in which common carriers are § 22.591 [Amended] 18. Section 22.352 is amended by authorized to offer and provide mobile revising the undesignated paragraph 30. Section 22.591 is amended by and related fixed radio and paragraph (c)(7) to read as follows: removing the table entitled ‘‘Microwave telecommunication services for hire to channels,’’ and by removing and the public. § 22.352 Protection from interference. reserving paragraph (b). * * * * * Public Mobile Service stations 31. Section 22.593 is revised to read Rural Radiotelephone Service. A radio operating in accordance with applicable as follows: service in which licensee are authorized FCC rules and the terms and conditions § 22.593 Effective radiated power limits. to offer and provide radio of their authorizations are normally telecommunication services for hire to considered to be non-interfering. The effective radiated power of fixed stations operating on the channels listed subscribers in areas where it is not * * * * * in § 22.591 must not exceed 150 Watts. feasible to provide communication (c) * * * 32. Section 22.601 is amended by services by wire or other means. (7) In-building radiation systems. No revising the undesignated paragraph to * * * * * protection is provided against read as follows: 13. Section 22.143 is amended by interference to the service of in-building revising paragraph (d)(4) to read as radiation systems. § 22.601 Assignment of microwave follows: channels. § 22.361 [Removed] Assignment of the 2110–2130 and § 22.143 Construction prior to grant of 19. Section 22.361 is removed. application. 2160–2180 MHz channels (formerly * * * * * § 22.363 [Removed] listed in § 22.591) is subject to the (d) * * * 20. Section 22.363 is removed. transition rules in § 22.602. No new (4) For any construction or alteration systems will be authorized under this that would exceed the requirements of § 22.373 [Removed] part. § 17.7 of this chapter, the licensee has 21. Section 22.373 is removed. * * * * *

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33. Section 22.602 is amended by bandwidth of 20 kHz and are designated lower mileage separation figure is to be revising the undesignated paragraph to by their center frequencies in used. read as follows: MegaHertz. * * * * * § 22.602 Transition of the 2110–2130 and * * * * * [FR Doc. 03–18643 Filed 7–24–03; 8:45 am] 2160–2180 MHz channels to emerging 37. Section 22.757 is revised to read BILLING CODE 6712–01–P technologies. as follows: The 2110–2130 and 2160–2180 MHz § 22.757 Channels for basic exchange FEDERAL COMMUNICATIONS microwave channels (formerly listed in telephone radio systems. COMMISSION § 22.591) have been allocated for use by The channels listed in § 22.725 are emerging technologies (ET) services. No also allocated for paired assignment to 47 CFR Parts 2 and 15 new systems will be authorized under transmitters in basic exchange [ET Docket No. 03–122; FCC 03–110] this part. The rules in this section telephone radio systems. provide for a transition period during Unlicensed Devices in the 5 GHz Band which existing Paging and § 22.805 [Removed] Radiotelephone Service (PARS) 38. Section 22.805 is removed. AGENCY: Federal Communications licensees using these channels may 39. Section 22.815 is revised to read Commission. relocate operations to other media or to as follows: ACTION: Proposed rule. other fixed channels, including those in other microwave bands. For PARS § 22.815 Construction period for general SUMMARY: This document proposes to aviation ground stations. licensees relocating operations to other amend the rules governing the operation microwave bands, authorization must be The construction period (see § 1.946) of unlicensed National Information obtained under Part 101 of this chapter. for general aviation ground stations is Infrastructure (U–NII) devices, 12 months. * * * * * including Radio Local Area Networks 34. Section 22.625 is amended by § 22.871 [Removed] (RLANs), to make available an revising paragraph (a) to read as follows: additional 255 megahertz of spectrum in 40. Section 22.871 is removed. the 5.47–5.725 GHz band. This will § 22.625 Transmitter locations. 41. Section 22.1003 is revised to read increase the spectrum available to as follows: * * * * * unlicensed devices in the 5 GHz region (a) 928–960 MHz. In this frequency § 22.1003 General eligibility. of the spectrum by nearly 80%, and, it range, the required minimum distance Any entity, other than those represents a significant increase in the separation between co-channel fixed precluded by section 310 of the spectrum available for unlicensed transmitters is 113 kilometers (70 Communications Act of 1934, as devices across the overall radio miles). amended, 47 U.S.C. 310, is eligible to spectrum. We believe that the increased * * * * * hold a license under this subpart. available capacity gained from access to 35. Section 22.655 is amended by Applications are granted only if the an additional 255 megahertz of revising paragraph (a) to read as follows: applicant is legally, financially, spectrum, coupled with the ease of technically and otherwise qualified to deployment and operational flexibility § 22.655 Channel usage. render the proposed service. provided by our U–NII rules, will foster * * * * * the development of a wide range of new (a) In Alaska, channels 42.40, 44.10, PART 90—PRIVATE LAND MOBILE and innovative unlicensed devices and 44.20 and 45.90 MHz are allocated for RADIO SERVICES lead to increased wireless broadband assignment to transmitters providing access and investment. rural radiotelephone service using 42. The authority citation for Part 90 DATES: Written comments are due meteor burst propagation modes, subject continues to read as follows: September 3, 2003, and reply comments to the provisions of § 22.729. Authority: Sections 4(i), 11, 303(g), 303(r), are due September 23, 2003. * * * * * and 332(c)(7) of the Communications Act of ADDRESSES: Federal Communications, 36. Section 22.725 is amended by 1934, as amended, 47 U.S.C. 154(i), 161, Marlene H. Dortch, Office of the 303(g), 303(r), 332(c)(7). revising the section heading and the text Secretary, 445 12th Street, SW., of the undesignated paragraph to read as 43. Section 90.309 is amended by Washington, DC 20554. See follows: revising paragraph (a)(1) to read as SUPPLEMENTARY INFORMATION for filing follows: information. § 22.725 Channels for conventional rural radiotelephone stations and basic § 90.309 Tables and figures. FOR FURTHER INFORMATION CONTACT: exchange telephone radio systems. (a)*** Ahmed Lahjouji, Office of Engineering The following channels are allocated (1) Using the method specified in and Technology, (202) 418–2061; TTY for paired assignment to transmitters § 1.958 of this chapter, determine the (202) 418–2989, e-mail: that provide conventional rural distances (i) between the proposed land [email protected]. radiotelephone service and to mobile base station and the protected SUPPLEMENTARY INFORMATION: This is a transmitters in basic exchange cochannel television station and (ii) summary of the Commission’s Notice of telephone radio systems. These between the proposed land mobile base Proposed Rule Making, ET Docket 03– channels may be assigned for use by station and the protected adjacent 122, FCC 03–122, adopted May 15, central office or rural subscriber stations channel television station. If the exact 2003, and released June 4, 2003. The as indicated, and interoffice stations. mileage does not appear in table A for full text of this document is available for These channels may be assigned also for protected cochannel television stations inspection and copying during regular use by relay stations in systems where (or table B for channel 15 in New York business hours in the FCC Reference it would be impractical to provide rural and Cleveland and channel 16 in Center (Room CY–A257), 445 12th radiotelephone service without the use Detroit) or table E for protected adjacent Street, SW., Washington, DC 20554. The of relay stations. All channels have a channel television stations, the next complete text of this document also may

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be purchased from the Commission’s lead to increased wireless broadband the Federal Government and secondary copy contractor, Qualex International, access and investment. Also, this allocations for the non-Federal 445 12th Street, SW., Room CY–B402, proposal would align the frequency Government for the Space Research Washington, DC 20554. The full text bands used by U–NII devices with those Service (active) (SRS) in the 5.35–5.57 may also be downloaded at: http:// in other parts of the world, thus GHz band and the Earth Exploration- www.fcc.gov. Alternative formats are decreasing development and Satellite Service (active) (EESS) in the available to persons with disabilities by manufacturing costs for U.S. 5.46–5.57 GHz band. We seek comment contacting Brian Millin at (202) 418– manufacturers by allowing for the same on these proposals. 7426 or TTY (202) 418–7365. digital communications products to be 4. In the U.S., part 15 unlicensed Filings can be sent by hand or used in most other parts of the world. devices including U–NII devices operate messenger delivery, by commercial 2. In addition to proposing to make on a non-interference basis and do not overnight courier, or by first-class or more spectrum available for use by U– operate within radio services listed in overnight U.S. Postal Service mail NII devices, we proposed several other the Table of Frequency Allocations. (although we continue to experience changes to the Table of Frequency Instead, part 15 devices share spectrum delays in receiving U.S. Postal Service Allocations to accommodate the needs with radio services on the basis that mail). The Commission’s contractor, of other radio services operating in the they may not cause any harmful Vistronix, Inc., will receive hand- 5 GHz region of the spectrum. interference and must accept any delivered or messenger-delivered paper Specifically, we proposed to modify the interference that may be received. filings for the Commission’s Secretary at U.S. Table of Frequency Allocations in Although the WECA petition and 236 Massachusetts Avenue, NE., Suite Part 2 of the rules to upgrade the status comments request an allocation of 110, Washington, DC 20002. The filing of the Federal Government spectrum for unlicensed U–NII devices, hours at this location are 8 a.m. to 7 Radiolocation service to primary in the they also request operation under part p.m. All hand deliveries must be held 5.46–5.65 GHz band. We also proposed 15 of the rules. We thus propose to together with rubber bands or fasteners. to upgrade the status of the non-Federal modify our part 15 rules to allow U–NII Any envelopes must be disposed of Government radiolocation to primary in devices to operate in the 5.470–5.725 before entering the building. the 5.47–5.65 GHz band. We further GHz band on a non-interference basis, Commercial overnight mail (other than proposed to add primary allocations for and seek comment on this proposal. We U.S. Postal Service Express Mail and the Federal Government and secondary note that WRC–03 is considering a Priority Mail) must be sent to 9300 East allocations for the non-Federal Mobile allocation for the 5.150–5.350 Hampton Drive, Capitol Heights, MD Government Space Research Service GHz and 5.470–5.725 GHz bands and 20743. U.S. Postal Service first-class (active) (SRS) in the 5.35–5.57 GHz that some administrations would need a mail, Express Mail, and Priority Mail band and the Earth Exploration-Satellite Mobile allocation in the international should be addressed to 445 12th Street, Service (active) (EESS) in the 5.46–5.57 Table of Frequency Allocations for SW., Washington, DC 20554. GHz band. We also proposed to modify RLANs or HiperLANs to operate in the All filings must be addressed to the certain technical requirements for U–NII bands. Therefore, the U.S. position for Commission’s Secretary, Office of the devices in the part 15 rules to protect WRC–03 supports adoption of an Secretary, Federal Communications various radio services against harmful international Mobile allocation so that Commission, 445 12th Street, SW., interference. Our proposals are these devices may operate throughout Washington, DC 20554. consistent with the U.S. World the world. 5. Table 1 on page 7 of the NPRM Summary of Notice of Proposed Rule Radiocommunication Conference 2003 summarizes all the allocation proposed Making (WRC–03) position regarding this band. herein. We seek comment on the 1. The Notice of Proposed Rule Proposed Changes to the Table of proposed changes to the Table of Making, proposed to amend part 15 of Frequency Allocations Frequency Allocations. Commenters are the rules governing the operation of 3. We proposed to implement the requested to provide a technical unlicensed National Information following allocations consistent with analysis to substantiate any claims of Infrastructure (U–NII) devices, the U.S. proposals to the WRC–03. First, interference which may be caused by including Radio Local Area Networks we proposed to modify the U.S. Table operations of U–NII devices under these (RLANs), to make available an of Frequency Allocations in part 2 of the proposed rules. additional 255 megahertz of spectrum in rules to upgrade the status of the the 5.47–5.725 GHz band. This will Federal Government Radiolocation Proposed Changes to U–NII Rules increase the spectrum available to service to primary in the 5.46–5.65 GHz 6. Technical requirements. Under the unlicensed devices in the 5 GHz region band. We will similarly upgrade the existing part 15 U–NII rules, there are of the spectrum by nearly 80%, and, it status of the non-Federal Government three different frequency sub-bands represents a significant increase in the Radiolocation service to co-primary in available to U–NII devices, each with its spectrum available for unlicensed the 5.47–5.65 GHz band so that we do own set of technical requirements (e.g., devices across the overall radio not disadvantage non-Government transmit power and antenna gain), based spectrum. This action responds to the licensees. These bands are used by non- on its sharing environment. U–NII petition for rule making submitted by Federal Government broadcast weather devices operating in the 5.150–5.250 the Wireless Ethernet Compatibility radar stations. We note that the Federal GHz sub-band are restricted to indoor Alliance (WECA—now known as the Radiolocation service already has a operations and a power limit of 200 mW Wi-Fi Alliance). We believe that the primary allocation in the 5.35–5.46 GHz e.i.r.p. in order to protect co-channel increased available capacity gained from band. The elevation in status for Federal Mobile Satellite Service (MSS) feeder access to an additional 255 megahertz of Government Radiolocation along with links. Because of the relatively low spectrum, coupled with the ease of the requirement for DFS as described power limit and indoor usage deployment and operational flexibility below will ensure that these existing requirement, this sub-band is most provided by our U-NII rules, will foster services are protected from interference suitable for U–NII devices providing the development of a wide range of new from U–NII devices. We further communications links between devices and innovative unlicensed devices and proposed to add primary allocations for separated by short distances indoors,

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such as between computing devices e.i.r.p.). Therefore, we believe that U– devices operating under IEEE 802.11(a)). within a room or in adjoining rooms. NII devices can operate in 5.650–5.725 The radar signal has a bandwidth of 1 The 5.250–5.350 GHz sub-band may be GHz band without causing interference. MHz and a pulse repetition rate (PRR) used indoors and outdoors and is Finally, U–NII devices in this band in the range 200–4000 pulses/s, where limited to 1 watt e.i.r.p. This sub-band would continue to operate under part 15 the nominal pulse width is in the range is shared with the Federal Government of our rules and would be required to of 1 to 20 microseconds. We seek Radiolocation Service, Earth eliminate any harmful interference that comment on the minimum number of Exploration Satellite Service and Space may occur to the Amateur Radio service. pulses and the observation time Research Service. This U–NII sub-band We tentatively conclude that the required for reliable detection. is suitable for communications links proposals in the NPRM are adequate to 12. We are also proposing to require both within and between buildings such protect the Amateur Radio service from a transmit power control (TPC) as for campus-wide local area networks. interference. We seek comment on this mechanism in the 5.470–5.725 GHz The 5.725–5.825 GHz sub-band may be tentative conclusion. band to further reduce the potential for used indoors and outdoors with power 9. In addition to applying the existing impact on EESS and SRS operations. levels up to 4 watts e.i.r.p. This U–NII technical requirements for the 5.250– TPC is a feature intended to adjust the sub-band is shared with Federal 5.350 GHz sub-band to the new 5.470– transmitter’s output power based on the Government Radiolocation, Amateur, 5.725 GHz band, to ensure protection to signal level at the receiver. TPC will ISM, and other part 15 devices and is existing vital DoD radar operations, we allow the transmitter to operate at less suitable for communications links are proposing that U–NII devices than the maximum power for most of within and among buildings and over operating in both the existing 5.250– the time. As the signal level at the long distances through use of high-gain 5.350 GHz sub-band and the new 5.470– receiver rises or falls, the transmit antennas. 5.725 GHz sub-band employ a listen- power will be decreased or increased as 7. We propose to add the 5.470–5.725 before-talk mechanism called dynamic needed. Because TPC equipped devices GHz band to the U–NII bands with the frequency selection (DFS). DFS is an adjust their transmit power to the same technical requirements that apply interference avoidance mechanism. minimum necessary to achieve the to the existing 5.250–5.350 GHz U–NII Prior to the start of any transmissions, desired performance, the average sub-band. This is consistent with the and through constant monitoring, the interference power from a large number WECA petition and the U.S. position for device (e.g., RLAN) equipped with such of devices is reduced, the power the upcoming WRC–03. The Federal a mechanism monitors the radio consumption is minimized and network Government believes that the power environment for a radar’s presence. If capacity is increased. Consistent with must be limited to 1 watt e.i.r.p. to the U–NII device determines that a radar the U.S. proposals to the WRC–03, we protect incumbent systems. We also is present, it either moves to another are proposing that U–NII devices believe that this will best provide for channel or enters a sleep mode if no employ a TPC mechanism that will communications among devices within channels are available. We proposed ensure a 6 dB drop in power when and among buildings where demand is that U–NII devices be required to triggered. We seek comment on what the greatest. We expect that the 100 MHz of continuously monitor their environment appropriate triggering mechanism will spectrum that is already available at for the presence of radars both prior to be. For example, should TPC seek to 5.725–5.825 GHz will remain sufficient and during operation. DoD concurs that keep a receiver parameter such as for higher power operations. We note in the use of DFS at the thresholds received signal strength, bit error rate, or particular that operations over longer proposed will provide the necessary block error rate below a certain distances employ directional antennas protection for its vital radar systems. threshold? How long will a pair of U– that allow for high reuse and sharing of 10. For systems, where multiple NII devices have to adjust their link the spectrum, which mitigates the need devices operate under a central powers? Will it be necessary to require for additional spectrum for these types controller, we propose that only the U–NII devices to employ TPC if their of operations. We seek comment on this central controller be required to have maximum power is 3 dB or more below analysis. DFS capability. We recognize that there the maximum permitted under the 8. ARRL argues that WECA, in its may be devices or architectures rules? How should TPC be applied to petition, has not demonstrated that U– developed, where remote devices are system configurations where multiple NII devices operating in the 5.650–5.725 not under the control of a master device. devices may operate under the control GHz band will avoid causing We seek comment on requiring such of a central device. interference to the Amateur Radio devices to have DFS. We also invite 13. Test procedures. We seek service, which operates on a secondary comment on how to identify remote comment on appropriate test procedures basis in this band. Our review of ARRL’s units that operate only under the control needed to ensure compliance with the web site indicates that amateur use of of a central controller. DFS and TPC requirements proposed in this band is limited to propagation 11. The U–NII device’s ability to this proceeding. We note that the beacons and possibly some limited reliably detect a radar’s presence in the operational requirements for DFS are satellite use. Roeder comments that channel depends greatly on the pulse well defined in the applicable industry there is little ready made Amateur characteristics of the radar. The time for standards. We observe that while TPC equipment for this band and that there which the radar occupies the U–NII has been agreed to as a general are only a few rare mountain top users channel (dwell time) also influences the requirement, its operational details are of this band. We observe that amateurs detection probability. The problem still under development. Therefore, we already share the 5.725–5.825 GHz band arises when the dwell time is very short particularly seek comment on the means with U–NII devices and we are unaware as is the case for frequency hopping by which devices can be tested for of any complaints of interference. radars. In this case, the subject radar compliance with TPC requirements to Further, we have proposed to permit a signal is characterized as a receive implement reduced power without lower e.i.r.p. for U–NII devices signal strength (RSS) equal to or greater placing unnecessary restrictions on operating in the 5.470–5.725 GHz band than the DFS detection threshold level device design. We also seek comment (i.e., 1 watt e.i.r.p.) than for the existing within the U–NII device’s channel on the extent to which devices under 5.725–5.825 GHz band (i.e., 4 watts bandwidth (e.g., typically 18 MHz for development that may have unique or

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novel transmission waveforms may Initial Regulatory Flexibility Analysis In addition to applying the existing require special measurement (IRFA) of the possible significant technical requirements for the 5.250– instrumentation settings (e.g., economic impact on small entities by 5.350 GHz sub-band to the new 5.470– integration times) that differ from those the policies and rules proposed in this 5.725 GHz band, it proposes that U–NII used for measuring compliance for Notice of Proposed Rulemaking devices operating in both the existing existing U–NII band devices. (‘‘NPRM’’). Written public comments are 5.250–5.350 GHz sub-band and the new 14. Transition period for U–NII requested on this IRFA. Comments must 5.470–5.725 GHz sub-band employ a equipment operating in the 5.250–5.350 be identified as responses to the IRFA listen-before-talk mechanism called GHz band. U–NII devices currently and must be filed by the deadlines for dynamic frequency selection (DFS). DFS operate in this band without DFS comments on the NPRM provided in is an interference avoidance capability. As a result, we recognize that paragraph 31 of the item. The mechanism. Prior to start of any some period of time will be needed to Commission will send a copy of the transmissions, and through constant implement the new DFS requirement for NPRM, including the IRFA, to the Chief monitoring, the device (e.g., RLAN) U–NII equipment operating in the Counsel for Advocacy of the Small equipped with such a mechanism 5.250–5.350 GHz band. We propose that Business Administration (SBA).2 In monitors the radio environment for a the DFS requirement for the 5.250–5.350 addition, the NPRM and IFRA (or radar’s presence. If the U–NII device GHz band effective for U–NII equipment summaries thereof) will be published in determines that a radar signal is present, that is certified after one year from the the Federal Register.3 it either moves to another channel or date of publication of the Report and enters a sleep mode if no channels are A. Need for, and Objectives of, the Order in this proceeding in the Federal available. The Notice seeks comments Proposed Rules Register. We believe that this should be regarding alternative DFS requirements sufficient time for equipment devices 18. This NPRM proposes to amend for various U–NII operating conditions. operating in the 5.250–5.350 GHz band part 15 of our rules governing the For example, in point-to-multi-point that are imported or shipped in operation of unlicensed National systems, it may not be necessary that interstate commerce on or after two Information Infrastructure (U–NII) DFS be required for both the controlling years from the date of publication in the devices, including Radio Local Area station and slaves (e.g., devices Federal Register comply with these Networks (RLANs), to make available an designed as clients only) as long as the standards. We believe that most affected additional 255 megahertz of spectrum in DFS timing requirements are met. The products will be redesigned within this the 5.47–5.725 GHz band for the growth NPRM invites comments on whether three-year time frame and that and development of unlicensed wireless DFS should be applied to the compliance with this proposal would broadband networks. This action controlling stations (e.g., Hub, AP) as not cause an unreasonable burden on responds to the petition for rule making well as to slaves. industry. Comments are requested on submitted by the Wireless Ethernet 21. The NPRM also proposes to these proposed transition provisions. Compatibility Alliance (WECA—now require a transmit power control (TPC) We are proposing to require that U–NII 4 known as Wi-Fi Alliance). mechanism in the 5.470–5.725 GHz equipment operating in the new 19. In addition to proposing to make band to further reduce the potential for spectrum at 5.470–5.725 GHz meet all more spectrum available for use by U– impact on EESS and SRS operations. the technical requirements, including NII devices, the Notice also proposes TPC is a feature intended to adjust the DFS and TPC, on the effective date of several other rules changes in the 5 GHz transmitter’s output power based on the these rules. band that will further facilitate the use signal level at the receiver. TPC will Order Clauses of this band for U–NII devices, while at allow the transmitter to operate at less the same time ensuring sufficient than the maximum power for most of 15. Pursuant to sections 1, 4, 301, protection for various incumbents in the 302(a), 303, 307, 309, 316, and 332 of the time. As the signal level at the band. Specifically, it proposes to modify receiver rises or falls, the transmit the Communications Act of 1934, as the U.S. Table of Frequency Allocations amended, 47 U.S.C. sections 151, 154, power will be decreased or increased as in part 2 of the rules to upgrade the needed. Because TPC equipped devices 301, 302(a), 303, 307, 309, 316, 332, 334, status of the Federal Government and 336, the notice of proposed rule adjust their transmit power to the Radiolocation service to primary in the minimum necessary to achieve the making is hereby adopted. 5.46–5.65 GHz band. It similarly 16. It is further ordered that the desired performance, the average proposes to upgrade the non-Federal Commission’s Consumer and interference power from a large number Government radiolocation service to Governmental Affairs Bureau, Reference of devices is reduced, the power primary in the 5.47–5.65 GHz band. It Information Center, shall send a copy of consumption is minimized and network further proposes to add primary this notice of proposed rule making, capacity is increased. The NPRM seeks allocations for the Federal Government including the Initial Regulatory comments regarding what the and the non-Federal Government Space Flexibility Analysis, to the Chief appropriate triggering mechanism might Research Service (active) (SRS) in the Counsel for Advocacy of the Small be and how long the U–NII device might 5.35–5.46 GHz band and the Earth Business Administration. need to adjust its power? It also asks for Exploration-Satellite Service (active) comments on the necessity of requiring Initial Regulatory Flexibility Analysis (EESS) and SRS (active) in the 5.46–5.57 all U–NII devices to employ TPC. For 17. As required by the Regulatory GHz band. example, in some point-to-multipoint Flexibility Act of 1980 as amended,1 the 20. The NPRM also proposes to system configurations, U–NII devices Commission has prepared this present modify certain technical requirements may be designed to function only with for U–NII devices in the part 15 rules. a particular controller or hub. Should 1 See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601 et only the controlling point or hub be 2 seq. has been amended by the Contract With See 5 U.S.C. 603(a). required to employ TPC in this America Advancement Act of 1996, Public Law 3 See 5 U.S.C. 603(a). 104–112, 110 Stat. 847 (1996) (‘‘CWAAA’’). Title II 4 See WECA Petition for Rulemaking, RM–10371, configuration? Some U–NII devices will of the CWAAA is the Small Business Regulatory filed on January 15, 2002, Public Notice Report No. be designed to operate with a maximum Enforcement Fairness Act of 1996 (‘‘SBREFA’’). 2527, January 29, 2002. e.i.r.p. below what the rules allow.

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Should these devices be exempt from C. Description and Estimate of the concern.13 Census Bureau indicates that the TPC requirement? Number of Small Entities to Which the there are 858 U.S. companies that 22. The NPRM seeks comment on Proposed Rules Will Apply manufacture radio and television broadcasting and communications appropriate test procedures needed to 25. The RFA directs agencies to equipment, and the 778 of these firms ensure compliance with the DFS and provide a description of, and, where have fewer than 750 employees and TPC requirements proposed in this feasible, an estimate of the number of would be classified as small entities.14 proceeding. It notes that the operational small entities that may be affected by We do not believe this action would requirements for DFS are well defined the proposed rules, if adopted.6 The have a negative impact on small entities in the applicable industry standards.5 It RFA defines the term ‘‘small entity’’ as that manufacture unlicensed U–NII particularly seeks comment on means having the same meaning as the terms devices. Indeed, we believe the actions by which devices can be tested for ‘‘small business,’’ ‘‘small organization,’’ should benefit small entities because it compliance with TPC requirements to and ‘‘small business concern’’ under should make available increased implement reduced power without Section 3 of the Small Business Act.7 business opportunities to small entities. Under the Small Business Act, a ‘‘small placing unnecessary restrictions on We request comment on these business concern’’ is one that: (1) Is device design. It also seeks comment on assessments. the extent to which devices under independently owned and operated; (2) development with unique and novel is not dominant in its field of D. Description of Projected Reporting, transmission waveforms may require operations; and (3) meets any additional Recordkeeping and Other Compliance special measurement instrumentation criteria established by the Small Requirements settings (e.g., integration times) that Business Administration (SBA).8 differ from those used for measuring 26. A small organization is generally 28. Part 15 transmitters are already required to be authorized under the compliance for existing U–NII band ‘‘any not-for-profit enterprise which is Commission’s certification procedures devices. independently owned and operated and is not dominant in its field.’’9 as a prerequisite to marketing and 23. U–NII devices currently operate in Nationwide, as of 1992, there were importation. Under the proposals in the the 5.250–5.350 GHz band without DFS approximately 275,801 small NPRM, manufacturers will be required capability. As a result, some period of organizations.10 The term ‘‘small to demonstrate that U–NII devices time will be needed to implement the governmental jurisdiction’’ is defined as operating in the bands 5.250–5.350 GHz new DFS requirement for U–NII ‘‘governments of cities, counties, towns, and 5.470–5.725 GHz have Dynamic equipment operating in the 5.250–5.350 townships, villages, school districts, or Frequency Selection Capabilities. GHz band. The NPRM proposes that the special districts, with a population of Additionally, U–NII devices operating DFS requirement for the 5.250–5.350 less than fifty thousand.’’11 As of 1997, in the 5.470–5.725 GHz band must GHz band effective for U–NII equipment there were approximately 87,453 exhibit Transmit Power Control that is certified after one year from the governmental jurisdictions in the capabilities. The reporting and date of publication of the Report and United States.12 This number includes recordkeeping requirements associated Order in this proceeding in the Federal 39,044 counties, municipal with these equipment authorizations Register. It also proposes to require that governments, and townships, of which would not be changed by the rule all U–NII devices operating in the 27,546 have populations of fewer than revisions proposed in this NPRM. 5.250–5.350 GHz band that are imported 50,000 and 11,498 counties, municipal E. Steps Taken To Minimize Significant or shipped in interstate commerce on or governments, and townships have Economic Impact on Small Entities and after three years from the date the populations of 50,000 or more. Thus, we Significant Alternatives Considered adopted rules are published in the estimate that the number of small Federal Register comply with these governmental jurisdictions is 29. The RFA requires an agency to standards. The Commission believes approximately 75,955 or fewer. describe any significant alternatives that that most affected products will be 27. The Commission has not it has considered in reaching its redesigned within this three-year time developed a definition of small entities proposed approach, which may include frame and that compliance with this applicable to unlicensed the following four alternatives (among proposal would not cause an communications devices manufacturers. others): (1) The establishment of unreasonable burden on industry. Therefore, we will utilize the SBA differing compliance or reporting Comments are requested on these definition application to manufacturers requirements or timetables that take into proposed transition provisions. The of Radio and Television Broadcasting account the resources available to small NPRM proposes that U–NII equipment and Communications Equipment. entities; (2) the clarification, operating in the new spectrum at 5.470– According to the SBA regulations, consolidation, or simplification of 5.725 GHz meet all the technical unlicensed transmitter manufacturers compliance or reporting requirements requirements, including DFS and TPC, must have 750 or fewer employees in under the rule for small entities; (3) the on the effective date of these rules. order to qualify as a small business use of performance, rather than design, standards; and (4) an exemption from B. Legal Basis 6 See U.S.C. 603(b)(3). coverage of the rule, or any part thereof, 15 7 for small entities. 24. This action is taken pursuant to Id. 601(3). 8 sections 1, 4, 301, 302(a), 303, 307, 309, Id. 632. 9 5 U.S.C. 601(4). 13 See 13 CFR 121.20 NAICS Code 33420 (SIC 316, 332, 334, and 336 of the 10 1992 Economic Census, U.S. Bureau of the Code 3663). Although SBA now uses the NAICS Communications Act of 1934, as Census. Table 6 (special tabulation of data under classifications, instead of SIC, the size standard amended, 47 U.S.C. 151, 154, 301, contract to Office of Advocacy of the U.S. Small remains the same. 302(a), 303, 307, 309, 316, 332, 334, and Business Administration). 14 See U.S. Dept. of Commerce, 1992 census of 11 336. 5 U.S.C. 601(5). Transportation, Communications and Utilities 12 1995 Census of Governments, U.S. Census (issued May 1995), SIC category 3663 (NAICS Code Bureau, United States Department of Commerce, 34220). 5 See supra note 36. Statistical Abstract of the United States (2000). 15 5 U.S.C. 603(c).

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F. Federal Rules That May Duplicate, Federal Communications Commission. Authority: 47 U.S.C. 154, 302a, 303, and Overlap, or Conflict With the Proposed William F. Caton, 336, unless otherwise noted. Rules. Deputy Secretary. 2. Section 2.106, the Table of For the reasons discussed in the 31. None. Frequency Allocations, is proposed to preamble, the Federal Communications be amended by revising pages 56 and Commission proposes to amend 47 CFR List of Subjects in 47 CFR Parts 2 and 57. 15 parts 2 and 15 as follows: § 2.106 Table of Frequency Allocations. Communications equipment, Radio, PART 2—FREQUENCY ALLOCATIONS Reporting and recordkeeping AND RADIO TREATY MATTERS; The proposed revisions and additions requirements. GENERAL RULES AND REGULATIONS read as follows: 1. The authority citation for part 2 * * * * * continues to read as follows: BILLING CODE 6712–01–P

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BILLING CODE 6712–01–C

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PART 15—RADIO FREQUENCY transmissions on the Operating Channel bandwidth of the signal in hertz) or the DEVICES upon detection of a signal above the transmission pulse duration of the DFS detection threshold. Transmissions device, whichever is less, under all 3. The authority citation for part 15 during this period will consist of conditions of modulation. continues to read as follows: intermittent management and control (o) Power Spectral Density. The power Authority: 47 U.S.C. 154, 302, 303, 304, signals required to facilitate vacating the spectral density is the total energy 307 and 544A. Operating Channel. output per unit bandwidth from a pulse 4. Section 15.37 amended by adding (f) Digital modulation. The process by or sequence of pulses for which the paragraph (l) to read as follows: which the characteristics of a carrier transmit power is at its peak or wave are varied among a set of maximum level, divided by the total § 15.37 Transition provisions for predetermined discrete values in duration of the pulses. This total time compliance with the rules. accordance with a digital modulating does not include the time between * * * * * function as specified in document ANSI pulses during which the transmit power (l) U–NII Equipment operating in the C63.17–1998. is off or below its maximum level. 5.25—5.35 GHz band that are authorized (g) Dynamic Frequency Selection (p) Pulse. A pulse is a continuous under the certification procedure on or (DFS) is a mechanism that detects transmission of a sequence of after [1 year after publication of R&O in signals from other systems and avoids modulation symbols, during which the ET Docket No. 03–122 in the Federal co-channel operation with these average symbol envelope power is Register] shall comply with the DFS systems, notably radar systems. The constant. requirement specified in § 15.407. All DFS process shall be required to provide (q) RLAN. Radio Local Area Network. U–NII Equipment operating in the 5.25– a uniform spreading of the loading over (r) Transmit Power. The total energy 5.35 GHz band that are manufactured or all the available channels. transmitted over a time interval of at imported on or after [2 years from (h) DFS Detection Threshold. The most 30/B (where B is the 26 dB publication of R&O in ET Docket No. required detection level defined by emission bandwidth of the signal in 03–122 in the Federal Register] shall detecting a received signal strength hertz) or the duration of the comply with the DFS requirement (RSS) that is greater than a threshold transmission pulse, whichever is less, specified in § 15.407. Equipment specified, within the U–NII device divided by the interval duration. authorized, imported or manufactured channel bandwidth. (s) Transmit Power Control (TPC). A prior to these dates shall comply with (i) Emission bandwidth. For purposes feature that enables a U-NII device to the requirements for U–NII Equipment of this subpart the emission bandwidth dynamically switch between several operating in the 5.25–5.35 GHz band shall be determined by measuring the transmission power levels in the data that were in effect immediately prior to width of the signal between two points, transmission process. [60 days after publication of R&O in ET one below the carrier center frequency (t) U–NII devices. Intentional radiators Docket No. 03–122 in the Federal and one above the carrier center operating in the frequency bands 5.15— Register]. frequency, that are 26 dB down relative 5.35 GHz and 5.470—5.825 GHz that use 5. Section 15.401 is revised to read as to the maximum level of the modulated wideband digital modulation techniques follows: carrier. Determination of the emissions and provide a wide array of high data bandwidth is based on the use of rate mobile and fixed communications § 15.401 Scope. measurement instrumentation for individuals, businesses, and This subpart sets out the regulations employing a peak detector function with institutions. for unlicensed National Information an instrument resolution bandwidth 7. Section 15.407 is amended by Infrastructure (U–NII) devices operating approximately equal to 1.0 percent of revising paragraph (a)(2), redesignating in the 5.15—5.35 GHz, 5.47—5.725 GHz the emission bandwidth of the device paragraphs (b)(3) through (b)(6) as and 5.725—5.825 GHz bands. under measurement. paragraphs (b)(4) through (b)(7), adding 4. Section 15.403 is revised to read as (j) In-Service Monitoring. Monitoring a new paragraph (b)(3) and paragraph follows: of the Operating Channel to check that (h) to read as follows: a co-channel radar has not moved or § 15.407 General Technical Requirements. § 15.403 Definitions. started operation within range of the U- (a) Access Point (AP). A U–NII NII device. (a) * * * transceiver that operates either as a (k) Non-Occupancy Period. The (2) For the 5.25–5.35 GHz and 5.47– bridge in a peer-to-peer connection or as required period in which, once a 5.725 GHz bands, the peak transmit a connector between the wired and channel has been recognized as power over the frequency bands of wireless segments of the network. containing a radar signal by a U–NII operation shall not exceed the lesser of (b) Available Channel. A radio device, the channel will not be selected 250 mW or 11 dBm + 10log B, where B channel on which a Channel as an available channel. is the 26 dB emission bandwidth in Availability Check has not identified the (l) Operating Channel. Once a U–NII megahertz. In addition, the peak power presence of a radar. device starts to operate on an Available spectral density shall not exceed 11 (c) Average Symbol Envelope Power. Channel then that channel becomes the dBm in any 1 megahertz band. If The average symbol envelope power is Operating Channel. transmitting antennas of directional gain the average, taken over all symbols in (m) Peak Power Spectral Density. The greater than 6 dBi are used, both the the signaling alphabet, of the envelope peak power spectral density is the peak transmit power and the peak power for each symbol. maximum power spectral density, power spectral density shall be reduced (d) Channel Availability Check. A within the specified measurement by the amount in dB that the directional check during which the U–NII device bandwidth, within the U–NII device gain of the antenna exceeds 6 dBi. listens on a particular radio channel to operating band. * * * * * identify whether there is a radar (n) Peak Transmit Power. The (b) * * * operating on that radio channel. maximum transmit power as measured (3) For transmitters operating in the (e) Channel Move Time. The time over an interval of time of at most 30/ 5.47–5.725 GHz band: all emissions needed by a U–NII device to cease all B (where B is the 26 dB emission outside of the 5.47–5.725 GHz band

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shall not exceed an EIRP of -27 dBm/ The non-occupancy period starts at the DATES: Comments on this proposed rule MHz. time when the radar system is detected. must be received by August 25, 2003. * * * * * [FR Doc. 03–18971 Filed 7–24–03; 8:45 am] ADDRESSES: You may submit comments (h) Transmit Power Control (TPC) and BILLING CODE 6712–01–P by any of the following methods: Dynamic Frequency Selection (DFS). 1. By mail to: Craig Perham, Office of (1) Transmit power control (TPC). U– Marine Mammals Management, U.S. NII devices operating in the 5.47–5.725 Fish and Wildlife Service, 1011 East GHz band shall employ a TPC DEPARTMENT OF THE INTERIOR Tudor Road, Anchorage, AK 99503. mechanism. The U–NII device is 2. By Fax to: (907) 786–3816. required to have the capability to Fish and Wildlife Service 3. By Internet, electronic mail by operate at least 6 dB below the mean sending to: [email protected]. Please EIRP value of 30 dBm. 50 CFR Part 18 submit Internet comments as an ASCII (2) Dynamic Frequency Selection file avoiding the use of special (DFS). U–NII devices operating in the RIN 1018–AH92 characters and any form of encryption. Please also include ‘‘Attn: RIN 1018– 5.25–5.35 GHz and 5.47–5.725 GHz Marine Mammals; Incidental Take AH92’’ and your name and return bands shall employ a DFS mechanism to During Specified Activities detect the presence of radar systems and address in your Internet message subject to avoid co-channel operation with AGENCY: Fish and Wildlife Service, header. If you do not receive a radar systems. The minimum DFS Interior. confirmation from the system that we detection threshold for devices with a ACTION: Proposed rule. have received your Internet message, maximum e.i.r.p. of 200 mW to 1 W is contact us directly at U.S. Fish and -64 dBm. For devices that operate with SUMMARY: We, the Fish and Wildlife Wildlife Service, Office of Marine less than 200 mW e.i.r.p. the minimum Service, are proposing regulations that Mammals Management, (907)–786–3810 detection threshold is -62 dBm. The would authorize the incidental, or 1–800–362–5148. detection threshold is the received unintentional take of small numbers of 4. By hand-delivery to: Office of power averaged over 1 microsecond polar bears and Pacific walrus during Marine Mammals Management, U.S. referenced to a 0 dBi antenna. year-round oil and gas industry Fish and Wildlife Service, 1011 East (i) Operational Modes. The DFS (Industry) exploration, development, Tudor Road, Anchorage, Alaska 99503. requirement applies to the following and production operations in the Comments and materials received in operational modes: Beaufort Sea and adjacent northern response to this action are available for (A) The requirement for channel coast of Alaska. Industry operations for public inspection during normal availability check time applies in the the covered period are similar to and working hours of 8 a.m. to 4:30 p.m., master operational mode; and include all activities covered by the 3- Monday through Friday, at the Office of (B) The requirement for channel move year Beaufort Sea incidental take Marine Mammals Management, U.S. time applies in both the master and regulations that were effective from Fish and Wildlife Service, 1011 E. slave operational modes. March 30, 2000, through March 31, 2003 Tudor Road, Anchorage, Alaska 99503. (ii) Channel Availability Check Time. (65 FR 16828). We are proposing that FOR FURTHER INFORMATION CONTACT: A U–NII device shall check if there is a this rule be effective for approximately Craig Perham, Office of Marine radar system already operating on the 16 months from date of issuance. Mammals Management, U.S. Fish and channel before it can initiate a We will also be conducting an Wildlife Service, 1011 East Tudor Road, transmission on a channel and when it evaluation for a new 5-year regulation Anchorage, AK 99503; Telephone 907– has to move to a new channel. The U– based on a petition received from 786–3810 or 1–800–362–5148; or NII device may start using the channel Industry on August 23, 2002. We will Internet [email protected]. if no radar signal with a power level work to assess the effects of Industry SUPPLEMENTARY INFORMATION: greater than the interference threshold activities for the requested period (5 values, as listed in (h)(2) of this section, years) and expect to publish a longer Background is detected within 60 seconds. term proposed rule during the period Section 1371(a)(5)(A) of the Marine (iii) Channel Move Time. After a that this rule is in effect. Mammal Protection Act (Act) (16 U.S.C. radar’s presence is detected, all We propose a finding that the total 1361–1407) gives the Secretary of the transmissions shall cease on the expected takings of polar bear and Interior (Secretary) through the Director operating channel within 10 seconds. Pacific walrus during oil and gas of the U.S. Fish and Wildlife Service Transmissions during this period will industry exploration, development, and (we) the authority to allow the consist of normal traffic for typically production activities will have a incidental, but not intentional, taking of less than 100 ms and a maximum of negligible impact on these species and small numbers of marine mammals, in 200ms after detection of the radar no unmitigable adverse impacts on the response to requests by U.S. citizens signal. In addition, intermittent availability of these species for (you) [as defined in 50 CFR 18.27(c)] management and control signals can be subsistence use by Alaska Natives. We engaged in a specified activity (other sent during the remaining time to base this finding on the results of 9 than commercial fishing) in a specified facilitate vacating the operating channel. years of monitoring and evaluating geographic region. If regulations The aggregate time of the intermittent interactions between polar bears, Pacific allowing such incidental taking are management and control signals are walrus, and Industry, and on oil spill issued, we can issue Letters of typically less than 20 ms. trajectory models, polar bear density Authorization (LOA) to conduct (iv) Non-occupancy Period. A channel models, and independent population activities under the provisions of these that has been flagged as containing a recruitment and survival models that regulations when requested by citizens radar system, either by a channel determine the likelihood of impacts to of the United States. availability check or in-service polar bears should an accidental oil We propose to authorize the monitoring, is subject to a non- release occur. We are seeking public incidental taking of polar bears and occupancy period of at least 30 minutes. comments on this proposed rule. Pacific walrus based on our proposed

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finding using the best scientific and, therefore, risks violating the Liberty prospect was subsequently evidence available that the total of such prohibitions on the taking of marine abandoned, while the Northstar taking for the regulatory period will mammals. prospect moved toward production. At have no more than a negligible impact Although Industry is under no legal the time, based on the preliminary on these species and will not have an requirement to obtain incidental take nature of the information related to sub- unmitigable adverse impact on the authorization, since 1993 Industry has sea pipelines published in a Draft availability of these species for taking chosen to seek authorization to avoid Environmental Impact Statement (DEIS) for subsistence use by Alaska Natives. the uncertainties of taking marine for the Northstar project, we were These regulations set forth: (1) mammals associated with conducting unable to make a finding of negligible Permissible methods of taking; (2) the activities in marine mammal habitat. impact and issue regulations for the full means of effecting the least practicable On November 16, 1993 (58 FR 60402), 5-year period as requested by Industry. adverse impact on the species and their we issued final regulations to allow the On November 17, 1998, we published habitat and on the availability of the incidental, but not intentional, take of proposed regulations (63 FR 63812) to species for subsistence uses; and (3) small numbers of polar bears and Pacific allow the incidental, unintentional take requirements for monitoring and walrus when such taking(s) occurred in of small numbers of polar bears and reporting. the course of Industry activities during Pacific walrus in the Beaufort Sea and year-round operations in the area The term ‘‘take,’’ as defined by the northern coast of Alaska for a 15-month described later in this proposed rule in Act, means to harass, hunt, capture, or period. These regulations did not the section ‘‘Description of Geographic authorize the incidental take of polar kill, or attempt to harass, hunt, capture, Region.’’ The regulations were effective bears and Pacific walrus during or kill, any marine mammal. for 18 months. At the same time, the construction or operation of sub-sea Harassment as defined by the Act, as Secretary of the Interior directed us to pipelines in the Beaufort Sea. On amended in 1994, ‘‘means any act of develop, and then begin implementation January 28, 1999, we issued final pursuit, torment, or annoyance which (i) of, a polar bear habitat conservation regulations effective through January 30, has the potential to injure a marine strategy before extending the regulations 2000 (64 FR 4328). mammal or marine mammal stock in the beyond the initial 18 months for a total The U.S. Army Corps of Engineers wild’’ (the Act calls this type of 5-year period as allowed by the Act. On finalized the Northstar Final harassment Level A harassment), ‘‘or (ii) August 14, 1995, we completed Environmental Impact Statement (FEIS) has the potential to disturb a marine development of and issued our Habitat in February 1999. On February 3, 2000, mammal or marine mammal stock in the Conservation Strategy for Polar Bears in we issued regulations effective through wild by causing disruption of behavioral Alaska to ensure that the regulations March 31, 2000 (65 FR 5275), in order patterns, including, but not limited to, met with the intent of Congress. On to finalize the subsequent longer term migration, breathing, nursing, breeding, August 17, 1995, we issued the final regulations without a lapse in coverage. feeding, or sheltering.’’ (the Act calls rule and notice of availability of a After a thorough analysis of the this type of harassment Level B completed final polar bear habitat Northstar FEIS and other data related to harassment). As a result of 1986 conservation strategy (60 FR 42805). We oil spills, on March 30, 2000, we issued amendments to the Act, we amended 50 then extended the regulations for an regulations effective for a 3-year CFR 18.27 (i.e., regulations governing additional 42 months to expire on duration, through March 31, 2003 (65 small takes of marine mammals December 15, 1998. FR 16828). This assessment included a incidental to specified activities) with a On August 28, 1997, BP Exploration polar bear oil spill risk analysis, a model final rule published on September 29, (Alaska), Inc., submitted a petition for that simulated oil spills and their 1989. Section 18.27(c) included a itself and for ARCO Alaska, Inc., Exxon subsequent effects on estimated polar revised definition of ‘‘negligible impact’’ Corporation, and Western Geophysical bear survival on the basis of distribution and a new definition for ‘‘unmitigable Company for rulemaking pursuant to in the Beaufort Sea. The likelihood of adverse impact’’ as follows. Negligible section 101(a)(5)(A) of the Act, and polar bear mortality caused by oil spills impact is ‘‘an impact resulting from the section 553(e) of the Administrative during different seasons (open-water, specified activity that cannot be Procedure Act (APA; 5 U.S.C. 553). ice-covered, broken ice) was also reasonably expected to, and is not Their request sought regulations to analyzed. A 3-year period was selected, reasonably likely to, adversely affect the allow the incidental, but not intentional, rather than a 5-year period, due to the species or stock through effects on take of small numbers of polar bears and potential development of additional annual rates of recruitment or survival.’’ Pacific walrus when takings occurred offshore oil and gas production sites, Unmitigable adverse impact means ‘‘an during Industry operations in Arctic such as the offshore Liberty impact resulting from the specified Alaska. Specifically, they requested an Development, which would need activity (1) that is likely to reduce the extension of the incidental take increased oil spill analysis if availability of the species to a level regulations that begin at 50 CFR 18.121 development proceeded. The Liberty insufficient for a harvest to meet for an additional 5-year term from Development Plan was subsequently subsistence needs by (i) causing the December 16, 1998, through December withdrawn by the operator to be re- marine mammals to abandon or avoid 15, 2003. The geographic extent of the evaluated. hunting areas, (ii) directly displacing request was the same as that of Between January 1994 and March subsistence users, or (iii) placing previously issued regulations that begin 2003, we issued 223 LOAs for oil and physical barriers between the marine at 50 CFR 18.121 that were in effect gas related activities. Activities covered mammals and the subsistence hunters; through December 15, 1998 (see above). by LOAs included: exploratory and (2) that cannot be sufficiently The petition to extend the incidental operations, such as seismic surveys and mitigated by other measures to increase take regulations included two new oil drilling; development activities, such as the availability of marine mammals to fields (Northstar and Liberty). Plans to construction and remediation; and allow subsistence needs to be met.’’ develop each field identified a need for production activities for operational Industry conducts activities such as oil an offshore gravel island and a buried fields. Between January 1, 1994, and and gas exploration, development, and sub-sea pipeline to transport crude oil to March 31, 2000, 77 percent (n=89) of production in marine mammal habitat existing onshore infrastructure. The LOAs issued were for exploratory

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activities, 10 percent (n=11) were for industrial activities during the effective continued availability of these species development, and 13 percent (n=15) period of this rule will be similar to for subsistence use. were for production activities. Less than those analyzed in the most recent We will evaluate each request for an a third (32 of 115) of these activities regulations, with no new major Industry LOA for a specific activity and specific actually sighted polar bears, and developments anticipated. location, and may condition each LOA approximately two-thirds of sightings Description of Proposed Regulations for that activity and location. For (171 of 258) occurred during production example, an LOA issued in response to activities. The regulations that we are proposing a request to conduct activities on barrier Summary of Current Request include: permissible methods of taking; islands with known active bear dens, or measures to ensure the least practicable a history of polar bear denning, may be On August 23, 2002, the Alaska Oil adverse impact on the species and the conditioned to require avoidance of a and Gas Association (AOGA), on behalf availability of these species for specific den site by 1 mile, intensified of its members, requested that we subsistence uses; and requirements for monitoring in a 1-mile buffer around the promulgate regulations for nonlethal monitoring and reporting. The den, or avoiding the area until a specific incidental take of small numbers of geographic coverage and the scope of date. More information on applying for Pacific walrus and polar bears pursuant industrial activities assessed in these and receiving an LOA can be found at to section 101(a)(5) of the Act. The proposed regulations are the same as 50 CFR 18.27(f). request was for a period of 5 years, from those in the regulations we issued on March 31, 2003, through March 31, March 30, 2000. New LOAs will be Description of Geographic Region 2008. Members of AOGA include issued if the proposed regulations These proposed regulations would Alyeska Pipeline Service Company; become final. allow Industry to incidentally take small Marathon Oil Company; Anadarko These proposed regulations would not numbers of polar bear and Pacific Petroleum Corporation Petro Star, Inc.; authorize the actual activities associated walrus within the same area, referred to BP Exploration (Alaska) Inc.; Phillips with oil and gas exploration, as the Beaufort Sea Region, as covered Alaska, Inc.; ChevronTexaco development, and production. Rather, by our previous regulations. This region Corporation; Shell Western E&P Inc.; they would authorize the incidental, is defined by a north/south line at Cook Inlet Pipe Line Company; Tesoro unintentional take of small numbers of Barrow, Alaska, and includes all Alaska Alaska Company; Cook Inlet Region, polar bears and Pacific walrus State waters and all Outer Continental Inc.; TotalFinaElf E&P USA; EnCana Oil & Gas (USA) Inc.; UNOCAL; Evergreen associated with those activities. The Shelf waters, east of that line to the Resources, Inc.; Williams Alaska U.S. Minerals Management Service, the Canadian border. The onshore region is Petroleum, Inc.; ExxonMobil Production U.S. Army Corps of Engineers, and the the same north/south line at Barrow, 25 Company; XTO Energy, Inc.; and Forest U.S. Bureau of Land Management are miles inland and east to the Canning Oil Corporation. Along with their responsible for permitting activities River. The Arctic National Wildlife request for incidental take associated with oil and gas activities in Refuge is not included in the area authorization, Industry has also Federal waters and on Federal lands. covered by these regulations. The State of Alaska is responsible for developed and implemented polar bear Description of Activities conservation measures. The geographic activities on State lands and in State region defined in Industry’s 2002 waters. In accordance with 50 CFR 18.27, application is described later in this If we issue final incidental take Industry submitted a request for the proposed rule in the section titled regulations, persons seeking taking promulgation of incidental take ‘‘Description of Geographic Region.’’ authorization for particular projects will regulations pursuant to section We are proposing to issue new apply for an LOA to cover take 101(a)(5)(A) of the Act. Activities regulations that would remain in effect associated with exploration, covered in this proposed regulation for, 16 months, from date of issuance, to development, and production activities include Industry exploration, ensure that we have adequate time to pursuant to the regulations. Each group development, and production of oil and thoroughly assess effects of Industry or individual conducting an oil and gas gas, as well as environmental activities over the longer period (5 industry-related activity within the area monitoring associated with these years) requested by Industry. New LOAs covered by these regulations may activities. These proposed regulations may be issued after the new finding is request an LOA. Applicants for LOAs do not authorize incidental take for made. We will assess the effects of must submit a plan to monitor the offshore production sites other than the Industry activities for the requested effects of authorized activities on polar previously evaluated Northstar period (5 years) and expect to publish bears and walrus. Applicants for LOAs Production area. a longer-term proposed rule during the must also include a Plan of Cooperation Exploration activities may occur term described in this proposed rule. on the availability of these species for onshore or offshore and include: Prior to issuing regulations at 50 CFR subsistence use by Alaska Native geological surveys; geotechnical site part 18, subpart J, we must evaluate the communities that may be affected by investigations; reflective seismic level of industrial activities, their Industry operations. The purpose of the exploration; vibrator seismic data associated potential impacts to polar Plan is to minimize the impact of oil collection; airgun and water gun seismic bears and Pacific walrus, and their and gas activity on the availability of the data collection; explosive seismic data effects on the availability of these species or the stock to ensure that collection; vertical seismic profiles; species for subsistence use. subsistence needs can be met. The Plan subsea sediment sampling; construction To minimize disruptions related to a must provide the procedures on how and use of drilling structures such as lapse in the regulations, we propose Industry will work with the affected caisson-retained islands, ice islands, developing a short-term rule, while a Native communities, including a bottom-founded structures (steel drilling longer term rule is being developed to description of the necessary actions that caisson: SDC), ice pads and ice roads; address anticipated future actions by will be taken to: (1) Avoid interference oil spill prevention, response, and Industry. The recent petition and with subsistence hunting of polar bears cleanup; and site restoration and discussions with Industry indicate that and Pacific walrus, and (2) ensure remediation.

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Exploratory drilling for oil is an During the period covered by the of 15 months after mating) and birth aspect of exploration activities. proposed regulations, we anticipate a occurs between April and June during Exploratory drilling and associated level of activity per year at existing the annual northward migration. Calves support activities and features include: production facilities similar to that weigh about 63 kg (139 lb) at birth and transportation to site; setup of 90–100 during the timeframe of the previous are usually weaned by age two. Females person camps and support camps regulations. In addition, during the give birth to one calf every two or more (requiring lights, generators, snow period of the rule, we anticipate that the years. This reproductive rate is much removal, water plants, wastewater levels of new annual exploration and lower than other pinnipeds; however, plants, dining halls, sleeping quarters, development activities will be similar to some walrus may live to age 35–40 and mechanical shops, fuel storage, camp those of the previous 3 years. remain reproductively active until late moves, landing strips, aircraft support, in life. Biological Information health and safety facilities, data Polar Bear recording facility and communication Pacific Walrus equipment); building gravel pads; Polar bears (Ursus maritimus) occur The Pacific walrus (Odobenus in the circumpolar Arctic and they live building gravel islands with sandbag rosmarus) typically inhabits the waters and concrete block protection, ice in close association with polar ice. In of the Chukchi and Bering seas. Most of Alaska, their distribution extends from islands, and ice roads; gravel hauling; the population congregates near the ice gravel mine sites; road building; south of the Bering Strait to the U.S.- edge of the Chukchi Sea pack ice west Canada border. Two stocks occur in pipelines; electrical lines; water lines; of Point Barrow during the summer. road maintenance; buildings; facilities; Alaska: the Chukchi/Bering seas stock, Walrus migrate north and south whose minimum size is approximately operating heavy equipment; digging following the annual advance and trenches; burying pipelines and 2,000, and the Southern Beaufort Sea retreat of the pack ice. In the winter, stock, which was estimated in 2002 to covering pipelines; sea lift; water flood; walrus inhabit the pack ice of the Bering security operations; dredging; moving have 2,273 bears. Sea, with concentrations occurring in Females without dependent cubs floating drill units; helicopter support; the Gulf of Anadyr, south of St. breed in the spring and enter maternity and drill ships such as the SDC, Lawrence Island, and south of Nunivak dens by late November. Females with CANMAR Explorer III, and the Kulluk. Island. The most current conservative, cubs do not mate. Each pregnant female Development activities associated minimum population estimate is gives birth to one to three cubs, with with oil and gas industry operations approximately 200,000 walrus. Pacific two cub litters being most common. include: road construction; pipeline walrus use five major haul out sites on Cubs are usually born in December. construction; waterline construction; the west coast of Alaska. There are no Family groups emerge from their dens gravel pad construction; camp known haulout sites from Point Barrow in late March or early April. Only construction (personnel, dining, to Demarcation Point on the Beaufort pregnant females den for an extended lodging, maintenance shops, water Sea coast. period during the winter; however, plants, wastewater plants); Walrus occur infrequently in the other polar bears may burrow in transportation (automobile, airplane, Beaufort Sea, and although individuals depressions to escape harsh winter and helicopter traffic; runway are occasionally seen in the Beaufort winds. The reproductive potential construction; installation of electronic Sea, they do not occur in significant (intrinsic rate of increase) of polar bears equipment); well drilling; drill rig numbers to the east of Point Barrow. If is low. The average reproductive transport; personnel support; and walrus are observed, they are most interval for a polar bear is 3–4 years. demobilization, restoration, and likely to be seen in nearshore and The maximum reported age of remediation. offshore areas during the summer, open- reproduction in Alaska is 18 years. Production activities include: water season. They will not be Based on these data, a female polar bear personnel transportation (automobiles, encountered during the ice-covered may produce about 8–10 cubs in her airplanes, helicopters, boats, rolligons, season. lifetime. cat trains, and snowmobiles); and unit Walrus sightings in the Beaufort Sea Ringed seals (Phoca hispida) are the operations (building operations, oil have consisted solely of widely primary prey species of the polar bear, production, oil spills, cleanup, scattered individuals and small groups. although polar bears occasionally hunt restoration, and remediation). For example, while walrus have been bearded seals (Erignathus barbatus) and Alaska’s North Slope encompasses an encountered and are present in the walrus calves. Polar bears also scavenge area of 88,280 square miles and contains Beaufort Sea, there were only five on marine mammal carcasses washed 8 major oil and gas fields in production: sightings of walrus between 146° and up on shore and have been known to eat Endicott/Duck Island; Prudhoe Bay; 150°W during Minerals Management anthropogenic nonfood items such as Kuparuk River; Point McIntyre; Milne Service (MMS) sponsored aerial surveys Styrofoam, plastics, car batteries, Point; Badami; Northstar; and Colville conducted from 1979 to 1995. antifreeze, and lubricating fluids. River. These 8 fields include 21 current Pacific walrus mainly feed on bivalve Polar bears have no natural predators, satellite oilfields: Sag Delta North; mollusks obtained from bottom and they do not appear to be prone to Eider; North Prudhoe Bay; Lisburne; sediments along the shallow continental death by disease or parasites. The most Niakuk; Niakuk-Ivashak; Aurora; shelf, typically at depths of 80 m (262 significant source of mortality is Midnight Sun; Borealis; West Beach; ft) or less. Walrus are also known to feed humans. Since 1972, with the passage of Polaris; Orion; Tarn; Tabasco; Palm; on a variety of benthic invertebrates, the Act, only Alaska Natives are allowed West Sak; Meltwater; Cascade; Schrader such as, worms, snails, and shrimp, and to hunt polar bears in Alaska. Bears are Bluff; Sag River; and Alpine. some slow-moving fish; and some used by Alaska Natives for subsistence Exploration and delineation of known animals feed on seals and seabirds. purposes, such as for consumption and satellite fields identified within existing Mating usually occurs between the manufacture of handicraft and production fields would also be January and March. Implantation of a clothing items. The Native harvest appropriate for coverage under the fertilized egg is delayed until June or occurs without restrictions on sex, age, provisions of this proposed rule. July. Gestation lasts 11 months (a total number, or season, provided that takes

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are non-wasteful. From 1980 through Accordingly, few walrus inhabit, or are Plan of Cooperation has been presented 2002, the total annual harvest in Alaska harvested in, the Beaufort Sea along the to the subsistence communities, the averaged 107 bears. The majority of this northern coast of Alaska. Therefore, the Eskimo Walrus Commission, the Alaska harvest (69 percent) occurred in the effect to Pacific walrus of Industry Nanuuq Commission, and the North Chukchi and Bering Seas area. activities described in this rule making Slope Borough. The plan will ensure Polar bears in the near-shore Alaskan would most likely be minimal, as they that oil and gas activities will continue Beaufort Sea are widely distributed in would affect only those individuals not to have an unmitigable adverse low numbers, with an average density of inhabiting the Beaufort Sea. Walrus impact on the availability of the species about one bear per 30 to 50 square constitute only a small portion of the or stock for subsistence uses. This Plan miles. Polar bears congregate on barrier total marine mammal harvest for the of Cooperation must provide the islands in the fall and winter because of village of Barrow. From 1994 to 2002, procedures on how Industry will work available food and favorable 182 walrus were reported taken by with the affected Native communities environmental conditions. Polar bears Barrow hunters through the Service and what actions will be taken to avoid will occasionally feed on bowhead Marking, Tagging, and Reporting interfering with subsistence hunting of whale carcasses on barrier islands. In Program. Reports indicate that only up polar bear and walrus. November 1996, biologists from the U.S. to 4 of the 182 animals were taken east Geological Survey observed 28 polar of Point Barrow, within the geographic Effects of Oil and Gas Industry bears near a bowhead whale carcass on area of these proposed incidental take Activities on Marine Mammals Cross Island, and approximately 11 regulations. Furthermore, hunters from Pacific Walrus polar bears within a 2-mile radius of Nuiqsut and Kaktovik do not normally another bowhead whale carcass near the hunt walrus east of Point Barrow and Walrus are not present in the region village of Kaktovik on Barter Island. have taken only one walrus in that area of activity during the ice-covered season From 2000 to 2003, biologists from the in the last 13 years. and occur only in small numbers in the USFWS conducted systematic coastal defined area during the open-water aerial surveys for polar bears from Cape Polar Bear season. From 1994 to 2000, three Pacific Halkett to Barter Island. During these Within the area covered by the walrus were sighted during the open- surveys they observed as many as 5 proposed regulations, polar bears are water season. In June 1996, one walrus polar bears at Cross Island and 51 polar taken for subsistence use in Barrow, was observed from a seismic vessel near bears on Barter Island within a 2-mile Nuiqsut, and Kaktovik where Alaska Point Barrow. In October 1996, one radius of bowhead whale carcasses. In a Natives utilize parts of the bears to make walrus was sighted approximately 5 survey during October 2002, we traditional handicrafts and clothing. miles northwest of Howe Island. In observed 109 polar bears on barrier Data from our Marine Mammal September 1997, one walrus was sighted islands and the coastal mainland from Management Office indicate that, from approximately 20 miles north of Pingok Cape Halkett to Barter Island, a distance July 1, 1993, to June 30, 2002, a total of Island. of approximately 350 kilometers. 194 polar bears was reported harvested Certain activities associated with oil by residents of Barrow; 26 by residents and gas exploration and production Effects of Oil and Gas Industry of the village of Nuiqsut; and 26 by during the open-water season have the Activities on Subsistence Uses of residents of the village of Kaktovik. potential to disturb walrus. Activities Marine Mammals Hunting success varies considerably that may affect walrus include The subsistence harvest provides from year to year because of variable ice disturbance by: (1) Noise, including Native Alaskans with food, clothing, and weather conditions. stationary and mobile sources, and and materials that are used to produce Native subsistence polar bear hunting vessel and aircraft traffic; (2) physical arts and crafts. Walrus meat is often could be affected by oil and gas obstructions; and (3) contact with consumed, and the ivory is used to activities in various ways. Hunting areas releases of oil or waste products. manufacture traditional arts and crafts. where polar bears are historically taken Despite the potential for disturbance, no Polar bears are primarily hunted for may be viewed as tainted if an oil spill walrus has been injured during an their fur, which is used to manufacture were to occur at these sites. In general, encounter by industry activities on the cold weather gear; however, their meat though, traditional hunting areas are not North Slope, and there have been no is also consumed. Although walrus and located near current or planned Industry lethal takes to date. polar bears are a part of the annual activities. Other potential disturbances, 1. Noise Disturbance subsistence harvest of most rural such as noise and vehicular traffic, communities on the North Slope of could have limited effects on Reactions of marine mammals to Alaska, these species are not as subsistence activities if these noise sources, particularly mobile significant of a food resource as disturbances were to occur near sources, such as marine vessels, vary. bowhead whales, seals, caribou, and traditional hunting areas and lead to the Reactions depend on the individual’s fish. displacement of polar bears. prior exposure to the disturbance source and their need or desire to be in the Pacific Walrus Plan of Cooperation particular habitat or area where they are The Pacific walrus has cultural and Polar bear and Pacific walrus exposed to the noise and visual subsistence significance to native inhabiting the Beaufort Sea represent a presence of the disturbance sources. Alaskans. Although it is not considered small portion, in terms of the number of Walrus are typically more sensitive to a primary food source for residents of animals, of the total subsistence harvest disturbance when hauled out on land or the North Slope, walrus are still taken for the villages of Barrow, Nuiqsut, and ice than when they are in the water. In by a few Alaskan communities located Kaktovik. Despite this fact, the harvest addition, females and young are in the southern Beaufort Sea along the of these species is important to Alaska generally more sensitive to disturbance northern coast of Alaska, including Natives. An important aspect of the than adult males. Barrow, Nuiqsut, and Kaktovik. LOA process therefore, is that prior to Noise generated by Industry activities, The primary range of Pacific walrus is receipt of an LOA, Industry must whether stationary or mobile, has the west and south of the Beaufort Sea. provide evidence to us that an adequate potential to disturb small numbers of

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walrus. The response of walrus to sound typically travel near large ice floes or indicates that female polar bears sources may be either avoidance or land where walrus could potentially be entering dens, or females in dens with tolerance. In one instance, prior to the found. Thus, vessel activities are likely cubs, are thought to be more sensitive initiation of incidental take regulations, to impact at most a few walrus. than other age and sex groups to noises. walrus that tolerated noises produced D. Aircraft Traffic—Aircraft Noise disturbance can originate from by Industry activities were intentionally overflights may disturb walrus; either stationary or mobile sources. harassed to protect them from more however, most aircraft traffic is in Stationary sources include: serious injury. Shell Western E & P Inc. nearshore areas, where there are construction, maintenance, repair, and encountered several walrus close to the typically few to no walrus. Reactions to remediation activities; operations at drillship during offshore drilling aircraft vary with range, aircraft type, production facilities; flaring excess gas; operations in the eastern Chukchi Sea in and flight pattern, as well as walrus age, and drilling operations from either 1989. On more than one occasion, one sex, and group size. Adult females, onshore or offshore facilities. Mobile walrus actually entered the ‘‘moon calves, and immature walrus tend to be sources include: vessel and aircraft pool’’ of the drillship. Eventually, the more sensitive to aircraft disturbance. traffic; open-water seismic exploration; walrus had to be removed from the ship winter vibroseis programs; geotechnical for its own safety. 2. Physical Obstructions surveys; ice road construction and A. Stationary Sources—It is highly Based on known walrus distribution associated vehicle traffic; drilling; improbable that noise from stationary and numbers in the Beaufort Sea near dredging; and ice-breaking vessels. sources would impact many walrus. Prudhoe Bay, it is unlikely that walrus A. Stationary Sources—All Currently, Endicott, the saltwater movements would be displaced by production facilities on the North Slope treatment plant, and Northstar, are the offshore stationary facilities, such as the in the area to be covered by this only offshore facilities that could Northstar or Endicott, or vessel traffic. rulemaking are currently located within produce noise that has the potential to There was no indication that the walrus, the landfast ice zone. Typically, most disturb walrus. Although walrus are rare that used Northstar Island as a haulout polar bears ocurr in the active ice zone, in the vicinity of these facilities, one in 2001 was displaced from its far offshore, hunting throughout the walrus hauled out on Northstar Island movements. Vessel traffic could year; although some bears also spend a in the fall of 2001. temporarily interrupt the movement of limited amount of time on land, coming B. Mobile Sources—Open-water walrus, or displace some animals when ashore to feed, den, or move to other seismic exploration produces vessels pass through an area. This areas. At times, usually during the fall underwater sounds, typically with displacement would probably be short- season when the ice edge is near shore airgun arrays, that may be audible term and would last no more than a few and then quickly retreats northward, numerous kilometers from the source. hours at most. bears may remain along the coast or on Such exploration activities could barrier islands for several weeks until potentially disturb walrus at varying 3. Contact With Releases of Oil or Waste the ice returns. During this time of year, ranges. In addition, source levels are Products the potential for human/bear encounters thought to be high enough to cause The potential releases of oil and waste can increase. Polar bear interaction hearing damage in pinnipeds that are in products associated with oil and gas plans and employee training serve to close proximity to the sound. It is likely exploration and production during the reduce the number of encounters and that walrus hearing and sensitivities are open-water season and the associated the need for deliberately harassing similar to pinnipeds at close range, and potential to disturb walrus and polar bears. therefore, it is possible that walrus bears are discussed following the polar During the ice-covered season, noise within the 190 dB re 1 µPa safety radius bear discussion in this section. and vibration from Industry facilities of seismic activities (industry standard) may deter females from denning in the could suffer temporary threshold shift; Polar Bear surrounding area, even though polar however, the use of acoustic safety radii Oil and gas activities could impact bears have been known to den in close and monitoring programs are designed polar bears in various ways during both proximity to industrial activities. In to ensure that marine mammals are not open-water and ice-covered seasons. 1991, two maternity dens were located exposed to potentially harmful noise These impacts could result from the on the south shore of a barrier island levels. Previous open-water seismic following: (1) Noise from stationary within 2.8 km (1.7 mi) of a production exploration has been conducted in operations, construction activities, facility. Recently, industrial activities nearshore ice-free areas. It is highly vehicle traffic, vessel traffic, aircraft were initiated while two polar bears unlikely that walrus will be present in traffic, and geophysical and geological denned close to the activities. During these areas, and therefore, it is not exploration activities; (2) physical the ice-covered seasons of 2000–2001 expected that seismic exploration would obstruction, such as a causeway or an and 2001–2002 active, known dens were disturb many walrus. artificial island; (3) human/animal located within approximately 0.4 km C. Vessel Traffic—Noise produced by encounters; and (4) oil spills or contact and 0.8 km (0.25 mi and 0.5 mi) of routine vessel traffic could potentially with hazardous materials or production remediation activities on Flaxman disturb walrus. However, walrus wastes. Island without any observed impact to densities are highest along the edge of the polar bears. Other observations the pack ice, and Industry vessel traffic 1. Noise Disturbance indicate some dens may have been typically avoids these areas. The Noise produced by Industry activities vacated due to exposure to human reaction of walrus to vessel traffic is during the open-water and ice-covered disturbance. highly dependent on distance, vessel seasons could potentially result in takes Noise produced by stationary Industry speed, as well as previous exposure to of polar bears. During the ice-covered activities could elicit several different hunting. Walrus in the water appear to season, denning female bears, as well as responses in polar bears. The noise may be less readily disturbed by vessels than mobile, non-denning bears, could be act as a deterrent to bears entering the walrus hauled out on land or ice. In exposed to oil and gas activities and area, or the noise could potentially addition, barges and vessels associated potentially affected in different ways. attract bears. Attracting bears to these with Industry activities will not The best available scientific information facilities could result in a human/bear

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encounter, which could result in weak or undetectable. Although polar from the site. Without such plans and unintentional harassment, lethal take, or bears are typically associated with the training, the undesirable outcome of intentional hazing (under separate pack ice during summer and fall, open- lethal takes of bears in defense of permit) of the bear. water seismic exploration activities can human life could occur. Most bears seen near production encounter polar bears in the central Although very unlikely, it is possible facilities are transients, and only a small Beaufort Sea in late summer or fall. that on-ice vehicle traffic related to fraction of those observed closely Noise and vibrations produced by oil seismic exploration could physically approach the facilities. Currently, there and gas exploration and production run-over an unidentified polar bear den. is no evidence that unequivocally states activities during the ice-covered season Known dens around the oilfield are that noise associated with Industry could potentially result in impacts on monitored by USFWS and Industry. The facilities disturbs or does not disturb polar bears. During this time of year, oil and gas industry communicates with polar bears. In fact, bears have denning female bears as well as mobile, the USFWS to determine the location of commonly approached industrial sites non-denning bears could be exposed to their activities relative to known dens. in the Canadian Beaufort Sea. In and affected differently by potential General LOA provisions require addition, a few bears will approach impacts from oil and gas activities. Industry operations to avoid known facilities, particularly on artificial or Disturbances to denning females, either polar bear dens by 1-mile. There is the natural islands, such as Endicott and on land or on ice, are of particular possibility that an unknown den may be West Dock in Prudhoe Bay, even though concern. As part of the LOA application encountered during Industry activities. garbage and other attractants are for seismic surveys during denning If a previously unknown den is carefully managed. season, Industry provides us with the identified, communication between B. Mobile Sources—In the southern proposed seismic survey routes. To Industry and the USFWS and the Beaufort Sea, during the open-water minimize the likelihood of disturbance implementation of mitigation measures season, polar bears spend the majority to denning females, we evaluate these help ensure that disturbance is of their lives on the pack ice, which routes along with information about minimized. limits the chances of impacts on polar known polar bear dens, historic denning 2. Physical Obstructions bears from Industry activities. Although sites, and probable denning habitat. polar bears have been documented in A standard condition of LOAs There is little chance that Industry open water, miles from the ice edge or requires Industry to maintain a 1-mile facilities would act as physical barriers ice floes, this is a relatively rare buffer between survey activities and to movements of polar bears. Most occurrence. In the open-water season, known denning sites. In addition, we facilities are located onshore where Industry activities are generally limited may require Industry to avoid denning polar bears are only occasionally found. to vessel-based exploration activities, habitat until bears have left their dens. The offshore and coastal facilities are such as ocean-bottom cable (OBC) and To further reduce the potential for most likely to be approached by polar shallow hazards surveys. disturbance to denning females, we bears. The Endicott Causeway and West C. Vessel Traffic—Vessel traffic would have conducted research, in cooperation Dock facilities have the greatest most likely result in short-term with Industry, to enable us to accurately potential to act as barriers to movements behavioral disturbance only. During the detect active polar bear dens. We have of polar bears because they extend open-water season, most polar bears evaluated the use of remote sensing continuously from the coastline to the remain offshore in the pack ice and are techniques, such as Forward Looking offshore facility. Yet, because polar not typically present in the area of Infrared (FLIR) imagery and the use of bears appear to have little or no fear of vessel traffic. scent-trained dogs to locate dens. In man-made structures and can easily D. Aircraft Traffic—Routine aircraft addition, Industry has sponsored climb and cross gravel roads and traffic should have little to no affect on cooperative research evaluating noise causeways, bears have frequently been polar bears. However, extensive or and vibration propagation through observed crossing existing roads and repeated overflights of fixed-wing substrates and the received levels of causeways in the Prudhoe Bay oilfields. aircraft or helicopters could disturb noise and vibration in polar bear dens. Offshore production facilities, such as polar bears throughout the year. Depending upon the circumstances, Northstar, may be approached by polar Behavioral reactions of non-denning bears can be either repelled from or bears, but due to their layout (i.e., polar bears should be limited to short- attracted to sounds, smells, or sights continuous sheet pile walls around the term changes in behavior and would associated with Industry activities perimeter) the bears may not gain access have no long-term impact on including seismic exploration. The LOA to the facility itself. This situation may individuals and no impacts on the polar process requires the applicant to present a small scale, local obstruction bear population. Mitigation measures develop a polar bear interaction plan for to the bears’ movement, but also are routinely implemented to reduce the each operation. These plans outline the minimizes the likelihood of human/bear likelihood that bears are disturbed by steps the applicant will take, such as encounters. aircraft. Noise and vibrations produced garbage disposal procedures, to by extensive aircraft overflights could minimize impacts to polar bears by 3. Human/Polar Bear Encounters also disturb denning bears during the reducing the attraction of Industry Encounters with humans can result in ice-covered season, potentially causing activities to polar bears. Interaction the harassment or (rarely) the death of them to abandon their dens or depart plans also outline the chain of polar bears. Unlike most mammals, their dens prematurely. command for responding to a polar bear polar bears typically do not fear humans E. Seismic Exploration—It is unlikely sighting. In addition to interaction and are extremely curious. Polar bears that seismic exploration activities or plans, Industry personnel participate in are most likely to encounter humans other geophysical surveys during the polar bear interaction training while on during the ice-covered season, when open-water season would result in more site. The result of these polar bear both humans and bears are found on the than temporary behavioral disturbance interaction plans and training allows land-fast ice and adjacent coastline. to polar bears. Polar bears normally personnel on site to detect bears and Polar bears can also come in contact swim with their heads above the respond appropriately. Most often, this with humans along the coast or on surface, where underwater noises are response involves deterring the bear islands, particularly near locations

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where subsistence whalers haul problems by reducing the insulation vomiting and in the feces, but some was bowhead whales on shore to butcher value of the pelt in polar bears. absorbed and later found in body fluids them. Employee training programs are Excessive oiling could cause mortality and tissues. designed to educate field personnel as well. Polar bears rely on their fur as Ingestion of sub-lethal amounts of oil about the dangers of bear encounters well as their layer of blubber for thermal can have various physiological effects and to implement safety procedures in insulation. Experiments on live polar on a polar bear, depending on whether the event of a bear sighting. Personnel bears and pelts showed that the thermal the animal is able to excrete and/or are instructed to leave an area where value of the fur decreased significantly detoxify the hydrocarbons. Petroleum bears are seen. If it is not possible to after oiling, and oiled bears showed hydrocarbons irritate or destroy leave, in most cases bears can be increased metabolic rates and elevated epithelial cells lining the stomach and displaced by using pyrotechnics or skin temperatures. Irritation or damage intestine, and thereby affect motility, other forms of deterrents. to the skin by oil may further contribute digestion and absorption. Polar bears to impaired thermoregulation. Contact With Oil or Waste Products by may exhibit these types of symptoms if Furthermore, an oiled bear would ingest Pacific Walrus and Polar Bears they ingest oil. oil because it would groom in order to Polar bears and walrus swimming in, The discharge of oil into the restore the insulation value of the oiled or bears walking adjacent to, an oil spill environment could potentially impact fur. could inhale petroleum vapors. Vapor polar bears and walrus depending on In one field observation, biologists inhalation by polar bears and walrus the location (i.e., onshore or offshore), documented a bear in Cape Churchill, could result in damage to various size of the spill, environmental Manitoba with lubricating oil matted systems, such as the respiratory and the conditions, and success of cleanup into its fur on parts of its head, neck and central nervous systems, depending on measures. Spills of crude oil and shoulders. The bear was re-sighted two the amount of exposure. petroleum products associated with months later, at which time he had C. Indirect Effects of Oil— Oil may onshore production facilities during ice- suffered substantial hair loss in the affect food sources of walrus and polar covered and open-water seasons are contaminated areas. Four years later, the bears. A local reduction in ringed seal usually minor spills (i.e., 1 to 50 barrels bear was recaptured and no skin or hair numbers as a result of direct or indirect per incident) that are contained and damage was detectable, which suggests effects of oil could, therefore, cleaned up immediately. They can that while oiling can damage the fur and temporarily affect the local distribution occur during normal operations (e.g., skin, in some instances this damage is of polar bears. A reduction in density of transfer of fuel, handling of lubricants only temporary. seals as a direct result of mortality from and liquid products, and general Walrus do not rely on fur for thermal contact with spilled oil could result in maintenance of equipment). Fueling insulation, using a layer of blubber for polar bears not using a particular area crews have personnel that are trained to warmth. Hence, they would be less for hunting. Also, seals that die as a handle operational spills. If a small susceptible to similar insulative and result of an oil spill could be scavenged offshore spill occurs, spill response pelt impacts of external oiling than by polar bears, thus increasing the bears’ vessels are stationed in close proximity bears. exposure to hydrocarbons. Additionally, and respond immediately. Production Petroleum hydrocarbons can also be potentially lethal impacts caused by an irritating or destructive to eyes and related spills, generally larger, could oil spill to an area’s benthic community mucous membranes, and repeated occur at any production facility or could divert walrus from using the area exposure could have detrimental pipeline connecting wells to the Trans- as a food source. Alaska Pipeline System (TAPS). These consequences to polar bears and walrus. large spills have been modeled to In one experimental study, ringed seals 2. Oil Spill and Hazardous Waste examine potential impacts on marine quickly showed signs of eye irritation Impacts on Pacific Walrus and Polar mammals. after being immersed in water covered Bears by crude oil. This progressed to severe A. Pacific Walrus 1. Physical Effects of Oil on Pacific inflammation and corneal erosions Walrus and Polar Bear during the 24-hour experiment. When Onshore oil spills would not impact Walrus could contact oil in water and the animals were returned to walrus unless oil moved into the on potential haulouts (ice or islands), uncontaminated water, the eye offshore environment. During the open- while polar bears could contact spilled condition resolved within 3–4 days. water season, if a small spill occurs at oil in the water, on ice, or on land. In This reaction could be expected in other offshore facilities or by vessel traffic, 1980, Canadian scientists performed marine mammals, such as polar bears few walrus would likely encounter the experiments that studied the effects to and walrus. oil. In the event of a larger spill during polar bears of exposure to oil. More B. Ingestion and Inhalation of Oil— the open-water season, oil in the water information is available regarding the Oil ingestion by polar bears through column could drift offshore and effects of oil on polar bears than walrus. consumption of contaminated prey, and possibly encounter a limited number of Effects on experimentally oiled polar by grooming or nursing, could have walrus. During the ice-covered season, bears (where bears were forced to pathological effects, depending on the spilled oil would be incorporated into remain in oil for prolonged periods of amount of oil ingested and the the thickening sea ice. During spring time) included acute inflammation of individual’s physiological state. Death melt, the oil would then travel to the the nasal passages, marked epidermal could occur if a large amount of oil were surface of the ice, via brine channels, responses, anemia, anorexia, ingested or if volatile components of oil where most could be collected by spill biochemical changes indicative of were aspirated into the lungs. Indeed, response activities. stress, renal impairment, and death. In two of three bears died in the Canadian Few walrus are found in the Beaufort experimental oiling, many effects did experiment and it was suspected that Sea east of Barrow and low to moderate not become evident until several weeks the ingestion of oil was a contributing numbers are found along the pack-ice after exposure to oil. factor to the deaths. Experimentally edge 241 km (150 mi) or more northwest A. External Oiling— Oiling of the pelt oiled bears ingested much oil through of Prudhoe Bay. Thus, the probability of causes significant thermoregulatory grooming. Much of it was eliminated by individual walrus encountering oil, as a

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result of an oil spill from Industry Southern Beaufort Sea polar bear The majority of actual impacts on activities, is low. population. Currently, this bear polar bears have resulted from direct population is approximately 2,200 human/bear encounters. Monitoring B. Polar Bear bears. The most recent population efforts by Industry required under Polar bears could encounter oil spills growth rate was estimated at 2.4% previous regulations for the incidental during the open-water and ice-covered annually based on data from 1982 take of polar bears and walrus have seasons in offshore or onshore habitat. through 1992, although the population documented various types of interaction Although the majority of the Southern is believed to have slowed their growth between polar bears and Industry. Beaufort Sea polar bear population or stabilized since 1992. In addition, the During a 7-year period (1994–2000), spends a large amount of its time maximum sustainable harvest is 80 while incidental take regulations were offshore on the pack ice, it is likely that bears for this population (divided in place, Industry reported 258 polar individual bears will encounter oil from between Canada and Alaska). In Alaska, bear sightings. During this period, polar a spill regardless of ocean conditions. the annual subsistence harvest has bears were sighted during 32 of the 115 Small spills (1–50 barrels) of oil or fluctuated around 36 bears. The annual activities covered by incidental take hazardous wastes throughout the year subsistence harvest for the Southern regulations. Approximately two-thirds by Industry activities could impact Beaufort Sea population (Alaska and of the sightings (171 of 258 sightings) small numbers of bears. As stated Canada combined) has been occurred during production activities, previously, the effects of fouling fur or approximately 62 bears. which suggests that Industry activities ingesting oil or wastes, depending on The bear population may be able to that occur on or near the Beaufort Sea the amount of oil or wastes involved, sustain the additional mortality caused coast have a greater possibility for could be short term or result in death. by a large oil spill of a small number of encountering polar bears than other In April 1988, a dead polar bear was Industry activities. Sixty-one percent of found on Leavitt Island, approximately bears, such as 1–5 individuals. The additive effect, however, of numerous polar bear sightings (157 of 258 9.3 km (5 n mi) northeast of Oliktok sightings) consisted of observations of Point. The cause of death was bear deaths (i.e. in the range of 20–30) caused by an oil spill coupled with the polar bears traveling through or resting determined to be poisoning by a mixture near the monitored areas without a that included ethylene glycol and subsistence harvest and other potential impacts, both natural and human- perceived reaction to human presence, Rhodamine B dye; however; the source while 101 polar bear sightings involved of the mixture was unknown. induced, may reduce recruitment and survival. The removal rate of bears from bear-human interactions. During the ice-covered season, Twenty-one percent of all bear-human the population would then increase mobile, non-denning bears would have interactions (21 of 101 sightings) higher than what could be sustained by a higher probability of encountering oil involved anthropogenic attractants, the population, potentially causing a or other production wastes than such as garbage dumpsters and landfills, decline in the bear population and denning females. Current management where these attractants altered the bear’s affecting bear productivity and practices put in place by Industry behavior. Sixty-five percent of polar subsistence use. attempt to minimize the potential for bear-human interactions (66 of 101 such incidents by requiring the proper Actual Impacts of Industry Activities sightings) involved Level B harassment use, storage and disposal of hazardous on Pacific Walrus and Polar Bears to maintain human and bear safety by materials. In the event of an oil spill, it preventing bears from approaching is also likely that polar bears would be The actual impact to Pacific walrus in facilities and people. We have no deliberately hazed to move them away the central Beaufort Sea from oil and gas indication that encounters that alter the from the area, further reducing the activities has been minimal. Between behavior and movement of individual likelihood of impacting the population. 1994 to 2000, only three Pacific walrus bears have any long-term effects on To date, large oil spills from Industry were encountered in the Beaufort Sea. those bears, related to recruitment or activities in the Beaufort Sea and coastal All were sighted during open-water survival. We, therefore, believe that the regions that have impacted polar bears seismic programs. small number of encounters anticipated have not occurred, although the Actual impacts on polar bears by the to occur between polar bears and development of offshore production oil and gas industry during the past 30 Industry are unlikely to have any facilities has increased the potential for years have been minimal as well. Polar significant effect on the polar bear large offshore oil spills. In a large spill bears have been encountered at or near population. (i.e., 3,600 barrels: the size of a rupture most coastal and offshore production We conclude that it is unlikely that in the Northstar pipeline and a complete facilities, or along the roads and large numbers of polar bears will be drain of the subsea portion of the causeways that link these facilities to taken by Industry in the future based on pipeline), oil would be influenced by the mainland. During this time, only 2 the proceeding information. Based on seasonal weather and sea conditions. polar bear deaths related to oil and gas this discussion, any take reasonably These would include temperature, activities have occurred. In winter likely to or reasonably expected to be winds, and for offshore events wave 1968–1969, an industry employee on caused by routine oil and gas activities action and currents. Weather and sea the Alaskan North Slope shot and killed will not result in more than a negligible conditions would also affect the type of a polar bear. In 1990 a female polar bear impact on this species. equipment needed for spill response was killed at a drill site on the west side and how effective spill clean-up would of Camden Bay. In contrast, 33 polar Risk Assessment Analysis be. For example, spill response has been bears were killed in the Canadian For marine mammals oil spills are of unsuccessful in the clean-up of oil in Northwest Territories between 1976 to most concern when they occur in the broken ice conditions. These factors, in 1986 due to encounters with industry. marine environment, where spilled oil turn, would dictate how large spills Since the beginning of the incidental can accumulate at the water surface, ice impact polar bear habitat and numbers. take program, no polar bears have been edge, in leads, and similar areas of The major concern regarding large oil killed due to encounters associated with importance to marine mammals. Thus, spills is the impact a spill would have current Industry activities in the offshore production activities, such as on the survival and recruitment of the Prudhoe Bay area (Alpine to Badami). Northstar, have the potential to cause

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negative impacts on marine mammals The trajectory model was dependent Impacts to polar bears from the oil because as additional offshore oil on numerous assumptions, some of spill trajectory model were derived exploration and production occurs, the which underestimate, while others using telemetry data from the U.S. potential for large spills increases. overestimate, the potential risk to polar Geological Survey, Biological Resources Northstar transports crude oil from a bears. These assumptions relate to, and Division (USGS). Telemetry data suggest gravel island in the Beaufort Sea to include: variation in spill probabilities that polar bears are widely distributed shore via a 5.96-mile buried sub-sea during the year; the length of time that in low numbers across the Beaufort Sea pipeline. The pipeline is buried in a oil was in the environment and was with a density of about one bear per 30– trench in the sea floor deep enough to subject to the spill trajectory model; 50 square miles. Movement and reduce the risk of damage from ice whether or not containment occurred in distribution information was derived gouging and strudel scour. Production various runs of the trajectory model; from radio and satellite relocations of of Northstar began in 2001, and types of efforts and effects of efforts to collared adult females. The USGS currently 70,000 barrels of oil pass deter wildlife during spills; contact by developed a polar bear distribution through the pipeline daily. bears with a modeled spillet resulting in model based on an extensive telemetry Due to the concern of a potential mortality; and the presence and size of data set of over 10,000 relocations. offshore oil spill, a risk assessment was bear groups. We assumed that the Using a technique called ‘‘kernel performed to investigate the probability annual probability of a spill was equal smoothing,’’ they created a grid system of mortality in polar bears due to an oil during any season of the year. Any centered over Northstar and estimated spill and the likelihood of occurrence in differences in seasonal spill the number of bears expected to occur various ice conditions. Pacific walrus probabilities would have a within each 0.25-km2 grid cell. Each of were not included in the risk corresponding increase or decrease in the simulated oil spills was overlaid assessment due to a lack of data risk. The model assumed oil would with the polar bear distribution grid. In regarding walrus abundance and remain in the environment for 4 days; the simulation, if a spillet passed distribution in the Beaufort Sea because increasing that period of time would through a grid cell, the bears in that cell of small numbers present seasonally in increase the risk to polar bears, while were considered killed by the spill. In the Beaufort Sea. decreasing the period would decrease the open water scenario, the estimated The quantitative rationale for a the risk. We assumed that containment number of bears killed ranged from less negligible impact determination was of oil in broken-ice conditions would than 1 to 78 bears, with a median of 8 based on a risk assessment that not be effective; however, any bears. In the broken ice scenario, results considered oil spill probability successful containment of oil under ranged from less than 1 to 108, with a estimates for the Northstar Project, an other water conditions would median of 21. These results are based on oil spill trajectory model, and a polar correspondingly reduce the risk of an ‘‘average’’ distribution of polar bears bear distribution model. The Northstar oiling to wildlife. We assumed that and do not include potential aggregation FEIS provided estimates of the deterrent hazing of wildlife did not take of bears, such as on Cross Island in the probability that one or more spills place. If instituted, hazing could reduce fall. greater than 1,000 barrels of oil will the likelihood of polar bears The Service then analyzed the spill occur over the project’s life of 15 years. encountering oil. We assumed that polar trajectory and polar bear distribution to We considered only spill probabilities bear distribution was not affected by estimate the probability of an oil spill for the drilling platform and sub-sea sights, smells, or sounds associated with during the proposed 16-month pipeline, as these are the spill locations a spill and that polar bears were neither regulation period and the likelihood of that would affect polar bears. attracted to nor displaced by these occurrence of oil spills causing Methodology factors. mortality for various numbers of bears. Similarly, the risk assessment model Assuming this probability was uniform Initially, Applied Sciences Associates, accounted for average movements and throughout the year, the probability Inc., was contracted by BP Exploration likelihood of polar bears being present during any particular set of ice Alaska Inc. to run the OILMAP oil spill in any given location based on a history conditions was proportional to the trajectory model. The size of the of movements from satellite-collared length of those conditions. The modeled spills was set at 3,600 barrels, females. The model did not consider probability of polar bear mortality in the simulating rupture and drainage of the aggregations of polar bears that may be event of an oil spill was calculated from entire sub-sea pipeline. Each spill was present seasonally in the study area, nor mortality levels in excess of 5, 10, and modeled by tracking the location of 100 did it consider whether other sex and 20 bears. Likelihood of occurrence is the ‘‘spillets,’’ each representing 36 barrels. age classes of polar bears have product of the probabilities of spill and In the model, spillets were driven by movements similar to adult females. If mortality. Hence, the overall likelihood wind, and their movements were aggregations were to occur, then the risk is the sum of likelihoods over all ice stopped by the presence of sea ice. Open to polar bears could increase. If the conditions. water and broken ice scenarios were distribution of other sex/age classes Results each modeled with 250 simulations. A differs from adult females, then risk may solid ice scenario was also modeled, in correspondingly increase or decrease for The results of the analysis suggested which oil was trapped beneath the ice these sex/age classes. that there is a 0.72% probability of an and did not spread. In this event, we Lastly, we assumed that polar bears oil spill occurring during the period of found it unlikely that polar bears will located within the distribution grid that the proposed rule. Furthermore, there contact oil, and therefore removed this intersected with oil spillets modeled in was a 0.13–0.21 percent chance of a scenario from further analysis. Each the trajectory model were oiled and that spill occurring that results in greater simulation was run to cover a period of mortality occurred, although this may than five polar bears killed. As the 4 days, with no cleanup or containment not occur naturally. In evaluating the threshold number of bears is increased, efforts simulated. At the end of each impacts of all these assumptions, we the likelihood of that event decreases; simulation, the size and location of each determined that the assumptions that the likelihood of taking more bears spill was represented in a geographic overestimate and underestimate becomes less. Thus, the probability of a information system (GIS). mortalities were generally in balance. spill that will cause a mortality of 10 or

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more bears was 0.11–0.14 percent; and small volume of oil associated with These disturbances are expected to be for 20 or more bears, it is 0.06–0.08 onshore spills, the rapid response primarily short-term behavioral percent. system in place to clean up spills, and reactions resulting in displacement, and In addition, using exposure variables the protocol available to deter bears should have no more than a negligible and production estimates from the away from the affected area for their impact on the population. Noise and Northstar EIS, we estimated that the safety, we concluded that onshore spills vibration are theorized to have the likelihood of one or more spills greater would have little impact on the polar following effects on polar bears. Polar than 1,000 barrels in size occurring in bear population. Therefore, the total bears could be displaced from the the marine environment is 1–5 percent expected taking of polar bear during immediate area of activity due to noise during the period covered by the Industry activities will have no more and vibrations. They could be attracted proposed regulations. than a negligible impact on this species. to sources of noise and vibrations out of Discussion In making this proposed finding, we curiosity, which could result in human/ are following Congressional direction in bear encounters. Denning females with The greatest source of uncertainty in balancing the potential for a significant cubs could prematurely abandon their our calculations was the probability of impact with the likelihood of that event dens due to noise and vibrations an oil spill occurring. The oil spill occurring. The specific Congressional produced by certain industrial activities probability estimates for the Northstar direction that justifies balancing at close distances. Also, noise and Project were calculated using data for probabilities with impacts follows: vibration from stationary sources could sub-sea pipelines outside of Alaska and If potential effects of a specified keep females from denning in the outside of the Arctic. These spill activity are conjectural or speculative, a vicinity of the source. probability estimates, therefore, do not finding of negligible impact may be Contact with, or ingestion of oil could reflect conditions that are routinely appropriate. A finding of negligible also potentially affect polar bears. Small encountered in the Arctic, such as impact may also be appropriate if the oil spills are cleaned up immediately permafrost, ice gouging, and strudel probability of occurrence is low but the and should have little opportunity to scour. They may include other potential effects may be significant. In affect polar bears. The probability of a conditions unlikely to be encountered this case, the probability of occurrence large spill occurring is very small. If in the Arctic, such as damage from of impacts must be balanced with the such a spill were to occur at an offshore anchors and trawl nets. Consequently, potential severity of harm to the species oil facility, however, polar bears could we have some uncertainty about oil spill or stock when determining negligible come into contact with oil. The impact probabilities as presented in the impact. In applying this balancing test, of a large spill would depend on the Northstar FEIS. If the probability of a the Service will thoroughly evaluate the location and size of the spill, spill were actually twice the estimated risks involved and the potential impacts environmental factors, and the success value, however, the probability of a spill on marine mammal populations. Such of clean-up measures. that will cause a mortality of one or determination will be made based on The Service estimates that only a more bears is still low (about 6 percent). the best available scientific information. small number of polar bear takes will In addition to the results from the risk occur during the length of the proposed analysis, anecdotal information 53 FR at 8474; accord, 132 Cong. Rec. S 16305 (Oct. 15, 1986). regulations. These takes would be supported our determination that any unintentional and non-lethal. However, take associated with Northstar will have Summary of Take Estimate for Pacific it is possible that a few unintentional a negligible impact on the Beaufort Sea Walrus and Polar Bear lethal takes could occur under low polar bear population. This information Pacific Walrus probability circumstances. For example, was based on observations of polar bear a scenario of an unintentional lethal aggregations on barrier islands and Since walrus are typically not found take could be a road accident where a coastal areas in the Beaufort Sea, which in the region of Industry activity, the vehicle strikes and kills a polar bear. may occur for brief periods in the fall, probability is small that Industry usually 4 to 6 weeks. The presence and activities, such as offshore drilling Conclusions duration of these aggregations are operations, seismic, and coastal Based on the previous discussion, we influenced by the presence of sea ice activities, will affect walrus. Walrus make the following findings regarding near shore and the availability of marine observed in the region have typically this action. mammal carcasses, notably bowhead been lone individuals, further reducing whales from subsistence hunts. In order the number of potential takes expected. Impact on Species for any take associated with a Northstar Only 3 walrus were observed by The Beaufort Sea polar bear oil spill to have more than a negligible Industry during its activities between population is widely distributed impact on polar bears, an oil spill would 1994 to 2000. In addition, the majority throughout their range. Polar bears have to occur, an aggregation of bears of walrus hunted by Barrow residents typically occur in low numbers in would have to be present, and the spill were harvested west of Point Barrow, coastal and nearshore areas where most would have to contact the aggregation. outside of the area covered by incidental Industry activities occur. Hence, We believe the probability of all these take regulations, while Kaktovik impacts that might be significant for events occurring simultaneously is low. harvested only one walrus. Given this individuals or small groups of animals We concluded that if an offshore oil information, no more than a small are expected to be no more than spill were to occur during the fall or number of walrus will be taken during negligible for the polar bear population spring broken-ice periods, a significant the length of this rule. These takes as a whole. Likewise, the Pacific walrus impact to polar bears could occur. would be unintentional and most likely is only occasionally found during the However, in balancing the level of non-lethal. open-water season in the Beaufort Sea. impact with the probability of Industry impacts would be no more Polar Bear occurrence, we concluded that the than negligible for the walrus probability of large-volume spills that Industry activities, from exploration, population as well. would cause significant polar bear takes development and production operations We reviewed the effects of the oil and is low. Additionally, because of the could potentially disturb polar bears. gas industry activities on marine

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mammals, which included impacts from Even though the probability of an oil Polar bears are hunted primarily stationary and mobile sources, such as spill that will cause significant impacts during the ice-covered season, and the noise, physical obstructions, and oil to the walrus and polar bear population proposed activities are expected to have spills. Based on past LOA monitoring is extremely low, in the event of a a negligible impact on the distribution, reports, we believe that takes resulting catastrophic spill, we will reassess the movement, and numbers of polar bears from the interactions between Industry impacts to polar bear and walrus and found during this time period in the and Pacific walrus and polar bears has reconsider the appropriateness of regulation area. Walrus are primarily had a negligible impact on these authorizations for incidental taking hunted during the open-water season, species. Additional information, such as through section 101(a)(5)(A) of the Act. and the proposed oil and gas activities recorded subsistence harvest levels and Our proposed finding of ‘‘negligible are also expected to have a negligible incidental observations of polar bears impact’’ applies to oil and gas impact on the distribution, movement, near shore, suggests that these exploration, development, and and numbers of walrus in the region. populations have not been adversely production activities. As with our past Regular communication between the affected. The projected level of activities incidental take regulations for these industry and native communities will during the period covered by the actions, generic conditions would be further reduce the likelihood of proposed regulations (existing attached to each LOA. These conditions interference with subsistence harvest. development and production activities, minimize interference with normal as well as proposed exploratory breeding, feeding, and possible If there is evidence during the period activities) are similar in scale to migration patterns to ensure that the of the rule that oil and gas activities may previous levels. In addition, current effects to the species remain negligible. affect the availability of polar bear or mitigation measures will be kept in We may add additional measures walrus for take for subsistence uses, we place. Therefore, based on past LOA depending upon site-specific and will reevaluate our findings regarding monitoring reports, we conclude that species-specific concerns. Generic permissible limits of take and the any take reasonably likely to or conditions include the following: (1) measures required to ensure continued reasonably expected to occur as a result These regulations do not authorize subsistence hunting opportunities. of projected activities will have a intentional taking of polar bear or negligible impact on polar bear and Pacific walrus. (2) For the protection of Monitoring and Reporting Pacific walrus populations. pregnant polar bears during denning We require an approved plan for The Northstar development is activities (den selection, birthing, and monitoring and reporting the effects of currently the only offshore development maturation of cubs) in known and oil and gas industry exploration, in production with a subsea pipeline. confirmed denning areas, Industry development, and production activities Concerns about potential oil spills in activities may be restricted in specific on polar bear and walrus prior to the marine environment as a result of locations during specified times of the this development were raised in the year. These restrictions will be applied issuance of an LOA. Monitoring plans Northstar FEIS. We have analyzed the on a case-by-case basis after assessing are required to determine effects of oil likelihood of an oil spill in the marine each LOA request. In potential denning and gas activities on polar bear and environment of the magnitude necessary areas, we may require pre-activity walrus in the Beaufort Sea and the to kill a significant number of polar surveys (e.g., aerial surveys) to adjacent northern coast of Alaska. bears, and found it to be minimal. Thus, determine the presence or absence of Monitoring plans must identify the after considering the cumulative effects denning activity; in known denning methods used to assess changes in the of existing development and production areas we may require enhanced movements, behavior, and habitat use of activities, and proposed exploratory monitoring during activities. (3) Each polar bear and walrus in response to activities, both onshore and offshore, we activity covered by an LOA requires a Industry activities. Monitoring activities find that the total expected takings site-specific plan of operation and a site- are summarized and reported in a resulting from oil and gas industry specific polar bear interaction plan. The formal report each year. The applicant exploration, development, and purpose of the required plans is to must submit a monitoring and reporting production activities will have a ensure that the level of activity and plan at least 90 days prior to the negligible impact on polar bear and possible takes will be consistent with initiation of a proposed activity. We Pacific walrus populations, and will our proposed finding that the base each year’s monitoring objective on have no unmitigable adverse impacts on cumulative total of incidental takes will the previous year’s monitoring results. the availability of these species for have a negligible impact on polar bear For exploration activities the applicant subsistence use by Alaska Natives and Pacific walrus, and where relevant, must submit a final monitoring report to during the proposed duration of this will not have an unmitigable adverse us no later than 90 days after the rule. impact on the availability of these completion of the activity. Since We find, based on the recent scientific species for subsistence uses. development and production activities information available on polar bear and Impact on Subsistence Take are continuous and long-term, we will walrus, the results of monitoring data issue LOAs, which include monitoring from our previous regulations, and the We find, based on the best scientific and reporting plans for the life of the results of our oil spill modeling information available, including the activity or until the expiration of the assessments, that any take reasonably results of monitoring data, that any take regulations, whichever occurs first. likely to result from the effects of oil reasonably likely to result from the and gas related exploration, effects of of Industry activities during Prior to January 15 of each year, we will development, and production activities the period of the rule in the Beaufort require that the operator submit through the duration of these Sea and adjacent northern coast of development and production activity regulations, in the Beaufort Sea and Alaska, will not have an unmitigable monitoring results of the previous year’s adjacent northern coast of Alaska will adverse impact on the availability of activity. We require approval of the have a negligible impact on polar bear polar bears and Pacific walrus for taking monitoring results for continued and Pacific walrus populations. for subsistence uses. coverage under the LOA.

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Required Determinations accrue to the Government; and the rule (but shorter) sections? (A ‘‘section’’ NEPA Considerations would have little or no impact on appears in bold type and is preceded by decisions by Industry to relinquish the symbol ‘‘§ ’’ and a numbered We have prepared a draft tracts and write off bonus payments. heading; for example, § 18.123, ‘‘When Environmental Assessment (EA) in is this rule effective?’’ conjunction with this proposed Small Business Regulatory Enforcement Fairness Act (5) Is the description of the rule in the rulemaking. Subsequent to closure of ‘‘Supplementary Information’’ section of the comment period for this proposed We have determined that this rule is the preamble helpful in understanding rule, we will decide whether this is a not a major rule under 5 U.S.C. 804(2), the proposed rule? major Federal action significantly the Small Business Regulatory (6) What else could we do to make the affecting the quality of the human Enforcement Fairness Act. The rule easier to understand? environment within the meaning of proposed rule is also not likely to result section 102(2)(C) of the National Our practice is to make comments, in a major increase in costs or prices for including names and home addresses of Environmental Policy Act (NEPA) of consumers, individual industries, or 1969. For a copy of the draft respondents, available for public review government agencies or have significant during regular business hours. Environmental Assessment, contact the adverse effects on competition, individual identified above in the Individual respondents may request that employment, productivity, innovation, we withhold their home address from section FOR FURTHER INFORMATION or on the ability of United States-based CONTACT. the rulemaking record, which we will enterprises to compete with foreign- honor to the extent allowable by law. Regulatory Planning and Review based enterprises in domestic or export There also may be circumstances in markets. This document has not been reviewed which we would withhold from the by the Office of Management and Regulatory Flexibility Act rulemaking record a respondent’s Budget (OMB) under Executive Order We have also determined that this identity, as allowable by law. If you 12866 (Regulatory Planning and proposed rule will not have a significant wish us to withhold your name and/or Review). This rule will not have an economic effect on a substantial number address, you must state that effect of $100 million or more on the of small entities under the Regulatory prominently at the beginning of your economy; will not adversely affect in a Flexibility Act, 5 U.S.C. 601 et seq. Oil comment. However, we will not material way the economy, productivity, companies and their contractors consider anonymous comments. We competition, jobs, the environment, conducting exploration, development, will make all submissions from public health or safety, or State, local, and production activities in Alaska have organizations or businesses, and from or tribal governments or communities; been identified as the only likely individuals identifying themselves as will not create a serious inconsistency applicants under the regulations. These representatives or officials of or otherwise interfere with an action potential applicants have not been organizations or businesses, available taken or planned by another agency; identified as small businesses. The for public inspection in their entirety. does not alter the budgetary effects of analysis for this rule is available from Takings Implications entitlements, grants, user fees, or loan the person in Alaska identified above in programs or the rights or obligations of This proposed rule is not expected to the section, FOR FURTHER INFORMATION their recipients; and does not raise have a potential taking implications CONTACT. novel legal or policy issues. The under Executive Order 12630 because it proposed rule is not likely to result in Public Comments Solicited would authorize the incidental, but not an annual effect on the economy of $100 We are opening the comment period intentional, take of small numbers of million or more. Expenses will be on this proposed rule for only 30 days polar bear and walrus by oil and gas related to, but not necessarily limited to, because the previous regulations industry companies and thereby exempt the development of applications for authorizing the incidental, these companies from civil and criminal regulations and LOAs, monitoring, unintentional take of small numbers of liability as long as they operate in record keeping, and reporting activities polar bears and Pacific walrus during compliance with the terms of their conducted during Industry oil and gas year-round oil and gas industry LOAs. operations, development of polar bear exploration, development, and Federalism Effects interaction plans, and coordination with production operations in the Beaufort Alaska Natives to minimize effects of Sea and adjacent northern coast of This proposed rule also does not operations on subsistence hunting. Alaska expired March 31, 2003. contain policies with Federalism Compliance with the rule is not Executive Order 12866 requires each implications sufficient to warrant expected to result in additional costs to agency to write regulations that are easy preparation of a Federalism Assessment Industry that it has not already been to understand. We invite your under Executive Order 13132. In subjected to for the previous 6 years. comments on how to make this rule accordance with the Unfunded Realistically, these costs are minimal in easier to understand, including answers Mandates Reform Act (2 U.S.C. 1501, et comparison to those related to actual oil to questions such as the following: seq.), this rule will not ‘‘significantly or and gas exploration, development, and (1) Are the requirements in the rule uniquely’’ affect small governments. A production operations. The actual costs clearly stated? Small Government Agency Plan is not to Industry to develop the petition for (2) Does the rule contain technical required. The Service has determined promulgation of regulations (originally language or jargon that interferes with and certifies pursuant to the Unfunded developed in 2002) and LOA requests its clarity? Mandates Reform Act that this probably does not exceed $500,000 per (3) Does the format of the rule rulemaking will not impose a cost of year, short of the ‘‘major rule’’ threshold (grouping and order of sections, use of $100 million or more in any given year that would require preparation of a headings, paragraphing, etc.) aid or on local or State governments or private regulatory impact analysis. As is reduce its clarity? entities. This rule will not produce a presently the case, profits would accrue (4) Would the rule be easier to Federal mandate of $100 million or to Industry; royalties and taxes would understand if it were divided into more greater in any year, i.e., it is not a

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‘‘significant regulatory action’’ under regarding compliance with the MMPA, 18.121 What specified activities does this the Unfunded Mandates Reform Act. this rule will have a positive effect on rule cover? Industry and its activities. Although the 18.122 In what specified geographic region Civil Justice Reform rule would require Industry to take a does this rule apply? 18.123 When is this rule effective? The Departmental Solicitor’s Office number of actions, these actions have 18.124 How do I obtain a Letter of has determined that these regulations been undertaken by Industry for many Authorization? meet the applicable standards provided years in the past as part of similar 18.125 What criteria does the Service use to in sections 3(a) and 3(b)(2) of Executive regulations. Therefore, this rule is not evaluate Letter of Authorization Order 12988. expected to significantly affect energy requests? supplies, distribution, or use and does 18.126 What does a Letter of Authorization Paperwork Reduction Act of 1995 not constitute a significant energy allow? This regulation requires information action. No Statement of Energy Effects is 18.127 What activities are prohibited? collection under the Paperwork required. 18.128 What are the monitoring and reporting requirements? Reduction Act. General regulations in List of Subjects in 50 CFR Part 18 18.129 What are the information collection 50 CFR 18.27 (that implement the requirements? provisions of section 101(a)(5)(A) of the Administrative practice and Act) contain information collection, procedure, Alaska, Imports, Indians, § 18.121 What specified activities does record keeping, and reporting Marine mammals, Oil and gas this rule cover? requirements associated with exploration, Reporting and record Regulations in this subpart apply to development and issuance of specific keeping requirements, Transportation. the incidental, but not intentional, take regulations and LOAs that are subject to of small numbers of polar bear and Office of Management and Budget Proposed Regulation Promulgation Pacific walrus by you (U.S. citizens as (OMB) clearance under the Paperwork For the reasons set forth in the defined in § 18.27(c)) while engaged in Reduction Act (44 U.S.C. 3501 et seq.) preamble, the Service proposes to oil and gas exploration, development, The request for regulations includes amend Part 18, Subchapter B of Chapter and production activities in the Beaufort information collection and record 1, Title 50 of the Code of Federal Sea and adjacent northern coast of keeping requirements; therefore, under Regulations as set forth below. Alaska. the requirements of the Paperwork Reduction Act the process of receiving PART 18—MARINE MAMMALS § 18.122 In what specified geographic region does this rule apply? authorization from the OMB is underway. 1. The authority citation of 50 CFR This rule applies to the geographic part 18 continues to read as follows: region defined by a north/south line at Energy Effects Authority: 16 U.S.C. 1361 et seq. Barrow, Alaska, and includes all Alaska Executive Order 13211 requires coastal areas, State waters, and Outer agencies to prepare Statements of 2. Revise part 18 by adding a new Continental Shelf waters east of that line Energy Effects when undertaking certain subpart J to read as follows: to the Canadian border and an area 25 miles inland from Barrow on the west actions. This rule would provide Subpart J—Taking of Marine Mammals exceptions from the taking prohibitions to the Canning River on the east. The Incidental to Oil and Gas Exploration, Arctic National Wildlife Refuge is not of the MMPA for entities engaged in the Development, and Production exploration, development, and included in the area covered by this Activities in the Beaufort Sea and rule. The following map shows the area production of oil and gas in the Beaufort Adjacent Northern Coast of Alaska Sea and adjacent coastal areas of where this rule applies. northern Alaska. By providing certainty Sec. BILLING CODE 4310–55–P

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BILLING CODE 4310–55–C

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§ 18.123 When is this rule effective? § 18.125 What criteria does the Service § 18.127 What activities are prohibited? Regulations in this subpart are use to evaluate Letter of Authorization (a) Intentional take of polar bear or effective for 16 months from date of requests? Pacific walrus. issuance, for year-round oil and gas (a) We will evaluate each request for (b) Any take that fails to comply with exploration, development, and a Letter of Authorization based on the the terms and conditions of these production activities. specific activity and the specific specific regulations or of your Letter of geographic location. We will determine Authorization. § 18.124 How do I obtain a Letter of whether the level of activity identified Authorization? in the request exceeds that considered § 18.128 What are the monitoring and (a) You must be a U.S. citizen as by us in making a finding of negligible reporting requirements? defined in § 18.27(c) of this part. impact on the species and a finding of (a) We require holders of Letters of (b) If you are conducting an oil and no unmitigable adverse impact on the Authorization to cooperate with us and gas exploration, development, or availability of the species for take for other designated Federal, State, and production activity that may cause the subsistence uses. If the level of activity local agencies to monitor the impacts of taking of polar bear or Pacific walrus in is greater, we will reevaluate our oil and gas exploration, development, the geographic region described in findings to determine if those findings and production activities on polar bear § 18.122 and you want incidental take continue to be appropriate based on the and Pacific walrus. authorization under this rule, you must greater level of activity that you have (b) Holders of Letters of Authorization apply for a Letter of Authorization for requested. Depending on the results of must designate a qualified individual or each exploration activity or a Letter of the evaluation, we may grant the individuals to observe, record, and Authorization for activities in each authorization as is, add further report on the effects of their activities on development and production area. You conditions, or deny the authorization. polar bear and Pacific walrus. must submit the application for (b) In accordance with § 18.27(f)(5) of (c) We may place an observer on the authorization to our Alaska Regional this part, we will make decisions site of the activity or on board drill Director (see 50 CFR 2.2 for address) at concerning withdrawals of Letters of ships, drill rigs, aircraft, icebreakers, or least 90 days prior to the start of the Authorization, either on an individual other support vessels or vehicles to proposed activity. or class basis, only after notice and monitor the impacts of your activity on (c) Your application for a Letter of opportunity for public comment. polar bear and Pacific walrus. Authorization must include the (c) The requirement for notice and (d) For exploratory activities, holders following information: public comment in paragraph (b) of this of a Letter of Authorization must submit (1) A description of the activity, the section will not apply should we a report to our Alaska Regional Director dates and duration of the activity, the determine that an emergency exists that within 90 days after completion of specific location, and the estimated area poses a significant risk to the well-being activities. For development and affected by that activity. of the species or stock of polar bear or production activities, holders of a Letter (2) A site-specific plan to monitor the Pacific walrus. of Authorization must submit a report to effects of the activity on the behavior of our Alaska Regional Director by January polar bear and Pacific walrus that may § 18.126 What does a Letter of 15 for the preceding year’s activities. be present during the ongoing activity. Authorization allow? Reports must include, at a minimum, Your monitoring program must (a) Your Letter of Authorization may the following information: document the effects on these marine allow the incidental, but not intentional, (1) Dates and times of activity; mammals and estimate the actual level take of polar bear and Pacific walrus (2) Dates and locations of polar bear and type of take. The monitoring when you are carrying out one or more or Pacific walrus activity as related to requirements will vary depending on of the following activities: the monitoring activity; and the activity, the location, and the time (1) Conducting geological and (3) Results of the monitoring activities of year. geophysical surveys and associated including an estimated level of take. (3) A site specific polar bear activities; awareness and interaction plan. For the (2) Drilling exploratory wells and § 18.129 What are the information protection of human life and welfare, associated activities; collection requirements? each employee on site must complete a (3) Developing oil fields and (a) The collection of information basic polar bear encounter training associated activities; contained in this subpart has been course. (4) Drilling production wells and approved by the Office of Management (4) A Plan of Cooperation to mitigate performing production support and Budget under the Paperwork potential conflicts between the operations; Reduction Act (44 U.S.C. 3501 et seq.) proposed activity and subsistence (5) Conducting environmental and assigned clearance number 1018– hunting. This Plan of Cooperation must monitoring programs associated with 0070. We need to collect the identify measures to minimize adverse exploration, development, and information in order to describe the effects on the availability of polar bear production activities to determine proposed activity and estimate the and Pacific walrus for subsistence uses specific impacts of each activity. impacts of potential takings by all if the activity takes place in or near a (b) You must use methods and persons conducting the activity. We will traditional subsistence hunting area. conduct activities identified in your use the information to evaluate the You must contact affected subsistence Letter of Authorization in a manner that application and determine whether to communities to discuss potential minimizes to the greatest extent issue specific Letters of Authorization. conflicts caused by location, timing, and practicable adverse impacts on polar (b) For the duration of this rule, when methods of proposed operations. You bear and Pacific walrus, their habitat, you conduct operations under this rule, must make reasonable efforts to ensure and on the availability of these marine we estimate an 8-hour burden per Letter that activities do not interfere with mammals for subsistence uses. of Authorization, a 4-hour burden for subsistence hunting or that adverse (c) Each Letter of Authorization will monitoring, and an 8-hour burden per effects on the availability of polar bear identify conditions or methods that are monitoring report. You must respond to or Pacific walrus are properly mitigated. specific to the activity and location. this information collection request to

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obtain a benefit pursuant to section and Wildlife Service, Department of the Dated: July 15, 2003. 101(a)(5) of the Marine Mammal Interior, Mail Stop 222 ARLSQ, 1849 C Craig Manson, Protection Act. You should direct Street, NW., Washington, DC 20240, and Assistant Secretary for Fish and Wildlife and comments regarding the burden the Office of Management and Budget, Parks. estimate or any other aspect of this Paperwork Reduction Project (1018– [FR Doc. 03–18907 Filed 7–24–03; 8:45 am] requirement to the Information 0070), Washington, D.C. 20503. BILLING CODE 4310–55–P Collection Clearance Officer, U.S. Fish

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Notices Federal Register Vol. 68, No. 143

Friday, July 25, 2003

This section of the FEDERAL REGISTER print, or ASCII disk) upon request. This As gangways are the primary method contains documents other than rules or document is also available on the used in providing a pedestrian proposed rules that are applicable to the Board’s Internet Site (http:// connection between piers and passenger public. Notices of hearings and investigations, www.access-board.gov/pvagmtg.htm). vessels, the running slope of such committee meetings, agency decisions and gangways is an important access issue rulings, delegations of authority, filing of SUPPLEMENTARY INFORMATION: In 1998, petitions and applications and agency the Access Board established an for persons with disabilities. In addition statements of organization and functions are advisory committee to make to gangways, the meeting will also focus examples of documents appearing in this recommendations on accessibility on other methods used to provide access section. guidelines for passenger vessels. on and off passenger vessels. Issues not Membership included disability groups, related to providing access on and off industry organizations, State and local passenger vessels are not the subject of ARCHITECTURAL AND government agencies, and passenger these meetings. TRANSPORTATION BARRIERS vessel operators. The Passenger Vessel To maximize the time available, the COMPLIANCE BOARD Access Advisory Committee held nine meeting will only focus on passenger meetings from September 1988 to vessels which are subject to 46 CFR Informational Meetings September 2000 and submitted a final subchapters H or K (and foreign flag AGENCY: Architectural and report to the Board entitled vessel of a comparable size and Transportation Barriers Compliance ‘‘Recommendations for Accessibility passenger capacity). These passenger Board. Guidelines for Passenger Vessels’’ in vessels are typically larger vessels, as ACTION: Notice of informational December 2000. The Board has made compared to those subject to meetings. this report widely available as a source subchapters C or T. of guidance until final guidelines are Interested members of the public are SUMMARY: The Architectural and developed. The report is available on encouraged to contact Paul Beatty at the Transportation Barriers Compliance the Access Board’s Web site at http:// Access Board at (202) 272–0012 (Voice), Board (Access Board) will hold two www.access-board/gov/pvaac/ (202) 272–0082 (TTY) or pvag@access- informational meetings at the dates and commrept/index.htm. Single copies of board.gov to pre-register to attend the locations noted below. The meetings this publication may be obtained at no informational meetings. All meetings will assist the Access Board in cost by calling the Access Board’s are accessible to persons with developing accessibility guidelines automated publications order line (202) disabilities. Sign language interpreters under the Americans with Disabilities 272–0080, by pressing 2 on the and an assistive listening system are Act for passenger vessels. Specifically, telephone keypad, then 1, and available at all meetings. Persons the meetings will focus on the issue of requesting publication A–42 attending the informational meetings are providing accessible embarkation and (Recommendations for Accessibility requested to refrain from using perfume, disembarkation for persons with Guidelines for Passenger Vessels). cologne, and other fragrances for the disabilities on and off passenger vessels Persons using a TTY should call (202) comfort of other participants. which are subject to 46 CFR subchapters 272–0082. Please record a name, Lawrence W. Roffee, H or K, and foreign flag vessels of a address, telephone number and request Executive Director. comparable size and passenger capacity. publication A–42. This document is DATES: The Access Board will hold the available in alternate formats upon [FR Doc. 03–18997 Filed 7–24–03; 8:45 am] first meeting on August 20, 2003, from request. Persons who want a copy in an BILLING CODE 8150–01–M 1:30 p.m. to 5:30 p.m. A second meeting alternate format should specify the type will be held on September 9, 2003, from of format (cassette tape, Braille, large 1: p.m to 5:30 p.m. print, or ASCII disk). COMMITTEE FOR PURCHASE FROM ADDRESSES: The meeting on August 20 Although the advisory committee PEOPLE WHO ARE BLIND OR will be held at the Hilton New Orleans provided recommendations on a SEVERELY DISABLED Riverside, Two Poydras Street, New number of issues, specific Orleans, LA. The second meeting, on recommendations regarding running Procurement List; Additions September 9 will be held at the Seattle slopes for gangways were not provided. Marriott Waterfront, 2100 Alaskan Way, (See Chapter 2 of the Recommendations AGENCY: Committee for Purchase From Seattle, WA. for Accessibility Guidelines for People Who Are Blind or Severely Disabled. FOR FURTHER INFORMATION CONTACT: Paul Passenger Vessels report.) Because Beatty, Office of Technical and passenger vessels come in different ACTION: Additions to Procurement List. Information Services, Architectural and shapes and sizes and the marine SUMMARY: This action adds to the Transportation Barriers Compliance environment in which the piers are Procurement List products and services Board, 1331 F Street, NW., suite 1000, located are influenced by many factors to be furnished by nonprofit agencies Washington, DC 20004–1111. which add to the complexities of employing persons who are blind or Telephone number (202) 272–0012 providing access, additional information have other severe disabilities. (Voice); (202) 272–0082 (TTY). These is needed on this topic before specific are not toll-free numbers. Electronic criteria for gangway running slopes can EFFECTIVE DATE: August 24, 2003. mail address: [email protected]. be proposed for public comment. ADDRESSES: Committee for Purchase This document is available in alternate The meetings will principally focus From People Who Are Blind or Severely formats (cassette tape, Braille, large on the issue of gangway running slopes. Disabled, Jefferson Plaza 2, Suite 10800,

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1421 Jefferson Davis Highway, Franklin D. Roosevelt Library, Hyde COMMITTEE FOR PURCHASE FROM Arlington, Virginia, 22202–3259. Park, New York. PEOPLE WHO ARE BLIND OR FOR FURTHER INFORMATION CONTACT: NPA: Gateway Community Industries, Inc., SEVERELY DISABLED Sheryl D. Kennerly, (703) 603–7740. Kingston, New York. Contract Activity: National Archives & Procurement List; Proposed Additions SUPPLEMENTARY INFORMATION: On Records Administration, College Park, December 6, 2002, May 9, and May 16, Maryland. AGENCY: Committee for Purchase from 2003, the Committee for Purchase From Service Type/Location: Custodial Services, People Who Are Blind or Severely People Who Are Blind or Severely U.S. Border Station, Old Champlain Disabled. Disabled published notice (67 FR 72640, Farm, Champlain, New York. ACTION: Proposed Additions to 68 FR 24919, and 26566/26567) of NPA: Clinton County Chapter, NYSARC, Inc., Procurement List. proposed additions to the Procurement Plattsburgh, New York. SUMMARY: The Committee is proposing List. Contract Activity: GSA/PBS Upstate New to add to the Procurement List products After consideration of the material York Service Center, Syracuse, New and services to be furnished by presented to it concerning capability of York. nonprofit agencies employing persons qualified nonprofit agencies to provide Service Type/Location: Janitorial/Custodial, who are blind or have other severe the products and services and impact of FAA, ATCT & FSDO, Gerald Ford the additions on the current or most International Airport, Grand Rapids, disabilities. recent contractors, the Committee has Michigan. COMMENTS MUST BE RECEIVED ON OR determined that the products and NPA: Hope Network Services Corporation, BEFORE: August 24, 2003. services listed below are suitable for Grand Rapids, Michigan. ADDRESSES: Committee for Purchase procurement by the Federal Government Contract Activity: Federal Aviation From People Who Are Blind or Severely under 41 U.S.C. 46–48c and 41 CFR 51– Administration, Des Plaines, Illinois. Disabled, Jefferson Plaza 2, Suite 10800, 2.4. Service Type/Location: Janitorial/Custodial, 1421 Jefferson Davis Highway, Regulatory Flexibility Act Certification U.S. Army Reserve Center Garden Grove, Arlington, Virginia, 22202–3259. Garden Grove, California. FOR FURTHER INFORMATION CONTACT: I certify that the following action will NPA: Lincoln Training Center and Sheryl D. Kennerly, (703) 603–7740. not have a significant impact on a Rehabilitation Workshop, South El SUPPLEMENTARY INFORMATION: This substantial number of small entities. Monte, California. The major factors considered for this notice is published pursuant to 41 U.S.C Contract Activity: 63rd Regional Support 47(a) (2) and 41 CFR 51–2.3. Its purpose certification were: Command, Los Alamitos, California. 1. The action will not result in any is to provide interested persons an Service Type/Location: Janitorial/Custodial, opportunity to submit comments of the additional reporting, recordkeeping or U.S. Army Reserve Center, Eau Claire, other compliance requirements for small proposed actions. If the Committee Wisconsin. approves the proposed additions, the entities other than the small NPA: L.E. Phillips Career Development organizations that will furnish the entities of the Federal Government Center, Inc., Eau Claire, Wisconsin. identified in the notice for each product products and services to the Contract Activity: Headquarters, 88th Government. or service will be required to procure Regional Support Command, Fort the products and services listed below 2. The action will result in Snelling, Minnesota. from nonprofit agencies employing authorizing small entities to furnish the Service Type/Location: Janitorial/Custodial, persons who are blind or have other products and services to the U.S. Army Reserve Center, Fairmont, severe disabilities. Government. West Virginia, U.S. Army Reserve 3. There are no known regulatory Center, Grafton, West Virginia, U.S. Regulatory Flexibility Act Certification alternatives which would accomplish Army Reserve Center, New Martinsville, I certify that the following action will the objectives of the Javits-Wagner- West Virginia. not have a significant impact on a O’Day Act (41 U.S.C. 46–48c) in NPA: PACE Training and Evaluation Center, substantial number of small entities. connection with the products and Inc., Star City, West Virginia. The major factors considered for this services proposed for addition to the Contract Activity: 99th Regional Support certification were: Procurement List. Command, Coraopolis, Pennsylvania. 1. If approved, the action will not (End of Certification) Service Type/Location: Janitorial/Custodial, result in any additional reporting, Accordingly, the following products U.S. Army Reserve Center, Walker, recordkeeping or other compliance Michigan. and services are added to the requirements for small entities other NPA: Hope Network Services Corporation, Procurement List: than the small organizations that will Grand Rapids, Michigan. furnish the products and services to the Products Contract Activity: Headquarters, 88th Government. Product/NSN: Fluid Element Filter, Regional Support Command, Fort 2. If approved, the action will result 2940–00–832–6054. Snelling, Minnesota. NPA: Gaston Skills, Inc., Gastonia, North in authorizing small entities to furnish Carolina. This action does not affect current the products and services to the Contract Activity: Defense Supply Center contracts awarded prior to the effective Government. Columbus, Columbus, Ohio. date of this addition or options that may 3. There are no known regulatory Product/NSN: Supply Cup, be exercised under those contracts. alternatives which would accomplish 7510–00–161–6211. the objectives of the Javits-Wagner- NPA: The Lighthouse for the Blind in New Sheryl D. Kennerly, O’Day Act (41 U.S.C. 46–48c) in Orleans, New Orleans, Louisiana. Director, Information Management. connection with the products and Contract Activity: Office Supplies & Paper services proposed for addition to the Products Acquisition Center, New York, [FR Doc. 03–18980 Filed 7–24–03; 8:45 am] Procurement List. Comments on this New York. BILLING CODE 6353–01–P certification are invited. Commenters Services should identify the statement(s) Service Type/Location: Custodial Services, underlying the certification on which

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they are providing additional in foreign countries who were parties to host government authority, the end- information. past export transactions where pre- user, or the ultimate consignee). In a (End of Certification) license checks (‘‘PLC’’) or post-shipment notice issued on June 14, 2002 (67 FR The following products and services verifications (‘‘PSV’’) could not be 40910), BIS set forth an Unverified List are proposed for addition to conducted for reasons outside the of certain foreign end-users and Procurement List for production by the control of the U.S. Government consignees involved in such nonprofit agencies listed: (‘‘Unverified List’’). This notice advised transactions. exporters that the involvement of a The June 14, 2002 notice also advised Products listed person as a party to a proposed exporters that participation of a person Product/NSN: Lock-Jaw-Wood Mop Handle, transaction constitutes a ‘‘red flag’’ as on the Unverified List in a proposed 7920–01–452–2028. described in the guidance set forth in transaction will be considered by BIS to NPA: New York City Industries for the Blind, Supplement No. 3 to 15 CFR Part 732, raise a ‘‘red flag’’ under the ‘‘Know Your Inc., Brooklyn, New York. requiring heightened scrutiny by the Contract Activity: Office Supplies & Paper Customer’’ guidance set forth in Products Acquisition Center, New York, exporter before proceeding with such a Supplement No. 3 to 15 CFR Part 732 New York. transaction. The notice also stated that, of the EAR. Under that guidance, when warranted, BIS would remove whenever there is a ‘‘red flag,’’ exporters Services persons from the Unverified List. have an affirmative duty to inquire, Service Type/Location: Base Supply Center, Recently a PSV was completed at the verify, or otherwise substantiate that Fort Sill, Oklahoma. facilities of Daqing Production Logging proposed transaction to satisfy NPA: Beacon Lighthouse, Inc., Wichita Falls, Institute, No. 3 Fengshou Village, Sartu themselves that the transaction does not Texas. District, Daqing City, Heilongjiang, Contract Activity: U.S. Army Field Artillery involve a proliferation activity Center & Fort Sill, Oklahoma. People’s Republic of China. prohibited in 15 CFR Part 744, and does Service Type/Location: Janitorial/Custodial, Accordingly, by this notice, Daqing not violate other requirements set forth Bureau of Land Management, Salt Lake Production Logging Institute is removed in the EAR. Field Office and Warehouse, Salt Lake from the Unverified List. The Federal Register notice further City, Utah. DATES: This notice is effective July 25, stated that BIS may periodically add NPA: Community Foundation for the 2003. persons to the Unverified List based on Disabled, Inc., Salt Lake City, Utah. Contract Activity: Bureau of Land FOR FURTHER INFORMATION CONTACT: the criteria set forth above, and remove Management—Utah State Office, Salt Thomas W. Andrukonis, Office of names of persons from the list when Lake City, Utah. Enforcement Analysis, Bureau of warranted. Service Type/Location: Janitorial/Custodial, Industry and Security; Telephone: (202) BIS has not conducted a PSV in a Federal Aviation Administration, 482–4255. transaction involving Daqing Production Belleville SFO, Scott AFB, Illinois. SUPPLEMENTARY INFORMATION: In Logging Institute, No. 3 Fengshou NPA: Challenge Unlimited, Inc., Alton, administering export controls under the Village, Sartu District, Daqing City, Illinois. Heilongjiang, People’s Republic of Contract Activity: Federal Aviation Export Administration Regulations (15 Administration, Des Plaines, Illinois. CFR Parts 730 to 774) (‘‘EAR’’), BIS China, a person included on the Service Type/Location: Janitorial/Grounds carries out a number of preventive Unverified List. This notice advises Maintenance, Veterans Affairs Regional enforcement activities with respect to exporters that Daqing Production Office, Montgomery, Alabama. individual export transactions. Such Logging Institute is removed from the NPA: Lakeview Center, Inc., Pensacola, activities are intended to assess Unverified List, and the ‘‘red flag’’ Florida. diversion risks, identify potential resulting from Daqing Production Contract Activity: Veterans Affairs Regional violations, verify end-uses, and Logging Institute’s inclusion on the Office, Montgomery, Alabama. determine the suitability of end-users to Unverified List is rescinded. Sheryl D. Kennerly, receive U.S. commodities or technology. The Unverified List, as modified by Director, Information Management. In carrying out these activities, BIS this notice, is set forth below. [FR Doc. 03–18981 Filed 7–24–03; 8:45 am] officials, or officials of other federal agencies acting on BIS’s behalf, Lisa A. Prager, BILLING CODE 6353–01–P selectively conduct PLCs to verify the Acting Assistant Secretary for Export bona fides of the transaction and the Enforcement. suitability of the end-user or ultimate DEPARTMENT OF COMMERCE Unverified List (as of July 25, 2003) consignee. In addition, such officials The Unverified List includes names and Bureau of Industry and Security sometimes carry out PSVs to ensure that countries of foreign persons who in the past U.S. exports have actually been were parties to a transaction with respect to [Docket No. 030715174–3174–01] delivered to the authorized end-user, are which BIS could not conduct a pre-license being used in a manner consistent with Revisions to the Unverified List— check (‘‘PLC’’) or a post-shipment verification the terms of a license or license (‘‘PSV’’) for reasons outside of the U.S. Guidance as to ‘‘Red Flags’’ exception, and are otherwise consistent Government’s control. Any transaction to AGENCY: Bureau of Industry and with the EAR. which a listed person is a party will be Security, Commerce. In certain instances BIS officials, or deemed by BIS to raise a ‘‘red flag’’ with other federal officials acting on BIS’s respect to such transaction within the ACTION: Notice. meaning of the guidance set forth in behalf, have been unable to perform a Supplement No. 3 to 15 CFR Part 732. The SUMMARY: On June 14, 2002, the Bureau PLC or PSV with respect to certain ‘‘red flag’’ applies to the person on the of Industry and Security (‘‘BIS’’) export transactions for reasons outside Unverified List regardless of where the published a notice in the Federal the control of the U.S. Government person is located in the country included on Register that set forth a list of persons (including a lack of cooperation by the the list.

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Name Country Last known addrress

Lucktrade International ...... Hong Kong Special Administrative Region ...... P.O. Box 91150, Tsim Sha Tsui, Hong Kong. Brilliant Intervest ...... Malaysia ...... 14–1, Persian 65C, Jalan Pahang Barat, Kuala Lumpur, 53000. Dee Communications M SDN.BHD ...... do ...... G5/G6, Ground Floor, Jin Gereja, Johor Bahru. Shaanxi Telecom Measuring Station ...... People’s Republic of China ...... 39 Jixiang Road, Yanta District Xian, Shaanxi. Yunma Aircraft Mfg...... do ...... Yaopu Anshun, Guizhou. Civil Airport Construction Corporation ...... do ...... 111 Bei Sihuan Str. East, Chao Yang District, Beijing. Power Test & Research Institute of Guangzhou ...... do ...... No. 38 East Huangshi, Road, Guangzhou. Beijing San Zhong Electronic Equipment Engi- ...... do ...... Hai Dian Fu Yuau, Men Hao 1 Hao, Beijing. neer Co., Ltd. Huabei Petroleum Administraion Bureau Log- ...... do ...... South Yanshan Road, Ren Qiu City, Hebei. ging Company. Peluang Teguh ...... Singapore ...... 203 Henderson Road #09–05H, Henderson Industrial Park, Singapore. Lucktrade International PTE Ltd ...... do ...... 35 Tannery Road, #01–07 Tannery Block, Ruby Industrial Complex, Singapore 347740. Arrow Electronics Industries ...... United Arab Emirates ...... 204 Arbift Tower, Benyas Road, Dubai.

[FR Doc. 03–19017 Filed 7–24–03; 8:45 am] In accordance with section 732(b) of of leg finishes, such as painted, plated, BILLING CODE 3510–33–M the Tariff Act of 1930 (the Act), as or matte, and they are available with amended by the Uruguay Round various features, including iron rests, Agreements Act, the petitioner alleges linen racks, and others. The subject DEPARTMENT OF COMMERCE that imports of floor-standing, metal-top ironing tables may be sold with or ironing tables and certain parts thereof without a pad and/or cover. All types International Trade Administration (ironing tables) from the People’s and configurations of floor-standing, [A-570–888] Republic of China (PRC) are being, or metal-top ironing tables are covered by are likely to be, sold in the United States this investigation. Notice of Initiation of Antidumping at less than fair value (LTFV) within the Furthermore, this investigation Investigation: Floor-Standing, Metal- meaning of section 731 of the Act, and specifically covers imports of ironing Top Ironing Tables and Certain Parts that such imports are materially tables, assembled or unassembled, Thereof from the People’s Republic of injuring, or are threatening to materially complete or incomplete, and certain China injure, an industry in the United States. parts thereof. For purposes of this The Department finds that the AGENCY: Import Administration, investigation, the term ‘‘unassembled’’ petitioner filed this petition on behalf of International Trade Administration, the domestic industry because it is an ironing table means product requiring Department of Commerce. interested party as defined in section the attachment of the leg assembly to ACTION: Initiation of Antidumping 771(9)(C) of the Act and has the top or the attachment of an included Investigation demonstrated sufficient industry feature such as an iron rest or linen support with respect to the antidumping rack. The term ‘‘complete’’ ironing table EFFECTIVE DATE: July 25, 2003. investigation that it is requesting the means product sold as a ready-to-use FOR FURTHER INFORMATION CONTACT: Department to initiate. See ensemble consisting of the metal-top Paige Rivas or Sam Zengotitabengoa, Determination of Industry Support for table and a pad and cover, with or AD/CVD Enforcement Office IV, Import the Petition section below. without additional features, e.g. iron Administration, International Trade rest or linen rack. The term Administration, U.S. Department of Period of Investigation ‘‘incomplete’’ ironing table means Commerce, 14th Street and Constitution The anticipated period of product shipped or sold as a ‘‘bare Avenue, NW, Washington, D.C. 20230; investigation (POI) for this investigation board’’ i.e., a metal-top table only, telephone: (202) 482–0651 or (202) 482– is October 1, 2002, through March 31, without the pad and cover- with or 4195, respectively. 2003. without additional features, e.g. iron INITIATION OF INVESTIGATION: rest or linen rack. The major parts or Scope of Investigation components of ironing tables that are The Petition For purposes of this investigation, the intended to be covered by this On June 30, 2003, the Department of product covered consists of floor- investigation under the term ‘‘certain Commerce (the Department) received a standing, metal-top ironing tables, parts thereof’’ consist of the metal top Petition for the Imposition of assembled or unassembled, complete or component (with or without assembled Antidumping Duties on Floor-Standing, incomplete, and certain parts thereof. supports and slides) and/or the leg Metal-Top Ironing Tables and Certain The subject tables are designed and components, whether or not attached Parts Thereof from the People’s used principally for the hand ironing or together as a leg assembly. The Republic of China (the petition), filed in pressing of garments or other articles of investigation covers separately shipped proper form, by Home Products fabric. The subject tables have full- metal top components and leg International, Inc. (the petitioner). The height leg assemblies that support the components, without regard to whether Department received information ironing surface at an appropriate (often the respective quantities would yield an supplementing the petition on July 2, adjustable) height above the floor. The exact quantity of assembled ironing 2003, and July 8, 2003. subject tables are produced in a variety tables.

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Ironing tables without legs (such as does not establish support of domestic section of the notice. The Department models that mount on walls or over producers or workers accounting for has no basis on the record to find this doors) are not floor-standing and are more than 50 percent of the total definition of the domestic like product specifically excluded. Additionally, production of the domestic like product, to be inaccurate. The Department, tabletop or countertop models with the administering agency shall: (i) poll therefore, has adopted this domestic like short legs that do not exceed 12 inches the industry or rely on other product definition. See Import in length (and which may or may not information in order to determine if Administration Antidumping collapse or retract) are specifically there is support for the petition as Investigation Checklist, dated July 18, excluded. required by subparagraph (A), or (ii) 2003, (Initiation Checklist), at page 2 The subject ironing tables were determine industry support using any (public version on file in the CRU of the previously classified under Harmonized statistically valid sampling method to Department, Room B-099). Tariff Schedule of the United States poll the industry. The Department has further (HTSUS) subheading 9403.20.0010. Section 771(4)(A) of the Act defines determined that this petition contains Effective July 1, 2003, the subject the ‘‘industry’’ as the producers of a adequate evidence of industry support. ironing tables are classified under new domestic like product. Thus, to As HPI is the only producer of floor- HTSUS subheading 9403.20.0011. The determine whether the petition has the standing metal-top ironing tables in the subject metal top and leg components requisite industry support, the Act United States, there is no production are classified under HTSUS subheading directs the Department to look to data for any other domestic producers of 9403.90.8040. Although the HTSUS producers and workers who account for floor-standing metal-top ironing tables. subheadings are provided for production of the domestic like product. The petitioner provided actual convenience and for the purposes of See sections 771(4)(A)(i) and (ii) of the production volume for January through U.S. Bureau of Customs and Border Act. The International Trade December 2002. We conducted a search Protection (Customs), the Department’s Commission (ITC), which is responsible of the information reasonably available written description of the scope remains for determining whether ‘‘the domestic on the Internet and could find no dispositive. industry’’ has been injured, must also information that contradicted the During our review of the petition, we determine what constitutes a domestic petitioner’s assertion. Information discussed the scope with the petitioner like product in order to define the contained in the petition demonstrates and the commodity specialist at the industry. See section 771(10) of the Act. that the domestic producer or workers United States Bureau of Customs and While both the Department and the ITC who support the petition account for Border Protection to ensure that it must apply the same statutory definition over 50 percent of total production of accurately reflects the product for which regarding the domestic like product the domestic like product. Therefore, the domestic industry is seeking relief. (section 771(10) of the Act), they do so the domestic producers or workers who Moreover, as discussed in the preamble for different purposes and pursuant to support the petition account for at least to the Department’s regulations (62 FR separate and distinct authority. In 25 percent of the total production of the 27296, 27323), we are setting aside a addition, the Department’s domestic like product, and the period for parties to raise issues determination is subject to limitations of requirements of section 732(c)(4)(A)(i) regarding product coverage. The time and information. Although this of the Act are met. See Initiation Department encourages all parties to may result in different definitions of the Checklist, at pages 3 and 4. submit such comments within 20 days domestic like product, such differences Furthermore, because the Department of publication of this notice. Comments do not render the decision of either received no opposition to the petition, should be addressed to Import agency contrary to the law.1 the domestic producers or workers who Administration’s Central Records Unit Section 771(10) of the Act defines the support the petition account for more (CRU), at Room 1870, U.S. Department domestic like product as ‘‘a product that than 50 percent of the production of the of Commerce, 14th Street and is like, or in the absence of like, most domestic like product produced by that Constitution Avenue, NW, Washington, similar in characteristics and uses with, portion of the industry expressing D.C. 20230. The period of scope the article subject to an investigation support for or opposition to the petition. consultations is intended to provide the under this title.’’ Thus, the reference See Initiation Checklist, at pages 3 and Department with ample opportunity to point from which the domestic like 4. Thus, the requirements of section consider all comments and consult with product analysis begins is ‘‘the article 732(c)(4)(A)(ii) of the Act are also met. parties prior to the issuance of our subject to an investigation,’’ i.e., the Accordingly, the Department preliminary determination. class or kind of merchandise to be determines that this petition was filed Determination of Industry Support for investigated, which normally will be the on behalf of the domestic industry the Petition scope as defined in the petition. within the meaning of section 732(b)(1) Moreover, the petitioner does not offer of the Act. See Id. Section 732(b)(1) of the Act requires a definition of domestic like product Export Price and Normal Value that a petition be filed on behalf of the distinct from the scope of the domestic industry. Section 732(c)(4)(A) investigation. The following are descriptions of the of the Act provides that a petition meets Based on our analysis of the allegations of sales at LTFV upon which this requirement if the domestic information presented by the petitioner, our decision to initiate this investigation producers or workers who support the we have determined that there is a is based. Based on the information petition account for: (1) at least 25 single domestic like product, which is submitted in the petition, adjusted percent of the total production of the defined in the ‘‘Scope of Investigation’’ where appropriate, we are initiating this domestic like product; and, (2) more investigation, as discussed below and in than 50 percent of the production of the 1 See Algoma Steel Corp. Ltd., v. United States, the Initiation Checklist. domestic like product produced by that 688 F. Supp. 639, 642-44 (CIT 1988); High The Department has analyzed the portion of the industry expressing Information Content Flat Panel Displays and information in the petition and Display Glass Therefore from Japan: Final support for, or opposition to, the Determination; Rescission of Investigation and considers the country-wide import petition. Finally, section 732(c)(4)(D) of Partial Dismissal of Petition, 56 FR 32376, 32380- statistics for the anticipated POI and the Act provides that, if the petition 81 (July 16, 1991). market information used to calculate the

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estimated margin for the subject country margin using a factors of production Advisor). See Initiation Checklist, at to be sufficient for purposes of (FOP) analysis. page 6. initiation. See Initiation Checklist, at For the normal value (NV) Based on its knowledge of Chinese page 3. Should the need arise to use any calculation, the petitioner based the ironing-table producing equipment, the of this information in our preliminary or FOP analysis, with respect to raw petitioner was able to quantify the final determination for purposes of facts materials, labor, and energy, as defined amount of electricity consumed. The available under section 776 of the Act, by section 772(c)(3) of the Act, on its petitioner valued electricity based on we may re-examine the information and knowledge and experience of the the Indian publication Electricity for revise the margin calculation, if ironing board industry and ironing Industry, for the fourth quarter 2001, as appropriate. board production process, and, where maintained by the International Energy Agency on its website (http:// Export Price applicable, on a physical examination of a Chinese mesh-top T-leg ironing table. www.iea.org/statist/keyworld2002/ To calculate export price (EP), the The petitioner also added to the FOP key2002/ pl0505.htm). That value was petitioner provided: (1) a direct price values an amount for factory overhead, then adjusted for inflation on the basis quotation of a mesh-top T-leg unit, with selling, general, and administrative of the Indian monthly WPI for pad and cover, from a major Chinese expenses, and profit, as well as an Electricity for Industry. See Initiation producer and exporter of ironing tables amount for packing. Checklist, at page 7. to the United States; and, (2) a bid offer Pursuant to section 773(c) of the Act, To determine the quantity of natural from an unknown competing vendor. the petitioner asserted that India is the gas used in the heat curing finishing The price quotation provided by the most appropriate surrogate country for process, the petitioner relied on its own petitioner for the subject merchandise the PRC, claiming that India is: (1) at a knowledge and experience. To value was determined to be sufficient for level of development comparable to the natural gas, the petitioner used a value initiation purposes. Since the petitioner PRC in terms of per capita gross national derived from the Indian company Gail was unable to document who the income (GNI), which is the current (India) Ltd., for May through September supplier was, we did not consider the World Bank term for what was 2002. See Initiation Checklist, at page 7. The petitioner valued labor by bid offer as a basis for EP. Should the previously termed ‘‘Gross National applying the Department’s regression- need arise to use any of this information Product’’ (GNP); and, (2) a significant based wage rate for the PRC, in as facts available under section 776 of producer of comparable merchandise. accordance with section 351.408(c)(3) of Tariff Act of 1930 (the Act) in our The petitioner further notes that India the Department’s regulations, to the preliminary or final determinations, we has often been the primary surrogate corresponding yield rates for each may reexamine the information and country for PRC cases. See, e.g., Notice revise the margin calculations, if process. of Preliminary Determination of Sales at For manufacturing overhead, selling, appropriate. See Petition, at page 17. Less Than Fair Value: Saccharin From general, and administrative expenses, The ironing table model referenced in the People’s Republic of China, 67 FR and profit, the petitioner relied upon the the price quotation represents the single 79049, 79054 (December 27, 2002). publicly available financial data of dominant design that pervades the U.S. Furthermore, the petitioner has been Godrej & Boyce Manufacturing market. See Initiation Checklist, at page able to obtain all of the necessary data Company Ltd. (Godrej). The Department 6. Given the terms of sale applicable to to value the factors of ironing table recently relied upon this data in another the price quotation, the petitioner made production in India. Based on the antidumping investigation. See Notice no adjustments to EP because the information provided by the petitioner, of Final Determination of Sales at Less reliance upon the sale price offered by we believe that the petitioner’s use of Than Fair Value: Folding Metal Tables the seller reflects a conservative India as a surrogate country is and Chairs from the People’s Republic approach. appropriate for purposes of initiating of China, 67 FR 20090 (April 24, 2002). this investigation. See Initiation Normal Value Godrej is an Indian producer of metal Checklist, at page 7. furniture, including folding metal tables The petitioner asserted that the PRC is The petitioner identified and that is sufficiently similar to metal-top an NME country and no determination quantified the material inputs (e.g., ironing tables in terms of materials and to the contrary has yet been made by the cold-rolled flat-rolled steel, washers, production processes to be considered Department. In previous investigations, cloth, etc.) based on its knowledge and comparable merchandise. See Initiation the Department determined that the PRC experience, as well as its physical Checklist, at page 8. is an NME. See, e.g., Final examination of a Chinese mesh-top T- Based on the information provided by Determination on Ferrovanadium from leg ironing table. The petitioner valued the petitioner, we believe that the the People’s Republic of China, 67 FR these material inputs based on Indian surrogate values represent information 71137 (November 29, 2002); Final import statistics for the period of July reasonably available to the petitioner Determination on Cold-Rolled Carbon 2002 through December 2002, as and are acceptable for purposes of Steel Flat Products from the People’s published by the World Trade Atlas initiating this investigation. See Republic of China, 67 FR 62107 subscription service, which, in turn, Initiation Checklist, at page 8. (October 3, 2002). In accordance with obtains data from the Indian Ministry of section 771(18)(C)(i) of the Act, the Commerce and Industry, Director Fair Value Comparisons presumption of NME status remains in General, Commercial Intelligence & Based on the data provided by the effect until revoked by the Department. Statistics. Because some of these values petitioner, there is reason to believe that The presumption of NME status for the are from a period preceding the POI, the imports of ironing tables from the PRC PRC has not been revoked by the petitioner adjusted for inflation the are being, or are likely to be, sold at Department and, therefore, remains in values to reflect the POI levels, where LTFV. effect for purposes of the initiation of appropriate, using the Indian Wholesale Based on a comparison of EP to NV, this investigation. Because the PRC’s Price Index (WPI) (compiled by the the petitioner calculated an estimated status as an NME remains in effect, the Indian ministry of Commerce and dumping margin of 59.32 percent. A petitioner determined the dumping Industry, Office of the Economic summary of the margin calculation is

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contained in the Initiation Checklist at will proceed according to statutory and also is rescinding the on-going Attachment III. regulatory time limits. administrative review of fresh Atlantic This notice is issued and published in salmon from Chile covering the period Allegations and Evidence of Material accordance with section 777(i) of the July 1, 2001, through June 30, 2002. Injury and Causation Act. EFFECTIVE DATE: July 25, 2003. The petitioner alleges that the U.S. Dated: July 21, 2003. FOR FURTHER INFORMATION CONTACT: industry producing the domestic like Joseph A. Spetrini, Keith Nickerson or Constance Handley, product is being materially injured, and Acting Assistant Secretary at (202) 482–3813 or (202) 482–0631, is threatened with material injury, by respectively; AD/CVD Enforcement reason of the imports of the subject [FR Doc. 03–19025 Filed 7–24–03; 8:45 am] BILLING CODE 3510–DS–S Office 5, Group II, Import merchandise sold at less than NV. The Administration, International Trade allegations of injury and causation are Administration, U.S. Department of supported by relevant evidence DEPARTMENT OF COMMERCE Commerce, 14th Street & Constitution including the petitioner’s import data, Avenue, NW, Washington, DC 20230. lost sales data, and pricing information. International Trade Administration SUPPLEMENTARY INFORMATION: The Department assessed the allegations and supporting evidence regarding [A–337–803] Background material injury and causation and Fresh Atlantic Salmon from Chile: On July 30, 1998, the Department determined that these allegations are issued an antidumping duty (AD) order supported by accurate and adequate Final Results of Antidumping Duty Changed Circumstances Review, on fresh Atlantic salmon from Chile. See evidence and meet the statutory Notice of Amended Final Determination requirements for initiation. See Revocation of Order, and Rescission of Administrative Review of Sales at Less Than Fair Value and Initiation Checklist, at page 4 and Antidumping Duty Order: Fresh Atlantic Attachment II. AGENCY: Import Administration, Salmon from Chile, 63 FR 40699 Initiation of Antidumping Investigation International Trade Administration, (July 30, 1998). On July 1, 2002, the Department of Commerce. Department issued a notice of Based on our examination of the ACTION: Final results of antidumping opportunity to request the fourth petition, we have found that the petition duty changed circumstances review; administrative review of this order. See meets the requirements of section 732 of revocation of order; and rescission of Antidumping or Countervailing Duty the Act. Therefore, we are initiating an administrative review. Order, Finding, or Suspended antidumping investigation to determine Investigation; Opportunity to Request whether imports of ironing tables from SUMMARY: On May 23, 2003, the Administrative Review, 67 FR 44172 the PRC are being, or are likely to be, Department of Commerce (the (July 1, 2002). sold in the United States at LTFV. Department) published a notice of On July 31, 2002, in accordance with Should the need arise to use any of this initiation of a changed circumstances 19 CFR 351.213(b)(2003), L.R. information as facts available under review with the intent to revoke the Enterprises, Inc. (L.R. Enterprises) section 776 of the Act in our antidumping order on fresh Atlantic requested a review of 90 producers/ preliminary or final determinations, we salmon from Chile. See Notice of exporters of fresh Atlantic salmon. may reexamine the information and Initiation of Antidumping Duty Changed Twelve respondents also requested revise the margin calculations, if Circumstances Review: Fresh Atlantic reviews of themselves. On August 27, appropriate. Unless this deadline is Salmon from Chile, 68 FR 28196 (May 2002, the Department published the extended, we will make our preliminary 23, 2003) (Initiation Notice). On July 1, notice of initiation of this AD determination no later than 140 days 2003, based on the fact that domestic administrative review, covering the after the date of this initiation. parties have expressed no interest in the period July 1, 2001, through June 30, Distribution of Copies of the Petition continuation of the order, the 2002. See Initiation of Antidumping and Department published the preliminary Countervailing Duty Administrative In accordance with section results of the changed circumstances Reviews and Requests for Revocation in 732(b)(3)(A) of the Act, copies of the review and preliminarily revoked this Part, 67 FR 55000 (August 27, 2002). public version of the petition have been order, retroactive to July 1, 2001, with L.R. Enterprises subsequently withdrew provided to representatives of the respect to entries of fresh Atlantic its request for review of all but 13 of government of the PRC. salmon from Chile. See Notice of these companies. For a detailed International Trade Commission Preliminary Results of Antidumping discussion of L.R. Enterprises’ Notification Duty Changed Circumstances Review: withdrawals, as well as a listing of Fresh Atlantic Salmon from Chile, 68 which respondents requested reviews, We have notified the ITC of our FR 39058 (July 1, 2003) (Preliminary see Notice of Partial Rescission of initiation, as required by section 732(d) Results). We gave interested parties an Antidumping Duty Administrative of the Act. opportunity to comment on both the Review: Fresh Atlantic Salmon from Initiation Notice and the Preliminary Preliminary Determination by the ITC Chile, 67 FR 76378 (December 12, 2002). Results, but received no comments. On April 29, 2003, L.R. Enterprises The ITC will determine by August 14, Therefore, the Department hereby withdrew its request that the 2003, whether there is a reasonable revokes the order on fresh Atlantic Department conduct reviews of the indication that an industry in the salmon from Chile for all entries that remaining 13 producers/exporters of United States is materially injured, or is were entered, or withdrawn from the fresh Atlantic salmon from Chile. threatened with material injury, by warehouse, on or after July 1, 2001, the Furthermore, L.R. Enterprises stated that reason of imports of ironing tables from first day after the last completed it had no interest in maintaining the AD the PRC. A negative ITC determination administrative review in this order. Subsequently, by letters dated will result in the investigation being proceeding. As the result of the April 29, 2003, five U.S. producers of terminated; otherwise, this investigation revocation of the order, the Department fresh Atlantic salmon including

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Heritage Salmon Inc., Maine Nordic salmon are included in the scope of the 351.222(g)(1)(i); See also Certain Tin Salmon, Stolt Sea Farms Inc., Cypress order. Examples of cuts include, but are Mill Products From Japan: Final Results Island Inc., and Atlantic Salmon of not limited to: crosswise cuts (steaks), of Changed Circumstances Review, 66 Maine, requested that the Department lengthwise cuts (fillets), lengthwise cuts FR 52109 (October 12, 2001) and 19 CFR initiate a changed circumstances review attached by skin (butterfly cuts), 351.208(c). According to the record of for the purpose of revoking the AD order combinations of crosswise and this case, the following are all of the on the subject merchandise. On May 2 lengthwise cuts (combination packages), known U.S. producers of fresh Atlantic and 7, 2003, L. R. Enterprises and and Atlantic salmon that is minced, salmon: L.R. Enterprises, Heritage Trumpet Island Salmon Farm Inc., shredded, or ground. Cuts may be Salmon Inc., Maine Nordic Salmon, respectively, submitted their requests to subjected to various degrees of Stolt Sea Farms Inc., Cypress Island the Department for the initiation of a trimming, and imported with the skin Inc., Atlantic Salmon of Maine, and changed circumstances review for the on or off and with the ‘‘pin bones’’ in Trumpet Island Salmon Farm Inc. Based purpose of revoking the AD order. All or out. upon the statement of no interest by the parties requested that the Department Excluded from the scope are (1) fresh U.S. producers referenced above and the grant revocation of the AD order Atlantic salmon that is ‘‘not farmed’’ fact that the Department did not receive retroactive to July 1, 2001, the first day (i.e., wild Atlantic salmon); (2) live any comments during the comment of the period of review covered by the Atlantic salmon; and (3) Atlantic periods following the initiation and on-going fourth administrative review. salmon that has been subject to further preliminary results of this review, the On May 23, 2003, the Department processing, such as frozen, canned, Department hereby revokes this order published a notice of initiation of a dried, and smoked Atlantic salmon, or for all entries of fresh Atlantic salmon changed circumstances review with the processed into forms such as sausages, from Chile that were entered, or intent to revoke the AD order on fresh hot dogs, and burgers. withdrawn from warehouse, on or after Atlantic salmon from Chile. In the The merchandise subject to this order July 1, 2001, the first day after the last Initiation Notice, we indicated that is classifiable as item numbers completed administrative review in this interested parties could submit 0302.12.0003 and 0304.10.4093 of the proceeding, in accordance with sections comments for consideration in the Harmonized Tariff Schedule of the 751(b) and (d) and 782(h) of the Act and Department’s preliminary results no United States (HTSUS). Although the 19 CFR 351.216. later than 20 days after publication of HTSUS statistical reporting numbers are the initiation of the review, and submit provided for convenience and customs Rescission of Antidumping Duty rebuttal to those comments no later than purposes, the written description of the Administrative Review 10 days following the submission of merchandise is dispositive. On August 27, 2002, the Department published in the Federal Register (67 comments. We did not receive any Final Results of Changed FR 55000) a notice of initiation of an comments on the Initiation Notice. Circumstances Review and Revocation On July 1, 2003, the Department administrative review for the period of the AD Order published the preliminary results of the July 1, 2001, through June 30, 2002. As changed circumstances review and Pursuant to sections 751(d)(1) and the result of the revocation of the order, preliminarily revoked this order with 782(h)(2) of the Tariff Act of 1930, as the Department is rescinding the on- respect to all unliquidated entries for all amended (the Act), the Department may going administrative review of fresh entries of fresh Atlantic salmon from revoke an antidumping or Atlantic salmon from Chile pursuant to Chile that were entered, or withdrawn countervailing duty order, in whole or section 751(d)(3) of the Act. from the warehouse, on or after July 1, in part, based on a review under section Instructions to the Customs Service 2001, based on the fact that domestic 751(b) of the Act (i.e., a changed parties have expressed no interest in circumstances review). Section 751(b)(1) In accordance with 19 CFR 351.222, continuation of the order. In addition, of the Act requires a changed the Department will instruct the U.S. we stated our intention to rescind the circumstances review to be conducted Bureau of Customs and Border fourth administrative review. In the upon receipt of a request which shows Protection (BCBP) to terminate the Preliminary Results, we stated that changed circumstances sufficient to suspension of liquidation and to interested parties could submit case warrant review of a final affirmative liquidate, without regard to briefs to the Department no later than 10 antidumping determination. The antidumping duties, all unliquidated days after the publication of the Department’s regulations at 19 CFR entries of fresh Atlantic salmon from Preliminary Results notice in the 351.222(g)(2) provide that the Chile, entered, or withdrawn from Federal Register, and submit rebuttal Department will conduct a changed warehouse, on or after July 1, 2001, briefs, limited to the issues raised in circumstances review under 19 CFR which is the first day after the last those case briefs, five days subsequent 351.216 if the Secretary concludes from completed review covering the 2001– to this due date. We did not receive any the available information that changed 2002 review period. The Department comments on the Preliminary Results. circumstances sufficient to warrant will further instruct the BCBP to refund revocation or termination exist. The with interest any estimated duties Scope of the Order Department may revoke an order (in collected with respect to unliquidated The product covered by this order is whole or in part), if the Secretary entries of fresh Atlantic salmon from fresh, farmed Atlantic salmon, whether determines that: (i) producers Chile entered, or withdrawn from imported ‘‘dressed’’ or cut. Atlantic accounting for substantially all of the warehouse, on or after July 1, 2001, in salmon is the species Salmo salar, in the production of the domestic like product accordance with section 778 of the Act. genus Salmo of the family salmoninae. to which the order (or the part of the This notice also serves as a reminder ‘‘Dressed’’ Atlantic salmon refers to order to be revoked) pertains have to parties subject to administrative salmon that has been bled, gutted, and expressed a lack of interest in the relief protective orders (APOs) of their cleaned. Dressed Atlantic salmon may provided by the order, in whole or in responsibility concerning the be imported with the head on or off; part, or (ii) if other changed disposition of proprietary information with the tail on or off; and with the gills circumstances sufficient to warrant disclosed under APO in accordance in or out. All cuts of fresh Atlantic revocation exist. 19 CFR with 19 CFR 351.306. Timely written

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notification of the return/destruction of Department’s regulations refer to the In a separate proceeding, the APO materials or conversion to judicial regulations codified at 19 CFR part 351 Department received timely requests protective order is hereby requested. (April 2002). from Shanghai Xiuwei and Sichuan Failure to comply with the regulations Dubao, in accordance with 19 CFR Case History and terms of an APO is a sanctionable 351.214(c), for new shipper reviews of violation. On December 17, 2002, the the antidumping duty order on honey This notice of final results of Department published a Notice of from the PRC, which has a December antidumping duty changed Opportunity to Request an annual anniversary month. On February circumstances review and revocation of Administrative Review of Antidumping 5, 2003, we published a Notice of the antidumping duty order are in or Countervailing Duty Order, Finding, Initiation of New Shipper Antidumping accordance with sections 751(b) and (d), or Suspended Investigation, 67 FR Duty Reviews, 68 FR 5868 (February 5, and 777(i) of the Act and 19 CFR 77222 (December 17, 2002). On 2003) initiating new shipper reviews of 351.222(g). The 2001–2002 antidumping December 31, 2002, the American Shanghai Xiuwei’s and Sichuan Dubao’s duty administrative review of fresh Honey Producers Association and the sales during the same POR as this Atlantic salmon from Chile is rescinded Sioux Honey Association (collectively, administrative review.3 in accordance with section 751(d)(3) of petitioners) in this proceeding, On May 6, 2003, the Department the Act. requested, in accordance with section preliminarily determined to rescind, in part, the administrative reviews of Dated: July 21, 2003. 351.213(b) of the Department’s Anhui, Inner Mongolia, Shanghai Joseph A. Spetrini, regulations, an administrative review of the antidumping duty order on honey Xiuwei, Sichuan Dubao, and Wuhan. Acting Assistant Secretary. from the People’s Republic of China See Memorandum to Barbara Tillman, [FR Doc. 03–19022 Filed 7–24–03; 8:45 am] (PRC) covering the period May 11, 2001, Acting Deputy Assistant Secretary, AD/ BILLING CODE 3510–DS–S through November 30, 2002.1 CVD Enforcement Group III; Intent to Petitioners requested that the Partially Rescind Administrative Reviews (May 6, 2003) (Rescission DEPARTMENT OF COMMERCE Department conduct an administrative review of entries of subject merchandise Memo). As discussed in the above-referenced International Trade Administration made by ten PRC producers/exporters, including Anhui Native Produce Import Rescission Memo, this administrative [A–570–863] & Export Corp. (Anhui), Inner Mongolia review is intended to cover shipments Autonomous Region Native Produce of subject merchandise by Anhui and Honey From the People’s Republic of and Animal By-Products (Inner Inner Mongolia during the POR of May China: Final Rescission, in Part, of Mongolia), Shanghai Xiuwei 11, 2001, through November 30, 2003. Antidumping Duty Administrative However, based upon our shipment data International Trading Co., Ltd. Review query and examination of entry (Shanghai Xiuwei), Sichuan-Dujiangyan documents, we determined that Anhui AGENCY: Dubao Bee Industrial Co., Ltd. (Sichuan Import Administration, and Inner Mongolia did not ship subject International Trade Administration, Dubao), and Wuhan Bee Healthy Co., 2 merchandise during this period. Department of Commerce. Ltd. (Wuhan). We also received a As discussed in the Department’s ACTION: Notice of final rescission, in timely request from Zhejiang Native Rescission Memo, the new shipper part, of antidumping duty Produce and Animal By-Products reviews of Shanghai Xiuwei and administrative review. Import & Export Corp., a.k.a. Zhejiang Sichuan Dubao covered the same POR Native Produce and Animal By-Products as this administrative review. The SUMMARY: The Department of Commerce Import and Export Group Corporation Department also determined, with (the Department) has determined that (collectively Zhejiang), that the respect to Wuhan, that there were no the first administrative reviews of five Department conduct an administrative other entries to review other than those PRC honey exporters/producers should review of entries of subject merchandise currently under review in its new be rescinded. exported by Zhejiang during the POR. shipper review. Therefore, we EFFECTIVE DATE: July 25, 2003. On January 22, 2003, the Department determined that Shanghai Xiuwei, FOR FURTHER INFORMATION CONTACT: initiated an administrative review of all Sichuan Dubao, and Wuhan were new Angelica Mendoza or Brandon requested PRC honey exporters/ shippers and should not be subject to Farlander at (202) 482–3019 or (202) producers. See Initiation of this proceeding. 482–0182, respectively; Antidumping Antidumping and Countervailing Duty We invited parties to comment on our and Countervailing Duty Enforcement Administrative Reviews and Requests Rescission Memo. On May 21, 2003, we Group III, Import Administration, for Revocation in Part, 68 FR 3009 received responses from Wuhan, Inner International Trade Administration, (January 22, 2003). Mongolia, and Anhui in support of the U.S. Department of Commerce, 14th Department’s decision to rescind their Street and Constitution Avenue, NW., 1 On January 27, 2003, the Department clarified respective administrative reviews. We Washington, DC 20230. that the period of review (POR) for certain PRC did not receive comments from honey exporters/producers, including Wuhan, SUPPLEMENTARY INFORMATION: Shanghai Xiuwei, and Sichuan Dubao is February petitioners, Shanghai Xiuwei, nor 10, 2001, through November 30, 2002. See Sichuan Dubao. Furthermore, interested The Applicable Statute and Regulations Memorandum to the File through Donna L. Unless otherwise indicated, all Kinsella, Case Manager, Office 8; POR for Exporters 3 Moreover, the Department currently is of Honey from the People’s Republic of China with citations to the statute are references to conducting a six-month new shipper review of Affirmative Critical Circumstances Findings Wuhan’s sales during the period December 1, 2001, the provisions effective January 1, 1995, (January 27, 2003) for further details. through May 31, 2002. See Honey from the People’s the effective date of the amendments 2 The other five PRC honey exporters/producers Republic of China: Initiation of New Shipper made to the Tariff Act of 1930 (the Act) included Henan Native Produce and Animal By- Antidumping Duty Reviews, 67 FR 50862 (August Products Import & Export Company, High Hope 6, 2002). See also Notice of Preliminary Results of by the Uruguay Round Agreements Act International Group Jiangsu Foodstuffs Import and Antidumping Duty New Shipper Review: Honey (URAA). In addition, unless otherwise Export Corp., Kunshan Foreign Trade Company, from the People’s Republic of China, 68 FR 33099 indicated, all citations to the Shanghai Eswell Enterprise Co., Ltd., and Zhejiang. (June 3, 2003).

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parties did not submit case briefs or Final Results of 1999–2001 and Countervailing Duty Enforcement request a hearing. In summary, all Administrative Review and Partial Group III, Import Administration, parties commenting on the Rescission Rescission of Review, 67 FR 68987 International Trade Administration, Memo supported the Department’s (November 14, 2002); see also, Frozen U.S. Department of Commerce, 14th preliminary decision to rescind these Concentrated Orange Juice from Brazil: Street and Constitution Avenue, NW., reviews, and there have been no Final Results and Partial Rescission of Washington, DC 20230. changes since the Department placed its Antidumping Duty Administrative SUPPLEMENTARY INFORMATION: Rescission Memo on the record of this Review, 67 FR 40913 (June 14, 2002)). administrative review. This notice also serves as a reminder Statutory Time Limits Section 751(a)(3)(A) of the Tariff Act Scope of Review to parties subject to an administrative protective order (APO) of their of 1930, as amended (the Act), and The merchandise under review is responsibility concerning the section 351.213(h)(1) of the honey from the PRC. The products disposition of proprietary information Department’s regulations require the covered are natural honey, artificial disclosed under APO in accordance Department to issue the preliminary honey containing more than 50 percent with 19 CFR 351.305. Timely results of an administrative review natural honey by weight, preparations of notification of return/destruction of within 245 days after the last day of the natural honey containing more than 50 APO materials or conversion to judicial anniversary month of the order or percent natural honey by weight, and protective order is hereby requested. suspension agreement for which the flavored honey. The subject Failure to comply with the regulations administrative review was requested, merchandise includes all grades and and the terms of an APO are and final results of review within 120 colors of honey whether in liquid, sanctionable violations. days after the date on which the notice creamed, comb, cut comb, or chunk This determination is issued and of the preliminary results was published form, and whether packaged for retail or published pursuant to sections 751(a) in the Federal Register. However, if the in bulk form. The merchandise under and 777(i) of the Act. Department determines that it is not review is currently classifiable under practicable to complete the review Dated: July 22, 2003. item 0409.00.00, 1702.90.90 and within this time period, section 2106.90.99 of the Harmonized Tariff Richard O. Weible, 751(a)(3)(A) of the Act and Schedule of the United States (HTSUS). Acting Deputy Assistant Secretary for Import § 351.213(h)(2) of our regulations allow Although the HTSUS subheading is Administration, Group III. the Department to extend the 245-day provided for convenience and customs [FR Doc. 03–19020 Filed 7–24–03; 8:45 am] period to 365 days and the 120-day purposes, the written description of the BILLING CODE 3510–DS–P period to 180 days. merchandise under review is dispositive. Background DEPARTMENT OF COMMERCE On December 10, 2001, the Rescission, in Part, of First Department of Commerce (the Administrative Review International Trade Administration Department) published in the Federal We provided interested parties with [A–570–863] Register an antidumping duty order an opportunity to comment on our covering honey from the People’s preliminary determination to rescind Honey From the People’s Republic of Republic of China (PRC). See Notice of the administrative reviews of Anhui, China: Extension of Time Limit for Amended Final Determination of Sales Inner Mongolia, Shanghai Xiuwei, Preliminary Results of First at Less Than Fair Value and Sichuan Dubao, and Wuhan. As noted Antidumping Duty Administrative Antidumping Duty Order; Honey from above, we received responses from Review the People’s Republic of China, 66 FR Wuhan, Inner Mongolia, and Anhui in 63670 (December 10, 2001). On AGENCY: Import Administration, support of the Department’s decision to December 17, 2002, the Department International Trade Administration, rescind their respective administrative published a Notice of Opportunity to Department of Commerce. reviews. As discussed in detail in our Request an Administrative Review of Rescission Memo, because Anhui and ACTION: Notice of extension of time limit Antidumping or Countervailing Duty Inner Mongolia made no entries, exports for preliminary results of antidumping Order, Finding, or Suspended or sales of subject merchandise to the duty administrative review. Investigation, 67 FR 77222 (December United States during the POR, we SUMMARY: The Department of Commerce 17, 2002). On December 31, 2002, the determined that these companies were American Honey Producers Association non-shippers. Furthermore, because (the Department) is extending the time limit for the preliminary results of the and the Sioux Honey Association Wuhan, Shanghai Xiuwei, and Sichuan (collectively, petitioners) in this Dubao made no entries, exports or sales administrative review of the antidumping duty order on honey from proceeding, requested, in accordance of subject merchandise to the United with § 351.213(b) of the Department’s States not currently under review in the People’s Republic of China until no later than December 31, 2003. The regulations, an administrative review of their respective new shipper reviews, the antidumping duty order on honey the Department determined to treat period of review for those entities with an affirmative critical circumstances from the PRC covering the period May these companies as new shippers not 11, 2001, through November 30, 2002.1 subject to this administrative review. In finding is February 10, 2001, through November 30, 2002. For all other The petitioners requested that the accordance with §§ 351.213(d)(3) and Department conduct an administrative 351.214(j)(1) of the Department’s companies, the period of review is May 11, 2001, through November 30, 2002. regulations, we are rescinding our 1 On January 27, 2003, in a memorandum to the administrative reviews of Anhui, Inner EFFECTIVE DATE: July 25, 2003. file, we determined that the POR for entities with Mongolia, Shanghai Xiuwei, Sichuan FOR FURTHER INFORMATION CONTACT: affirmative findings of critical circumstances to be February 10, 2001, through November 30, 2002. See Dubao, and Wuhan. See, e.g., Certain Angelica Mendoza or Brandon Memorandum to the File from Angelica L. Mendoza Non-Frozen Apple Juice Concentrate Farlander at (202) 482–3019 or (202) through Donna L. Kinsella, dated January 27, 2003 from the People’s Republic of China: 482–0182, respectively; Antidumping for further details.

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review of entries of subject merchandise the Department’s regulations, the for an administrative review of the made by ten PRC producers/exporters, Department is extending the time limit countervailing duty order on in-shell which included Shanghai Eswell for the completion of these preliminary (raw) pistachios from Iran. On April 16, Enterprise Co., Ltd. (Shanghai Eswell), results by an additional 120 days. The 2003, the Department initiated an Zhejiang Native Produce and Animal preliminary results will now be due no administrative review of this order for By-Products Import & Export Corp., later than December 31, 2003. The final the period January 1, 2002, through a.k.a. Zhejiang Native Produce and results will, in turn, be due 120 days December 31, 2002. On July 9, 2003, the Animal By-Products Import and Export after the date of issuance of the CPC submitted a timely letter requesting Group Corporation (Zhejiang), and preliminary results, unless extended. to withdraw their request for the above- Wuhan Bee Healthy Co., Ltd. (Wuhan). Dated: July 21, 2003. referenced administrative review. We also received a timely request from Richard O. Weible, Zhejiang (active respondent in the Acting Deputy Assistant Secretary for Import Scope of the Review original investigation) that the Administration, Group III. Department conduct an administrative The product covered by this [FR Doc. 03–19021 Filed 7–24–03; 8:45 am] review of entries of subject merchandise administrative review is in-shell (raw) it exported to the United States during BILLING CODE 3510–DS–P pistachio nuts from which the hulls the period of review (POR). On January have been removed, leaving the inner 22, 2003, the Department initiated an DEPARTMENT OF COMMERCE hard shells and edible meat, as currently administrative review for all of these classifiable in the Harmonized Tariff companies. See Initiation of International Trade Administration Schedules of the United States (HTSUS) Antidumping and Countervailing Duty under item number 0802.50.20.00. The [C-507–501] Administrative Reviews and Requests HTSUS subheadings are provided for for Revocation in Part, 68 FR 3009 Notice of Rescission of Countervailing convenience and customs purposes. The (January 22, 2003). Duty Administrative Review: In-shell written description of the scope of this On February 20, 2003, the Department Pistachios from the Islamic Republic of proceeding is dispositive. issued antidumping duty questionnaires Iran to all ten PRC producers/exporters of Rescission of Review the subject merchandise. On April 4, AGENCY: Import Administration, 2003, we received responses to Section International Trade Administration, On July 9, 2003, the CPC submitted a A of our antidumping duty Department of Commerce. letter requesting to withdraw its request questionnaires from Zhejiang and ACTION: Notice of Rescission of for the above-referenced administrative Wuhan. On April 18, 2003, we received Countervailing Duty Administrative review. See letter from the CPC to the responses to Sections C and D of our Review. Department dated July 9, 2003, on file antidumping duty questionnaires from in the Central Records Unit, Room B- Zhejiang and Wuhan. SUMMARY: On April 16, 2003, the 099, main building of the Department of On April 22, 2003, petitioners Department of Commerce (the Commerce. This letter was timely filed submitted a withdrawal of request for Department) initiated an administrative within 90 days of the publication notice review for Shanghai Eswell. On May 6, review of the countervailing duty order of initiation of the requested review. 2003, the Department rescinded, in part, on in-shell (raw) pistachios from the the administrative review of the Islamic Republic of Iran (Iran), covering Having accepted the CPC’s request, antidumping duty order on honey with one manufacturer/exporter of the the Department hereby rescinds the respect to Shanghai Eswell. See Honey subject merchandise, Rafsanjan administrative review of in-shell (raw) from the People’s Republic of China: Pistachio Producers Cooperative (RPPC), pistachios from Iran for the period Notice of Partial Rescission of and the period January 1, 2002, through January 1, 2002, to December 31, 2002. Antidumping Duty Administrative December 31, 2002. See Initiation of See 19 CFR section 351.213(d)(1). The Review, 68 FR 23963 (May 6, 2003). Antidumping and Countervailing Duty Department will issue appropriate Administrative Reviews, 68 FR 19498 assessment instructions to the U.S. Extension of Time Limits for (April 21, 2003). This review has now Bureau of Customs and Border Preliminary Results been rescinded due to petitioners’1 Protection (Customs) within 15 days of Pursuant to section 751(a)(3)(A) of the withdrawal of their request for an publication of this notice. Act and section 351.213(h) of the administrative review. This notice is in accordance with Department’s regulations, we determine EFFECTIVE DATE: July 25, 2003 section 751(a)(1) of the Tariff Act of that it is not practicable to complete this FOR FURTHER INFORMATION CONTACT: administrative review within the 1930, as amended, and section Darla Brown or Eric B. Greynolds, AD/ 351.213(d) of the Department’s statutory time limit of 245 days. The CVD Enforcement, Office VI, Group II, regulations. Department finds that it is not Import Administration, U.S. Department practicable to complete the preliminary of Commerce, Room 4012, 14th Street Dated: July 21, 2003. results of this administrative review and Constitution Avenue, NW, Holly A. Kuga, within this time limit because we need Washington, DC 20230; telephone (202) Acting Deputy Assistant Secretary for Import additional time to research the 482–2849 or (202) 482–6071, Administration. appropriate surrogate value used to respectively. value raw honey. Additionally, the [FR Doc. 03–19024 Filed 7–24–03; 8:45 am] SUPPLEMENTARY INFORMATION: Department is analyzing the Indian BILLING CODE 3510–DS–S financial statements currently on the Background record to determine the appropriate On March 31, 2003, the Department surrogate financial ratios to use in our received a timely request from the CPC calculation of normal value. Therefore, in accordance with section 751(a)(3)(A) 1 Petitioners are the California Pistachios of the Act and section 351.213(h)(2) of Commission (CPC) and its members.

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DEPARTMENT OF COMMERCE Weyerhaeuser sold its interest in (3) other coniferous wood (including Monterra to 1554545 Ontario, Inc. strips and friezes for parquet flooring, International Trade Administration (1554545 Ontario), a wholly owned not assembled) continuously shaped [A–122–838] subsidiary of Tercamm Corp., a (tongued, grooved, rabbeted, chamfered, privately owned Canadian investment v-jointed, beaded, molded, rounded or Certain Softwood Lumber Products company. As a result, Monterra the like) along any of its edges or faces from Canada: Notice of Preliminary requested that the Department conduct (other than wood moldings and wood Results of Antidumping Duty Changed a changed circumstances review in dowel rods) whether or not planed, Circumstances Review order to conclude that, effective sanded or finger-jointed; and December 23, 2002, it be subject to the (4) coniferous wood flooring (including AGENCY: Import Administration, ‘‘All Others’’ cash deposit rate of 8.43 strips and friezes for parquet flooring, International Trade Administration, percent, rather than Weyerhaeuser’s not assembled) continuously shaped Department of Commerce. 12.39 percent rate. On March 27, 2003, (tongued, grooved, rabbeted, chamfered, ACTION: Notice of preliminary results of the Department published a notice of v-jointed, beaded, molded, rounded or antidumping duty changed initiation of a changed circumstances the like) along any of its edges or faces, circumstances review. review to determine whether entries whether or not planed, sanded or finger- naming Monterra as manufacturer and jointed. SUMMARY: On March 27, 2003, the exporter should receive the ‘‘All Although the HTSUS subheadings are Department of Commerce (the Others’’ cash deposit rate of 8.43 provided for convenience and customs Department) published a notice of percent. purposes, the written description of the initiation of a changed circumstances merchandise under investigation is On April 29, 2003, Monterra, at the review to determine whether entries dispositive. Preliminary scope request of the Department, submitted naming Monterra Lumber Mills Limited exclusions and clarifications were additional information and (Monterra), a Canadian producer of published in three separate federal documentation regarding its sale by softwood lumber products and an register notices. Weyerhaeuser to 1554545 Ontario. On Softwood lumber products excluded interested party in this proceeding, as 1 manufacturer and exporter should May 8, 2003, the petitioner submitted from the scope: receive the ‘‘All Others’’ cash deposit comments on the information provided • trusses and truss kits, properly rate of 8.43 percent. See Initiation of by Monterra and requested that the classified under HTSUS 4418.90 Antidumping Duty Changed Department issue a supplemental • I-joist beams questionnaire. On May 21, 2003, the • assembled box spring frames Circumstances Review: Certain • Softwood Lumber Products From Department issued a supplemental pallets and pallet kits, properly Canada, 68 FR 14947 (March 27, 2003) questionnaire requesting further details classified under HTSUS 4415.20 and documentation surrounding the sale • garage doors (Initiation Notice). We have • edge-glued wood, properly classified preliminarily determined that entries and purchase, which was provided by Monterra in its subsequent submission under HTSUS item 4421.90.98.40 naming Monterra as manufacturer and • properly classified complete door exporter should receive the ‘‘All of June 4, 2003. The petitioner did not comment on Monterra’s June 4, 2003, frames. Others’’ cash deposit rate of 8.43 • submission. properly classified complete window percent. frames • EFFECTIVE DATE: July 25, 2003. Scope of the Order properly classified furniture Softwood lumber products excluded FOR FURTHER INFORMATION CONTACT: The products covered by this order from the scope only if they meet certain Keith Nickerson or Constance Handley, are softwood lumber, flooring and requirements: at (202) 482–3813 or (202) 482–0631, siding (softwood lumber products). • Stringers (pallet components used for respectively; Import Administration, Softwood lumber products include all runners): if they have at least two International Trade Administration, products classified under headings notches on the side, positioned at equal U.S. Department of Commerce, 14th 4407.1000, 4409.1010, 4409.1090, and distance from the center, to properly Street and Constitution Avenue NW, 4409.1020, respectively, of the accommodate forklift blades, properly Washington, DC 20230. Harmonized Tariff Schedule of the classified under HTSUS 4421.90.98.40. SUPPLEMENTARY INFORMATION: United States (HTSUS), and any • Box-spring frame kits: if they contain softwood lumber, flooring and siding Background the following wooden pieces - two side described below. These softwood rails, two end (or top) rails and varying As a result of the antidumping duty lumber products include: numbers of slats. The side rails and the order issued following the completion (1) coniferous wood, sawn or chipped end rails should be radius-cut at both of the less-than-fair-value investigation lengthwise, sliced or peeled, whether or ends. The kits should be individually of certain softwood lumber products not planed, sanded or finger-jointed, of packaged, they should contain the exact from Canada, imports of softwood a thickness exceeding six millimeters; number of wooden components needed lumber from Monterra, a subsidiary of (2) coniferous wood siding (including to make a particular box spring frame, respondent company Weyerhaeuser strips and friezes for parquet flooring, with no further processing required. Company Limited (Weyerhaeuser), not assembled) continuously shaped None of the components exceeds 1’’ in became subject to a cash deposit rate of (tongued, grooved, rabbeted, chamfered, actual thickness or 83’’ in length. • 12.39 percent (See Notice of Amended v-jointed, beaded, molded, rounded or Radius-cut box-spring-frame Final Determination of Sales at Less the like) along any of its edges or faces, components, not exceeding 1’’ in actual Than Fair Value and Antidumping whether or not planed, sanded or finger- thickness or 83’’ in length, ready for Order: Certain Softwood Lumber jointed; assembly without further processing. Products from Canada, 67 FR 36068 The radius cuts must be present on both (May 22, 2002)). On February 4, 2003, 1 The petitioner in this proceeding is the ends of the boards and must be Monterra notified the Department that Coalition for Fair Lumber Imports Executive substantial cuts so as to completely effective December 23, 2002, Committee. round one corner.

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• Fence pickets requiring no further or other vehicles, which shall be on the receive the ‘‘All Others’’ cash deposit processing and properly classified same day except when the home is over rate of 8.43 percent. under HTSUS 4421.90.70, 1’’ or less in 2,000 square feet; In reviewing the information provided actual thickness, up to 8’’ wide, 6’ or 5. The following documentation must be by Monterra, the Department has less in length, and have finials or included with the entry documents: preliminarily found that Monterra, as a decorative cuttings that clearly identify • a copy of the appropriate home design, result of the sale by Weyerhaeuser and them as fence pickets. In the case of plan, or blueprint matching the entry; purchase by 1554545 Ontario on dog-eared fence pickets, the corners of • a purchase contract from a retailer of December 23, 2002, is no longer owned the boards should be cut off so as to home kits or packages signed by a by or in any way affiliated with remove pieces of wood in the shape of customer not affiliated with the Weyerhauser and, as a result, should not isosceles right angle triangles with sides importer; be subject to Weyerhaeuser’s cash measuring 3/4 inch or more. • deposit rate of 12.39 percent. In • a listing of inventory of all parts of the U.S. origin lumber shipped to Canada package or kit being entered that addition, we note that during the for minor processing and imported into conforms to the home design package antidumping duty investigation of the United States, is excluded from the being entered; certain softwood lumber from Canada, scope of this order if the following • in the case of multiple shipments on the Department granted an exemption to Weyerhaeuser allowing it to exclude conditions are met: 1) the processing the same contract, all items listed occurring in Canada is limited to kiln- reporting the U.S. sales by Monterra immediately above which are included drying, planing to create smooth-to-size since these sales represented such a in the present shipment shall be board, and sanding, and 2) if the small amount of Weyerhaeuser’s total identified as well. importer establishes to U.S. Bureau of U.S. sales.4 As a result, Monterra’s sales We have determined that the Customs and Border Protection’s (BCBP) had no effect on the calculation of excluded products listed above are satisfaction that the lumber is of U.S. Weyerhaeuser’s cash deposit rate of origin.2 outside the scope of this order provided 12.39 percent. Therefore, for the above- • Softwood lumber products contained the specified conditions are met. stated reasons, we have preliminarily in single family home packages or kits,3 Lumber products that the BCBP may determined that entries naming regardless of tariff classification, are classify as stringers, radius cut box- Monterra as manufacturer and exporter excluded from the scope of the orders if spring-frame components, and fence should receive the ‘‘All Others’’ cash the following criteria are met: pickets, not conforming to the above deposit rate of 8.43 percent. 1. The imported home package or kit requirements, as well as truss We are denying Monterra’s request to constitutes a full package of the number components, pallet components, and have the cash deposit rate of 8.43 of wooden pieces specified in the plan, door and window frame parts, are percent made effective as of December design or blueprint necessary to covered under the scope of this order 23, 2002. Because cash deposits are only produce a home of at least 700 square and may be classified under HTSUS estimates of the amount of antidumping feet produced to a specified plan, design subheadings 4418.90.40.90, duties that will be due, changes in cash or blueprint; 4421.90.70.40, and 4421.90.98.40. Due deposit rates are not made retroactively. 2. The package or kit must contain all to changes in the 2002 HTSUS whereby See Certain Hot-Rolled Lead and necessary internal and external doors subheading 4418.90.40.90 and Bismuth Carbon Steel Products From and windows, nails, screws, glue, 4421.90.98.40 were changed to the United Kingdom: Final Results of subfloor, sheathing, beams, posts, 4418.90.45.90 and 4421.90.97.40, Changed-Circumstances Antidumping connectors and if included in purchase respectively, we are adding these and Countervailing Duty Administrative contract decking, trim, drywall and roof subheadings as well. Reviews, 64 FR 66880 (November 30, shingles specified in the plan, design or Preliminary Results of Changed 1999). However, on May 30, 2003, blueprint; Circumstances Review Monterra requested, during the 3. Prior to importation, the package or anniversary month of the publication of kit must be sold to a retailer of complete Pursuant to section 751(b)(1) of the the order, an administrative review of home packages or kits pursuant to a Tariff Act of 1930, as amended (the Act), those entries to determine the proper valid purchase contract referencing the the Department will conduct a changed assessment rate and receive a refund of particular home design plan or circumstances review upon receipt of any excess deposits. Accordingly, on blueprint, and signed by a customer not information concerning, or a request July 1, 2003, the Department published affiliated with the importer; from an interested party of, an a notice of initiation of an 4. The whole package must be imported antidumping duty order which shows administrative review of the under a single consolidated entry when changed circumstances sufficient to antidumping duty order on certain permitted by the BCBP, whether or not warrant a review of the order. Monterra softwood lumber products from Canada on a single or multiple trucks, rail cars contends that, because it is no longer for 421 companies, including Monterra. owned by Weyerhaeuser, it should be (See Initiation of Antidumping Duty 2 As clarified in the Memorandum from Dave subject to the ‘‘All Others’’ cash deposit Administrative Review, 68 FR 39059 Layton, Case Analyst, through Charles Riggle, rate. In accordance with 19 CFR 351.216 Program Manager, and Gary Taverman, Office (July 1, 2003).) (c), due to the change in ownership, the Director, to Bernard Carreau, Deputy Assistant Public Comment Secretary, concerning the Certain Softwood Lumber Department found good cause to initiate from Canada Scope re: Final Scope Ruling in a changed circumstances review despite Any interested party may request a Response to Request by the Coalition for Fair the final determination being in hearing within 30 days of publication of Lumber Imports Executive Committee regarding this notice. See 19 CFR 351.310(c). Any U.S.-origin Lumber Undergoing Additional existence for fewer than 24 months. Processing, dated January 22, 2003. Therefore, we initiated a changed hearing, if requested, will be held 45 3 To ensure administrability, we clarified the circumstances administrative review language of this exclusion to require an importer pursuant to section 751(b)(1) of the Act 4 See Memorandum from Constance Handley, certification and to permit single or multiple entries Senior Import Compliance Specialist, to Gary on multiple days as well as instructing importers and 19 CFR 351.216(c) to determine Taverman, Office Director, concerning the to retain and make available for inspection specific whether entries naming Monterra as Antidumping Duty Investigation of Certain documentation in support of each entry. manufacturer and exporter should Softwood Lumber from Canada, dated July 16, 2001.

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days after the date of publication of this to unknown, or poorly known, ocean ocean exploration and the Office of notice, or the first working day and Great Lakes regions. Consistent Ocean Exploration was established in thereafter. Interested parties may submit with OE’s intent to explore and 2001. case briefs and/or written comments not discover, successful OE proposals will B. Program Mission later than 30 days after the date of be relatively broad-based in terms of publication of this notice. Rebuttal their objectives and they may be The mission of OE is to search, briefs, which must be limited to issues relatively high-risk. Prospective investigate, and document unknown raised in such briefs or comments, may applicants are encouraged to visit the and poorly known areas of the ocean be filed not later than 37 days after the Ocean Explorer Web site: http:// and Great Lakes through date of publication of this notice. Parties oceanexplorer.noaa.gov in order to interdisciplinary exploration, and to who submit arguments are requested to familiarize themselves with past and advance and disseminate knowledge of submit with the argument (1) a present OE activities. the ocean environment and its physical, statement of the issue, (2) a brief DATES: Pre-proposals are required and chemical, biological, and historical summary of the argument, and (3) a must be postmarked or received by resources. table of authorities. September 3, 2003. Full proposals must III. Program Notice Due to the fact that the petitioner has be postmarked or received by October not agreed to the outcome of this 28, 2003. In the event that these dates A. Notice Objectives proceeding, the Department will fall on a weekend or holiday, the The purpose of this announcement is conduct this review in accordance with effective date shall be the first working to invite the submission of pre- section 351.216(e) of its regulations. day after the date specified. Email and/ proposals and full proposals for grants, Thus, consistent with section 351.216(e) or facsimile pre-proposals and/or cooperative agreements, and other of the Department’s regulations, we will proposals submissions will not be financial collaborations whose issue the final results of this changed accepted. objectives are to explore the ocean and circumstances review no later than 270 ADDRESSES: Send pre-proposals and map its resources, to gain new insights days after the date on which this review about its physical, chemical, biological, was initiated. proposals to NOAA, Office of Ocean Exploration, ATTN: OE Science and archaeological characteristics, and This notice is in accordance with its living and non-living resources. sections 751(b)(1) and 777(I)(1) of the Program Coordinator, Bldg. SSMC3, Rm. Act and 19 CFR 351.216, 351.221(b), 10221, 1315 East West Highway, Silver B. Program Guidance and 351.222(g)(3)(I). Spring, MD 20910. Email and/or facsimile pre-proposals and/or Themes. Persons submitting proposals Dated: July 21, 2003. proposals submissions will not be may elect to address these preferred Joseph A. Spetrini, accepted. themes, developed in part from eight Acting Assistant Secretary. regional workshops of ocean scientists, FOR FURTHER INFORMATION CONTACT: [FR Doc. 03–19023 Filed 7–24–03; 8:45 am] explorers, and educators from public, Margot Bohan, OE Science Program private and commercial organizations. BILLING CODE 3510–DS–S Coordinator, or Randi Neff, OE Program Applicants with non-OE-funded Grants Coordinator, NOAA Office of shiptime, projects, or other resources Ocean Exploration, 301–713–9444, DEPARTMENT OF COMMERCE may wish to propose supplementing facsimile 301–713–4252 or submit them by the addition of tasks or National Oceanic and Atmospheric inquiries via email to the Frequently objectives that are consistent with (and Administration Asked Questions address: are, therefore, eligible for funding by) [email protected]. Email inquiries the OE program mission. The themes are [Docket No. 021028257–3178–02] should include the Principal (in no order of priority): Investigator’s name in the subject NOAA Office of Ocean Exploration 1. Mapping ocean characteristics and heading. A copy of this notice, as well bathymetry; Announcement of Funding as ancillary information, will be posted Opportunity, Fiscal Year 2004 2. Marine life inventories: vertebrate, on the OE Web site http:// invertebrate, macro-organisms and AGENCY: Office of Ocean Exploration, www.explore.noaa.gov. micro-organisms; National Oceanic and Atmospheric SUPPLEMENTARY INFORMATION: 3. Marine archaeology; Administration (NOAA), Commerce. 4. Characterization of benthic and I. Program Authority ACTION: Notice. pelagic habitats and ecosystems; Authority: 33 U.S.C. 883d. 5. Locating and mapping corals SUMMARY: NOAA’s Office of Ocean (including deep corals); Exploration (OE) is seeking pre- Catalog of Federal Domestic Assistance 6. New ocean resources; Number: 11.460. proposals and full proposals for grants, 7. Passive ocean acoustics; cooperative agreements, and other II. Program Description 8. Technology: innovative financial collaborations to implement applications and leveraged A. Background OE’s mission to expand our knowledge development; of the ocean’s physical, chemical, In June 2000, a panel of leading ocean 9. Outreach: communicating biological and archaeological explorers, scientists, and educators exploration efforts in new and characteristics, processes, and developed a national strategy for innovative ways to broad audiences. resources. OE’s mission objectives also exploring the oceans, and presented its Workshop reports can be viewed include conveying the experience and recommendations in a report entitled, online at http://explore.noaa.gov/ knowledge gained in all of OE’s Discovering Earth’s Final Frontier: A workshops/welcome.html. missions though a structured program of U.S. Strategy for Ocean Exploration public education and outreach. Many of (http://oceanpanel.nos.noaa.gov). C. Program Priorities OE’s missions will be accomplished by NOAA was selected as the lead Federal The following are requirements for projects, experiments, and expeditions agency to guide a national program in proposals successfully funded by OE.

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Outreach & Education. All funded IV. Funding Availability solicited from investigators who submit applicants and collaborators will be FY2004 funding for this program has successful pre-proposals. An approved required to cooperate with OE in not yet been appropriated. Not all pre-proposal is a prerequisite for facilitating education and outreach available FY2004 program funds will be submission of a full proposal. Pre- activities. This may entail participation awarded through this announcement. proposals will be judged in terms of in the development of lesson plans, Publication of this Notice does not their consistency with OE’s program professional development for teachers, obligate NOAA to award any specific mission and themes. Available program accommodation of a teacher/educator- project or to obligate all or any part of funds will also be taken into at-sea, and at-sea media participation. the available funds. consideration (See DATES for submission Data Management. In accepting full or Proposals are encouraged for deadlines and ADDRESSES for hard copy partial OE sponsorship, each applicant collaborations and explorations ranging submission address). is obligated to meet certain data from the tens of thousands of dollars to A. Preliminary Proposals management requirements including: funds appropriate for up to two months of expeditionary exploration work. A pre-proposal should include a 1. Applicants will provide metadata, Multi-year proposals may be accepted, summary of the proposed research, e.g., number and type of data, and although the present principal focus of project priorities, a statement of description of the data collected the OE program will be on one-year objectives, and a description of how the immediately upon completion of a projects and expeditions. Out-year proposed project relates with OE’s project cruise. Other data or data funding will be contingent upon factors mission. The area of proposed products may also be required at the including successful accomplishment of operations must be clearly defined (e.g., discretion of the OE Director. prior-year objectives as well as including latitude, longitude, and 2. Applicants will provide OE and the availability of program funding and depth). Required platforms or other public access to acquired data sets other relevant resources. critical assets should be identified. The pre-proposal should make clear any collected as soon as practical and, in no V. Eligibility case, later than one year following the time or other operational constraints, date of collection, unless an extension is Eligible applicants are institutions of especially with regard to field specifically granted by OE. higher education, other nonprofits, operations. Any auxiliary funding commercial organizations, international sources for the proposed project should Proposals should include a organizations, federal, state, local and be identified. Pre-proposals must description and justification of data Indian tribal governments. Proposals identify all collaborators and include a funding needs and explain how data from non-Federal and Federal summary budget. Pre-proposals must will be made accessible or available to applicants will be competed against not exceed two typewritten single-sided the public. each other. Proposals selected for pages and must use 12-point font. 3. NOAA’s Ocean Explorer Web site funding from non-Federal applicants Additionally, pre-proposals must (http://oceanexplorer.noaa.gov) is the will be funded through a project grant include a completed pre-proposal cover principal vehicle for chronicling and or cooperative agreement under the sheet (available electronically at http:// documenting all missions supported by terms of this notice. Proposals selected explore.noaa.gov) (see FOR FURTHER NOAA and OE. Applicants and mission for funding from NOAA scientists shall INFORMATION CONTACT to request a hard participants will be required to provide be effected by an intra-agency fund copy version). The applicant’s last name material (i.e., throughout the mission) transfer. Proposals selected for funding must be typed in the bottom right-hand for this site such as cruise tracks, from a non-NOAA Federal agency will corner of each page. Three hard copies preliminary bathymetry, be funded through an inter-agency of the complete pre-proposal must be characterization of data collected, transfer. Please note: Before non-NOAA postmarked or received by September 3, photographic or other images from the Federal applicants may be funded, they 2003. See ADDRESSES for hard copy mission, and participants interviews, must demonstrate that they have legal submission address. authority to receive funds from another essays, or written materials. Funded B. Proposals applicants will be required to cooperate Federal agency in excess of their with the NOAA Ocean Explorer website appropriation. Because this All proposals must include the team which may include announcement is not proposing to following, packaged in the order listed accommodation of a NOAA web team procure goods or services from here: member. (See Ancillary Information at: applicants, the Economy Act (31 U.S.C. (a) completed proposal cover sheet http://explore.noaa.gov). 1535) is not an appropriate legal basis. (available electronically at http:// There is no limit to the number of pre- explore.noaa.gov); D. Funding Considerations proposals and proposals an applicant (b) maximum half-page executive may submit. Applicants that fail to meet summary; OE will give priority to the following eligibility requirements and guidelines (c) maximum 15-page description of factors when making funding decisions: for submission will not be funded (see the entire project (including work plan, (1) Proposals that are interdisciplinary section V. and VI.) schedule, and collaborations); in approach; (2) Proposals which have (d) summary of relevant current substantial collaborations with multiple Cost Sharing funding support; institutions, government, academia, or Cost sharing or matching is not (e) brief resumes for each investigator, industry; (3) Proposals whose costs are required by this program (However, see including recent relevant publication leveraged with available OE funds; (4) section II.D. Funding Considerations references, The propriety of the level of investment (3)). (f) SF–424, Application for Federal for OE; (5) Applicants which express a Assistance (Rev July 1997) (available willingness to facilitate and participate VI. Guidelines for Submission electronically at http:// in outreach and education activities that There will be a two-stage competition explore.noaa.gov); OE supports; and (6) The heightened with pre-proposals utilized for an initial (g) detailed budget (including all ship level of risk. selection process. Full proposals will be and equipment costs) and

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(h) budget narrative (including Forms must be submitted in triplicate, including those focused on activities justification for non-standard items). each with original signatures. These such as technology development, All pages should be single-sided, forms include: organizing and implementing single-or double-spaced, typewritten SF–424A Budget Information— workshops, and outreach activities, will margin in a minimum 12-point font on Nonconstruction Programs (Rev July be reviewed by correspondence (i.e., at an 81⁄2″ x 11″ page. The bottom right- 1997) least three mail peer-reviews) rather hand corner of every page, excluding SF–424B Assurances— than by independent peer panel review. cover sheet, must be numbered and Nonconstruction Programs The following criteria will be used to labeled with the applicant’s last name. SF–LLL Disclosure of Lobbying review proposals using the Tables and visual materials, including Activities corresponding weight value: charts, graphs, maps, photographs, and Form CD–346 Application for Scientific and Technical merit: other pictorial presentations are to be Funding Assistance, This criterion assesses whether the included in the 15-page limit. The cover Form CD–511 Certification Regarding approach is technically sound and/or sheet, executive summary, current Debarment, Suspension and Other innovative, if the methods are support, resumes, references/literature Responsibility matters: Drug-Free appropriate, and whether there are clear cited, SF–424 Application for Federal Workplace Requirements and Lobbying, project goals and objectives. For the OE Assistance, budgets, and budget Form CD–512 Certifications Regarding review process this includes: (a) The narrative sections need not be counted Debarment, Suspension, Ineligibility scientific and/or technical value of the against the 15-page limit. All and Voluntary Exclusion-Lower Tier work proposed, its probability of information needed for review of the Covered Transactions and Lobbying and success, and the applicant’s scientific proposal should be included in the shall be used in applying for financial and/or technical capabilities to main text, not submitted as appendices. assistance, and, if applicable, please undertake the proposed work; (b) the The proposal must clearly explain submit your most current negotiated anticipated scientific and/or technical each participant’s efforts and their indirect cost rate agreement. impact of the results of the project on respective requests for OE funds, as well All necessary forms may be obtained the advancement of knowledge within as any cost-sharing. Separate budgets via the OE Web site (see: OE the field(s) of the endeavor. (40%) within the single proposal must be Application Kit at http:// Importance/Relevance and provided if more than one funding explore.noaa.gov, for hard copies, see Applicability of Proposal to the Program action is anticipated (e.g., if funds are to ADDRESSES and/or FOR FURTHER Goals: be allocated to more than one institution INFORMATION CONTACT). This criterion ascertains whether or agency). Three hardcopies of the Proposals received after the deadline, there is intrinsic value in the proposed proposal are required. For the proposal or proposals that deviate from the work and/or relevance to NOAA, only, in addition to the hard copies it is format described in this Notice will not international, federal, regional, state, or highly recommended that applicants be accepted. submit a digital version (cdrom, floppy local activities. For the OE review disk, or zip disk) of a complete VII. Pre-Proposal and Proposal Review process this includes the degree to proposal, preferably in Adobe .pdf and Selection Process which the proposal addresses and supports OE’s mission and this notice’s format in order to facilitate proposal A. Pre-Proposal Evaluation review. All proposals, hard copies and objectives. (20%) digital versions, must be postmarked or The OE Director will make the Project Costs: received by October 28, 2003. If decision to request or not request full This criterion evaluates the budget to applicants wish reviewers to receive proposal submissions based on the determine if it is realistic and included color graphics, glossy following factors: (1) Proposal commensurate with the project needs photographs, or other unusual materials, consistency with the format of this and time-frame. For the OE review applicants are encouraged to submit a announcement (2) Consistency with the process this includes the reasonableness total of 10 complete hard copies. For OE program and mission (3) of project costs relative to the scope of further information, see Announcement Applicability of the project objectives to work proposed. (20%) of Opportunity: Application Kit at http:/ OE themes and project funding Overall qualifications of applicants: /www.explore.noaa.gov/ or see considerations (4) Extent to which the This criterion ascertains whether the ADDRESSES and/or FOR FURTHER proposal focuses on a geographical area applicant possesses the necessary INFORMATION CONTACT. that is unknown or poorly known (5) education, experience, training, Intergovernmental Review. Reasonableness of project costs relative facilities, and administrative resources Applications under this program are to available program funds (6) Logistical to accomplish the project. For the OE subject to Executive Order 12372, feasibility (e.g., ship availability), given review process this includes the ‘‘Intergovernmental Review of Federal OE resource availability. The final qualifications of the applicant to Programs.’’ Applicants must contact decision to submit a full proposal is up accomplish the work proposed. (20%) their State’s Single Point of Contact to the applicant. All proposals will be rated by the independent peer reviewers or (SPOC) to find out about and comply B. Proposal Evaluation with the State’s process under EO correspondence review panel according 12372. The names and addresses of the Proposals will be evaluated and rated to an adjectival scale (that will later be SPOCs are listed in the Office of individually by (a) independent peer converted into a score) ranging in order Management and Budget’s Web site: panel review or by (b) correspondence of decreasing merit, as follows: http://www/whitehouse.gov/omb/ review. The evaluators will be Excellent: Comprehensive, thorough grants/spoc.html. composed of scientists, engineers, social and of exceptional merit, one or more scientists, economists, outreach major strengths, no major weaknesses, C. Forms specialists, and resource managers as and any minor weaknesses easily The following government forms shall appropriate to the scope of proposals correctable. be required only from those applicants received in response to this Very Good: Competent, one or more subsequently recommended for award. announcement. Some proposals, major strengths, strengths outweigh

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weaknesses, and major weaknesses anticipates and encourages investigators contracts. Because notice and comment correctable. to seek complementary funding for their are not required, the analytical Good: Reasonable, may be strengths proposed projects through linked requirements of the Regulatory and/or weaknesses, weaknesses do not proposals to these agencies. OE will Flexibility Act (5 U.S.C. 601 et seq.) are significantly detract from the proposal’s work with program managers at other inapplicable. Therefore, a regulatory viability, any major weaknesses are agencies to facilitate such projects. OE flexibility analysis is not required and correctable. places a high priority on proposed co- has not been prepared. This action has Fair: One or more major weaknesses, funded projects that receive high ratings been determined to be not significant for weaknesses outweigh strengths, major through each agency’s respective purposes of Executive Order 12866. weaknesses may possibly be corrected evaluation process. For additional This notice contains collection-of- or minimized. details about these other programs, see: information requirements, which are Poor: One or more major weaknesses, http://oceanexplorer.noaa.gov. subject to the Paperwork Reduction Act. which will be difficult to correct or may The use of Standard Forms 424, 424A, D. Notification of Award not be correctable. 424B, SF–LLL, and CD–346 have been C. Selection Process Successful applicants will receive an approved by OMB under the respective email or letter notifying the applicant control numbers 0348–0043,0348–0044, The Selecting Official (the OE that his/her proposal has been 0348–0040, 0348–0046, and 0605–0001. Director) in consultation with the OE recommended for funding. It is the Notwithstanding any other provision of Chief Scientist will select proposals applicant’s responsibility to notify all law, no person is required to respond to, after considering the peer reviews and collaborators of the award. nor shall any person be subject to a the selection factors listed below. In penalty for failure to comply with, a making the final selections, the E. Disposition of Unsuccessful collection of information subject to the Selecting Official will endeavor to Applications Paperwork Reduction Act, unless that award in rank order unless the proposal Those proposals not ultimately collection of information displays a is justifiably selected out of rank order selected for OE funding will be currently valid OMB control number. based upon one or more of the selection destroyed. factors below. The OE Director will have Dated: July 22, 2003. the final authority and responsibility for VIII. Federal Policies and Procedures Julie Scanlon, decisions regarding proposal selection. Applicable to OE Director, Management and Organizational The selection factors include the A. Environmental Impact Development, Office of Oceanic and following: (1) The availability of Atmospheric Research, National Oceanic and Applicants whose proposed projects program funding (i.e., feasibility for OE Atmospheric Administration. may have an environmental impact to meet applicants requests given [FR Doc. 03–18975 Filed 7–24–03; 8:45 am] should furnish sufficient information to projects costs and logistics); (2) the BILLING CODE 3510–KD–P assist proposal reviewers in assessing extent to which the proposal contributes the potential environmental to a balanced national program in terms consequences of supporting the project. of distribution of funds by geography/ DEPARTMENT OF DEFENSE institution/partners/study areas/ and B. Permits and Authorizations Office of the Secretary project; (3) the avoidance of duplication Applicants are responsible for with other projects funded or obtaining relevant permits and considered for funding by NOAA or Submission of OMB Review; Comment authorizations required under the laws Request other Federal Agencies; (4) the of the jurisdiction in which the work is responsiveness to overall program to be performed and under U.S. law. ACTION: Notice. priorities (section III.C.) and policy For further information about permits, factors (see section III.D., Funding authorizations or viewing marine The Department of Defense has Considerations); (5) applicant’s prior mammals and other protected species in submitted to OMB for clearance, the award performance; and (6) the wild please visit the following following proposal for collection of partnerships with participation of NOAA Fisheries Web site: http:// information under the provisions of the targeted groups. www.nmfs.noaa.gov/prot_res/overview/ Paperwork Reduction Act (44 U.S.C. High proposal peer review ratings permits.html, http:// Chapter 35). may not result in funding for a given www.nmfs.noaa.gov/prot_res/ DATES: Consideration will be given to all proposal. Investigators may be asked to MMWatch/MMViewing.html. comments received by August 25, 2003. modify objectives, work plans, or Title and OMB Number: Application IX. Other Requirements budgets prior to approval of the award. for Department of Defense Impact Aid Subsequent administrative processing The Department of Commerce Pre- for Children with Severe Disabilities; SD will be in accordance with current award Notification Requirements for Form 816 and SD Form 816C; OMB NOAA financial administrative Grants and Cooperative Agreements Number 0704–0425. procedures. contained in the Federal Register Notice Type of Request: Extension. The National Science Foundation, the of October 1, 2001 [66 FR 49917], as Number of Respondents: 50. federal agencies of the National Ocean amended by the Federal Register Notice Responses Per Respondent: 1. Partnership Program, and other NOAA published on October 30, 2002 [67 FR Annual Responses: 50. programs have mission objectives which 66109], is applicable to this solicitation. Average Burden Per Response: 8 involve ocean research and technology hours. development. Examples of NOAA Classification Annual Burden Hours: 400. agencies and programs are: the National Prior notice and an opportunity for Needs and Uses: Department of Undersea Research Program, the public comments are not required by the Defense funds are authorized for local National Sea Grant College Program, the Administrative Procedure Act (5 U.S.C. educational agencies (LEAs) that Arctic Research Office, NOAA Fisheries, 553(a)(2)) or any other law for this educate military dependent students and the National Ocean Service. OE notice concerning grants, benefits, and with severe disabilities and meet certain

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criteria. Eligible LEAs are determined by mailed to the internet address edicsweb.ed.gov, by selecting the their responses to the U.S. Department [email protected]. ‘‘Browse Pending Collections’’ link and of Education (ED) from information they SUPPLEMENTARY INFORMATION: Section by clicking on link number 2298. When submitted on children with disabilities 3506 of the Paperwork Reduction Act of you access the information collection, when they completed the Impact 1995 (44 U.S.C. chapter 35) requires that click on ‘‘Download Attachments ‘‘ to Program form for the Department of the Office of Management and Budget view. Written requests for information Education. This application will be (OMB) provide interested Federal should be addressed to Vivian Reese, requested of LEAs who educate military agencies and the public an early Department of Education, 400 Maryland dependent students with disabilities opportunity to comment on information Avenue, SW, Room 4050, Regional who have been deemed eligible for U.S. collection requests. OMB may amend or Office Building 3, Washington, DC Department of Education Impact Aid waive the requirement for public 20202–4651 or to the e-mail address program, to determine if they meet the consultation to the extent that public [email protected]. Requests may also criteria to receive additional funds from participation in the approval process be electronically mailed to the internet the Department of Defense due to high would defeat the purpose of the address [email protected] or faxed to special education cost of military information collection, violate State or 202–708–9346. Please specify the dependents with severe disabilities that Federal law, or substantially interfere they serve. complete title of the information with any agency’s ability to perform its collection when making your request. Affected Public: State, local, or tribal statutory obligations. The Leader, government. Regulatory Information Management Comments regarding burden and/or Frequency: On occasion. Group, Office of the Chief Information the collection activity requirements Respondent’s Obligation: Required to Officer, publishes that notice containing should be directed to Joseph Schubart at obtain or retain benefits. proposed information collection his e-mail address [email protected]. OMB Desk Officer: Ms. Jackie Zeiher. Individuals who use a Written comments and requests prior to submission of these requests to OMB. Each proposed telecommunications device for the deaf recommendations on the proposed (TDD) may call the Federal Information information collection should be sent to information collection, grouped by Relay Service (FIRS) at 1–800–877– Ms. Zeiher at the Officer of Management office, contains the following: (1) Type 8339. and Budget, Desk Officer for DoD, Room of review requested, e.g. new, revision, 10236, New Executive Office Building, extension, existing or reinstatement; (2) [FR Doc. 03–18995 Filed 7–24–03; 8:45 am] Title; (3) Summary of the collection; (4) Washington, DC 20503. BILLING CODE 4000–01–P DOD Clearance Officer: Mr. Robert Description of the need for, and Cushing. Written requests for copies of proposed use of, the information; (5) the information collection proposal Respondents and frequency of DEPARTMENT OF EDUCATION should be sent to Mr. Cushing, WHS/ collection; and (6) Reporting and/or DIOR, 1215 Jefferson Davis Highway, Recordkeeping burden. OMB invites Submission for OMB Review; Suite 1204, Arlington, VA 22202–4302. public comment. Comment Request. Dated: July 21, 2003. Dated: July 22, 2003. AGENCY: Department of Education. Patricia L. Toppings, Angela C. Arrington, Alternate OSD Federal Register, Liaison Leader, Regulatory Information Management ACTION: Correction notice. Officer, Department of Defense. Group, Office of the Chief Information Officer. [FR Doc. 03–18970 Filed 7–24–03; 8:45 am] Office of Postsecondary Education SUMMARY: On July 14, 2003, the BILLING CODE 5001–08–M Type of Review: Extension. Department of Education published a Title: Ronald E. McNair 30-day regular public comment period Postbaccalaureate Achievement Program notice in the Federal Register (Page DEPARTMENT OF EDUCATION Annual Performance Report Form. 41566, Column 2) for the information Frequency: Annually. collection, ‘‘Case Service Report’’. The Submission for OMB Review; Affected Public: Not-for-profit ‘‘Type of Review’’ is being corrected Comment Request institutions; State, local or Tribal Gov’t, from ‘‘Extension’’ to ‘‘Reinstatement’’. SEAs or LEAs. AGENCY: Department of Education. The Leader, Regulatory Information Reporting and Recordkeeping Hour SUMMARY: The Leader, Regulatory Management Group, Office of the Chief Burden: Information Management Group, Office Information Officer, hereby issues a Responses: 156. of the Chief Information Officer invites correction notice as required by the Burden Hours: 702. Paperwork Reduction Act of 1995. comments on the submission for OMB Abstract: McNair Program grantees review as required by the Paperwork must submit the report annually. The FOR FURTHER INFORMATION CONTACT: Reduction Act of 1995. report provides the Department of Sheila Carey at her e-mail address DATES: Interested persons are invited to Education with information needed to [email protected]. submit comments on or before August evaluate a grantee’s performance and Dated: July 21, 2003. 25, 2003. compliance with program requirements ADDRESSES: Written comments should and to award prior experience points in Angela C. Arrington, be addressed to the Office of accordance with the program Leader, Regulatory Information Management Information and Regulatory Affairs, regulations. The data collected is also Group, Office of the Chief Information Officer. Attention: Lauren Wittenberg, Desk aggregated to provide national [FR Doc. 03–18950 Filed 7–24–03; 8:45 am] Officer, Department of Education, Office information on project participants and BILLING CODE 4000–01–P of Management and Budget, 725 17th program outcomes. Street, NW., Room 10235, New Requests for copies of the submission Executive Office Building, Washington, for OMB review; comment request may DC 20503 or should be electronically be accessed from http://

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DEPARTMENT OF EDUCATION The approaches an applicant may take Note: NIDRR supports the goals of to meet this requirement may include President Bush’s New Freedom Initiative RIN 1820 ZA17 one or more of the following (34 CFR (NFI). The NFI can be accessed on the Internet at the following site: http:// National Institute on Disability and 350.40(b)): (1) Proposing project objectives www.whitehouse.gov/news/ Rehabilitation Research (NIDRR) freedominitiative/freedominitiative.html. addressing the needs of individuals AGENCY: Office of Special Education and with disabilities from minority The final priorities are in concert with Rehabilitative Services, Department of backgrounds. NIDRR’s Long-Range Plan (the Plan). Education. (2) Demonstrating that the project will The Plan is comprehensive and ACTION: Notice of final priorities. address a problem that is of particular integrates many issues relating to significance to individuals with disability and rehabilitation research SUMMARY: The Assistant Secretary for disabilities from minority backgrounds. topics. While applicants will find many Special Education and Rehabilitative (3) Demonstrating that individuals sections throughout the Plan that Services (OSERS) announces final from minority backgrounds will be support potential research to be priorities for Research Projects, a included in study samples in sufficient conducted under these final priorities, a Research Infrastructure Capacity numbers to generate information specific reference is included for each Building Project, a Technical Assistance pertinent to individuals with disabilities topic presented in this notice. The Plan Resource Center on Parenting with a from minority backgrounds. can be accessed on the Internet at the Disability Project, and Development (4) Drawing study samples and following site: http://www.ed.gov/ Projects under the Disability and program participant rosters from offices/OSERS/NIDRR/Products. Rehabilitation Research Projects (DRRP) populations or areas that include Through the implementation of the Program of NIDRR for fiscal year (FY) individuals from minority backgrounds. Plan, NIDRR seeks to: (1) Improve the 2003 and later years. We take these (5) Providing outreach to individuals quality and utility of disability and actions to focus research attention on with disabilities from minority rehabilitation research; (2) foster an areas of national need. We intend these backgrounds to ensure that they are exchange of expertise, information, and priorities to improve the rehabilitation aware of rehabilitation services, clinical training to facilitate the advancement of services and outcomes for individuals care, or training offered by the project. knowledge and understanding of the with disabilities. (6) Disseminating materials to or unique needs of traditionally EFFECTIVE DATE: This priority is effective otherwise increasing the access to underserved populations; (3) determine August 25, 2003. disability information among minority best strategies and programs to improve populations. FOR FURTHER INFORMATION CONTACT: rehabilitation outcomes for underserved Under the DRRP program, we define Donna Nangle, U.S. Department of populations; (4) identify research gaps; a research project as basic or applied (34 Education, 400 Maryland Avenue, SW., (5) identify mechanisms of integrating CFR 350.5). Research is classified on a room 3412, Switzer Building, research and practice; and (6) continuum from basic to applied: Washington, DC 20202–2645. disseminate findings. (1) Basic research is research in which We published a separate notice of Telephone: (202) 205–5880 or via the the investigator is concerned primarily each proposed priority (NPP) in the Internet: [email protected]. with gaining new knowledge or If you use a telecommunications Federal Register on May 9, 2003. understanding of a subject without device for the deaf (TDD), you may call Priority 1—Research Projects (84.133A– reference to any immediate application the TDD number at (202) 205–4475. 1) (68 FR 25014). Individuals with disabilities may or utility. Priority 2—Research Infrastructure (2) Applied research is research in obtain this document in an alternative Capacity Building (84.133A–4) (68 FR which the investigator is primarily format (e.g., Braille, large print, 25009). interested in developing new audiotape, or computer diskette) on Priority 3—Technical Assistance knowledge, information, or request to the contact person listed Resource Center on Parenting with a understanding which can be applied to under FOR FURTHER INFORMATION Disability (84.133A–5) (68 FR 25017). a predetermined rehabilitation problem CONTACT. Priority 4—Development Projects or need. Applied research builds on (84.133A–7) (68 FR 25006). SUPPLEMENTARY INFORMATION: selected findings from basic research. We have combined these four Disability and Rehabilitation Research In carrying out a research activity priorities in this notice of final priorities Projects (DRRP) Program under this program (34 CFR 350.13), a (NFP). grantee must: There are no significant differences The purpose of the DRRP program is (a) Identify one or more hypotheses; between the NPPs and this NFP. to plan and conduct research, and demonstration projects, training, and (b) Based on the hypotheses Analysis of Comments and Changes related activities that help to maximize identified, perform an intensive In response to our invitation in the the full inclusion and integration of systematic study directed toward— NPPs, several parties submitted individuals with disabilities into society (1) New or full scientific knowledge; comments. and to improve the effectiveness of or We discuss these comments and services authorized under the (2) Understanding of the subject or changes in the Analysis of Comments Rehabilitation Act of 1973, as amended problem studied. and Changes section published as an (the Act). Under the DRRP program, we define appendix to this notice. An applicant for assistance under this a development activity as the use of program must demonstrate in its knowledge and understanding gained Note: This NFP does not solicit applications. In any year in which we choose application how it will address, in from research to create materials, to use one or more of these priorities, we whole or in part, the needs of devices, systems, or methods beneficial invite applications through a notice in the individuals with disabilities from to the target population, including Federal Register. A notice inviting minority backgrounds (34 CFR design and development of prototypes applications for FY 2003 awards was 350.40(a)). and processes. published in the Federal Register on May 29,

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2003 (68 FR 32026). When inviting • Disseminate findings to appropriate arrangements may facilitate meeting the applications we designate each priority as audiences, including information on objectives for people with disabilities in absolute, competitive preference, or best practices, where applicable. Healthy People 2010. The references for invitational. The effect of each type of An applicant must propose research this topic can be found in the Plan, priority follows: activities and dissemination of findings chapter 2, Dimensions of Disability: Absolute priority: Under an absolute under one of the following topics: Disability, Employment, and priority, we consider only applications (a) Self-Determination in Transition to Independent Living, and chapter 6, that meet the priority (34 CFR Adulthood for Youth with Disabilities: Research on Social Roles. 75.105(c)(3)). Under this topic, a project must conduct (d) Older Women and Falls: Under Competitive preference priority: research and disseminate information this topic, a project must identify and Under a competitive preference priority, about factors that enhance and promote compare outcomes-oriented we give competitive preference to an self-determination for youth with rehabilitation interventions for older application by either (1) Awarding disabilities who are transitioning into women to overcome the disabilities and additional points, depending on how adulthood. The project may include secondary conditions associated with well or the extent to which the research on interventions that (1) enable falls and to prevent secondary falls and application meets the priority (34 CFR successful transition to life activities other complications. The project must 75.105(c)(2)(i)); or (2) selecting an such as independent living, higher examine risk factors for falls (e.g., age, application that meets the priority over education, and employment; and (2) disability, medications use, health, an application of comparable merit that improve functional outcomes such as functional ability, environmental does not meet the priority (34 CFR enhanced memory, learning, visual hazards). The references for this topic 75.105(c)(2)(ii)). perception, auditory reception, literacy, can be found in the Plan, chapter 2, Invitational priority: Under an and self-advocacy. The reference for this Dimensions of Disability: Emerging invitational priority, we are particularly topic can be found in the Plan, chapter Universe of Disability, and chapter 4, interested in applications that meet the 3, Employment Outcomes: Transition Health and Function: Research on invitational priority. However, we do from School to Work. Trauma Rehabilitation; Research on not give an application that meets the (b) Examining Violence Against Aging. priority a competitive or absolute People With Disabilities: Under this (e) Issues in Asset Accumulation and preference over other applications (34 topic, a project must conduct research Tax Policy for People with Disabilities: CFR 75.105(c)(1)). and disseminate information on Under this topic, a project must conduct Background violence against persons with research on fiscal and social disabilities. Activities may include environmental barriers to economic The background statements for the research on statistics related to criminal empowerment and self-sufficiency for following priorities were published in victimization of people with disabilities people with disabilities and the impact the NPPs on May 9, 2003. compiled under the 1998 Crime Victims of legislation designed to promote Priorities with Disabilities Awareness Act (Pub. L. economic self-sufficiency and facilitate 301–105); study of data from enhanced community integration. The project Priority 1—Research Projects crime incident reports; and analysis of must conduct systematic analysis of the The Assistant Secretary will fund one data and research findings on the relationship between tax policy and or more DRRPs that will focus on impact of violence on specific asset accumulation for individuals with stabilizing and improving lives of populations such as, but not limited to, disabilities and improved economic and persons with disabilities. In carrying out individuals with cognitive or community integration outcomes. This the purposes of this priority, projects intellectual disabilities, women with includes testing the impact of asset awarded under each of the following disabilities, individuals with sensory accumulation on economic topics must, in consultation with the disabilities, and individuals with improvements and community NIDRR project officer: mobility disabilities. The reference for integration for individuals with • Coordinate and establish this topic can be found in the Plan, disabilities. The reference for this topic partnerships, as appropriate, with other chapter 2, Dimensions of Disability: can be found in the Plan, chapter 3, academic institutions and organizations Emerging Universe of Disability. Employment Outcomes: Economic that are relevant to the project’s (c) Family and Cultural Aspects of Policy and Labor Market Trends. proposed activities; Independent Living: Under this topic, a (f) Identifying Opportunities and • Demonstrate use of culturally project must conduct research and Barriers to Entrepreneurship for People appropriate data collection, evaluation, disseminate information on how with Disabilities: Under this topic, a dissemination, training and research individuals with disabilities draw upon project must conduct research on ways methodologies, and significant their families (or those with whom they to improve employment outcomes of knowledge of the needs of individuals share living arrangements) to obtain individuals with disabilities through with disabilities from traditionally necessary supports such as economic self-employment and entrepreneurial underserved populations; assistance, informal and formal care strategies and how to train both people • Involve, as appropriate, individuals giving, and emotional nurturing. with disabilities and counselors in with disabilities or their family Activities may include: (1) Identifying successful use of these strategies. The members, or both, in all aspects of the factors that help or hinder NFI goals research must include analysis of the research as well as in the design of regarding educational attainment, home effects of policies and practices of the clinical services and dissemination ownership, and full access in vocational rehabilitation system; related activities; community life; (2) research on ways programs such as those of the Small • Demonstrate how the research that family and shared-community Business Administration; and other project can transfer research findings to living arrangements may facilitate public, private, or nonprofit practical applications in planning, independence and help implement the employment organizations on self- policy-making, program administration, Supreme Court’s Olmstead v. L.C. employment options for individuals and delivery of services to individuals ruling; and (3) research on how family with disabilities. The reference for this with disabilities; and and shared-community living topic can be found in the Plan, chapter

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3, Employment Outcomes: Economic conference focused on the funded area establish partnerships, as appropriate, Policy and Labor Market Trends. of research and related topics; with other projects sponsored by • In the fourth year of the grant, OSERS, academic institutions, and Priority 2—Research Infrastructure publish and disseminate a organizations that are relevant to the Capacity Building comprehensive report on the outcomes project’s proposed activities; The Assistant Secretary will fund one and proceedings of the conference; • Demonstrate how the project will DRRP that will focus on a research, • Demonstrate how the research yield measurable results for people with development, and dissemination project project can transfer research findings to disabilities; on Research Infrastructure Capacity practical applications in planning, • Identify specific performance Building. The reference for this topic policy-making, program administration, targets and propose outcome indicators, can be found in the Plan, chapter 9, and delivery of services to individuals along with time lines to reach these Capacity Building: Priorities in Capacity with disabilities; and targets; and Building. In carrying out this priority • Conduct ongoing program • Using information developed from the DRRP must: evaluation and produce a closing report the project’s dissemination, training, (1) Develop and evaluate an describing research outcomes, as they and technical assistance activities, with innovative method(s) for establishing relate to the research goals and emphasis on materials from NIDRR long-term collaborative research objectives, and future directions for projects, provide materials, partnerships, with an emphasis on research infrastructure development and consultation, technical assistance, and relationships among minority entities, capacity building. related capacity-building activities to NIDRR grantees on how to assist parents Indian tribes, and nonminority entities; Priority 3—Resource and Technical with disabilities. (2) Research, develop, and evaluate Assistance Center on Parenting with a strategies to assess the efficacy of Disability Priority 4—Development Projects existing research theories, methodologies, and measures for The Assistant Secretary will fund one The Assistant Secretary will fund one studying and describing DRRP that will focus a dissemination, or more DRRPs that will focus on underrepresented individuals with utilization, training, and technical stabilizing and improving lives of disabilities from minority racial and assistance project to be a ‘‘Resource and persons with disabilities. In carrying out ethnic populations and their needs; Technical Assistance Center on the purposes of the priority, projects (3) Research, identify and modify or Parenting with a Disability.’’ The awarded under each of the following develop, and evaluate scientifically references for this topic can be found in topics, in consultation with the NIDRR the Plan, chapter 2, Dimensions of project officer, must: valid measurement strategies and • methodologies for research involving Disability: Disability, Employment, and Coordinate and establish the study of underrepresented minority Independent Living, and chapter 8, partnerships, as appropriate, with other racial and ethnic populations; Knowledge Dissemination and academic institutions and organizations determine their efficacy; and examine Utilization: Overview. The DRRP must: that are relevant to the project’s (1) Develop quality standards to guide the implications of introducing newly proposed activities; the identification of information for • Demonstrate use of culturally developed approaches designed dissemination; appropriate data collection, evaluation, specifically for the study of this (2) Provide information and technical dissemination, training, and population; assistance to people with disabilities development methodologies and (4) Develop and evaluate research who are or wish to be parents. A variety significant knowledge of the needs of principles or standards for culturally of methods and tools will be developed individuals with disabilities from appropriate and linguistically to provide information and technical traditionally underserved populations; competent disability and rehabilitation assistance. Tools might include such • Involve, as appropriate, individuals research, and disseminate guidelines; items as: catalogues and listings of with disabilities or their family and assistive technology, fact sheets, and members, or both, in all aspects of (5) Develop, implement, and evaluate articles for publication in various development as well as in the design of approaches for disseminating research media. Methods to reach interested clinical services and dissemination findings, information about best parties might include: interactive activities; practices for research involving features of the Internet, wide area • Demonstrate how the project will underrepresented minority racial and telephone service, presentations at yield measurable results for people with ethnic populations, and information meetings or conferences and personal disabilities; about research collaboration. visits; • Identify specific performance In carrying out the purposes of the (3) Develop parent-to-parent support targets and propose outcome indicators, priority, the DRRP must: methods, including approaches for along with time lines to reach these • In the first three months of the sharing of information about ‘‘best targets; and grant, develop and implement a practices’’ in parenting with a disability; • Disseminate findings on products research partnership plan ensuring that (4) Train parents, potential parents, and technologies to appropriate all activities are predominantly focused service providers, and others on issues audiences, including information on on research infrastructure capacity relating to parenting with a disability best practices, where applicable. building and provide for mutual benefit and the research, information, and An applicant must propose for each member of the partnership, services available to them; and development activities and including persons with disabilities or (5) Evaluate project technical dissemination of findings under one of their representatives; assistance and information the following topics: • In the first year of the grant, dissemination activities. (a) Voting Access and Privacy. Under implement a plan to disseminate In carrying out the purposes of the this topic, a project must develop research results; priority, the DRRP must: technologies, strategies, and approaches • In the third year of the grant, • Through consultation with the that can be used to improve and expand conduct a state-of-the-science NIDRR project officer, coordinate and access, including physical accessibility,

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to voting accurately, independently, and determined that the benefits of the Dated: July 22, 2003. privately for all citizens with priorities justify the costs. Robert H. Pasternack, disabilities. Voting is a citizen’s most Assistant Secretary for Special Education and basic right. Yet many individuals with Summary of Potential Costs and Rehabilitative Services. disabilities find it difficult, if not Benefits Appendix impossible, to vote without a poll The potential costs associated with worker’s or another individual’s Analysis of Comments and Changes these priorities are minimal while the assistance. Development products may benefits are significant. Grantees may General address, but are not limited to, voting Comment: Several commenters raised apparatus, accommodations anticipate costs associated with completing the application process in concerns that NIDRR did not publish a information, training materials (i.e., priority that specifically targeted Native books, guidelines, electronic materials) terms of staff time, copying, and mailing Americans. for public elections officials and or delivery. The use of e-Application Discussion: The priority on Research citizens, and cost analysis and technology reduces mailing and copying Infrastructure Capacity Building includes evaluation of products and technologies costs significantly. Native Americans as a proposed target group. to enhance voting access for citizens Nothing in the other published priorities The benefits of the DRRP Program precludes applicants from proposing Native with disabilities. The reference for this have been well established over the Americans as the target population for the topic can be found in the Plan, chapter years in that similar projects have been proposed research. The peer review process 5, Technology for Access and Function: successfully completed. These final will evaluate the merits of the proposal. Research to Improve Accessibility of priorities will generate new knowledge Changes: None. Telecommunications and Information through research to focus on stabilizing Comment: One commenter expressed Technology. several concerns about references to racial, (b) Technologies for Families and and improving lives of persons with ethnic, and linguistic minority populations Caregivers. Under this topic, a project disabilities. in the NIDRR priorities. These concerns must develop technologies, strategies, The benefit of these final priorities included: (1) NIDRR’s use of a standard and approaches that will facilitate and and project requirements will be the statement about inclusion of minorities in research activities; (2) combining ethnic improve the continuum of activities and establishment of new DRRP projects that categories into one proposed priority is reduce the demands involved in care generate, disseminate, and promote the inappropriate; (3) NIDRR does not ensure giving for individuals with disabilities. use of new information that will that applicants demonstrate ‘‘who, what, The upsurge of programs such as ‘‘Long- improve the options for disabled when, and where’’ in addressing the needs of Term Care’’ and ‘‘Home-Health Care’’ individuals to perform regular activities individuals with disabilities from minority has stimulated the need for tools and in the community. backgrounds; and (4) the American Indian strategies that enable individuals with and Alaska Native populations are a disabilities to live longer and more Applicable Program Regulations: 34 culturally and linguistically diverse productively in their communities. New CFR part 350. population. Commenters also noted that many caregivers do not speak, write, or read and improved technologies for care Electronic Access to This Document the English language, and they questioned giving will help implement the Supreme whether it was likely that potential grantees Court’s Olmstead v. L.C. decision. You may view this document, as well would deal with caregivers who do not Development products may address, but as all other Department of Education speak, write, or read the English language or are not limited to, evaluation and documents published in the Federal would address minority backgrounds assessment of existing technology Register, in text or Adobe Portable including American Indians and Alaska solutions, accommodations information, Document Format (PDF) on the Internet Natives with disabilities. training materials (i.e., books, Discussion: (1) The standard statement that at the following site: http://www.ed.gov/ each NIDRR applicant must demonstrate in guidelines, electronic materials) for legislation/FedRegister. its application how it will address, in whole public officials and citizens, and cost or in part, the needs of individuals with analysis and evaluation of products and To use PDF you must have Adobe Acrobat Reader, which is available free disabilities from minority backgrounds is technologies to enhance community required by 34 CFR 350.40(a), and as a result, integration, personal assistance services, at this site. If you have questions about cannot be changed by this priority. (2) and independent living for citizens with using PDF, call the U.S. Government Nothing in these priorities precludes an disabilities. The reference for this topic Printing Office (GPO), toll free, at 1– applicant from focusing on any racial, ethnic, can be found in the Plan, chapter 5, 888–293–6498; or in the Washington, or minority population, including American Technology for Access and Function: DC, area at (202) 512–1530. Indians and Alaska Natives. (3) In section 350.40(b), NIDRR lists some of the Assistive Technology for Individuals. Note: The official version of this document approaches applicants may take to meet the Executive Order 12866 is published in the Federal Register. Free requirement in § 350.40(a), including, for Internet access to the official edition of the example, addressing a problem that is of This NFP has been reviewed in Federal Register and the Code of Federal particular significance to individuals with accordance with Executive Order 12866. Regulations is available on GPO Access at: disabilities from minority backgrounds and Under the terms of the order, we have http://www.access.gpo.gov/nara/index.html. generating information pertinent to assessed the potential costs and benefits individuals with disabilities from minority of this regulatory action. (Catalog of Federal Domestic Assistance backgrounds. (4) In the background section to The potential costs associated with Number 84.133A, Disability Rehabilitation these priorities, language barriers and lack of the NFP are those resulting from Research Project) understanding about cultural values and beliefs are identified as challenges to the statutory requirements and those we Program Authority: 29 U.S.C. 762(g) and effectiveness of rehabilitation services have determined as necessary for 764(a). received by individual with disabilities form administering this program effectively minority backgrounds. An applicant may and efficiently. choose to include linguistic or cultural issues In assessing the potential costs and in the proposed research activities. However, benefits—both quantitative and NIDRR has no basis for requiring that all qualitative—of this NFP, we have applicants adopt the same approach or

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address the same issue. The peer review Integration Outcomes Centers, and General Requirements of Rehabilitation process will evaluate the merits of the Health and Function Centers under the Research and Training Centers proposal. Rehabilitation Research and Training RRTCs must: Changes: None. Centers (RRTC) Program under the Violence: • Carry out coordinated advanced Comment: One commenter expressed an National Institute on Disability and programs of rehabilitation research; opinion that focusing on analysis of ‘‘extant Rehabilitation Research (NIDRR) for • Provide training, including data from crime reports’’ might unnecessarily fiscal year (FY) 2003 and later years. We graduate, pre-service, and in-service limit the scope of research in the proposed take these actions to focus research training to help rehabilitation personnel DRRP priority on violence. attention on areas of national need. We more effectively provide rehabilitation Discussion: NIDRR agrees that it might be intend these priorities to improve the services to individuals with disabilities; valuable to collect new data to answer rehabilitation services and outcomes for • Provide technical assistance to research questions in this area. Nothing in individuals with disabilities. the priority precludes an applicant from individuals with disabilities, their suggesting such an approach. However, EFFECTIVE DATE: These priorities are representatives, providers, and other NIDRR has no basis for requiring all effective August 25, 2003. interested parties; applicants to collect new data. The peer • Disseminate informational materials review process will evaluate the merits of the FOR FURTHER INFORMATION CONTACT: to individuals with disabilities, their proposal. Donna Nangle, U.S. Department of representatives, providers, and other Changes: None. Education, 400 Maryland Avenue, SW., interested parties; Technical Assistance Resource Center room 3412, Switzer Building, • Serve as centers for national Comment: One commenter suggested that Washington, DC 20202–2645. excellence in rehabilitation research for the Technical Assistance Resource Center Telephone: (202) 205–5880 or via the individuals with disabilities, their provide information on coordinated services Internet: [email protected]. representatives, providers, and other for parents who are deaf or hard of hearing. If you use a telecommunications interested parties; and Discussion: NIDRR agrees that this might • Involve individuals with be a useful service. Nothing in the priority device for the deaf (TDD), you may call the TDD number at (202) 205–4475. disabilities and individuals from prohibits an applicant from suggesting this minority backgrounds as participants in approach. However, NIDRR has no basis for Individuals with disabilities may research as well as training. requiring that all applicants take this obtain this document in an alternative The Department is particularly approach. The peer review process will format (e.g., Braille, large print, evaluate the merits of the proposal. interested in ensuring that the Changes: None. audiotape, or computer diskette) on expenditure of public funds is justified request to the contact person listed Research Methods for Underserved by the execution of intended activities under FOR FURTHER INFORMATION Populations and the advancement of knowledge and, CONTACT. thus, has built this accountability into Comment: One commenter expressed the selection criteria. Not later than concern that Native Americans and Alaska SUPPLEMENTARY INFORMATION: Natives are listed with other minority three years after the establishment of population categories as a potential focus of Rehabilitation Research and Training any RRTC, NIDRR will conduct one or this priority and recommended that the Centers more reviews of the activities and priority should specify the target population achievements of the Center. In so that researchers studying different ethnic We may make awards for up to 60 accordance with the provisions of 34 populations do not have to compete against months through grants or cooperative CFR 75.253(a), continued funding each other. agreements to public and private depends at all times on satisfactory Discussion: NIDRR is committed to agencies and organizations, including performance and accomplishment. improving research methods for studying all institutions of higher education, Indian minority and ethnic populations. Nothing in Note: NIDRR supports the goals of the priority precludes an applicant from tribes, and tribal organizations, to President Bush’s New Freedom Initiative targeting a specific population. The peer conduct research, demonstration, and (NFI). The NFI can be accessed on the review process will evaluate the merits of the training activities regarding Internet at the following site: http:// proposal. rehabilitation in order to enhance www.whitehouse.gov/news/ Changes: None. opportunities for meeting the needs of, freedominitiative/freedominitiative.html. [FR Doc. 03–19015 Filed 7–24–03; 8:45 am] and addressing the barriers confronted The final priorities are in concert with by, individuals with disabilities in all BILLING CODE 4000–01–P NIDRR’s Long-Range Plan (the Plan). aspects of their lives. Each RRTC must The Plan is comprehensive and be operated by or in collaboration with integrates many issues relating to DEPARTMENT OF EDUCATION an institution of higher education or disability and rehabilitation research providers of rehabilitation or other topics. While applicants will find many [RIN 1820 ZA18] appropriate services. RRTCs conduct sections throughout the Plan that coordinated and integrated advanced National Institute on Disability and support potential research to be programs of research targeted toward Rehabilitation Research (NIDRR) conducted under these final priorities, a the production of new knowledge to specific reference is included for the AGENCY: Office of Special Education and improve rehabilitation methodology and topics presented in this notice. The Plan Rehabilitative Services, Department of service delivery systems, alleviate or can be accessed on the Internet at the Education. stabilize disability conditions, or following site: http://www.ed.gov/ ACTION: Notice of final priorities. promote maximum social and economic offices/OSERS/NIDRR/Products. independence for persons with Through the implementation of the SUMMARY: The Assistant Secretary for disabilities. Additional information on Plan, NIDRR seeks to: (1) Improve the Special Education and Rehabilitative the RRTC program can be found at: quality and utility of disability and Services (OSERS) announces final http://www.ed.gov/officers/OSERS/ rehabilitation research; (2) foster an priorities for a Disability Demographics NIDRR/Programs/ exchange of expertise, information, and and Statistics Center, Community res_program.html#RRTC. training to facilitate the advancement of

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knowledge and understanding of the Background cycle and publish a comprehensive unique needs of traditionally The background statements for the report on the final outcomes of the underserved populations; (3) determine following priorities were published in conference in the fourth year of the best strategies and programs to improve the NPPs on May 9, 2003. grant cycle. This conference must rehabilitation outcomes for underserved include materials from experts internal populations; (4) identify research gaps; Priorities and external to the center; • (5) identify mechanisms of integrating Priority 1—Disability Demographics Develop a systematic plan for research and practice; and (6) And Statistics Center widespread dissemination of disseminate findings. informational materials based on We published a separate notice of The Assistant Secretary will fund one knowledge gained from the Center’s each proposed priority (NPPs) in the RRTC on disability demographics and research activities, and disseminate the Federal Register on May 9, 2003. statistics. The purpose of this RRTC is materials to persons with disabilities, to support rigorous collaborative Priority 1—Disability Demographics and their representatives, service providers, research to generate new knowledge that Statistics Center (84.133B–1) (68 FR and other interested parties. advances evidence-based decision • 25004). Coordinate on research projects of making to improve the lives of persons Priority 2—Community Integration mutual interest with relevant NIDRR- with disabilities. The references for this Outcomes Centers (84.133B–5) (68 FR funded projects as identified through topic can be found in the Plan, chapter 25019). consultation with the NIDRR project 2, Dimensions of Disability: Age, Priority 3—Health and Function Centers officer; Gender, Education, Income, and • (84.133B–7) (68 FR 25011). Involve individuals with Geography; chapter 7, Associated We have combined these three disabilities in planning and Disability Areas: Disabilty Statistics. priorities in this notice of final priorities implementing its research, training, and The RRTC must: (NFP). dissemination activities, and in (1) Conduct analyses using a variety evaluating the Center; Analysis of Comments and Changes of data sources, including those that • Demonstrate in its application how assess facilitators and barriers to In response to our invitation in the it will address, in whole or in part, the participation in society, to address the NPPs, we received 269 comments. needs of individuals with disabilities status and understanding of the We discuss these comments and from minority backgrounds; population of individuals with • changes in the Analysis of Comments Demonstrate how the RRTC project disabilities; will yield measurable results for people and Changes section published as an (2) Identify, develop as necessary, and appendix to this notice. with disabilities; validate a series of best-practice • Identify specific performance There are no significant differences approaches that facilitate the selection targets and propose outcome indicators, between the NPPs and this NFP. of appropriate measures, ensure a high along with time lines to reach these Note: This notice does not solicit degree of power and representativeness targets; and applications. In any year in which we choose of the sample, and apply techniques of • Demonstrate how the RRTC project to use one or more of these priorities, we will interviewing and data collection that can transfer research findings to do so through a notice in the Federal lead to high levels of quality and practical applications in planning, Register. A notice inviting applications for relevance of information while policy-making, program administration, FY 2003 awards was published in the minimizing the burden on respondents; and delivery of services to individuals Federal Register on May 29, 2003 (68 FR (3) Identify, develop as necessary, and 32023). When inviting applications we with disabilities. designate these priorities as absolute, evaluate instruments, data sources, administrative records, or other sources Priority 2—Community Integration competitive preference, or invitational. The Outcomes Centers effect of each type of priority follows: that allow Federal policymakers to use the International Classification of The Assistant Secretary will fund up Absolute priority: Under an absolute Functioning, Disability, and Health to four RRTCs that will focus on priority, we consider only applications (ICF) classification system for evidence- improving the community integration that meet the priority (34 CFR based decisionmaking; outcomes of persons with disabilities. 75.105(c)(3)). (4) Serve as a resource on disability Each RRTC must: Competitive preference priority: statistics and demographics for Federal (1) Identify, develop, and evaluate Under a competitive preference priority, and other government agencies, rehabilitation techniques to address its we give competitive preference to an policymakers, consumers, advocates, respective area of research and improve application by either (1) awarding researchers, and others; and outcomes for its designated population additional points, depending on how (5) Develop quality standards to guide group; well or the extent to which the the identification of information for (2) Develop, implement, and evaluate application meets the priority (34 CFR dissemination and conduct all activities a comprehensive plan for training 75.105(c)(2)(i)); or (2) selecting an to prepare, produce, and disseminate critical stakeholders, e.g., consumers application that meets the priority over findings in a variety of media, such as and their family members, practitioners, an application of comparable merit that web-based and print documents, service providers, researchers, does not meet the priority (34 CFR meetings and conferences, and policymakers, and the community; 75.105(c)(2)(ii)). teleconferences that are targeted to the (3) Provide technical assistance to Invitational priority: Under an wide range of audiences who need such critical stakeholders, as appropriate, invitational priority, we are particularly information. e.g., consumers and their family interested in applications that meet the In addition to the activities proposed members, practitioners, service invitational priority. However, we do by the applicant to carry out these providers, and the community, to not give an application that meets the purposes, the RRTC must: facilitate utilization of research findings priority a competitive or absolute • Conduct a state-of-the-science in its respective area of research; and preference over other applications (34 conference on its respective area of (4) Develop a systematic plan for CFR 75.105(c)(1)). research in the third year of the grant widespread dissemination of

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informational materials based on community-based research, training, Independent Living and Community knowledge gained from the Center’s and dissemination activities regarding Integration: Independent Living and research activities, and disseminate the factors, such as aging, healthcare Community Integration Concepts; materials to persons with disabilities, utilization, and caregiver characteristics, Expanding the Theoretical Framework; their representatives, service providers, that assist and hinder community and Directions of Future Research on and other interested parties. integration for adults with I/DD. The Independent Living and Community In addition to the activities proposed references for this topic can be found in Integration. by the applicant to carry out these the Plan, chapter 4, Health and (f) Substance Abuse: This Center must purposes, each RRTC must: Function: Research on Aging with a conduct research, disseminate • Conduct a state-of-the-science Disability; and chapter 6, Independent information, and provide training on conference on its respective area of Living and Community Integration: community-based interventions, research in the third year of the grant Independent Living and Community partnerships, and service delivery cycle and publish a comprehensive Integration Concepts; Expanding the models that improve community report on the final outcomes of the Theoretical Framework; and Directions integration outcomes for people with conference in the fourth year of the of Future Research on Independent disabilities who are recovering from grant cycle; Living and Community Integration. substance abuse problems. The target • Coordinate on research projects of (c) Positive Behavioral Support in population may or may not include mutual interest with relevant NIDRR- Community Settings: This Center must individuals with co-occurring disorders funded projects as identified through conduct research, training, and such as mental illness. The reference for consultation with the NIDRR project dissemination activities on positive this topic can be found in the Plan, officer; behavioral support interventions that chapter 2, Dimensions of Disability: • Involve individuals with assist and sustain community Emerging Universe of Disability. disabilities in planning and integration efforts for a broad range of implementing its research, training, and individuals with disabilities, including Priority 3—Health and Function dissemination activities, and in people with mental illness, over time The Assistant Secretary will fund up evaluating the Center; and across systems. Dissemination and to seven RRTCs that will focus on • Demonstrate in its application how training efforts must target community rehabilitation to improve the health and it will address, in whole or in part, the partners, e.g., employers, teachers and function of persons with disabilities and needs of individuals with disabilities coaches, and landlords, as well as thus to improve their ability to live in from minority backgrounds. individuals with disabilities and their the community. Each RRTC must: • Demonstrate how the project will families. The reference for this topic can (1) Identify, develop, and evaluate yield measurable results for people with be found in the Plan, chapter 6, rehabilitation techniques to address its disabilities; Independent Living and Community respective area of research and improve • Identify specific performance Integration: Research on Increasing outcomes for its designated population targets and propose outcome indicators, Personal Development and Adaptation. group; along with time lines to reach these (d) Policies Affecting Families of (2) Develop, implement, and evaluate targets; and Children with Disabilities: This Center a comprehensive plan for training • Demonstrate how the project can must research and disseminate critical stakeholders, e.g., consumers/ transfer research findings to practical information on the effects of family members, practitioners, service applications in planning, policy- government, system, network, and providers, researchers, and making, program administration, and agency policies on community policymakers; delivery of services to individuals with integration and quality of life for (3) Provide technical assistance, as disabilities. families who have children with appropriate, to critical stakeholders, Each RRTC must focus on one of the disabilities. The Center also must (e.g., consumers/family members, following priorities. validate instruments to measure these practitioners, and service providers) to (a) Community Integration for effects and provide technical assistance, facilitate utilization of research findings Individuals with Intellectual and with the goal of improving community in its respective area of research; and Developmental Disabilities (I/DD): This integration and quality of life, by: (1) (4) Develop a systematic plan for Center must conduct qualitative and enhancing and coordinating policies widespread dissemination of quantitative research, including the among systems and (2) informing and informational materials based on development and implementation of empowering family and peer-based knowledge gained from the Center’s outcome measures, on factors that assist networks and partnerships. The research activities, and disseminate the and hinder community integration, self- references for this topic can be found in materials to persons with disabilities, determination, training, employment, the Plan, chapter 2, Dimensions of their representatives, service providers, and independent living for persons with Disability: Employment and and other interested parties. I/DD. The references for this topic can Independent Living; and chapter 6, In addition to the activities proposed be found in the Plan, chapter 6, Research on Social Roles. by the applicant to carry out these Independent Living and Community (e) Community Integration for People purposes, each RRTC must: Integration: Independent Living and with Psychiatric Disabilities: This Center • Conduct a state-of-the-science Community Integration Concepts; must research, disseminate, and provide conference on its respective area of Expanding the Theoretical Framework; training on factors, policies, and research in the third year of the grant and Directions of Future Research on interventions, such as peer-support cycle and publish a comprehensive Independent Living and Community models and other innovative treatment report on the final outcomes of the Integration. approaches, that assist community conference in the fourth year of the (b) Promoting Healthy Aging and integration for people with psychiatric grant cycle. This conference must Community Inclusion Among Adults disabilities. The target population may include materials from experts internal with Intellectual and Developmental include individuals from any age group. and external to the center; Disabilities (I/DD): This Center must The references for this topic can be • Coordinate on research projects of conduct epidemiological and found in the Plan, chapter 6, mutual interest with relevant NIDRR-

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funded projects as identified through (c) Community Integration of based self-management programs; and consultation with the NIDRR project Individuals With Traumatic Brain Injury technologies available to the broad officer; (TBI): This Center must identify, assess, populations of persons with arthritis in • Involve individuals with and evaluate current and emerging the environments where they live, learn, disabilities in planning and community integration needs of work, and play. The reference for this implementing its research, training, and individuals with TBI, including but not topic can be found in the Plan, chapter dissemination activities, and in limited to mild TBI. The Center should 4, Health and Function: Research on evaluating the Center; consider the impact of secondary Progressive and Degenerative Disease • Demonstrate in its application how conditions on community integration Rehabilitation. it will address, in whole or in part, the outcomes as well as the role of assistive (g) Rehabilitation of Children with needs of individuals with disabilities devices and other technology. In Traumatic Brain Injury (TBI): This from minority backgrounds; and addition, this Center must develop and Center must identify, assess, and • Demonstrate how the RRTC project evaluate a comprehensive plan to evaluate current and emerging will yield measurable results for people facilitate the translation of new rehabilitation needs for children and with disabilities; knowledge into rehabilitation practice adolescents with TBI. In doing this, the • Identify specific performance and the delivery of community-based Center must document patterns of targets and propose outcome indicators, services. The reference for this topic can recovery, determining the effectiveness along with time lines to reach these be found in the Plan, chapter 4, Health of current outcome measures for this targets; and and Function: Research on Trauma population. Of particular interest will be • Demonstrate how the RRTC project Rehabilitation. evaluation of interventions and can transfer research findings to (d) Rehabilitation of Individuals with technologies, including specialized practical applications in planning, Neuromuscular Diseases: This Center support services, to assist families and policy-making, program administration, must conduct research that addresses caregivers with transition to the school and delivery of services to individuals rehabilitation needs, particularly related and the community. This RRTC must to exercise, nutrition, and pain, of identify or develop effective with disabilities. individuals with neuromuscular rehabilitation strategies to improve Each RRTC must focus on one of the diseases. In doing this, the Center must outcomes for children and adolescents following priority topic areas: identify or develop and evaluate health with TBI at all stages of rehabilitation. (a) Psycho-social Factors Affecting promotion and wellness programs to The reference for this topic can be found Individuals Aging with Disability: This enhance recreational opportunities for in the Plan, chapter 4, Health and Center must conduct research and individuals with neuromuscular Function: Research on Trauma training activities that generate new diseases. This Center must identify, Rehabilitation. knowledge regarding the psycho-social develop as appropriate, and evaluate (h) Rehabilitation of Individuals with issues that affect individuals aging with devices and other technology that Multiple Sclerosis (MS): This Center disabilities and the sources of resilience improve employment and community must conduct research to maximize the used by this population to cope with or integration outcomes for this population participation of people with MS, respond to these issues. In an effort to of individuals with disabilities. The including those with all levels of improve long-term outcomes for these reference for this topic can be found in symptoms associated with the disease, individuals, the Center is encouraged to the Plan, chapter 4, Health and at home, in the community, and while identify or develop and test the Function: Research on Progressive and working or learning. In doing so, the effectiveness of interventions that will Degenerative Disease Rehabilitation. Center must identify, develop as prevent or minimize the impact of (e) Rehabilitation of Stroke Survivors: necessary, and evaluate interventions to psycho-social issues on the health, This Center must conduct research to enhance the independence of people activity, and community participation of develop rehabilitation interventions that with MS. Those interventions must individuals with disabilities across the improve rehabilitation, employment, include strategies and programs that life span and promote positive and community integration outcomes of address interactions among cognitive, adjustment and improved quality of life. stroke survivors, including young stroke psychosocial, sensory, mobility, and The reference for this topic can be found survivors. Such interventions may other manifestations of the disease in the Plan, chapter 4, Health and include robotics, complementary across the lifespan. The Center must Function: Research on Aging with a alternative therapies, and universal consider the role of assistive and Disability. design methodologies aimed at universally designed technologies, (b) Secondary Conditions in improving the utility of workplace tools strategic goals, and financial planning Rehabilitation of Individuals with and devices. This Center must explore for persons with MS, and the role of Spinal Cord Injury (SCI): In an effort to the cost-effectiveness of stroke caregivers throughout the disease improve the general health, well-being, rehabilitation treatments, such as group course. The reference for this topic can and community integration of model approaches. The reference for be found in the Plan, chapter 4, Health individuals with SCI, this Center must this topic can be found in the Plan, and Function: Research on Progressive conduct research and training activities chapter 4, Health and Function: and Degenerative Disease to enhance knowledge regarding either Research on Trauma Rehabilitation. Rehabilitation. treatment or prevention strategies, or (f) Rehabilitation of Individuals with both, that addresses the wide array of Arthritis: This Center must address Executive Order 12866 secondary conditions associated with national goals to reduce pain and This NFP has been reviewed in SCI, including, but not limited to, disability, improve physical fitness and accordance with Executive Order 12866. respiratory complications, urinary tract quality of life, and promote independent Under the terms of the order, we have infections, pressure ulcers, pain, living and community integration for assessed the potential costs and benefits obesity, and depression. The reference persons with arthritis of all ages in the of this regulatory action. for this topic can be found in the Plan, United States. This Center must The potential costs associated with chapter 4, Health and Function: research the benefits of exercise and this NFP are those resulting from Research on Secondary Conditions. physical fitness; home and community- statutory requirements and those we

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have determined as necessary for Dated: July 22, 2003. approach will provide NIDRR with peer administering this program effectively Robert H. Pasternack, review input to guide decisions about and efficiently. Assistant Secretary for Special Education and funding worthy topics. This grouping is Rehabilitative Services. intended to foster competition to improve In assessing the potential costs and research outcomes and have a positive benefits—both quantitative and Appendix impact on the lives of individuals with qualitative—of this NFP, we have disabilities. Analysis of Comments and Changes determined that the benefits of the final Changes: None. priorities justify the costs. General Comment: Many commenters expressed concern that NIDRR’s priorities do not Comment: Several commenters raised Summary of Potential Costs and provide sufficient opportunities for concerns about the failure of the priorities to applicants that are concerned with Benefits require a focus on the Native American psychiatric disability. population, citing the high rates of disability Discussion: The announcement includes a The potential cost associated with within this population. these final priorities is minimal while Discussion: Nothing in the priorities proposed new priority topic on the the benefits are significant. Grantees precludes an applicant from focusing on the Community Integration of Individuals with may anticipate costs associated with needs of Native Americans. The peer review Psychiatric Disabilities. In addition to this completing the application process in process will evaluate the merits of the opportunity, NIDRR’s commitment to the area of psychiatric disability is demonstrated terms of staff time, copying, and mailing proposal. Changes: None. by its current funding of five RRTCs on or delivery. The use of e-Application issues of psychiatric disability and mental technology reduces mailing and copying Disability Demographics and Statistics health. In addition, NIDRR funds a number costs significantly. Center of field-initiated projects that focus on this The benefits of the RRTC program Comment: One commenter expressed topic as well as an advanced research have been well established over the concern that the Disability Demographics and training project and a Disability Statistics Center priority does not specifically Rehabilitation Research Project (DRRP) on years given that similar projects have mental health service delivery. NIDRR’s been successfully completed. These target analyses focused on the status of individuals who are American Indian or commitment to this critical area has not final priorities will generate new Alaskan Native. changed, and NIDRR is committed to knowledge through research, Discussion: Nothing in the priority supporting future initiatives in this area. dissemination, utilization, training, and precludes an applicant from including these Changes: None. technical assistance projects. populations in proposed research. However, Comment: One commenter suggested that the definition of ‘‘critical stakeholders,’’ in The benefit of these final priorities NIDRR has no basis for requiring that all applicants focus on these populations in the list of requirements for each RRTC, be and proposed applications and project responding to these priorities. The peer revised to include the word ‘‘community’’— requirements will be the establishment review process will evaluate the merits of the and noted that the realization of true of new RRTCs that generate, proposal. community integration must include the disseminate, and promote the use of Changes: None. community itself. new information that will improve the Discussion: NIDRR agrees that community Community Integration options for disabled individuals to members are critical components of perform regular activities in the General community integration for individuals with community. Comment: Several commenters suggested disabilities and that they should be included that NIDRR increase the number of funded in training and technical assistance efforts. Applicable Program Regulations: 34 centers under these competitions. Changes: The priority has been changed to CFR part 350. Discussion: The proposed number of reflect this addition. Comment: One commenter suggested that Electronic Access to This Document funded centers is not part of the proposed priorities and is not subject to comment. programs measuring Presidential, Changes: None. Congressional, and Judicial objectives You may view this document, as well regarding community inclusion be included as all other Department of Education Comment: Several commenters expressed concern about NIDRR’s plan to publish the in RRTC activities, by means of national and documents published in the Federal Notice Inviting Application (NIA) prior to the state data collection activities. Register, in text or Adobe Portable end of the comment period, effectively Discussion: NIDRR agrees that data Document Format (PDF) on the Internet shortening the time from publication of the collection to assist the measurement of at the following site: http://www.ed.gov/ proposed priority to the due date for the community inclusion-related national legislation/FedRegister. applications. objectives would be worthwhile, and Discussion: NIDRR announced in the NIA applicants may submit applications in this To use PDF you must have Adobe that, if it received comments that resulted in area. However, NIDRR has no basis for Acrobat Reader, which is available free changes to the priorities, an extension would requiring applicants to focus on this issue. at this site. If you have questions about be granted to allow for more time to respond The peer review process will evaluate the using PDF, call the U.S. Government in light of such changes. NIDRR believes that merits of the proposal. Printing Office (GPO), toll free, at 1– a period of 60 days from the date of the NIA Changes: None. to the due date of the proposal is adequate 888–293–6498; or in the Washington, Psychiatric Disability DC, area at (202) 512–1530. time to prepare a proposal in response to the priorities. Comment: One commenter expressed Note: The official version of this document Changes: None. concern that the description of the proposed is published in the Federal Register. Free Comment: Many commenters expressed RRTC on Community Integration for People Internet access to the official edition of the concern that NIDRR was ‘‘forcing different with Psychiatric Disabilities is not age- Federal Register and the Code of Federal disability groups’’ to compete against each specific but instead indicates that, ‘‘the target Regulations is available on GPO Access at: other for funds. population may include individuals from any http://www.access.gpo.gov/nara/index.html. Discussion: The proposed grouping of age group.’’ The commenter noted that NIDRR competitions is not part of the children and adults, while having some (Catalog of Federal Domestic Assistance proposed priorities and is not subject to overlapping areas, also have distinct age- Number: 84.133B, Rehabilitation Research comment. However, NIDRR offers the specific needs. and Training Center Program) following observation. NIDRR has previously Discussion: NIDRR agrees that children and Program Authority: 29 U.S.C. 762(g) and conducted successful competitions in which adults have many distinct age-specific needs. 764(b)(2). it listed more topics than it could fund. This The language in the proposed priority was

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not a suggestion (or requirement) that the Discussion: The priority requires an institution. The purpose of this program applicant address issues of both. Rather, it applicant to provide training that improves is to support the development of was intended to allow flexibility for community-integration outcomes for person individual research programs by applicants in selecting their target with disabilities who are recovering from outstanding scientists early in their populations. The peer review process will substance abuse problems. The applicant has evaluate the merits of the proposal. the discretion to identify the specific target careers. Awards made under this Changes: None. populations to be trained and the manner in program will help to maintain the which they will be trained. However, NIDRR vitality of university research and assure Substance Abuse has no basis to require all applicants to continued excellence in the teaching of Comment: Several commenters urged conduct cross-training of staff. The peer physics. NIDRR to co-fund research activities with the review process will evaluate the merits of the DATES: To permit timely consideration Substance Abuse and Mental Health Services proposal. Administration (SMHSA), National Institute Changes: None. for award in Fiscal Year 2004, formal on Alcohol Abuse and Alcoholism (NIAAA), applications submitted in response to and National Institute on Drug Abuse (NIDA) Health and Function this notice should be received before in the area of substance abuse and co-existing General November 4, 2003. disabilities. Discussion: While co-funding of research Comment: One commenter expressed ADDRESSES: Applications for OJI Awards in the area of substance abuse may have concern that the Health and Function referencing Program Notice DE–FG01– merit, this is not a subject for comment priorities do not specifically target the health 03ER03–24 must be submitted relative to the priority. needs of individuals with disabilities who electronically by an authorized Changes: None. are American Indian or Alaskan Native. institutional business official through Comment: Many commenters suggested Discussion: NIDRR is aware of the critical the DOE Industry Interactive health care issues facing American Indians that the unique needs of persons with Procurement System (IIPS) Web site at: disabilities who have co-occurring substance and Alaskan Natives with disabilities. abuse disorders be addressed exclusively. Nothing in the priority precludes an http://pr.doe.gov (see also http:// Discussion: The priority is clear that the applicant from including these populations www.sc.doe.gov/production/grants/ target population is people with disabilities in proposed research. However, NIDRR has grants.html). IIPS provides for the who are recovering from substance abuse no basis for requiring that all applicants posting of solicitations and receipt of problems. The priority also states that the focus on these populations in responding to applications in a paperless environment applicants may or may not focus on these priorities. The peer review process will via the Internet. In order to submit individuals with co-occuring disorders such evaluate the merits of the proposal. applications through IIPS your business Changes: None. as mental illness. However, NIDDR has no official will need to register at the IIPS basis to determine that all applicants should Comment: One commenter suggested be required to focus on the unique needs of adding Parkinson’s Disease to the list of website. The Office of Science will persons with disabilities who have co- possible RRTC topics or expanding the include attachments as part of this occurring disorders such as mental illness. neuromuscular disease priority to include notice that provide the appropriate The peer review process will evaluate the Parkinson’s Disease. forms in PDF fillable format that are to merits of the proposal. Discussion: Parkinson’s Disease is often be submitted through IIPS. IIPS offers Changes: None. categorized as a neuromuscular disease. the option of submitting multiple files— Comment: Several commenters encouraged Nothing in the priority precludes an please limit submissions to only one file substance abuse research that is policy applicant from proposing Parkinson’s Disease as a topic under the neuromuscular disease within the volume if possible, with a oriented at Federal and State levels. maximum of no more than four files. Discussion: Nothing in the priority category. The peer review process will precludes an applicant from focusing on evaluate the merits of the proposal. Color images should be submitted in policy issues at the Federal and State level. Changes: None. IIPS as a separate file in PDF format and However, NIDRR has no basis to determine identified as such. These images should [FR Doc. 03–19018 Filed 7–24–03; 8:45 am] that all applicants should be required to be kept to a minimum due to the focus on policy issues. The peer review BILLING CODE 4000–01–P limitations of reproducing them. They process will evaluate the merits of the should be numbered and referred to in proposal. the body of the technical scientific Changes: None. DEPARTMENT OF ENERGY application as Color image 1, Color Comment: One commenter suggested that image 2, etc. Questions regarding the the substance abuse priority require research Office of Science Financial Assistance operation of IIPS may be E-mailed to the on approaches for modifying treatment Program Notice 03–24: High Energy IIPS Help Desk at: modalities to support the integration of Physics Outstanding Junior patients with co-existing disabilities into [email protected], or you may call Investigator Program community-based treatment programs rather the help desk at: (800) 683–0751. than emphasize specialized programs. The AGENCY: U.S. Department of Energy Further information on the use of IIPS commenter further suggested that the priority (DOE). by the Office of Science is available at: focus on employment outcomes, including http://www.sc.doe.gov/production/ retention. ACTION: Notice inviting grant Discussion: The priority does not preclude applications. grants/grants.html. research focusing on either treatment FOR FURTHER INFORMATION CONTACT: Dr. modalities or employment outcomes for SUMMARY: The Office of High Energy Physics of the Office of Science (SC), Jeffrey Mandula, Office of High Energy persons with disabilities who have substance Physics, SC–221/Germantown Building, abuse disorders. However, NIDRR has no U.S. Department of Energy, hereby basis to require that all applicants focus on announces its interest in receiving grant U.S. Department of Energy, 1000 these topics. The peer review process will applications for support under its Independence Avenue, Washington, DC evaluate the merits of the proposal. Outstanding Junior Investigator (OJI) 20585–1290. Telephone: (301) 903– Changes: None. Program. Applications should be from 4829. E-mail: Comment: Two commenters suggested the tenure-track faculty investigators who [email protected]. priority require research in cross-training of program staff and community-based staff are currently involved in experimental SUPPLEMENTARY INFORMATION: The involved in providing services to individuals or theoretical high energy physics or Outstanding Junior Investigator program with disabilities who have substance abuse accelerator physics research, and should was started in 1978 by the Department problems. be submitted through a U.S. academic of Energy’s Office of Science. A

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principal goal of this program is to to pay for any costs associated with the Tentative Agenda: Agenda will identify exceptionally talented high preparation or submission of include an open discussion on the energy physicists early in their careers applications if an award is not made. following topics: and assist and facilitate the The Catalog of Federal Domestic • Implementation of Executive Order development of their research programs. Assistance Number for this program is 13123 Eligibility for awards under this notice 81.049, and the solicitation control • Innovative Financing Mechanisms is therefore restricted to non-tenured number is ERFAP 10 CFR part 605. (Energy Saving Performance Contracts investigators who are conducting and Utility Energy Service Contracts) Issued in Washington, DC, on July 17, • experimental or theoretical high energy 2003. Incorporating New Technologies, physics or accelerator physics research. John Rodney Clark, Products, and Services in Federal Since its debut, the program has Facilities Associate Director of Science for Resource • initiated support for between five and Management. Sustainable Design in Federal Facilities ten new OJIs each year. The program [FR Doc. 03–18979 Filed 7–24–03; 8:45 am] has been very successful and • Training and Technical Assistance BILLING CODE 6450–01–P • contributes importantly to the vigor of Other Energy Management Issues the U.S. High Energy Physics program. and Topics • Barriers and Opportunities Applicants should request support DEPARTMENT OF ENERGY • under this notice for normal research Public Comment project costs as required to conduct Office of Energy Efficiency and Public Participation: For this their proposed research activities. The Renewable Energy discussion session, FEMAC invites full range of activities currently members of the public to help identify supported by the Division of High Federal Energy Management Advisory possible solutions in achieving the goals Energy Physics is eligible for support Committee of reducing energy use and increasing energy efficiency in Federal facilities. under this program. AGENCY: Department of Energy. The DOE expects to make five to ten No advance registration is required for ACTION: grant awards in Fiscal Year 2004, to Notice of public meeting. the meeting. Those wishing to address the committee will be heard based on a meet the objectives of this program. It is SUMMARY: This notice announces an ‘‘first-come, first-served’’ sign-up list for anticipated that approximately $500,000 open meeting of the Federal Energy the session. With the limited time will be available in Fiscal Year 2004, Management Advisory Committee available, the committee also subject to availability of appropriated (FEMAC). The Federal Advisory encourages written recommendations, funds. In the recent past, awards have Committee Act (Pub. L. 92–463, 86 Stat. suggestions, position papers, etc., averaged $60,000 per year, with the 770) requires that this meeting be number of awards determined by the announced in the Federal Register to combined with a short oral summary number of excellent applications and allow for public participation. This statement. Documents may be submitted either the total funds available for this notice announces the eighth meeting of before or after the meeting. The Chair of program. Multiple-year funding of grant FEMAC, an advisory committee the Committee will make every effort to awards is expected, including renewal established under Executive Order hear the views of all interested parties. beyond the initial project period, as long 13123—‘‘Greening the Government The Chair will conduct the meeting to as the recipient’s tenure status is through Efficient Energy Management.’’ facilitate the orderly conduct of the unchanged. Funding will be provided FEMAC provides public and private meeting. on an annual basis subject to availability sector input to the Secretary of Energy If you would like to file a written of funds. Applications will be subjected on achieving mandated energy statement with the committee, you may to scientific merit review (peer review) efficiency goals for Federal facilities. do so either before or after the meeting. and will be evaluated against the The U.S. Department of Energy, Office If you would like to make oral following criteria, which are listed in of Energy Efficiency and Renewable statements regarding any of the agenda descending order of importance as set Energy, Office of the Federal Energy topics, you should contact Steven Huff forth in 10 CFR 605.10(d): Management Program, coordinates at (202) 586–3507 or by e-mail to 1. Scientific and/or technical merit of FEMAC activities. [email protected]. the project; DATES: Tuesday, August 19, 2003; 4 p.m. 2. Appropriateness of the proposed Members of the FEMAC are: Stuart to 5:30 p.m. method or approach; Berjansky, Advance Transformer 3. Competency of applicant’s ADDRESSES: Wyndham Palace Resort Company; Jared Blum, Polyisocyanurate personnel and adequacy of proposed and Spa, 1900 Buena Vista Drive, Lake Insulation Manufacturers Association; resources; and Buena Vista, Florida 32830–2206. The Robert Collins, Jr., Tampa Electric 4. Reasonableness and FEMAC meeting will be held in the Company; Richard Earl, PB Facilities, appropriateness of the proposed budget. Wyndham’s Cloister Room (lobby level). Inc., Parsons Brinckerhoff Company; General information about FOR FURTHER INFORMATION CONTACT: Terrel Emmons, Office of the Architect development and submission of Steven Huff, Designated Federal Officer of the Capitol; Richard Hays, City of San applications, eligibility, limitations, for the Committee, Office of the Federal Diego; Brian Henderson, New York State evaluations and selection processes, and Energy Management Program, U.S. Energy Research and Development other policies and procedures are Department of Energy, 1000 Authority; Erbin Keith, Sempra Energy contained in the Application Guide for Independence Avenue, SW., Solutions, LLC; Vivian Loftness, the Office of Science Financial Washington, DC 20585; (202) 586–3507. Carnegie Mellon University; Anne Marie Assistance Program and 10 CFR part SUPPLEMENTARY INFORMATION: McShea, The Center for Resource 605. Electronic access to the application Purpose of the Meeting: This FEMAC Solutions; Get Moy, Office of the Deputy guide and required forms is available on meeting is an open forum for Under Secretary of Defense; Mary the World Wide Web at: http:// communicating with FEMAC members Palomino, Salt River Project; James www.sc.doe.gov/production/grants/ and Federal Energy Management Rispoli, U.S. Department of Energy; grants.html. DOE is under no obligation Program officials. Mitchell Rosen, Liberty Total Comfort

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Systems; and Cynthia Vallina, Office of required, pursuant to 18 CFR 16.21(b), included in the initial filing in this Management and Budget. Mr. to continue project operations until the proceeding. Henderson is the FEMAC chair. Commission issues someone else a Midwestern states that copies of this Minutes: The minutes of the meeting license for the project or otherwise filing have been sent to all of will be available for public review and orders disposition of the project. Midwestern ’s contracted shippers and copying within 30 days at the Freedom If the project is subject to section 15 interested state regulatory commissions. of Information Public Reading Room; of the FPA, notice is hereby given that Any person desiring to protest said Room 1E–190; Forrestal Building; 1000 an annual license for Project No. 2180 filing should file a protest with the Independence Avenue, SW., is issued to PCA Hydro, Inc. for a period Federal Energy Regulatory Commission, Washington, DC, between 9 a.m. and 4 effective July 1, 2003 through June 30, 888 First Street, NE., Washington, DC p.m., Monday through Friday, except 2004, or until the issuance of a new 20426, in accordance with § 385.211 of Federal holidays. license for the project or other the Commission’s Rules and Issued at Washington, DC, on July 21, disposition under the FPA, whichever Regulations. All such protests must be 2003. comes first. If issuance of a new license filed in accordance with § 154.210 of the Rachel M. Samuel, (or other disposition) does not take Commission’s Regulations. Protests will Deputy Advisory Committee Management place on or before July 1, 2004, notice be considered by the Commission in Officer. is hereby given that, pursuant to 18 CFR determining the appropriate action to be [FR Doc. 03–18978 Filed 7–24–03; 8:45 am] 16.18(c), an annual license under taken, but will not serve to make section 15(a)(1) of the FPA is renewed protestants parties to the proceedings. BILLING CODE 6450–01–P automatically without further order or This filing is available for review at the notice by the Commission, unless the Commission in the Public Reference DEPARTMENT OF ENERGY Commission orders otherwise. Room or may be viewed on the If the project is not subject to section Commission’s Web site at http:// Federal Energy Regulatory 15 of the FPA, notice is hereby given www.ferc.gov using the ‘‘FERRIS’’ link. Commission that PCA Hydro, Inc. is authorized to Enter the docket number excluding the continue operation of the Grandmother last three digits in the docket number [Project No. 2180] Falls Project No. 2180 until such time as field to access the document. For PCA Hydro, Inc.; Notice of the Commission acts on its application assistance, please contact FERC Online Authorization for Continued Project for subsequent license. Support at [email protected] or toll- Operation Magalie R. Salas, free at (866) 208–3676, or TTY, contact Secretary. July 21, 2003. (202) 502–8659. The Commission [FR Doc. 03–19037 Filed 7–24–03; 8:45 am] On June 26, 2001, PCA Hydro, Inc., strongly encourages electronic filings. licensee for the Grandmother Falls BILLING CODE 6717–01–P See 18 CFR 385.2001(a)(1)(iii) and the Project No. 2180, filed an application for instructions on the Commission’s Web site under the ‘‘e-Filing’’ link. a new or subsequent license pursuant to DEPARTMENT OF ENERGY the Federal Power Act (FPA) and the Protest Date: July 8, 2003. Commission’s regulations thereunder. Federal Energy Regulatory Magalie R. Salas, Project No. 2180 is located on the Commission Secretary. Wisconsin River in Lincoln County, Wisconsin. [FR Doc. 03–18942 Filed 7–24–03; 8:45 am] [Docket No. RP03–400–001] The license for Project No. 2180 was BILLING CODE 6717–01–P issued for a period ending June 30, Midwestern Gas Transmission 2003. Section 15(a)(1) of the FPA, 16 Company; Notice of Compliance Filing DEPARTMENT OF ENERGY U.S.C. 808(a)(1), requires the Commission, at the expiration of a July 2, 2003. Federal Energy Regulatory license term, to issue from year to year Take notice that on June 27, 2003, Commission an annual license to the then licensee Midwestern Gas Transmission Company under the terms and conditions of the (Midwestern) tendered for filing to [Docket No. RP03–370–001] prior license until a new license is become part of its FERC Gas Tariff, issued, or the project is otherwise Third Revised Volume No. 1, Substitute National Fuel Gas Supply Corporation; disposed of as provided in Section 15 or Fourth Revised Sheet No. 272, effective Notice of Compliance Filing any other applicable section of the FPA. July 1, 2003. If the project’s prior license waived the Midwestern states that the purpose of July 2, 2003. applicability of section 15 of the FPA, this filing is to comply with the Take notice that on June 27, 2003, then, based on section 9(b) of the Commission’s uncited letter order at National Fuel Gas Supply Corporation Administrative Procedure Act, 5 U.S.C. docket RP03–400–000 dated June 20, (National Fuel) tendered for filing as 558(c), and as set forth at 18 CFR 2003, wherein the Commission directed part of its FERC Gas Tariff, Fourth 16.21(a), if the licensee of such project Midwestern to revise its tariff to reflect Revised Volume No. 1, the tariff sheets has filed an application for a subsequent that NAESB WGQ Standards 5.3.7, listed in its filing, with an effective date license, the licensee may continue to 5.3.41, 5.3.42, 5.3.46, and 5.3.48 refer to of July 1, 2003. operate the project in accordance with Recommendation R02002 and NAESB National Fuel states that the purpose the terms and conditions of the license WGQ Data Sets 1.4.4, 5.4.1, 5.4.3, 5.4.4, of this filing is to submit revised tariff after the minor or minor part license 5.4.7, and 5.4.9 refer to both Version 1.6 sheets in compliance with the expires, until the Commission acts on of the NAESB WGQ Standards and Commission letter order issued on June its application. If the licensee of such a Recommendation R02002. This filing 20, 2003, in Docket No. RP03–370–000 project has not filed an application for also incorporates by reference NAESB and to conform to the WGQ Standards a subsequent license, then it may be WGQ Standard 2.3.29, which was not incorporated by Order No. 587–R,

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Standards for Business Practices of Terms and Conditions of Natural’s RP03–350–000 regarding compliance Interstate Natural Gas Pipelines. Tariff. with Order No. 587–R. National Fuel states that copies of this Natural states that copies of the filing Northern further states that copies of filing were served upon its customers, are being mailed to all parties set out on the filing have been mailed to each of interested state commissions and the the Commission’s official service list in its customers and interested State parties on the official service list Docket No. RP99–176. Commissions. compiled by the Secretary in this Any person desiring to be heard or to Any person desiring to protest said proceeding. protest said filing should file a motion filing should file a protest with the Any person desiring to protest said to intervene or a protest with the Federal Energy Regulatory Commission, filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with § 385.211 of 888 First Street, NE., Washington, DC 20426, in accordance with sections the Commission’s Rules and 20426, in accordance with § 385.211 of 385.214 or 385.211 of the Commission’s Regulations. All such protests must be the Commission’s Rules and Rules and Regulations. All such motions filed in accordance with § 154.210 of the Regulations. All such protests must be or protests must be filed in accordance Commission’s Regulations. Protests will filed in accordance with § 154.210 of the with § 154.210 of the Commission’s be considered by the Commission in Commission’s Regulations. Protests will Regulations. Protests will be considered determining the appropriate action to be be considered by the Commission in by the Commission in determining the taken, but will not serve to make determining the appropriate action to be appropriate action to be taken, but will protestants parties to the proceedings. taken, but will not serve to make not serve to make protestants parties to This filing is available for review at the protestants parties to the proceedings. the proceedings. Any person wishing to Commission in the Public Reference This filing is available for review at the become a party must file a motion to Room or may be viewed on the Commission in the Public Reference intervene. This filing is available for Commission’s Web site at http:// Room or may be viewed on the review at the Commission in the Public www.ferc.gov using the ‘‘FERRIS’’ link. Commission’s Web site at http:// Reference Room or may be viewed on Enter the docket number excluding the www.ferc.gov using the ‘‘FERRIS’’ link. the Commission’s Web site at http:// last three digits in the docket number Enter the docket number excluding the www.ferc.gov using the ‘‘FERRIS’’ link. field to access the document. For last three digits in the docket number Enter the docket number excluding the assistance, please contact FERC Online field to access the document. For last three digits in the docket number Support at assistance, please contact FERC Online field to access the document. For [email protected] or toll- Support at assistance, please contact FERC Online free at (866) 208–3676, or TTY, contact [email protected] or toll- Support at (202) 502–8659. The Commission free at (866) 208–3676, or TTY, contact [email protected] or toll- strongly encourages electronic filings. (202) 502–8659. The Commission free at (866) 208–3676, or TTY, contact See 18 CFR 385.2001(a)(1)(iii) and the strongly encourages electronic filings. (202) 502–8659. The Commission instructions on the Commission’s Web See 18 CFR 385.2001(a)(1)(iii) and the strongly encourages electronic filings. site under the ‘‘e-Filing’’ link. instructions on the Commission’s Web See 18 CFR 385.2001(a)(1)(iii) and the Protest Date: July 14, 2003. site under the ‘‘e-Filing’’ link. instructions on the Commission’s Web Magalie R. Salas, Protest Date: July 9, 2003. site under the ‘‘e-Filing’’ link. Secretary. Magalie R. Salas, Intervention and Protest Date: July 14, 2003. [FR Doc. 03–18939 Filed 7–24–03; 8:45 am] Secretary. BILLING CODE 6717–01–P [FR Doc. 03–18940 Filed 7–24–03; 8:45 am] Magalie R. Salas, BILLING CODE 6717–01–P Secretary. [FR Doc. 03–18947 Filed 7–24–03; 8:45 am] DEPARTMENT OF ENERGY BILLING CODE 6717–01–P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Federal Energy Regulatory DEPARTMENT OF ENERGY [Docket No. RP01–416–001] Commission [Docket No. RP99–176–088] Federal Energy Regulatory Northwest Pipeline Corporation; Notice Commission of Compliance Filing Natural Gas Pipeline Company of July 2, 2003. America; Notice of Negotiated Rates [Docket No. RP03–350–001] Take notice that on June 27, 2003, July 2, 2003. Northern Natural Gas Company; Notice Northwest Pipeline Corporation Take notice that on June 30, 2003, of Compliance Filing (Northwest) tendered for filing as part of Natural Gas Pipeline Company of its FERC Gas Tariff, Third Revised America (Natural) tendered for filing to July 2, 2003. Volume No. 1, Fourth Revised Sheet No. become part of its FERC Gas Tariff, Take notice that on June 30, 2003, 254; Fifth Revised Sheet No. 255; Fifth Sixth Revised Volume No. 1, certain Northern Natural Gas Company Revised Sheet No. 256; and Fourth tariff sheets listed on Appendix A to the (Northern), tendered for filing in its Revised Sheet No. 257, to be effective filing, to be effective July 1, 2003. FERC Gas Tariff, Fifth Revised Volume July 28, 2003. Natural states that the purpose of this No. 1, Substitute Tenth Revised Sheet Northwest states that this filing filing is to implement a new negotiated No. 204, with an effective date of July complies with the Commission’s order rate transaction entered into by Natural 1, 2003. dated June 9, 2003 in Docket No. RP01– and Wisconsin Electric Power Company Northern states that the filing is being 416–000 by revising a conditionally under Natural’s Rate Schedule FTS, made in compliance with the Director’s accepted tariff provision to also provide pursuant to section 49 of the General order dated June 18, 2003 in Docket No. a mechanism for sharing the costs of

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laterals when a shipper has elected the Panhandle states that copies of this jurisdictional customers and interested lump sum payment method. filing are being served on all affected state regulatory agencies. Northwest states that a copy of this shippers, applicable state regulatory Any person desiring to be heard or to filing has been served upon each person agencies and parties to this proceeding. protest said filing should file a motion designated on the official service list Any person desiring to protest said to intervene or a protest with the complied by the Secretary in this filing should file a protest with the Federal Energy Regulatory Commission, proceeding. Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC Any person desiring to protest said 888 First Street, NE., Washington, DC 20426, in accordance with sections filing should file a protest with the 20426, in accordance with § 385.211 of 385.214 or 385.211 of the Commission’s Federal Energy Regulatory Commission, the Commission’s Rules and Rules and Regulations. All such motions 888 First Street, NE., Washington, DC Regulations. All such protests must be or protests must be filed in accordance 20426, in accordance with § 385.211 of filed in accordance with § 154.210 of the with § 154.210 of the Commission’s the Commission’s Rules and Commission’s Regulations. Protests will Regulations. Protests will be considered Regulations. All such protests must be be considered by the Commission in by the Commission in determining the filed in accordance with § 154.210 of the determining the appropriate action to be appropriate action to be taken, but will Commission’s Regulations. Protests will taken, but will not serve to make not serve to make protestants parties to be considered by the Commission in protestants parties to the proceedings. the proceedings. Any person wishing to determining the appropriate action to be This filing is available for review at the become a party must file a motion to taken, but will not serve to make Commission in the Public Reference intervene. This filing is available for protestants parties to the proceedings. Room or may be viewed on the review at the Commission in the Public This filing is available for review at the Commission’s Web site at http:// Reference Room or may be viewed on Commission in the Public Reference www.ferc.gov using the ‘‘FERRIS’’ link. the Commission’s Web site at http:// Room or may be viewed on the Enter the docket number excluding the www.ferc.gov using the ‘‘FERRIS’’ link. Commission’s Web site at http:// last three digits in the docket number Enter the docket number excluding the www.ferc.gov using the ‘‘FERRIS’’ link. field to access the document. For last three digits in the docket number Enter the docket number excluding the assistance, please contact FERC Online field to access the document. For last three digits in the docket number Support at assistance, please contact FERC Online field to access the document. For [email protected] or toll- Support at assistance, please contact FERC Online free at (866) 208–3676, or TTY, contact [email protected] or toll- Support at (202) 502–8659. The Commission free at (866) 208–3676, or TTY, contact [email protected] or toll- strongly encourages electronic filings. (202) 502–8659. The Commission free at (866) 208–3676, or TTY, contact See 18 CFR 385.2001(a)(1)(iii) and the strongly encourages electronic filings. (202) 502–8659. The Commission instructions on the Commission’s Web See 18 CFR 385.2001(a)(1)(iii) and the strongly encourages electronic filings. site under the ‘‘e-Filing’’ link. instructions on the Commission’s Web See 18 CFR 385.2001(a)(1)(iii) and the Protest Date: July 14, 2003. site under the ‘‘e-Filing’’ link. instructions on the Commission’s Web Intervention and Protest Date: July 14, site under the ‘‘e-Filing’’ link. Magalie R. Salas, 2003. Protest Date: July 9, 2003. Secretary. [FR Doc. 03–18944 Filed 7–24–03; 8:45 am] Magalie R. Salas, Magalie R. Salas, BILLING CODE 6717–01–P Secretary. Secretary. [FR Doc. 03–18948 Filed 7–24–03; 8:45 am] [FR Doc. 03–18938 Filed 7–24–03; 8:45 am] BILLING CODE 6717–01–P BILLING CODE 6717–01–P DEPARTMENT OF ENERGY

Federal Energy Regulatory DEPARTMENT OF ENERGY DEPARTMENT OF ENERGY Commission Federal Energy Regulatory Federal Energy Regulatory [Docket No. RP99–518–046] Commission Commission [Docket No. CP03–323–000, et al.] [Docket No. RP03–449–001] PG&E Gas Transmission, Northwest Corporation; Notice of Negotiated Pinnacle Pipeline Company; Notice of Panhandle Eastern Pipe Line Rates Application Company, LLC; Notice of Compliance Filing July 2, 2003. July 2, 2003. Take notice that on June 30, 2003, Take notice that on June 19, 2003, July 2, 2003. PG&E Gas Transmission, Northwest Pinnacle Pipeline Company (Pinnacle), Take notice that on June 30, 2003, Corporation (GTN) tendered for filing to 5100 Westheimer, Suite 320, Houston, Panhandle Eastern Pipe Line Company, be part of its FERC Gas Tariff, Second Texas 77056, filed in Docket Nos. CP03– LLC (Panhandle) tendered for filing as Revised Volume No. 1A, Fifteenth 323–000, CP03–324–000 and CP03– part of its FERC Gas Tariff, Second Revised Sheet No. 15 and First Revised 325–000 an application pursuant to Revised Volume No. 1, the tariff sheets Sheet No. 21B, to be effective July 1, Section 7(c) of the Natural Gas Act and listed on Appendices A and B to the 2003. Parts 284 and 157 of the Commission’s filing. The revised tariff sheets are GTN states that these sheets are being Regulations for a certificate of public proposed to be effective on June 23, filed to reflect the implementation of convenience and necessity to continue 2003, and July 1, 2003, respectively. one new negotiated rate agreement and operating the Hobbs Lateral, an existing Panhandle states that this filing is the removal of one negotiated rate pipeline facility located in the State of being made to comply with the agreement that has expired. New Mexico; provide open-access firm Commission’s Letter Order dated June GTN further states that a copy of this and interruptible transportation 19, 2003, in Docket No. RP03–449–000. filing has been served on GTN’s services; engage in certain routine

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activities; and expand the Hobbs Lateral However, a person does not have to ‘‘e-Filing’’ link. The Commission through the addition of looping intervene in order to have comments strongly encourages electronic filings. facilities, all as more fully set forth in considered. The second way to Comment Date: July 23, 2003. the application on file with the participate is by filing with the Magalie R. Salas, Commission and open to public Secretary of the Commission, as soon as inspection. This filing is available for possible, an original and two copies of Secretary. review at the Commission or may be comments in support of or in opposition [FR Doc. 03–18934 Filed 7–24–03; 8:45 am] viewed on the Commission’s Web site at to this project. The Commission will BILLING CODE 6717–01–P http://www.ferc.gov using the ‘‘FERRIS’’ consider these comments in link. Enter the docket number excluding determining the appropriate action to be the last three digits in the docket taken, but the filing of a comment alone DEPARTMENT OF ENERGY will not serve to make the filer a party number field to access the document. Federal Energy Regulatory to the proceeding. The Commission’s For assistance, please contact FERC Commission Online Support at rules require that persons filing [email protected] or toll- comments in opposition to the project [Docket No. RP03–530–000] free at (866) 208–3676, or for TTY, provide copies of their protests only to contact (202) 502–8659. the party or parties directly involved in Portland Natural Gas Transmission System; Notice of Proposed Change in Pinnacle states that the Hobbs Lateral the protest. FERC Gas Tariff is an existing 5-mile, 10-inch diameter Persons who wish to comment only on the environmental review of this high pressure lateral pipeline located in July 2, 2003. Lea County, New Mexico. Pinnacle project should submit an original and two copies of their comments to the Take notice that on June 27, 2003, further states that the requested Portland Natural Gas Transmission authorization will allow Pinnacle to Secretary of the Commission. Environmental commenters will be System (PNGTS) tendered for filing as continue to serve the existing and part of its FERC Gas Tariff, Original expanded combustion turbine needs of placed on the Commission’s environmental mailing list, will receive Volume No. 1, First Revised Sheet No. two electric power plants that are 366, to become effective on August 1, owned and operated by Southwestern copies of the environmental documents, and will be notified of meetings 2003. Public Service Company (SPS), the only PNGTS states that the purpose of its customer served by the Hobbs Lateral. associated with the Commission’s environmental review process. filing is to clarify PNGTS’s billing Pinnacle states that the proposed procedures in the event that PNGTS, expansion will consist of 2.4 miles of Environmental commenters will not be required to serve copies of filed pursuant to an agreement with a 12-inch diameter pipeline with two 12- documents on all other parties. shipper, incurs third-party charges to inch mainline block valve assemblies at However, the non-party commenters provide service to such shipper. PNGTS each end of the pipeline loop. Pinnacle will not receive copies of all documents states that its proposed tariff provision estimates the cost of facilities to be filed by other parties or issued by the is similar to third-party billing $531,000. Commission (except for the mailing of provisions in other pipeline tariffs. Any questions regarding this environmental documents issued by the Specifically, PNGTS is proposing a application should be directed to Commission) and will not have the right new subsection 15.8 to the Billings and William G. Janacek, Pinnacle Pipeline to seek court review of the Payment section of the General Terms Company, 5100 Westheimer, Suite 320, Commission’s final order. and Conditions of its FERC Gas Tariff, Houston, Texas 77056–5511, at (713) The Commission may issue a which states in pertinent part that ‘‘If 965–9151, fax (713) 965–9156. preliminary determination on non- Shipper requests, and Transporter There are two ways to become environmental issues prior to the agrees, that Transporter shall, to provide involved in the Commission’s review of completion of its review of the service to Shipper, use service which this project. First, any person wishing to environmental aspects of the project. Transporter has contracted for with obtain legal status by becoming a party This preliminary determination third party(s) for the benefit of Shipper, to the proceedings for this project typically considers such issues as the Shipper shall pay Transporter an should, on or before the comment date need for the project and its economic amount equal to the charges Transporter stated below file with the Federal effect on existing customers of the is obligated to pay such third party(s), Energy Regulatory Commission, 888 applicant, on other pipelines in the area, which charges may include, but are not First Street, NE., Washington, DC 20426, and on landowners and communities. limited to, reservation and/or usage a motion to intervene in accordance For example, the Commission considers charges and surcharges, fuel charges, with the requirements of the the extent to which the applicant may compression fees, balancing or storage Commission’s Rules of Practice and need to exercise eminent domain to fees, measurement fees, processing fees, Procedure (18 CFR 385.214 or 385.211) obtain rights-of-way for the proposed and/or facility charges.’’ Subsection 15.8 and the Regulations under the NGA (18 project and balances that against the also provides that any such third party CFR 157.10). A person obtaining party non-environmental benefits to be charges shall be set forth as a separate status will be placed on the service list provided by the project. Therefore, if a item on billings rendered to Shipper. maintained by the Secretary of the person has comments on community PNGTS also states that copies of this Commission and will receive copies of and landowner impacts from this filing are being served on all all documents filed by the applicant and proposal, it is important either to file jurisdictional customers and interested by all other parties. A party must submit comments or to intervene as early in the state commissions. 14 copies of filings made in the process as possible. Any person desiring to be heard or to proceeding. with the Commission and Protests and interventions may be protest said filing should file a motion must mail a copy to the applicant and filed electronically via the Internet in to intervene or a protest with the to every other party. Only parties to the lieu of paper; see 18 CFR Federal Energy Regulatory Commission, proceeding can ask for court review of 385.2001(a)(1)(iii) and the instructions 888 First Street, NE., Washington, DC Commission orders in the proceeding. on the Commission’s Web site under the 20426, in accordance with sections

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385.214 or 385.211 of the Commission’s in the June 17 Order, directed Southern Commission’s letter order issued June Rules and Regulations. All such motions Trails to file revisions to its tariff sheets 20, 2003, in Docket No. RP03–422 or protests must be filed in accordance within ten days of the June 17 Order. (Order). The Order accepted, subject to with § 154.210 of the Commission’s Southern states that this filing is specified modifications, tariff sheets Regulations. Protests will be considered tendered to comply with the filed by Trailblazer in accordance with by the Commission in determining the Commission’s June 17 Order. Order No. 587–R, issued on March 12, appropriate action to be taken, but will Southern Trails states that a copy of 2003, in Docket No. RM96–1–024 (Order not serve to make protestants parties to this filing has been served upon its 587–R). Trailblazer’s original Order the proceedings. Any person wishing to customers and the Public Service 587–R compliance filing was made on become a party must file a motion to Commissions of Utah, New Mexico, May 1, 2003. No tariff changes other intervene. This filing is available for Arizona, and California. than those required by the Order are review at the Commission in the Public Any person desiring to protest said reflected in this filing. Reference Room or may be viewed on filing should file a protest with the Trailblazer states that copies of the the Commission’s Web site at http:// Federal Energy Regulatory Commission, filing have been mailed to all parties set www.ferc.gov using the ‘‘FERRIS’’ link. 888 First Street, NE., Washington, DC out on the Commission’s official service Enter the docket number excluding the 20426, in accordance with § 385.211 of list in Docket No. RP03–422. last three digits in the docket number the Commission’s Rules and Any person desiring to protest said field to access the document. For Regulations. All such protests must be filing should file a protest with the assistance, please contact FERC Online filed in accordance with § 154.210 of the Federal Energy Regulatory Commission, Support at Commission’s Regulations. Protests will 888 First Street, NE., Washington, DC [email protected] or toll- be considered by the Commission in 20426, in accordance with § 385.211 of free at (866) 208–3676, or TTY, contact determining the appropriate action to be the Commission’s Rules and (202) 502–8659. The Commission taken, but will not serve to make Regulations. All such protests must be strongly encourages electronic filings. protestants parties to the proceedings. filed in accordance with § 154.210 of the See 18 CFR 385.2001(a)(1)(iii) and the This filing is available for review at the Commission’s Regulations. Protests will instructions on the Commission’s Web Commission in the Public Reference be considered by the Commission in site under the ‘‘e-Filing’’ link. Room or may be viewed on the determining the appropriate action to be Comment Date: July 9, 2003. Commission’s Web site at http:// taken, but will not serve to make www.ferc.gov using the ‘‘FERRIS’’ link. protestants parties to the proceedings. Magalie R. Salas, Enter the docket number excluding the This filing is available for review at the Secretary. last three digits in the docket number Commission in the Public Reference [FR Doc. 03–18945 Filed 7–24–03; 8:45 am] field to access the document. For Room or may be viewed on the BILLING CODE 6717–01–P assistance, please contact FERC Online Commission’s Web site at http:// Support at www.ferc.gov using the ‘‘FERRIS’’ link. [email protected] or toll- Enter the docket number excluding the DEPARTMENT OF ENERGY free at (866) 208–3676, or TTY, contact last three digits in the docket number Federal Energy Regulatory (202) 502–8659. The Commission field to access the document. For Commission strongly encourages electronic filings. assistance, please contact FERC Online See 18 CFR 385.2001(a)(1)(iii) and the Support at [Docket No. RP03–391–002] instructions on the Commission’s Web [email protected] or toll- site under the ‘‘e-Filing’’ link. free at (866) 208–3676, or TTY, contact Questar Southern Trails Pipeline Protest Date: July 8, 2003. (202) 502–8659. The Commission Company; Notice of Compliance Filing strongly encourages electronic filings. Magalie R. Salas, July 2, 2003. See 18 CFR 385.2001(a)(1)(iii) and the Secretary. instructions on the Commission’s Web Take notice that on June 27, 2003, [FR Doc. 03–18941 Filed 7–24–03; 8:45 am] Questar Southern Trails Pipeline site under the ‘‘e-Filing’’ link. BILLING CODE 6717–01–P Company (Southern Trails) tendered for Protest Date: July 8, 2003. filing as part of its FERC Gas Tariff, Magalie R. Salas, Original Volume No. 1, Substitute DEPARTMENT OF ENERGY Secretary. Second Revised Sheet No. 103 and [FR Doc. 03–18943 Filed 7–24–03; 8:45 am] Substitute Second Revised Sheet No. Federal Energy Regulatory BILLING CODE 6717–01–P 105, with an effective date of July 1, Commission 2003. [Docket No. RP03–422–001] Southern explains that, on May 1, DEPARTMENT OF ENERGY 2003, and May 23, 2003, Southern Trails Trailblazer Pipeline Company; Notice filed tariff sheets to comply with Order of Compliance Filing Federal Energy Regulatory No. 587–R. Order No. 587–R requires Commission interstate pipelines to incorporate July 2, 2003. [Docket No. RP03–531–000] Version 1.6 of the consensus standards Take notice that on June 27, 2003, promulgated by the Wholesale Gas Trailblazer Pipeline Company West Texas Gas, Inc.; Notice of Gas Quadrant (WGQ) of the North American (Trailblazer) tendered for filing to be a Cost Reconciliation Report Energy Standards Board (NAESB). part of its FERC Gas Tariff, Third Southern further states that, on June 17, Revised Volume No. 1, Substitute July 2, 2003. 2003, the Commission issued an order Eighth Revised Sheet No. 203A and Take notice that on June 26, 2003, in Docket No. RP03–391–000 and –001 Original Sheet No. 203B, to be effective West Texas Gas, Inc. (WTG) submitted and, with minor exceptions, accepted July 1, 2003. for filing its annual purchased gas cost Southern Trails’ tariff sheets to be Trailblazer states that the purpose of reconciliation for the period ending effective July 1, 2003. The Commission, this filing is to comply with the April 30, 2003. Under section 19, any

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difference between WTG’s actual 1. South Carolina Electric & Gas Standard Paragraph purchased gas costs and its spot market- Company Any person desiring to intervene or to based pricing mechanism is refunded or [Docket No. ER96–1085–006] protest this filing should file with the surcharged to its two jurisdictional Take notice that on July 15, 2003, Federal Energy Regulatory Commission, customers annually, with interest. WTG South Carolina Electric and Gas 888 First Street, NE., Washington, DC states that the report indicates that WTG Company filed its second triennial 20426, in accordance with Rules 211 overcollected its actual costs by $19,533 market power analysis in support of its and 214 of the Commission’s Rules of during the reporting period. market pricing authority. Practice and Procedure (18 CFR 385.211 Any person desiring to be heard or to Comment Date: August 5, 2003. and 385.214). Protests will be considered by the Commission in protest said filing should file a motion 2. MI Energy, LLC to intervene or a protest with the determining the appropriate action to be Federal Energy Regulatory Commission, [Docket No. ER03–1076–000] taken, but will not serve to make 888 First Street, NE., Washington, DC Take notice that on July 15, 2003, MI protestants parties to the proceeding. 20426, in accordance with Sections Energy, LLC tendered for filing a Notice Any person wishing to become a party must file a motion to intervene. All such 385.214 or 385.211 of the Commission’s of Cancellation of its FERC Rate motions or protests should be filed on Rules and Regulations. All such motions Schedule No. 1. MI Energy states that it has no long- or before the comment date, and, to the or protests must be filed in accordance term customers, is not regulated by a extent applicable, must be served on the with § 154.210 of the Commission’s state commission, and has no applicant and on any other person Regulations. Protests will be considered outstanding market-based rate designated on the official service list. by the Commission in determining the transactions. Therefore, MI Energy states This filing is available for review at the appropriate action to be taken, but will it has not served copies of this filing Commission or may be viewed on the not serve to make protestants parties to upon any entity. Commission’s Web site at http:// the proceedings. Any person wishing to Comment Date: August 5, 2003. www.ferc.gov, using the ‘‘FERRIS’’ link. become a party must file a motion to Enter the docket number excluding the 3. Virginia Electric and Power intervene. This filing is available for last three digits in the docket number Company review at the Commission in the Public field to access the document. For Reference Room or may be viewed on [Docket No. ER03–1077–000] assistance, contact FERC Online the Commission’s Web site at http:// Take notice that on July 15, 2003, Support at www.ferc.gov using the ‘‘FERRIS’’ link. Virginia Electric and Power Company, [email protected] or toll- Enter the docket number excluding the d/b/a Dominion Virginia Power (the free at (866)208–3676, or for TTY, last three digits in the docket number Company), filed copies of a letter contact (202)502–8659. Protests and field to access the document. For agreement between Central Virginia interventions may be filed electronically assistance, please contact FERC Online Electric Cooperative (CVEC) and the via the Internet in lieu of paper; see 18 Support at Company. The Company states that the CFR 385.2001(a)(1)(iii) and the [email protected] or toll- letter agreement, dated June 11, 2003, instructions on the Commission’s Web free at (866) 208–3676, or TTY, contact adds a new delivery point to the March site under the ‘‘e-Filing’’ link. The (202) 502–8659. The Commission 20, 1967 Contract for the Purchase of Commission strongly encourages strongly encourages electronic filings. Electricity for Resale by Rural Electric electronic filings. Cooperatives, as amended, between See 18 CFR 385.2001(a)(1)(iii) and the Magalie R. Salas, CVEC and the Company, First Revised instructions on the Commission’s Web Secretary. site under the ‘‘e-Filing’’ link. Rate Schedule FERC No. 94. The Company requests waiver of the [FR Doc. 03–18949 Filed 7–24–03; 8:45 am] Comment Date: July 8, 2003. Commission’s notice of filing BILLING CODE 6717–01–P Magalie R. Salas, requirements to allow the letter agreement to become effective on Secretary. DEPARTMENT OF ENERGY August 1, 2003. The Company states [FR Doc. 03–18946 Filed 7–24–03; 8:45 am] that it will begin service under the new Federal Energy Regulatory BILLING CODE 6717–01–P delivery point on or after August 1, Commission 2003. The Company states that copies of the Notice of Application Tendered for DEPARTMENT OF ENERGY filing were served upon CVEC, the Filing With the Commission; Soliciting Virginia State Corporation Commission Federal Energy Regulatory Additional Study Requests; and the North Carolina Utilities Establishing Procedural Schedule for Commission Commission. Relicensing and a Deadline for Comment Date: August 5, 2003. Submission of Final Amendments [Docket No. ER96–1085–006, et al.] 4. Calpine Newark, LLC July 2, 2003. South Carolina Electric & Gas [Docket Nos. QF86–891–005 and EL03–211– Take notice that the following Company, et al.; Electric Rate and 000] hydroelectric license application has Corporate Filings Take notice that on July 11, 2003, been filed with the Commission and is Calpine Newark, LLC filed with the available for public inspection. July 18, 2003. Federal Energy Regulatory Commission a. Type of Application: New Major The following filings have been made (Commission), a petition for limited License. with the Commission. The filings are waiver of the Commission’s operating b. Project No.: P–2183–035. listed in ascending order within each and efficiency standards for a topping- c. Date filed: June 2, 2003. docket classification. cycle cogeneration facility. d. Applicant: Grand River Dam Comment Date: August 11, 2003. Authority (GRDA).

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e. Name of Project: Markham Ferry the following existing facilities: (1) The Notice that application is ready for Hydroelectric Project. 3,744-foot-long by about 90-foot-high environmental analysis: August 2004. f. Location: On the Grand (Neosho) Robert S. Kerr dam, which includes an Notice of the availability of the EA: River, in Mayes County, Oklahoma. This 824-foot-long gated spillway, topped February 2005. project would not use federal lands. with 17, 40-foot-long by 27-foot-high, Ready for Commission decision on the g. Filed Pursuant to: Federal Power steel Taintor gates and two 80-ton application: May 2005. Act 16 U.S.C. 791 (a)—825(r). capacity traveling gate hoists; (2) the 15- Final amendments to the application h. Applicant Contact: Mr. Robert W. mile-long Lake Hudson, which has a must be filed with the Commission no Sullivan, Assistant General Manager, surface area of 10,900 feet, 200,300 acre- later than 30 days from the issuance Risk Management & Regulatory feet of operating storage, and 444,500 date of the notice of ready for Compliance, GRDA, P.O. Box 409, acre-feet total of flood storage capacity; environmental analysis. Vinita, Oklahoma 74301; (918)–256– (3) the 6,200-foot-long by 45-foot-high Magalie R. Salas, 5545. Salina Dike; (4) a concrete powerhouse i. FERC Contact: John Ramer, containing four 35 horsepower Kaplan Secretary. [email protected], (202) 502–8969. turbines with a total maximum [FR Doc. 03–18935 Filed 7–24–03; 8:45 am] j. Cooperating Agencies: We are hydraulic capacity of 28,000 cubic feet BILLING CODE 6717–01–P asking Federal, state, and local agencies per second (cfs) and four generating and Indian tribes with jurisdiction and/ units with a total installed generating or special expertise with respect to capacity of 108,000 kilowatts (kW), and DEPARTMENT OF ENERGY environmental issues to cooperate with producing an average of 257,107,000 us in the preparation of the Federal Energy Regulatory kilowatt hours (kWh) annually; (5) one Commission environmental document. Agencies who unused 110-kilovolt (kV) transmission would like to request cooperating status line; and (6) appurtenant facilities. The [Project No. 2720–036] should follow the instructions for filing dam and existing project facilities are comments described in item k below. owned by GRDA. Notice of Application Accepted for k. Pursuant to Section 4.32(b)(7) of 18 o. A copy of the application is on file Filing and Soliciting Motions To CFR of the Commission’s regulations, if with the Commission and is available Intervene and Protests any resource agency, Indian tribe, or for public inspection. This filing may person believes that an additional July 2, 2003. also be viewed on the Web at http:// scientific study should be conducted in Take notice that the following www.ferc.gov using the ‘‘FERRIS’’ link— order to form an factual basis for hydroelectric application has been filed select ‘‘Docket #’’ and follow the complete analysis of the application on with the Commission and is available instructions. For assistance, please its merit, the resource agency, Indian for public inspection. contact FERC Online Support at tribe, or person must file a request for a. Type of Application: New Major [email protected] or toll a study with the Commission not later License. free at (866) 208–3676 or for TTY, than 60 days after the application filing b. Project No.: 2720–036. contact (202) 502–8659. A copy is also and serve a copy of the request on the c. Date filed: July 29, 2002. available for inspection and applicant. d. Applicant: City of Norway, reproduction at the address in item h l. Deadline for filing additional study Michigan. above. requests and requests for cooperating e. Name of Project: Sturgeon Falls agency status: August 1, 2003. p. You may also register online at Hydroelectric Project. All documents (original and eight http://www.ferc.gov/esubscribenow.htm f. Location: On the Menominee River copies) should be filed with: Magalie R. to be notified via e-mail of new filings in Dickinson County, Michigan and Salas, Secretary, Federal Energy and issuances related to this or other Marinette County, Wisconsin. The Regulatory Commission, 888 First pending projects. For assistance, contact project does not utilize lands of the Street, NE., Washington, DC 20426. FERC Online Support. United States. The Commission’s Rules of Practice q. With this notice, we are initiating g. Filed Pursuant to: Federal Power require all intervenors filing documents consultation with the Oklahoma State Act 16 U.S.C. 791 (a)—825(r) with the Commission to serve a copy of Historic Preservation Officer (SHPO), as h. Applicant Contact: Ray Anderson, that document on each person on the required by § 106, National Historic City Manager, City of Norway, City Hall, official service list for the project. Preservation Act, and the regulations of 915 Main Street, Norway, Michigan Further, if an intervenor files comments the Advisory Council on Historic 49870, (906) 563–8015. or documents with the Commission Preservation, 36 CFR 800.4. i. FERC Contact: Patti Leppert (202) relating to the merits of an issue that r. Procedural schedule and final 502–6034, or [email protected]. may affect the responsibilities of a amendments: The application will be j. Deadline for filing motions to particular resource agency, they must processed according to the following intervene and protests: 60 days from the also serve a copy of the document on Hydro Licensing Schedule. Revisions to issuance date of this notice. that resource agency. the schedule will be made as All documents (original and eight Additional study requests may be appropriate. The Commission staff copies) should be filed with: Magalie R. filed electronically via the Internet in proposes to issue one environmental Salas, Secretary, Federal Energy lieu of paper. The Commission strongly assessment rather than issue a draft and Regulatory Commission, 888 First encourages electronic filing. See 18 CFR final EA. Comments, terms and Street, NE., Washington, DC 20426. 385.2001(a)(1)(iii) and the instructions conditions, recommendations, The Commission’s Rules of Practice on the Commission’s Web site (http:// prescriptions, and reply comments, if require all intervenors filing documents www.ferc.gov) under the ‘‘e-Filing’’ link. any, will be addressed in an EA issued with the Commission to serve a copy of m. The application is not ready for in early 2005. that document on each person on the environmental analysis at this time. Issue Acceptance or Deficiency Letter: official service list for the project. n. Project Description: The Markham November 2003. Further, if an intervenor files comments Ferry Hydroelectric Project consists of Issue Scoping Document: April 2004. or documents with the Commission

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relating to the merits of an issue that application to which the filing GA 31010; 229–273–3811; may affect the responsibilities of a responds; (3) furnish the name, address, [email protected]. particular resource agency, they must and telephone number of the person i. FERC Contact: Janet Hutzel at 202– also serve a copy of the document on protesting or intervening; and (4) 502–8675; [email protected]. that resource agency. otherwise comply with the requirements j. Effective Date of Current License: Motions to intervene and protests, of 18 CFR 385.2001 through 385.2005. August 14, 1980. comments, recommendations, terms and Agencies may obtain copies of the k. Expiration Date of Current License: conditions, and prescriptions may be application directly from the applicant. August 9, 2008. filed electronically via the Internet in A copy of any protest or motion to l. Description of the Project: (1) A 415- lieu of paper. The Commission strongly intervene must be served upon each foot-long, 49-foot-high gated spillway; encourages electronic filings. See 18 representative of the applicant specified (2) a 630-foot-long auxiliary spillway; CFR 385.2001(a)(1)(iii) and the in the particular application. (3) a 3,410-foot-long north embankment; instructions on the Commission’s Web o. Procedural schedule and final (4) a 680-foot-long south embankment; site (http://www.ferc.gov ) under the ‘‘e- amendments: The application should be (5) a 8,700-acre impoundment at a full Filing’’ link. processed according to the following pool elevation of 237 feet mean sea k. This application has been accepted Hydro Licensing Schedule. Revisions to level; (6) a powerhouse containing four for filing, but is not ready for the schedule will be made as turbines with a total installed capacity environmental analysis at this time. appropriate. of 15.2 MW; (7) a 1,400-foot-long, 46-kV l. Description of Project: The existing Issue Scoping Document 1 for transmission line; and (8) appurtenant project consists of: (1) A 270-foot-long comments: July 2003. facilities. No new facilities are concrete dam with spillway equipped Request Additional Information, if proposed. with a 16.7-foot-high by 24-foot-wide necessary: August 2003. m. Each application for a new license Taintor gate and a 16.7-foot-high by 16- Issue Scoping Document 2, if and any competing license applications foot-wide Taintor gate; (2) a 126.5-foot- necessary: August 2003. must be filed with the Commission at long concrete head-works structure; (3) Notice Ready for Environmental least 24 months prior to the expiration a 400-acre impoundment with a normal Analysis: September 2003. of the existing license. All applications pool elevation of 829.8 feet National Notice of the availability of the EA: for license for this project must be filed Geodetic Vertical Datum; (4) a 300-foot- January 2004. by August 9, 2006. long, 60-foot-wide power canal; (5) a Ready for Commission’s decision on n. A copy of this filing is available for powerhouse containing four generating the application: March 2004. review at the Commission in the Public units with a total installed capacity of p. You may also register online at Reference Room or may be viewed on 5,136 kilowatts; (6) a 300-foot-long, 7.2- http://www.ferc.gov/esubscribenow.htm the Commission’s Web site at http:// kV transmission line; and (7) to be notified via e-mail of new filings www.ferc.gov using the ≥FERRIS≥ link. appurtenant facilities. and issuances related to this or other Enter the docket number to access the m. A copy of the application is pending projects. For assistance, contact document excluding the last three digits available for review at the Commission FERC Online Support. in the docket number field to access the in the Public Reference Room or may be document. For assistance, contact FERC viewed on the Commission’s Web site at Magalie R. Salas, Online Support at http://www.ferc.gov using the ≥FERRIS≥ Secretary. [email protected] or toll- link. Enter the docket number excluding [FR Doc. 03–18936 Filed 7–24–03; 8:45 am] free at 1–866–208–3676, or TTY 202– the last three digits in the docket BILLING CODE 6717–01–P 502–8659. A copy is also available for number field to access the document. inspection and reproduction at the For assistance, contact FERC Online address in item h above. Support at DEPARTMENT OF ENERGY o. Register online at http:// [email protected] or toll- www.ferc.gov/esubscribenow.htm to be Federal Energy Regulatory free at 1–866–208–3676, or for TTY, notified via e-mail of new filings and Commission (202) 502–8659. A copy is also available issuances related to this or other for inspection and reproduction at the [Project No. 659] pending projects. For assistance, contact address in item h above. FERC Online Support as shown in the n. Anyone may submit comments, a Notice of Intent To File Application for paragraph above. protest, or a motion to intervene in New License accordance with the requirements of Magalie R. Salas, Rules of Practice and Procedure, 18 CFR July 2, 2003. Secretary. 385.210, .211, .214. In determining the a. Type of Filing: Notice of Intent to Mailing List for P–659 appropriate action to take, the File Application for a New License. Commission will consider all protests or b. Project No.: 659. MELTON CULPEPPER other comments filed, but only those c. Date Filed: June 18, 2003. CULPEPPER, PFEIFFER & HARPE d. Submitted By: Crisp County Power PO Box 584 who file a motion to intervene in Cordele, GA 31010–0584 accordance with the Commission’s Commission—current licensee. e. Name of Project: Lake Blackshear GENE FORD PLANT MGR. Rules may become a party to the Crisp County Power Commission proceeding. Any comments, protests, or Hydroelectric Project. PO Box 1218 motions to intervene must be received f. Location: On the Flint River, in Cordele, GA 31010–1218 on or before the specified comment date Crisp, Dooly, Lee, Sumter, and Worth STEVE RENTFROW for the particular application. Counties, Georgia. GEN. MANAGER All filings must (1) bear in all capital g. Filed Pursuant to: Section 15 of the Crisp County Power Commission letters the title ‘‘PROTEST’’ or Federal Power Act. PO Box 1218 ‘‘MOTION TO INTERVENE;’’ (2) set h. Licensee Contact: Steve Rentfrow, Cordele, GA 31010–1218 forth in the heading the name of the General Manager, Crisp County Power John R. Molm applicant and the project number of the Commission, P.O. Box 1218, Cordelle, Troutman Sanders LLP

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401 9th St NW Ste 1000 ATHENS, GA 30602–0002 711 Stewarts Ferry Pike Washington, DC 20004–2146 CHAIRMAN Nashville, TN 37214–2751 CHAIRMAN LEE, COUNTY OF DISTRICT MANAGER CRISP, COUNTY OF BOARD OF COMMISSIONERS US Bureau of Land Management BOARD OF COMMISSIONERS LEESBURG, GA 31763 PO Box 631 CORDELE, GA 31015 REGIONAL DIRECTOR Milwaukee, WI 53201–0631 Regional Engineer National Marine Fisheries Service DISTRICT MANAGER Federal Energy Regulatory Commission SOUTHEAST REGIONAL OFFICE US Bureau of Land Management Atlanta Regional Office 9721 Executive Center Dr N JACKSON DISTRICT OFFICE 3125 Presidential Pkwy Ste 300 Saint Petersburg, FL 33702–2449 411 Briarwood Dr Ste 404 Atlanta, GA 30340–3700 SOUTHEAST REGION DIRECTOR Jackson, MS 39206–3058 DIRECTOR National Marine Fisheries Service COMMANDING OFFICER GEORGIA DEPT OF AGRICULTURE NORTHEAST REGIONAL OFFICE—DOC/ US Coast Guard AGRICULTURE BUILDING NOAA MSO SAVANNAH CAPITOL SQUARE 1 Blackburn Dr 222 W Oglethorpe Ave Ste 402 ATLANTA, GA 30334 Gloucester, MA 01930–2237 Savannah, GA 31401–3665 DAVID WALLER DIRECTOR LONICE BARRETT DIRECTOR JAMES LEE Georgia Dept. of Natural Resources PARKS & HISTORIC SITES DIVISION US Department of the Interior WILDLIFE RESOURCES DIVISION DEPARTMENT OF NATURAL RESOURCES RUSSELL FEDERAL BUILDING 2070U Highway 278 SE 205 Butler St SE Ste 1352 75 Spring St SW Ste 1144 Social Circle, GA 30025–4711 Atlanta, GA 30334–9043 Atlanta, GA 30303–3308 Jon Ambrose Program Manager CHAIRMAN DIRECTOR Georgia Dept. of Natural Resources SUMTER, COUNTY OF US Department of the Interior NATURAL HERITAGE PROGRAM BOARD OF COMMISSIONERS OFFICE OF THE SOLICITOR 2117 Highway 278 SE AMERICUS, GA 31709 75 Spring St SW Ste 1328 Social Circle, GA 30025–4714 Georgia Field Office Director Atlanta, GA 30303–3309 DIRECTOR U.S. Fish & Wildlife Service Georgia Environmental Protection Div. 247 S Milledge Ave REGIONAL ADMINISTRATOR DEPARTMENT OF NATURAL RESOURCES Athens, GA 30605-–1045 US ENVIRONMENTAL PROTECTION 205 Butler St SE Ste 1152 CYNTHIA BOHN AGENCY Atlanta, GA 30334–9041 U.S. Fish & Wildlife Service REGION IV DIRECTOR ECOLOGICAL SERVICES 61 Forsyth St SW GEORGIA FORESTRY COMMISSIONPO Bo 1875 Century Blvd NE Ste 200 Atlanta, GA 30303–8931 x 819 Atlanta, GA 30345–3319 Diana M. Woods Macon, GA 31202–0819 REGIONAL DIRECTOR US Environmental Protection Agency DIRECTOR U.S. National Park Service Wetlands Section GEORGIA GEOLOGIC SURVEY U.S. DEPARTMENT OF THE INTERIOR 61 Forsyth St SW DEPARTMENT OF NATURAL RESOURCES/ 100 Alabama St SW Atlanta, GA 30303–8931 EPD Atlanta, GA 30303–8701 SANFORD D. BISHOP, JR. HONORABLE 19 Martin Luther King Jr Dr SW COMMANDER US House of Representatives Atlanta, GA 30334–9004 US Army Corps of Engineers WASHINGTON, DC 20515 Ray Luce Director PO Box 1159 Zell Miller Honorable Georgia Historic Preservation Division Cincinnati, OH 45201–1159 US Senate 151 Trinity Ave SW Ste 101 CHARLES YANNY Washington, DC 20510 Atlanta, GA 30303–3625 US Army Corps of Engineers Chambliss Saxby Honorable DIRECTOR PO Box 2288 US Senate GEORGIA OFFICE OF PLANNING & Mobile, AL 36628–0001 Washington, DC 20510 BUDGET DISTRICT ENGINEER CHAIRMAN WORTHY, 270 Washington St SW US Army Corps of Engineers COUNTY OF Atlanta, GA 30334–9009 PO Box 889 BOARD OF COMMISSIONERS ATTORNEY GENERAL Savannah, GA 31402–0889 SYLVESTER, GA 31791 GEORGIA OFFICE OF THE ATTORNEY COMMANDER [FR Doc. 03–18937 Filed 7–24–03; 8:45 am] GENERAL US Army Corps of Engineers 132 STATE JUDICIAL BUILDING S. ATLANTIC DIV.—ATTN: CESAD–ET–CO– BILLING CODE 6717–01–P ATLANTA, GA 30334 H SECRETARY 60 Forsyth St SW Rm 9M15 Georgia Public Service Commission Atlanta, GA 30303–8801 DEPARTMENT OF ENERGY 244 Washington St SW Fred Allgaier Atlanta, GA 30334–9007 US Bureau of Indian Affairs Federal Energy Regulatory REGIONAL DIRECTOR 3000 Youngfield St Ste 230 Commission GEORGIA REGIONAL FORESTER Lakewood, CO 80215–6551 SOUTHERN REGION Solicitors Office Hydroelectric Applications; Notice of 1720 Peachtree St NW US Bureau of Indian Affairs Filing Atlanta, GA 30309–2449 1849 C St NW Rm 6454 July 21, 2003. Washington, DC 20240–0001 DIRECTOR Backbone Windpower Holdings, LLC GEORGIA STATE SOIL & WATER CONSERV Malka Pattison COMM US Bureau of Indian Affairs [Docket No. ER02–2559–001] PO Box 8024 Office of Trust Responsibilities Badger Windpower, LLC Athens, GA 30603–8024 1849 C Street, NW., MS 4513 MIB [Docket No. ER01–1071–002] Washington, DC 20240–0001 C. Ronald Carroll Director Bayswater Peaking Facility, LLC Institute of Ecology Dr. James Kardatzke, Ecologist University of Georgia US Bureau of Indian Affairs [Docket No. ER02–669–002] UNIV OF GEORGIA Eastern Regional Office Blythe Energy, LLC

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[Docket No. ER02–2018–002] Any person desiring to intervene or to CFR Part 60, Subpart PPP) and NESHAP Calhoun Power Company I, LLC protest this filing should file with the for Wool Fiberglass Manufacturing [Docket No. ER02–2074–002] Federal Energy Regulatory Commission, Plants (40 CFR Part 63, Subpart NNN). Doswell Limited Partnership 888 First Street, NE., Washington, DC The ICR, which is abstracted below, 20426, in accordance with Rules 211 describes the nature of the information [Docket No. ER90–80–001] and 214 of the Commission’s Rules of collection and its estimated burden and ESI Vansycle Partners, L.P. Practice and Procedure (18 CFR 385.211 cost. [Docket No. ER98–2494–004] and 385.214). Protests will be DATES: Additional comments may be Florida Power & Light Company considered by the Commission in submitted on or before August 25, 2003. determining the appropriate action to be [Docket No. ER97–3359–005] ADDRESSES: Follow the detailed taken, but will not serve to make FPL Energy Cape, LLC instructions under SUPPLEMENTARY protestants parties to the proceeding. INFORMATION. [Docket No. ER00–3068–002] Any person wishing to become a party FPL Energy Hancock County Wind, LLC must file a motion to intervene. All such FOR FURTHER INFORMATION CONTACT: Docket No. ER03–34–001] motions or protests should be filed on Gregory Fried, Compliance Assessment FPL Energy Maine Hydro, Inc. or before the comment date, and, to the and Media Programs Division, Office of Compliance, Mail Code: 2223A, [Docket No. ER98–3511–006] extent applicable, must be served on the applicant and on any other person Environmental Protection Agency, 1200 FPL Energy MH 50, LP designated on the official service list. Pennsylvania Avenue, NW., [Docket No. ER99–2917–003] This filing is available for review at the Washington, DC 20460; telephone FPL Energy Marcus Hook, L.P. Commission or may be viewed on the number: (202) 564–7016; fax number: [Docket No. ER02–1903–001] Commission’s Web site at http:// (202) 564–0050; E-mail address: FPL Energy Mason, LLC www.ferc.gov, using the ‘‘FERRIS’’ link. [email protected]. [Docket No. ER98–3562–006] Enter the docket number excluding the SUPPLEMENTARY INFORMATION: EPA has last three digits in the docket number FPL Energy New Mexico Wind, LLC submitted the following ICR to OMB for field to access the document. For review and approval according to the [Docket No. ER03–179–002] assistance, please contact FERC Online procedures prescribed in 5 CFR 1320.12. FPL Energy Pennsylvania Wind, LLC Support at On September 26, 2002 (67 FR 60672), [Docket No. ER02–2166–001] [email protected] or toll- EPA sought comments on this ICR FPL Energy Power Marketing, Inc. free at (866) 208–3676, or for TTY, pursuant to 5 CFR 1320.8(d). EPA contact (202) 502–8659. Protests and [Docket No. ER98–3566–009] received no comments. interventions may be filed electronically FPL Energy Rhode Island Energy, L.P. EPA has established a public docket via the Internet in lieu of paper; see 18 for this ICR under Docket ID Number [Docket No. ER02–2120–001] CFR 385.2001(a)(1)(iii) and the OECA–2003–0057, which is available FPL Energy Seabrook, LLC instructions on the Commission’s Web for public viewing at the Enforcement [Docket No. ER02–1838–001] site under the ‘‘e-Filing’’ link. The and Compliance Docket and Information FPL Energy Vansycle, LLC Commission strongly encourages Center in the EPA Docket Center (EPA/ electronic filings. [Docket No. ER01–838–002] DC), EPA West, Room B102, 1301 Comment Date: August 1, 2003. Constitution Avenue, NW., Washington, FPL Energy Wyman, LLC Linda Mitry, DC. The EPA Docket Center Public [Docket No. ER98–3563–006] Acting Secretary. Reading Room is open from 8:30 a.m. to FPL Energy Wyman IV, LLC [FR Doc. 03–19036 Filed 7–24–03; 8:45 am] 4:30 p.m., Monday through Friday, [Docket No. ER98–3564–006] excluding legal holidays. The telephone BILLING CODE 6717–01–P Gray County Wind Energy, LLC number for the Reading Room is (202) [Docket No. ER01–1972–002] 566–1744, and the telephone number for the Enforcement and Compliance Hawkeye Power Partners, LLC ENVIRONMENTAL PROTECTION Docket and Information Center is: (202) AGENCY [Docket No. ER98–2076–005] 566–1514. An electronic version of the High Winds, LLC [OECA–2003–0057; FRL–7535–5] public docket is available through EPA [Docket No. ER03–155–001] Dockets (EDOCKET) at http:// Agency Information Collection Jamaica Bay Peaking Facility, LLC www.epa.gov/edocket. Use EDOCKET to Activities; Submission of EPA ICR [Docket No. ER03–623–003] submit or view public comments, access Number 1160.07 (OMB Number 2060– the index listing of the contents of the Lake Benton Power Partners II, LLC 0114) to OMB for Review and public docket, and to access those [Docket No. ER98–4222–001] Approval; Comment Request documents in the public docket that are Mill Run Windpower, LLC AGENCY: Environmental Protection available electronically. When in the [Docket No. ER01–1710–002] Agency (EPA). system, select ‘‘search,’’ then key in the Somerset Windpower, LLC ACTION: Notice. docket ID number identified above. Any comments related to this ICR [Docket No. ER01–2139–003] SUMMARY: In compliance with the should be submitted to OMB and EPA West Texas Wind Energy Partners, LP Paperwork Reduction Act (44 U.S.C. within 30 days of this notice, and [Docket No. ER98–1965–002] 3501 et seq.), this document announces according to the following detailed Take notice that on June 30, 2003, the that the following Information instructions: (1) Mail your comments to FPL Energy, LLC, on behalf of certain of Collection Request (ICR) has been OMB at: Office of Information and its subsidiaries, and Florida Power and forwarded to the Office of Management Regulatory Affairs, Office of Light Company tendered for filing their and Budget (OMB) for review and Management and Budget (OMB), updated market analysis associated with approval: NSPS for Wool Fiberglass Attention: Desk Officer for EPA, 725 market-based rate authorizations. Insulation Manufacturing Plants (40 17th Street, NW., Washington, DC

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20503, and (2) Submit your comments subject to NSPS subpart PPP and/or $0 annualized capital/startup costs and to EPA online using EDOCKET (our NESHAP subpart NNN must also record $488,500 annual O&M costs. preferred method), by E-mail to continuous measurements of control Changes in the Estimates: There is a [email protected], or by mail to: EPA device operating parameters. For NSPS decrease of 882 hours in the total Docket Center, Environmental subpart PPP these operating parameters estimated burden currently identified in Protection Agency, Mail Code: 2201T, include gas pressure drop and liquid the OMB Inventory of Approved ICR 1200 Pennsylvania Avenue, NW., flow rate if using a wet scrubber and Burdens. This decrease is due to all Washington, DC 20460. voltage and inlet water flow rates if existing sources having already EPA’s policy is that public comments, using an electrostatic precipitator (ESP). completed required performance testing whether submitted electronically or in For NESHAP subpart NNN operating given that the compliance date of June paper, will be available for public parameter measurements, include bag 14, 2002, has passed. viewing in EDOCKET as EPA receives leak detection system alarms, furnace Dated: July 17, 2003. them without change, unless the operating temperature, glass pull rate, Doreen Sterling, comment contains copyrighted material, and scrubber and ESP parameter Confidential Business Information (CBI), Acting Director, Collection Strategies controls. Division. or other information whose public In order to ensure compliance with [FR Doc. 03–19002 Filed 7–24–03; 8:45 am] disclosure is restricted by statute. When the standards promulgated to protect BILLING CODE 6560–50–P EPA identifies a comment containing public health, adequate reporting and copyrighted material, EPA will provide recordkeeping is necessary. In the a reference to that material in the absence of such information ENVIRONMENTAL PROTECTION version of the comment placed in enforcement personnel would be unable AGENCY EDOCKET. The entire printed comment, to determine whether the standards are including copyrighted material, will be being met on a continuous basis, as [FRL–7535–6] available in the public docket. Although required by the Clean Air Act. identified as an item in the official Agency Information Collection An agency may not conduct or Activities; OMB Responses docket, information claimed as CBI, or sponsor, and a person is not required to whose disclosure is otherwise restricted respond to, a collection of information AGENCY: Environmental Protection by statute, is not included in the official unless it displays a currently valid OMB Agency (EPA). public docket, and will not be available control number. The OMB control ACTION: Notices. for public viewing in EDOCKET. For numbers for EPA’s regulations are listed further information about the electronic in 40 CFR part 9 and 48 CFR chapter 15, SUMMARY: This document announces the docket, see EPA’s Federal Register and are identified on the form and/or Office of Management and Budget’s notice describing the electronic docket instrument, if applicable. (OMB) responses to Agency clearance at 67 FR 38102 (May 31, 2002), or go to Burden Statement: The annual public requests, in compliance with the www.epa.gov/edocket. Paperwork Reduction Act (44 U.S.C. Title: NSPS for Wool Fiberglass reporting and recordkeeping burden for this collection of information is 3501 et. seq.). An agency may not Insulation Manufacturing Plants (40 conduct or sponsor, and a person is not CFR Part 60, Subpart PPP) and NESHAP estimated to average 101 hours per response. Burden means the total time, required to respond to, a collection of for Wool Fiberglass Manufacturing information unless it displays a Plants (40 CFR Part 63, Subpart NNN) effort, or financial resources expended by persons to generate, maintain, retain, currently valid OMB control number. (OMB Control Number 2060–0114, EPA The OMB control numbers for EPA’s ICR Number 1160.07). This is a request or disclose or provide information to or for a Federal agency. This includes the regulations are listed in 40 CFR part 9 to renew an existing approved and 48 CFR chapter 15. collection that is scheduled to expire on time needed to review instructions; FOR FURTHER INFORMATION CONTACT: July 31, 2003. Under OMB regulations, develop, acquire, install, and utilize Susan Auby (202) 566–1672, or email at the Agency may continue to conduct or technology and systems for the purposes [email protected] and please refer to sponsor the collection of information of collecting, validating, and verifying the appropriate EPA Information while this submission is pending at information, processing and Collection Request (ICR) Number. OMB. maintaining information, and disclosing Abstract: The Administrator has and providing information; adjust the SUPPLEMENTARY INFORMATION: existing ways to comply with any judged that Particulate Matter (PM) and OMB Responses to Agency Clearance previously applicable instructions and Hazardous Air Pollutants (HAP) Requests emissions from wool fiberglass requirements; train personnel to be able manufacturing plants cause or to respond to a collection of OMB Approvals contribute to air pollution that may information; search data sources; EPA ICR No. 0226.17; Applications reasonably be anticipated to endanger complete and review the collection of for NPDES Discharge Permits and the public health or welfare. Owners/ information; and transmit or otherwise Sewage Sludge Management Permits; operators of wool fiberglass disclose the information. was approved 06/12/2003; in 40 CFR manufacturing plants subject to New Respondents/Affected Entities: Wool 122.26(b)(14)(i-xi), 40 CFR 122.21(b- Source Performance Standards (NSPS) Fiberglass Manufacturing Plants. l)(p)(q), 40 CFR 122.21(g)(7), (13), 40 subpart PPP and/or National Emissions Estimated Number of Respondents: CFR 122.21(a)(2); OMB Number 2040– Standards for Hazardous Air Pollutants 61. 0086, expires 06/30/2006. (NESHAP) subpart NNN must provide Frequency of Response: Initial and EPA ICR No. 0649.08; NSPS for Metal notifications to EPA of construction, semiannual. Furniture Coating; was approved 06/16/ modification, startups, shut downs, date Estimated Total Annual Hour Burden: 2003; in 40 CFR part 60, subpart EE; and results of initial performance tests 18,216. OMB Number 2060–0106; expires 06/ and provide semiannual reports of Estimated Total Capital and 30/2006. excess emissions. Owners/operators of Operations & Maintenance (O & M) EPA ICR No. 0659.09; NSPS for wool fiberglass manufacturing facilities Annual Costs: $488,500 which includes Surface Coating of Large Appliances;

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was approved 06/16/2003; in 40 CFR EPA ICR No. 1900.02; NSPS Small Concentrated Animal Feeding part 60, subpart SS; OMB Number Municipal Waste Combustors; was Operations; was approved 07/10/2003; 2060–0108; expires 06/30/2006. approved 06/16/2003; in 40 CFR part in 40 CFR 122, 40 CFR 122.21(i)(1)(i–xi), EPA ICR No. 0783.44; Motor Vehicle 60, subpart AAAA; OMB Number 2060– 40 CFR 122.21(f), 40 CFR 122.21(f)(1), Emission Standards and Emission 0423; expires 06/30/2006. 40 CFR 122.21(f)(7), 40 CFR 122.23(f)(1– Credits Provisions (Highway EPA ICR No. 2003.02; NESHAP for 3), 40 CFR 122.23(g–h), 40 CFR Motorcycles and Recreational Vehicles) Integrated Iron and Steel Manufacturing 122.28(b)(3)(iv), 40 CFR 122.41, 40 CFR (Amendments) (Final Rule); was (Final Rule); was approved 06/16/2003; 122.42(e)(1), 40 CFR 122.42(e)(1)(i–iv), approved 06/11/2003; in 40 CFR part in 40 CFR 63.7840(a), 40 CFR 40 CFR 122.42(e)(4), 40 CFR 1051; OMB Number 2060–0104; expires 63.7800(b), 40 CFR 63.7841(b–c), 40 122.42(e)(3), 40 CFR 122.62, 40 CFR 07/31/2005. CFR 63.7842(a)(1–3), 40 CFR 63.7842(b– 122.62(b)(2–4), 40 CFR 123, 40 CFR EPA ICR No. 0997.07; NSPS for d); OMB Number 2060–0517; expires 123.25, 40 CFR 123.40, 40 CFR Petroleum Dry Cleaners; was approved 06/30/2006. 123.25(a)(22, 27, 30, 31, 33, 34), 40 CFR 06/16/2003; in 40 CFR part 60, subpart EPA ICR No. 2014.02; Reporting and 123.26(b), 40 CFR 123.42(e)(3–4), 40 JJJ; OMB Number 2060–0079; expires Recordkeeping Requirements of the CFR 123.42(e)(4)(i–vi), 40 CFR 123.62, 06/30/2006. HCFC (Hydro-Chlorofluorocarbon) 40 CFR 123.62(a), 40 CFR 123.62(b)(1), EPA ICR No. 1062.08; NSPS for Coal allowance system (Final Rule); was 40 CFR 412, 40 CFR 412(a)(1)(i–iii), 40 Preparation Plants; was approved 06/16/ approved 06/16/2003; in 40 CFR 82.23, CFR 412.37(b), 40 CFR 412.37(b)(1–6), 2003; in 40 CFR part 60, subpart Y; 40 CFR 82.24; OMB Number 2060–0498; 40 CFR 412.37(c), 40 CFR 412.37(c)(1– OMB Number 2060–0122; expires 06/ expires 06/30/2006. 9); OMB Number 2040–0250; expires 30/2006. EPA ICR No. 2023.02; Recordkeeping 07/31/2006. EPA ICR No. 1156.09; NSPS for and Reporting Requirements for the EPA ICR No. 1569.05; Approval of Synthetic Fiber Production Facility; was Clay Ceramics Manufacturing NESHAP; State Coastal Nonpoint Pollution approved 06/16/2003; in 40 CFR part was approved 06/16/2003; in 40 CFR Control Programs (CZARA Section 60, subpart HHH; OMB Number 2060– part 63, subpart KKKKK; OMB Number 6217); was approved 07/09/2003; OMB 0059; expires 06/30/2006. 2060–0513; expires 06/30/2006. Number 2040–0153; expires 07/31/2006. EPA ICR No. 2042.02; NESHAP for EPA ICR No. 1432.22; Recordkeeping Short Term Extensions and Period Reporting of the Production, Semiconductor Manufacturing; was Import, Export, Recycling, Destruction, approved 06/16/2003; in 40 CFR part EPA ICR No. 0976.10; The 2001 Transhipment and Feedstock Use of 63, subpart BBBBB; OMB Number Hazardous Waste Report (Biennial Ozone-Depleting Substances (proposed 2060–0519; expires 06/30/2006. Report); in 40 CFR 262.40(b), 262.41, EPA ICR No. 0940.17; Ambient Air rule); was approved 06/16/2003; in 40 264.75, 265.75; OMB Number 2050– Quality Surveillance; was approved 06/ CFR part 82, subpart E, 40 CFR part 82, 0024; on 06/25/2003; OMB extended the 06/2003; in 40 CFR part 58; OMB subpart A, § 83.13; OMB Number 2060– expiration date through 09/30/2003. Number 2060–0084; expires 06/30/2006. EPA ICR No. 1764.02; Reporting and 0170; expires 05/31/2005. EPA ICR No. 1813.04; Information Recordkeeping Requirements for EPA ICR No. 1711.04; Voluntary Collection Request for Proposed National Volatile Organic Compound Customer Service Satisfaction Surveys; Regional Haze Regulations; was Emission Standards for Consumer was approved 06/16/2003; OMB approved 07/02/2003; in 40 CFR 51.309; Products; in 40 CFR part 59, subpart C; Number 2090–0019; expires 06/30/2006. OMB Number 2060–0421; expires 07/ OMB Number 2060–0348; on 06/20/ EPA ICR No. 1820.03; NPDES Storm 31/2006. 2003; OMB extended the expiration date Water Program Phase III; was approved EPA ICR No. 1053.07; NSPS Subpart through 09/30/2003. 06/12/2003; in 40 CFR 122.26(a), 40 Da—Standards of Performance for EPA ICR No. 1765.02; Reporting and CFR 122.26(c), 40 CFR 122.26(g), 40 Electric Utility Steam Generating Units; Recordkeeping Requirements for CFR 122.33, 40 CFR 122.34(g), 40 CFR was approved 07/02/2003; in 40 CFR National Volatile Organic Compound 123.25, 40 CFR 123.35; OMB Number part 60, subpart Da; OMB Number Emission Standards for Automobile 2040–0211; expires 06/30/2006. 2060–0023; expires 07/31/2006. Refinish Coatings; in 40 CFR part 59, EPA ICR No. 1838.02; Industry EPA ICR No. 2066.02; NESHAP for subpart B; OMB Number 2060–0353; on Detailed Questionnaire: Phase III Engine Test Cells/Stands (Final Rule); 06/20/2003 OMB extended the Cooling Water Intake Structures; was was approved 07/03/2003; in 40 CFR expiration date through 09/30/2003. approved 06/20/2003; OMB Number part 63, subpart PPPPP; OMB Number EPA ICR No. 1912.01; Information 2040–0213; expires 06/30/2006. 2060–0483; expires 07/31/2005. Collection Request: National Primary EPA ICR No. 1842.04; Notice of Intent EPA ICR No. 2032.02; NESHAP for Drinking Water Regulation for Lead and for Storm Water Discharges Associated Hydrocholoric Acid Production (Final Copper (Final Rule); OMB Number with Construction Activity under a Rule); was approved 07/03/2003; in 40 2040–0210; OMB extended the NPDES General Permit; was approved CFR part 63, subpart NNNNN; OMB expiration date through 09/30/2003. 06/12/2003; in 40 CFR 122.26(c)(1)(ii), Number 2060–0529; expires 07/31/2006. EPA ICR No. 1560.06; National Water 40 CFR 122.28(b)(2), 40 CFR 122.41(h– EPA ICR No. 1573.10; Part B Permit Quality Inventory Reports (TMDL Final i), 40 CFR 122.41(l), 40 CFR Application, Permit Modifications and Rule: Clean Water Act Sections 305(b), 122.44(K)(2); OMB Number 2040–0188; Special Permits (Renewal); was 303(d), 314(a) and 106(e)); OMB expires 06/30/2006. approved 07/03/2003; in 40 CFR 264.90, Number 2040–0071; OMB extended the EPA ICR No. 1847.03; Federal Plan 264.193, 264.221, 264.251, 264.272, expiration date through 10/31/2003. Recordkeeping and Reporting 264.301, 264.344, 270.1, 270.10, 270.14– Requirements for Large Municipal 270.29, 270.33, 270.40, 270.41, 270.42, Comment Filed Waste Combustors Constructed on or 270.50, 270.51, 270.60, 270.62, 270.63, EPA ICR No. 2044.01; NESHAP Before September 20, 1994; was 270.64, 270.65 and 270.552; OMB Surface Coating of Plastic Parts and approved 06/16/2003; in 40 CFR part Number 2050–0009; expires 07/31/2006. Products; in 40 CFR part 63, subpart 62, subpart FFF; OMB Number 2060– EPA ICR No. 1989.02; Final NPDES PPPP; on 06/16/2003 OMB filed a 0390; expires 06/30/2006. and ELG Regulatory Revision for comment.

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EPA ICR No. 1975.01; NESHAP for SUMMARY: In this notice, EPA is by EPA on November 13, 2001 (66 FR Stationary Reciprocating Internal notifying the public that we have found 56903). EPA’s adequacy finding will Combustion Engines; in 40 CFR part 63, the revised attainment year motor also be announced on EPA’s conformity subpart ZZZZ; on 06/16/03 OMB filed a vehicle emissions budgets (‘‘budgets’’) Web site: http://www.epa.gov/otaq/traq, comment. for volatile organic compounds (VOC) (once there, click on the ‘‘Conformity’’ EPA ICR No. 1897.05; Information and nitrogen oxides (NOX) in the button, then look for ‘‘Adequacy Review Requirements for Nonroad Diesel submitted revision to the 1-hour ozone of SIP Submissions for Conformity’’). Engines (Nonroad Large SI Engines and attainment demonstration state Transportation conformity is required Marine Diesel Engines); in 40 CFR part implementation plan (SIP) for the by section 176(c) of the Clean Air Act. 94, 40 CFR part 1048; on 06/11/2003 Chicago, Illinois severe nonattainment EPA’s conformity rule requires that OMB filed a comment. area to be adequate for conformity transportation plans, programs, and EPA ICR No. 1967.01; NESHAP for purposes. These attainment year projects conform to SIPs and establishes Stationary Combustion Turbines; in 40 budgets were recalculated using EPA’s the criteria and procedures for CFR part 63, subpart YYYY; on 07/03/ latest motor vehicle emissions factor determining whether or not they 2003 OMB filed a comment. model, MOBILE6. On March 2, 1999, conform. Conformity to a SIP means that EPA ICR No. 2096.01; NESHAP for the DC Circuit Court ruled that transportation activities will not Iron and Steel Foundries (Proposed submitted state implementation plan produce new air quality violations, Rule); in 40 CFR 63.7700, 40 CFR budgets cannot be used for conformity worsen existing violations, or delay 63.7720, 40 CFR 63.7340, 40 CFR determinations until EPA has timely attainment of the national 63.7750, 40 CFR 63.7741, 40 CFR affirmatively found them adequate. As a ambient air quality standards. 63.7751, 40 CFR 63.7752; on 07/03/2006 result of our finding, the Chicago, The criteria by which we determine OMB filed a comment. Illinois severe ozone nonattainment area whether a SIP’s motor vehicle emission EPA ICR No. 2099.01; Implementation can use the revised 2007 attainment budgets are adequate for conformity of Pollution Prevention Alternatives; in year budgets of VOC and NOX from the purposes are outlined in 40 CFR 40 CFR part 63; on 07/03/2003 OMB submitted revision to the 1-hour ozone 93.118(e)(4). Please note that an filed a comment. attainment demonstration SIP for future adequacy review is separate from EPA’s EPA ICR No. 2046.01; NESHAP for conformity determinations. Illinois also completeness review, and it also should Mercury Cell Chlor-Alkali Plants submitted an updated 2005 VOC budget not be used to prejudge EPA’s ultimate (Proposed rule) in 40 CFR part 63, as part of the Rate Of Progress approval of the SIP. Even if we find a subpart IIIII; on 07/03/2003 OMB filed requirement. As a result of this finding, budget adequate, the SIP could later be a comment. the 2005 VOC budget can also be used disapproved. EPA ICR No. 2044.01; Reporting and for conformity determinations in the We have described our process for Recordkeeping Requirements for Chicago, Illinois area. determining the adequacy of submitted National Emission Standards for DATES: This finding is effective August SIP budgets in guidance (May 14, 1999 Hazardous Air Pollutants for Plastic 11, 2003. memo titled ‘‘Conformity Guidance on Parts and Products Surface Coating in FOR FURTHER INFORMATION CONTACT: Implementation of March 2, 1999 40 CFR part 63, subpart PPPP; on 06/24/ Conformity Court Decision’’). We 2003 OMB filed a comment. Patricia Morris, Environmental Scientist, Regulation Development followed this guidance, which can also Withdrawn Section (AR–18J), Air Programs Branch, be found on EPA’s Web site at: http:// Air and Radiation Division, United www.epa.gov/otaq/traq, in making our EPA ICR No. 2083.01; Estimating the adequacy determination. Value of Improvements to Coastal States Environmental Protection Waters—A Pilot Study of a Coastal Agency, Region 5, 77 West Jackson Authority: 42 U.S.C. et seq. Valuation Survey; on 06/12/2003 EPA Boulevard, Chicago, Illinois 60604, Dated: July 9, 2003. withdrew ICR from OMB review. (312) 353–8656, Bharat Mathur, [email protected]. Dated: July 17, 2003. Acting Regional Administrator, Region 5. Doreen Sterling, SUPPLEMENTARY INFORMATION: [FR Doc. 03–19004 Filed 7–24–03; 8:45 am] Throughout this document, whenever Acting Director, Collection Strategies BILLING CODE 6560–50–P Division. ‘‘we’’, ‘‘us’’ or ‘‘our’’ is used, we mean EPA. [FR Doc. 03–19003 Filed 7–24–03; 8:45 am] BILLING CODE 6560–50–P Background ENVIRONMENTAL PROTECTION AGENCY Today’s notice is simply an announcement of a finding that we have [FRL–7536–4] ENVIRONMENTAL PROTECTION already made. EPA Region 5 sent a letter AGENCY to the Illinois Environmental Protection National Drinking Water Advisory [IL200–3; FRL–7535–7] Agency on June 26, 2003, stating that Council; Request for Nominations the revised attainment year motor AGENCY: Environmental Protection Adequacy Status of the Submitted vehicle emissions budgets in the Agency. 2005 and 2007 Revised Attainment Chicago, Illinois submitted 1-hour ACTION: Notice. Demonstration Budgets for the 1-hour ozone attainment demonstration SIP Ozone National Ambient Air Quality revision (dated April 11, 2003) are SUMMARY: The U.S. Environmental Standard for Transportation adequate for conformity purposes. The Protection Agency (EPA) invites all Conformity Purposes for the Chicago, purpose of Illinois’s April 11, 2003 interested persons to nominate qualified IL Severe Ozone Nonattainment Area submittal was to address its enforceable individuals to serve a three-year term as AGENCY: Environmental Protection commitment to revise the attainment members of the National Drinking Water Agency (EPA). year budgets using MOBILE6 within two Advisory Council (Council). This years of the release of the model. This Council was established by the Safe ACTION: Notice of adequacy. enforceable commitment was approved Drinking Water Act (SDWA) to provide

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practical and independent advice, Dated: July 22, 2003. particularly concerning impacts to the consultation and recommendations to Cynthia C. Dougherty, aquatic environment. EPA recommends the Agency on the activities, functions Director, Office of Ground Water and Drinking alignment modifications to further avoid and policies related to the Water. and minimize adverse impacts. EPA implementation of the SDWA. The [FR Doc. 03–19008 Filed 7–24–03; 8:45 am] requests further information regarding Council consists of fifteen members, BILLING CODE 6560–50–P the affected environment, stream including a Chairperson, appointed by crossings, design detail for the Deputy Administrator. Five accommodating wildlife passage, siting members represent the general public; ENVIRONMENTAL PROTECTION or location clarifications, and other five members represent appropriate AGENCY specifics. State and local agencies concerned with [ER–FRL–6642–4] ERP No. D–NOA–E91013–00 Rating water hygiene and public water supply; EC1, Essential Fish Habitat Components and five members represent private Environmental Impact Statements and of Amendment 13 to the Northeast organizations or groups demonstrating Regulations; Availability of EPA Multispecies Fishery Management Plan, an active interest in the field of water Comments Selection of the Best Method of hygiene and public water supply. The Minimizing Impacts of Groundfish SDWA requires that at least two Availability of EPA comments Fishing on Essential Fish Habitats, New members of the Council represent small, prepared pursuant to the Environmental England Fishery Management Council, rural public water systems. On Review Process (ERP), under Section ME, NH, VT, MA, RI, CT, NY, NJ, DE, December 15 of each year, five members 309 of the Clean Air Act and Section MD, VA, and NC. complete their appointment. Therefore, 102(2)(c) of the National Environmental Summary: EPA expressed this notice solicits names to fill the five Policy Act as amended. Requests for environmental concern on numbers of vacancies, with appointed terms ending copies of EPA comments can be directed traps, wet storage of traps and no tag on December 15, 2006. to the Office of Federal Activities at accountability. (202) 564–7167. An explanation of the ERP No. D–NOA–G39038–LA Rating Any interested person or organization ratings assigned to draft environmental may nominate qualified individuals for LO, Programmatic EIS—The Louisiana impact statements (EISs) was published Regional Restoration Planning Program, membership. Nominees should be in FR dated April 4, 2003 (68 FR 16511). identified by name, occupation, Establishment and Implementation of position, address and telephone Draft EISs Natural Resource Trust Mandates, LA. Summary: EPA had no objection to number. To be considered, all ERP No. D–AFS–F65042–WI Rating the selection of the preferred alternative. nominations must include a current EC2, Sunken Moose Project, Proposal to ERP No. D–NOA–L91017–00 Rating resume providing the nominee’s Restore and/or Maintain the Red and EO2, Programmatic EIS—Pacific Salmon background, experience and White Pine Communities, Washurn Fisheries Management Plan, Off the qualifications. Ranger District, Chequamegon-Nicolet Coasts of Southeast Alaska, Washington, Forest, Bayfield County, WI. DATES: All nominations must be Summary: EPA expressed Oregon and California, and the received by October 15, 2003. environmental concerns relating to Columbia River Basin, Implementation, Magnuson-Stevens Act, AK, WA, OR, ADDRESSES: Please submit nominations adverse impacts to interior forest species, habitat fragmentation and non- and CA. to Brenda P. Johnson, Designated Summary: EPA has environmental Federal Officer, National Drinking native invasive species. ERP No. D–DOA–K36137–HI Rating objections due to uncertainty about the Water Advisory Council, U.S. effects of the alternatives on the 26 Environmental Protection Agency, EC2, Lahaina Watershed Flood Control Project, To Reduce Flooding and listed ESUs of salmon. The draft Office of Ground Water and Drinking programmatic EIS does not clearly Water (4601), 1200 Pennsylvania Erosion Problems, U.S. Army COE Section 404 and NPDES Permits, County disclose critical information regarding Avenue, NW., Washington, DC 20460– the effect of the alternatives, does not 0001. of Maui, HI. Summary: EPA expressed provide identifiable evidence to support FOR FURTHER INFORMATION CONTACT: environmental concerns regarding the its conclusions that all alternatives Brenda P. Johnson at the address listed project’s impacts on the nearshore would not jeopardize ESUs, and does in the ADDRESSES section, by telephone marine environment, waters of the U.S., not identify a preferred alternative. EPA at 202/564–3791, or by e-mail at and water quality. In addition, EPA is recommends that analysis in the final [email protected]. concerned about the range of programmatic EIS demonstrate that alternatives evaluated in the DEIS, and alternatives would protect and recover SUPPLEMENTARY INFORMATION: Persons whether future development on adjacent the 26 listed species of salmon affected selected for membership will receive lands have been incorporated into by proposed activities. compensation for travel and a nominal project design and evaluation of ERP No. D–UAF–K11109–AZ Rating daily compensation while attending impacts. LO, Barry M. Goldwater Range (BMGR) meetings. The Council holds two face- ERP No. D–FHW–L40217–AK Rating Proposed Integrated Natural Resources to-face meetings each year, generally in EC2, South Extension of the Coastal Management Plan (INRMP), the spring and fall. Additionally, Trail Project, Existing Tony Knowles Implementation, Military Lands members may be asked to serve on one Coastal Trail Extension from Kincaid Withdrawal Act of 1999 (Pub. L. 106– of the Council’s workgroups that are Park through the Project Area to the 65) and Sike Act (16 U.S.C. 670), Yuma, formed each year to assist the EPA in Potter Weigh Station, U.S. Army COE Pima and Maricopa Counties, AZ. addressing specific programmatic Section 10 and 404 Permits Issuance, Summary: EPA expressed a lack of issues. These workgroup meetings are Municipality of Anchorage, Anchorage, objections but recommended mitigation held approximately four times a year, Alaska. to protect water quality by restriction on typically with two meetings by Summary: EPA has environmental driving recreational vehicles in desert conference call. concerns with the proposed project, washes.

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ERP No. D–UAF–K11110–CA Rating ENVIRONMENTAL PROTECTION EIS No. 030335, Draft EIS, AFS, WA, EC2, Los Angeles Air Force Base Land AGENCY Gotchen Risk Reduction and Conveyance, Construction and Restoration Project, Implementation, [ER–FRL–6642–3] Development Project, Transfer Portions Mount Adams Ranger District, Gifford of Private Development in Exchange for Environmental Impact Statements; Pinchot National Forest, Skamania Construction of New Seismically Stable Notice of Availability and Yakima Counties, WA, Comment Facilities, Cities of El Sequndo and Period Ends: September 8, 2003, Hawthorne, Los Angeles County, CA. Responsible Agency: Office of Federal Contact: Julie Knutson (509) 395– Activities, General Information (202) 3410. Summary: EPA expressed 564–7167 or http://www.epa.gov/ EIS No. 030336, Final EIS, AFS, MT, environmental concerns regarding air compliance/nepa/. Management Area 11 Snowmobile toxic impacts and recommended Weekly receipt of Environmental Impact Use Areas on the Seeley Lake Ranger additional analysis and mitigation to District, Implementation, Lola reduce air pollution. Statements Filed July 14, 2003 Through July 18, National Forest, Missoula and Powell ERP No. DB–AFS–L65155–00 Rating 2003 Counties, MT, Wait Period Ends: LO, Northern Spotted Owl Project, Pursuant to 40 CFR 1506.9. August 25, 2003, Contact: Timothy Updated information to Amend Selected Love (406) 677–2233. EIS No. 030330, Draft EIS, AFS, CO, Portions of the Aquatic Conservation EIS No. 030337, Draft EIS, AFS, OR, Mt. Copper Mountain Resort Trails and Strategy, (Part of the Northwest Forest Ashland Ski Area Expansion, Site Facilities Improvements, Plan), Protect and Restore Watersheds, Specific Project, Maintenance and Implementation, Special Use Permit, CA, WA, and OR. Enhancements of Environmental White River National Forest, Dillon Resources, Implementation, Special Summary: EPA has no objections to Ranger District, Summit County, CO, the proposed action. However, the final Use Permit, Ashland Ranger District, Comment Period Ends: September 8, Rogue River National Forest and Scott EIS should consider a more specific 2003, Contact: Michael Liu (970) 468– statement of project purpose, include River Ranger District, Klamath 5400. National Forest, Jackson County, OR, additional data on existing conditions EIS No. 030331, Final EIS, AFS, CA, and recent Strategy actions in the Plan Comment Period Ends: September 23, Blue Fire Forest Recovery Project, 2003, Contact: John Schuyler (541) area, and a prediction of cumulative Proposal to Move the Existing impacts based on key threshold levels. 482–3333. Condition Caused by the Blue Fire of EIS No. 030338, Draft EIS, FRC, OR, Final EISs 2001 Towards the Desired Condition, Bull Run Hydroelectric Project (FERC Modoc National Forest, Warner No.477–024), Proposal to ERP No. F–FHW–J40175–UT, Mountain Ranger District, Lassen and Decommission Bull Run Project, and Reference Post (RP) 13 Interchange and Modoc Counties, Wait Period Ends: Remove Facilities Project, Including City Road Project, Construction of New August 25, 2003, Contact: Edith Marmot Dam, Little Sandy Diversion Interchange at RP 13 between I–15 and Asrow (530) 279–6116. This Dam and Roslyn Lake, Application to City Road in Washington City, Funding, document is available on the Internet Surrender its License), Sandy, Little Washington County, UT. at: http://www.fs.fed.us/r5/modoc/ Sandy, Bull Run Rivers, Town of Summary: EPA has environmental publications/Bluefeis.shtml. Sandy, Clackamas County, MS, concerns regarding the lack of EIS No. 030332, Final EIS, AFS, CO, Comment Period Ends: September 8, alternatives presented in the FEIS to Trout-West Hazardous Fuels 2003, Contact: Alan Mitchnick (202) meet the purpose and need of Reduction Project, Proposed Action to 502–6074. This document is available accommodating planned future growth. Reduce Fuels, Pike-San Isabel on the Internet at: http:// EPA continues to believe that, in this National Forest, Trout and West Creek www.ferc.gov. case, one build alternative is not Watersheds, Teller, El Paso and EIS No. 030339, Draft Supplement, FTA, sufficient for an adequate EIS. Douglas Counties, CO, Wait Period NJ, Newark-Elizabeth Rail Link- Ends: August 25, 2003, Contact: Elizabeth Segment to Document the ERP No. F–NPS–J65365–00, Glen Rochelle Desser (541) 592–4075. This Social, Economic and Transportation Canyon National Area, Personal document is available on the Internet Impact of the 5.8 mile Light Rail Watercraft Rule-Making, at: http://www.fs.fed.us/r2/psicc/spl/ Transit (LRT) Alignment, Minimal Implementation, Lake Powell, Coconino twest.htm. Operable Segment 3 (MOS–3), City of County, AZ and Garfield, Kane, San EIS No. 030333, Draft EIS, IBR, CA, Elizabeth, Union County, NJ, Juan and Wayne Counties, UT. Battle Creek Salmon and Steelhead Comment Period Ends: September 8, Summary: EPA continued to express Restoration Project, Restoring Habitat 2003, Contact: Irwin B. Kessman (212) environmental concerns about potential in Battle Creek and Tributaries, 668–2170. violations of State water quality License Amendment Issuance, EIS No. 030340, Draft Supplement, SCS, standards and suggested a compliance Implementation, Tehama and Shasta MS, Town Creek Watershed Project, strategy. While EPA commends the NPS Counties, CA, Comment Period Ends: To Address the Impact of Installing for providing an improved preferred September 22, 2003, Contact: Mary the Floodwater Retarding Structures alternative there were other reasonable Marshall (916) 978–5248. (FWRS) No. 1, 5, 8, and 59 and to alternatives that should have been EIS No. 030334, Final EIS, AFS, OR, Delete FWRS No. 10A, Lee, Pontotoc, analyzed. Metolius Basin Forest Management Prentiss, and Union Counties, MS, Project, Fuel Reduction and Forest Dated: July 22, 2003. Comment Period Ends: September 8, Health Management Activities, 2003, Contact: Homer L. Wilkes (601) Joseph C. Montgomery, Implementation, Deschutes National 965–5205. Director, NEPA Compliance Division, Office Forest, Sisters Ranger District, of Federal Activities. Jefferson County, OR, Wait Period Amended Notices [FR Doc. 03–19010 Filed 7–24–03; 8:45 am] Ends: August 25, 2003, Contact: Kris EIS No. 030313, Draft EIS, NPS, NY, NJ, BILLING CODE 6560–50–U Martinson (541) 549–7730. Ellis Island and Statue of Liberty

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National Monument Development registrant to voluntarily cancel a certain or other information whose disclosure is Concept Plan, Long-Term pesticide registration. restricted by statute. The official public Rehabilitation and Reuse for Historic DATES: Unless the Agency receives any docket is the collection of materials that Buildings, Implementation, New York substantive comments within the is available for public viewing at the Harbor, NY and NJ, Comment Period comment period that would merit its Public Information and Records Ends: September 12, 2003, Contact: further review of this request, or the Integrity Branch (PIRIB), Rm. 119, Cynthia Garrett (212) 363–3206 ext. request has been withdrawn by August Crystal Mall #2, 1921 Jefferson Davis 100. Revision of FR Notice Published 25, 2003, EPA intends to issue an order Hwy., Arlington, VA. This docket on 7/11/2003: Correction to Contact canceling the registration at the close of facility is open from 8:30 a.m. to 4 p.m., Person Name and Telephone Number. the comment period. Monday through Friday, excluding legal EIS No. 030327, Draft EIS, FRC, CT, FOR FURTHER INFORMATION CONTACT: holidays. The docket telephone number Housatonic River Hydroelectric Demson Fuller, Special Review and is (703) 305–5805. Project, Application to Relicense Reregistration Division (7508C), Office 2. Electronic access. You may access Existing Licenses for Housatonic of Pesticide Programs, Environmental this Federal Register document Project No. 2576–022 and the Falls Protection Agency, 1200 Pennsylvania electronically through the EPA Internet Village Project No. 2597–019, Ave., NW., Washington, DC 20460– under the ‘‘Federal Register’’ listings at Housatonic River Basin, Fairfield, 0001; telephone number: (703) 308– http://www.epa.gov/fedrgstr/. New Haven and Litchfield Counties, 8062; e-mail address: An electronic version of the public CT, Comment Period Ends: September [email protected]. 16, 2003, Contact: Jack Duckworth docket is available through EPA’s (202) 502–6392. Revision of FR Notice SUPPLEMENTARY INFORMATION: electronic public docket and comment system, EPA Dockets. You may use EPA Published on 7/18/2003: CEQ I. General Information Comment Period Ending 9/2/2003 has Dockets at http://www.epa.gov/edocket/ been Corrected to 9/16/2003. A. Does this Action Apply to Me? to submit or view public comments, This action is directed to the public access the index listing of the contents Dated: July 22, 2003. of the official public docket, and to Joseph C. Montgomery, in general. Although this action may be of particular interest to persons who access those documents in the public Director, NEPA Compliance Division, Office docket that are available electronically. of Federal Activities. produce or use pesticides, the Agency has not attempted to describe all the Although not all docket materials may [FR Doc. 03–19009 Filed 7–24–03; 8:45 am] specific entities that may be affected by be available electronically, you may still BILLING CODE 6560–50–P this action. If you have any questions access any of the publicly available regarding the information in this notice, docket materials through the docket facility identified in Unit I.B.1. Once in ENVIRONMENTAL PROTECTION consult the person listed under FOR FURTHER INFORMATION CONTACT. the system, select ‘‘search,’’ then key in AGENCY the appropriate docket ID number. [OPP–2003–0231; FRL–7315–6] B. How Can I Get Copies of this Document and Other Related II. What Action is the Agency Taking? Notice of Receipt of Requests to Information? This notice announces receipt by the Voluntarily Cancel Fenridazone 1. Docket. EPA has established an Agency of a request from the registrant Potassium Pesticide Registration official public docket for this action to cancel its EPA Registration for the AGENCY: Environmental Protection under docket identification (ID) number pesticide product containing the active Agency (EPA). OPP–2003–0231. The official public ingredient, fennridazone potassium. The ACTION: Notice. docket consists of the documents technical registrant, Monsanto Company specifically referenced in this action, submitted a letter to the Agency on May SUMMARY: In accordance with section any public comments received, and 20, 2003, requesting a voluntary 6(f)(1) of the Federal Insecticide, other information related to this action. cancellation of their only registration for Fungicide, and Rodenticide Act Although a part of the official docket, the product containing fenridazone (FIFRA), as amended, EPA is issuing a the public docket does not include potassium. This registration is listed in notice of receipt of request by a Confidential Business Information (CBI) the following Table 1.

TABLE 1.—REGISTRATIONS WITH PENDING REQUESTS FOR CANCELLATION

Registration No. Product Name Chemical Name 524–453 Hybrex 2LC Chemical Fenridazone potassium Hybridizing Agent

Under section 6(f)(1)(A) of FIFRA, 6(f)(1)(C) of FIFRA requires that EPA the environment. The registrant has registrants may request, at any time, that provide a 180–day comment period on requested that EPA waive the 180–day their pesticide registrations be canceled a request for voluntary termination of comment period. EPA is granting the or amended to terminate one or more any minor agricultural use before registrants’ request to waive the 180– pesticide uses. Section 6(f)(1)(B) of granting the request, unless: (1) The day comment period. Therefore, EPA FIFRA requires that before acting on a registrants request a waiver of the will provide a 30–day comment period request for voluntary cancellation, EPA comment period, or (2) the on the proposed requests. EPA must provide a 30–day public comment Administrator determines that anticipates granting the cancellation period on the request for voluntary continued use of the pesticide would request shortly after the end of the 30– cancellation. In addition, section pose an unreasonable adverse effect on day comment period for this notice

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unless the Agency receives substantive V. Provisions for Disposition of Existing FEDERAL COMMUNICATIONS comments within the comment period Stocks COMMISSION that would merit further review of the [CC Docket 98–67; DA 03–2332] request. The registration for which The effective date of cancellation will be the date of the cancellation order. cancellation was requested is identified Notice of Certification of State in Table 1. of this unit. The order effecting this requested Telecommunications Relay Service cancellation will generally permit a (TRS) Programs Unless a request is withdrawn by the registrant to sell or distribute existing registrant within 30 days of publication stocks for 1 year after the date the AGENCY: Federal Communications of this notice, orders will be issued cancellation request was received. This Commission. canceling this registration. Users of this policy is in accordance with the ACTION: Notice. pesticide or anyone else desiring the Agency’s statement of policy as retention of a registration should contact SUMMARY: The purpose of this document prescribed in the Federal Register of the applicable registrant directly during is to notify state Telecommunications June 26, 1991 (56 FR 29362) (FRL– this 30–day period. Relay Service (TRS) programs that 3846–4). Exceptions to this general rule certification of their program has been Table 2 of this unit includes the name will be made if a product poses a risk granted through July 26, 2008. Notice is and address of record for the registrant concern, or is in noncompliance with hereby given that the applications for of the product in Table 1 of this unit. reregistration requirements, or is subject certification of state to a Data Call-In. In all cases, product- Telecommunications Relay Services TABLE 2.—REGISTRANTS REQUESTING specific disposition dates will be given (TRS) programs of the states listed VOLUNTARY CANCELLATION in the cancellation orders. below have been granted, subject to the Existing stocks are those stocks of condition described below, pursuant to Company Name Title IV of the Americans with EPA Company No. and Address registered pesticide products which are currently in the United States and Disabilities Act (ADA), 47 U.S.C. 524 Monsanto which have been packaged, labeled, and 225(f)(2), and section 64.605(b) of the Company released for shipment prior to the Commission’s rules, 47 CFR 64.605(b). 600 13th Street, effective date of the cancellation action. The Commission will provide further Public Notice of the certification of the NW Unless the provisions of an earlier order Suite 600 remaining applications for certification apply, existing stocks already in the Washington, DC once final review of those states’ 20005 hands of dealers or users can be applications has been completed. On distributed, sold, or used legally until the basis of the state applications, the III. What is the Agency’s Authority for they are exhausted, provided that such Commission has determined that: the Taking this Action? further sale and use comply with the TRS program of the states meet or EPA-approved label and labeling of the exceed all operational, technical, and Section 6(f)(1) of FIFRA provides that affected product. Exception to these functional minimum standards a registrant of a pesticide product may general rules will be made in specific contained in section 64.604 of the at any time request that any of its cases when more stringent restrictions Commission’s rules, 47 CFR 64.604; the pesticide registrations be canceled. on sale, distribution, or use of the TRS programs of the listed states make FIFRA further provides that, before products or their ingredients have available adequate procedures and acting on the request, EPA must publish already been imposed, as in a Special remedies for enforcing the requirements a notice of receipt of any such request Review action, or where the Agency has of the state program; and the TRS in the Federal Register. Thereafter, the identified significant potential risk programs of the listed states in no way Administrator may approve such a concerns associated with a particular conflict with federal law. request. chemical. DATES: This certification shall remain in IV. Procedures for Withdrawal of In the letter the Agency received from effect for a five year period, beginning Request the registrant on May 20, 2003, the July 26, 2003, and ending July 25, 2008, registrant stated that the Hybrex 2LC pursuant to 47 CFR 64.605(c). Registrants who choose to withdraw a Chemical Hybridizing product has not ADDRESSES: Federal Communications request for cancellation must submit been sold since 1989 nor has the Commission, 445 12th Street, SW., such withdrawal in writing to the chemical ever been distributed. Washington, DC 20554. person listed under FOR FURTHER Therefore, no products should be in the FOR FURTHER INFORMATION CONTACT: INFORMATION CONTACT, postmarked channels of trade. Erica Myers, (202) 418–2429 (voice), before August 25, 2003. This written (202) 418–0464 (TTY), or e-mail withdrawal of the request for List of Subjects [email protected]. cancellation will apply only to the SUPPLEMENTARY INFORMATION: This is a applicable FIFRA section 6(f)(1) request Environmental protection, Pesticides and pests. summary of the Commission’s Public listed in this notice. If the product(s) Notice, DA 03–2332, CC Docket No. CC have been subject to a previous Dated: July 18, 2003. 98–67, released July 16, 2003. Copies of cancellation action, the effective date of Richard P. Keigwin, Jr., applications for certification are cancellation and all other provisions of Acting Director, Special Review and available for public inspection and any earlier cancellation action are Reregistration Division, Office of Pesticide copying during regular business hours controlling. The withdrawal request Programs. at the FCC Reference Information must also include a commitment to pay [FR Doc. 03–19007 Filed 7–24–03; 8:45 am] Center, Portals II, 445 12th Street, SW., any reregistration fees due, and to fulfill Room CY–A257, Washington, DC 20554. any applicable unsatisfied data BILLING CODE 6560–50–S The applications for certification are requirements. also available on the Commission’s web

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site at http://www.fcc.gov/cgb/dro/ File No: TRS–59–02, Division of Public Board of Governors of the Federal Reserve trs_by_state.html. They may also be Utilities and Carriers, State of Rhode System, July 21, 2003. purchased from the Commission’s Island Robert deV. Frierson, duplicating contractor, Qualex Federal Communications Commission. Deputy Secretary of the Board. International, Portals II, 445 12th Street, Margaret M. Egler, [FR Doc. 03–18983 Filed 7–24–03; 8:45 am] SW., Room CY–B402, Washington, DC Deputy Chief, Consumer & Governmental BILLING CODE 6210–01–S 20554, telephone (202) 863–2893, Affairs Bureau. facsimile (202) 863–2898, or via e-mail [FR Doc. 03–18972 Filed 7–24–03; 8:45 am] [email protected]. BILLING CODE 6712–01–P To request materials in accessible DEPARTMENT OF HEALTH AND formats for people with disabilities HUMAN SERVICES (Braille, large print, electronic files, audio format), send an e-mail to FEDERAL RESERVE SYSTEM Centers for Disease Control and [email protected] or call Consumer & Prevention Governmental Affairs Bureau, at (202) Formations of, Acquisitions by, and 418–0531 (voice), (202) 418–7365 Mergers of Bank Holding Companies Disease, Disability, and Injury (TTY). This Public Notice can also be Prevention and Control Special downloaded in Text and ASCII formats The companies listed in this notice Emphasis Panel: Research on the at: http://www.fcc.gov/cgb/dro. have applied to the Board for approval, Impact of Law on Public Health, Synopsis: The Commission also has pursuant to the Bank Holding Company Program Announcement 03049 determined that, where applicable, the Act of 1956 (12 U.S.C. 1841 et seq.) intrastate funding mechanisms of the (BHC Act), Regulation Y (12 CFR Part In accordance with section 10(a)(2) of listed states are labeled in a manner that 225), and all other applicable statutes the Federal Advisory Committee Act promotes national understanding of TRS and regulations to become a bank (Pub. L. 92–463), the Centers for Disease and does not offend the public, holding company and/or to acquire the Control and Prevention (CDC) consistent with section 64.605(d) of the assets or the ownership of, control of, or announces the following meeting: Commission’s rules, 47 CFR 64.605(d). the power to vote shares of a bank or Name: Disease, Disability, and Injury Because the Commission may adopt bank holding company and all of the Prevention and Control Special changes to the rules governing relay banks and nonbanking companies Emphasis Panel (SEP): Research on the programs, including state relay owned by the bank holding company, Impact of Law on Public Health, programs, the certification granted including the companies listed below. Program Announcement 03049. herein is conditioned on a The applications listed below, as well demonstration of compliance with the as other related filings required by the Times and Dates: 1 p.m.–1:30 p.m., new rules adopted and any additional Board, are available for immediate August 11, 2003 (Open). 1:30 p.m.–5 new rules that are adopted by the inspection at the Federal Reserve Bank p.m., August 11, 2003 (Closed). 8:30 Commission. The Commission will indicated. The application also will be a.m.–4 p.m., August 12, 2003 (Closed). provide guidance to the states on available for inspection at the offices of Place: Sheraton Midtown Colony demonstrating compliance with such the Board of Governors. Interested Square Hotel, 188 14th Street at rule changes. persons may express their views in Peachtree, Atlanta, GA 30361, This certification, as conditioned writing on the standards enumerated in Telephone 404.892.6000. herein, shall remain in effect for a five the BHC Act (12 U.S.C. 1842(c)). If the Status: Portions of the meeting will be year period, beginning July 26, 2003, proposal also involves the acquisition of closed to the public in accordance with and ending July 25, 2008, pursuant to 47 a nonbanking company, the review also CFR 64.605(c). One year prior to the includes whether the acquisition of the provisions set forth in section 552b(c) expiration of this certification, July 25, nonbanking company complies with the (4) and (6), Title 5 U.S.C., and the 2007, the states may apply for renewal standards in section 4 of the BHC Act Determination of the Director, of their TRS program certification by (12 U.S.C. 1843). Unless otherwise Management Analysis and Services filing demonstration in accordance with noted, nonbanking activities will be Office, CDC, pursuant to Pub. L. 92–463. the Commission’s rules, pursuant to 47 conducted throughout the United States. Matters to be Discussed: The meeting CFR sections 64.605(a) and (b). Additional information on all bank will include the review, discussion, and holding companies may be obtained evaluation of applications received in Second Group of States Approved for from the National Information Center response to Program Announcement Certification website at www.ffiec.gov/nic/. 03049. File No: TRS–51–02, Georgia Public Unless otherwise noted, comments Utilities Commission, State of Georgia regarding each of these applications FOR FURTHER INFORMATION CONTACT: Joan File No: TRS–07–02, Kansas must be received at the Reserve Bank F. Karr, Ph.D., Scientific Review Corporation Commission, State of indicated or the offices of the Board of Administrator, Public Health Practice Kansas Governors not later than August 18, Program Office, CDC, 4770 Buford File No: TRS–45–02, New Jersey Board 2003. Highway, MS–K38, Atlanta, GA 30341, of Utilities, State of New Jersey A. Federal Reserve Bank of Atlanta Telephone 770.488.2597. File No: TRS–11–02, South Carolina (Sue Costello, Vice President) 1000 The Director, Management Analysis Budget & Control Board, State of Peachtree Street, N.E., Atlanta, Georgia and Services Office, has been delegated South Carolina 30303: the authority to sign Federal Register File No: TRS–22–02, Hawaii Public 1. Total Bancshares, Inc., Miami, notices pertaining to announcements of Utilities Commission, State of Hawaii Florida; to become a bank holding meetings and other committee File No: TRS–34–02, Department of company by acquiring 100 percent of management activities, for both CDC Public Utilities, State of the voting shares of TotalBank, Miami, and the Agency for Toxic Substances Massachusetts Florida. and Disease Registry.

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Dated: July 21, 2003. Department and other Federal policies Survey and the Medical Expenditure Alvin Hall, and regulations, and reports to Panel Survey household expenditure Director, Management Analysis and Services Congress; (7) controls the flow of data to future years; (2) aligns the Office, Centers for Disease Control and correspondence and official documents projected household expenditure data to Prevention. entering and leaving the Agency; (8) the Health Care Financing [FR Doc. 03–18955 Filed 7–24–03; 8:45 am] manages the National Advisory Council; Administration’s National Health BILLING CODE 4163–18–P and (9) supports the AHRQ Ombuds. Expenditures by type of health service Center for Financing, Access, and and payment source; (3) uses a variety Cost Trends (EC). Conducts, supports of outside data sources to project, for DEPARTMENT OF HEALTH AND and manages studies of the cost and example, the household population, HUMAN SERVICES financing of health care, the access to Medicaid enrollees, household income, health care services and related trends. and private and public health insurance Agency for Healthcare Research and Develops data sets to support policy and benefits; (4) develops and updates the Quality (AHRQ) behavioral research and analyses. These Agency’s MEDSIM microsimulation studies and data development activities model’s software to estimate current Statement of Organization, Functions, are designed to provide health care household income and payroll taxes, and Delegations of Authority leaders and policymakers with the current private and public insurance Part E, Chapter E (Agency for information and tools they need to coverage and benefits, and the costs and Healthcare Research and Quality), of the improve decisions on health care consequences of generic versions of Statement of Organization, Functions, financing, access, coverage and cost. proposed health care reforms; (5) and Delegations of Authority for the Specifically: (1) Conducts, supports and provides the latest versions of the Department of Health and Human manages research and analysis of trends projected expenditure data bases and Services (61 FR 15955–58, April 10, and patterns of health expenditures, associated research products on the 1996, most recently amended at 66 FR public and private insurance coverage, Agency home page; (6) uses MEDSIM 44149–50 on August 22, 2001) is further use of personal health services, health and its data bases to conduct and amended to reflect recent organizational status and access to care for the general publish research on current and changes. The specific amendments are population and subgroups of policy proposed health policies and on trends as follows: interest; (2) conducts and manages in household health care expenditures; Under Section E–10, Organization, health sector surveys such as medical and (7) provides cost and distributional delete A. through K. and replace with expenditure surveys; surveys of medical MEDSIM estimates of specific legislative the following: care providers, employers and other health care reform proposals to provide A. Office of the Director. sources of insurance coverage and predecisional guidance to requesting B. Center for Delivery, Organization, health benefits; and surveys of the use, federal officials. cost, and financing of care for special and Markets. Division of Social and Economic C. Center for Financing, Access, and populations; (3) collects, reorganizes, and analyzes administrative databases Research (ECC). Provides basic Cost Trends. descriptive and behavioral analyses of D. Center for Outcomes and Evidence. related to health care use, health status, E. Center for Primary Care, cost and financing; (4) provides the population’s access to, use of Prevention, and Clinical Partnerships. modeling and projections of health care expenditures and sources of payment F. Center for Quality Improvement use, status, expenditures, and payments for health care; the availability and costs and Patient Safety. for policy research; (5) conducts and of private health insurance in the G. Office of Communications and supports statistical and methodological employment-related and non-group Knowledge Transfer. research on survey design, sampling and markets; the population enrolled in H. Office of Extramural Research, estimation techniques, and data quality; public health insurance coverage and Education, and Priority Populations. (6) conducts and supports surveys and those without health care coverage; and I. Office of Performance, research of institutional and community the role of health status in health care Accountability, Resources and based long term care; (7) evaluates use, expenditures, and household Technology. administrative data sets for intramural decision-making, and in health Under Section E–20. Functions, delete and extramural research including insurance and employment choices. all titles and statements and replace policy and methodological studies; and Specifically: (1) Provides analytical with the following: (8) builds research and data collection input to the design and development of Office of the Director (EA). Directs the partnerships with the health care sector, primary data collection efforts and activities of the Agency for Healthcare employers, and foundations, and research-related data bases; (2) develops Research and Quality (AHRQ) to ensure represents the Agency in meetings with a research agenda related to health care the achievement of strategic objectives. Federal agencies and experts on health use, expenditures, access to care, Specifically: (1) Provides overall policy issues especially issues related to sources of payment, health insurance, leadership for the Agency; (2) maintains health expenditures, access, and and health status; (3) conducts applied the scientific integrity and objectivity of insurance, Federal and State health care research in these areas by applying the Agency’s research; (3) directs and programs. substantive research tools from the coordinates the Agency’s research, Division of Modeling and Simulation fields of health services research, health research training programs, and (ECB). Provides research, models, and economics, medical sociology, public dissemination activities; (4) ensures that data bases to support microsimulation policy analysis, demography, statistics Agency programs support analyses of household impacts and and econometrics; (4) disseminates Administration goals and objectives; (5) trends in health expenditures from research findings through presentations represents the Agency within the health policies embodied in current law at conferences, publications in peer Department, at the highest level of and from health care policies embodied reviewer journals, book chapters, and Government, and to the public; (6) in generic versions of proposed health conference volumes; (5) provides coordinates the legislative activities of care reforms. Specifically: (1) Projects substantive technical expertise on the Agency, the review and clearance of the National Medical Expenditure health care use, expenditures, and

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insurance coverage to other units within such as payment methods financial and the United States. Specifically: (1) AHRQ, other governmental units, non-financial incentives, safety net Supports primary care practice-based private sector research institutions, and funding, employer purchasing research networks (PBRNs) in order to by serving as technical reviewers and strategies, quality measurement and investigate questions related to advisors to scholarly journals, technical reporting, and regulations—influence community-based practice and to advisory committees, and private and performance; and (5) represents the improve the quality of primary and public sector task forces. Agency in meetings with Federal preventive care; (2) responsible for the Division of Statistical Research and agencies and experts on health policy rigorous evaluation of clinical research Methods (ECD). Plans and conducts issues especially those related to assessing the merits of preventive studies on statistical methods and the advancing evidence-based decision measures, including screening tests, use of statistics in survey design in making in organizations and the public counseling, immunizations, and health services research. These studies policy arena. chemoprevention through the United provide the bases for policy research Center for Outcomes and Evidence States Preventive Services Task Force; and analysis and for technical assistance (EJ). Conducts and supports research (3) serves as the Agency’s locus for the provided to other Centers and Offices and assessment of health care practices, use of information technology to within the Agency. Specifically: (1) technologies, processes, and systems. improve health care and facilitates the Identifies, designs, conducts, and Specifically: (1) Conducts and supports implements statistical research and research, assessments, and evaluation and diffusion of effective evaluation studies in accordance with demonstrations on safety, quality, information technology tools into the Agency’s research priorities; (2) effectiveness, cost-effectiveness, and clinical practice; and (4) supports oversees the statistical design of the other relevant attributes of health care research and demonstrations that National Medical Expenditure Panel practices, technologies, processes and improve healthcare system Survey (MEPS); and (3) conducts systems; (2) facilitates and coordinates preparedness for bioterrorism and other research in the areas of survey design, the development of infrastructures for public health threats, with an emphasis sampling, estimation, imputation, the collection, analysis, and synthesis of on the role of front-line clinical analysis of complex survey data, and the evidence and data on the safety, providers. reduction of sources of sampling and effectiveness and quality of health care Center for Quality Improvement and nonsampling errors in the design of practices, technologies, processes, and Patient Safety (EL). Works to improve national health care surveys. systems; (3) serves as a center of the quality and safety of our health care Division of Survey Operations (ECE). excellence for methods and system through research an Plans, implements and monitors the measurement development for the implementation of evidence. fielding of CFACT surveys. Specifically: conduct and analysis of outcomes Specifically: (1) Conducts and supports (1) Develops and disseminates public research, cost effectiveness analysis, and research, demonstrations, and use data files which including editing, evidence-based systematic reviews and evaluations of the quality of health care imputation and estimation tasks; (2) technology assessments; (4) serves as a and patient safety across our health care assists in the development of data source of evidence based information systems and, specifically, for priority reports which are of particular interest about therapeutics, technologies, and populations; (2) conducts and supports to the Department and other Federal, healthcare practices for clinical and research on the measurement of health State and local government agencies as policy decision makers; (5) directs and care quality and promotes the use of well as the larger research community; supports research on and these measures; (3) conducts and and (3) monitors the development of implementation of the appropriate use supports research on effective ways to Computer Assisted Personal of therapeutics and medical improve the quality of health care and Interviewing (CAPI) data collection technologies, including preventing participates in the dissemination of this instruments. overuse, under-use and adverse effects; knowledge; (4) evaluates methods for Center for Delivery, Organization, and (6) provides an array of tools and identifying, preventing and ameliorating Markets (EH). Provides a locus of products to promote and facilitate medical errors and enhancing patient leadership and expertise for advances in evidence-based clinical practices and safety; (5) designs, conducts, and health care delivery, organization, and health care decision making; (7) fosters supports surveys to assess the quality of markets through research. Specifically: partnerships with health care provides, (1) Conducts, supports, and manages insurers, employers and consumers to and patients’ experiences with health studies designed to give health care bring about sustainable systemic change care services and systems; (6) develops leaders and policy makers the to implement evidence-based practices and disseminates annual reports on information and tools they need to and improve patient outcomes and health care quality, disparities and improve health system performance; (2) quality of care; and (8) represents the patient safety; (7) provides technical generates evidence on how health care Agency in meetings with experts and assistance and gathers information on delivery and organizational dynamics organizations in the areas of outcomes the use of quality measures, consumer affect performance through qualitative research and evidence-based medicine and patient information, and reporting and quantitative research, delivery- and organizes conferences on these on patient safety and the resulting based research networks, data and tool topics. effects; (8) supports dissemination and development and other state, federal, Center for Primary Care, Prevention, communication activities to improve and private partnerships; (3) examines and Clinical Partnerships (EK). Expands quality of care and patient safety; (9) the impact of delivery and the knowledge base for clinical partners with stake holders to organizational attributes and changes— providers and patients and to assure the implement research findings and including payer mix, delivery sites, translation of new knowledge and evidence related to quality practice patterns, structure, workforce, systems improvement into primary care measurement, quality improvement and leadership, governance and culture— practices. Supports and conducts patient safety; and (10) represents the across acute, community-based, and research to improve the access, Agency in meetings with domestic and long-term-care settings; (4) studies how effectiveness, and quality of primary international experts and organizations market forces and reactions to them— and preventive health care services in concerned with measuring and

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evaluating the quality of care and information products that meet AHRQ’s community and receives and enhancing patient safety. scientific information and appropriately transmits information Office of Communications and dissemination goals; and (8) works with which may impact the Agency’s Knowledge Transfer (EN). Designs, and assists the National Library of research plan and priority setting develops, implements, and manages Medicine in efforts to improve the process; (4) formulates, in collaboration programs for disseminating the results availability of health services with Agency staff, appropriate policies of Agency activities with the goal of information to the public. and activities to develop effective changing audience behavior. Division of Public Affairs (ENC). linkages with potential users of health Specifically: (1) Communicates the Responsible for planning and carrying services research; (5) communicates results and significance of health out the public affairs activities the information regarding user research services research and other AHRQ Agency. Specifically: (1) Handles AHRQ needs to the Agency Director and initiatives to the health care industry, media relations; (2) develops health care appropriate Agency staff to ensure user health care providers, consumers and research information dissemination needs are adequately addressed in patients, policy makers, researchers, and partnerships with other Federal current and planned Agency project; (6) the media with particular emphasis on agencies, provider groups, the develops and implements mechanisms communicating AHRQ initiatives in the continuing education and continuing to identify and contact potential users of ways each of these constituencies are medical education communities, and research findings and related most interested and are likely to lead to the private sector; (3) ensures that information; (7) plans meetings and behavior change; (2) manages the findings and information from research coordinates contacts between Agency editing, publication, and information conducted or funded by AHRQ are staff and individual users and distribution processes of the Agency, made promptly available to the public representatives of users’ groups and including Freedom of Information Act and private sectors; (4) analyzes AHRQ organizations; (8) provides assistance administration; (3) provides the audiences and information needs and and advice to other Federal agencies administrative support for reference recommends new outreach/ and organizations in evaluating the services and the distribution of dissemination programs and utility of Federally-sponsored research technical information to Agency staff; information products to meet AHRQ’s to State and local government officials; (4) manages the public affairs activities scientific information and and (9) provides technical assistance for of the Agency, Agency clearinghouse for dissemination goals and needs of AHRQ the design and implementation of responding to requests for information target audiences; (5) recommends the research projects undertaken by State and technical assistance, and a program most effective and efficient approaches and local governments. for consumer information about health to information dissemination; (6) care research findings; (5) directs a user develops and evaluates the effectiveness Office of Extramural Research, liaison program to provide health care of Agency dissemination strategies; (7) Education, and Priority Populations research and policy findings to Federal, manages AHRQ’s publication (EP). Directs the scientific review State and local public officials, and clearinghouse; (8) responds to public process for grants and Small Business other audiences as appropriate; (6) inquires about AHRQ and its research; Innovation Research (SBIR) contracts, evaluates the effectiveness of Agency (9) makes final reports of Agency- manages Agency research training dissemination strategies and supported research available to the programs, evaluates the scientific implements changes indicated by such public through the National Technical contribution of proposed and on-going evaluations; and (7) represents the Information Service; and (10) carries out research, demonstrations, and Agency in meetings with Department AHRQ’s Freedom of Information Act evaluations, and supports and conducts representatives on press releases, media activities. health services research on priority events, and publication clearance. Division of User Liaison and Research populations. Specifically: (1) Directs the Division of Print and Electronic Translation (END). Provides direction process for selecting, reviewing, and Publishing (EBB). Responsible for and coordination of the Agency’s funding grants and reviewing SBIR disseminating AHRQ’s many and varied program to define the issues, problems, contracts for scientific merit and informational products.Ensures that and information needs of selected users program relevance; (2) assigns grant findings and information from of health services research, especially applications to Centers and Offices for conducted or funded by AHRQ are public and private sector policymakers, administrative action; (3) manages the created in forms useful to intended and to disseminate to them relevant process for making funding decisions recipients. Specifically: (1) Produces research findings, program data, and for grants; (4) directs Agency research information products in a variety of descriptive information related to the training and career development print and electronic formats that are organization, planning, management, programs and implementation of the scientifically bound and appropriately financing, delivery, evaluation, and National Research Service Award targeted to various audiences; (2) edits outcomes of health services at the authority; (5) manages the committee and controls the review and publication Federal, state, and local level. management and scientific integrity of all AHRQ documents; (3) ensures Specifically: (1) Develops syntheses of processes for the intramural and proper clearance procedures consistent research findings focused on particular extramural programs of the Agency; (6) the Departmental rules; (4) provides issues dealing with policy concerns and develops and coordinates clearance of interfaces with the Government Printing operational problems; (2) plans and peer review regulations, as required, Office and National Technical conducts workshops and seminars to policy notices and program Information Service; (5) organizes and provide research findings and related announcements; (7) facilitates Agency- conducts AHRQ’s exhibits program and information to policymakers and other wide communication and coordination provides conference support services to consumers of health services research to regarding extramural policy, planning, program staff; (6) provides and allow them to make better informed and analysis; (8) represents the Agency coordinates graphics, printing and health care policy decisions; (3) in meetings with experts and visual aids production for AHRQ; (7) maintains liaison with State and local organizations on issues related to the analyzes AHRQ audiences and government organizations, public policy administration of the Agency’s scientific information needs, and recommends organizations, and with the research programs; (9) advises the Agency

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leadership on matters pertaining to the monitor the external health care needs assessment, and user input; (3) health needs and health care of priority environment for research needs of serves as an expert resource within the populations, including scientific, potential private and public sector Agency on priority populations to assist ethical, legal and policy issues; (10) employers and to anticipate special program developments and participates prepares the agenda for priority training needs; (3) implements new in the development of policies and populations research—both extramural programs and support mechanisms, and programs to implement the Agency’s and intramural—through the Agency’s modifies existing ones to meet changing priority populations agenda; (4) fosters strategic planning process, needs needs; (4) develops and manages new knowledge, tool, and talent assessments, and user input; (11) serves activities intended to evaluate the development related to priority as an expert resource within the Agency effects of past investments in health populations by recommending, leading, on priority populations to assist services research training by examining coordinating and conducting new program development and participates career patterns, publication records, and initiatives; (5) assists in the translation, in the development of policies and research productivity of persons dissemination, and application of programs to implement the Agency’s supported by AHRQ; (5) promotes Agency initiatives and programs to priority populations agenda; (12) fosters visibility for the field of health services improve health care for priority new knowledge, tool, talent, and research and the availability of training populations; (6) evaluates the degree to strategy development related to priority support through a variety of which the Agency is meeting its goals populations by recommending, leading, mechanisms; (6) keeps abreast of for priority populations research; (7) coordinating and conducting new Department policies and procedures provides national expertise to Agency initiatives, including intramural which pertain to extramural research staff and Agency partners on priority initiatives; (13) works in partnership education training, and assures populations issues, establishing and with other Centers and Offices to design compliance at the AHRQ level; and (7) maintaining liaison with other and implement efforts to translate, works with AHRQ leadership to sure knowledgeable or concerned agencies, disseminate, and implement evidence- communication and collaboration governments and organizations; (8) based initiatives and programs to between ORREP and program centers establishes new contacts and cultivates improve health care for priority with an interest in research education. present ones with external groups (a) To populations; (14) evaluates the degree to Division of Scientific Review (EPC). spur increased awareness and emphasis which the Agency is meeting its goals Plans and carries out the scientific on priority populations within the for priority populations; (15) provides review for all AHRQ extramural health services research community, (b) national expertise to Agency staff and research grants and SBIR proposals. to partner with organizations and Agency partners on priority populations Specifically: (1) Assures compliance agencies to expand research on priority issues, establishing and maintaining with organizational, regulatory, and populations, thereby securing additional liaison with other knowledgeable or policy aspects of peer review; (2) resources for the these activities, and (c) concerned agencies, governments and determines review requirements for build the research capacity on priority organizations; (16) establishes new standing study sections and special populations; and (9) enhances the contacts and cultivates present ones emphasis panels; (3) anticipates needs/ visibility of the Agency in priority with external groups (a) To spur changes regarding the charters of populations research. increased awareness and emphasis on standing study sections, establishes and implements procedures for chartering Office of Performance, Accountability, priority populations within the health study sections, filling study section Resources, and Technology (EQ). Directs services research, health care policy, vacancies and appointing new members and coordinates Agency-wide program and health care delivery communities, and chairpersons, orient new reviewers planning and evaluation activities and (b) to partner with organizations and to peer review processes; (4) advises administrative operations. Specifically: agencies to expand research on priority Agency staff on peer review processes (1) Ensures program planning is populations, thereby securing additional and grant solicitations; (5) keeps abreast integrated with budget formulation and resources for these activities, and (c) to of departmental, especially NIH, performance and serves as the Agency’s build research and implementation policies and procedures regarding peer focal point for Government Performance capacity on priority populations; and review to assure compatibility of AHRQ and Results Act activities; (2) plans and (17) enhances the visibility of the processes; (6) interacts with the health directs financial management activities Agency in priority populations through services research community and keeps including budget formulation, frequent presence and delivery of abreast of emergent research presentation, and execution functions speeches and scientific presentations of developments as they relate to review and supports linking of the budget and meetings of relevance to the field and to planning; (7) establishes and maintains planning processes; (3) provides human AHRQ’s mission. continuous quality monitoring and resource consultation services regarding Division of Research Education (EPB). improvement activities; and (8) all aspects of personnel management, Develops, implements, and evaluates a coordinates funding meetings and workforce planning and restructuring, comprehensive extramural health relevant follow-up activities. and the allocation and utilization of services research education program Division of Priority Populations personnel resources; (4) provides which supports the career development Research (EPD). Coordinates, supports, organizational and management of predoctoral and postdoctoral manages and conducts health services analysis, develops operating policies students. Specifically: (1) Manages the research on priority populations. and procedures, and implements and AHRQ research education/training Specifically: (1) Advises the Agency carries out Agency management portfolio, which includes National leadership on matters pertaining to the programs and policies; (5) coordinates Research Service Award (NRSA) health needs and health care of priority the Agency’s Federal Managers’ institutional training grants, NRSA populations, including scientific, Financial Integrity Act, competitive individual postdoctoral training grants, ethical, legal and policy issues; (2) sourcing and FAIR Act, and Privacy Act dissertation training grants, and prepares the agenda for priority activities; (6) conducts all business incentive innovation awards; (2) populations research through the management aspects of the review, establishes systems/mechanisms to Agency’s strategic planning process, negotiation, award, and administration

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of Agency research grants, cooperative DEPARTMENT OF HEALTH AND and the Agency for Toxic Substances agreements, and contracts; (7) manages HUMAN SERVICES and Disease Registry. the analysis, selection, implementation, Dated: July 22, 2003. Centers for Disease Control and and operation of all aspects of the Alvin Hall, Prevention Agency’s information technology Director, Management Analysis and Services infrastructure and telecommunication Disease, Disability, and Injury Office, Centers for Disease Control and systems; (8) provides other Agency Prevention and Control Special Prevention (CDC). support services including the Emphasis Panel: Research To Improve [FR Doc. 03–19054 Filed 7–23–03; 10:54 am] acquisition, management, and Smoke Alarm Maintenance and BILLING CODE 4163–18–P maintenance of supplies, equipment, Function, Program Announcement and space. 03100; Correction DEPARTMENT OF HEALTH AND These changes are effective upon date HUMAN SERVICES of signature. Summary: This notice was published in the Federal Register on July 11, 2003, Dated: July 8, 2003. Volume 68, Number 133, Page 41374. Centers for Medicare & Medicaid Services Carolyn M. Clancy, The meeting date, time, and location Director. have been revised. [CMS–3124–WN] [FR Doc. 03–18911 Filed 7–24–03; 8:45 am] In accordance with section 10(a)(2) of Medicare Program; Withdrawal of BILLING CODE 4160–90–M the Federal Advisory Committee Act (Pub. L. 92–463), the Centers for Disease Medicare Coverage of Multiple-Seizure Control and Prevention (CDC) Electroconvulsive Therapy, Electrodiagnostic Sensory Nerve DEPARTMENT OF HEALTH AND announces the following meeting: Conduction Threshold Testing, and HUMAN SERVICES Name: Disease, Disability, and Injury Prevention and Control Special Noncontact Normothermic Wound Centers for Disease Control and Emphasis Panel (SEP): Research to Therapy Prevention Improve Smoke Alarm Maintenance and AGENCY: Centers for Medicare & Function, Program Announcement Medicaid Services (CMS), HHS. [Program Announcement 04012] 03100. ACTION: Notice. Action: The meeting times and dates HIV Prevention Projects; Notice of have been revised as follows: SUMMARY: This notice announces our Availability of Funds Amendment Times and Dates: 10 a.m.–10:15 a.m., decisions previously set forth in July 28, 2003 (Open); 10:15 a.m.–4 p.m., program instructions to withdraw A notice announcing the availability July 28, 2003 (Closed). Medicare coverage for multiple-seizure of fiscal year (FY) 2004 funds for Place: Teleconference Number 1–800– electroconvulsive therapy (sometimes cooperative agreements for HIV 988–9352 passcode Unintentional for referred to as multiple electroconvulsive prevention projects was published in the Open portion of the meeting. therapy), electrodiagnostic sensory nerve conduction threshold testing, and the Federal Register July 10, 2003, Status: Portions of the meeting will be noncontact normothermic wound Volume 68, Number 132, pages 41138– closed to the public in accordance with therapy. 41147. The notice is amended as provisions set forth in Section 552b(c) follows: (4) and (6), Title 5 U.S.C., and the DATES: This notice provides Federal Determination of the Director, Register confirmation of the coverage On page 41140, first column, Section Management Analysis and Services withdrawals previously published as ‘‘F. Application Content,’’ first Office, CDC, pursuant to Public Law 92– program instructions effective April 1, paragraph, insert the following, 463. 2003, for multiple-seizure ‘‘Beginning October 1, 2003, applicants Note: Due to administrative delays, this electroconvulsive therapy, October 1, will be required to have a Dun and corrected Federal Register Notice is being 2002, for electrodiagnostic sensory Bradstreet (DUNS) number to apply for published less than 15 days before the date nerve conduction threshold testing, and a grant or cooperative agreement from of the meeting. July 1, 2002, for noncontact the Federal government. The DUNS Matters To Be Discussed: The meeting normothermic wound therapy. number is a nine-digit identification will include the review, discussion, and FOR FURTHER INFORMATION CONTACT: number, which uniquely identifies evaluation of applications received in Anthony Norris (410–786–8022) for business entities. Obtaining a DUNS response to Program Announcement multiple-seizure electroconvulsive number is easy and there is no charge. 03100. therapy. Lorrie Ballantine (410–786– Proactively obtaining a DUNS number at Contact Person for More Information: 7543) for electrodiagnostic sensory the current time will facilitate the Jean Langlois, Sc.D., Epidemiologist, nerve conduction threshold testing and receipt and acceptance of applications Division of Injury and Disability noncontact normothermic wound after September 2003. To obtain a DUNS Outcomes and Programs, National therapy. number, access the following Web site: Center for Injury Prevention and SUPPLEMENTARY INFORMATION: On April www.dunandbradstreet.com or call 1– Control, CDC, 4770 Buford Highway, 27, 1999, we published a notice in the 866–705–5711. NE., Atlanta, GA 30341; telephone Federal Register (64 FR 22619) that Dated: July 21, 2003. 770.488.1478. established the procedures used for Sandra R. Manning, The Director, Management Analysis making national coverage and Services Office, has been delegated determinations (NCDs). The April 27, Director, Procurement and Grants Office, the authority to sign Federal Register 1999 notice also described the Centers for Disease Control and Prevention. notices pertaining to announcements of procedures we used to implement [FR Doc. 03–18954 Filed 7–24–03; 8:45 am] meetings and other committee NCDs. In the notice we stated that if we BILLING CODE 4163–18–P management activities, for both CDC chose to ‘‘withdraw or reduce coverage

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for a service,’’ we would publish the which is important in evaluating some DEPARTMENT OF HEALTH AND decision as a general notice in the patient populations, such as diabetics. HUMAN SERVICES Federal Register (64 FR 22624). In addition, it is not evident that sNCT Multiple-seizure electroconvulsive offers any diagnostic advantages over a Centers for Medicare & Medicaid therapy (MECT), sensory nerve history and physical examination in Services conduction threshold testing (sNCT), detecting the presence of a neuropathy. [CMS–1260–N] and noncontact normothermic wound There are also no clinical studies that therapy (NNWT) did not have NCDs we identified that demonstrate that the Medicare Program; Meeting of the governing Medicare coverage prior to use of sNCT leads to changes in patient Advisory Panel on Ambulatory the effective dates noted above. management in a particular Medicare Payment Classification Groups— Therefore, coverage for each of these subpopulation. As stated in 42 CFR August 22, 2003 services was at the discretion of the 410.32, a diagnostic test is not local Medicare contractor. AGENCY: Centers for Medicare & reasonable and necessary unless its Medicaid Services (CMS), HHS. This notices restates our previous results are used by the treating ACTION: Notice of meeting. decisions, announced in program physician (who also orders the test) in instructions, to withdraw coverage the management of the beneficiary’s SUMMARY: nationally for multiple-seizure In accordance with section specific medical problem. 10(a) of the Federal Advisory Committee electroconvulsive therapy (CR 2499, TR Act (5 U.S.C. Appendix 2), this notice AB–03–003, 01/10/03), In our discussions with experts, we announces the second biannual meeting electrodiagnostic sensory nerve were also unable to identify a of the Advisory Panel on Ambulatory conduction threshold testing (CR 2153, subpopulation with whom the results of Payment Classification (APC) Groups TR AB–02–066, 05/02/02), and sNCT would alter medical care. We conclude that the scientific and medical (the Panel) for 2003. noncontact normothermic wound The purpose of the Panel is to review therapy (CR 2027, TR AB–02–025, 02/ literature does not demonstrate that the use of sNCT to diagnose sensory the APC groups and their associated 15/02). Medicare has not covered weights and to advise the Secretary of multiple-seizure electroconvulsive neuropathies in Medicare beneficiaries is reasonable and necessary. Health and Human Services (the therapy, electrodiagnostic sensory nerve Secretary) and the Administrator of the conduction threshold testing, and Noncontact Normothermic Wound Centers for Medicare & Medicaid noncontact normothermic wound Therapy (NNWT) Services (CMS) (the Administrator) therapy as of the effective dates noted concerning the clinical integrity of the above. The medical literature does not APC groups and their associated Multiple-Seizure Electroconvulsive support a finding that NNWT heals any weights. The advice provided by the Therapy (MECT) wound type better than conventional Panel will be considered as CMS treatment. While the submitted studies prepares its annual updates of the We have examined the medical and support better healing, due to serious hospital outpatient prospective payment scientific evidence as well as the methodological weaknesses, inadequate system (OPPS) through rulemaking. additional information obtained as a controls, and a variety of biases, the DATES: The second biannual meeting for result of our own investigation. We have improved outcomes could also easily determined that the available evidence 2003 is scheduled for Friday, August 22, disappear in a properly controlled 2003, from 8 a.m. to 5 p.m. (e.d.t.). is adequate to conclude that MECT may randomized trial. pose additional safety risks over ADDRESSES: The meeting will be held in conventional electroconvulsive therapy We have decided to issue a national the Multipurpose Room, 1st Floor, at the (ECT) for patients with affective noncoverage policy for all uses of CMS Central Office, 7500 Security disorders or other psychiatric disorders NNWT for the treatment of wounds Boulevard, Baltimore, Maryland 21244– without a balancing clinical benefit. because the medical literature is not 1850. We have also found that the available sufficient to support a NCD. FOR FURTHER INFORMATION CONTACT: For evidence, limited to case reports, is not For complete decision memoranda copies of the charter, for inquiries adequate to conclude that non-routine providing the rationale for these regarding these meetings, for meeting use of MECT is warranted for medical withdrawals, please refer to http:// registration, and for submitting oral conditions such as neuroleptic www.cms.gov/ncdr/ncdr_index.asp on presentations or written agenda items, malignant syndrome and intractable the Internet and scroll down to the contact Shirl Ackerman-Ross, the seizures that do not respond to other appropriate topic under completed meeting coordinator and Designated therapies. determinations. Federal Official, CMS, Center for Medicare Management, Hospital Therefore, MECT (including the Authority: Sections 1862, 1869(b)(3), and Ambulatory Policy Group, Division of practice of routinely initiating treatment 1871 of the Social Security Act (42 U.S.C. with double-seizure ECT) is considered 1395y, 1395ff(b)(3), and 1395hh). Outpatient Care, 7500 Security not reasonable and necessary for the Boulevard, Mail Stop C4–05–17, treatment of psychiatric and non- (Catalog of Federal Domestic Assistance Baltimore, MD 21244–1850 or phone psychiatric conditions in the Medicare Program No. 93.773 Medicare—Hospital (410) 786–4474. Also, please refer to the Insurance Program; and No. 93.774, population. CMS Advisory Committees’ Information Medicare—Supplementary Medical Line at 1–877–449–5659 (toll free) and Sensory Nerve Conduction Threshold Insurance Program) (410) 786–9379 (local). Testing (sNCT) Dated: May 30, 2003. For additional information on the The available scientific evidence is APC meeting agenda topics and/or not adequate to demonstrate the Thomas A. Scully, updates to the Panel’s activities, search accuracy of sNCT or the accuracy of Administrator, Centers for Medicare & our Internet Web site: http:// sNCT as compared to nerve conduction Medicaid Services. www.cms.hhs.gov/faca/apc/default.asp. studies (NCS). Unlike NCS, sNCT does [FR Doc. 03–18858 Filed 7–24–03; 8:45 am] To submit a request for a copy of the not assess the integrity of motor nerves, BILLING CODE 4120–01–P charter, search the Internet at http://

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www.cms.hhs.gov/faca or e-mail System (HCPCS) codes from one APC to (FAX) transmission and cannot [email protected]. another, and moving HCPCS codes from acknowledge or respond individually to Written materials may also be sent New Technology APCs to Clinical comments we receive. electronically to APCs). In addition to formal presentations, [email protected]. • Evaluation of APC weights. there will be an opportunity during the News media representatives should • Packaging devices and drug costs contact our Public Affairs Office at (202) into APCs: methodology, effect on meeting for public comment, limited to 690–6145. APCs, and need for reconfiguring APCs 1 minute for each individual or organization. Background based upon device and drug packaging. • Removal of procedures from the Persons wishing to attend this SUPPLEMENTARY INFORMATION: The inpatient list for payment under the meeting, which is located on Federal Secretary of the Department of Health OPPS. property, must call the meeting and Human Services (the Secretary) is • Use of single and multiple coordinator, Shirl Ackerman-Ross, at required by section 1833(t)(9)(A) of the procedure claims data. (410) 786–4474, to register in advance Social Security Act (the Act), as • Packaging of HCPCS codes. • no later than Thursday, August 14, amended by section 201(h)(1)(B) and Other technical issues concerning 2003. Persons attending must present a APC structure. redesignated by section 202(a)(2) of the photographic identification to the Balanced Budget Refinement Act We are soliciting comments from the Federal Protective Service or Guard (BBRA) of 1999 (Pub. L. 106–113), to public on specific proposed items Service personnel before they will be establish and consult with an expert, falling within these agenda topics for outside advisory panel on Ambulatory the August 2003 Panel meeting. We will allowed to enter the building. Payment Classification (APC) groups. consider agenda topics for this meeting Persons who are not registered in The Advisory Panel on Ambulatory if they are submitted in writing and fall advance will not be permitted into the Payment Classification Groups (the within the agenda topics listed above. building and will not be permitted to Panel) meets up to three times annually We urge those who wish to comment to attend the meeting. to review the APC groups and to send comments as soon as possible, but A member of our staff will be provide technical advice to the no later than 5 p.m. (e.d.t.) on Thursday, stationed at the Central Building, first- Secretary and to the Administrator of August 14, 2003. floor lobby, to provide assistance to the Centers for Medicare & Medicaid The meeting is open to the public, but Services (CMS) (the Administrator) attendance is limited to the space attendees. Please remember that all concerning the clinical integrity of the available. Individuals or organizations visitors must be escorted if they have groups and their associated weights. We wishing to make 5-minute oral business in areas other than the lower will consider the technical advice presentations should contact the and first floor levels in the Central provided by the Panel as we prepare the meeting coordinator by 5 p.m. (e.d.t.) on Building. Parking permits and proposed rule that proposes changes to Thursday, August 14, 2003, in order to instructions are issued upon arrival by the Outpatient Prospective Payment be scheduled. The number of oral the guards at the main entrance. System (OPPS) for the next calendar presentations may be limited by the Special Accommodation: Individuals year. time available. Oral presentations requiring sign language interpretation or The Panel may consist of up to 15 should not exceed 5 minutes. other special accommodations should representatives of Medicare providers Persons wishing to present must send a request for these services to the that are subject to the OPPS and a Chair. submit a copy of the presentation and meeting coordinator by Thursday, The Administrator selected the Panel the name, address, and telephone August 14, 2003. membership based upon either self- number of the presenter. In addition, all nominations or nominations submitted presentations must contain, at a Authority: Section 1833(t) of the Act (42 by providers or organizations. minimum, the following supporting U.S.C. 1395l(t), as amended by section 201(h) The Panel presently consists of the information and data: of the BBRA of 1999 (Pub. L. 106–113). The following members and a Chair: Paul • The presenter’s financial Panel is governed by the provisions of Pub. Rudolf, M.D., J.D., Chair, a CMS medical relationship(s), if any, with any L. 92–463, as amended (5 U.S.C. Appendix officer; Geneva Craig, R.N., M.A.; Lora company whose products, services, or 2). DeWald, M.Ed.; Robert E. Henkin, M.D.; procedures are under consideration. (Catalog of Federal Domestic Assistance Stephen T. House, M.D.; Kathleen • Physicians’ Current Procedural Program No. 93.773, Medicare—Hospital Kinslow, C.R.N.A., Ed.D.; Mike Metro, Terminology (CPT) codes involved. Insurance; and Program No. 93.774, R.N., B.S.; Gerald V. Naccarelli, M.D.; • APC(s) affected. Medicare—Supplementary Medical and Beverly K. Philip, M.D. • Description of the issue(s). Insurance Program) The new members recently appointed • Clinical description of the service to the Panel are: Marilyn Bedell, M.S., under discussion (with comparison to Dated: July 11, 2003. R.N., O.C.N.; Albert Brooks Einstein, Jr., other services within the APC). Thomas A. Scully, M.D.; Lee H. Hilborne, M.D., M.P.H. • Recommendations and rationale for Administrator, Centers for Medicare & (reappointment); Frank G. Opelka, M.D., change. Medicaid Services. • F.A.C.S.; Lynn R. Tomascik, R.N., Expected outcome of change and [FR Doc. 03–18857 Filed 7–24–03; 8:45 am] potential consequences of not making M.S.N., C.N.A.A.; Timothy Gene Tyler, BILLING CODE 4120–01–P Pharm.D.; and William Van Decker, the change. M.D. (reappointment). Submit a written copy of the oral The agenda for the August 2003 remarks or written agenda items to the meeting will provide for discussion and meeting coordinator listed above or comment on the following topics: electronically to the address: • Reconfiguration of APCs (for [email protected]. Because of example, splitting of APCs, moving staffing and resource limitations, we Healthcare Common Procedure Coding cannot accept comments by facsimile

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DEPARTMENT OF HEALTH AND Presentations and Comments: Submit manufacturers of any items or services HUMAN SERVICES formal presentations and written being discussed (or with their comments to Michelle Atkinson by competitors). Centers for Medicare & Medicaid telephone at 410–786–2881, by e-mail at After the public and the CMS Services [email protected], or by mail to presentations, the Committee will [CMS–3117–N] the Executive Secretary, Office of deliberate openly on the topic. Clinical Standards and Quality, Centers Interested persons may observe the Medicare Program; Meeting of the for Medicare & Medicaid Services, 7500 deliberations, but the Committee will Medicare Coverage Advisory Security Boulevard, Mail Stop C1–09– not hear further comments during this Committee—September 9, 2003 06, Baltimore, MD 21244. time except at the request of the Web site: You may access up-to-date chairperson. The Committee will also AGENCY: Centers for Medicare & information on this meeting at http:// allow an unscheduled open public Medicaid Services (CMS), HHS. www.cms.gov/coverage. session for any attendee to address ACTION: Notice. Hotline: You may access up-to-date issues specific to the topic. At the SUMMARY: This notice announces a information on this meeting on the CMS conclusion of the day, the members will public meeting of the Medicare Advisory Committee Information vote and the Committee will make its Coverage Advisory Committee (the Hotline, 1–877–449–5659 (toll free), or recommendation. Committee). The Committee provides in the Baltimore area, (410) 786–9379. Authority: 5 U.S.C. App. 2, section 10(a)(1) advice and recommendations to us FOR FURTHER INFORMATION CONTACT: and (a)(2). about clinical issues. The Committee Michelle Atkinson, Executive Secretary, (Catalog of Federal Domestic Assistance advises us on whether adequate by telephone at 410–786–2881, or by Program No. 93.774, Medicare— evidence exists to determine whether email at [email protected] Supplementary Medical Insurance Program) specific medical items and services are SUPPLEMENTARY INFORMATION: On reasonable and necessary under the December 14, 1998, we published a Dated: July 16, 2003. Medicare statute. The Committee will notice in the Federal Register (63 FR Steve Phurrough, discuss and make recommendations 68780) to describe the Medicare Acting Director, Coverage and Analysis concerning the quality of the evidence Coverage Advisory Committee (the Group, Office of Clinical Standards and and related issues for the use of ocular Committee), which provides advice and Quality, Chief Medical Officer, Centers for photodynamic therapy (OPT) with recommendations to us about clinical Medicare & Medicaid Services. verteporfin in routine clinical use in the issues. This notice announces the [FR Doc. 03–18993 Filed 7–24–03; 8:45 am] population of Medicare beneficiaries following public meeting of the BILLING CODE 4120–01–P who have age-related macular Committee. degeneration (AMD) and occult with no Meeting Topic: The Committee will classic choroidal neovascularization discuss the evidence, hear presentations DEPARTMENT OF HOMELAND (CNV). Notice of this action is given and public comment, and make SECURITY under the Federal Advisory Committee recommendations regarding the use of Act (5 U.S.C. App. 2, section 10(a)(1) ocular photodynamic therapy (OPT) Coast Guard and (a)(2)). with verteporfin in routine clinical use [USCG–2003–14496] DATES: The public meeting announced in the population of Medicare will be held on Tuesday, September 9, beneficiaries who have age-related Information Collection Under Review 2003 from 7:30 a.m. until 3:30 p.m., macular degeneration (AMD) and occult by the Office of Management and e.d.t. with no classic choroidal Budget (OMB): OMB Control Numbers Deadline for Presentations and neovascularization (CNV). Background 1625–0063 (formerly 2115–0586), 1625– Comments: Interested persons may information about this topic, including 0014 (formerly 2115–0053), 1625–0009 present data, information, or views panel materials, is available on the (formerly 2115–0025), and 1625–0002 orally or in writing, on issues pending Internet at http://www.cms.gov/ (formerly 2115–0007) before the Committee. Written coverage. presentations and comments must be Procedure and Agenda: This meeting AGENCY: Coast Guard, DHS. submitted to the Executive Secretary, is open to the public. The Committee ACTION: Notice and request for Michelle Atkinson, by telephone at 410– will hear oral presentations from the comments. 786–2881 or by e-mail at public. The Committee may limit the [email protected] by August 21, number and duration of oral SUMMARY: In compliance with the 2003, 5 p.m., e.d.t. presentations to the time available. If Paperwork Reduction Act of 1995, this Special Accommodations: Persons you wish to make formal presentations, request for comments announces that attending the meeting who are hearing you must notify the Executive Secretary the Coast Guard has forwarded the four or visually impaired, or have a named in the FOR FURTHER INFORMATION Information Collection Requests (ICRs) condition that requires special CONTACT section, and submit the abstracted below to the Office of assistance or accommodations, are following by August 21, 2003, 5 p.m., Information and Regulatory Affairs asked to notify the Executive Secretary e.d.t.: A brief statement of the general (OIRA) of the Office of Management and by August 21, 2003 (see FOR FURTHER nature of the evidence or arguments you Budget (OMB) for review and comment. INFORMATION CONTACT). wish to present, and the names and Our ICRs describe the information we ADDRESSES: The meeting will be held at addresses of proposed participants. A seek to collect from the public. Review the Holiday Inn Inner Harbor, Room: written copy of your presentation must and comment by OIRA ensures that we Harbor 1, 12th floor, 301 West Lombard be provided to each Panel member impose only paperwork burdens Street, Baltimore, MD 21201. Refer to before offering your public comments. commensurate with our performance of Medicare Coverage Advisory Committee We will request that you declare at the duties. meeting if making reservations through meeting whether or not you have any DATES: Please submit comments on or the Holiday Inn Inner Harbor. financial involvement with before August 25, 2003.

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ADDRESSES: To make sure that your Management, 202–267–2326, for Regulatory History comments and related material do not questions on this document; Dorothy This request constitutes the 30-day enter the docket [USCG 2003–14496] Beard, Chief, Documentary Services notice required by OIRA. The Coast more than once, please submit them by Division, U.S. Department of Guard has already published (68 FR only one of the following means: Transportation, 202–366–5149, for 8324, February 20, 2003) the 60-day (1)(a) By mail to the Docket questions on the docket. notice required by OIRA. That notice Management Facility, U.S. Department SUPPLEMENTARY INFORMATION: elicited no comments. of Transportation, room PL–401, 400 Seventh Street SW., Washington, DC Public Participation and Request for Request for Comments Comments 20590–0001. (b) By mail to OIRA, 725 The Coast Guard invites comments on 17th Street NW., Washington, DC 20503, We encourage you to participate in the proposed collections of information to the attention of the Desk Officer for this request for comment by submitting to determine whether the collections are the Coast Guard. Caution: Because of comments and related materials. We necessary for the proper performance of recent delays in the delivery of mail, will post all comments received, the functions of the Department. In your comments may reach the Facility without change, to http://dms.dot.gov, particular, the Coast Guard would more quickly if you choose one of the and they will include any personal appreciate comments addressing: (1) the other means described below. information you have provided. We practical utility of the collections; (2) (2)(a) By delivery to room PL–401 at have an agreement with DOT to use the the accuracy of the Department’s the address given in paragraph (1)(a) Docket Management Facility. Please see estimated burden of the collections; (3) above, between 9 a.m. and 5 p.m., DOT’s ‘‘Privacy Act’’ paragraph below. ways to enhance the quality, utility, and Submitting comments: If you submit a Monday through Friday, except Federal clarity of the information that is the comment, please include your name and holidays. The telephone number is 202– subject of the collections; and (4) ways address, identify the docket number for 366–9329. (b) By delivery to OIRA, at to minimize the burden of collection on this request for comment [USCG–2003– the address given in paragraph (1)(b) respondents, including the use of 14496], indicate the specific section of above, to the attention of the Desk automated collection techniques or this document to which each comment Officer for the Coast Guard. other forms of information technology. applies, and give the reason for each (3) By fax to (a) the Facility at 202– Comments, to DMS or OIRA, must comment. You may submit your 493–2251 and (b) OIRA at 202–395– contain the OMB Control Number of the comments and material by electronic 5806, or e-mail to OIRA at ICR addressed. Comments to DMS must means, mail, fax, or delivery to the [email protected] attention: contain the docket number of this Docket Management Facility at the Desk Officer for the Coast Guard. request, USCG 2003–14496. Comments address under ADDRESSES but please (4)(a) Electronically through the Web to OIRA are best assured of having their submit your comments and material by Site for the Docket Management System full effect if OIRA receives them 30 or only one means. If you submit them by at http://dms.dot.gov. (b) OIRA does not fewer days after the publication of this mail or delivery, submit them in an have a website on which you can post request. unbound format, no larger than 81⁄2 by your comments. 11 inches, suitable for copying and (5) Electronically through Federal Information Collection Request electronic filing. If you submit them by eRule Portal: http:// 1. Title: Marine Occupational Health mail and would like to know that they www.regulations.gov. and Safety Standards for Benzene—46 reached the Facility, please enclose a The Facility maintains the public CFR Part 197, Subpart C. stamped, self-addressed postcard or docket for this notice. Comments and OMB Control Number: 1625–0063. envelope. We will consider all material received from the public, as Type of Request: Extension of a comments and material received during well as documents mentioned in this currently approved collection. the comment period. We may change notice as being available in the docket, Affected Public: Owners and this proposed rule in view of them. operators of vessels. will become part of this docket and will Viewing comments and documents: be available for inspection or copying at Form: This collection of information To view comments, as well as does not require the public to fill out room PL–401 (Plaza level), 400 Seventh documents mentioned in this preamble Street SW., Washington, DC, between 9 forms, but does require that information as being available in the docket, go to collected be maintain and made a.m. and 5 p.m., Monday through http://dms.dot.gov at any time and Friday, except Federal holidays. You available for Coast Guard inspection. conduct a simple search using the Abstract: To protect marine workers may also find this docket on the Internet docket number. You may also visit the at http://dms.dot.gov. from exposure to toxic benzene vapor, Docket Management Facility in room the Coast Guard implemented 46 CFR Copies of the complete ICRs are PL–401 on the Plaza level of the Nassif available for inspection and copying in Part 197, Subpart C. Building, 400 Seventh Street SW., Annual Estimated Burden Hours: The public dockets. They are available in Washington, DC, between 9 a.m. and 5 estimated burden is 59,766 hours a year. docket USCG 2003–14496 of the Docket p.m., Monday through Friday, except 2. Title: Request for Designation and Management Facility between 10 a.m. Federal holidays. Exemption of Oceanographic Research and 5 p.m., Monday through Friday, Privacy Act: Anyone can search the Vessels. except Federal holidays; for inspection electronic form of all comments OMB Control Number: 1625–0014. and printing on the internet at http:// received in dockets by the name of the Type of Request: Extension of a dms.dot.gov; and for inspection from the individual submitting the comment (or currently approved collection. Commandant (G–CIM–2), U.S. Coast signing the comment, if submitted on Affected Public: Owners or operators Guard, room 6106, 2100 Second Street behalf of an association, business, labor of vessels. SW., Washington, DC, between 10 a.m. union, etc.). You may review the Form: This collection of information and 4 p.m., Monday through Friday, Privacy Act Statement of DOT in the does not require the public to fill out except Federal holidays. Federal Register published on April 11, forms, but does require the information FOR FURTHER INFORMATION CONTACT: 2000 [65 FR 19477], or you may visit to be in written format to the Coast Barbara Davis, Office of Information http://dms.dot.gov. Guard.

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Abstract: 46 U.S.C. 2113 authorizes ACTION: Notice. (Act). The first request for information the Secretary of Transportation to closed June 20, 2003. We are exempt Oceanographic Research SUMMARY: This Notice identifies announcing this second request to allow Vessels, by rule, from certain parts of unutilized, underutilized, excess, and the public additional time to provide Subtitle II of Title 46, Shipping, of the surplus Federal property reviewed by information for these reviews. We are United States Code, concerning vessels HUD for suitability for possible use to again requesting submission of any new and seamen. This information is assist the homeless. information (best scientific and necessary to ensure that a vessel EFFECTIVE DATE: July 25, 2003. commercial data) on the marbled qualifies for exemption. FOR FURTHER INFORMATION CONTACT: murrelet and the northern spotted owl Annual Estimated Burden Hours: The Mark Johnston, Department of Housing that has become available since their estimated burden is 21 hours a year. and Urban Development, Room 7262, original listings in 1992 and 1990, 3. Title: Oil Record Book for Ships. 451 Seventh Street SW., Washington, respectively. If the present classification OMB Control Number: 1625–0009. DC 20410; telephone (202) 708–1234; of each of these species is not consistent Type of Request: Extension of a TTY number for the hearing- and with the best scientific and commercial currently approved collection. speech-impaired (202) 708–2565, (these information available, we may, at the Affected Public: Operators of vessels. telephone numbers are not toll-free), or conclusion of these reviews, initiate a Form: CG–4602A. call the toll-free Title V information line separate action to propose changes to Abstract: The Act to Prevent Pollution at 1–800–927–7588. the List of Endangered and Threatened from Ships (APPS) and the International Wildlife and Plants (List) accordingly. SUPPLEMENTARY INFORMATION: In Convention for Prevention of Pollution accordance with the December 12, 1988 DATES: To allow us adequate time to from Ships, 1973, as modified by the court order in National Coalition for the conduct these reviews, we must receive 1978 Protocol relating thereto (MARPOL Homeless v. Veterans Administration, your information no later than August 73/78), require the entry into an Oil No. 88–2503–OG (D.D.C.), HUD 20, 2003. We want to emphasize that the Record Book (CG–4602A) of information publishes a Notice, on a weekly basis, timely submission of information is about oil carried as cargo or fuel. The identifying unutilized, underutilized, critical to ensure its use in these 5-year maintenance of the Book constitutes the excess and surplus Federal buildings reviews. collection of information. The and real property that HUD has ADDRESSES: Submit information to the requirement for it appears at 33 CFR reviewed for suitability for use to assist Field Office Supervisor, Attention Owl 151.25. the homeless. Today’s Notice is for the and Murrelet 5-year Review, Oregon Annual Estimated Burden Hours: The Fish and Wildlife Office, 2600 SE. 98th estimated burden is 29,048 hours a year. purpose of announcing that no additional properties have been Avenue, Suite 100, Portland, Oregon 4. Title: Application for Vessel 97266. Information received in response Inspection and Waiver. determined suitable or unsuitable this week. to this notice and the results of these OMB Control Number: 1625–0002. reviews will be available for public Type of Request: Extension of a Dated: July 17, 2003. inspection by appointment, during currently approved collection. John D. Garrity, normal business hours, at the above Affected Public: Owners, operators, Director, Office of Special Needs Assistance address. New information regarding the agents, or masters of vessels, or Programs. northern spotted owl may be sent interested Federal agencies. [FR Doc. 03–18620 Filed 7–24–03; 8:45 am] electronically to Form: CG–2633 and CG–3752. BILLING CODE 4210–29–M [email protected]. New Abstract: The collection of information regarding the marbled information requires the owner, murrelet may be sent electronically to operator, agent, or master of a vessel to DEPARTMENT OF THE INTERIOR [email protected]. apply in writing to the Coast Guard FOR FURTHER INFORMATION CONTACT: For before the commencement of the Fish and Wildlife Service inspection for certification, or when, in the marbled murrelet, contact Lee Folliard at the above address, or at 503/ the interest of national defense, a waiver Endangered and Threatened Wildlife 231–6179. For the northern spotted owl, from the requirements of navigation and and Plants; Second Information contact Robin Bown at the above vessel inspection seems desirable Request for the 5-Year Reviews of the address, or at 503/231–6179. Annual Estimated Burden Hours: The Marbled Murrelet (Brachyramphus estimated burden is 677 hours a year. marmoratus marmoratus) and the SUPPLEMENTARY INFORMATION: Section 4(c)(2)(A) of the Act requires that we Dated: July 17, 2003. Northern Spotted Owl (Strix occidentalis caurina) conduct a review of listed species at Clifford I. Pearson, least once every 5 years. The purpose of Director of Information and Technology. AGENCY: Fish and Wildlife Service, a 5-year review is to ensure that the [FR Doc. 03–18922 Filed 7–24–03; 8:45 am] Interior. classification of a species as threatened BILLING CODE 4910–15–P ACTION: Second information request for or endangered on the List is accurate. northern spotted owl and marbled The 5-year review is an assessment of murrelet 5-year reviews. the best scientific and commercial data DEPARTMENT OF HOUSING AND available at the time of the review that URBAN DEVELOPMENT SUMMARY: We, the U.S. Fish and has become available since the species’ Wildlife Service, announce a second original listing or its most recent status [Docket No. FR–4809–N–30] request for information for the 5-year or 5-year review. Federal Property Suitable as Facilities reviews of the marbled murrelet On April 21, 2003, we announced in To Assist the Homeless (Brachyramphus marmoratus a Federal Register notice (68 FR 19569) marmoratus) and the northern spotted that we are commencing 5-year reviews AGENCY: Office of the Assistant owl (Strix occidentalis caurina) under of the marbled murrelet Secretary for Community Planning and section 4(c)(2)(A) of the Endangered (Brachyramphus marmoratus Development, HUD. Species Act (16 U.S.C. 1531 et seq.) marmoratus) and the northern spotted

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owl (Strix occidentalis caurina). We are C. Conservation measures that have take of the threatened desert tortoise conducting the reviews for these two been implemented that benefit the (Gopherus agassizii) incidental to species in connection with the January species; otherwise lawful activities associated 13 and 14, 2003, settlement agreements D. Threat status and trends; and with the construction and operation of for two lawsuits, Western Council of E. Other new information, data, or a proposed automotive test track project Industrial Workers v. Secretary of the corrections including, but not limited on 4,340 acres in Kern County, Interior, Civil No. 02–6100–AA (D. Or.) to, taxonomic or nomenclatural changes, California. With the access road from and American Forest Resources Council or improved analytical methods. the south and access road/waterline v. Secretary of the Interior, Civil No. 02– Specifically for the spotted owl and from the east, the project would result 6087–AA (D. Or.). The public comment murrelet we are interested in new in the permanent removal of period for the April 21, 2003, notice information, analyses, and/or reports for approximately 4,368.5 acres of occupied ended June 20, 2003. However, to allow these species that summarize and desert tortoise habitat, relocation of additional time for the public to submit interpret their population status and desert tortoises currently occupying the information, amendments to the related threats. The reviews will site, and acquisition of 3,228.5 acres of settlement agreements were filed on consider information such as: higher quality desert tortoise habitat. June 30, 2003, with the District Court in Population and demographic trend data; Desert tortoise impacts to 1,140 acres on Oregon extending the deadlines for studies of dispersal and habitat use; the project site previously were completing the reviews. In accordance genetics and species competition compensated under a federal land with the amended settlement investigations; surveys of habitat exchange, the West Mojave Land Tenure agreements, we are reopening the public amount, quality, and distribution; Adjustment Act. comment periods on these reviews until adequacy of existing regulatory We request comments from the public August 20, 2003. mechanisms; and management and on the proposed Habitat Conservation conservation planning information. We The 5-year reviews for these two Plan (Plan), Environmental Assessment, request this information for all species will assess: (a) Whether new and Implementing Agreement, which applicable land ownerships within the information suggests that the species’ are available for review. The Plan range of both species. describes the proposed action and the populations are increasing, declining, or Information submitted should be stable; (b) whether existing threats are measures that the Applicant will supported by documentation such as undertake to minimize and mitigate take increasing, the same, reduced, or maps, bibliographic references, methods eliminated; (c) if there are any new of the desert tortoise. To review the used to gather and analyze the data, permit application or Environmental threats; and (d) if new information or and/or copies of any pertinent analysis calls into question any of the Assessment, see ‘‘Availability of publications, reports, or letters by Documents’’ in the SUPPLEMENTARY conclusions in the original listing knowledgeable sources. determinations as to the species’ status. INFORMATION section. The reviews will also apply this new Authority: This document is published DATES: We must receive your written information to consideration of the under the authority of the Endangered comments on or before September 23, Species Act (16 U.S.C. 1531 et seq.). appropriate application of the Policy 2003. Regarding the Recognition of Distinct Dated: July 16, 2003. ADDRESSES: Please address written Vertebrate Population Segments (61 FR Marshall P. Jones, comments to Field Supervisor, Ventura 4722) to the listed entity, if applicable. Acting Director, Fish and Wildlife Service. Fish and Wildlife Office, Fish and If there is no new information [FR Doc. 03–19039 Filed 7–22–03; 4:48 pm] Wildlife Service, 2493 Portola Road, concerning the marbled murrelet or BILLING CODE 4310–55–P Suite B, Ventura, California 93003. You northern spotted owl, no changes will also may send comments by facsimile to be made to their classifications. (805) 644–3958. However, if we find that there is new DEPARTMENT OF THE INTERIOR FOR FURTHER INFORMATION CONTACT: Tim information concerning the marbled Thomas, Botanist, Ventura Fish and Fish and Wildlife Service murrelet or northern spotted owl Wildlife Office, Barstow Sub-office; indicating a change in classification is Availability of an Environmental (760) 255–8890. warranted, we may propose new rules Assessment and Receipt of an SUPPLEMENTARY INFORMATION: that could either: (a) Reclassify the Application for an Incidental Take Availability of Documents species from threatened to endangered; Permit for the Hyundai Motor America You may obtain copies of these or (b) remove the species from the List. Automotive Test Track Project in Kern documents for review by contacting the County, CA Public Solicitation of New Information above office, or by making an We are publishing this second request AGENCY: Fish and Wildlife Service, appointment to view the documents at for any new information relating to the Interior. the above address during normal current status of the northern spotted ACTION: Notice of availability and business hours (FOR FURTHER owl and marbled murrelet that has receipt of application. INFORMATION CONTACT). Documents also become available since their original will be available for public inspection, SUMMARY: Hyundai Motor America listing. In particular, we are seeking on our Web site at http:// (HMA) and the City of California City information such as: ventura.fws.gov., and during regular (collectively Applicants) have applied business hours at the California City A. Species biology including, but not to the Fish and Wildlife Service Library, 9507 California City Boulevard, limited to, population trends, (Service) for an incidental take permit California City, California. distribution, abundance, demographics, pursuant to section 10(a)(1)(B) of the and genetics; Endangered Species Act of 1973, as Background B. Habitat conditions including, but amended (Act). The Service is Section 9 of the Act and federal not limited to, amount, distribution, and considering issuing a 30-year permit to regulations prohibit the ‘‘take’’ of fish suitability; the Applicants that would authorize and wildlife species listed as

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endangered or threatened. Take of and is occupied by desert tortoise. and other features on the Hyundai federally listed fish and wildlife is Category III habitat is defined as areas property and moving tortoises outside defined under the Act as including to that are not essential to maintenance of the exclusion fence to adjacent areas on ‘‘harass, harm, pursue, hunt, shoot, viable populations, that contain low to the Hyundai property; (3) the San wound, kill, trap, capture, or collect, or medium densities, and that are not Bernardino County Automotive Test to attempt to engage in any such contiguous with medium- or high- Course Site, which consists of locating conduct.’’ The Service may, under density areas and in which the the project to a site within San limited circumstances, issue permits to population is stable or decreasing. The Bernardino County; (4) the Riverside authorize incidental take (i.e., take that proposed project site supports three County Automotive Test Course Site, is incidental to, and not the purpose of, common Mojave Desert plant which consists of locating the project to the carrying out of an otherwise lawful communities—desert saltbush scrub, a site within Riverside County; and (5) activity). Regulations governing Mojave creosote bush scrub, and Joshua the Proposed Action, which consists of incidental take permits for threatened tree woodland. Past and current grazing installing desert tortoise exclusion fence and endangered species are found in 50 of domestic sheep has degraded the site. around the perimeter of the Hyundai CFR 17.32 and 17.22. Field survey observations also property and relocating all desert The Applicants are proposing to documented signs of human tortoises to an off-site location. Except construct an automotive test track disturbance, including approximately for the No Action Alternative, the facility and associated water line and 60 acres of unimproved roads, scattered alternatives to the Proposed Action access roads to evaluate the safety, shotgun shells and bullet casings, trash, would adversely affect more federally performance and handling of concept, and abandoned campsites and listed species than the Proposed Action prototype and production automobiles automobiles. Signs of historical military Alternative. to be manufactured at HMA’s use also are found throughout the site, This notice is provided pursuant to automotive assembly and manufacturing including ammunition casings and at section 10(a) of the Act and the plant currently under construction in least one aircraft crash site. regulations of the National Birmingham, Alabama. HMA proposes During directed surveys in March and Environmental Policy Act (NEPA) of to construct the facility on 4,340 acres April 2002, three live desert tortoises 1969 (40 CFR 1506.6). All comments located approximately 60 miles were observed on the proposed that we receive, including names and southeast of Bakersfield, California, 9 development site. An additional survey addresses, will become part of the miles east of the community of Mojave, performed in May 2003 observed 8 live official administrative record and may California and 0.5 mile north of State tortoises. Construction of the proposed be made available to the public. We will Highway 58 in Kern County, California. project is anticipated to directly affect evaluate the application, associated The proposed project is located in the 834.5 acres of occupied desert tortoise documents, and comments submitted west Mojave Desert. The proposed habitat. In addition, the 4,340-acre site thereon to determine whether the facility will consist of a 6-mile long oval will no longer be accessible to desert application meets the requirements of test course, two access roads, a winding tortoise due to installation of desert NEPA regulations and section 10(a) of track, a vehicle dynamics area, a hill-up tortoise exclusion fencing around the the Act. If we determine that those road, a straight stability road, a support perimeter of the site. The State Highway requirements are met, we will issue a building and parking lot and perimeter 58 access road will remove 8.5 acres of permit to the Applicants for the fencing. The proposed project includes desert tortoise habitat, and the City incidental take of the desert tortoise. installation of desert tortoise exclusion water line extension and Joshua Tree fencing around the 4,340-acre site Boulevard road access will adversely Dated: July 18, 2003. perimeter and removal and relocation of affect 20 acres of desert tortoise habitat. D. Kenneth McDermond, desert tortoises from the site. The Impacts to 1,140 acres on the project site Manager, California/Nevada Operations project also includes an off-site access already have been mitigated pursuant to Office, Sacramento, California road from State Highway 58 that will the LTA 1998 Biological Opinion. The [FR Doc. 03–18925 Filed 7–24–03; 8:45 am] remove 8.5 acres of desert tortoise Applicants propose to mitigate for the BILLING CODE 4310–55–P habitat. Finally, the City of California remaining desert tortoise impacts by City proposes to build a 2-mile water acquiring 3,228.5 acres of higher quality line extension and widen Joshua Tree desert tortoise habitat in an area DEPARTMENT OF THE INTERIOR Boulevard to serve the project, which adjacent to the Desert Tortoise Natural will result in adverse effects to 20 acres Area and translocating desert tortoises Bureau of Land Management of desert tortoise habitat. from the Hyundai site to a location that [MT–912–0777–XP] The 4,340-acre project site includes will be managed for the desert tortoise. 1,140 acres that were part of the Based on the survey results and habitat Notice of Public Meetings; Western, Western Mojave Land Tenure impacts, the Service concluded that Central, Eastern Montana, and Dakotas Adjustment (LTA) Project, a land implementation of the proposed project Resource Advisory Council Meetings; exchange program between private likely will result in take of less than 40 Montana parties and the U.S. Bureau of Land desert tortoises due to their Management (BLM). Pursuant to a translocation from the project site. AGENCY: Bureau of Land Management, Biological Opinion issued by the The Service’s Environmental Interior. Service to BLM on January 8, 1998, Assessment considers the ACTION: Notice. (6844440 (CA–063.50) (1–8–98–F–60R)), environmental consequences of five any proposed take of desert tortoise on alternatives, including: (1) The No SUMMARY: In accordance with the the 1,140 acres must be authorized by Action Alternative, which consists of no Federal Land Policy and Management the Service, but no further mitigation is permit issuance and no development on Act (FLPMA) and the Federal Advisory required for take of the desert tortoise or the Hyundai property at this time; (2) Committee Act of 1972 (FACA), the U.S. impacts to its habitat. the On-Site Fencing Alternative, which Department of the Interior, Bureau of The project site is classified by BLM consists of installing desert tortoise Land Management (BLM), the Western, as Category III habitat for desert tortoise exclusion fencing around the test track Central, and Eastern Montana, and the

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Dakotas Resource Advisory Councils comments to the Council. Each formal Community Self Determination Act of will meet as indicated below. Council meeting will also have time 2000, Public Law 106–393 (the Act). DATES: The Western Montana RAC allocated for hearing public comments. Topics to be discussed by the Roseburg meeting will be held September 10, Depending on the number of persons District BLM Resource Advisory 2003, at the Search and Rescue Building wishing to comment and time available, Committee include specific information in Dillon, Montana, beginning at 10 a.m. the time for individual oral comments of specific projects and/or decisions on The public comment period on may be limited. Individuals who plan to specific projects. Sustaining Working Landscapes (SWL) attend and need special assistance, such DATES: The Roseburg Resource Advisory and other topics will begin at 1 p.m. and as sign language interpretation, or other Committee was scheduled to meet at the the meeting is expected to adjourn by 3 reasonable accommodations, should BLM Roseburg District Office, 777 NW. p.m. Also on the agenda will be contact the BLM as provided below. Garden Valley Boulevard, Roseburg, information about the Montana/Dakotas FOR FURTHER INFORMATION CONTACT: For Oregon 97470 on July 21, July 28, and Off-Highway Vehicle policy. the Western Montana RAC, contact August 4, 2003 from 9 a.m. to 4 p.m. The Central Montana RAC will meet Marilyn Krause, Resource Advisory These meetings have been canceled. For September 23–25, 2003, at the Council Coordinator, at the Butte Field briefing information please refer to Agricultural Museum in Fort Benton, Office, 106 North Parkmont, Butte, MT HAG–03–0134. Montana. The RAC members will tour 59701, telephone 406–533–7617, or Tim SUPPLEMENTARY INFORMATION: the Missouri River on September 23. Bozorth, Field Manager, at the Dillon Pursuant The meeting will convene at 8 a.m. on Field Office, 1005 Selway Drive, Dillon, to the Act, five Resource Advisory September 24. Public comment periods MT 59725, telephone 406–683–2337. Committees have been formed for on SWL and other topics are scheduled For the Central Montana RAC, contact western Oregon BLM district that for that day from 12–12:30 p.m. and 4– David L. Mari, Lewistown Field contain Oregon & California (O&C) 5 p.m. Another public comment session Manager, at the Lewistown Field Office, Grant Lands and Coos Bay Wagon Road is scheduled for 8 a.m.-8:30 a.m. on P.O. Box 1160, Airport Road, lands. The Act establishes a six-year September 25. The meeting should Lewistown, MT 59457, 406–538–7461. payment schedule to local counties in adjourn at 12:45 p.m. on September 25. For the Eastern Montana RAC, contact lieu of funds derived from the harvest Also on the agenda will be information Mark Jacobsen, Resource Advisory of timber on federal lands, which have about the Montana/Dakotas Off- Council Coordinator, at the Miles City dropped dramatically over the past 10 Highway Vehicle policy and the Field Office, 111 Garryowen Road, years. Blackleaf EIS. Miles City, MT 59301, 406–233–2831. The Act creates a new mechanism for The Eastern Montana RAC will meet For the Dakotas RAC, contact Doug local community collaboration with August 14, 2003, at 8 a.m. in Billings, Burger, North Dakota Field Manager, at Federal land management activities in Montana, at the Hampton Inn. The the North Dakota Field Office, 2933 the selection of projects to be conducted public comment period on SWL and Third Avenue West, Dickinson, ND on Federal lands or that will benefit other topics will begin at 2 p.m., and the 58601, 701–227–7700. resources on Federal lands using funds under Title II of the Act. The Roseburg meeting will adjourn at about 3:30 p.m. Dated: July 17, 2003. Also on the agenda will be information District BLM Resource Advisory A. Jerry Meredith, about the Montana/Dakotas Off- Committee consists of 15 local citizens Highway Vehicle policy. Associate State Director, Montana State (plus 6 alternates) representing a wide The Dakotas RAC will meet Office. array of interests. [FR Doc. 03–18956 Filed 7–24–03; 8:45 am] September 3, 2003, at 2 p.m. at the FOR FURTHER INFORMATION CONTACT: BILLING CODE 4310–$$–P Golden Hills Resort Best Western, in Additional information concerning the Lead, South Dakota, to tour Grizzly Roseburg District BLM Resource Gulch fire rehabilitation and DEPARTMENT OF THE INTERIOR Advisory Committee may be obtained monitoring. The meeting will resume at from E. Lynn Burkett, Public Affairs 8 a.m. on September 4, 2003, at the Bureau of Land Management Officer, Roseburg District Office, 777 Golden Hills Resort Best Western. NW. Garden Valley Blvd., Roseburg, Sustaining Working Landscapes and [OR–100–5882–AF; HAG03–0236] Oregon 97470 or other topics, including the Montana/ _ Notice of Public Meeting, Roseburg elynn [email protected], or on the Web Dakotas Off-Highway Vehicle policy, at http://www.or.blm.gov. will be discussed with public comment Resource Advisory Committee Meeting Dated: July 18, 2003. taken on those and other issues AGENCY: Bureau of Land Management, Gail S. Schaefer, beginning at 2 p.m. Interior. Acting Roseburg District Manager. SUPPLEMENTARY INFORMATION: The 15- ACTION: Cancellation of meetings for the [FR Doc. 03–18958 Filed 7–24–03; 8:45 am] member Councils advise the Secretary Roseburg District Bureau of Land of the Interior, through the Bureau of Management (BLM) Resource Advisory BILLING CODE 4310–33–P Land Management, on a variety of Committee under section 205 of the planning and management issues Secure Rural Schools and Community DEPARTMENT OF THE INTERIOR associated with public land Self Determination Act of 2000 (Pub. L. management in Montana and the 106–393). Minerals Management Service Dakotas. At these four meetings, the Councils will accept public comment on SUMMARY: This notice is published in Environmental Documents Prepared the SWL initiative and possibly develop accordance with section 10(a)(2) of the for Proposed Oil and Gas Operations recommendations on the same for the Federal Advisory Committee Act. on the Gulf of Mexico Outer consideration of the Montana/Dakotas Meeting notice is hereby given for the Continental Shelf (OCS) State Director. Roseburg District BLM Resource All meetings are open to the public. Advisory Committee pursuant to section AGENCY: Minerals Management Service, The public may present written 205 of the Secure Rural School and Interior.

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ACTION: Notice of the availability of Minerals Management Service, Gulf of major Federal actions that significantly environmental documents. Prepared for Mexico OCS Region, Attention: Public affect the quality of the human OCS mineral proposals on the Gulf of Information Office (MS 5034), 1201 environment in the sense of NEPA Mexico OCS. Elmwood Park Boulevard, Room 114, section 102(2)(C). A FONSI is prepared New Orleans, Louisiana 70123–2394, or in those instances where MMS finds SUMMARY: Minerals Management Service by calling 1–800–200–GULF. that approval will not result in (MMS), in accordance with Federal SUPPLEMENTARY INFORMATION: MMS significant effects on the quality of the regulations that implement the National prepares SEAs and FONSIs for human environment. The FONSI briefly Environmental Policy Act (NEPA), proposals that relate to exploration for presents the basis for that finding and announces the availability of NEPA- and the development/production of oil includes a summary or copy of the SEA. related Site-Specific Environmental and gas resources on the Gulf of Mexico This notice constitutes the public Assessments (SEA) and Findings of No OCS. These SEAs examine the potential notice of availability of environmental Significant Impact (FONSI), prepared by environmental effects of activities documents required under the NEPA MMS for the following oil and gas described in the proposals and present Regulations. activities proposed on the Gulf of MMS conclusions regarding the This listing includes all proposals for Mexico OCS. significance of those effects. which the Gulf of Mexico OCS Region FOR FURTHER INFORMATION CONTACT: Environmental Assessments are used as prepared a FONSI in the period Public Information Unit, Information a basis for determining whether or not subsequent to publication of the Services Section at the number below. approval of the proposals constitutes preceding notice dated August 13, 2002.

Activity/Operator Location Date

Kerr McGee Oil & Gas Corporation, Development Operations Garden Banks Area, Blocks 667, 668 and 669, Leases OCS–G 04/02/03 Coordination Plan and Lease-Term Pipeline, PEA No. N–7625 17406, 17407 and 17408, respectively, located 117.5 miles and Segment No. P–14109. from the nearest Texas shoreline. BP Exploration & Production, Inc., Development Operations Co- Green Canyon Area, Blocks 742, 743, 744, 787 and 788, 04/25/03 ordination Plan, SEA No. N–7646. Leases OCS–G 15606, 15607, 15608, Unleased and Un- leased, respectively, located 122 miles from the nearest Lou- isiana shoreline. Fugro Geoservices, Inc. for BP America, Inc., Geological and Located in the Central Gulf of Mexico southeast of Patterson, 05/02/03 Geophysical Exploration Plan, SEA No. L03–17. Louisiana. Anadarko Petroleum Corporation, Initial Exploration Plan, SEA DeSoto Canyon Area, Block 621, Lease OCS–G 23529, lo- 05/05/03 No. N–7686. cated 95.5 miles from the nearest Louisiana shoreline. Shell Offshore, Inc., Initial Exploration Plan, SEA No. N–7698 ... Lloyd Ridge Area, Block 399, Lease OCS–G 23480, located 05/07/03 128 miles from the nearest Louisiana shoreline. Anadarko Petroleum Corporation, Initial Exploration Plan, SEA Lloyd Ridge Area, Blocks 265 and 309, Leases OCS–G 03472 05/07/03 No. N–7713. and 03473, respectively, located 120 miles from the nearest Louisiana shoreline. Amerada Hess Corporation, Initial Exploration Plan, SEA No. N– DeSoto Canyon Area, Block 620, Lease OCS–G 23528, lo- 05/21/03 7672. cated 93 miles from the nearest Louisiana shoreline. W & T Inc., Right-of-Way Pipeline Application, SEA No. P– Offshore, Garden Banks Area, Block 139, Lease OCS–G 05/30/03 14037. 17295 to High Island Area, Block A389, Lease OCS–G 02759, located 123 miles from the nearest Louisiana shore- line. Endymion Oil Pipeline Company, LLC, Right-of-Way Pipeline South Pass Area, Block 89, to traverse through Federal waters 05/29/03 Application, SEA No. P–13534. in South Pass Block 88, West Delta Blocks 145, 128, 129, 126, 125, 112, 113, 104, 103, 91, 92, 93, 72, 71, 66, 67, 39 and 38, and Grand Isle Blocks 20, 19 and 18, and continue through Louisiana State waters to Louisiana Offshore Oil Port near Clovelly, Louisiana, length through Federal waters is 46 miles and total length in offshore waters is 54 miles. Anadarko Petroleum Corporation, Initial Exploration Plan, SEA Lloyd Ridge Area, Blocks 47, 91 and 135, located 111 miles 06/17/03 No. N–7751. from the nearest Louisiana shoreline. ATP Oil & Gas Corporation, Structure Removal Activity, SEA Vermilion Area (South Addition), Block 389, Lease OCS–G 02/04/03 ES/SR Nos. 03–010 and 03–011. 14430, and Block 410, Lease OCS–G 11903, located 109– 110 miles south of Cameron, Louisiana, and 129–131 miles south-southeast of Cameron Parish, Louisiana. WesternGeco for Exxon Mobil Production Company, Geological Located in the central Gulf of Mexico southeast of Fourchon, 03/31/03 & Geophysical Exploration, SEA No. L03–12. Louisiana. WesternGeco for Multi-Client, Geological & Geophysical Explo- Located in the central Gulf of Mexico southeast of Fourchon, 04/15/03 ration, SEA No. L03–13. Louisiana, and New Orleans, Louisiana. Energy Resource Technology, Inc., Structure Removal Activity, South Timbalier Area, Block 213, Lease OCS–G 18055, lo- 04/07/03 SEA ES/SR No. 03–067. cated 50 miles from the nearest Louisiana shoreline. Energy Resource Technology, Inc., Structure Removal Activity, West Cameron Area, Block 277, Lease OCS–G 04761, located 04/07/03 SEA ES/SR No. 03–068. 60 miles from the nearest Louisiana shoreline. Petrobras America, Inc., Structure Removal Activity, SEA ES/SR Ship Shoal Area, Block 301, Lease OCS–G 10794, located 57 05/06/03 No. 03–069. miles from the nearest Louisiana shoreline. Anadarko E & P Company, LP, Structure Removal Activity, SEA Eugene Island Area, Block 296, Lease OCS–G 02105, located 05/06/03 ES/SR No. 03–070. 61 miles from the nearest Louisiana shoreline. Ocean Energy, Inc., Structure Removal Activity, SEA ES/SR No. Vermillion Area, Block 68, Lease OCS–G 08662, located 15 05/06/03 03–071. miles from the nearest Louisiana shoreline. Ocean Energy, Inc., Structure Removal Activity, SEA ES/SR No. East Cameron Area, Block 152, Lease OCS–G 17849. located 05/06/03 03–072. 44 miles from the nearest Louisiana shoreline.

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Activity/Operator Location Date

Ocean Energy, Inc., Structure Removal Activity, SEA ES/SR No. Galveston Area, Block 283, Lease OCS–G 09039, located 15 05/06/03 03–073. miles from the nearest Texas shoreline. Ocean Energy, Inc., Structure Removal Activity, SEA ES/SR No. Galveston Area, Block 393, Lease OCS–G 15761, located 22 05/06/03 03–074. miles from the nearest Texas shoreline. Ocean Energy, Inc., Structure Removal Activity, SEA ES/SR No. Brazos Area, Block 399, Lease OCS–G 07218, located 14 05/06/03 03–07, 03–076 and 03–077. miles from the nearest Texas shoreline. Ocean Energy, Inc., Structure Removal Activity, SEA ES/SR No. Brazos Area, Block 432, Lease OCS–G 09018, located 20 05/06/03 03–078. miles from the nearest Texas shoreline. Amerada Hess Corporation, Structure Removal Activity, SEA West Cameron Area, Block 505, Lease OCS–G 16200, located 05/03/03 ES/SR No. 03–080. 97 miles from the nearest Texas shoreline. Amerada Hess Corporation, Structure Removal Activity, SEA West Cameron Area, Block 556, Lease OCS–G 05346, located 05/06/03 ES/SR No. 03–081 and 03–082. 97 miles from the nearest Texas shoreline. Amerada Hess Corporation, Structure Removal Activity, SEA Galveston Area, Block 210, Lease OCS–G 07236, located 97 05/06/03 ES/SR No. 03–083. miles from the nearest Texas shoreline. Hunt Oil Company, Structure Removal Activity, SEA ES/SR No. South Pass Area, Block 37, Leases OCS–G 01335 and OCS 04/15/03 03–087, 03–088, 03–089, 03–090 and 03–091. 00697, located 6–8 miles east-southeast of Plaquemines Parish, Louisiana shoreline. ATP Oil & Gas Corporation, Structure Removal Activity, SEA South Timbalier Area, Block 30, Lease OCS–G 13928, located 04/14/03 No. ES/SR 03–092. 7 miles south of LaFourche Parish, Louisiana shoreline. J. M. Huber Corporation, Structure Removal Activity, SEA ES/ South Timbalier Area, Block 21, Lease OCS–G 00263, located 04/11/03 SR No. 03–093 and 03–094. 5 miles from the nearest Louisiana shoreline. BP America Production Company, Structure Removal Activity, High Island Area, Block A1, Lease OCS–G 15780, located 30 04/14/03 SEA ES/SR No. 03–095. miles from the nearest Louisiana shoreline. Chevron U.S.A., Inc., Structure Removal Activity, SEA ES/SR Eugene Island Area, Block 23, Lease OCS–G 00980, located 05/16/03 No. 03–096 and 03–097. 45 miles from the nearest Louisiana shoreline. Chevron U.S.A., Inc., Structure Removal Activity, SEA ES/SR Ship Shoal Area, Block 108, Lease OCS–00814, located 20 04/22/03 No. 03–098. miles from the nearest Louisiana shoreline. Burlington Resources offshore, Inc., Structure Removal Activity, Eugene Island Area, Block 159, Lease OCS–G 04449, located 04/16/03 SEA ES/SR No. 03–099. 35 miles from the nearest Louisiana shoreline. Murphy Exploration & Production Company, Structure Removal South Pelto Area, Blocks 12 and 19, Leases OCS–G 00072 04/23/03 Activity, SEA ES/SR No. 03–100, 03–101, 03–102, 03–103, and 00073; Ship Shoal Area, Block 101, Lease OCS–G 03–104, 03–105, 03–106, 03–107, 03–108, and 03–109. 09612; and Vermilion Area, Block 130, Lease OCS–G 16296; all located 8 to 32 miles south and southwest from the nearest Louisiana shoreline. J. M. Huber Corporation, Structure Removal Activity, SEA ES/ West Cameron Area, Block 238, Lease No. OCS–02834, lo- 04/23/03 SR No. 03–110. cated 40 miles from the nearest Louisiana shoreline. TotalFinaElf E&P USA, Inc., Structure Removal Activity, SEA West Cameron Area, Block 167, Lease OCS–G 09400, located 04/29/03 ES/SR No. 03–111 and 03–112. 25 miles from the nearest Louisiana shoreline. McMoRan Oil & Gas, Structure Removal Activity, SEA ES/SR Eugene Island Area, Block 215, Lease OCS–G 00578, located 05/06/03 No. 03–113. 43 miles from the nearest Louisiana shoreline. W & T Offshore, Inc., Structure Removal Activity, SEA ES/SR East Cameron Area, Block 303, Lease OCS–G 12850, located 05/19/03 No. 03–114. 88 miles from the nearest Louisiana shoreline. Spinnaker Exploration Company, LLC, Structure Removal Activ- East Cameron Area, Blocks 138 and 139, Leases OCS–G 05/14/03 ity, SEA ES/SR No. 03–115—03–117. 13863 and 21576, located 45 miles from the nearest Lou- isiana shoreline. Spinnaker Exploration Company, LLC, Structure Removal Activ- High Island Area, Block 235, Lease OCS–G 18941, located 30 05/16/03 ity, SEA ES/SR No. 03–118. miles from the nearest Louisiana shoreline. Chinese Offshore Oil Geophysical Corporation for GX Tech- Located in the Central and Western Gulf of Mexico from south 05/16/03 nology Corporation, Geological and Geo-Physical Exploration of Fourchon, Louisiana, extending offshore to northeast of Plan, SEA No. T03–08. Port Isabel, Texas. El Paso Production Company, Structure Removal Activity, SEA West Cameron, (South Addition) Area, Block 498, Lease OCS– 05/20/03 ES/SR No. 97–095A. G 03520. located 92 miles from the nearest Louisiana shore- line. ChevronTexaco, Structure Removal Activity, SEA ES/SR Nos. High Island Area (South Addition), Block A548, Lease OCS-G 05/21/03 00–1342A, 03–119, 95–049A, 07–090A, 03–120 and 03–121. 02706; West Cameron Area, Blocks 17 and 48, Lease OCS– G 01351, located 99 miles southeast of Galveston, Texas, and 3.5 miles south of Cameron, Louisiana, respectively. The William G. Helis Company, LLC, Structure Removal Activ- South Timbalier (South Addition) Area, Block 212, Lease OCS– 05/21/03 ity, SEA ES/SR No. 03–122. G 14538, located 43 miles from the nearest Louisiana shore- line. Forest Oil Corporation, Structure Removal Activity, SEA ES/SR Eugene Island Area, Block 273, Lease OCS–G 00987, located 05/21/03 No. 03–123. 60 miles from the nearest Louisiana shoreline. Chevron U.S.A., Inc., Structure Removal Activity, SEA ES/SR Eugene Island Area, Block 64, Lease OCS–G 02098, located 06/02/03 No. 03–124. 20 miles from the nearest Louisiana shoreline. Callon Petroleum Operating Company, Structure Removal Activ- Main Pass Area, Block 161, Lease OCS–G 05703, 45 miles 05/29/03 ity, SEA ES/SR No. 03–125. from the nearest Louisiana shoreline. El Paso Production Oil & Gas Company, Structure Removal Ac- East Cameron Area, Block 82, Lease OCS–G 08640, located 06/03/03 tivity, SEA ES/SR No. 03–126. 28 miles from the nearest Louisiana shoreline. WesternGeco for Multi-Client, Geological & Geophysical Explo- Located in the central Gulf of Mexico south of Cocodrie, Lou- 06/03/03 ration, SEA No. L03–32. isiana. WesternGeco for Multi-Client, Geological & Geophysical Explo- Located in the central Gulf of Mexico south of Cocodrie and 06/05/03 ration, SEA No. L03–26 and L03–27. Fourchon, Louisiana. WesternGeco for Multi-Client, Geological & Geophysical Explo- Located in the central Gulf of Mexico south of Louisa and 06/05/03 ration, SEA No. L03–28 and L03–29. Leeville, Louisiana.

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Activity/Operator Location Date

Ocean Energy, Inc., Structure Removal Activity, SEA ES/SR No. Main Pass Area, Block 63, Lease OCS–G 18086, located 16 06/20/03 03–127. miles from the nearest Louisiana shoreline. Maritech Resources, Inc., Structure Removal Activity, SEA ES/ Eugene Island Area, Block 215, Lease OCS–G 00580, 37 06/18/03 SR No. 03–128, 03–129 and 03–130. miles from the nearest Louisiana shoreline. Hunt Oil Company, Structure Removal Activity, SEA ES/SR No. Eugene Island Area, Block 76, Lease OCS–G 04823, located 06/11/03 03–131. 17 miles from the nearest Louisiana shoreline. Union Oil Company of California, Structure Removal Activity, South March Island Area, Block 11, Lease OCS–G 01182, lo- 06/09/03 SEA ES/SR No. 03–132. cated 35 miles southwest from the nearest Louisiana shore- line. Torch Energy Services, Inc., Structure Removal Activity, SEA Main Pass Area, Block 100, Lease OCS–G 04910, located 13 06/16/03 ES/SR No. 03–133. miles east-southeast of the nearest Louisiana shoreline. EOG Resources, Structure Removal Activity, SEA ES/SR No. East Cameron Area, Block 118, Lease OCS–G 14362, located 06/16/03 03–137. 36 miles south-southwest from the nearest Louisiana shore- line. Nexen Petroleum U.S.A., Inc., Structure Removal Activity, SEA Eugene Island Area, Block 295, Lease OCS–G 02104, located 06/18/03 ES/SR No. 03–134. 70 miles from the nearest Louisiana shoreline. Walter Oil & Gas Corporation, Structure Removal Activity, SEA Padre Island Area, Blocks 976 and 996, OCS-G 05954 and 06/23/03 ES/SR No. 03–135 and 03–136. 08962, located 25 miles from the nearest Louisiana shoreline.

Persons interested in reviewing The two scoping meetings will be development of a long-term recreation environmental documents for the held as follows: contract between Reclamation and the proposals listed above or obtaining • September 24, 2003, at 7 p.m., Ojai, non-Federal Managing Partner, Casitas. information about SEAs and FONSIs CA 93023 • The RMP will specifically address the prepared for activities on the Gulf of September 25, 2003, at 7 p.m., Recreation Area, the entire lake, and all Mexico OCS are encouraged to contact Ventura, CA 93001 government land surrounding the lake. MMS at the address or telephone listed ADDRESSES: Written comments on the The objective of an RMP is to establish in the FOR FURTHER INFORMATION section. scope of the RMP and DEIS should be management objectives, guidelines, and Dated: June 27, 2003. sent to Mr. Dan Holsapple, Bureau of actions to be implemented by Reclamation, South-Central California Chris C. Oynes, Reclamation directly, or through its Area Office, 1243 N Street, Fresno, CA recreation contract with Casitas, that Regional Director, Gulf of Mexico OCS Region. 93721–1813; or by telephone at 559– [FR Doc. 03–18531 Filed 7–24–03; 8:45 am] will protect the water supply and water 487–5409; or faxed to 559–487–5130 quality functions of Lake Casitas; BILLING CODE 4310–MR–P (TDD 559–487–5933). protect and enhance natural and The meeting locations are: cultural resources in the Recreation • Ojai, California, at the Soule Golf Area consistent with Federal law and DEPARTMENT OF THE INTERIOR Course, Banquet Room, 1033 East Ojai Reclamation policies; and provide Avenue Bureau of Reclamation • Ventura, California, at the E.P. recreational opportunities and facilities Foster Library, Topping Room, 651 East consistent with the Project purposes and Lake Casitas Resource Management Main Street Reclamation policies. Plan, Ventura County, CA FOR FURTHER INFORMATION CONTACT: Mr. The development of the RMP will be performed within the authorities AGENCY: Bureau of Reclamation, Dan Holsapple, Bureau of Reclamation, provided by the Congress through the Interior. 559–487–5409. SUPPLEMENTARY INFORMATION: The Reclamation Act, Federal Water Project ACTION: Notice of Intent to prepare a Casitas Project (originally called the Recreation Act, Reclamation Recreation draft environmental impact statement Ventura Project) was constructed in the Management Act, and applicable agency (EIS). early 1950’s by Reclamation on behalf of and Department of the Interior policies. Ventura County and Casitas Municipal The RMP will be developed based on SUMMARY: Pursuant to section 102(2) (c) Water District (Casitas). The project a comprehensive inventory of of the National Environmental Policy includes Casitas Dam, Lake Casitas, the environmental resources and Project Act (NEPA), the Bureau of Reclamation developed Recreation Area at the north facilities. It will include an analysis of proposes to prepare a draft end of the lake, and the Open Space the natural resources of the area, the environmental impact statement (DEIS) Lands north of the lake, purchased in identification of land use suitability and for Lake Casitas Resource Management the late 1970’s. Casitas operates the dam capability, and the development of Plan (RMP), which will be issued and manages the Open Space Lands management policies, objectives, concurrent with the DEIS. Reclamation under contracts with Reclamation. responsibilities, guidelines, and plans. will be conducting two public scoping Casitas manages the Recreation Area, The overall purpose of an RMP is to meetings to elicit comments on the although a formal contract has not been foster stewardship of Reclamation lands. scope and issues to be addressed in both established with Reclamation to date. The RMP will enable managers to make the RMP and EIS. The date and time of Reclamation is preparing a RMP for land-use and resource decisions that are these meetings are listed below. government lands associated with the consistent with the overall management Reclamation is also seeking written Casitas Project, including the Recreation objectives of Reclamation land and comments, as noted below. The Draft Area. The RMP will include long-term water areas and the needs of the public. RMP and DEIS are expected to be issued management actions to protect natural The RMP will assist Reclamation in in late 2004. resources while maintaining and minimizing conflicts among the DATES: Submit written comments on or enhancing recreational opportunities. competing interests and types of use at before September 23, 2003. The RMP will be used to guide the Lake Casitas.

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The plan will be developed with Dated: July 3, 2003. dispersions from India. Accordingly, input from various agencies and parties, Robert Eckart, effective June 5, 2003, the Commission including (but not limited to) U.S. Fish Chief, Environmental Compliance Branch, instituted countervailing duty and Wildlife Service and National Mid-Pacific Region. investigation No. 701–TA–436 Marine Fisheries Service, Ventura [FR Doc. 03–18952 Filed 7–24–03; 8:45 am] (Preliminary) and antidumping duty County (various departments), Casitas, BILLING CODE 4310–MN–P investigation No. 731–TA–1042 City of Ojai, environmental and (Preliminary). community groups, and the public. The Notice of the institution of the plan will be used to guide future INTERNATIONAL TRADE Commission’s investigation and of a recreational uses and administrative COMMISSION public conference to be held in arrangements to be considered by connection therewith was given by [Investigation Nos. 701–TA–436 posting copies of the notice in the Office Reclamation in the establishment of a (Preliminary) and 731–TA–1042 of the Secretary, U.S. International recreation contract with Casitas. (Preliminary)] Trade Commission, Washington, DC, The primary emphasis of the RMP Certain Colored Synthetic Organic and by publishing the notice in the will be protecting Project water supply, Oleoresinous Pigment Dispersions Federal Register of June 11, 2003 (68 FR water quality, and natural resources, From India 35003). The conference was held in while enhancing recreational uses at Washington, DC on June 27, 2003, and and surrounding the lake. Specific issue Determination all persons who requested the areas to be addressed include (among On the basis of the record 1 developed opportunity were permitted to appear in others): management of the Casitas in the subject investigations, the United person or by counsel. Open Space lands north of Highway 150 States International Trade Commission The Commission transmitted its to protect water quality; improvements (Commission) determines, pursuant to determination in this investigation to and expansion of recreational facilities sections 703(a) and 733(a) of the Tariff the Secretary of Commerce on July 21, in the Recreation Area; potential new Act of 1930 (19 U.S.C. 1671b(a) and 19 2003. The views of the Commission are trails surrounding the lake; expanded U.S.C. 1673b(a)) (the Act), that there is contained in USITC Publication 3615 areas for boat fishing; protection of no reasonable indication that an (July 2003), entitled Certain Colored sensitive natural and cultural resources; industry in the United States is Synthetic Organic Oleoresinous Pigment coordination with adjacent activities on materially injured or threatened with Dispersions from India: Investigation material injury, or that the the National Forest; and fire Nos. 701–TA–436 (Preliminary) and establishment of an industry in the management practices. 731–TA–1042 (Preliminary). United States is materially retarded, by By order of the Commission. The environmental impacts of the reason of imports from India of certain Issued: July 21, 2003. RMP and associated alternatives will be colored synthetic organic oleoresinous assessed in an EIS that will be prepared pigment dispersions 2 that are alleged to Marilyn R. Abbott, concurrent with the RMP. The be subsidized by the Government of Secretary to the Commission. environmental review will focus on the India and alleged to be sold in the [FR Doc. 03–18926 Filed 7–24–03; 8:45 am] potential for management actions to United States at less than fair value BILLING CODE 7020–02–P cause adverse environmental impacts to (LTFV). natural and cultural resources such as Background water quality, endangered species, DEPARTMENT OF LABOR On June 5, 2003, a petition was filed public safety, and historic resources. It with the Commission and Commerce by Office of the Secretary will include an analysis of alternative Apollo Colors, Inc., Rockdale, IL; land, recreation, and natural resource General Press Colors, Ltd., Addison, IL; Submission for OMB Review; management approaches. Magruder Color Company, Inc., Comment Request Reclamation practice is to make Elizabeth, NJ; and Sun Chemical July 15, 2003. comments, including names and home Corporation, Fort Lee, NJ, alleging that addresses of respondents, available for an industry in the United States is The Department of Labor (DOL) has submitted the following public public review. Individual respondents materially injured or threatened with information collection request (ICR) to may request that we withhold their material injury by reason of subsidized the Office of Management and Budget home address from public disclosure, and LTFV imports of certain colored synthetic organic oleoresinous pigment (OMB) for review and approval in which we will honor to the extent accordance with the Paperwork allowable by law. There also may be 1 Reduction Act of 1995 (Pub. L. 104–13, circumstances in which we would The record is defined in sec. 207.2(f) of the Commission’s Rules of Practice and Procedure (19 44 U.S.C. Chapter 35). A copy of this withhold a respondent’s identity from CFR 207.2(f)). ICR, with applicable supporting public disclosure, as allowable by law. 2 Certain colored synthetic organic pigment documentation, may be obtained by If you wish us to withhold your name dispersions subject to these investigations are classifiable under statistical reporting numbers calling the Department of Labor. To and/or address, you must state this 3204.17.6020 (Pigment Blue 15:4) and 3204.17.6085 obtain documentation, contact Darrin prominently at the beginning of your (Pigments Red 48:1, Red 48:2, Red 48:3, and Yellow King on (202) 693–4129 (this is not a comment. We will make all submissions 174), 3204.17.9005 (Pigment Blue 15:3), toll-free number) or E-Mail: from organizations or businesses, and 3204.17.9010 (Pigment Green 7), 3204.17.9015 (Pigment Green 36), 3204.17.9020 (Pigment Red [email protected]. from individuals identifying themselves 57:1), 3204.17.9045 (Pigment Yellow 12), Comments should be sent to Office of as representatives or officials of 3204.17.9050 (Pigment Yellow 13), 3204.17.9055 Information and Regulatory Affairs, organizations or businesses, available (Pigment Yellow 74), and 3204.17.9086, which Attn: OMB Desk Officer for the Mine prior to July 2002 was 3204.17.9085 (Pigments Red for public disclosure in their entirety. 22, Red 48:4, Red 49:1, Red 49:2, Red 52:1, Red Safety and Health Administration 53:1, Yellow 14, and Yellow 83) of the Harmonized (MSHA), Office of Management and Tariff Schedule of the United States. Budget, Room 10235, Washington, DC

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20503 (202–395–7316/this is not a toll- proposed collection of information, e.g., permitting electronic submission of free number), within 30 days from the including the validity of the responses. date of this publication in the Federal methodology and assumptions used; Type of Review: Extension of a Register. • Enhance the quality, utility, and currently approved collection. The OMB is particularly interested in clarity of the information to be comments which: Agency: Mine Safety and Health collected; and • Evaluate whether the proposed Administration. collection of information is necessary • Minimize the burden of the Title: Fire Protection (Underground for the proper performance of the collection of information on those who Coal Mines). are to respond, including through the functions of the agency, including OMB Number: 1219–0054. whether the information will have use of appropriate automated, practical utility; electronic, mechanical, or other Affected Public: Business or other for- • Evaluate the accuracy of the technological collection techniques or profit. agency’s estimate of the burden of the other forms of information technology, Number of Respondents: 893.

Average Annual response Annual Requirement Frequency responses time burden (hours) hours

Examine chemical fire extinguishers—30 CFR 75.1100–3 ...... Semi-annually ...... 36,840 0.033 1,216 Program of instruction—30 CFR 75.1101–23(a) ...... On occasion ...... 248 0.500 124 Fire drill certifications—30 CFR 75.1101–23(c) ...... Quarterly ...... 10,716 0.500 5,358 Inspect automatic fire sensors and warning devices—30 CFR 75.1103–8 Weekly examinations ...... Weekly ...... 123,760 0.250 30,940 Weekly certification ...... Weekly ...... 123,760 0.170 21,039 Annual function test ...... Annually ...... 2,380 0.250 595 Test fire hydrant—30 CFR 75.1103–11 ...... Annually ...... 35,700 0.500 17,850

Total ...... 333,404 ...... 77,122

Total Annualized Capital/Startup drills were conducted in accordance King on (202) 693–4129 (this is not a Costs: $0. with the approved program. Under toll-free number) or E-Mail: Total Annual Costs (operating/ section 75.1103–8, a qualified person [email protected]. maintaining systems or purchasing must examine the automatic fire sensor Comments should be sent to Office of services): $1,240. and warning device systems on a Information and Regulatory Affairs, Description: Section 311(a) of the weekly basis, and must conduct a Attn: OMB Desk Officer for the Mine Safety and Health Act of 1977 functional test of the complete system at Employment Training Administration (Pub. L. 91–173) states that each coal least once a year. Under section (ETA), Office of Management and mine shall be provided with suitable 75.1103–11, each fire hydrant and hose Budget, Room 10235, Washington, DC firefighting equipment adapted for the must be tested at least once a year, and 20503 (202–395–7316/this is not a toll- size and conditions of the mine. Under the records of those tests shall be kept free number), within 30 days from the 30 CFR 75.1100–3, chemical fire in an appropriate location. date of this publication in the Federal Register. extinguishers must be examined every 6 Ira L. Mills, The OMB is particularly interested in months and the date of the examination Departmental Clearance Officer. recorded on a permanent tag attached to comments which: [FR Doc. 03–18964 Filed 7–24–03; 8:45 am] the extinguisher. Under section • Evaluate whether the proposed 75.1101–23(a), operators of BILLING CODE 4510–30–P collection of information is necessary underground coal mines are required to for the proper performance of the functions of the agency, including establish a program for the instruction DEPARTMENT OF LABOR of all miners in the proper fire fighting whether the information will have and evacuation procedures to be Office of the Secretary practical utility; followed in event of an emergency. The • Evaluate the accuracy of the program includes a specific fire fighting Submission for OMB Review; agency’s estimate of the burden of the and evacuation plan designed to Comment Request proposed collection of information, acquaint miners on all shifts with including the validity of the procedures for: (i) Evacuation of all July 21, 2003. methodology and assumptions used; miners not required for fire fighting The Department of Labor (DOL) has • Enhance the quality, utility, and activities; (ii) rapid assembly and submitted the following public clarity of the information to be transportation of necessary people, fire information collection request (ICR) to collected; and suppression equipment, and rescue the Office of Management and Budget • Minimize the burden of the apparatus to the scene of the fire; and (OMB) for review and approval in collection of information on those who (iii) operation of the fire suppression accordance with the Paperwork are to respond, including through the equipment available in the mine. Under Reduction Act of 1995 (Pub. L. 104–13, use of appropriate automated, section 75–1101–23(c), an underground 44 U.S.C. Chapter 35). A copy of this electronic, mechanical, or other coal mine operator is required to ICR, with applicable supporting technological collection techniques or conduct fire drills at intervals of not documentation, may be obtained by other forms of information technology, more than 90 days. The operator is to calling the Department of Labor. To e.g., permitting electronic submission of certify by signature and date that fire obtain documentation contact Darrin responses.

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Agency: Employment and Training Title: Reporting and Performance OMB Number: 1205–0429. Administration. Standards System for Migrant and Affected Public: Not-for-profit Type of Review: Extension of a Seasonal Farmworker Youth Programs institutions. currently approved collection. Under Title I–D, section 167 of the Type of Response: Recordkeeping and Workforce Investment Act (WIA). Reporting.

Average Number of Annual response Annual Information collection requirement Responses Frequency responses time burden (hours) hours

Plan Narrative ...... 12 Annually ..... 12 5 60 Data Record ...... 12 On occasion 5,000 3 15,000 Report from Data Record ...... 12 Annually ..... 12 2 24 Budget Information Summary (ETA–9096) ...... 12 Annually ..... 12 15 180 Program Planning Summary (ETA–9097) ...... 12 Annually ..... 12 15 180 Program Status Summary (ETA–9098) ...... 12 Quarterly .... 48 7 336

Totals ...... 5,096 ...... 15,780

Total Annualized Capital/Startup DEPARTMENT OF LABOR for the proper performance of the Costs: $0. functions of the agency, including Total Annual Costs (operating/ Office of the Secretary whether the information will have maintaining systems or purchasing practical utility; services): $0. Submission for OMB review; Comment • Request Evaluate the accuracy of the Description: Section 185 of the agency’s estimate of the burden of the Workforce Investment Act (WIA). (Pub. July 21, 2003. proposed collection of information, L. 105–220) requires funds recipients to The Department of Labor (DOL) has including the validity of the keep records and submit such reports as submitted the following public methodology and assumptions used; may be required by the Secretary of information collection request (ICR) to • Enhance the quality, utility, and Labor ‘‘to permit the tracing of funds to the Office of Management and Budget clarity of the information to be a level of expenditure adequate to (OMB) for review and approval in collected; and ensure that the funds have not been accordance with the Paperwork • Minimize the burden of the spent unlawfully.’’ The WIA Final Rules Reduction Act of 1994 (Pub. L. 104–13, collection of information on whose who at 20 CFR 667.300 require annual plans 44 U.S.C. Chapter 35). A copy of this are to respond, including through the and quarterly performance reports from ICR, with applicable supporting use of appropriate automated, all ‘‘direct grant recipients’’. documentation, may be obtained by electronic, mechanical, or other The primary uses of the data under calling the Department of Labor. To technological collection techniques or WIA 167 Migrant and Seasonal obtain documentation, contact Vanessa other forms of information technology, Farmworker Youth Program are to Reeves on (202) 693–4124 (this is not a e.g., permitting electronic submission of provide material reports to the Secretary toll-free number) or E-Mail: responses. of Labor, respond to Congressional [email protected]. Agency: Employment and Training inquiries, support Congressional Comments should be sent to Office of Administration. testimony on behalf of the program and Information and Regulatory Affairs, to identify areas of technical assistance Attn: OMB Desk Officer for the Type of Review: Extension of a need and performance improvement. Employment and Training currently approved collection. Data is also used to establish Administration (ETA), Office of Title: Weekly Claims and Extended performance standards for each of the Management and Budget, Room 10235, Benefits Data and Weekly Initial and required performance measures per Washington, DC 20503 (202–395–7316 / Continued Weeks Claimed. regulations at part 669, subpart D, this is not a toll-free number), within 30 OMB Number: 1205–0028. sections 669.500 and 669.510. days from the date of this publication in Affected Public: State, Local, or Tribal the Federal Register. Government. Darrin A. King, The OMB is particularly interested in Acting Departmental Clearance Officer. comments which: Type of Response: Reporting. [FR Doc. 03–18965 Filed 7–24–03; 8:45 am] • Evaluate whether the proposed Frequency: Weekly. BILLING CODE 4510–30–P collection of information is necessary Number of Respondents: 53.

Average re- Information collection requirement Annual sponse time Annual burden responses (hours) hours

ETA 538 ...... 2,756 .50 1,378 ETA 539 ...... 2,756 .833 2,297

Total ...... 5,512 ...... 3,675

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Total Annualized Capital/Startup DEPARTMENT OF LABOR • Evaluate whether the proposed Costs: $0. collection of information is necessary Office of the Secretary Total Annual Costs (operating/ for the proper performance of the functions of the agency, including maintaining systems or purchasing Submission for OMB Review; services): $0. whether the information will have Comment Request practical utility; Description: The ETA 538 and ETA July 16, 2003. • Evaluate the accuracy of the 539 reports are weekly reports which The Department of Labor (DOL) has agency’s estimate of the burden of the contain information on initial claims submitted the following public proposed collection of information, and continued weeks claimed. These information collection request (ICR) to including the validity of the figures are important economic the Office of Management and Budget methodology and assumptions used; indicators. The ETA 538 provides (OMB) for review and approval in • Enhance the quality, utility, and information that allows national accordance with the Paperwork clarity of the information to be unemployment claims information to be Reduction Act of 1995 (Pub. L. 104–13, collected; and minimize the burden of released to the public five days after the 44 U.S.C. Chapter 35). A copy of this the collection of information on those close of the reference period. The ETA ICR, with applicable supporting who are to respond, including through 539 contains more refined weekly documentation, may be obtained by the use of appropriate automated, claims detail and the state’s 13-week calling the Department of Labor. To electronic, mechanical, or other insured unemployment rate, which is obtain documentation, contact Vanessa technological collection techniques or used to determine eligibility for the Reeves on 202–693–4124 (this is not a other forms of information technology, Extended Benefits program. toll-free number) or E-Mail: e.g., permitting electronic submission of reeves,[email protected]. responses. Darrin A. King, Comments should be sent to Office of Agency: Mine Safety and Health Acting Departmental Clearance Officer. Information and Regulatory Affairs, Administration. [FR Doc. 03–18966 Filed 7–24–03; 8:45 am] Attn: OMB Desk Officer for the Mine Type of Review: Extension of Safety and Health Administration BILLING CODE 4510–30–M currently approved collection. (MSHA), Office of Management and Title: Ground Control Plan. Budget, Room 10235, Washington, DC 20503 (202–395–7316/this is not a toll- OMB Number: 1219–0026. free number), within 30 days from the Affected Public: Business or other for- date of this publication in the Federal profit. Register. Frequency: On occasion. The OMB is particularly interested in Type of Response: Reporting. comments which: Number of Respondents: 1,401.

Average re- Information collection requirements Annual sponse time Annual burden responses (hours) hours

New Ground Control Plans ...... 168 9.00 1,512 Revised Ground Control Plans ...... 34 6.00 204

Total ...... 202 ...... 1,716

Total Annualized capital/startup DEPARTMENT OF LABOR The determinations in these decisions costs: $0. of prevailing rates and fringe benefits Total annual costs (operating/ Employment Standards have been made in accordance with 29 maintaining system or purchasing Administration; Wage and Hour CFR part 1, by authority of the Secretary Division services): $267. of Labor pursuant to the provisions of the Davis-Bacon Act of March 3, 1931, Description: 30 CFR 77.1000 and Minimum Wages for Federal and as amended (46 Stat. 1494, as amended, 77.1000–1 require that Ground Control Federally Assisted Construction; 40 U.S.C. 276a) and of other Federal Plans that are reviewed by MSHA to General Wage Determination Decisions statutes referred to in 29 CFR part 1, ensure that surface coal mine operators’ Appendix, as well as such additional methods of controlling highwalls and General wage determination decisions statutes as may from time to time be spoil banks are consistent with prudent of the Secretary of Labor are issued in enacted containing provisions for the engineering design and will ensure safe accordance with applicable law and are payment of wages determined to be working conditions for miners. based on the information obtained by the Department of Labor from its study prevailing by the Secretary of Labor in Ira L. Mills, of local wage conditions and data made accordance with the Davis-Bacon Act. Departmental Clearance Officer. available from other sources. They The prevailing rates and fringe benefits [FR Doc. 03–18967 Filed 7–24–03; 8:45 am] specify the basic hourly wage rates and determined in these decisions shall, in accordance with the provisions of the BILLING CODE 4510–43–M fringe benefits which are determined to be prevailing for the described classes of foregoing statutes, constitute the laborers and mechanics employed on minimum wages payable on Federal and construction projects of a similar federally assisted construction projects character and in the localities specified to laborers and mechanics of the therein. specified classes engaged on contract

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work of the character and in the Volume I Dated: Signed at Washington, DC, this 17th localities described therein. None day of July 2003. Carl Poleskey, Good cause is hereby found for not Volume II utilizing notice and public comment Chief, Branch of Construction Wage None procedure thereon prior to the issuance Determinations. of these determinations as prescribed in Volume III [FR Doc. 03–18711 Filed 7–24–03; 8:45 am] 5 U.S.C. 553 and not providing for delay None BILLING CODE 4510–27–M in the effective date as prescribed in that Volume IV section, because the necessity to issue current construction industry wage None DEPARTMENT OF LABOR determinations frequently and in large Volume V Occupational Safety and Health volume causes procedures to be None Administration impractical and contrary to the public interest. Volume VI [Docket No. GE2003–2] None General wage determination Draft Ergonomics for the Prevention of decisions, and modifications and Volume VII Musculoskeletal Disorders: Guidelines supersedes decisions thereto, contain no None for Poultry Processing expiration dates and are effective from their date of notice in the Federal General Wage Determination AGENCY: Occupational Safety and Health Register, or on the date written notice Publication Administration (OSHA); Department of is received by the agency, whichever is General wage determinations issued Labor. earlier. These decisions are to be used under the Davis-Bacon and related Acts, ACTION: Extension of comment period, in accordance with the provisions of 29 including those noted above, may be announcement of public meeting. CFR parts 1 and 5. Accordingly, the found in the Government Printing Office SUMMARY: The Occupational Safety and applicable decision, together with any (GPO) document entitled ‘‘General Wage Health Administration (OSHA) is modifications issued, must be made a Determinations Issued Under the Davis- extending the comment period for its part of every contract for performance of Bacon and Related Acts’’. This draft Ergonomics for the Prevention of the described work within the publication is available at each of the 50 Musculoskeletal Disorders: Guidelines geographic area indicated as required by Regional Government Depository for Poultry Processing (draft guidelines) an applicable Federal prevailing wage Libraries and many of the 1,400 an additional forty-five (45) days, until law and 29 CFR part 5. The wage rates Government Depository Libraries across September 18, 2003, OSHA is also and fringe benefits, notice of which is the country. announcing that a public stakeholder published herein, and which are General wage determinations issued contained in the Government Printing meeting will be held on October 2, 2003, under the Davis-Bacon and related Acts in Washington, DC. Office (GPO) document entitled are available electronically at no cost on DATES: Written Comments: Comments ‘‘General Wage Determinations Issued the Government Printing Office site at must be submitted by the following Under the Davis-Bacon and Related http://www.access.gpo.gov/davisbacon. dates: Acts,’’ shall be the minimum paid by They are also available electronically by Hard Copy: You must submit your contractors and subcontractors to subscription to the Davis-Bacon Online comments (postmarked or sent) by laborers and mechanics. Service (http:// Any person, organization, or September 18, 2003. davisbacon.fedworld.gov) of the Facsimile and electronic governmental agency having an interest National Technical Information Service transmission: You must submit your in the rates determined as prevailing is (NTIS) of the U.S. Department of comments by September 18, 2003. encouraged to submit wage rate and Commerce at 1–800–363–2068. This (Please see the SUPPLEMENTARY fringe benefit information for subscription offers value-added features INFORMATION below for additional consideration by the Department. such as electronic delivery of modified information on submitting comments.) Further information and self- wage decisions directly to the user’s Stakeholder meeting: OSHA will hold explanatory forms for the purpose of desktop, the ability to access prior wage a half-day stakeholder meeting to submitting this data may be obtained by decisions issued during the year, discuss the draft guidelines. The writing to the U.S. Department of Labor, extensive Help desk Support, etc. meeting will be held on Thursday, Employment Standards Administration, Hard-copy subscriptions may be October 2, 2003, from 8:30 a.m. to 12:30 Wage and Hour Division, Division of purchased from: Superintendent of p.m. in Washington, DC. Interested Wage Determinations, 2090 Constitution Documents, U.S. Government Printing persons must submit their intention to Avenue, NW., Room S–3014, Office, Washington, DC 20402, (202) participate in the stakeholder meeting Washington, DC 20210. 512–1800. through express delivery, hand delivery, Modification to General Wage When ordering hard-copy messenger service, fax, or electronic Determination Decisions subscription(s), be sure to specify the means by September 18, 2003. State(s) of interest, since subscriptions ADDRESSES: The number of the decisions listed to may be ordered for any or all of the six the Government Printing Office separate Volumes, arranged by State. I. Submission of Comments and document entitled ‘‘General Wage Subscriptions include an annual edition Intention To Participate in Stakeholder Determinations Issued Under the Davis- (issued in January or February) which Meeting Bacon and Related Acts’’ being modified includes all current general wage Regular mail, express delivery, hand- are listed by Volume and State. Dates of determinations for the States covered by delivery, and messenger service: You publication in the Federal Register are each volume. Throughout the remainder must submit three copies of your in parentheses following the decisions of the year, regular weekly updates will comments and attachments to the OSHA being modified. be distributed to subscribers. Docket Office, Docket No. GE2003–2,

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Room N–2625, U.S. Department of guidelines. In light of the interest 8 of the Occupational Safety and Health Labor, 200 Constitution Avenue, NW., expressed by the public, and to provide Act of 1970 (29 U.S.C. 653, 657). Washington, DC 20210; telephone (202) a similar extension to that previously Issued at Washington, DC, this 18 day of 693–2350 (OSHA’s TTY number is (877) provided on OSHA’s draft ergonomics July, 2003 889–5627). The OSHA Docket Office guidelines for the retail grocery John L. Henshaw, and the Department of Labor hours of industry, OSHA is providing an Assistant Secretary of Labor. operation are 8:15 a.m. to 4:45 p.m., additional forty-five (45) days for E.S.T. You need only submit one copy comment. Accordingly, written [FR Doc. 03–18959 Filed 7–24–03; 8:45 am] of your intention to participate in the comments must now be submitted by BILLING CODE 4510–26–M stakeholder meeting by express September 18, 2003. delivery, hand delivery, or messenger II. Submission of Comments and service to the above address. NATIONAL COUNCIL ON DISABILITY Facsimile: If your comments, Internet Access to Comments including any attachments, are 10 pages You may submit comments in Youth Advisory Committee Meeting or fewer, you may fax them to the OSHA response to this document by (1) hard AGENCY: National Council on Disability Docket Office at (202) 693–1648. You copy, (2) fax transmission (facsimile), or (NCD). (3) electronically through the OSHA must include the docket number of this AGENDA: Roll call, announcements, Web page. You may supplement document, Docket No. GE2003–2, in reports, new business, adjournment. electronic submissions by uploading your comments. You may also fax your Time and Date: 1 p.m.–2:30 p.m., document files electronically. If you intention to participate in the August 20, 2003. stakeholder meeting. wish to mail additional materials in Place: Intercontinental Houston Hotel, Electronic: You may submit reference to an electronic submission, 2222 West Loop South, Houston, Texas. comments and your intention to you must submit three copies of them to Status: All parts of this meeting will participate in the stakeholder meeting the OSHA Docket Office at the address be open to the public. Those interested through the Internet at http:// above. The additional materials must in participating in this meeting should ecomments.osha.gov/. (Please see the clearly identify your electronic contact the appropriate staff member SUPPLEMENTARY INFORMATION below for comments by name, date, subject and listed below. additional information on submitting docket number so we can attach them to FOR FURTHER INFORMATION CONTACT: comments.) your comments. Because of security- related procedures the use of regular Geraldine Drake Hawkins, PhD., II. Obtaining Copies of the Draft mail may cause a significant delay in Program Specialist, National Council on Guidelines the receipt of comments. Please contact Disability, 1331 F Street NW., Suite 850, You can download the draft the OSHA Docket Office at (202) 693– Washington, DC 20004; 202–272–2004 guidelines from OSHA’s Web page at 2350 (TTY (877) 889–5627) for (voice), 202–272–2074 (TTY), 202–272– http://www.osha.gov. A printed copy of information about security procedures 2022 (fax), [email protected] (e-mail). Youth Advisory Committee Mission: the draft guidelines is available from the concerning the delivery of materials by The purpose of NCD’s Youth Advisory OSHA Office of Publications, Room N– express delivery, hand delivery and Committee is to provide input into NCD 3101, U.S., Department of Labor, 200 messenger service. Constitution Avenue, NW., Washington, All comments and submissions will activities consistent with the values and DC 20210; or by telephone at (800) 321– be available for inspection and copying goals of the Americans with Disabilities OSHA (6742). You may fax your request at the OSHA Docket Office at the above Act. for a copy of the draft guidelines to address. Comments and submissions Dated: July 22, 2003. (202) 693–2498. will be posted on OSHA’s Web page at Ethel D. Briggs, III. Stakeholder Meeting www.osha.gov. OSHA cautions you Executive Director. about submitting personal information [FR Doc. 03–19019 Filed 7–24–03; 8:45 am] The stakeholder meeting will be held such as social security numbers, date of BILLING CODE 6820–MA–P at the Washington Court Hotel, 525 New birth, etc. Contact the OSHA Docket Jersey Avenue, NW., Washington, DC Office at (202) 693–2350 (TTY (877) 20001; telephone (202) 628–2100. 889–5627) for information about NATIONAL FOUNDATION ON THE FOR FURTHER INFORMATION CONTACT: materials not available through the ARTS AND THE HUMANITIES Steven F. Witt, OSHA Directorate of OSHA Web page and for assistance in Standards and Guidance, Room N–3718, using the internet to locate docket Meetings of Humanities Panel U.S. Department of Labor, 200 submissions. Constitution Avenue, NW., Washington, AGENCY: The National Endowment for DC 20210; telephone (202) 693–1950. III. Stakeholder Meeting the Humanities, NFAH. SUPPLEMENTARY INFORMATION: Following the close of the comment ACTION: Notice of meetings. period, OSHA will hold a stakeholder I. Extension of Comment Period meeting in Washington, DC, at the SUMMARY: Pursuant to the provisions of OSHA announced publication of its Washington Court Hotel on Thursday, the Federal Advisory Committee Act draft Ergonomics for the Prevention of October 2, 2003 from 8:30 a.m. to 12:30 (Pub. L. 92–463, as amended), notice is Musculoskeletal Disorders: Guidelines p.m. Interested parties must submit hereby given that the following for Poultry Processing in the Federal their intention to participate in the meetings of the Humanities Panel will Register on June 4, 2003 (68 FR 33536). stakeholder meeting by September 18, be held at the Old Post Office, 1100 In that notice, the Agency provided the 2003 to allow the Agency to make Pennsylvania Avenue, NW., public with sixty (60) days to submit appropriate plans for the meeting. Washington, DC 20506. written comments, until August 4, 2003. This notice was prepared under the FOR FURTHER INFORMATION CONTACT: Several interested persons requested direction of John L. Henshaw, Assistant Heather Gottry, Acting Advisory that OSHA provide additional time to Secretary for Occupational Safety and Committee Management Officer, submit written comments on the draft Health. It is issued under sections 4 and National Endowment for the

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Humanities, Washington, DC 20506; 6. Date: August 7, 2003. Time: 8:30 a.m. to 5 p.m. telephone (202) 606–8322. Hearing- Time: 8:30 a.m. to 5 p.m. Room: 415. impaired individuals are advised that Room: 315. information on this matter may be Program: This meeting will review Program: This meeting will review obtained by contacting the applications for Fellowships, submitted applications for Fellowships, submitted Endowment’s TDD terminal on (202) to the Division of Research Programs at to the Division of Research Programs at 606–8282. the May 1, 2003 deadline. the May 1, 2003 deadline. SUPPLEMENTARY INFORMATION: The 7. Date: August 8, 2003. 16. Date: August 13, 2003. proposed meetings are for the purpose Time: 8:30 a.m. to 5 p.m. Time: 8:30 a.m. to 5 p.m. of panel review, discussion, evaluation Room: 315. and recommendation on applications Program: This meeting will review Room: 315. for financial assistance under the applications for Fellowships, submitted Program: This meeting will review National Foundation on the Arts and the to the Division of Research Programs at applications for Fellowships, submitted Humanities Act of 1965, as amended, the May 1, 2003 deadline. to the Division of Research Programs at including discussion of information 8. Date: August 8, 2003. the May 1, 2003 deadline. given in confidence to the agency by the Time: 8:30 a.m. to 5 p.m. grant applicants. Because the proposed Room: M–07. 17. Date: August 13, 2003. meetings will consider information that Program: This meeting will review Time: 8:30 a.m. to 5 p.m. is likely to disclose trade secrets and applications for Fellowships, submitted Room: 415. commercial or financial information to the Division of Research Programs at obtained from a person and privileged the May 1, 2003 deadline. Program: This meeting will review applications for Fellowships, submitted or confidential and/or information of a 9. Date: August 8, 2003. to the Division of Research Programs at personal nature the disclosure of which Time: 11 a.m. to 12 p.m. would constitute a clearly unwarranted Room: 318. the May 1, 2003 deadline. invasion of personal privacy, pursuant Program: This meeting will review 18. Date: August 14, 2003. to authority granted me by the applications for Faculty Research Time: 8:30 a.m. to 5 p.m. Chairman’s Delegation of Authority to Awards, submitted to the Division of Close Advisory Committee meetings, Research Programs at the May 1, 2003 Room: 315. dated July 19, 1993, I have determined deadline. Program: This meeting will review that these meetings will be closed to the 10. Date: August 8, 2003. applications for Fellowships, submitted public pursuant to subsections (c)(4), Time: 4 p.m. to 5 p.m. to the Division of Research Programs at and (6) of section 552b of Title 5, United Room: 318. the May 1, 2003 deadline. States Code. Program: This meeting will review 1. Date: August 1, 2003. applications for Faculty Research 19. Date: August 14, 2003. Time: 9:00 a.m. to 5:30 p.m. Awards, submitted to the Division of Time: 8:30 a.m. to 5 p.m. Room: 315. Research Programs at the May 1, 2003 Room: 415. Program: This meeting will review deadline. applications for Fellowships, submitted 11. Date: August 11, 2003. Program: This meeting will review to the Division of Research Programs at Time: 9 a.m. to 5 p.m. applications for Fellowships, submitted the May 1, 2003 deadline. Room: 527. to the Division of Research Programs at 2. Date: August 4, 2003. Program: This meeting will review the May 1, 2003 deadline. Time: 8:30 a.m. to 5 p.m. applications for Faculty Research 20. Date: August 15, 2003. Room: 315. Awards, submitted to the Division of Program: This meeting will review Research Programs at the May 1, 2003 Time: 8:30 a.m. to 5 p.m. applications for Fellowships, submitted deadline. Room: 315. to the Division of Research Programs at the May 1, 2003 deadline. 12. Date: August 11, 2003. Program: This meeting will review Time: 8:30 a.m. to 5 p.m. applications for Fellowships, submitted 3. Date: August 5, 2003. Room: 315. to the Division of Research Programs at Time: 8:30 a.m. to 5 p.m. Program: This meeting will review Room: 315. the May 1, 2003 deadline. applications for Fellowships, submitted Program: This meeting will review to the Division of Research Programs at 21. Date: August 19, 2003. applications for Fellowships, submitted the May 1, 2003 deadline. Time: 9 a.m. to 5:30 p.m. to the Division of Research Programs at the May 1, 2003 deadline. 13. Date: August 11, 2003. Room: 415. 4. Date: August 6, 2003. Time: 8:30 a.m. to 5 p.m. Program: This meeting will review Room: 415. Time: 9 a.m. to 5:30 p.m. applications for Fellowships, submitted Program: This meeting will review Room: M–07. to the Division of Research Programs at applications for Fellowships, submitted Program: This meeting will review the May 1, 2003 deadline. applications for Fellowships, submitted to the Division of Research Programs at to the Division of Research Programs at the May 1, 2003 deadline. Heather Gottry, the May 1, 2003 deadline. 14. Date: August 12, 2003. Acting Advisory Committee Management 5. Date: August 7, 2003. Time: 8:30 a.m. to 5 p.m. Officer. Time: 8:30 a.m. to 5 p.m. Room: 315. [FR Doc. 03–18998 Filed 7–24–03; 8:45 am] Program: This meeting will review Room: M–07. BILLING CODE 7536–01–P Program: This meeting will review applications for Fellowships, submitted applications for Fellowships, submitted to the Division of Research Programs at to the Division of Research Programs at the May 1, 2003 deadline. the May 1, 2003 deadline. 15. Date: August 12, 2003.

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NUCLEAR REGULATORY any person whose interest may be contentions which are sought to be COMMISSION affected by this proceeding and who litigated in the matter. Each contention wishes to participate as a party in the must consist of a specific statement of [Docket Nos. 50–413, 50–414, 50–369 and 50–370] proceeding must file a written request the issue of law or fact to be raised or for a hearing and a petition for leave to controverted. In addition, the petitioner Duke Energy Corporation, et al., intervene. Requests for a hearing and a shall provide a brief explanation of the Catawba Nuclear Station, Units 1 and petition for leave to intervene shall be bases of the contention and a concise 2; McGuire Nuclear Station, Units 1 filed in accordance with the statement of the alleged facts or expert and 2; Notice of Consideration of Commission’s ‘‘Rules of Practice for opinion which support the contention Issuance of Amendment to Facility Domestic Licensing Proceedings’’ in 10 and on which the petitioner intends to Operating License and Opportunity for CFR Part 2. Interested persons should rely in proving the contention at the a Hearing consult a current copy of 10 CFR 2.714, hearing. The petitioner must also which is available at the Commission’s provide references to those specific The U.S. Nuclear Regulatory Public Document Room, located at One sources and documents of which the Commission (the Commission) is White Flint North, 11555 Rockville Pike petitioner is aware and on which the considering issuance of an amendment (first floor), Rockville, Maryland, or petitioner intends to rely to establish to Facility Operating License Nos. NPF– electronically on the Internet at the NRC those facts or expert opinion. Petitioner 9 and NPF–17, issued to Duke Power Web site http://www.nrc.gov/NRC/CFR/ must provide sufficient information to Company (the licensee), for operation of index.html. If there are problems in show that a genuine dispute exists with the McGuire Nuclear Station, Unit Nos. accessing the document, contact the the applicant on a material issue of law 1 and 2 (McGuire), located in Public Document Room Reference staff or fact. Contentions shall be limited to Mecklenburg County, North Carolina at 1–800–397–4209, 301–415–4737, or matters within the scope of the and to Facility Operating License Nos. by e-mail to [email protected]. If a request for amendment under consideration. The NPF–35 and NPF–52, issued to Duke a hearing or petition for leave to contention must be one which, if Power Company, et al. (the licensee), for intervene is filed by the above date, the proven, would entitle the petitioner to operation of the Catawba Nuclear Commission or an Atomic Safety and relief. A petitioner who fails to file such Station (CNS), Units 1 and 2, located in Licensing Board, designated by the a supplement which satisfies these York County, South Carolina. Commission or by the Chairman of the requirements with respect to at least one The proposed amendments, requested Atomic Safety and Licensing Board by the licensee in a letter dated contention will not be permitted to Panel, will rule on the request and/or participate as a party. February 27, 2003, would revise the petition; and the Secretary or the Technical Specifications (TSs) to allow Those permitted to intervene become designated Atomic Safety and Licensing parties to the proceeding, subject to any the use of four mixed oxide (MOX) lead Board will issue a notice of hearing or assemblies at either the Catawba limitations in the order granting leave to an appropriate order. intervene, and have the opportunity to Nuclear Station or the McGuire Nuclear As required by 10 CFR 2.714, a participate fully in the conduct of the Station. The licensee has proposed petition for leave to intervene shall set hearing, including the opportunity to changes to two sections of the TSs that forth with particularity the interest of present evidence and cross-examine address the storage of MOX fuel the petitioner in the proceeding, and witnesses. assemblies in the spent fuel storage how that interest may be affected by the racks: Section 3.7.15, ‘‘Spent Fuel results of the proceeding. The petition A request for a hearing and petition Assembly Storage’’ and Section 4.3, should specifically explain the reasons for leave to intervene must be filed with ‘‘Fuel Storage.’’ The licensee has also why intervention should be permitted the Secretary of the Commission, U.S. proposed changes to TS Section 4.2, with particular reference to the Nuclear Regulatory Commission, ‘‘Reactor Core,’’ to reflect the use of following factors: (1) The nature of the Washington, DC 20555–0001, Attention: MOX fuel in addition to the currently petitioner’s right under the Act to be Rulemakings and Adjudications Staff, or specified slightly enriched uranium made a party to the proceeding, (2) the may be delivered to the Commission’s dioxide fuel and to reflect the use of fuel nature and extent of the petitioner’s Public Document Room, located at One rods clad with an M5TM zirconium alloy property, financial, or other interest in White Flint North, 11555 Rockville Pike that has a different material the proceeding, and (3) the possible (first floor), Rockville, Maryland, by the specification than the materials effect of any order which may be above date. A copy of the petition currently referenced in the TS. entered in the proceeding on the should also be sent to the Office of the Associated changes are proposed for TS petitioner’s interest. The petition should General Counsel, U.S. Nuclear Section 5.6.5, ‘‘Core Operating Limits also identify the specific aspect(s) of the Regulatory Commission, Washington, Report (COLR),’’ to add several more subject matter of the proceeding as to DC 20555–0001, and to Ms. Lisa F. methodologies that will be used to which petitioner wishes to intervene. Vaughn, Legal Department (ECIIX), develop the limits that will be included Any person who has filed a petition for Duke Energy Corporation, 422 South in the COLR. Associated changes have leave to intervene or who has been Church Street, Charlotte, North Carolina also been proposed for the TS Bases admitted as a party may amend the 28201–1006, attorney for the licensee. section. petition without requesting leave of the Nontimely filings of petitions for Before issuance of the proposed Board up to 15 days prior to the first leave to intervene, amended petitions, license amendments, the Commission prehearing conference scheduled in the supplemental petitions and/or requests will have made findings required by the proceeding, but such an amended for hearing will not be entertained Atomic Energy Act of 1954, as amended petition must satisfy the specificity absent a determination by the (the Act) and the Commission’s requirements described above. Commission, the presiding officer or the regulations. Not later than 15 days prior to the first presiding Atomic Safety and Licensing By August 25, 2003, the licensee may prehearing conference scheduled in the Board that the petition and/or request file a request for a hearing with respect proceeding, a petitioner shall file a should be granted based upon a to issuance of the amendment to the supplement to the petition to intervene balancing of the factors specified in 10 subject facility operating license and which must include a list of the CFR 2.714(a)(1)(l)–(v) and 2.714(d).

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If a request for a hearing is received, Charleston, West Virginia. The 15473–01 to release one of the licensee’s the Commission’s staff may issue the Charleston Area Medical Center was facilities located at Suite 304, 830 amendment after it completes its authorized by the NRC from August 31, Pennsylvania Avenue, in Charleston, technical review and prior to the 1995 until the present to use radioactive West Virginia, for unrestricted use. By completion of any required hearing if it materials for research and development letter dated September 3, 2002, the publishes a further notice for public purposes at the Pennsylvania Avenue Charleston Area Medical Center comment of its proposed finding of no facility. The authorization was limited provided survey results which significant hazards consideration in to the in-vitro use of small quantities of demonstrate that the Pennsylvania accordance with 10 CFR 50.91 and Hydrogen-3, Carbon-14, Phosphorous- Avenue facility in Charleston, West 50.92. For further details with respect to 32, and Iodine-125. In September 2002, Virginia is in compliance with the the proposed action, see the licensee’s the Charleston Area Medical Center radiological criteria for license application dated February 27, 2003. ceased operations with licensed termination in Subpart E of 10 CFR Part Documents may be examined, and/or materials at the Pennsylvania Street 20, ‘‘Radiological Criteria for License copied for a fee, at the NRC’s Public location and requested that it be Termination.’’ No further actions or Document room, located at One White removed from their materials license as activities are required on the part of the Flint North, 11555 Rockville Pike (first a place of use. The Charleston Area licensee to remediate the facility. floor), Rockville, Maryland. Publicly Medical Center has conducted surveys Purpose and Need for the Proposed available records will be accessible of the facility and determined that the Action electronically from the Agencywide facility meets the license termination Documents Access and Management criteria in Subpart E of 10 CFR Part 20. The purpose of the proposed action is Systems (ADAMS) Public Electronic The NRC staff has evaluated the to release the licensee’s Pennsylvania Reading Room on the Internet at the Charleston Area Medical Center’s Avenue facility for unrestricted use and NRC web site, http://www.nrc.gov. If request and the results of the surveys, to remove the location as an authorized you do not have access to ADAMS or if performed a confirmatory survey, and place of use from the materials license. there are problems in accessing the has developed an EA in accordance This will allow the licensee to make documents located in ADAMS, contact with the requirements of 10 CFR Part other use of the facility. There is no the NRC Public Document Room (PDR) 51. Based on the staff evaluation, the residual radioactivity remaining at the Reference staff at 1–800–397–4209, 301– conclusion of the EA is a Finding of No facility that is distinguishable from 415–4737 or by email to [email protected]. Significant Impact on human health and background levels. NRC is fulfilling its the environment for the proposed responsibilities under the Atomic Dated at Rockville, Maryland, this 21st day Energy Act to make a decision on a of July, 2003. licensing action. proposed license amendment for release For the Nuclear Regulatory Commission. II. Environmental Assessment of facilities for unrestricted use that Robert E. Martin, Sr., Introduction ensures protection of public health and Project Manager, Section 1, Project safety and environment. Directorate II, Division of Licensing Project The Charleston Area Medical Center Management, Office of Nuclear Reactor has requested release, for unrestricted Alternative to the Proposed Action Regulation. use, of their facility located at Suite 304, The only alternative to the proposed [FR Doc. 03–18963 Filed 7–24–03; 8:45 am] 830 Pennsylvania Avenue, in action of amending the license to release BILLING CODE 7590–01–P Charleston, West Virginia, as authorized the Pennsylvania Avenue facility for for use by NRC License No. 47–15473– unrestricted use is no action. The no- 01. This location of use was authorized action alternative is not acceptable NUCLEAR REGULATORY on August 31, 1995. NRC-licensed because it will result in violation of COMMISSION activities performed at the Pennsylvania NRC’s Timeliness Rule (10 CFR 30.36), [Docket No. 030–09164] Avenue location were limited to which requires licensees to laboratory procedures typically decommission their facilities when Environmental Assessment and performed on bench tops and in hoods. licensed activities cease. The licensee Finding of No Significant Impact No outdoor areas were affected by the does not plan to perform any activities Related to Issuance of a License use of licensed materials. Licensed with licensed materials at these Amendment of U. S. Nuclear activities ceased completely in locations. Maintaining the area under a Regulatory Commission Byproduct September 2002, and the licensee license would also reduce options for Material License No. 47–15473–01, requested release of the facility for future use of the property. Charleston Area Medical Center unrestricted use. Based on the licensee’s historical knowledge of the site and the The Affected Environment and I. Summary condition of the facility, the licensee Environmental Impacts The U.S. Nuclear Regulatory determined that only routine The licensee’s place of use within Commission (NRC) is considering decontamination activities, in Laboratory 304 is located in a four story amending Byproduct Material License accordance with licensee radiation concrete and stucco medical offices No. 47–15473–01 to authorize the safety procedures, were required. The building adjacent to the Charleston Area release of one of the licensee’s facilities licensee surveyed the facility and Medical Center’s Women and Children’s located on Pennsylvania Avenue in provided documentation that the facility Hospital. The hospital is surrounded by Charleston, West Virginia, for meets the license termination criteria similar type construction office unrestricted use and has prepared an specified in Subpart E of 10 CFR part buildings. Environmental Assessment (EA) and 20, ‘‘Radiological Criteria for License The NRC staff has reviewed the Finding of No Significant Impact Termination.’’ surveys performed by the Charleston (FONSI) in support of this action. Area Medical Center to demonstrate The NRC has reviewed the results of The Proposed Action compliance with the 10 CFR 20.1402 the final survey of Laboratory 304 The proposed action is to amend NRC license termination criteria and has located at 830 Pennsylvania Avenue in Radioactive Materials License No. 47– performed a confirmatory survey. Based

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on its review, the staff has determined 4. Federal Register notice, Volume 65, NUCLEAR REGULATORY that the affected environment and No. 114, page 37186, dated Tuesday, COMMISSION environmental impacts associated with June 13, 2000, ‘‘Use of Screening Values [Docket No. 50–443] the decommissioning of the Charleston to Demonstrate Compliance With the Area Medical Center facility are Federal Rule on Radiological Criteria for FPL Energy Seabrook, LLC, Et al.; bounded by the impacts evaluated by License Termination.’’ Seabrook Station; Environmental the ‘‘Generic Environmental Impact 5. NRC. NUREG–1757 ‘‘Consolidated Assessment and Finding of No Statement in Support of Rulemaking on Significant Impact Radiological Criteria for License NMSS Decommissioning Guidance,’’ Termination of NRC-Licensed Final Report dated September 2002. The U.S. Nuclear Regulatory Facilities’’ (NUREG–1496). The staff 6. NRC. NUREG 1496 ‘‘Generic Commission (NRC or the Commission) also finds that the proposed release for Environmental Impact Statement in is considering issuance of an exemption unrestricted use of the Charleston Area Support of Rulemaking on Radiological from Title 10 of the Code of Federal Medical Center facility is in compliance Criteria for License Termination of NRC- Regulations (10 CFR) part 50, section with 10 CFR 20.1402, ‘‘Radiological Licensed Nuclear Facilities,’’ Final 50.60, ‘‘Acceptance criteria for fracture Criteria for Unrestricted Use.’’ The NRC Report dated July 1997. prevention measures for light-water nuclear power reactors for normal has found no other activities in the area 7. U.S. Fish and Wildlife Service. that could result in cumulative impacts. operation,’’ and 10 CFR part 50, Letter from J.K. Towner to NRC dated appendix G, ‘‘Fracture Toughness Agencies and Persons Contacted and December 10, 2002 (ML023500031). Requirements,’’ for Facility Operating Sources Used 8. West Virginia Department of License No. NPF–86, issued to FPL This Environmental Assessment was Culture and History. Letter from S.M. Energy Seabrook, LLC, et al. (the prepared entirely by the NRC staff. The Pierce to NRC dated November 15, 2002. licensee), for operation of the Seabrook U.S. Fish and Wildlife Service was Power Station, located in Seabrook, III. Finding of No Significant Impact contacted for comment and responded New Hampshire. Therefore, as required by letter dated December 10, 2002, with Based upon the environmental by 10 CFR 51.21, the NRC is issuing this no opposition to the action. The West assessment, the staff concludes that the environmental assessment and finding Virginia Division of Culture and History proposed action will not have a of no significant impact. was also contacted and responded by significant effect of the quality of the Environmental Assessment letter dated November 15, 2002, with no human environment. Accordingly, the Identification of the Proposed Action opposition. staff has determined that preparation of Conclusion an environmental impact statement is The proposed action would exempt not warranted. the licensee from the requirements of 10 Based on its review, the NRC staff has CFR part 50, section 50.60(a) and concluded that the proposed action IV. Further Information Appendix G, and allow the use of complies with 10 CFR Part 20. NRC has American Society of Mechanical The references listed above are prepared this EA in support of the Engineers Boiler and Pressure Vessel proposed license termination to release available for public inspection and may Code (ASME Code) Code Case N–641 in the Charleston Area Medical Center also be copied for a fee at the NRC’s the development of the Seabrook facility located at Suite 304, 830 Public Document Room, located at One Reactor Pressure Vessel (RPV) Pressure Pennsylvania Avenue, in Charleston, White Flint North, 11555 Rockville and Temperature (P–T) limits. These West Virginia, for unrestricted use. On Pike, Rockville, MD 20852. These limits would be used through 20 the basis of the EA, NRC has concluded documents are also available for public effective full-power years of operation. that the environmental impacts from the review through ADAMS, the NRC’s 10 CFR 50.60(a) requires, in part, that proposed action are not expected to be electronic reading room, at: http:// except where an exemption is granted significant and has determined that www.nrc.gov/reading-rm/adams.htlm. by the Commission, all light-water preparation of an environmental impact Any questions with respect to this nuclear power reactors must meet the statement for the proposed action is not action should be referred to Orysia fracture toughness requirements for the required. Masnyk Bailey, Materials Licensing/ reactor coolant pressure boundary set List of Preparers Inspection Branch 1, Division of forth in appendices G and H to 10 CFR Nuclear Materials Safety, U.S. Nuclear part 50. Appendix G to 10 CFR part 50 Orysia Masnyk Bailey, Health Regulatory Commission, Region II, Suite requires that P–T limits be established Physicist, Materials Licensing/ 23T85, 61 Forsyth Street, SW., Atlanta, for RPVs during normal operating and Inspection Branch 1, Division of Georgia, 30303. Telephone 404–562– hydrostatic or leak-rate testing Nuclear Materials Safety, Region II. 4739. conditions. Specifically, 10 CFR part 50, List of References Appendix G states, ‘‘The appropriate Dated at Atlanta, Georgia the 11th day of requirements on both the pressure- 1. NRC License No. 47–15473–01 July, 2003. temperature limits and the minimum inspection and licensing records. For the Nuclear Regulatory Commission. permissible temperature must be met for 2. Charleston Area Medical Center. Douglas M. Collins, all conditions.’’ Additionally, the (License amendment request and Division of Nuclear Materials Safety, Region appendix specifies that the supporting documentation) Letter from II. requirements for these limits are given S. Danak to NRC dated September 3, [FR Doc. 03–18960 Filed 7–24–03; 8:45 am] in the ASME Code, section XI, appendix 2002. (ML022470219) G limits. BILLING CODE 7590–01–P 3. Title 10 Code of Federal ASME Code Case N–641 permits the Regulations Part 20, Subpart E, use of alternate reference fracture ‘‘Radiological Criteria for License toughness curves (i.e., use of the ‘‘KIC Termination.’’ fracture toughness curve’’ instead of the

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‘‘KIA fracture toughness curve,’’ as alternative). Denial of the application NUCLEAR REGULATORY defined in ASME Code, section XI, would result in no change in current COMMISSION appendices A and G, respectively) for environmental impacts. The [Docket No. 50–285] reactor vessel materials in determining environmental impacts of the proposed the P–T limits for heatup, cooldown, action and the alternative action are Omaha Public Power District; Fort and inservice testing. similar. Calhoun Station, Unit 1; Environmental The proposed action is in accordance Alternative Use of Resources Assessment and Finding of No with the licensee’s application dated Significant Impact October 11, 2002. The action does not involve the use of The U.S. Nuclear Regulatory The Need for the Proposed Action any different resources than those previously considered in the Final Commission (NRC) is considering The provisions of ASME Code Case Environmental Statement for the issuance of an exemption from Title 10 N–641 were incorporated in appendix G Seabrook Station, Unit No. 1, dated of the Code of Federal Regulations (10 of section XI of the ASME Code in the December 1982. CFR) Part 50, Appendix G for Facility 1998 though the 2000 Addenda, which Operating License No. DPR–40, issued is the edition and addenda of record in Agencies and Persons Consulted to Omaha Public Power District (the the 2003 Edition of 10 CFR part 50. licensee), for operation of the Fort However, the proposed action is needed On June 4, 2003, the staff consulted Calhoun Station, Unit No. 1 (FCS), to apply Code Case N–641, because the with the New Hampshire State Official, located in Washington County, Seabrook licensing basis has only been Mike Nawoj of the New Hampshire Nebraska. Therefore, as required by 10 updated to include the 1995 Edition Office of Emergency Management, and CFR 51.21, the NRC is issuing this through the 1996 Addenda of the ASME with the Massachusetts State Official, environmental assessment and finding Code. Diane Brown-Couture, of the of no significant impact. Massachusetts Emergency Management Environmental Impacts of the Proposed Agency, regarding the environmental Environmental Assessment Action impact of the proposed action. The State Identification of the Proposed Action The NRC has completed its evaluation Officials had no comments. of the proposed action and concludes The proposed action would exempt that, as set forth below, there are no Finding of No Significant Impact the licensee from certain requirements significant environmental impacts of Appendix G to 10 CFR Part 50 to On the basis of the Environmental allow the application of the associated with the use of ASME Code Assessment, the NRC concludes that the Case N–641 in developing RPV P–T methodology in Combustion proposed action will not have a Engineering (CE) Topical Report NPSD– limits for heatup, cooldown, and significant effect on the quality of the inservice testing. The proposed action 683–A, Revision 6, ‘‘Development of a human environment. Accordingly, the RCS Pressure and Temperature Limits does not adversely affect the integrity of NRC has determined not to prepare an the reactor vessel or the function of the Report for the Removal of P–T Limits environmental impact statement for the and LTOP Requirements from the reactor vessel to act as a radiological proposed action. barrier during an accident. Technical Specifications,’’ for the The proposed action will not For further details with respect to the calculation of flaw stress intensity significantly increase the probability or proposed action, see the licensee’s letter factors due to thermal stress loadings consequences of accidents, no changes dated October 11, 2002. Documents may (Klt). are being made in the types of effluents be examined, and/or copied for a fee, at The proposed action is in accordance that may be released offsite, and there the NRC’s Public Document Room with the licensee’s application dated is no significant increase in (PDR), located at One White Flint North, October 8, 2002. 11555 Rockville Pike (first floor), occupational or public radiation The Need for the Proposed Action exposure. Therefore, there are no Rockville, Maryland. Publicly available significant radiological environmental records will be accessible electronically In the associated exemption, the staff impacts associated with the proposed from the Agencywide Documents has determined that, pursuant to 10 CFR action. Access and Management System 50.12(a)(2)(ii), the underlying purpose With regard to potential non- (ADAMS) Public Electronic Reading of the regulation will continue to be radiological impacts, the proposed Room on the Internet at the NRC Web served by the implementation of the action does not have a potential to affect site, http://www.nrc.gov/reading-rm/ alternative methodology. The proposed any historic sites. The proposed action adams.html. Persons who do not have action would revise the currently- does not affect non-radiological plant access to ADAMS, or who encounter approved methodology for pressure effluents and has no other problems in accessing the documents temperature (P–T) limit calculations to environmental impact. Therefore, there located in ADAMS, should contact the incorporate the methodology approved are no significant non-radiological NRC PDR Reference staff by telephone for use in CE NPSD–683–A, Revision 6. environmental impacts associated with at 1–800–397–4209 or 301–415–4737, or CE NPSD–683–A, Revision 6, allows the the proposed action. by e-mail to [email protected]. use of an alternate methodology to Accordingly, the NRC concludes that Dated at Rockville, Maryland, this 21st day calculate the flaw stress intensity factors there are no significant environmental of July, 2003. due to thermal stress loadings (Klt). The exemption is needed because the impacts associated with the proposed For the Nuclear Regulatory Commission. action. methodology in CE NPSD–683–A, James W. Clifford, Revision 6, could not be shown to be Environmental Impacts of the Chief, Section 2, Project Directorate I, Division conservative with respect to the Alternatives to the Proposed Action of Licensing Project Management, Office of methodology for the determination of Klt As an alternative to the proposed Nuclear Reactor Regulation. provided in Editions and Addenda of action, the staff considered denial of the [FR Doc. 03–18962 Filed 7–24–03; 8:45 am] ASME Code, Section XI, Appendix G, proposed action (i.e., the ‘‘no-action’’ BILLING CODE 7590–01–P through the 1995 Edition and 1996

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Addenda (the latest Edition and Alternative Use of Resources SECURITIES AND EXCHANGE Addenda of the ASME Code which had COMMISSION been incorporated into 10 CFR 50.55a at The action does not involve the use of [Release No. 35–27699] the time of the staff’s review of CE any different resource than those previously considered in the Final NPSD–683–A, Revision 6). Therefore, in Filings Under the Public Utility Holding conjunction with the licensee’s October Environmental Statement for the FCS Company Act of 1935, as Amended 8, 2002, license amendment request, the dated August 1972. (‘‘Act’’) licensee also submitted an exemption Agencies and Persons Consulted request, consistent with the July 21, 2003. requirements of 10 CFR 50.60, to apply On July 18, 2003, the staff consulted Notice is hereby given that the the Klt calculational methodology of CE with the Nebraska State official, Howard following filing(s) has/have been made NPSD–683–A, Revision 6 as part of the Shuman of the Nebraska Consumer with the Commission pursuant to FCS pressure temperature limit report Health Services Agency, regarding the provisions of the Act and rules promulgated under the Act. All (PTLR) methodology. environmental impact of the proposed interested persons are referred to the action. The State official had no Environmental Impacts of the Proposed application(s) and/or declaration(s) for Action comments. complete statements of the proposed The NRC has completed its evaluation Finding of No Significant Impact transaction(s) summarized below. The of the proposed action and concludes application(s) and/or declaration(s) and On the basis of the environmental that the exemption described above any amendment(s) is/are available for would provide an adequate margin of assessment, the NRC concludes that the public inspection through the safety against brittle failure of the proposed action will not have a Commission’s Branch of Public reactor pressure vessel at FCS. The significant effect on the quality of the Reference. Interested persons wishing to details of the staff’s evaluation will be human environment. Accordingly, the comment or request a hearing on the provided in the exemption to Appendix NRC has determined not to prepare an application(s) and/or declaration(s) G, which will allow the use of the environmental impact statement for the should submit their views in writing by methodology in Topical Report NPSD– proposed action. August 15, 2003, to the Secretary, 683–A, Revision 6, to calculate the flaw For further details with respect to the Securities and Exchange Commission, stress intensity factors due to thermal proposed action, see the licensee’s letter Washington, DC 20549–0609, and serve stress loadings (Klt), that will be issued dated October 8, 2002. Documents may a copy on the relevant applicant(s) and/ in a future letter to the licensee. be examined, and/or copied for a fee, at or declarant(s) at the address(es) The proposed action will not the NRC’s Public Document Room specified below. Proof of service (by significantly increase the probability or (PDR), located at One White Flint North, affidavit or, in the case of an attorney at consequences of accidents, no changes Public File Area O1 F21, 11555 law, by certificate) should be filed with are being made in the types of effluents Rockville Pike (first floor), Rockville, the request. Any request for hearing that may be released off site, and there Maryland. Publicly available records should identify specifically the issues of is no significant increase in will be accessible electronically from facts or law that are disputed. A person occupational or public radiation the Agencywide Documents Access and who so requests will be notified of any exposure. Therefore, there are no Management System (ADAMS) Public hearing, if ordered, and will receive a significant radiological environmental Electronic Reading Room on the Internet copy of any notice or order issued in the impacts associated with the proposed at the NRC Web site, http:// matter. After August 15, 2003, the action. www.nrc.gov/reading-rm/adams.html. application(s) and/or declaration(s), as With regard to potential Persons who do not have access to filed or as amended, may be granted and/or permitted to become effective. nonradiological impacts, the proposed ADAMS or who encounter problems in action does not have a potential to affect accessing the documents located in Progress Energy, Inc. (70–10132) any historic sites. It does not affect ADAMS, should contact the NRC PDR Progress Energy, Inc. (‘‘Progress nonradiological plant effluents and has Reference staff by telephone at 1–800– Energy’’), a registered holding company, no other environmental impact. 397–4209 or 301–415–4737, or by e-mail 410 South Wilmington Street, Raleigh, Therefore, there are no significant to [email protected]. North Carolina 27602, has filed an nonradiological environmental impacts application under sections 9(a)(1), 10, associated with the proposed action. Dated at Rockville, Maryland, this 18th day of July, 2003. and 12(f) of the Act and rule 54 under Accordingly, the NRC concludes that For the Nuclear Regulatory Commission. the Act. there are no significant environmental Progress Energy directly or indirectly impacts associated with the proposed Stephen Dembek, owns all of the outstanding common action. Chief, Section 2, Project Directorate IV, stock of Carolina Power & Light Division of Licensing Project Management, Company, Florida Power Corporation, Environmental Impacts of the Office of Nuclear Reactor Regulation. Alternatives to the Proposed Action and North Carolina Natural Gas [FR Doc. 03–18961 Filed 7–24–03; 8:45 am] Corporation (collectively, the ‘‘Utility As an alternative to the proposed BILLING CODE 7590–01–P Subsidiaries’’). Together, the Utility action, the staff considered denial of the Subsidiaries provide electric service and proposed action (i.e., the ‘‘no-action’’ natural gas or gas transportation service alternative). Denial of the application to approximately 2.9 million wholesale would result in no change in current and retail customers in parts of three environmental impacts. The states. The Utility Subsidiaries and non- environmental impacts of the proposed regulated generating subsidiaries of action and the alternative action are Progress Energy own all or portions of similar. thirty-six electric generating plants in

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the United States having a combined These projects will provide multiple exceeding $20,000; and the acquisition generating capability of more than environmental benefits, including or lease of any real property and any 21,900 megawatts. Through direct and removing from the atmosphere and sale of, donation, lease or sublease indirect subsidiaries, Progress Energy is storing over 2 million tons of CO2 over affecting real property owned by the also engaged in various nonutility the projects’ 100-year lifetimes. Other company. businesses. benefits will include: restoring habitat New members would be admitted to Progress Energy requests authority to for birds and animals; reducing fertilizer PowerTree Carbon only upon the acquire, directly or indirectly through inputs to waters; and stabilizing soils. unanimous approval of the then existing one or more subsidiaries, a membership Two of the projects will involve members. Upon admission of any new interest in PowerTree Carbon Company, purchase and donation of land to the member, the percentage interests of LLC (‘‘PowerTree Carbon’’). The initial U.S. Fish & Wildlife Service, while existing members shall be reduced capital contribution of Progress Energy other projects will involve obtaining accordingly. A member may transfer all would be $100,000. Progress Energy also easements for tree planting on private or a portion of its membership interest requests authority to sell all or a portion land. The contributions of the members of its membership interest in PowerTree to PowerTree Carbon will be utilized for only upon receiving approval of two- Carbon at any time to any of its land acquisition and to pay the cost of thirds of the existing members, except associate companies. planting tree seedlings. It is estimated that, without the prior approval of the PowerTree Carbon, a Delaware that these projects will provide carbon other members, a member may transfer limited liability company, was benefits of more than 400 and 450 tons all or a part of its membership interest to an affiliate of such member or to any organized in cooperation with the U.S. of CO2 per acre by years 70 and 100, Department of Energy (‘‘DOE’’). It is respectively, at a cost of less than two other member. A two-thirds vote of the designed to facilitate investments by dollars per ton. members also would be required to elect energy companies such as Progress PowerTree Carbon was organized as a officers of PowerTree Carbon. The Energy in forestation projects in the for-profit limited liability company members have equal voting rights, Lower Mississippi River Valley and (‘‘LLC’’), to allow carbon or CO2 regardless of their percentage interests possibly other sites. reduction credits, if and when they in PowerTree Carbon. One proven means for reducing become available, to be more readily The Operating Agreement provides greenhouse gases is to use trees to transferred. The LLC structure will also that, so long as any member is a remove CO2 from the atmosphere and allow members to take advantage of tax registered holding company or store it in tree biomass and roots and benefits of land donation. Although subsidiary company thereof, any voting soil. PowerTree Carbon is part of an formed as a for-profit LLC, PowerTree rights received or otherwise obtained by industry-wide effort to voluntarily Carbon is essentially a passive medium that member equal to or exceeding ten address climate change through for making investments in projects that percent of the total outstanding voting measures designed to reduce are not expected to have any operating rights in PowerTree Carbon shall be greenhouse gas emissions in response to revenues, and will not engage in any automatically (and without any President Bush’s recent ‘‘Climate active business operations. requirement for consent on the part of VISION’’ plan, or Climate, Voluntary Under the Operating Agreement of the affected member) allocated to the PowerTree Carbon (‘‘Operating Innovative Sector Initiatives: other members in equal portions such Agreement’’), the business and affairs of Opportunities Now. Climate VISION is that no registered holding company the company shall be managed by its the first step in the President’s policy of member will hold ten percent or more encouraging industry to produce board of managers (‘‘Board’’). Each of voting rights in PowerTree Carbon. In voluntary cuts in greenhouse gas member that commits to make a capital addition, any member may elect to limit emissions. The Bush Administration has contribution of at least $100,000 is its voting rights to less than five percent also proposed, as part of its Global entitled to appoint one representative to of the total voting rights in PowerTree Climate Change program, the creation of the Board. In general, actions by the Carbon, in which case the voting rights transferable emission control credits for Board may be taken by a majority of the measures that reduce greenhouse gas managers present at a meeting. of such member or members equal to or emissions. However, certain actions of the Board or exceeding five percent of the total PowerTree Carbon has obtained of any individual manager or any officer voting rights in PowerTree Carbon commitments totaling approximately require authorization by a two-thirds would be automatically allocated in $3.5 million from approximately vote of the full board. These include, equal portions to the other members. twenty-five electric utilities, electric among other actions: the sale, exchange The Operating Agreement further utility holding companies and other or other disposition of any of the assets provides that each member (or its energy concerns that will be used to of the company greater than $20,000 in designee(s) or transferee(s)) shall be fund six forestation projects located in value; the commencement of a entitled to claim a pro rata share of all Louisiana, Mississippi and Arkansas.1 voluntary bankruptcy proceeding; the carbon that is determined to be declaration or making of any sequestered by PowerTree Carbon’s 1 Progress Energy is one of eleven registered distributions to members; the efforts to which legal rights, if any, have holding companies that have committed, either incurrence of any indebtedness by the directly or through subsidiaries, to make capital been obtained (‘‘Carbon Reductions’’) contributions to PowerTree Carbon. The others are: company; capital expenditures based on the member’s percentage Ameren Corporation; American Electric Power interest in PowerTree Carbon. A Company, Inc.; Cinergy Corp.; Dominion Resources, Oglethorpe Power Corporation; Peabody Energy member may generally utilize its share Inc.; Entergy Corporation; Exelon Corporation; Corporation; Pinnacle West Capital Corporation; FirstEnergy Corp.; Great Plains Energy Public Service Electric and Gas Company; Public of any Carbon Reductions in connection Incorporated; PEPCO Holdings, Inc.; and Xcel Service Company of New Mexico; Reliant with its participation in any greenhouse Energy, Inc. Other energy companies that have Resources, Inc.; Tennessee Valley Authority; TXU gas reporting or regulatory program or committed to make capital contributions are: Corp.; We Energies (the trade name of Wisconsin transfer or assign such Carbon CLECO Corporation; The Detroit Edison Company; Electric Power Company and Wisconsin Gas Duke Energy Corporation; Minnesota Power (a Company); and Wisconsin Public Service Reductions to one or more other division of ALLETE, Inc.); OGE Energy Corp.; Corporation. persons.

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Ameren Corporation (70–10133) transferable emission control credits for the company shall be managed by its Ameren Corporation (‘‘Ameren’’), a measures that reduce greenhouse gas board of managers (‘‘Board’’). Each registered holding company, 1901 emissions. member that commits to make a capital PowerTree Carbon has obtained Chouteau Avenue, St. Louis, Missouri contribution of at least $100,000 is commitments totaling approximately 63103, has filed an application under entitled to appoint one representative to $3.5 million from approximately sections 9(a)(1), 10, and 12(f) of the Act the Board. In general, actions by the twenty-five electric utilities, electric and rule 54 under the Act. Board may be taken by a majority of the utility holding companies and other Ameren directly or indirectly owns all managers present at a meeting. energy concerns that will be used to of the outstanding common stock of the However, certain actions of the Board or fund six forestation projects located in following public-utility companies: of any individual manager or any officer Louisiana, Mississippi and Arkansas.2 Union Electric Company; Central require authorization by a two-thirds These projects will provide multiple Illinois Public Service Company; and vote of the full board. These include, environmental benefits, including Central Illinois Light Company among other actions: The sale, exchange removing from the atmosphere and (collectively, the ‘‘Utility Subsidiaries’’). or other disposition of any of the assets storing over 2 million tons of CO over Together, the Utility Subsidiaries 2 of the company greater than $20,000 in the projects’ 100-year lifetimes. Other provide electric service to value; the commencement of a benefits will include: Restoring habitat voluntary bankruptcy proceeding; the approximately 1.7 million wholesale for birds and animals; reducing fertilizer and retail customers and approximately declaration or making of any inputs to waters; and stabilizing soils. distributions to members; the 500,000 retail natural gas customers in Two of the projects will involve parts of Missouri and Illinois. The incurrence of any indebtedness by the purchase and donation of land to the company; capital expenditures Utility Subsidiaries and non-regulated U.S. Fish & Wildlife Service, while generating subsidiaries of Ameren own exceeding $20,000; and the acquisition other projects will involve obtaining or lease of any real property and any all or portions of electric generating easements for tree planting on private plants in the United States having a sale of, donation, lease or sublease land. The contributions of the members affecting real property owned by the combined generating capability of more to PowerTree Carbon will be utilized for than 14,500 megawatts. Through direct company. land acquisition and to pay the cost of New members would be admitted to and indirect subsidiaries, Ameren is planting tree seedlings. It is estimated also engaged in various nonutility PowerTree Carbon only upon the that these projects will provide carbon unanimous approval of the then existing businesses. benefits of more than 400 and 450 tons members. Upon admission of any new Ameren requests authority to acquire, of CO per acre by years 70 and 100, 2 member, the percentage interests of directly or indirectly through one or respectively, at a cost of less than two existing members shall be reduced more subsidiaries, a membership dollars per ton. interest in PowerTree Carbon Company, PowerTree Carbon was organized as a accordingly. A member may transfer all LLC (‘‘PowerTree Carbon’’). The initial for-profit limited liability company or a portion of its membership interest only upon receiving approval of two- capital contribution of Ameren would (‘‘LLC’’), to allow carbon or CO2 be $100,000. Ameren also requests reduction credits, if and when they thirds of the existing members, except authority to sell all or a portion of its become available, to be more readily that, without the prior approval of the membership interest in PowerTree transferred. The LLC structure will also other members, a member may transfer Carbon at any time to any of its allow members to take advantage of tax all or a part of its membership interest associate companies. benefits of land donation. Although to an affiliate of such member or to any PowerTree Carbon, a Delaware formed as a for-profit LLC, PowerTree other member. A two-thirds vote of the limited liability company, was Carbon is essentially a passive medium members also would be required to elect organized in cooperation with the U.S. for making investments in projects that officers of PowerTree Carbon. The Department of Energy (‘‘DOE’’). It is are not expected to have any operating members have equal voting rights, designed to facilitate investments by revenues, and will not engage in any regardless of their percentage interests energy companies such as Ameren in active business operations. in PowerTree Carbon. forestation projects in the Lower Under the Operating Agreement of The Operating Agreement provides Mississippi River Valley and possibly PowerTree Carbon (‘‘Operating that, so long as any member is a other sites. Agreement’’), the business and affairs of registered holding company or One proven means for reducing subsidiary company thereof, any voting greenhouse gases is to use trees to 2 Ameren is one of eleven registered holding rights received or otherwise obtained by remove CO2 from the atmosphere and companies that have committed, either directly or that member equal to or exceeding ten store it in tree biomass and roots and through subsidiaries, to make capital contributions percent of the total outstanding voting to PowerTree Carbon. The others are: American soil. PowerTree Carbon is part of an Electric Power Company, Inc.; Cinergy Corp.; rights in PowerTree Carbon shall be industry-wide effort to voluntarily Dominion Resources, Inc.; Entergy Corporation; automatically (and without any address climate change through Exelon Corporation; FirstEnergy Corp.; Great Plains requirement for consent on the part of measures designed to reduce Energy Incorporated; PEPCO Holdings, Inc.; the affected member) allocated to the Progress Energy, Inc.; and Xcel Energy, Inc. Other greenhouse gas emissions in response to energy companies that have committed to make other members in equal portions such President Bush’s recent ‘‘Climate capital contributions are: CLECO Corporation; The that no registered holding company VISION’’ plan, or Climate, Voluntary Detroit Edison Company; Duke Energy Corporation; member will hold ten percent or more Innovative Sector Initiatives: Minnesota Power (a division of ALLETE, Inc.); OGE of voting rights in PowerTree Carbon. In Energy Corp.; Oglethorpe Power Corporation; Opportunities Now. Climate VISION is Peabody Energy Corporation; Pinnacle West Capital addition, any member may elect to limit the first step in the President’s policy of Corporation; Public Service Electric and Gas its voting rights to less than five percent encouraging industry to produce Company; Public Service Company of New Mexico; of the total voting rights in PowerTree voluntary cuts in greenhouse gas Reliant Resources, Inc.; Tennessee Valley Carbon, in which case the voting rights Authority; TXU Corp.; We Energies (the trade name emissions. The Bush Administration has of Wisconsin Electric Power Company and of such member or members equal to or also proposed, as part of its Global Wisconsin Gas Company); and Wisconsin Public exceeding five percent of the total Climate Change program, the creation of Service Corporation. voting rights in PowerTree Carbon

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would be automatically allocated in One proven means for reducing of CO2 per acre by years 70 and 100, equal portions to the other members. greenhouse gases is to use trees to respectively, at a cost of less than two The Operating Agreement further remove CO2 from the atmosphere and dollars per ton. provides that each member (or its store it in tree biomass and roots and PowerTree Carbon was organized as a designee(s) or transferee(s)) shall be soil. PowerTree Carbon is part of an for-profit limited liability company entitled to claim a pro rata share of all industry-wide effort to voluntarily (‘‘LLC’’), to allow carbon or CO2 carbon that is determined to be address climate change through reduction credits, if and when they sequestered by PowerTree Carbon’s measures designed to reduce become available, to be more readily efforts to which legal rights, if any, have greenhouse gas emissions in response to transferred. The LLC structure will also been obtained (‘‘Carbon Reductions’’) President Bush’s recent ‘‘Climate allow members to take advantage of tax based on the member’s percentage VISION’’ plan, or Climate, Voluntary benefits of land donation. Although interest in PowerTree Carbon. A Innovative Sector Initiatives: formed as a for-profit LLC, PowerTree member may generally utilize its share Opportunities Now. Climate VISION is Carbon is essentially a passive medium of any Carbon Reductions in connection the first step in the President’s policy of for making investments in projects that with its participation in any greenhouse encouraging industry to produce are not expected to have any operating gas reporting or regulatory program or voluntary cuts in greenhouse gas revenues, and will not engage in any transfer or assign such Carbon emissions. The Bush Administration has active business operations. Reductions to one or more other also proposed, as part of its Global Under the Operating Agreement of persons. Climate Change program, the creation of PowerTree Carbon (‘‘Operating Agreement’’), the business and affairs of Cinergy Corp. (70–10134) transferable emission control credits for measures that reduce greenhouse gas the company shall be managed by its Cinergy Corp. (‘‘Cinergy’’), a emissions. board of managers (‘‘Board’’). Each registered holding company, 139 East PowerTree Carbon has obtained member that commits to make a capital Fourth Street, Cincinnati, Ohio 45202, commitments totaling approximately contribution of at least $100,000 is has filed an application under sections $3.5 million from approximately entitled to appoint one representative to 9(a)(1), 10, and 12(f) of the Act and rule twenty-five electric utilities, electric the Board. In general, actions by the 54 under the Act. utility holding companies and other Board may be taken by a majority of the Cinergy directly or indirectly owns all energy concerns that will be used to managers present at a meeting. of the outstanding common stock of the fund six forestation projects located in However, certain actions of the Board or following public-utility companies: PSI Louisiana, Mississippi and Arkansas.3 of any individual manager or any officer Energy, Inc.; The Cincinnati Gas & These projects will provide multiple require authorization by a two-thirds Electric Company; The Union Light, environmental benefits, including vote of the full board. These include, Heat & Power Company; Lawrenceburg removing from the atmosphere and among other actions: the sale, exchange Gas Company; and Miami Power storing over 2 million tons of CO2 over or other disposition of any of the assets Corporation (collectively, the ‘‘Utility the projects’ 100-year lifetimes. Other of the company greater than $20,000 in Subsidiaries’’). Together, the Utility benefits will include: restoring habitat value; the commencement of a Subsidiaries provide retail gas and for birds and animals; reducing fertilizer voluntary bankruptcy proceeding; the electric and wholesale electric service to inputs to waters; and stabilizing soils. declaration or making of any more than 1.5 million customers in Two of the projects will involve distributions to members; the parts of Indiana, Ohio, and Kentucky. purchase and donation of land to the incurrence of any indebtedness by the The Utility Subsidiaries and non- U.S. Fish & Wildlife Service, while company; capital expenditures regulated generating subsidiaries of other projects will involve obtaining exceeding $20,000; and the acquisition Cinergy own all or portions of thirty-one easements for tree planting on private or lease of any real property and any electric generating plants in the United land. The contributions of the members sale of, donation, lease or sublease States having a combined generating to PowerTree Carbon will be utilized for affecting real property owned by the capability of approximately 13,929 land acquisition and to pay the cost of company. megawatts. Through direct and indirect planting tree seedlings. It is estimated New members would be admitted to subsidiaries, Cinergy is also engaged in that these projects will provide carbon PowerTree Carbon only upon the various nonutility businesses. benefits of more than 400 and 450 tons unanimous approval of the then existing Cinergy requests authority to acquire, members. Upon admission of any new directly or indirectly through one or 3 Cinergy is one of eleven registered holding member, the percentage interests of more subsidiaries, a membership companies that have committed, either directly or existing members shall be reduced interest in PowerTree Carbon Company, through subsidiaries, to make capital contributions accordingly. A member may transfer all LLC (‘‘PowerTree Carbon’’). The initial to PowerTree Carbon. The others are: Ameren or a portion of its membership interest Corporation; American Electric Power Company, capital contribution of Cinergy would be Inc.; Progress Energy, Inc.; Dominion Resources, only upon receiving approval of two- $100,000. Cinergy also requests Inc.; Entergy Corporation; Exelon Corporation; thirds of the existing members, except authority to sell all or a portion of its FirstEnergy Corp.; Great Plains Energy that, without the prior approval of the membership interest in PowerTree Incorporated; PEPCO Holdings, Inc.; and Xcel other members, a member may transfer Energy, Inc. Other energy companies that have Carbon at any time to any of its committed to make capital contributions are: all or a part of its membership interest associate companies. CLECO Corporation; The Detroit Edison Company; to an affiliate of such member or to any PowerTree Carbon, a Delaware Duke Energy Corporation; Minnesota Power (a other member. A two-thirds vote of the limited liability company, was division of ALLETE, Inc.); OGE Energy Corp.; members also would be required to elect Oglethorpe Power Corporation; Peabody Energy organized in cooperation with the U.S. Corporation; Pinnacle West Capital Corporation; officers of PowerTree Carbon. The Department of Energy (‘‘DOE’’). It is Public Service Electric and Gas Company; Public members have equal voting rights, designed to facilitate investments by Service Company of New Mexico; Reliant regardless of their percentage interests energy companies such as Cinergy in Resources, Inc.; Tennessee Valley Authority; TXU in PowerTree Carbon. Corp.; We Energies (the trade name of Wisconsin forestation projects in the Lower Electric Power Company and Wisconsin Gas The Operating Agreement provides Mississippi River Valley and possibly Company); and Wisconsin Public Service that, so long as any member is a other sites. Corporation. registered holding company or

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subsidiary company thereof, any voting subsidiaries, Pepco is also engaged in These projects will provide multiple rights received or otherwise obtained by various nonutility businesses. environmental benefits, including that member equal to or exceeding ten Pepco requests authority to acquire, removing from the atmosphere and percent of the total outstanding voting directly or indirectly through one or storing over 2 million tons of CO2 over rights in PowerTree Carbon shall be more subsidiaries, a membership the projects’ 100-year lifetimes. Other automatically (and without any interest in PowerTree Carbon Company, benefits will include: restoring habitat requirement for consent on the part of LLC (‘‘PowerTree Carbon’’). The initial for birds and animals; reducing fertilizer the affected member) allocated to the capital contribution of Pepco would be inputs to waters; and stabilizing soils. other members in equal portions such $50,000. Pepco also requests authority Two of the projects will involve that no registered holding company to sell all or a portion of its membership purchase and donation of land to the member will hold ten percent or more interest in PowerTree Carbon at any U.S. Fish & Wildlife Service, while of voting rights in PowerTree Carbon. In time to any of its associate companies. other projects will involve obtaining addition, any member may elect to limit PowerTree Carbon, a Delaware easements for tree planting on private its voting rights to less than five percent limited liability company, was land. The contributions of the members of the total voting rights in PowerTree organized in cooperation with the U.S. to PowerTree Carbon will be utilized for Carbon, in which case the voting rights Department of Energy (‘‘DOE’’). It is land acquisition and to pay the cost of of such member or members equal to or designed to facilitate investments by planting tree seedlings. It is estimated exceeding five percent of the total energy companies such as Pepco in that these projects will provide carbon voting rights in PowerTree Carbon forestation projects in the Lower benefits of more than 400 and 450 tons Mississippi River Valley and possibly would be automatically allocated in of CO2 per acre by years 70 and 100, equal portions to the other members. other sites. respectively, at a cost of less than two The Operating Agreement further One proven means for reducing dollars per ton. provides that each member (or its greenhouse gases is to use trees to remove CO from the atmosphere and PowerTree Carbon was organized as a designee(s) or transferee(s)) shall be 2 for-profit limited liability company entitled to claim a pro rata share of all store it in tree biomass and roots and (‘‘LLC’’), to allow carbon or CO carbon that is determined to be soil. PowerTree Carbon is part of an 2 reduction credits, if and when they sequestered by PowerTree Carbon’s industry-wide effort to voluntarily become available, to be more readily efforts to which legal rights, if any, have address climate change through transferred. The LLC structure will also been obtained (‘‘Carbon Reductions’’) measures designed to reduce allow members to take advantage of tax based on the member’s percentage greenhouse gas emissions in response to benefits of land donation. Although interest in PowerTree Carbon. A President Bush’s recent ‘‘Climate formed as a for-profit LLC, PowerTree member may generally utilize its share VISION’’ plan, or Climate, Voluntary Carbon is essentially a passive medium of any Carbon Reductions in connection Innovative Sector Initiatives: for making investments in projects that with its participation in any greenhouse Opportunities Now. Climate VISION is gas reporting or regulatory program or the first step in the President’s policy of are not expected to have any operating transfer or assign such Carbon encouraging industry to produce revenues, and will not engage in any Reductions to one or more other voluntary cuts in greenhouse gas active business operations. persons. emissions. The Bush Administration has Under the Operating Agreement of also proposed, as part of its Global PowerTree Carbon (‘‘Operating Pepco Holdings, Inc. (70–10135) Climate Change program, the creation of Agreement’’), the business and affairs of Pepco Holdings, Inc. (‘‘Pepco’’), a transferable emission control credits for the company shall be managed by its registered holding company, 701 9th measures that reduce greenhouse gas board of managers (‘‘Board’’). Each Street, 10th Floor, Suite 1300, emissions. member that commits to make a capital Washington DC 20068, has filed an PowerTree Carbon has obtained contribution of at least $100,000 is application under sections 9(a)(1), 10, commitments totaling approximately entitled to appoint one representative to and 12(f) of the Act and rule 54 under $3.5 million from approximately the Board. In general, actions by the the Act. twenty-five electric utilities, electric Board may be taken by a majority of the Pepco directly or indirectly owns all utility holding companies and other managers present at a meeting. of the outstanding common stock of the energy concerns that will be used to However, certain actions of the Board or following public-utility companies: fund six forestation projects located in of any individual manager or any officer Atlantic City Electric Company; Louisiana, Mississippi and Arkansas.4 require authorization by a two-thirds Delmarva Power & Light Company; vote of the full board. These include, Potomac Electric Power Company; 4 Pepco is one of eleven registered holding among other actions: the sale, exchange Conectiv Delmarva Generation, Inc.; and companies that have committed, either directly or or other disposition of any of the assets through subsidiaries, to make capital contributions Conectiv Atlantic Generation, LLC to PowerTree Carbon. The others are: Ameren of the company greater than $20,000 in (collectively, the ‘‘Utility Subsidiaries’’). Corporation; American Electric Power Company, value; the commencement of a Together, the Utility Subsidiaries Inc.; Cinergy Corp.; Dominion Resources, Inc.; voluntary bankruptcy proceeding; the provide retail and wholesale electric Entergy Corporation; Exelon Corporation; declaration or making of any FirstEnergy Corp.; Great Plains Energy service to more than 1.8 million Incorporated; Progress Energy, Inc.; and Xcel distributions to members; the customers in parts of the District of Energy, Inc. Other energy companies that have incurrence of any indebtedness by the Columbia, Delaware, Maryland, New committed to make capital contributions are: company; capital expenditures Jersey, and Virginia. The Utility CLECO Corporation; The Detroit Edison Company; exceeding $20,000; and the acquisition Duke Energy Corporation; Minnesota Power (a Subsidiaries and other non-regulated division of ALLETE, Inc.); OGE Energy Corp.; or lease of any real property and any generating subsidiaries of Pepco own all Oglethorpe Power Corporation; Peabody Energy sale of, donation, lease or sublease or portions of twenty-four electric Corporation; Pinnacle West Capital Corporation; affecting real property owned by the generating plants in the United States Public Service Electric and Gas Company; Public company. Service Company of New Mexico; Reliant having a combined generating capability Resources, Inc.; Tennessee Valley Authority; TXU of approximately 4,580 megawatts. Corp.; We Energies (the trade name of Wisconsin Company); and Wisconsin Public Service Through direct and indirect Electric Power Company and Wisconsin Gas Corporation.

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New members would be admitted to FirstEnergy directly or indirectly encouraging industry to produce PowerTree Carbon only upon the owns all of the outstanding common voluntary cuts in greenhouse gas unanimous approval of the then existing stock of eleven public-utility emissions. The Bush Administration has members. Upon admission of any new companies: Ohio Edison Company; The also proposed, as part of its Global member, the percentage interests of Cleveland Electric Illuminating Climate Change program, the creation of existing members shall be reduced Company; The Toledo Edison Company; transferable emission control credits for accordingly. A member may transfer all American Transmission Systems, measures that reduce greenhouse gas or a portion of its membership interest Incorporated; Jersey Central Power & emissions. only upon receiving approval of two- Light Company; Pennsylvania Electric PowerTree Carbon has obtained thirds of the existing members, except Company; Metropolitan Edison commitments totaling approximately that, without the prior approval of the Company; Pennsylvania Power $3.5 million from approximately other members, a member may transfer Company; York Haven Power Company; twenty-five electric utilities, electric all or a part of its membership interest The Waverly Electric Power & Light utility holding companies and other to an affiliate of such member or to any Company (collectively, the ‘‘Electric energy concerns that will be used to other member. A two-thirds vote of the Utility Subsidiaries’’); and Northeast fund six forestation projects located in members also would be required to elect Ohio Natural Gas Corp. (‘‘NONG’’). Louisiana, Mississippi and Arkansas.5 officers of PowerTree Carbon. The Together, the Electric Utility These projects will provide multiple members have equal voting rights, Subsidiaries provide electric service to environmental benefits, including regardless of their percentage interests approximately 4.3 million retail and removing from the atmosphere and in PowerTree Carbon. wholesale customers in a 37,200 square storing over 2 million tons of CO2 over The Operating Agreement provides mile area in Ohio, New Jersey, New the projects’ 100-year lifetimes. Other that, so long as any member is a York, and Pennsylvania. NONG benefits will include: restoring habitat registered holding company or provides gas transportation and for birds and animals; reducing fertilizer subsidiary company thereof, any voting distribution services to approximately inputs to waters; and stabilizing soils. rights received or otherwise obtained by 5,000 customers in central and northeast Two of the projects will involve that member equal to or exceeding ten Ohio. Certain of FirstEnergy’s public- purchase and donation of land to the percent of the total outstanding voting utility company subsidiaries own all or U.S. Fish & Wildlife Service, while rights in PowerTree Carbon shall be a portion of the units at sixteen other projects will involve obtaining automatically (and without any electricity generating stations in the easements for tree planting on private requirement for consent on the part of United States having a combined land. The contributions of the members the affected member) allocated to the generating capability of approximately to PowerTree Carbon will be utilized for other members in equal portions such 13,387 megawatts. Through direct and land acquisition and to pay the cost of that no registered holding company indirect subsidiaries, FirstEnergy is also planting tree seedlings. It is estimated member will hold ten percent or more engaged in various nonutility that these projects will provide carbon of voting rights in PowerTree Carbon. In businesses. benefits of more than 400 and 450 tons addition, any member may elect to limit FirstEnergy requests authority to of CO2 per acre by years 70 and 100, its voting rights to less than five percent acquire, directly or indirectly through respectively, at a cost of less than two of the total voting rights in PowerTree one or more subsidiaries, a membership dollars per ton. Carbon, in which case the voting rights interest in PowerTree Carbon Company, PowerTree Carbon was organized as a of such member or members equal to or LLC (‘‘PowerTree Carbon’’). The initial for-profit limited liability company exceeding five percent of the total capital contribution of FirstEnergy (‘‘LLC’’), to allow carbon or CO2 voting rights in PowerTree Carbon would be $100,000. FirstEnergy also reduction credits, if and when they would be automatically allocated in requests authority to sell all or a portion become available, to be more readily equal portions to the other members. of its membership interest in PowerTree transferred. The LLC structure will also The Operating Agreement further Carbon at any time to any of its allow members to take advantage of tax provides that each member (or its associate companies. benefits of land donation. Although designee(s) or transferee(s)) shall be PowerTree Carbon, a Delaware formed as a for-profit LLC, PowerTree entitled to claim a pro rata share of all limited liability company, was Carbon is essentially a passive medium carbon that is determined to be organized in cooperation with the U.S. for making investments in projects that sequestered by PowerTree Carbon’s Department of Energy (‘‘DOE’’). It is are not expected to have any operating efforts to which legal rights, if any, have designed to facilitate investments by been obtained (‘‘Carbon Reductions’’) energy companies such as FirstEnergy 5 FirstEnergy is one of eleven registered holding based on the member’s percentage in forestation projects in the Lower companies that have committed, either directly or Mississippi River Valley and possibly through subsidiaries, to make capital contributions interest in PowerTree Carbon. A to PowerTree Carbon. The others are: Ameren member may generally utilize its share other sites. Corporation; American Electric Power Company, of any Carbon Reductions in connection One proven means for reducing Inc.; Cinergy Corp.; Dominion Resources, Inc.; with its participation in any greenhouse greenhouse gases is to use trees to Entergy Corporation; Exelon Corporation; Progress remove CO2 from the atmosphere and Energy, Inc.; Great Plains Energy Incorporated; gas reporting or regulatory program or PEPCO Holdings, Inc.; and Xcel Energy, Inc. Other transfer or assign such Carbon store it in tree biomass and roots and energy companies that have committed to make Reductions to one or more other soil. PowerTree Carbon is part of an capital contributions are: CLECO Corporation; The persons. industry-wide effort to voluntarily Detroit Edison Company; Duke Energy Corporation; address climate change through Minnesota Power (a division of ALLETE, Inc.); OGE FirstEnergy Corporation (70–10138) Energy Corp.; Oglethorpe Power Corporation; measures designed to reduce Peabody Energy Corporation; Pinnacle West Capital FirstEnergy Corporation greenhouse gas emissions in response to Corporation; Public Service Electric and Gas (‘‘FirstEnergy’’), a registered holding President Bush’s recent ‘‘Climate Company; Public Service Company of New Mexico; company, 76 South Main Street, Akron, VISION’’ plan, or Climate, Voluntary Reliant Resources, Inc.; Tennessee Valley Authority; TXU Corp.; We Energies (the trade name Ohio 44308, has filed an application Innovative Sector Initiatives: of Wisconsin Electric Power Company and under sections 9(a)(1), 10, and 12(f) of Opportunities Now. Climate VISION is Wisconsin Gas Company); and Wisconsin Public the Act and rule 54 under the Act. the first step in the President’s policy of Service Corporation.

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revenues, and will not engage in any Carbon, in which case the voting rights forestation projects in the Lower active business operations. of such member or members equal to or Mississippi River Valley and possibly Under the Operating Agreement of exceeding five percent of the total other sites. PowerTree Carbon (‘‘Operating voting rights in PowerTree Carbon One proven means for reducing Agreement’’), the business and affairs of would be automatically allocated in greenhouse gases is to use trees to the company shall be managed by its equal portions to the other members. remove CO2 from the atmosphere and board of managers (‘‘Board’’). Each The Operating Agreement further store it in tree biomass and roots and member that commits to make a capital provides that each member (or its soil. PowerTree Carbon is part of an contribution of at least $100,000 is designee(s) or transferee(s)) shall be industry-wide effort to voluntarily entitled to appoint one representative to entitled to claim a pro rata share of all address climate change through the Board. In general, actions by the carbon that is determined to be measures designed to reduce Board may be taken by a majority of the sequestered by PowerTree Carbon’s greenhouse gas emissions in response to managers present at a meeting. efforts to which legal rights, if any, have President Bush’s recent ‘‘Climate However, certain actions of the Board or been obtained (‘‘Carbon Reductions’’) VISION’’ plan, or Climate, Voluntary of any individual manager or any officer based on the member’s percentage Innovative Sector Initiatives: require authorization by a two-thirds interest in PowerTree Carbon. A Opportunities Now. Climate VISION is vote of the full board. These include, member may generally utilize its share the first step in the President’s policy of among other actions: The sale, exchange of any Carbon Reductions in connection encouraging industry to produce or other disposition of any of the assets with its participation in any greenhouse voluntary cuts in greenhouse gas of the company greater than $20,000 in gas reporting or regulatory program or emissions. The Bush Administration has value; the commencement of a transfer or assign such Carbon also proposed, as part of its Global voluntary bankruptcy proceeding; the Reductions to one or more other Climate Change program, the creation of declaration or making of any persons. transferable emission control credits for distributions to members; the measures that reduce greenhouse gas incurrence of any indebtedness by the Exelon Corporation (70–10139) emissions. company; capital expenditures Exelon Corporation (‘‘Exelon’’), a PowerTree Carbon has obtained exceeding $20,000; and the acquisition registered holding company, 10 South commitments totaling approximately or lease of any real property and any Dearborn Street, 37th Floor, Chicago, $3.5 million from approximately sale of, donation, lease or sublease Illinois 60603, has filed an application twenty-five electric utilities, electric affecting real property owned by the under sections 9(a)(1), 10, and 12(f) of utility holding companies and other company. the Act and rule 54 under the Act. energy concerns that will be used to New members would be admitted to Exelon has a number of public-utility fund six forestation projects located in PowerTree Carbon only upon the company subsidiaries: PECO Energy Louisiana, Mississippi and Arkansas.7 unanimous approval of the then existing Company, which transmits, distributes These projects will provide multiple members. Upon admission of any new and sells electricity and purchases and environmental benefits, including member, the percentage interests of sells natural gas in Pennsylvania; removing from the atmosphere and existing members shall be reduced Commonwealth Edison Company, storing over 2 million tons of CO2 over accordingly. A member may transfer all which transmits, distributes and sells the projects’ 100-year lifetimes. Other or a portion of its membership interest electricity in Illinois; Exelon Generation benefits will include: restoring habitat only upon receiving approval of two- Company (also a registered holding for birds and animals; reducing fertilizer thirds of the existing members, except company), which generates and sells inputs to waters; and stabilizing soils. that, without the prior approval of the electricity in Pennsylvania, Illinois, and Two of the projects will involve other members, a member may transfer elsewhere; 6 Commonwealth Edison purchase and donation of land to the all or a part of its membership interest Company of Indiana; PECO Energy U.S. Fish & Wildlife Service, while to an affiliate of such member or to any Power Company, Susquehanna Power other projects will involve obtaining other member. A two-thirds vote of the Company; and Susquehanna Electric easements for tree planting on private members also would be required to elect Company. Through direct and indirect land. The contributions of the members officers of PowerTree Carbon. The subsidiaries, Exelon is also engaged in to PowerTree Carbon will be utilized for members have equal voting rights, various nonutility businesses. land acquisition and to pay the cost of regardless of their percentage interests Exelon requests authority to acquire, in PowerTree Carbon. 7 directly or indirectly through one or Exelon is one of eleven registered holding The Operating Agreement provides companies that have committed, either directly or that, so long as any member is a more subsidiaries, a membership through subsidiaries, to make capital contributions registered holding company or interest in PowerTree Carbon Company, to PowerTree Carbon. The others are: Ameren subsidiary company thereof, any voting LLC (‘‘PowerTree Carbon’’). Exelon also Corporation; American Electric Power Company, requests authority to sell all or a portion Inc.; Cinergy Corp.; Dominion Resources, Inc.; rights received or otherwise obtained by Entergy Corporation; Progress Energy, Inc.; that member equal to or exceeding ten of its membership interest in PowerTree FirstEnergy Corp.; Great Plains Energy percent of the total outstanding voting Carbon at any time to any of its Incorporated; PEPCO Holdings, Inc.; and Xcel rights in PowerTree Carbon shall be associate companies. Energy, Inc. Other energy companies that have PowerTree Carbon, a Delaware committed to make capital contributions are: automatically (and without any CLECO Corporation; The Detroit Edison Company; requirement for consent on the part of limited liability company, was Duke Energy Corporation; Minnesota Power (a the affected member) allocated to the organized in cooperation with the U.S. division of ALLETE, Inc.); OGE Energy Corp.; other members in equal portions such Department of Energy (‘‘DOE’’). It is Oglethorpe Power Corporation; Peabody Energy designed to facilitate investments by Corporation; Pinnacle West Capital Corporation; that no registered holding company Public Service Electric and Gas Company; Public member will hold ten percent or more energy companies such as Exelon in Service Company of New Mexico; Reliant of voting rights in PowerTree Carbon. In Resources, Inc.; Tennessee Valley Authority; TXU 6 Exelon Generation Company owns, directly or Corp.; We Energies (the trade name of Wisconsin addition, any member may elect to limit indirectly, electricity generating plants in the Electric Power Company and Wisconsin Gas its voting rights to less than five percent United States having a combined generating Company); and Wisconsin Public Service of the total voting rights in PowerTree capability of approximately 26,241 megawatts. Corporation.

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planting tree seedlings. It is estimated The Operating Agreement provides LLC (‘‘PowerTree Carbon’’). The initial that these projects will provide carbon that, so long as any member is a capital contribution of Dominion would benefits of more than 400 and 450 tons registered holding company or be $100,000. Dominion also requests of CO2 per acre by years 70 and 100, subsidiary company thereof, any voting authority to sell all or a portion of its respectively, at a cost of less than two rights received or otherwise obtained by membership interest in PowerTree dollars per ton. that member equal to or exceeding ten Carbon at any time to any of its PowerTree Carbon was organized as a percent of the total outstanding voting associate companies. for-profit limited liability company rights in PowerTree Carbon shall be PowerTree Carbon, a Delaware (‘‘LLC’’), to allow carbon or CO2 automatically (and without any limited liability company, was reduction credits, if and when they requirement for consent on the part of organized in cooperation with the U.S. become available, to be more readily the affected member) allocated to the Department of Energy (‘‘DOE’’). It is transferred. The LLC structure will also other members in equal portions such designed to facilitate investments by allow members to take advantage of tax that no registered holding company energy companies such as Dominion in benefits of land donation. Although member will hold ten percent or more forestation projects in the Lower formed as a for-profit LLC, PowerTree of voting rights in PowerTree Carbon. In Mississippi River Valley and possibly Carbon is essentially a passive medium addition, any member may elect to limit other sites. for making investments in projects that its voting rights to less than five percent One proven means for reducing are not expected to have any operating of the total voting rights in PowerTree greenhouse gases is to use trees to revenues, and will not engage in any Carbon, in which case the voting rights remove CO2 from the atmosphere and active business operations. of such member or members equal to or store it in tree biomass and roots and Under the Operating Agreement of exceeding five percent of the total soil. PowerTree Carbon is part of an PowerTree Carbon (‘‘Operating voting rights in PowerTree Carbon industry-wide effort to voluntarily Agreement’’), the business and affairs of would be automatically allocated in address climate change through the company shall be managed by its equal portions to the other members. measures designed to reduce board of managers (‘‘Board’’). Each The Operating Agreement further greenhouse gas emissions in response to member that commits to make a capital provides that each member (or its President Bush’s recent ‘‘Climate contribution of at least $100,000 is designee(s) or transferee(s)) shall be VISION’’ plan, or Climate, Voluntary entitled to appoint one representative to entitled to claim a pro rata share of all Innovative Sector Initiatives: the Board. In general, actions by the carbon that is determined to be Opportunities Now. Climate VISION is Board may be taken by a majority of the sequestered by PowerTree Carbon’s the first step in the President’s policy of managers present at a meeting. efforts to which legal rights, if any, have encouraging industry to produce However, certain actions of the Board or been obtained (‘‘Carbon Reductions’’) voluntary cuts in greenhouse gas of any individual manager or any officer based on the member’s percentage emissions. The Bush Administration has require authorization by a two-thirds interest in PowerTree Carbon. A also proposed, as part of its Global vote of the full board. These include, member may generally utilize its share Climate Change program, the creation of among other actions: the sale, exchange of any Carbon Reductions in connection transferable emission control credits for or other disposition of any of the assets with its participation in any greenhouse measures that reduce greenhouse gas of the company greater than $20,000 in gas reporting or regulatory program or emissions. value; the commencement of a transfer or assign such Carbon PowerTree Carbon has obtained voluntary bankruptcy proceeding; the Reductions to one or more other commitments totaling approximately declaration or making of any persons. $3.5 million from approximately distributions to members; the twenty-five electric utilities, electric incurrence of any indebtedness by the Dominion Resources, Inc. (70–10140) utility holding companies and other company; capital expenditures Dominion Resources, Inc. energy concerns that will be used to exceeding $20,000; and the acquisition (‘‘Dominion’’), a registered holding fund six forestation projects located in or lease of any real property and any company, 120 Tredegar Street, Louisiana, Mississippi and Arkansas.8 sale of, donation, lease or sublease Richmond, Virginia, has filed an These projects will provide multiple affecting real property owned by the application under sections 9(a)(1), 10, environmental benefits, including company. and 12(f) of the Act and rule 54 under removing from the atmosphere and New members would be admitted to the Act. storing over 2 million tons of CO2 over PowerTree Carbon only upon the Dominion directly owns all of the unanimous approval of the then existing outstanding common stock of Virginia 8 Dominion is one of eleven registered holding members. Upon admission of any new Electric & Power Company (‘‘Virginia companies that have committed, either directly or member, the percentage interests of Electric’’), which sells electricity to through subsidiaries, to make capital contributions to PowerTree Carbon. The others are: Ameren existing members shall be reduced approximately 2.2 million retail Corporation; American Electric Power Company, accordingly. A member may transfer all customers and to wholesale customers. Inc.; Cinergy Corp.; Progress Energy, Inc.; Entergy or a portion of its membership interest Virginia Electric non-regulated Corporation; Exelon Corporation; FirstEnergy Corp.; only upon receiving approval of two- generating subsidiaries of Dominion Great Plains Energy Incorporated; PEPCO Holdings, Inc.; and Xcel Energy, Inc. Other energy companies thirds of the existing members, except own all or portions of thirty-eight that have committed to make capital contributions that, without the prior approval of the electric generating plants in the United are: CLECO Corporation; The Detroit Edison other members, a member may transfer States having a combined generating Company; Duke Energy Corporation; Minnesota all or a part of its membership interest capability of approximately 19,927 Power (a division of ALLETE, Inc.); OGE Energy Corp.; Oglethorpe Power Corporation; Peabody to an affiliate of such member or to any megawatts. Through direct and indirect Energy Corporation; Pinnacle West Capital other member. A two-thirds vote of the subsidiaries, Dominion is also engaged Corporation; Public Service Electric and Gas members also would be required to elect in various nonutility businesses. Company; Public Service Company of New Mexico; officers of PowerTree Carbon. The Dominion requests authority to Reliant Resources, Inc.; Tennessee Valley Authority; TXU Corp.; We Energies (the trade name members have equal voting rights, acquire, directly or indirectly through of Wisconsin Electric Power Company and regardless of their percentage interests one or more subsidiaries, a membership Wisconsin Gas Company); and Wisconsin Public in PowerTree Carbon. interest in PowerTree Carbon Company, Service Corporation.

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the projects’ 100-year lifetimes. Other only upon receiving approval of two- customers in parts of eleven states benefits will include: restoring habitat thirds of the existing members, except (Arkansas, Indiana, Kentucky, for birds and animals; reducing fertilizer that, without the prior approval of the Louisiana, Michigan, Ohio, Oklahoma, inputs to waters; and stabilizing soils. other members, a member may transfer Tennessee, Texas, Virginia, and West Two of the projects will involve all or a part of its membership interest Virginia). The Utility Subsidiaries and purchase and donation of land to the to an affiliate of such member or to any non-regulated generating subsidiaries of U.S. Fish & Wildlife Service, while other member. A two-thirds vote of the the Applicant own all or portions of other projects will involve obtaining members also would be required to elect ninety-three electric generating plants in easements for tree planting on private officers of PowerTree Carbon. The the United States having a combined land. The contributions of the members members have equal voting rights, generating capability of approximately to PowerTree Carbon will be utilized for regardless of their percentage interests 40,000 megawatts. Through direct and land acquisition and to pay the cost of in PowerTree Carbon. indirect subsidiaries, AEP is also planting tree seedlings. It is estimated The Operating Agreement provides engaged in various nonutility that these projects will provide carbon that, so long as any member is a businesses. benefits of more than 400 and 450 tons registered holding company or AEP requests authority to acquire, of CO2 per acre by years 70 and 100, subsidiary company thereof, any voting directly or indirectly through one or respectively, at a cost of less than two rights received or otherwise obtained by more subsidiaries, a membership dollars per ton. that member equal to or exceeding ten interest in PowerTree Carbon Company, PowerTree Carbon was organized as a percent of the total outstanding voting LLC (‘‘PowerTree Carbon’’). The initial for-profit limited liability company rights in PowerTree Carbon shall be capital contribution of AEP would be (‘‘LLC’’), to allow carbon or CO2 automatically (and without any $300,000. AEP also requests authority to reduction credits, if and when they requirement for consent on the part of sell all or a portion of its membership become available, to be more readily the affected member) allocated to the interest in PowerTree Carbon at any transferred. The LLC structure will also other members in equal portions such time to any of its associate companies. allow members to take advantage of tax that no registered holding company PowerTree Carbon, a Delaware benefits of land donation. Although member will hold ten percent or more limited liability company, was formed as a for-profit LLC, PowerTree of voting rights in PowerTree Carbon. In organized in cooperation with the U.S. Carbon is essentially a passive medium addition, any member may elect to limit Department of Energy (‘‘DOE’’). It is for making investments in projects that its voting rights to less than five percent designed to facilitate investments by are not expected to have any operating of the total voting rights in PowerTree energy companies such as AEP in revenues, and will not engage in any Carbon, in which case the voting rights forestation projects in the Lower active business operations. of such member or members equal to or Mississippi River Valley and possibly Under the Operating Agreement of exceeding five percent of the total other sites. PowerTree Carbon (‘‘Operating voting rights in PowerTree Carbon One proven means for reducing Agreement’’), the business and affairs of would be automatically allocated in greenhouse gases is to use trees to the company shall be managed by its equal portions to the other members. remove CO2 from the atmosphere and board of managers (‘‘Board’’). Each The Operating Agreement further store it in tree biomass and roots and member that commits to make a capital provides that each member (or its soil. PowerTree Carbon is part of an contribution of at least $100,000 is designee(s) or transferee(s)) shall be industry-wide effort to voluntarily entitled to appoint one representative to entitled to claim a pro rata share of all address climate change through the Board. In general, actions by the carbon that is determined to be measures designed to reduce Board may be taken by a majority of the sequestered by PowerTree Carbon’s greenhouse gas emissions in response to managers present at a meeting. efforts to which legal rights, if any, have President Bush’s recent ‘‘Climate However, certain actions of the Board or been obtained (‘‘Carbon Reductions’’) VISION’’ plan, or Climate, Voluntary of any individual manager or any officer based on the member’s percentage Innovative Sector Initiatives: require authorization by a two-thirds interest in PowerTree Carbon. A Opportunities Now. Climate VISION is vote of the full board. These include, member may generally utilize its share the first step in the President’s policy of among other actions: the sale, exchange of any Carbon Reductions in connection encouraging industry to produce or other disposition of any of the assets with its participation in any greenhouse voluntary cuts in greenhouse gas of the company greater than $20,000 in gas reporting or regulatory program or emissions. The Bush Administration has value; the commencement of a transfer or assign such Carbon also proposed, as part of its Global voluntary bankruptcy proceeding; the Reductions to one or more other Climate Change program, the creation of declaration or making of any persons. transferable emission control credits for distributions to members; the measures that reduce greenhouse gas incurrence of any indebtedness by the American Electric Power Company, emissions. company; capital expenditures Inc. (70–10142) PowerTree Carbon has obtained exceeding $20,000; and the acquisition American Electric Power Company, commitments totaling approximately or lease of any real property and any Inc. (‘‘AEP’’), a registered holding $3.5 million from approximately sale of, donation, lease or sublease company, 1 Riverside Plaza, Columbus, twenty-five electric utilities, electric affecting real property owned by the Ohio 43215, has filed an application utility holding companies and other company. under sections 9(a)(1), 10, and 12(f) of energy concerns that will be used to New members would be admitted to the Act and rule 54 under the Act. fund six forestation projects located in PowerTree Carbon only upon the AEP directly or indirectly owns all of Louisiana, Mississippi and Arkansas.9 unanimous approval of the then existing the outstanding common stock of nine members. Upon admission of any new public-utility company subsidiaries 9 AEP is one of eleven registered holding member, the percentage interests of (collectively, the ‘‘Utility Subsidiaries’’). companies that have committed, either directly or through subsidiaries, to make capital contributions existing members shall be reduced Together, the Utility Subsidiaries to PowerTree Carbon. The others are: Ameren accordingly. A member may transfer all provide retail and wholesale electric Corporation; Progress Energy, Inc.; Cinergy Corp.; or a portion of its membership interest service to approximately 5 million Continued

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These projects will provide multiple value; the commencement of a transfer or assign such Carbon environmental benefits, including voluntary bankruptcy proceeding; the Reductions to one or more other removing from the atmosphere and declaration or making of any persons. storing over 2 million tons of CO over distributions to members; the 2 Entergy Arkansas, Inc. (70–10143) the projects’ 100-year lifetimes. Other incurrence of any indebtedness by the benefits will include: Restoring habitat company; capital expenditures Entergy Arkansas, Inc. (‘‘Entergy for birds and animals; reducing fertilizer exceeding $20,000; and the acquisition Arkansas’’), 425 West Capitol Avenue, inputs to waters; and stabilizing soils. or lease of any real property and any Little Rock, Arkansas 72201, a public- Two of the projects will involve sale of, donation, lease or sublease utility company subsidiary of Entergy purchase and donation of land to the affecting real property owned by the Corporation, a registered holding U.S. Fish & Wildlife Service, while company. company, has filed an application under other projects will involve obtaining New members would be admitted to sections 9(a)(1), 10, and 12(f) of the Act easements for tree planting on private PowerTree Carbon only upon the and rule 54 under the Act. land. The contributions of the members unanimous approval of the then existing Entergy Arkansas provides retail to PowerTree Carbon will be utilized for members. Upon admission of any new electric service to approximately land acquisition and to pay the cost of member, the percentage interests of 649,000 customers in the State of planting tree seedlings. It is estimated existing members shall be reduced Arkansas. It owns or leases all or that these projects will provide carbon accordingly. A member may transfer all portions of twelve electric generating benefits of more than 400 and 450 tons or a portion of its membership interest plants having a combined generating of CO2 per acre by years 70 and 100, only upon receiving approval of two- capability of 4,690 megawatts. Entergy respectively, at a cost of less than two thirds of the existing members, except Corporation, through direct and indirect dollars per ton. that, without the prior approval of the subsidiaries, is also engaged in various PowerTree Carbon was organized as a other members, a member may transfer nonutility businesses. for-profit limited liability company all or a part of its membership interest Entergy Arkansas requests authority (‘‘LLC’’), to allow carbon or CO2 to an affiliate of such member or to any to acquire, directly or indirectly through reduction credits, if and when they other member. A two-thirds vote of the one or more subsidiaries, a membership become available, to be more readily members also would be required to elect interest in PowerTree Carbon Company, transferred. The LLC structure will also officers of PowerTree Carbon. The LLC (‘‘PowerTree Carbon’’). The initial allow members to take advantage of tax members have equal voting rights, capital contribution of Entergy Arkansas benefits of land donation. Although regardless of their percentage interests would be $100,000. Entergy Arkansas formed as a for-profit LLC, PowerTree in PowerTree Carbon. also requests authority to sell all or a Carbon is essentially a passive medium The Operating Agreement provides portion of its membership interest in for making investments in projects that that, so long as any member is a PowerTree Carbon at any time to any of are not expected to have any operating registered holding company or its associate companies. revenues, and will not engage in any subsidiary company thereof, any voting PowerTree Carbon, a Delaware active business operations. rights received or otherwise obtained by limited liability company, was Under the Operating Agreement of that member equal to or exceeding ten organized in cooperation with the U.S. PowerTree Carbon (‘‘Operating percent of the total outstanding voting Department of Energy (‘‘DOE’’). It is Agreement’’), the business and affairs of rights in PowerTree Carbon shall be designed to facilitate investments by the company shall be managed by its automatically (and without any energy companies such as Entergy board of managers (‘‘Board’’). Each requirement for consent on the part of Arkansas in forestation projects in the member that commits to make a capital the affected member) allocated to the Lower Mississippi River Valley and contribution of at least $100,000 is other members in equal portions such possibly other sites. entitled to appoint one representative to that no registered holding company One proven means for reducing the Board. In general, actions by the member will hold ten percent or more greenhouse gases is to use trees to Board may be taken by a majority of the of voting rights in PowerTree Carbon. In remove CO2 from the atmosphere and managers present at a meeting. addition, any member may elect to limit store it in tree biomass and roots and However, certain actions of the Board or its voting rights to less than five percent soil. PowerTree Carbon is part of an of any individual manager or any officer of the total voting rights in PowerTree industry-wide effort to voluntarily require authorization by a two-thirds Carbon, in which case the voting rights address climate change through vote of the full board. These include, of such member or members equal to or measures designed to reduce among other actions: The sale, exchange exceeding five percent of the total greenhouse gas emissions in response to or other disposition of any of the assets voting rights in PowerTree Carbon President Bush’s recent ‘‘Climate of the company greater than $20,000 in would be automatically allocated in VISION’’ plan, or Climate, Voluntary equal portions to the other members. Innovative Sector Initiatives: Dominion Resources, Inc.; Entergy Corporation; The Operating Agreement further Opportunities Now. Climate VISION is Exelon Corporation; FirstEnergy Corp.; Great Plains provides that each member (or its the first step in the President’s policy of Energy Incorporated; PEPCO Holdings, Inc.; and designee(s) or transferee(s)) shall be encouraging industry to produce Xcel Energy, Inc. Other energy companies that have committed to make capital contributions are: entitled to claim a pro rata share of all voluntary cuts in greenhouse gas CLECO Corporation; The Detroit Edison Company; carbon that is determined to be emissions. The Bush Administration has Duke Energy Corporation; Minnesota Power (a sequestered by PowerTree Carbon’s also proposed, as part of its Global division of ALLETE, Inc.); OGE Energy Corp.; efforts to which legal rights, if any, have Climate Change program, the creation of Oglethorpe Power Corporation; Peabody Energy Corporation; Pinnacle West Capital Corporation; been obtained (‘‘Carbon Reductions’’) transferable emission control credits for Public Service Electric and Gas Company; Public based on the member’s percentage measures that reduce greenhouse gas Service Company of New Mexico; Reliant interest in PowerTree Carbon. A emissions. Resources, Inc.; Tennessee Valley Authority; TXU member may generally utilize its share PowerTree Carbon has obtained Corp.; We Energies (the trade name of Wisconsin Electric Power Company and Wisconsin Gas of any Carbon Reductions in connection commitments totaling approximately Company); and Wisconsin Public Service with its participation in any greenhouse $3.5 million from approximately Corporation. gas reporting or regulatory program or twenty-five electric utilities, electric

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utility holding companies and other the Board. In general, actions by the carbon that is determined to be energy concerns that will be used to Board may be taken by a majority of the sequestered by PowerTree Carbon’s fund six forestation projects located in managers present at a meeting. efforts to which legal rights, if any, have Louisiana, Mississippi and Arkansas.10 However, certain actions of the Board or been obtained (‘‘Carbon Reductions’’) These projects will provide multiple of any individual manager or any officer based on the member’s percentage environmental benefits, including require authorization by a two-thirds interest in PowerTree Carbon. A removing from the atmosphere and vote of the full board. These include, member may generally utilize its share storing over 2 million tons of CO2 over among other actions: the sale, exchange of any Carbon Reductions in connection the projects’ 100-year lifetimes. Other or other disposition of any of the assets with its participation in any greenhouse benefits will include: restoring habitat of the company greater than $20,000 in gas reporting or regulatory program or for birds and animals; reducing fertilizer value; the commencement of a transfer or assign such Carbon inputs to waters; and stabilizing soils. voluntary bankruptcy proceeding; the Reductions to one or more other Two of the projects will involve declaration or making of any persons. distributions to members; the purchase and donation of land to the Great Plains Energy Incorporated (70– incurrence of any indebtedness by the U.S. Fish & Wildlife Service, while 10146) other projects will involve obtaining company; capital expenditures easements for tree planting on private exceeding $20,000; and the acquisition Great Plains Energy Incorporated land. The contributions of the members or lease of any real property and any (‘‘Great Plains’’), a registered holding to PowerTree Carbon will be utilized for sale of, donation, lease or sublease company, 1201 Walnut, Kansas City, land acquisition and to pay the cost of affecting real property owned by the Missouri 64106, has filed an application planting tree seedlings. It is estimated company. under sections 9(a)(1), 10, and 12(f) of that these projects will provide carbon New members would be admitted to the Act and rule 54 under the Act. Great Plains directly owns all of the benefits of more than 400 and 450 tons PowerTree Carbon only upon the outstanding common stock of Kansas of CO per acre by years 70 and 100, unanimous approval of the then existing 2 City Power & Light Company respectively, at a cost of less than two members. Upon admission of any new (‘‘KCP&L’’), a public-utility company. dollars per ton. member, the percentage interests of PowerTree Carbon was organized as a existing members shall be reduced KCP&L provides retail and wholesale for-profit limited liability company accordingly. A member may transfer all electric service to more than 485,000 (‘‘LLC’’), to allow carbon or CO or a portion of its membership interest customers in parts of Missouri and 2 Kansas, and owns or leases all or reduction credits, if and when they only upon receiving approval of two- portions of twenty-six electric become available, to be more readily thirds of the existing members, except generating plants in the United States transferred. The LLC structure will also that, without the prior approval of the having a combined generating capability allow members to take advantage of tax other members, a member may transfer of more than 4,043 megawatts. Through benefits of land donation. Although all or a part of its membership interest direct and indirect subsidiaries, Great formed as a for-profit LLC, PowerTree to an affiliate of such member or to any Plains is also engaged in various Carbon is essentially a passive medium other member. A two-thirds vote of the nonutility businesses. for making investments in projects that members also would be required to elect officers of PowerTree Carbon. The Great Plains requests authority to are not expected to have any operating acquire, directly or indirectly through revenues, and will not engage in any members have equal voting rights, regardless of their percentage interests one or more subsidiaries, a membership active business operations. interest in PowerTree Carbon Company, Under the Operating Agreement of in PowerTree Carbon. LLC (‘‘PowerTree Carbon’’). The initial PowerTree Carbon (‘‘Operating The Operating Agreement provides capital contribution of Great Plains Agreement’’), the business and affairs of that, so long as any member is a would be $50,000. Great Plains also the company shall be managed by its registered holding company or requests authority to sell all or a portion board of managers (‘‘Board’’). Each subsidiary company thereof, any voting of its membership interest in PowerTree member that commits to make a capital rights received or otherwise obtained by Carbon at any time to any of its contribution of at least $100,000 is that member equal to or exceeding ten percent of the total outstanding voting associate companies. entitled to appoint one representative to rights in PowerTree Carbon shall be PowerTree Carbon, a Delaware automatically (and without any limited liability company, was 10 Entergy Corporation, through Entergy Arkansas, is one of eleven registered holding requirement for consent on the part of organized in cooperation with the U.S. companies that have committed, either directly or the affected member) allocated to the Department of Energy (‘‘DOE’’). It is through subsidiaries, to make capital contributions other members in equal portions such designed to facilitate investments by to PowerTree Carbon. The others are: Ameren that no registered holding company energy companies such as Great Plains Corporation; American Electric Power Company, Inc.; Cinergy Corp.; Dominion Resources, Inc.; member will hold ten percent or more in forestation projects in the Lower Progress Energy, Inc.; Exelon Corporation; of voting rights in PowerTree Carbon. In Mississippi River Valley and possibly FirstEnergy Corp.; Great Plains Energy addition, any member may elect to limit other sites. Incorporated; PEPCO Holdings, Inc.; and Xcel its voting rights to less than five percent One proven means for reducing Energy, Inc. Other energy companies that have committed to make capital contributions are: of the total voting rights in PowerTree greenhouse gases is to use trees to CLECO Corporation; The Detroit Edison Company; Carbon, in which case the voting rights remove CO2 from the atmosphere and Duke Energy Corporation; Minnesota Power (a of such member or members equal to or store it in tree biomass and roots and division of ALLETE, Inc.); OGE Energy Corp.; exceeding five percent of the total soil. PowerTree Carbon is part of an Oglethorpe Power Corporation; Peabody Energy Corporation; Pinnacle West Capital Corporation; voting rights in PowerTree Carbon industry-wide effort to voluntarily Public Service Electric and Gas Company; Public would be automatically allocated in address climate change through Service Company of New Mexico; Reliant equal portions to the other members. measures designed to reduce Resources, Inc.; Tennessee Valley Authority; TXU The Operating Agreement further greenhouse gas emissions in response to Corp.; We Energies (the trade name of Wisconsin Electric Power Company and Wisconsin Gas provides that each member (or its President Bush’s recent ‘‘Climate Company); and Wisconsin Public Service designee(s) or transferee(s)) shall be VISION’’ plan, or Climate, Voluntary Corporation. entitled to claim a pro rata share of all Innovative Sector Initiatives:

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Opportunities Now. Climate VISION is for making investments in projects that its voting rights to less than five percent the first step in the President’s policy of are not expected to have any operating of the total voting rights in PowerTree encouraging industry to produce revenues, and will not engage in any Carbon, in which case the voting rights voluntary cuts in greenhouse gas active business operations. of such member or members equal to or emissions. The Bush Administration has Under the Operating Agreement of exceeding five percent of the total also proposed, as part of its Global PowerTree Carbon (‘‘Operating voting rights in PowerTree Carbon Climate Change program, the creation of Agreement’’), the business and affairs of would be automatically allocated in transferable emission control credits for the company shall be managed by its equal portions to the other members. measures that reduce greenhouse gas board of managers (‘‘Board’’). Each The Operating Agreement further emissions. member that commits to make a capital provides that each member (or its PowerTree Carbon has obtained contribution of at least $100,000 is designee(s) or transferee(s)) shall be commitments totaling approximately entitled to appoint one representative to entitled to claim a pro rata share of all $3.5 million from approximately the Board. In general, actions by the carbon that is determined to be twenty-five electric utilities, electric Board may be taken by a majority of the sequestered by PowerTree Carbon’s utility holding companies and other managers present at a meeting. efforts to which legal rights, if any, have energy concerns that will be used to However, certain actions of the Board or been obtained (‘‘Carbon Reductions’’) fund six forestation projects located in of any individual manager or any officer based on the member’s percentage Louisiana, Mississippi and Arkansas.11 require authorization by a two-thirds interest in PowerTree Carbon. A These projects will provide multiple vote of the full board. These include, member may generally utilize its share environmental benefits, including among other actions: The sale, exchange of any Carbon Reductions in connection removing from the atmosphere and or other disposition of any of the assets with its participation in any greenhouse storing over 2 million tons of CO2 over of the company greater than $20,000 in gas reporting or regulatory program or the projects’ 100-year lifetimes. Other value; the commencement of a transfer or assign such Carbon benefits will include: Restoring habitat voluntary bankruptcy proceeding; the Reductions to one or more other for birds and animals; reducing fertilizer declaration or making of any persons. inputs to waters; and stabilizing soils. distributions to members; the Xcel Energy Inc. (70–10147) Two of the projects will involve incurrence of any indebtedness by the purchase and donation of land to the company; capital expenditures Xcel Energy Inc. (‘‘Xcel’’), a registered U.S. Fish & Wildlife Service, while exceeding $20,000; and the acquisition holding company, 800 Nicollet Mall, other projects will involve obtaining or lease of any real property and any Minneapolis, Minnesota 55402, has easements for tree planting on private sale of, donation, lease or sublease filed an application under sections land. The contributions of the members affecting real property owned by the 9(a)(1), 10, and 12(f) of the Act and rule to PowerTree Carbon will be utilized for company. 54 under the Act. land acquisition and to pay the cost of New members would be admitted to Xcel directly and indirectly owns all planting tree seedlings. It is estimated PowerTree Carbon only upon the of the outstanding common stock of: that these projects will provide carbon unanimous approval of the then existing Cheyenne Light, Fuel and Power benefits of more than 400 and 450 tons members. Upon admission of any new Company; Northern States Power of CO2 per acre by years 70 and 100, member, the percentage interests of Company; Public Service Company of respectively, at a cost of less than two existing members shall be reduced Colorado; and Southwestern Public dollars per ton. accordingly. A member may transfer all Service Company (collectively, the PowerTree Carbon was organized as a or a portion of its membership interest ‘‘Utility Subsidiaries’’). Together, the for-profit limited liability company only upon receiving approval of two- Utility Subsidiaries provide retail and (‘‘LLC’’), to allow carbon or CO2 thirds of the existing members, except wholesale electric service to more than reduction credits, if and when they that, without the prior approval of the 3.2 million customers in parts of become available, to be more readily other members, a member may transfer Colorado, Kansas, Michigan, Minnesota, transferred. The LLC structure will also all or a part of its membership interest New Mexico, North Dakota, Oklahoma, allow members to take advantage of tax to an affiliate of such member or to any South Dakota, Texas, Wisconsin, and benefits of land donation. Although other member. A two-thirds vote of the Wyoming. The Utility Subsidiaries own formed as a for-profit LLC, PowerTree members also would be required to elect all or portions of seventy electric Carbon is essentially a passive medium officers of PowerTree Carbon. The generating plants in the United States members have equal voting rights, having a combined generating capability 11 Great Plains is one of eleven registered holding regardless of their percentage interests of approximately 15,246 megawatts. companies that have committed, either directly or in PowerTree Carbon. Through direct and indirect through subsidiaries, to make capital contributions The Operating Agreement provides subsidiaries, Xcel is also engaged in to PowerTree Carbon. The others are: Ameren Corporation; American Electric Power Company, that, so long as any member is a various nonutility businesses. Inc.; Cinergy Corp.; Dominion Resources, Inc.; registered holding company or Xcel requests authority to acquire, Entergy Corporation; Exelon Corporation; subsidiary company thereof, any voting directly or indirectly through one or FirstEnergy Corp.; Progress Energy, Inc.; PEPCO rights received or otherwise obtained by more subsidiaries, a membership Holdings, Inc.; and Xcel Energy, Inc. Other energy companies that have committed to make capital that member equal to or exceeding ten interest in PowerTree Carbon Company, contributions are: CLECO Corporation; The Detroit percent of the total outstanding voting LLC (‘‘PowerTree Carbon’’). The initial Edison Company; Duke Energy Corporation; rights in PowerTree Carbon shall be capital contribution of Xcel would be Minnesota Power (a division of ALLETE, Inc.); OGE automatically (and without any $100,000. Xcel also requests authority to Energy Corp.; Oglethorpe Power Corporation; Peabody Energy Corporation; Pinnacle West Capital requirement for consent on the part of sell all or a portion of its membership Corporation; Public Service Electric and Gas the affected member) allocated to the interest in PowerTree Carbon at any Company; Public Service Company of New Mexico; other members in equal portions such time to any of its associate companies. Reliant Resources, Inc.; Tennessee Valley that no registered holding company PowerTree Carbon, a Delaware Authority; TXU Corp.; We Energies (the trade name of Wisconsin Electric Power Company and member will hold ten percent or more limited liability company, was Wisconsin Gas Company); and Wisconsin Public of voting rights in PowerTree Carbon. In organized in cooperation with the U.S. Service Corporation. addition, any member may elect to limit Department of Energy (‘‘DOE’’). It is

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designed to facilitate investments by to PowerTree Carbon will be utilized for regardless of their percentage interests energy companies such as Xcel in land acquisition and to pay the cost of in PowerTree Carbon. forestation projects in the Lower planting tree seedlings. It is estimated The Operating Agreement provides Mississippi River Valley and possibly that these projects will provide carbon that, so long as any member is a other sites. benefits of more than 400 and 450 tons registered holding company or One proven means for reducing of CO2 per acre by years 70 and 100, subsidiary company thereof, any voting greenhouse gases is to use trees to respectively, at a cost of less than two rights received or otherwise obtained by remove CO2 from the atmosphere and dollars per ton. that member equal to or exceeding ten store it in tree biomass and roots and PowerTree Carbon was organized as a percent of the total outstanding voting soil. PowerTree Carbon is part of an for-profit limited liability company rights in PowerTree Carbon shall be industry-wide effort to voluntarily (‘‘LLC’’), to allow carbon or CO2 automatically (and without any address climate change through reduction credits, if and when they requirement for consent on the part of measures designed to reduce become available, to be more readily the affected member) allocated to the greenhouse gas emissions in response to transferred. The LLC structure will also other members in equal portions such President Bush’s recent ‘‘Climate allow members to take advantage of tax that no registered holding company VISION’’ plan, or Climate, Voluntary benefits of land donation. Although member will hold ten percent or more Innovative Sector Initiatives: formed as a for-profit LLC, PowerTree of voting rights in PowerTree Carbon. In Opportunities Now. Climate VISION is Carbon is essentially a passive medium addition, any member may elect to limit the first step in the President’s policy of for making investments in projects that its voting rights to less than five percent encouraging industry to produce are not expected to have any operating of the total voting rights in PowerTree voluntary cuts in greenhouse gas revenues, and will not engage in any Carbon, in which case the voting rights emissions. The Bush Administration has active business operations. of such member or members equal to or also proposed, as part of its Global Under the Operating Agreement of exceeding five percent of the total Climate Change program, the creation of PowerTree Carbon (‘‘Operating voting rights in PowerTree Carbon transferable emission control credits for Agreement’’), the business and affairs of would be automatically allocated in measures that reduce greenhouse gas the company shall be managed by its equal portions to the other members. emissions. board of managers (‘‘Board’’). Each The Operating Agreement further PowerTree Carbon has obtained member that commits to make a capital provides that each member (or its commitments totaling approximately contribution of at least $100,000 is designee(s) or transferee(s)) shall be $3.5 million from approximately entitled to appoint one representative to entitled to claim a pro rata share of all twenty-five electric utilities, electric the Board. In general, actions by the carbon that is determined to be utility holding companies and other Board may be taken by a majority of the sequestered by PowerTree Carbon’s energy concerns that will be used to managers present at a meeting. efforts to which legal rights, if any, have fund six forestation projects located in However, certain actions of the Board or been obtained (‘‘Carbon Reductions’’) Louisiana, Mississippi and Arkansas.12 of any individual manager or any officer based on the member’s percentage These projects will provide multiple require authorization by a two-thirds interest in PowerTree Carbon. A environmental benefits, including vote of the full board. These include, member may generally utilize its share removing from the atmosphere and among other actions: The sale, exchange of any Carbon Reductions in connection storing over 2 million tons of CO2 over or other disposition of any of the assets with its participation in any greenhouse the projects’ 100-year lifetimes. Other of the company greater than $20,000 in gas reporting or regulatory program or benefits will include: Restoring habitat value; the commencement of a transfer or assign such Carbon for birds and animals; reducing fertilizer voluntary bankruptcy proceeding; the Reductions to one or more other inputs to waters; and stabilizing soils. declaration or making of any persons. Two of the projects will involve distributions to members; the For the Commission, by the Division of purchase and donation of land to the incurrence of any indebtedness by the Investment Management, pursuant to U.S. Fish & Wildlife Service, while company; capital expenditures delegated authority. other projects will involve obtaining exceeding $20,000; and the acquisition Jill M. Peterson, easements for tree planting on private or lease of any real property and any Assistant Secretary. sale of, donation, lease or sublease land. The contributions of the members [FR Doc. 03–18931 Filed 7–24–03; 8:45 am] affecting real property owned by the BILLING CODE 8010–01–P 12 Xcel is one of eleven registered holding company. companies that have committed, either directly or New members would be admitted to through subsidiaries, to make capital contributions PowerTree Carbon only upon the SECURITIES AND EXCHANGE to PowerTree Carbon. The others are: Ameren unanimous approval of the then existing Corporation; American Electric Power Company, COMMISSION Inc.; Cinergy Corp.; Dominion Resources, Inc.; members. Upon admission of any new Entergy Corporation; Exelon Corporation; member, the percentage interests of [Release No. IC–26101; File No. 812–12924] FirstEnergy Corp.; Great Plains Energy existing members shall be reduced Incorporated; PEPCO Holdings, Inc.; and Progress accordingly. A member may transfer all ReliaStar Life Insurance Company of Energy, Inc. Other energy companies that have New York, et al. committed to make capital contributions are: or a portion of its membership interest CLECO Corporation; The Detroit Edison Company; only upon receiving approval of two- July 21, 2003. Duke Energy Corporation; Minnesota Power (a thirds of the existing members, except AGENCY: Securities and Exchange division of ALLETE, Inc.); OGE Energy Corp.; that, without the prior approval of the Commission (‘‘SEC’’ or ‘‘Commission’’). Oglethorpe Power Corporation; Peabody Energy other members, a member may transfer Corporation; Pinnacle West Capital Corporation; ACTION: Notice of application for an all or a part of its membership interest Public Service Electric and Gas Company; Public amended order pursuant to Section 6(c) Service Company of New Mexico; Reliant to an affiliate of such member or to any of the Investment Company Act of 1940 Resources, Inc.; Tennessee Valley Authority; TXU other member. A two-thirds vote of the (the ‘‘Act’’) granting exemption from Corp.; We Energies (the trade name of Wisconsin members also would be required to elect Electric Power Company and Wisconsin Gas Sections 2(a)(32) and 27(i)(2)(A) of the officers of PowerTree Carbon. The Company); and Wisconsin Public Service Act and Rule 22c–1 thereunder. Corporation. members have equal voting rights,

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APPLICANTS: ReliaStar Life Insurance be issued unless the Commission orders incorporated under the laws of Company of New York (‘‘RLNY’’), a hearing. Interested persons may Minnesota on January 2, 1973, and later Separate Account NY–B of ReliaStar request a hearing by writing to the redomiciled to Delaware. Golden Life Insurance Company of New York Secretary of the Commission and American is engaged in the business of (‘‘Account NY–B’’), Golden American serving the Applicants with a copy of writing annuities, both individual and Life Insurance Company (‘‘Golden the request, personally or by mail. group, in all states (except New York) American’’) (with RLNY, the ‘‘Life Hearing requests must be received by and the District of Columbia. Golden Companies’’), Separate Account B of the Commission by 5:30 p.m. on August American is a subsidiary of Equitable Golden American Life Insurance 15, 2003, and should be accompanied Life Insurance Company of Iowa, which, Company (‘‘Account B’’) (with Account by proof of service on the Applicant in in turn is a subsidiary of Lion NY–B, the ‘‘Accounts’’), any other the form of an affidavit or, for lawyers, Connecticut Holdings, Inc. Golden separate accounts of RLNY or Golden a certificate of service. Hearing requests American is also ultimately controlled American that support Future Contracts should state the nature of the writer’s by ING Groep N.V. For purposes of the (defined below) (collectively, the interest, the reason for the request, and Act, Golden American is the depositor ‘‘Future Accounts’’) and Directed the issues contested. Persons may and sponsor for Account B, as those Services, Inc. (‘‘DSI’’) (together, the request notification of a hearing by terms have been interpreted by the ‘‘Applicants’’). writing to the Secretary of the Commission with respect to variable SUMMARY OF THE APPLICATION: Commission. annuity separate accounts. Golden Applicants hereby amend and restate an ADDRESSES: Secretary, Securities and American also serves as depositor for application originally filed on January Exchange Commission, 450 Fifth Street, several currently existing Future 31, 2003 for an order to amend an NW., Washington, DC 20549–0609. Accounts, one or more of which may existing order 1 (‘‘Existing Order’’) to: (1) Applicant, c/o Linda Senker, Esq., support obligations under Future Add Golden American, Account B, and Golden American Life Insurance Contracts. Golden American may DSI (collectively, ‘‘Additional Company, 1475 Dunwoody Drive, West establish one or more additional Future Applicants’’) as parties to the Existing Chester, Pennsylvania 19380. Accounts for which it will serve as depositor. Order, and (2) permit the Additional FOR FURTHER INFORMATION CONTACT: 3. Golden American established Applicants to recapture certain bonuses Curtis A. Young, Esq., Senior Counsel, Account B as a segregated investment applied to purchase payments made or Lorna J. MacLeod, Branch Chief, account under Delaware law on July 14, under (a) certain deferred variable Office of Insurance Products, Division of 1988. Under Delaware law, the assets of annuity contracts and certificates, Investment Management, at (202) 942– Account B attributable to the Account B including certain certificate data pages 0670. and endorsements, that Golden Contracts and any other variable American will issue through Account B SUPPLEMENTARY INFORMATION: Following annuity contracts through which (the ‘‘Account B Contracts’’) and under is a summary of the Application. The interests in the Account are issued are (b) contracts and certificates, including Application is available for a fee from owned by Golden American but are held certain certificate data pages and the Commission’s Public Reference separately from all other assets of endorsements, that the Life Companies Branch, 450 Fifth Street, NW., Golden American, for the benefit of the may issue in the future through Account Washington, DC 20549–0102 (tel. (202) owners of, and the persons entitled to B or the Future Accounts of the Life 942–8090). payment under, Contracts, issued Companies (together with Account B, Applicants’ Representations through the Account. Consequently, the ‘‘Accounts’’) and that are such assets are not chargeable with substantially similar in all material 1. RLNY is a stock life insurance liabilities arising out of any other respects to the deferred variable annuity company originally incorporated under business that Golden American may contracts (‘‘Account NY–B Contracts’’) the laws of New York (originally conduct. Income, gains and losses, covered by the Existing Order incorporated under the name Morris realized or unrealized, from each (collectively, the ‘‘Future Contracts’’ Plan Insurance Society) on June 11, subaccount of the Account B, are and together with the Account B 1917. RLNY is engaged in the business credited to or charged against that Contracts, the ‘‘Contracts’’). Applicants of writing life insurance and annuities, subaccount without regard to any other also request that the order being sought both individual and group, and is income, gains or losses of Golden extend to any National Association of authorized to do business in all 50 American. Account B is a ‘‘separate Securities Dealers, Inc. (‘‘NASD’’) states. RLNY is a wholly-owned account’’ as defined by Rule 0–1(e) member broker-dealer controlling or subsidiary of Security-Connecticut Life under the Act, and is registered with the controlled by, or under common control Insurance Company, which is a wholly- Commission as a unit investment trust. with any Additional Applicant, whether owned subsidiary of ReliaStar Life 4. Each of the Accounts currently is existing or created in the future, that Insurance Company. RLNY is ultimately divided into a number of subaccounts. serves as a distributor or principal controlled by ING Groep N.V., a global Each subaccount invests exclusively in underwriter of the Contracts offered financial services holding company shares representing an interest in a through the Accounts (collectively with approximately $470.9 billion in separate corresponding investment ‘‘Affiliated Broker-Dealers’’). assets as of December 31, 2002. As of portfolio of one of several series-type FILING DATE: The Application was filed December 31, 2002, Golden American open-end management investment on January 31, 2003, and amended and had assets of approximately $17.6 companies. The assets of each Account restated on June 4, 2003, and June 27, billion. For purposes of the Act, RLNY support one or more varieties of variable 2003. is the depositor and sponsor of Account annuity contacts, including the NY–B as those terms have been Contracts. Account NY–B is registered HEARING OR NOTIFICATION OF HEARING: interpreted by the Commission with with the Commission as a unit An order granting the application will respect to variable annuity separate investment trust (File No. 811–7935), and interests in the Account to be 1 ReliaStar Life Insurance Company of New York, accounts. Investment Company Act Release No. 25875 (Jan. 2. Golden American is a stock life offered through the Contracts have been 22, 2003) (File No. 812–12914). insurance company originally registered under the 1933 Act on Form

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N–4 (File No. 333–85618). Account B is otherwise deducts a charge for premium Number of full years since Charge registered with the Commission as a taxes upon surrender or annuitization of payment of each premium (in percent) unit investment trust (File No. 811– the Contract or upon the payment of a 5626), and interests in the Account to be death benefit, depending upon the 8+ ...... 0.0 offered through the Contracts have been jurisdiction. The Contracts provide for registered under the 1933 Act on Form an annual administrative charge of $30 10. No CDSC applies to contract value N–4 (File No. 333–101481). that RLNY or Golden American, as representing an annual free withdrawal 5. DSI is a wholly owned subsidiary applicable, deducts on each Contract amount or to contract value in excess of of Lion Connecticut Holdings, Inc. It Anniversary and upon a full surrender aggregate premium payments (less prior serves as the principal underwriter of a of a Contract and a daily administrative withdrawals of premium payments) number of RLNY and Golden American charge deducted from the assets of the (‘‘earnings’’). The CDSC is calculated separate accounts registered as unit Account at an annual rate of 0.15% of using the assumption that premium investment trusts under the Act, the Account’s average daily net assets. payments are withdrawn on a first-in, including the Accounts, and is the A daily mortality and expense risk first-out basis. The CDSC also is distributor of variable annuity contracts charge is deducted from the assets of the calculated using the assumption that issued through such separate accounts, Accounts at the following annual rates: contract value is withdrawn in the including the Contracts. DSI is Account NY–B Contracts: 0.90% for following order: (1) The annual free registered as a broker-dealer under the Option Package I, 1.10% for Option withdrawal amount for that contract Securities Exchange Act of 1934 and is Package II, and 1.25% for Option year, (2) premium payments, and (3) a member of the National Association of Package III, of the Account’s average earnings. The annual free withdrawal Securities Dealers, Inc. (the ‘‘NASD’’). daily net assets. Account B Contracts: amount is 10% of contract value, 6. The Contracts are deferred 0.95% for Option Package I, 1.15% for measured at the time of withdrawal, less combination variable and fixed annuity Option Package II, and 1.30% for Option any prior withdrawals made in that contracts that RLNY and Golden Package III, of the Account’s average contract year. Under Option Package III, American may issue to individuals or daily net assets. The Contracts also any unused percentage of the 10% free groups on a ‘‘non-qualified’’ basis or in provide for a charge of $25 for each withdrawal amount from a contract year connection with employee benefit plans transfer of contract value in excess of 12 may carry forward into successive that receive favorable federal income tax transfers per contract year. RLNY and contract years, based on the percentage treatment under Sections 401, 403(b), Golden American currently anticipate remaining after the last withdrawal in a 408, 408A or 457 of the Internal waiving this charge for the foreseeable contract year. However, under Option Revenue Code of 1986, as amended (the future. Lastly, the Contracts have a Package III, the accumulated free ‘‘Code’’). surrender charge in the form of a withdrawal amount may not exceed 7. The Contracts make available a contingent deferred sales charge. 30% of contract value. number of subaccounts of the Accounts 9. The contingent deferred sales 11. If an owner dies before the to which owners may allocate net charge (‘‘CDSC’’) is equal to the annuity start date, the Contracts premium payments and associated percentage of each premium payment provide, under most circumstances, for bonus credits (described below) and to surrendered or withdrawn. The CDSC is a death benefit payable to a beneficiary, which owners may transfer contract separately calculated and applied to computed as of the date RLNY or value. The Contracts also offer fixed- each premium payment at any time that Golden American, as applicable, interest allocation options under which the payment (or part of the payment) is receives written notice and due proof of RLNY or Golden American, as surrendered or withdrawn. The CDSC death. The death benefit payable to the applicable, credit guaranteed rates of applicable to each premium payment beneficiary depends on whether the interest for various periods. Transfers of diminishes as the payment ages. owner selected Option Package I, II or contract value among and between the The Account NY–B Contract schedule III. Each option package provides a subaccounts and, subject to certain is as follows: death benefit upon the death of the restrictions, among and between the owner which death benefit is based subaccounts and the fixed-interest Number of full years since Charge upon the highest amount payable under options, may be made at any time. The payment of each premium (in percent) the separate death benefit options Contracts offer a variety of annuity available under that option package. payment options to owners. In the event less than 1 ...... 6.0 Under the Account NY–B Contracts, the of an owner’s (or, in certain 2 ...... 6.0 death benefit options available under circumstances, an annuitant’s) death 3 ...... 6.0 4 ...... 6.0 the option packages include: prior to the annuity commencement 5 ...... 5.0 (1) The Standard Death Benefit which date, beneficiaries may elect to receive 6 ...... 4.0 equals return of premium, less credits death benefits in the form of one of the 7 ...... 3.0 applied since or within 12 months prior annuity payment options instead of a 8+ ...... 0.0 to death, reduced pro rata for lump sum. In general, the Contracts withdrawals; offer all of the features typically found The Account B Contract schedule is (2) the contract value on the claim in variable annuity contracts today. as follows: date, less credits applied since or within 8. The Contracts generally may only 12 months prior to death; be purchased with a minimum initial Number of full years since Charge (3) the Annual Ratchet death benefit premium of $15,000 ($1,500 for certain payment of each premium (in percent) which equals the maximum contract employee benefit plans) under Option value on each contract anniversary less than 1 ...... 7.0 Package I and $5,000 ($1,500 for certain 2 ...... 7.0 occurring on or prior to attainment of employee benefit plans) for Option 3 ...... 6.0 age 90, adjusted for new premiums and Packages II and III. RLNY or Golden 4 ...... 6.0 credits and reduced pro rata for American, as applicable, may deduct a 5 ...... 5.0 withdrawals, less credits applied since premium tax charge from premium 6 ...... 4.0 or within 12 months prior to death; and payments in certain states, but 7 ...... 3.0 (4) return of premium.

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Under Option Package I, the death a percentage of contract value) is 0.50%. either by ‘‘purchasing’’ accumulation benefit payable is the greater of (1), (2) The charge is payable for the first seven units of an appropriate subaccount or and (4). Under Option Package II, the contract years. The charge is deducted adding to the owner’s fixed interest death benefit payable is the greatest of from the contract value in the allocation option values. (1), (2), (3) and (4). Under Option subaccounts and is also deducted from 15. With regard to variable contract Package III, the death benefit payable is amounts in fixed interest allocations by value, several consequences flow from the greatest of (1), (2), (3) and (4). crediting a lower interest rate. the foregoing. First, increases in the Under the Account B Contracts, the 13. Under the bonus credit provision, value of accumulation units death benefit options available under RLNY or Golden American, as representing bonus credits accrue to the the option packages include: applicable, recaptures or retains the owner immediately, but the initial value (1) The Standard Death Benefit which credited amount in the event that the of such units only belongs to the owner equals return of premium, less credits owner exercises his or her cancellation when, or to the extent that, each vests. applied since or within 12 months prior right during the ‘‘free look’’ period. Second, decreases in the value of to death, reduced pro rata for RLNY or Golden American, as accumulation units representing bonus withdrawals; applicable, recaptures bonus credits credits do not diminish the dollar (2) the contract value on the claim, applied after or within twelve months of amount of contract value subject to less credits applied since or within 12 the date as of which a death benefit is recapture. Therefore, additional months prior to death; computed. RLNY or Golden American, accumulation units must become (3) the Annual Ratchet death benefit as applicable, also will recapture part or subject to recapture as their value which equals the maximum contract all of the credited amount upon decreases. Stated differently, the value on each contract anniversary surrender or withdrawal. The portion of proportionate share of any owner’s occurring on or prior to attainment of the credit deducted is based on the variable contract value (or the owner’s age 90, adjusted for new premiums and percentage of first year premium interest in the Account) that RLNY or credits and reduced pro rata for withdrawn and the contract year of Golden American, as applicable, can withdrawals, less credits applied since surrender or withdrawal. The amount ‘‘recapture’’ increases as variable or within 12 months prior to death; recaptured is calculated separately and contract value (or the owner’s interest in (4) the 5% Roll-Up death benefit applied to each premium payment at the Account) decreases. This dilutes which equals the lesser of premiums, any time that the payment (or part of the somewhat the owner’s interest in the plus credits, if applicable, adjusted for payment) is surrendered or withdrawn. Account vis-a-vis RLNY or Golden withdrawals and transfers, accumulated The recapture percentage applicable to American, as applicable, and other at 5% for Covered Funds or Excluded each premium payment is level for the owners, and in his or her variable Funds and 0% for Special Funds until first two contract years and diminishes contract value vis-a-vis RLNY or Golden the earlier of attainment of age 90 or to zero after the seventh contract year. American, as applicable. Lastly, because reaching the cap (equal to 3 times all The schedule is as follows: it is not administratively feasible to premium payments and credits, if track the unvested value of bonus applicable, as reduced by adjustments Percentage credits in the Account, RLNY or Golden for withdrawals) and thereafter at 0%, of premium American, as applicable, deducts the and the cap. credit for- daily mortality and expense risk charge Under Option Package I, the death feited Contract year of surrender or (based on and the daily administrative charge benefit payable is the greater of (1) and withdrawal percentage from the entire net asset value of the (2). Under Option Package II, the death of first year Account. As a result, the daily mortality benefit payable is the greatest of (1), (2) premium and expense risk charge and the daily withdrawn) and (3). Under Option Package III, the administrative charge paid by any death benefit payable is the greatest of Years 1–2 ...... 100 owner is greater than that which he or (1), (2), (3) and (4). Years 3–4 ...... 75 she would pay without the bonus credit. 12. RLNY and Golden American Years 5–6 ...... 50 16. Applicants request that the intend to offer a bonus credit provision Year 7 ...... 25 Commission issue an amended order under the Contracts. At the time of Years 8+ ...... 0 pursuant to Section 6(c) of the Act, application, an owner may elect the adding Additional Applicants as parties bonus credit provision. Under the bonus 14. No recapture percentage applies to to the Existing Order, and granting credit provision, RLNY or Golden contract value representing the annual exemptions from the provisions of American, as applicable, credits free withdrawal amount or to contract Sections 2(a)(32) and 27(i)(2)(A) of the contract value in the subaccounts and value representing earnings. Because of Act and Rule 22c–1 thereunder, to the the fixed-interest allocations with an the recapture provisions discussed extent necessary to permit Additional amount that is a percentage of the above, the value of a credit only ‘‘vests’’ Applicants to recapture bonuses under premium payment. The bonus credit or belongs irrevocably to the owner as Contracts under the same circumstances applies upon issuance of the Contract the recapture period for the credit covered by the Existing Order. and is based upon premium payments expires. As to bonus credits resulting received within the first contract year from premiums paid before the ‘‘free Legal Analysis (‘‘first year premium payments’’). RLNY look’’ period ends, no part of the credit 1. Subsection (i) of Section 27 or Golden American, as applicable, vests for the owner until the expiration provides that Section 27 does not apply allocates the bonus credit among the of the ‘‘free look’’ period. After the to any registered separate account subaccounts and fixed-interest expiration of the ‘‘free look’’ period, all supporting variable annuity contracts, allocations the owner selects in bonus credits vest in full over the 7-year or to the sponsoring insurance company proportion to the premium payment in period after RLNY or Golden American, and principal underwriter of such each investment option. The bonus as applicable, grants them. Under the account, except as provided in credit equals 4% of the first year bonus credit provision, RLNY or Golden paragraph (2) of subsection (i). premium payments. The annual charge American, as applicable, credits Paragraph (2) provides that it shall be assessed for the premium credit rider (as amounts to an owner’s contract value unlawful for a registered separate

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account or sponsoring insurance credits out of their respective general value. Similarly, RLNY’s or Golden company to sell a variable annuity account assets and the amount of the American’s recapture of any bonus contract supported by the separate credits (although not the earnings on credit could be viewed as the account unless the ‘‘* * * contract is a such amounts) would remain RLNY’s or redemption of such an interest at a price redeemable security; and * * * [t]he Golden American’s until such amounts above net asset value. If such is the case, insurance company complies with vest with the owner. Thus, to the extent then the bonus credit provisions could Section 26(e) * * *’’ that RLNY or Golden American may be viewed as conflicting with Rule 22c– 2. Section 2(a)(32) defines a grant and recapture bonus credits in l under the Act. Applicants contend, ‘‘redeemable security’’ as any security, connection with variable contract value, however, that the bonus credits do not other than short-term, paper, under the it would not, at either time, deprive any violate Rule 22c–1 under the Act. The terms of which the holder, upon owner of his or her then proportionate bonus credit provisions do not give rise presentation to the issuer, is entitled to share of the Account’s assets. It is the to either of the evils that Rule 22c–1 was receive approximately his proportionate nature of the bonus recapture provisions designed to address. The Rule was share of the issuer’s current net assets, as they apply to variable contract value intended to eliminate or reduce, as far or the cash equivalent thereof. that an owner would obtain a benefit as was reasonably practicable, the 3. Section 22(c) of the Act authorizes from a bonus credit in a rising market dilution of the value of outstanding the Commission to make rules and because any earnings on the bonus redeemable securities of registered regulations applicable to registered credit amount would vest with him or investment companies through their investment companies and to principal her immediately. Over time this would, sale at a price below net asset value or underwriters of, and dealers in, the of course, cause the owner’s share of their redemption at a price above net redeemable securities of any registered both the Contract’s variable contract asset value, or other unfair results, investment company. Rule 22c–1 value and the Account’s net assets to be including speculative trading thereunder imposes requirements with greater on a relative basis than it would practices.’’ respect to both the amount payable on have been without the bonus credit. 8. Applicants argue that the evils redemption of a redeemable security Conversely, in a falling market an owner prompting the adoption of Rule 22c–1 and the time as of which such amount would suffer a detriment from a bonus were primarily the result of backward is calculated. Specifically, Rule 22c–1, credit because losses on the bonus pricing, the practice of basing the price in pertinent part, prohibits a registered credit amount also would ‘‘vest’’ with of a mutual fund share on the net asset investment company issuing any him or her immediately. As explained value per share determined as of the redeemable security, a person above, over time this would cause the close of the market on the previous day. designated in such issuer’s prospectus owner’s share of both the Contract’s Backward pricing permitted certain as authorized to consummate variable contract value and the investors to take advantage of increases transactions in any such security, and a Account’s net assets to decrease on a or decreases in net asset value that were principal underwriter of, or dealer in, relative basis. not yet reflected in the price, thereby such security from selling, redeeming or 6. Applicants do not believe that the diluting the values of outstanding repurchasing any such security, except dynamics of RLNY’s or Golden shares. The proposed bonus credit at a price based on the current net asset American’s proposed bonus credit provisions pose no such threat of value of such security which is next provisions would violate Sections dilution. An owner’s interest in his or computed after receipt of a tender of 2(a)(32) or 27(i)(2)(A) of the Act. To her contract value or in the Account such security for redemption, or of an begin with, Section 2(a)(32) defines a would always be offered under the order to purchase or sell such security. redeemable security as one ‘‘under the Contracts at a price determined on the 4. Section 6(c) of the Act authorizes terms of which the holder, upon basis of net asset value. The granting of the Commission to exempt any person, presentation to the issuer, is entitled to a bonus credit does not reflect a security, or transaction or any class of receive approximately his proportionate reduction of that price. Instead, RLNY persons, securities, or transactions from share of the issuer’s current net asset or Golden American will purchase with any provision or provisions of the Act value.’’ Taken together, these two their own money on behalf of the and/or any rule under it if, and to the sections of the Act do not require that owner, an interest in the Account equal extent that, such exemption is necessary the holder receive the exact to the bonus credit. Because any bonus or appropriate in the public interest and proportionate share that his or her credit will be paid from RLNY’s or consistent with the protection of security represented at a prior time. Golden American’s general account and investors and the purposes fairly Therefore, the fact that the proposed not from the assets of the Account, no intended by the policy and provisions of bonus credit provisions have a dynamic dilution will occur as a result of the the Act. element that may cause the relative credit. Likewise, because RLNY or 5. Applicants submit that the ownership positions of RLNY or Golden Golden American will use general recapture of bonus credits would not, at American and a Contract owner to shift account assets to increase an owner’s any time, deprive an owner of his or her due to Account performance and the total contract value, no dilution will proportionate share of the current net vesting schedule of such credits, would occur from such an increase. assets of an Account. Until the not cause the provisions to conflict with 9. Recaptures of bonus credits result appropriate recapture period expires, Sections 2(a)(32) or 27(i)(2)(A). in a redemption of RLNY’s interest in an RLNY and Golden American retain the Nonetheless, in order to avoid any owner’s contract value or in the right to and interest in each owner’s uncertainty as to full compliance with Account at a price determined on the contract value representing the dollar the Act, Applicants seek exemptions basis of the Account’s current net asset amount of any unvested bonus credits. from these two sections. value and not at an inflated price. Therefore, if RLNY or Golden American 7. RLNY’s or Golden American’s Moreover, the amount recaptured will recaptures any bonus credit or part of a granting of a bonus credit would have always equal the amount that RLNY or bonus credit in the circumstances the result of increasing an owner’s Golden American paid from its general described above, it would merely be contract value in a way that could be account for the credits. Similarly, retrieving its own assets. RLNY and viewed as the purchase of an interest in although owners are entitled to retain Golden American would grant bonus the Account at a price below net asset any investment gains attributable to the

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bonus credits, the amount of such gains in interest, Future Accounts and Future For the Commission, by the Division of would always be computed at a price Underwriters from the provisions of Investment Management, pursuant to determined on the basis of net asset Sections 2(a)(32) and 27(i)(2)(A) of the delegated authority. value. Because neither of the harms that Act and Rule 22c–1 thereunder. The Jill M. Peterson, Rule 22c–1 was intended to address exemption of these classes of persons is Assistant Secretary. arise in connection with the proposed appropriate in the public interest and [FR Doc. 03–18992 Filed 7–24–03; 8:45 am] bonus credit provisions, the provisions consistent with the protection of BILLING CODE 8010–01–P do not conflict with the Rule. investors and the purposes fairly Nonetheless, in order to avoid any intended by the policy and provisions of uncertainty as to hill compliance with SECURITIES AND EXCHANGE the Act because all of the potential the Act, Applicants seek exemptions COMMISSION members of the class could obtain the from Rule 22c–1. foregoing exemptions for themselves on [Release No. 34–48201; File No. SR–GSCC– 10. The bonus credit recapture 2002–10] provisions are necessary for RLNY or the same basis as the Applicants, but Golden American to offer the bonus only at a cost to each of them that is not Self-Regulatory Organizations; credits. It would be unfair to RLNY or justified by any public policy purpose. Government Securities Clearing Golden American to permit owners to As discussed below, the requested Corporation; Order Approving keep their bonus credits upon their exemptions would only extend to Proposed Rule Change To Establish a exercise of the Contracts’ ‘‘free look’’ persons that in all material respects are Comprehensive Standard of Care and provision. Because no CDSC applies to the same as the Applicants. The Limitation of Liability to its Members the exercise of the ‘‘free look’’ provision, Commission has previously granted the owner could obtain a quick profit in exemptions to classes of similarly July 21, 2003. the amount of the bonus credit at situated persons in various contexts and I. Introduction RLNY’s or Golden American’s expense in a wide variety of circumstances, On October 10, 2002, the Government by exercising that right. Similarly, the including class exemptions for Securities Clearing Corporation owner could take advantage of the recapturing bonus credits under variable (‘‘GSCC’’) 1 filed with the Securities and bonus credit by taking withdrawals annuity contracts. Exchange Commission (‘‘Commission’’) within the recapture period, because the proposed rule change SR–GSCC–2002– cost of providing the bonus credit is 12. Applicants represent that Future 10 pursuant to Section 19(b)(1) of the recouped through charges imposed over Contracts will be substantially similar in Securities Exchange Act of 1934 a period of years. Likewise, because no all material respects to the Contracts (‘‘Act’’).2 Notice of the proposal was additional CDSC applies upon death of and that each factual statement and published in the Federal Register on an owner (or annuitant), a death shortly representation about the bonus credit January 14, 2003.3 The Commission after the award of bonus credits would provisions of the Contracts will be afford an owner or a beneficiary a equally true of Future Contracts. received two comment letters in response to the proposed rule change.4 similar profit at RLNY’s or Golden Applicants also represent that each For the reasons discussed below, the American’s expense. In the event of material representation made by them Commission is approving the proposed such profits to owners or beneficiaries, about Account B and DSI will be rule change. RLNY or Golden American could not equally true of Future Accounts and recover the cost of granting the bonus Future Underwriters, to the extent that II. Description credits. This is because RLNY and such representations relate to the issues The purpose of GSCC’s rule change is Golden American intend to recoup the discussed in this application. In to establish a comprehensive standard costs of providing the bonus credits particular, each Future Underwriter will of care and limitation of liability with through the charges under the Contract, be registered as a broker-dealer under respect to its members. Historically, the particularly the daily mortality and the Securities Exchange Act of 1934 and Commission has left to user-governed expense risk charge and the daily be a NASD member. clearing agencies the question of how to administrative charge. If the profits described above are permitted, certain Conclusion 1 On January 1, 2003, MBS Clearing Corporation owners could take advantage of them, (‘‘MBSCC’’) was merged into the Government reducing the base from which the daily Applicants submit that the requested Securities Clearing Corporation (‘‘GSCC’’) under charges are deducted and greatly relief therefrom is consistent with the New York law, and GSCC was renamed the Fixed increasing the amount of bonus credits exemptive relief provided under the Income Clearing Corporation (‘‘FICC’’). The functions previously performed by GSCC are now that RLNY or Golden American must Existing Order. performed by the Government Securities Division provide. Therefore, the recapture Based on the grounds summarized (‘‘GSD’’) of FICC, and the functions previously provisions are a price of offering the performed by MBSCC are now performed by the above, Applicants submit that their Mortgage-Backed Securities Division (‘‘MBSD’’) of bonus credits. RLNY and Golden exemptive request meets the standards American simply cannot offer the FICC. The GSD succeeded to the GSCC proposed set out in Section 6(c) of the Act, rule change upon the merger of MBSCC and GSCC. proposed bonus credits without the namely, that the exemptions requested To avoid confusion and maintain consistency with ability to recapture those credits in the the Notice, in this Order, we will continue to refer limited circumstances described herein. are necessary or appropriate in the to GSCC instead of the GSD of FICC. Securities 11. Applicants state that the public interest and consistent with the Exchange Act Release No. 47015 (December 17, protection of investors and the purposes 2002), 67 FR 78531 [File Nos. SR–GSCC–2002–09 Commission’s authority under Section and SR–MBSCC–2002–01]. 6(c) of the Act to grant exemptions from fairly intended by the policy and 2 15 U.S.C. 78s(b)(1). various provisions of the Act and rules provisions of the Act, and that, 3 Securities Exchange Act Release No. 47135 thereunder is broad enough to permit therefore, the Commission should grant (January 7, 2003), 68 FR 1876. orders of exemption that cover classes of the requested order. 4 Letters from Dan W. Schneider, Counsel to the Association of Global Custodians (‘‘AGC’’) (March unidentified persons. Applicants 24, 2003) and Jeffrey F. Ingber, Managing Director, request an order of the Commission that General Counsel, and Secretary, Fixed Income would exempt them, RLNY’s successors Clearing Corporation (June 12, 2003).

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allocate losses associated with, among other self-regulatory organizations and and the gross negligence liability other things, clearing agency functions.5 approved by the Commission.9 limitation of clearing banks and other service providers to which GSCC is In determining the appropriate standard III. Comment Letters of care, the Commission has reviewed dependent for certain key operational clearing agency services on a case-by- The Commission received a comment services. letter from Dan W. Schneider, Counsel case basis in order to balance the need IV. Discussion for a high degree of care at clearing to AGC, and a response comment letter agencies with the effects that liabilities from GSCC. The AGC letter asserted that Section 19(b) of the Act directs the may have on clearing agency operations, registered clearing agencies should be Commission to approve a proposed rule change of a self-regulatory organization costs, and safekeeping of securities and subject to a negligence standard of care if it finds that such proposed rule funds.6 Because standards of care in safeguarding funds and securities and change is consistent with the represent an allocation of rights and in performing processing obligations requirements of the Act and the rules liabilities between a clearing agency and relating to custody functions. In addition, registered clearing agencies and regulations thereunder applicable to its members or participants, which are such organization. Section 17A(b)(3)(F) sophisticated financial entities, the like GSCC that provide the securities markets and the securities processing of the Act requires that the rules of a Commission has refrained from clearing agency be designed to promote establishing a unique federal standard of community with centralized essential utility services and that become focal the prompt and accurate clearance and care and has allowed clearing agencies 10 points for concentrated risk should meet settlement of securities transactions. and other self-regulatory organizations at least the same standard of care that The Commission believes that approval and their participants to establish their is required of commercial custodians of GSCC’s rule change is consistent with own standards of care.7 under Commission rules designed to this Section because it will permit the GSCC believes that adopting a rule 8 protect investors. Finally, AGC opined resources of GSCC to be appropriately limiting GSCC’s liability to its members that permitting registered clearing utilized for promoting the prompt and to direct losses caused by GSCC’s gross agencies that are central facilities in the accurate clearance and settlement of negligence, willful misconduct, or national clearance and settlement securities. violation of Federal securities laws for system to conform their conduct to gross Although the Act does not specify the which there is a private right of action: negligence while requiring bank standard of care that must be exercised (1) Memorializes an appropriate custodians to adhere to a higher by registered clearing agencies, the commercial standard of care that will standard of care creates a liability Commission has determined that a protect GSCC from undue liability; (2) differential for which no appropriate gross-negligence standard of care is acceptable for non-custodial functions permits the resources of GSCC to be statutory or policy basis exists. where the parties contractually agree to appropriately utilized for promoting the GSCC responded that the proposed limit liability.11 GSCC’s functions are prompt and accurate clearance and rule change would not affect GSCC’s standard of performance because settlement of securities; and (3) is 10 15 U.S.C. 78q–1(b)(3)(F). consistent with similar rules adopted by registered clearing agencies such as 11 In the release setting forth standards to be used GSCC are subject to rigorous regulatory by the Division of Market Regulation in evaluating 5 Securities Exchange Act Release Nos. 20221 standards for their operations under clearing agency registration applications, the (September 23, 1983), 48 FR 45167 and 22940 Section 17A of the Act. The proposed Division of Market Regulation urged clearing (February 24, 1986), 51 FR 7169. agencies to embrace a strict standard of care in rule change only relates to GSCC’s safeguarding participants’ funds and securities. 6 Id. standard of liability and not to the Securities Exchange Act Release No. 16900 (June 7 Id. Commission’s regulatory operational 17, 1980), 45 FR 4192. In the release granting 8 The language of new Section 3 to Rule 39 is as standards for GSCC. Also, GSCC has permanent registration to The Depository Trust follows: Section 3—Limitation on Liability of the Company, the National Securities Clearing Corporation Notwithstanding any other provision in operated for 15 years with a gross Corporation, and several other clearing agencies, the Rules: negligence standard of liability under however, the Commission indicated that it did not (a) The Corporation will not be liable for any SEC temporary registration orders believe that sufficient justification existed at that action taken, or any delay or failure to take any without any financial loss to its time to require a unique federal standard of care for action, hereunder or otherwise to fulfill the registered clearing agencies. Securities Exchange Corporation’s obligations to its Members, other than members or third parties arising from a Act Release No. 20221 (October 3, 1983), 48 FR for losses caused directly by the Corporation’s gross failure of performance by GSCC. Neither 45167. In a subsequent release, the Commission negligence, willful misconduct, or violation of the Act nor prior Commission orders stated that the clearing agency standard of care and Federal securities laws for which there is a private require that a particular level of liability the allocation of rights and liabilities between a right of action. Under no circumstances will the clearing agency and its participants applicable to Corporation be liable for the acts, delays, omissions, for private rights of action be assumed clearing agency services generally may be set by the bankruptcy, or insolvency, of any third party, by registered clearing agencies, as clearing agency and its participants. In the same including, without limitation, any depository, distinguished from the high regulatory release, the Commission stated that it should review custodian, sub-custodian, clearing or settlement standards imposed by the Commission clearing agency proposed rule changes in this area system, transfer agent, registrar, data on a case-by-case basis and balance the need for a communication service or delivery service (‘‘Third for clearing agency operations under high degree of clearing agency care with the effect Party’’), unless the Corporation was grossly Section 17A. In addition, GSCC resulting liabilities may have on clearing agency negligent, engaged in willful misconduct, or in members are sophisticated parties who operations, costs, and safeguarding of securities and violation of Federal securities laws for which there can best determine the allocation of funds. Securities Exchange Act Release No. 22940 is a private right of action in selecting such Third (February 24, 1986), 51 FR 7169. Subsequently, in Party; and GSCC risk for unintentional loss. GSCC a release granting temporary registration as a (b) Under no circumstances will the Corporation pointed out that adoption of a universal clearing agency to The Intermarket Clearing be liable for any indirect, consequential, incidental, simple negligence standard of liability Corporation, the Commission stated that a gross special, punitive or exemplary loss or damage for GSCC would likely result in a gap negligence standard of care may be appropriate for (including, but not limited to, loss of business, loss certain noncustodial functions that, consistent with of profits, trading losses, loss of opportunity and between the liability limitation of GSCC minimizing risk mutualization, a clearing agency, loss of use) howsoever suffered or incurred, its board of directors, and its members determine regardless of whether the Corporation has been 9 See, e.g., Securities Exchange Act Release Nos. to allocate to individual service users. Securities advised of the possibility of such damages or 37421 (July 11, 1996), 61 FR 37513 [SR–CBOE–96– Exchange Act release No. 26154 (October 3, 1988), whether such damages otherwise could have been 02] and 37563 (August 14, 1996), 61 FR 43285 [SR– 53 FR 39556. Finally, in a release granting the foreseen or prevented. PSE–96–21]. Continued

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non-custodial in that it does not hold its comment letter of AGC and finds that Exchange Commission (‘‘Commission’’) members funds or securities. GSCC AGC’s concerns about the performance proposed rule change SR–GSCC–2002– relies on clearing banks to perform level of GSCC operating under a gross 11 pursuant to Section 19(b)(1) of the custodial services for Government negligence standard of care and Securities Exchange Act of 1934 securities, which are uncertificated, and limitation of liability are addressed by (‘‘Act’’).2 Notice of the proposal was for funds. It is reasonable for GSCC, the extensive regulatory oversight to published in the Federal Register on which is member-owned and governed, which GSCC is subject as a registered June 17, 2003.3 For the reasons and its members to agree among clearing agency and the fact GSCC is not discussed below, the Commission is themselves through board approval of changing its financial and operational approving the proposed rule change. the proposed rule change and through standards with the adoption of a gross II. Description the proposed rule change notice and negligence standard of care and approval process to agree and to limitation of liability.15 The purpose of the proposed rule contract with one another in a change is to reduce the permitted use of cooperative arrangement as to how to V. Conclusion letters of credit (‘‘LCs’’) to twenty-five allocate GSCC’s liability among GSCC On the basis of the foregoing, the percent of a member’s required clearing and themselves. Commission finds that the proposed fund deposit. One of GSCC’s most In its order granting temporary rule change is consistent with the important risk management tools is its registration as a clearing agency, the requirements of the Act and in maintenance of clearing fund collateral. Commission expressed concerned that particular section 17A of the Act and GSCC’s clearing fund is comprised of GSCC’s failure to perform accurately the rules and regulations thereunder. cash, certain netting-eligible securities, and timely the comparison service It is therefore ordered, pursuant to and eligible LCs. The purposes served could adversely affect the ability of section 19(b)(2) of the Act, that the by the clearing fund are (1) to have on GSCC members to deliver securities and proposed rule change (File No. SR– deposit from each netting member assets effect trade settlements. Considering the GSCC–2002–10) be and hereby is sufficient to satisfy any losses that may size of the Government securities approved. be incurred by GSCC as the result of the market and the next-day time frame for For the Commission by the Division of default by the member and the resultant trade settlements, the Commission Market Regulation, pursuant to delegated close-out of that member’s settlement deemed it appropriate that GSCC amend authority.16 positions and (2) to ensure that GSCC its standard of care to an ordinary Jill M. Peterson, has sufficient liquidity at all times to negligence standard of care in Assistant Secretary. meet its payment and delivery performing all functions affecting obligations. [FR Doc. 03–18990 Filed 7–24–03; 8:45 am] member settlements of Government Currently, GSCC’s rules permit up to securities. 12 The Commission, BILLING CODE 8010–01–P 70 percent of a member’s required recognizing that GSCC’s members are clearing fund deposit to be in the form best suited to allocate GSCC’s rights and SECURITIES AND EXCHANGE of LCs. Although GSCC believes that it liabilities, has determined and finds COMMISSION will always receive funds from the that, given the non-custodial nature of presentment of an LC for payment, GSCC’s services, the extensive and [Release No. 34–48200; File No. SR–GSCC– GSCC has recognized that in a period of rigorous financial and operational 2002–11] market crisis there is the potential that regulatory oversight to which GSCC is GSCC might not receive the funds on a Self-Regulatory Organizations; subject,13 and GSCC’s exemplary level timely basis. To ensure that GSCC can Government Securities Clearing of performance,14 a gross negligence always meet its liquidity needs on a Corporation; Order Approving standard of care is appropriate for timely basis in the unlikely event of a Proposed Rule Change To Reduce the GSCC. member default and in times of market Permitted Use of Letters of Credit to The Commission has given thoughtful crisis, GSCC is reducing the permitted Twenty-Five Percent of a Member’s and careful consideration to the use of LCs to 25 percent of a member’s Required Clearing Fund Deposit required clearing fund deposit. Thus, approval of temporary registration as a clearing July 21, 2003. the minimum level of cash and agency to the International Securities Clearing securities required to be maintained on Corporation, the Commission indicated that I. Introduction historically it has left to user-governed clearing deposit will increase from 30 percent to agencies the question of how to allocate losses On October 10, 2002, the Government 75 percent of a member’s required associated with noncustodial, data processing, Securities Clearing Corporation clearing fund deposit.4 clearing agency functions and has approved 1 clearing agency services embodying a gross- (‘‘GSCC’’) filed with the Securities and negligence standard of care. Securities Exchange succeeded to the GSCC proposed rule change upon Act Release No. 26812 (May 12, 1989), 54 FR 21691. 15 The Commission notes that the rule change the merger of MBSCC and GSCC. To avoid 12 Securities Exchange Act Release No. 25740 does not alleviate GSCC from liability for violation confusion and maintain consistency with the (May 24, 1988), 53 FR 19639. of the Federal securities laws where there exists a Notice, in this Order we will continue to refer to 13 GSCC must have its rule changes approved by private right of action and therefore is not designed GSCC as such. Securities Exchange Act Release No. the Commission and is the subject of frequent to adversely affect GSCC’s compliance with the 47015 (December 17, 2002), 67 FR 78531 [File Nos. Commission examinations for compliance with its Federal securities laws and private rights of action SR–GSCC–2002–09 and SR–MBSCC–2002–01]. rules and those of the Commission. As directed by that exist for violations of the Federal securities 2 15 U.S.C. 78s(b)(1). Congress, the Commission cannot approve GSCC’s laws. 3 Securities Exchange Act Release No. 48016 proposed rule changes if they are inconsistent with 16 17 CFR 200.30–30(a)(12). (June 11, 2003), 68 FR 35925. Section 17A of the Act, including being inimical to 1 On January 1, 2003, MBS Clearing Corporation 4 The new LC limitation will not affect the the public interest or the protection of investors. (‘‘MBSCC’’) was merged into GSCC under New York requirement that certain non-US GSCC members 14 Over the past 15 years, GSCC has demonstrated law, and GSCC was renamed the Fixed Income post additional collateral in the form of LCs to a high level of responsibility in performing its non- Clearing Corporation (‘‘FICC’’). The functions protect GSCC against legal risk presented by the custodial functions and has had appropriate previously performed by GSCC are now performed insolvency laws in those members’ home countries. standards in place to ensure adequate performance. by the Government Securities Division (‘‘GSD’’) of These members will not be required to increase the As a result, GSCC has operated without financial FICC, and the functions previously performed by amount of their deposit that is in the form of cash loss to its members or third parties arising from its MBSCC are now performed by the Mortgage-Backed and securities from 30 percent to 75 percent of their failure to perform. Securities Division (‘‘MBSD’’) of FICC. The GSD required clearing fund deposit.

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III. Discussion violations of rules and/or policies proposed rule change (SR–NYSE–2003– Section 17A(b)(3)(F) of the Act (‘‘List’’) by adding to the List failure to 14) be, and it hereby is, approved. requires that the rules of a clearing comply with the provisions of NYSE For the Commission, by the Division of agency be designed to assure the Rules 60, 124(A), 130, 407A, 411(b), Market Regulation, pursuant to delegated safeguarding of securities and funds 440I, and 445(4). authority.8 which are in the custody or control of The proposed rule change was Jill M. Peterson, the clearing agency or for which it is published for comment in the Federal Assistant Secretary. responsible.5 The Commission finds Register on June 11, 2003.3 The [FR Doc. 03–18930 Filed 7–24–03; 8:45 am] that GSCC’s proposed rule change is Commission received no comments on BILLING CODE 8010–01–P consistent with this requirement the proposal. because it will protect GSCC and its The Commission finds that the members by ensuring that GSCC has proposed rule change is consistent with SECURITIES AND EXCHANGE adequate liquidity resources in the the requirements of the Act and the COMMISSION event of member insolvency or during rules and regulations thereunder times of market crisis. applicable to a national securities [Release No. 34–48195; File No. SR–NYSE– IV. Conclusion exchange 4 and, in particular, the 2003–13] requirements of section 6 of the Act 5 On the basis of the foregoing, the and the rules and regulations Self-Regulatory Organizations; New Commission finds that the proposed thereunder. The Commission finds York Stock Exchange, Inc.; Order rule change is consistent with the specifically that the proposed rule Granting Approval of Proposed Rule requirements of the Act and in change is consistent with section Change To Amend the Fine Schedule particular Section 17A of the Act and 6(b)(6) 6 of the Act because it should for Individuals and Member the rules and regulations thereunder. enable the Exchange to appropriately Organizations Who Commit Minor Rule It is therefore ordered, pursuant to discipline its members and others Violations Under Rule 476A section 19(b)(2) of the Act, that the associated with its members for July 17, 2003. proposed rule change (File No. SR– violation of the provisions of this title, On April 28, 2003, the New York GSCC–2002–11) be and hereby is the rules or regulations thereunder, or Stock Exchange, Inc. (‘‘NYSE’’ or approved. the rules of the Exchange. ‘‘Exchange’’) filed with the Securities For the Commission by the Division of In approving this proposed rule Market Regulation, pursuant to delegated and Exchange Commission authority.6 change, the Commission in no way (‘‘Commission’’), pursuant to section minimizes the importance of Jill M. Peterson, 19(b)(1) of the Securities Exchange Act compliance with these rules, and all of 1934 (‘‘Act’’) 1 and Rule 19b–4 Assistant Secretary. other rules subject to the imposition of thereunder,2 a proposed rule change to [FR Doc. 03–18991 Filed 7–24–03; 8:45 am] fines under the Exchange’s minor rule amend the fine schedule for individuals BILLING CODE 8010–01–P violation plan. The Commission and member organizations who commit believes that the violation of any self- minor rule violations under NYSE Rule regulatory organization’s rules, as well 476A. SECURITIES AND EXCHANGE as Commission rules, is a serious matter. COMMISSION The proposed rule change was However, in an effort to provide the published for comment in the Federal [Release No. 34–48194; File No. SR–NYSE– Exchange with greater flexibility in Register on June 11, 2003.3 The 2003–14] addressing certain violations, the Commission received no comments on Exchange’s minor rule violation plan the proposal. Self-Regulatory Organizations; New provides a reasonable means to address The Commission finds that the York Stock Exchange, Inc.; Order rule violations that do not rise to the proposed rule change is consistent with Granting Approval of Proposed Rule level of requiring formal disciplinary the requirements of the Act and the Change To Add NYSE Rules 60, 124(A), proceedings. The Commission expects rules and regulations thereunder 130, 407A, 411(b), 440I, and 445(4) to that the NYSE will continue to conduct applicable to a national securities the ‘‘List of Exchange Rule Violations surveillance with due diligence, and exchange 4 and, in particular, the and Fines Applicable Thereto Pursuant make a determination based on its requirements of section 6 of the Act 5 to NYSE Rule 476A’’ findings whether fines of more or less and the rules and regulations than the recommended amount are July 17, 2003. thereunder. The Commission finds appropriate for violations of rules under specifically that the proposed rule On May 5, 2003, the New York Stock the Exchange’s minor rule violation change is consistent with section Exchange, Inc. (‘‘NYSE’’ or ‘‘Exchange’’) plan, on a case by case basis, or if a 6(b)(6) 6 of the Act because it should filed with the Securities and Exchange violation requires formal disciplinary enable the Exchange to appropriately Commission (‘‘Commission’’), pursuant action. to section 19(b)(1) of the Securities discipline members and others Exchange Act of 1934 (‘‘Act’’) 1 and Rule It is therefore ordered, pursuant to 7 19b–4 thereunder,2 a proposed rule section 19(b)(2) of the Act, that the 8 17 CFR 200.30–3(a)(12). change to revise the ‘‘List of Exchange 1 15 U.S.C. 78s(b)(1). Rule Violations and Fines Applicable 3 See Securities Exchange Act Release No. 47984 2 17 CFR 240.19b–4. Thereto Pursuant to NYSE Rule 476A’’ (June 4, 2003), 68 FR 35045. 3 See Securities Exchange Act Release No. 47985 4 for imposition of fines for minor In approving this proposed rule change, the (June 4, 2003), 68 FR 35046. Commission has considered the proposed rule’s 4 In approving this proposed rule change, the impact on efficiency, competition, and capital Commission has considered the proposed rule’s 5 15 U.S.C. 78q–1(b)(3)(F). formation. 15 U.S.C. 78c(f). impact on efficiency, competition, and capital 6 17 CFR 200.30–3(a)(12). 5 15 U.S.C. 78f. formation. 15 U.S.C. 78c(f). 1 15 U.S.C. 78s(b)(1). 6 15 U.S.C. 78f(b)(6). 5 15 U.S.C. 78f. 2 17 CFR 240.19b–4. 7 15 U.S.C. 78s(b)(2). 6 15 U.S.C. 78f(b)(6).

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associated with its members for location: Brown, Greene, Monroe, Kansas and 353011 for Oklahoma. For violation of Exchange rules. Owen, and Sullivan Counties in the economic injury, the numbers are In approving this proposed rule State of Indiana; and Clark, Edgar, and 9W4400 for Kansas and 9W4500 for change, the Commission in no way Kankakee Counties in the State of Oklahoma. minimizes the importance of Illinois. All other counties contiguous to (Catalog of Federal Domestic Assistance compliance with these rules, and all the above named primary counties have Program Nos. 59002 and 59008) other rules subject to the imposition of been previously declared. Dated: July 17, 2003. fines under the Exchange’s minor rule All other information remains the violation plan. The Commission same, i.e., the deadline for filing Hector V. Barreto, believes that the violation of any self- applications for physical damage is Administrator. regulatory organization’s rules, as well September 9, 2003, and for economic [FR Doc. 03–18987 Filed 7–24–03; 8:45 am] as Commission rules, is a serious matter. injury the deadline is April 12, 2004. BILLING CODE 8025–01–P However, in an effort to provide the (Catalog of Federal Domestic Assistance Exchange with greater flexibility in Program Nos. 59002 and 59008) addressing certain violations, the SMALL BUSINESS ADMINISTRATION Dated: July 18, 2003. Exchange’s minor rule violation plan provides a reasonable means to address Cheri L. Cannon, [Declaration of Disaster #3531] rule violations that do not rise to the Acting Associate Administrator for Disaster level of requiring formal disciplinary Assistance. State of Texas [FR Doc. 03–18989 Filed 7–24–03; 8:45 am] proceedings. The Commission expects As a result of the President’s major BILLING CODE 8025–01–P that the NYSE will continue to conduct disaster declaration on July 17, 2003, I surveillance with due diligence, and find that Calhoun, Jackson, Matagorda, make a determination based on its SMALL BUSINESS ADMINISTRATION Refugio, and Victoria Counties in the findings whether fines of more or less State of Texas constitute a disaster area than the recommended amount are [Declaration of Disaster #3529] due to damages caused by Hurricane appropriate for violations of rules under Claudette occurring on July 15, 2003 State of Kansas the Exchange’s minor rule violation and continuing. Applications for loans plan, on a case by case basis, or if a Seward County and the contiguous for physical damage as a result of this violation requires formal disciplinary counties of Haskell, Meade, and Stevens disaster may be filed until the close of action. in the State of Kansas; and Beaver and business on September 16, 2003 and for It is therefore ordered, pursuant to economic injury until the close of 7 Texas Counties in the State of Oklahoma section 19(b)(2) of the Act, that the constitute a disaster area due to a severe business on April 19, 2004 at the proposed rule change (SR–NYSE–2003– thunderstorm accompanied by large hail address listed below or other locally 13) be, and it hereby is, approved. and flooding that occurred on June 28 announced locations: U.S. Small For the Commission, by the Division of and June 29, 2003. Applications for Business Administration, Disaster Area Market Regulation, pursuant to delegated loans for physical damage as a result of 3 Office, 4400 Amon Carter Blvd., Ste., authority.8 this disaster may be filed until the close 102, Fort Worth, TX 76155. Jill M. Peterson, of business on September 15, 2003 and In addition, applications for economic Assistant Secretary. for economic injury until the close of injury loans from small businesses [FR Doc. 03–18932 Filed 7–24–03; 8:45 am] business on April 19, 2004 at the located in the following contiguous BILLING CODE 8010–01–P address listed below or other locally counties may be filed until the specified announced locations: U.S. Small date at the above location: Aransas, Bee, Business Administration, Disaster Area Brazoria, De Witt, Goliad, Lavaca, San SMALL BUSINESS ADMINISTRATION 3 Office, 4400 Amon Carter Boulevard, Patricio, and Wharton in the State of Suite 102, Forth Worth, TX 76155. Texas. [Declaration of Disaster #3526] The interest rates are: The interest rates are:

State of Indiana (Amendment #1) Percent Percent In accordance with the notice For Physical Damage: received from the Department of For Physical Damage: Homeowners with Credit Homeowners With Credit Homeland Security—Federal Emergency Available Elsewhere: ...... 5.625 Available Elsewhere ...... 5.625 Management Agency, effective July 17, Homeowners Without Credit Homeowners Without Credit 2003, the above numbered declaration is Available Elsewhere: ...... 2.812 Available Elsewhere ...... 2.812 hereby amended to include Clay, Businesses with Credit Avail- Businesses With Credit Avail- Fulton, Morgan, Newton, Parke, and able Elsewhere: ...... 5.906 able Elsewhere ...... 5.906 Vigo Counties in the State of Indiana as Businesses and Non-profit Businesses And Non-Profit a disaster area due to damages caused Organizations Without Organizations Without by severe storms, tornadoes, and Credit Available Elsewhere: 2.953 Credit Available Elsewhere 2.953 Others (Including Non-Profit flooding occurring on July 4, 2003 and Others (Including Non-profit Organizations) with Credit Organizations) With Credit continuing. Available Elsewhere: ...... 5.500 Available Elsewhere ...... 5.500 In addition, applications for economic For Economic Injury: For Economic Injury: injury loans from small businesses Businesses and Small Agri- Businesses And Small Agri- located in the following contiguous cultural Cooperatives With- cultural Cooperatives With- counties may be filed until the specified out Credit Available Else- out Credit Available Else- date at the previously designated where: ...... 2.953 where ...... 2.953

7 15 U.S.C. 78s(b)(2). The numbers assigned to this disaster The number assigned to this disaster 8 17 CFR 200.30–3(a)(12). for physical damage are 352911 for for physical damage is 353108. For

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economic injury, the number is publication. You can obtain copies of 0960–0240. Section 1618 of the Social 9W5200. the collection instruments by calling the Security Act contains pass-along (Catalog of Federal Domestic Assistance SSA Reports Clearance Officer at 410– provisions of the Social Security Program Nos. 59002 and 59008) 965–0454, or by writing to the address Amendments. These provisions require listed above. States that supplement the Federal SSI Dated: July 21, 2003. 1. Application for Special Age 72-or- benefits pass along Federal cost-of- Herbert L. Mitchell, Over Monthly Payments—20 CFR, living increases to the individuals who Associate Administrator for Disaster Subpart D, 404.380–.384—0960–0096. are eligible for State Supplementary Assistance. Form SSA–19–F6 is needed to benefit payments. If the State fails to [FR Doc. 03–18988 Filed 7–24–03; 8:45 am] determine if an individual is entitled to keep payments at the required level, it BILLING CODE 8025–01–P Special Age 72 payments. Eligibility becomes ineligible for Medicaid requirements will be evaluated based on reimbursement under Title XIX of the the data collected on this form. The Social Security Act. Regulations at 20 SOCIAL SECURITY ADMINISTRATION respondents are individuals who CFR 416.2099 require the States to attained age 72 before 1972. report mandatory minimum and Agency Information Collection Type of Request: Extension of an optional supplementary payment data to Activities Proposed Request and OMB-approved information collection. SSA. The information is used to Comment Request Number of Respondents: 10. determine compliance with the law and Frequency of Response: 1. The Social Security Administration regulations. The respondents are States Average Burden Per Response: 20 (SSA) publishes a list of information that supplement Federal SSI payments. minutes. collection packages that will require Type of Request: Extension of an Estimated Annual Burden: 3 hours. OMB-approved information collection. clearance by the Office of Management 2. Statement of Self-Employment and Budget (OMB) in compliance with Number of Respondents: 26. Income, CFR Subpart B, 404.101 and Frequency of Response: 15 states Pub. L. 104–13 effective October 1, Subpart K, 404.1096—0960–0046. The report quarterly; 11 states report 1995, The Paperwork Reduction Act of information collected on Form SSA–766 annually. 1995. The information collection is used to determine if the individual Average Burden per Response: 1 hour. packages that may be included in this will have at least the minimum amount Estimated Annual Burden: 71. notice are for new information of self-employment income needed for 5. Representative Payee Report- collections, revisions to OMB-approved one or more quarters of coverage in the Special Veterans Benefits Form—0960– information collections and extensions current year. Additional quarters of 0621. SSA needs the information (no change) of OMB-approved coverage may be credited on the basis of collected on form SSA–2001 to information collections. the information obtained, and benefit determine whether payments certified SSA is soliciting comments on the payments may be expedited where there to the representative payee have been accuracy of the agency’s burden are sufficient quarters of coverage to used properly and whether the estimate; the need for the information; give the individual insured status. The representative payee demonstrates its practical utility; ways to enhance its respondents are self-employed persons concern for the beneficiary’s best quality, utility and clarity; and on ways applying for Social Security benefits. interest. The form will be completed to minimize burden on respondents, Type of Request: Extension of an annually by representative payees including the use of automated OMB-approved information collection. receiving Special Veterans Benefit collection techniques or other forms of Number of Respondents: 5,000. payments on behalf of beneficiaries who information technology. Written Frequency of Response: 1. are outside of the United States. It will comments and recommendations Average Burden Per Response: 5 also be required when SSA has reason regarding the information collection(s) minutes. to believe a representative payee could should be submitted to the OMB Desk Estimated Annual Burden: 417 hours. be misusing the payments. The Officer and the SSA Reports Clearance 3. Childhood Disability Evaluation respondents are representative payees Officer. The information can be mailed Form—20 CFR 416.924–0960–0568. SSA for beneficiaries who are receiving and/or faxed to the individuals at the and State Disability Determination Special Veterans Benefits. addresses and fax numbers listed below: Services (DDS) use the information Type of Request: Extension of an (OMB) collected on Form SSA–538 to record OMB-approved information collection. medical and functional findings Number of Respondents: 100. Office of Management and Budget, Attn: regarding the severity of impairments of Frequency of Response: 1. Desk Officer for SSA, New Executive the children who claim SSI benefits Average Burden Per Response: 10 Office Building, Room 10235, 725 based on disability. The form is used for minutes. 17th St., NW., Washington, DC 20503, initial determinations of eligibility, in Estimated Annual Burden: 17 hours. Fax 202–395–6974. appeals, and in initial continuing 6. You Can Make Your Payment by Credit Card—0960–0462. SSA will use (SSA) disability reviews. The respondents are employees of DDS responsible for these the information on Forms SSA–4588 Social Security Administration, determinations. and SSA–4589 to update the DCFAM, Attn: Reports Clearance Type of Request: Extension of an individual’s social security record to Officer, 1338 Annex, 6401 Security OMB-approved information collection. reflect that a payment has been made on Blvd., Baltimore, MD 21235, Fax 410– Number of Respondents: 750,000. their overpayment and to effectuate 965–6400. Frequency of Response: 1. payment through the appropriate credit I. The information collections listed Average Burden Per Response: 25 card company. The respondents are below are pending at SSA and will be minutes. Title II (Old-Age, Survivors and submitted to OMB within 60 days from Estimated Annual Burden: 312,500 Disability Insurance) and Title XVI the date of this notice. Therefore, your hours. (Supplemental Security Income) comments should be submitted to SSA 4. Subpart T—State Supplementation debtors; and citizens requesting material within 60 days from the date of this Provisions—20 CFR 416.2095–2099— through SSA.

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Type of Request: Revision of an OMB- & XVI of the Social Security Act who relevance of the sought testimony and approved information collection. wish to request reconsideration of include the time, date, and place where Number of Respondents: 19,000. disability cessation. the testimony will be given. Frequency of Response: 1. Type of Request: Extension of an Respondents are individuals or their Average Burden Per Response: 5 OMB-approved information collection. representatives who require testimony minutes. Number of Respondents: 49,000. from Social Security Administration Estimated Annual Burden: 1,583 Frequency of Response: 1. employees in a legal proceeding to hours. Average Burden Per Response: 10– which the Social Security II. The information collection listed 13.5 minutes. Administration is not a party. below has been submitted to OMB for Estimated Annual Burden: 10,045 Type of Request: Extension of an clearance. Your comments on the hours. OMB-approved information collection. information collections would be most 4. Psychiatric Review Technique—20 Number of Respondents: 40. useful if received by OMB and SSA CFR, Subpart P, 404.1520(a) Subpart I, Frequency of Response: 1. within 30 days from the date of this 416.920(a)–0960–0413. Form SSA– Average Burden Per Response: 60 publication. You can obtain a copy of 2506–BK assists the Disability minutes. the OMB clearance package by calling Determination Services (DDS) in Estimated Annual Burden: 40. the SSA Reports Clearance Officer at evaluating mental impairments by 7. Medical Consultant’s Review of 410–965–0454, or by writing to the helping to (1) identify the need for Physical Functional Capacity address listed above. additional evidence for impairment Assessment—20 CFR 404.1520(a), 20 1. Certification by Religious Group— severity; (2) consider aspects of the CFR 404.1640, 20 CFR 404.1645, 20 CFR 20 CFR, Subpart K, 404.1075—0960– mental impairment relevant to the 404.1643, and 20 CFR 416.920(a) 0093. The data collected on Form SSA– individual’s ability to perform work- —OMB #0960–NEW. The SSA–392 is 1458 will be used to determine if a related mental functions; and (3) used by the Social Security religious group meets the qualifications organize and present the findings in a Administration’s regional review set out in section 1402(g) of the Internal clear, concise and consistent manner. component to facilitate the medical Revenue Code, which permits its The respondents are 54 State DDSs consultant’s review of the Physical members to be exempt from the administering Title II and title XVI Residual Functional Capacity Form, the payment of self-employment taxes. The disability programs. SSA–4734. The SSA–392 records the Type of Request: Extension of an respondents are spokespersons for a reviewing medical consultant’s OMB-approved information collection. religious group or sect. assessment of the SSA–4734 that was Type of Request: Extension of an Number of Responses: 1,253,703. prepared by the adjudicating OMB-approved information collection. Frequency of Response: 1. component. The SSA–392 is required Number of Respondents: 180. Average Burden Per Response: 15 Frequency of Response: 1. minutes. for each SSA–4734 form completed. The Average Burden Per Response: 15 Estimated Annual Burden: 313,426 respondents are the medical/ minutes. hours. psychological consultants responsible Estimated Annual Burden: 45 hours. 5. Request for Reconsideration—20 for reviewing the SSA–4734. 2. Statement of Care and CFR, Subpart J, 404.907–.921 and Type of Request: Request for approval Responsibility for Beneficiary—20 CFR, Subpart N, 416.1407–.1421–0960–0622. of new collection. Subpart U, 404.2020–.2025 & Subpart F, The information collected on Form Number of Respondents: 256. 416.620–.625–0960–0109. Form SSA– SSA–561 is used by SSA to document Frequency of Response: 359. 788 is used to obtain information from and initiate the reconsideration process Average Burden Per Response: 12 the beneficiary’s custodian about the for determining entitlement to Social minutes. representative payee applicant’s Security benefits (Title II), Estimated Annual Burden: 18,380 concern and responsibility for the Supplemental Security Income hours. beneficiary. The respondents are payments (Title XVI), and Special 8. Medical Consultant’s Review of individuals who have custody of a Veterans benefits (Title VIII). The Mental/Functional Capacity Assessment beneficiary, where someone else has respondents are individuals filing for Form, SSA 392 SUP.—20 CFR 404.1640, filed to be the beneficiary’s payee. such reconsideration. 20 CFR 404.1645, 20 CFR 404.1643, 20 Type of Request: Extension of an Type of Request: Extension of an CFR 404.1520(a) and 20 CFR OMB-approved information collection. OMB-approved information collection. 416.920(a)—0960–NEW. Medical Number of Respondents: 130,000. Number of Respondents: 1,455,000. Consultant’s Review of Mental Residual Frequency of Response: 1. Frequency of Response: 1. Functional Capacity Form, SSA–392 Average Burden Per Response: 10 Average Burden Per Response: 8 SUP, is used by the Social Security minutes. minutes. Administration’s regional review Estimated Annual Burden: 21,667. Estimated Annual Burden: 194,000 component to facilitate the medical/ 3. Request for Reconsideration— hours. psychological consultant’s review of the Disability Cessation—20 CFR, Subpart J, 6. Individuals or Agents Seeking Mental Residual Functional Capacity 404.909 & Subpart N, 416.1409–0960– Information or Testimony in non-Social Form or SSA–4734–SUP. The form 0349. Form SSA–789 is used by SSA to Security Administration Cases—20 CFR records the reviewing medical/ schedule disability hearings and to 403.120–0960–0619. 20 CFR 403.120 psychological consultant’s assessment develop additional evidence/ establishes a procedure whereby an of the SSA–4734–SUP prepared by the information for claimants whose individual, organization or adjudicating component and whether disability is found to have ceased, not governmental entity may request the reviewer agrees or disagrees with the to have existed, or to no longer be testimony of an agency employee in a manner in which the SSA–4734–SUP disabling. The information will also be legal proceeding to which the agency is was completed. The SSA–392–SUP is used to determine if an interpreter is not a party. The request, which must be required for each SSA–4734–SUP form needed for the disability hearing. The in writing to the Commissioner, must completed. The respondents are the respondents are claimants under Title II fully explain the nature and the medical/psychological consultants

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responsible for reviewing the SSA– Incentives Advisory Panel (the Panel). [email protected] or calling 4734–SUP. Section 101(f) of Public Law 106–170 (202) 358–6423. Type of Request: Request for approval establishes the Panel to advise the The full agenda for the meeting will of new collection. President, the Congress and the be posted on the Internet at http:// Number of Respondents: 256. Commissioner of SSA on issues related www.ssa.gov/work/panel at least one Frequency of Response: 359. to work incentives programs, planning week before the meeting or can be Average Burden Per Response: 12 and assistance for individuals with received in advance electronically or by minutes. disabilities as provided under section fax upon request. Estimated Annual Burden: 18,380. 101(f)(2)(A) of the TWWIIA. The Panel Contact Information: Anyone 9. Request for Withdrawal of is also to advise the Commissioner on requiring information regarding the Application—20 CFR 404.460—0960– matters specified in section 101(f)(2)(B) Panel should contact the TWWIIA Panel 0015. Request for Withdrawal of of that Act, including certain issues staff. Records are being kept of all Panel Application—0960–0015. Form SSA– related to the Ticket to Work and Self- proceedings and will be available for 521 is completed by the Social Security Sufficiency Program established under public inspection by appointment at the Administration (SSA) when an section 101(a) of that Act. Panel office. Anyone requiring individual wishes to withdraw his or Interested parties are invited to attend information regarding the Panel should her application for Social Security the meeting. The Panel will use the contact the Panel staff by: benefits. The respondents are meeting time to receive briefings, hear • Mail addressed to: Social Security individuals who wish to withdraw their presentations, conduct full Panel Administration, Ticket to Work and applications for benefits. deliberations on the implementation of Work Incentives Advisory Panel Staff, Type of Request: Extension of an TWWIIA and receive public testimony. 400 Virginia Avenue, SW., Suite 700, OMB-approved information collection. The topics for the meeting will include Washington, DC 20024. Number of Respondents: 100,000. presentations of briefing papers • Telephone: contact Kristen Breland Frequency of Response: 1. prepared for the Panel, establishment of at (202) 358–6423. Average Burden Per Response: 5 priorities for the coming year and • Fax: (202) 358–6440. minutes. agency updates from SSA, the • E-mail: [email protected]. Department of Education and the Estimated Annual Burden: 8,333 Dated: July 21, 2003. hours. Department of Health and Human Services. Carol Brenner, Dated: July 21, 2003. The Panel will meet in person Designated Federal Official. Nicholas E. Tagliareni, commencing on Tuesday, August 26, [FR Doc. 03–18969 Filed 7–24–03; 8:45 am] Acting Reports Clearance Officer, Social 2003 from 9:30 a.m. to 5:30 p.m.; BILLING CODE 4191–02–P Security Administration. Wednesday, August 27, 2003 from 9 [FR Doc. 03–18906 Filed 7–24–03; 8:45 am] a.m. to 5 p.m.; and Thursday, August BILLING CODE 4191–02–P 28, 2003 from 9 a.m. to 1 p.m. Agenda: The Panel will hold a DEPARTMENT OF STATE quarterly meeting. Briefings, [Public Notice 4419] SOCIAL SECURITY ADMINISTRATION presentations, full Panel deliberations and other Panel business will be held on 30-Day Notice of Proposed Information The Ticket To Work and Work Tuesday, Wednesday, and Thursday, Collection: Form DS–2029/SS–5, Incentives Advisory Panel Meeting August 26, 27, and 28, 2003. Public Application for Consular Report of AGENCY: Social Security Administration testimony will be heard in person on Birth Abroad of a Citizen of the United (SSA). Tuesday, August 26, 2003 from 2:30 States of America; OMB Control p.m. to 3 p.m. and on Thursday, August ACTION: Notice of meetings. Number 1405–0011 28, 2003 from 9 a.m. to 9:30 a.m. Members of the public must schedule a AGENCY: Department of State. DATES: August 26, 2003, 9:30 a.m.–5:30 time slot in order to comment. In the p.m., August 27, 2003, 9 a.m.–5 p.m., ACTION: Notice. event that the public comments do not August 28, 2003, 9 a.m.–1 p.m. take up the scheduled time period for SUMMARY: The Department of State has ADDRESSES: Detroit Marriott public comment, the Panel will use that submitted the following information Renaissance Center, Renaissance Center time to deliberate and conduct other collection request to the Office of (East Jefferson Street), Detroit, MI 48243, Panel business. Management and Budget (OMB) for Phone: (313) 568–8000. Individuals interested in providing approval in accordance with the SUPPLEMENTARY INFORMATION: testimony in person should contact the Paperwork Reduction Act of 1995. Type of meeting: This is a quarterly Panel staff as outlined below to Comments should be submitted to OMB meeting open to the public. The public schedule time slots. Each presenter will within 30 days of the publication of this is invited to participate by coming to the be called on by the Chair in the order notice. address listed above. Public comment in which they are scheduled to testify The following summarizes the will be taken during the quarterly and is limited to a maximum five- information collection proposal meeting. The public is also invited to minute verbal presentation. Full written submitted to OMB: submit comments in writing on the testimony on TWWIIA implementation, Type of Request: Reinstatement of a implementation of the Ticket to Work no longer than 5 pages, may be previously approved collection. and Work Incentives Improvement Act submitted in person or by mail, fax or Originating Office: CA/OCS. (TWWIIA) of 1999 at any time. e-mail on an on-going basis to the Panel Title of Information Collection: 1405– Purpose: In accordance with section for consideration. 0011, Application for Consular Report 10(a)(2) of the Federal Advisory Since seating may be limited, persons of Birth Abroad of a Citizen of the Committee Act, the Social Security interested in providing testimony at the United States. Administration (SSA) announces a meeting should contact the Panel staff Frequency: On occassion. meeting of the Ticket to Work and Work by e-mailing Kristen M. Breland, at Form Number: DS–2029.

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Respondents: Parents or legal Executive Order 13222 of August 17, to all activities of the North Korean guardians of American citizen children 2001). government relating to the development born overseas. EFFECTIVE DATE: July 25, 2003. or production of missile equipment or Estimated Number of Respondents: technology and all activities of the FOR FURTHER INFORMATION CONTACT: approximately 46,000 per year. North Korean government affecting the Vann H. Van Diepen, Office of Average Hours Per Response: development or production of Chemical, Biological and Missile approximately 20 minutes, or .33 of an electronics, space systems or Nonproliferation, Bureau of hour. equipment, and military aircraft: Nonproliferation, Department of State Total Estimated Burden: 15,333 (A) Denial of all new individual (202–647–1142). On import ban issues, hours. licenses for the transfer to the Licensing Division, Office of Foreign Public comments are being solicited government activities described above Assets Control, Department of the to permit the agency to: of all items on the U.S. Munitions List; Treasury (202–622–2480). On U.S. • Evaluate whether the proposed and, information collection is necessary for Government procurement ban issues, (B) Denial of all U.S. Government the proper performance of the functions Gladys Gines, office of the Procurement contracts with the government activities of the agency. Executive, Department of State (703– described above; and • Evaluate the accuracy of the 516–1621). (C) Prohibition on the importation agency’s estimate of the burden of the SUPPLEMENTARY INFORMATION: Pursuant into the U.S. of all products produced proposed collection, including the to section 73(a)(1) of the Arms Export by the government activities described validity of the methodology and Control Act (22 U.S.C. 2797b(a)(1)); above. assumptions used. section 11B(b)(1) of the Export These measures shall be implemented • Enhance the quality, utility, and Administration Act of 1979 (50 U.S.C. by the responsible departments and clarity of the information to be app. 2410(b)(1)), as carried out under agencies of the United States collected. Executive Order 13222 of August 17, Government as provided in Executive • Minimize the reporting burden on 2001 (hereinafter cited as the ‘‘Export Order 12851 of June 11, 1993. those who are to respond, including Administration Act of 1979’’); and Dated: July 21, 2003. Executive Order 12851 of June 11, 1993; through the use of automated collection Susan F. Burk, techniques or other forms of technology. the U.S. Government determined on July 17, 2003 that the following foreign Acting Assistant Secretary of State for FOR FURTHER INFORMATION CONTACT: Nonproliferation, Department of State. Copies of the proposed information person has engaged in missile technology proliferation activities that [FR Doc. 03–19000 Filed 7–24–03; 8:45 am] collection and supporting documents BILLING CODE 4710–25–P may be obtained from Michael require the imposition of the sanctions Meszaros, who may be reached on 202– described in sections 73(a)(2)(B) and (C) of the Arms Export Control Act (22 312–9750. Public comments, or requests DEPARTMENT OF TRANSPORTATION for additional information, regarding the U.S.C. 2797b(a)(2)(B) and (C) and sections 11B(b)(1)(B)(ii) and (iii) of the collection listed in this notice should be Office of the Secretary directed to the State Department Desk Export Administration Act of 1979 (50 Officer, Officer of Information and U.S.C. app. 2410b(b)(1)(B)(ii) and (iii) Notice of Applications for Certificates Regulatory Affairs, Office of on this person: Changgwang Sinyong of Public Convenience and Necessity Management and Budget (OMB), Corporation (North Korea) and its sub- and Foreign Air Carrier Permits Filed Washington, DC 20530, who may be units and successors. Under Subpart B (Formerly Subpart Q) Accordingly, the following sanctions reached on 202–395–3897. During the Week Ending July 4, 2003 are being imposed on this person for Dated: July 11, 2003. three years and eight months: The following Applications for Maura Harty, (A) Denial of all new individual Certificates of Public Convenience and Assistant Secretary, Bureau of Consular licenses for the transfer to the Necessity and Foreign Air Carrier Affairs, Department of State. sanctioned entity of all items on the Permits were filed under subpart B [FR Doc. 03–19001 Filed 7–24–03; 8:45 am] U.S. Munitions List and all items the (formerly subpart Q) of the Department BILLING CODE 4710–06–P export of which is controlled under the of Transportation’s Procedural Export Administration Act; and, Regulations (see 14 CFR 301.201 et (B) Denial of all U.S. Government seq.). The due date for Answers, DEPARTMENT OF STATE contracts with the sanctioned entity; Conforming Applications, or Motions to and [Public Notice 4418] Modify Scope are set forth below for (C) Prohibition on the importation each application. Following the Answer Bureau of Nonproliferation; Imposition into the U.S. of all products produced period DOT may process the application of Missile Proliferation Sanctions by the sanctioned entity. by expedited procedures. Such Against a North Korean Entity With respect to items controlled procedures may consist of the adoption pursuant to the Export Administration of a show-cause order, a tentative order, AGENCY: Bureau of Nonproliferation, Act of 1979, the above export sanction or in appropriate cases a final order Department of State. only applies to exports made pursuant without further proceedings. ACTION: Notice. to individual export licenses. Docket Number: OST–1998–4755. Additionally, because North Korea is Date Filed: July 1, 2003. SUMMARY: A determination has been a country with a non-market economy Due Date for Answers, Conforming made that a North Korean entity has that is not a former member of the Applications, or Motion to Modify engaged in activities that require the Warsaw Pact (as referenced in the Scope: July 22, 2003. imposition of measures pursuant to the definition of ‘‘person’’ in section Description: Contingent Application Arms Export Control Act, as amended, 74(8)(B) of the Arms Export Control of Delta Air Lines, Inc., pursuant to 49 and the Export Administration Act of Act), the following sanctions shall be U.S.C. 41102 and 41108 and Subpart B, 1979, as amended (as carried out under applied for three years and eight months requesting renewal of its certificate of

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public convenience and necessity for public information collections which which have been developed and Route 756, which authorizes Delta to will be submitted to OMB for renewal. distributed to industry customers. This engage in foreign air transportation of DATES: Comments must be received on is a requirement of the White House persons, property, and mail between a or before September 23, 2003. NPR Customer Service Initiatives. AST point or points in the United States, the ADDRESSES: Comments may be mailed collects and analyzes the data for intermediate point Paris, France, and or delivered to the FAA at the following results. The current estimated annual Johannesburg, South Africa. address: Ms. Judy Street, Room 613, reports burden is 300 hours. Andrea M. Jenkins, Federal Aviation Administration, 4. 2120–0618: Overflight billing and Program Manager, Docket Operations, Standards and Information Division, Collection Customer Information Form. Federal Register Liaison. APF–100, 800 Independence Ave., SW., This information is needed to obtain Washington, DC 20591. [FR Doc. 03–18916 Filed 7–24–03; 8:45 am] accurate billing information for FAA air FOR FURTHER INFORMATION CONTACT: Ms. BILLING CODE 4910–62–P traffic and related services for certain Judy Street at the above address or on aircraft that transit U.S. controlled (202) 267–9895. airspace but neither take off from, nor DEPARTMENT OF TRANSPORTATION SUPPLEMENTARY INFORMATION: In land in, the United States. The current accordance with the Paperwork estimated annual reporting burden is 50 Office of the Secretary Reduction Act of 1995, an agency may hours. not conduct or sponsor, and a person is Order Granting Exemption not required to respond to a collection 5. 2120–0663: Service Difficulty Report (SDR). September 15, 2000, the AGENCY: Department of Transportation. of information unless it displays a currently valid OMB control number. Federal Aviation Administration (FAA) ACTION: Notice of Order Granting published a rule amending the reporting Exemption (Docket OST–02–13896)— Therefore, the FAA solicits comments requirements for air carriers and Order 2003–7–22. on the following current collection of information in order to evaluate the certificates domestic and foreign repair SUMMARY: The Department of necessity of the collection, the accuracy station operators concerning failures, Transportation has granted an of the agency’s estimate of the burden, malfunctions, and defects of aircraft, application by the International Air the quality, the clarity of the aircraft engines, systems, and Transport Association (IATA) to permit information to be collected, and components. This action was prompted IATA to implement certain resolutions possible ways to minimize the burden of by an internal FAA review of the and recommended practices of its the collection in preparation for effectiveness of the reporting system worldwide Cargo Services Conference submission to renew the clearances of and by air carriers industry’s concern (CSC), without filing the resolutions and the following information collections. over the quality of the data being recommended practices for prior 1. 2120–0033: Representatives of the reported. The reports submitted by Administrator, FAR 183. Title 49, approval by the Department and certificate holders and certificated U.S.C., section 44702, authorizes without obtaining immunity from the repair stations provide the FAA with U.S. antitrust laws. appointment of properly qualified private persons to be representatives of airworthiness statistical data necessary FOR FUTHER INFORMATION CONTACT: Mr. for planning, directing, controlling, and John Kiser or Ms. Bernice Gray, Pricing the Administrator for examining, testing, and certifying airmen for the evaluating certain assigned safety- & Multilateral Affairs Division (X–43, related programs. The current estimated Room 6424), U.S. Department of purpose of issuing them airmen certificates. The information collected is annual reporting burden associated with Transportation, 400 Seventh Street, this revision is 6,107 hours. SW., Washington, DC 20590, 202–366– used to determine eligibility of the 2435. representatives. The current estimates 6. 2120–0665: Safe Disposition of annual reporting burden is 3,974 hours. Life-Limited Aircraft Parts. This action Dated: July 18, 2003. 2. 2120–0563: Notice and Approval of responds to the Wendell H. Ford Michael W. Reynolds, Airport Noise and Access Restrictions. Investment Reform Act for the 21st Acting Assistant Secretary for Aviation and The Airport Noise and Capacity Act of Century by requiring that all persons International Affairs. 1990 mandates the formulation of a who remove any life-limited aircraft [FR Doc. 03–18913 Filed 7–24–03; 8:45 am] national noise policy. One part of the part be required to have a method to BILLING CODE 4910–62–P mandate is the development of a prevent the installation of that part after national program to review noise and it has reached its life limit. This action access restrictions on the operation of reduces the risk of life-limited aircraft DEPARTMENT OF TRANSPORTATION Stage 2 and 3 aircraft. Respondents are airport operators proposing voluntary parts being used beyond their life limits. Federal Aviation Administration agreements and/or mandatory This collection also requires that restrictions on Stage 2 and 3 aircraft manufacturers of life-limited parts Notice of Intent To Request Renewal provide marking instructions, when From the Office of Management and operations, and aircraft operators that request reevaluation of a restriction. The requested. The current estimated annual Budget (OMB) of Six Current Public reporting burden is 52,000 hours. Collections of Information current estimated annual reporting burden is 30,000 hours. Issued in Washington, DC on July 18, 2003. AGENCY: Federal Aviation 3. 2120–0611: Associated Judith D. Street, Administration (FAA), DOT. Administrator for Commercial Space Transportation (AST) Customer Service FAA Information Collection Clearance ACTION: Notice. Officer, APF–100. Survey. The FAA Office of the SUMMARY: In compliance with the Associated Administrator for [FR Doc. 03–18921 Filed 7–24–03; 8:45 am] Paperwork Reduction Act (44 U.S.C. Commercial Space Transportation BILLING CODE 4910–13–M 3501 et seq.), the FAA invites public conducts a survey to obtain industry comment on six currently approved input on the customer service standards

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DEPARTMENT OF TRANSPORTATION Issued in Renton, Washington, on July 14, Comments or questions concerning this 2003. proposed action and the determination Federal Aviation Administration Kalene C. Yanamura, that an EA is the proper environmental Acting Manager, Transport Airplane document should be directed to the [Policy Statement No. ANM–01–03] Directorate, Aircraft Certification Service. FHWA at the address provided above. [FR Doc. 03–18920 Filed 7–24–03; 8:45 am] (Catalog of Federal Domestic Assistance Factors To Consider When Reviewing BILLING CODE 4910–13–P Program Number 20.205, Highway Research an Applicant’s Proposed Human Planning and Construction. The regulations Factors Methods of Compliance for implementing Executive Order 12372 Flight Deck Certification DEPARTMENT OF TRANSPORTATION regarding intergovernmental consultation on federal programs and activities apply to this Federal Highway Administration program.) AGENCY: Federal Aviation Issued on: July 21, 2003. Administration (FAA), DOT. Environmental Impact Statement, Cesar Perez, Riverside County, CA ACTION: Notice of final policy; Team Leader, Project Development and correction. AGENCY: Federal Highway Environment—South Sacramento, California. Administration (FHWA), DOT. [FR Doc. 03–18953 Filed 7–24–03; 8:45 am] SUMMARY: The Federal Aviation ACTION: Notice of withdrawal. BILLING CODE 4910–22–M Administration (FAA) announces a correction to a final policy SUMMARY: The FHWA is issuing this memorandum that clarifies current FAA notice to advise the public that the DEPARTMENT OF TRANSPORTATION policy with respect to compliance with Notice of Intent to prepare an human factors-related regulations Environmental Impact Statement (EIS) Federal Transit Administration during certification projects on transport for the proposed Bridge replacement, Notice of Granted Buy America Waiver category airplanes. River Road Bridge, Riverside County, California will be withdrawn; and an AGENCY: Federal Transit Administration DATE: This final policy was issued by Environmental Assessment (EA) in lieu (FTA), DOT. the Transport Airplane Directorate on of an EIS is being prepared for this ACTION: Notice of granted Buy America February 7, 2003. proposed highway project. waiver. FOR FURTHER INFORMATION CONTACT: FOR FURTHER INFORMATION CONTACT: Steve Boyd, Federal Aviation Cesar Perez, Project Development and SUMMARY: This waiver allows ticket Administration, Transport Airplane Environment Unit, Federal Highway vending machine manufacturers to Directorate, Transport Standards Staff, Administration, California Division, 980 install the Cash Code bill-handling unit and count it as domestic for purposes of Airplane & Flightcrew Interface Branch, Ninth Street, Suite 400, Sacramento, Buy America compliance. It is ANM–111, 1601 Lind Avenue SW., California 95814–2724, Telephone: predicated on the non-availability of the Renton, WA 98055–4056; telephone (916) 498–5020. item domestically and was granted on (425) 227–1138; fax (425) 227–1320; e- SUPPLEMENTARY INFORMATION: The June 11, 2003, for the period of two FHWA, in cooperation with the mail: 9-ANM-111-human- years. This notice shall insure that the California Department of Transportation [email protected]. public is aware of this waiver. (Caltrans), conducted studies of the SUPPLEMENTARY INFORMATION: potential environmental impacts FOR FURTHER INFORMATION CONTACT: associated with the proposed highway Meghan G. Ludtke, FTA Office of Chief Background project to replace River Road Bridge, in Counsel, Room 9316, (202) 366–1936 (telephone) or (202) 366–3809 (fax). On February 7, 2003, the FAA issued Riverside County, California. During the SUPPLEMENTARY INFORMATION: policy memorandum number ANM–01– course of conducting these studies and See 03 on the subject of guidance with coordinating with regulatory and waiver below. respect to the recommended content of resource agencies, it was found that Issued: July 22, 2003. a Human Factors Certification Plan. many of the potential environmental Jennifer L. Dorn, After issuance and publication of the issues that led to issuing the Notice of Administrator. notice of final policy, an inadvertent Intent were not significant. In addition, changes to avoid or minimize potential June 11, 2003. error in the memo was brought to our Mr. Val Levitan, attention. The error occurs in the ‘‘Effect impacts identified in early scoping have been made to the designs. One Senior V.P. Sales & Marketing, Cash Code, of Policy’’ paragraph, second sentence. 553 Basaltic Road, Concord, Ontario This sentence is corrected to read: ‘‘The significant change in minimizing Canada L4K 4W8 impacts is to replace the existing bridge general policy stated in this document Dear Mr. Levitan: This letter responds to with a significantly shorter bridge than does not constitute a new regulation or your correspondence of May 8, 2003, in originally planned (800 ft vs. 3000 ft), as create what the courts refer to as a which you request a non-availability waiver well as utilizing stage construction in ‘binding norm.’’’ The error has been of the Buy America requirements for certain lieu of a full detour. The FHWA has corrected and the revised memorandum, bill-handling units manufactured for use in determined that the proposed project is ticket vending machines. These bill-handling ANM–01–03(A) is available on the not likely to result in significant impacts units accept, validate, and mechanically Internet at the following address: http:/ to the environment; that an EA would escrow banknotes of various denominations /www.airweb.faa.gov/rgl. be an appropriate environmental until a transaction is complete. For the If you do not have access to the reasons below, I have determined that a document for the project; and that the waiver is appropriate here. Internet, you can obtain a copy of the Notice of Intent, available on the The Federal Transit Administration’s policy by contacting the person listed Federal Register should be withdrawn. (FTA) requirements concerning domestic under FOR FURTHER INFORMATION The EA will be available for public preference for federally funded transit CONTACT. inspection prior to the public meeting. projects are set forth in 49 U.S.C. 5323(j).

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However, section 5323(j)(2)(B) states that represent any judgment of the agency on If the petition is denied, the company those requirements shall not apply if the item the merits of the application. would have to cease the production and or items being procured are not produced in In June 2001, NHTSA granted Saleen sale of the S7, and estimates that its the U.S. in sufficient and reasonably a two-year hardship exemption from earnings before taxes would fall to available quantities and of a satisfactory S4.1.5.3 of Standard No. 108 (66 FR quality. The implementing regulation also $7,000. provides that a waiver may be requested ‘‘for 33298), expiring July 1, 2003. The The company argued that a temporary a specific item or material that is used in the reader is referred to that notice for exemption is in the public interest production of a manufactured product.’’ 49 background information on the because the S7 ‘‘is a unique supercar CFR 661.7(g). The regulations allow a bidder company in support of its original designed and produced in the United or supplier to request a waiver only if it is petition. Because Saleen’s application States utilizing many U.S. sourced being sought under this section. See, 49 CFR for renewal was received more than 60 components.’’ An exemption would also 661.7(g) and 49 CFR 661.9(d). days before the expiration of the allow it to maintain its payroll of 96 full You state that there are no U.S. extension, the exemption will remain in time employees and to continue its manufacturers of this component with a effect until the Administrator has made functionally equivalent product. This purchase of U.S.-sourced components assertion is supported by GFI Genfare, a a decision on its request (49 CFR for the Mustangs that it modifies. Its ticket vending machine manufacturer and 555.8(e)). business ‘‘with U.S. suppliers indirectly potential end user of this component. GFI Saleen’s temporary exemption covers provides employment for several Genfare conducted a market survey, the its model S7. It had anticipated hundred other Americans.’’ An results of which affirmed that there is no U.S. shipping its initial production of cars in exemption would be consistent with manufacturer of an equivalent bill-handling July 2001. However, it was not able to vehicle safety objectives because the S7 unit. FTA also posted a request for comments do so until March 2003, when it on this matter on our website and received otherwise will conform to all applicable received Certificates of Conformity for Federal motor vehicle safety standards. no comments. FTA has granted similar the 2003 model year from the waivers to other bill-handling unit Interested persons are invited to manufacturers, Mars Electronics and Environmental Protection Agency and submit comments on the application Toyocom, U.S.A., also based on the non- the California Air Resources Board. described above. Comments should refer availability of a U.S. alternative. Between then and June 11, 2003, it sold to the docket number and the notice Based on the above-referenced information, and shipped eight S7s. It hopes to be number, and be submitted to: Docket I have determined that the grounds for a able to ship a total of 36 S7s by the end Management, Room PL–401, 400 ‘‘non-availability’’ waiver exist. Therefore, of the year. Saleen’s other line of Seventh Street, SW., Washington, DC pursuant to the provisions of 49 U.S.C. business is the alteration of Ford 5323(j)(2)(B), a waiver is hereby granted for 20590. It is requested but not required Mustangs. However, the company has that 10 copies be submitted. manufacture of the BB–5001/2/3/4 bill- ‘‘sustained a major slowdown’’ in sales handling unit for a period of two years. In All comments received before the order to insure that the public is aware of this of these vehicles which it attributes ‘‘to close of business on the comment waiver it will be published in the Federal the downturn in the U.S. economy.’’ closing date indicated below will be Register. If you have any questions, please The company has produced only 79 considered, and will be available for contact Meghan Ludtke at (202) 366–1936. Saleen Mustangs as of June 11, 2003, examination in the docket at the above Very truly yours, compared with 327 in the comparable address both before and after that date. Gregory B. McBride, period in 2002. Its cumulative net losses The Docket Room is open from 10 a.m. Deputy Chief Counsel. in the three years preceding its original until 5 p.m. To the extent possible, [FR Doc. 03–19012 Filed 7–24–03; 8:45 am] petition were $9,716,334; this has been comments filed after the closing date only slightly ameliorated in the most BILLING CODE 4910–57–P will also be considered. current three-year period, to a Notice of final action on the cumulative net loss of $8,832,999. application will be published in the Saleen had originally assumed that it DEPARTMENT OF TRANSPORTATION Federal Register pursuant to the needed 20 months and $3,000,000 for authority indicated below. the development of air bags, but in the National Highway Traffic Safety Comment closing date: August 25, absence of sales, did not generate these Administration 2003. funds. According to its petition, [Docket No. NHTSA 01–9362; Notice 3] ‘‘development delays almost completely (49 U.S.C. 30113; delegations of authority at 49 CFR 1.50. and 501.8) Saleen, Inc.; Receipt of Application for exhausted all of our economic resources Extension of Temporary Exemption necessary to stay in business, let alone Issued on: July 17, 2003. From Federal Motor Vehicle Safety the development of air bags.’’ One of the Stephen R. Kratzke, Standard No. 208 economic consequences is the shrinking Associate Administrator for Rulemaking. of its payroll from 122 employees to 96. [FR Doc. 03–18915 Filed 7–24–03; 8:45 am] Saleen, Inc., of Irvine, California, has The company has asked for a three-year BILLING CODE 4910–59–P applied for an extension of its extension of its original two-year temporary exemption from the exemption in order to generate funds automatic restraint requirements of that would allow it to comply with the DEPARTMENT OF TRANSPORTATION Federal Motor Vehicle Safety Standard Advanced Air Bag requirements, S14 of No. 208 Occupant Crash Protection. The Standard No. 208, which were issued Surface Transportation Board basis of the request is that compliance during the period of its exemption. [STB Finance Docket No. 34380] would cause substantial economic According to its projection of sales, it hardship to a manufacturer that has believes that it will be financially able Union Pacific Railroad Company— tried to comply with the standard in to begin development of advanced air Temporary Trackage Rights good faith. 49 U.S.C. 30113(b)(3)(B)(i). bags by July 2004. It anticipates that the Exemption—The Burlington Northern We are publishing this notice of project will take 24 months and and Santa Fe Railway Company receipt of an application in accordance $3,800,000, and that it will be able to with the requirements of 49 U.S.C. comply with S5.1.1(b)(1) on September The Burlington Northern and Santa Fe 30113(b)(2). This action does not 1, 2006. Railway Company (BNSF) has agreed to

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grant temporary overhead trackage milepost 0.0 at a point of connection DEPARTMENT OF TRANSPORTATION rights to Union Pacific Railroad with a rail line of Norfolk Southern Company (UP) between BNSF milepost Railway Company at Blair, TN, to the Office of the Secretary 29.9 near Fremont, NE, and BNSF end of the line at milepost 7.0 at East milepost 104.1 near Ferry, NE, a Tennessee Technology Center near Oak Aviation Proceedings, Agreements distance of 74.2 miles. Ridge, TN. The lease includes 24 spur Filed the Week Ending July 11, 2003 The transaction is scheduled to tracks, totaling approximately 7.5 miles, The following Agreements were filed become effective on August 31, 2003, for a combined total of approximately with the Department of Transportation and the authorization is scheduled to 14.5 miles of track. HRRC certifies that under the provisions of 49 U.S.C. 412 expire on or about October 20, 2003. the projected revenues as a result of this and 414. Answers may be filed within The purpose of the temporary rights is transaction will not result in the 21 days after the filing of the to facilitate maintenance work on UP creation of a Class I or Class II rail application. lines. carrier. Docket Number: OST–2003–15586. As a condition to this exemption, any HRRC states that it had entered into Date Filed: July 8, 2003. employees affected by the trackage a management agreement with Southern Parties: Members of the International rights will be protected by the Freight Logistics, LLC (SFL), effective Air Transport Association. conditions imposed in Norfolk and September 30, 2000, wherein SFL was Subject: Mail Vote, 311 PTC123 0244 Western Ry. Co.—Trackage Rights-BN, given exclusive rights to provide freight dated 8 July 2003, South Atlantic 354 I.C.C. 605 (1978), as modified by service on the line until September 14, Special Passenger Amending Resolution Mendocino Coast Ry., Inc.—Lease and 2005.1 HRRC could terminate the from Brazil r1–r5, Intended effective Operate, 360 I.C.C. 653 (1980), aff’d sub management agreement by providing date: 1 August 2003. SFL with 90 days’ written notice. HRRC nom. Railway Labor Executives’ Ass’n v. Docket Number: OST–2003–15587. United States, 675 F.2d 1248 (D.C. Cir. provided such notice by letter dated Date Filed: July 8, 2003. 1982). June 16, 2003. Nevertheless, HRRC is Parties: Members of the International This notice is filed under 49 CFR willing to allow SFL to continue using Air Transport Association. 1180.2(d)(8). If the notice contains false the line after September 14, 2003, under Subject: PTC2 EUR–ME 0167 dated 8 or misleading information, the new terms and conditions. July 2003, TC2 Europe-Middle East HRRC also states that it does not exemption is void ab initio. Petitions to Expedited Resolutions r1–r12, Intended intend to consummate the transaction revoke the exemption under 49 U.S.C. effective date: 15 August 2003. 10502(d) may be filed at any time. The and take over operations until the 90- Docket Number: OST–2003–15657. filing of a petition to revoke will not day notice of termination of the SFL Date Filed: July 11, 2003. stay the transaction. management agreement has expired, on Parties: Members of the International An original and 10 copies of all or about September 14, 2003. The earliest the transaction could have been Air Transport Association. pleadings, referring to STB Finance Subject: PTC COMP 1071 dated 11 Docket No. 34380, must be filed with consummated was July 8, 2003 (7 days after the exemption was filed). July 2003, Mail Vote 312—Resolution the Surface Transportation Board, 1925 024a, TC2/12/23/123 Establishing K Street, NW., Washington, DC 20423– If the notice contains false or misleading information, the exemption Passenger Fares and Related Charges— 0001. In addition, a copy of each Iraq, CTC COMP 0448 dated 11 July pleading must be served on: Robert T. is void ab initio. Petitions to revoke the exemption under 49 U.S.C. 10502(d) 2003, Mail Vote 313—Resolution 033a, Opal, 1416 Dodge St., Room 830, TC2/12/23/123 Establishing Cargo Omaha, NE 68179. may be filed at any time. The filing of a petition to revoke will not Rates, Charges and Amounts—Iraq, Board decisions and notices are Intended effective date: 1 August 2003. available on our Web site at http:// automatically stay the transaction. www.stb.dot.gov. An original and 10 copies of all Docket Number: OST–2003–15658. pleadings, referring to STB Finance Date Filed: July 11, 2003. Decided: July 17, 2003. Docket No. 34372, must be filed with Parties: Members of the International By the Board, David M. Konschnik, the Surface Transportation Board, 1925 Air Transport Association. Director, Office of Proceedings. K Street, NW, Washington, DC 20423– Subject: Mail Vote 314—Resolution Vernon A. Williams, 0001. In addition, one copy of each 002c Secretary. pleading must be served on Thomas F. PTC2 ME 0126 dated 15 July 2003 [FR Doc. 03–18727 Filed 7–24–03; 8:45 am] McFarland, 208 South LaSalle Street, TC2 Within Middle East BILLING CODE 4915–00–P Suite 1890, Chicago, IL 60604–1194. Special Amending Resolution r1–r8, Board decisions and notices are Intended effective date: 15 August available on our website at http:// 2003. DEPARTMENT OF TRANSPORTATION www.stb.dot.gov. Andrea M. Jenkins, Surface Transportation Board Decided: July 16, 2003. Program Manager, Docket Operations, By the Board, David M. Konschnik, Federal Register Liaison. [STB Finance Docket No. 34372] Director, Office of Proceedings. [FR Doc. 03–18917 Filed 7–24–03; 8:45 am] Vernon A. Williams, Heritage Railroad Corporation—Lease BILLING CODE 4910–62–P Secretary. and Operation Exemption—Rail Line of United States Department of Energy [FR Doc. 03–18728 Filed 7–23–03; 9:14 am] BILLING CODE 4915–00–P DEPARTMENT OF THE TREASURY Heritage Railroad Corporation (HRRC), a noncarrier, has filed a verified 1 Prior to the management agreement, SFL leased Departmental Offices; Renewal of the notice of exemption under 49 CFR the line from HRRC’s predecessor. See Southern Treasury Borrowing Committee of the Freight Logistics, LLC-Lease and Operation Bond Market Association 1150.31 to lease and operate a 7-mile Exemption-Community Reuse Organization of East rail line owned by the United States Tennessee, STB Finance Docket No. 33392 (STB ACTION: Notice of renewal. Department of Energy (DOE) from served May 15, 1997).

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SUMMARY: In accordance with the informed advice as representatives of government securities market and who Federal Advisory Committee Act, as the financial community to the are involved in senior positions in debt amended Pub. L. 92–463; 5 U.S.C. App. Secretary of the Treasury and Treasury markets as institutional investors, 2), with the concurrence of the General staff, upon the Secretary of the investment advisors, or as dealers in Services Administration, the Secretary Treasury’s request, in carrying out government securities. of the Treasury has determined that Treasury responsibilities for federal The Designated Federal Official for renewal of the Treasury Borrowing financing and public debt management. the Advisory Committee is the Associate Advisory Committee of The Bond The Committee meets to consider Director of the Office of Market Finance, Market Association (the ‘‘Committee’’) special items on which its advice is is necessary and in the public interest sought pertaining to immediate reporting through the Assistant in connection with the performance of Treasury funding requirements and Secretary for Financial Markets. The duties imposed on the Department of pertaining to longer term approaches to Treasury Department filed copies of the the Treasury by law. manage the national debt in a cost- Committee’s renewal charter with effective manner. The Committee appropriate committees in Congress. EFFECTIVE DATE: July 13, 2003. usually meets immediately before the Dated: July 21, 2003. FOR FURTHER INFORMATION CONTACT: Jeff Treasury announces each mid-calendar Brian C. Roseboro, Huther, Deputy Director, Office of quarter funding operation, although Market Finance, (202) 622–2630. special meetings also may be held. Assistant Secretary, Financial Markets. SUPPLEMENTARY INFORMATION: The Membership consists of 20–25 [FR Doc. 03–18929 Filed 7–24–03; 8:45 am] purpose of the Committee is to provide individuals who are experts in the BILLING CODE 4810–25–M

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Part II

Federal Communications Commission 47 CFR Parts 64 and 68 Rules and Regulations Implementing the Telephone Consumer Protection Act (TCPA) of 1991; Final Rule

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FEDERAL COMMUNICATIONS SUPPLEMENTARY INFORMATION: This is a liable for the transmission of unlawful COMMISSION summary of the Commission’s Report facsimile advertisements. and Order (Order) in CG Docket No. 02– National Do-Not-Call List 47 CFR Parts 64 and 68 278, FCC 03–153, adopted on June 26, [CG Docket No. 02–278, FCC 03–153] 2003 and released July 3, 2003. The full 2. Section 227. The TCPA requires the text of this document is available at the Commission to protect residential Rules and Regulations Implementing Commission’s Web site (http:// telephone subscribers’ privacy rights to the Telephone Consumer Protection www.fcc.gov) on the Electronic avoid receiving telephone solicitations Act (TCPA) of 1991 Comment Filing System and for public to which they object. In so doing, 47 inspection and copying during regular U.S.C. 227(c)(1) directs the Commission AGENCY: Federal Communications business hours in the FCC Reference to ‘‘compare and evaluate alternative Commission. Center, Room CY–A257, 445 12th Street, methods and procedures’’ including the ACTION: Final rule. SW., Washington, DC 20554. The use of electronic databases and other complete text may be purchased from alternatives in protecting such privacy SUMMARY: In this document, we revise the Commission’s copy contractor, rights. Pursuant to 47 U.S.C. 227(c)(3), the current Telephone Consumer Qualex International, 445 12th Street, the Commission ‘‘may require the Protection Act of 1991 (TCPA) rules, SW., Room CY–B402, Washington, DC establishment and operation of a single and adopt new rules to provide 20554. To request materials in national database to compile a list of consumers with several options for accessible formats for people with telephone numbers of residential avoiding unwanted telephone disabilities (braille, large print, subscribers who object to receiving solicitations. These new rules establish electronic files, audio format), send an telephone solicitations, and to make that a national do-not-call registry, set a email to [email protected] or call the compiled list and parts thereof available maximum rate on the number of Consumer & Governmental Affairs for purchase.’’ If the Commission abandoned calls, require telemarketers Bureau at (202) 418–0531 (voice) or determines that adoption of a national to transmit caller ID information, and (202) 418–7365 (tty). database is warranted, 47 U.S.C. modify the Commission’s unsolicited Paperwork Reduction Act: The Report 227(c)(3) enumerates a number of facsimile advertising requirements. and Order contains either new and/or specific statutory requirements that DATES: Effective August 25, 2003, except modified information collections. The must be satisfied. Additionally, 47 for § 64.1200(c)(2), which contains the Commission, as part of its continuing U.S.C. 227(c)(4) requires the national do-not-call rules, and will effort to reduce paperwork burdens, Commission to consider the different become effective on October 1, 2003; invites the general public to comment needs of telemarketers operating on a § 64.1200(a)(5) and (a)(6), which contain on the information collection(s) local or regional basis and small the call abandonment rules, and will contained in this Report and Order as businesses. In addition to our general become effective on October 1, 2003; required by the PRA. Public and agency authority over interstate comments are due September 23, 2003. § 64.1601(e), which contains the caller communications, section 2(b) of the ID rules, and will become effective on Synopsis Communications Act specifically January 29, 2004; and provides the Commission with the §§ 64.1200(a)(3)(i), (d)(1), (d)(3), (d)(6), 1. We revise the TCPA rules and adopt new rules to provide consumers authority to apply section 227 to (f)(3), and (g)(1), which contain intrastate communications. information collection requirements with several options for avoiding unwanted telephone solicitations. 3. We conclude that the record under the Paperwork Reduction Act Specifically, we establish with the compiled in this proceeding supports (PRA) that have not been approved by Federal Trade Commission (FTC) a the establishment of a single national the Office of Management and Budget. national do-not-call registry for database of telephone numbers of The Commission will publish a consumers who wish to avoid unwanted residential subscribers who object to document in the Federal Register telemarketing calls. The national do-not- receiving telephone solicitations. announcing the effective date for these call registry will supplement the current Consistent with the mandate of sections. Written comments by the company-specific do-not-call rules for Congress in the Do-Not-Call public on the new and modified those consumers who wish to continue Implementation Act (Do-Not-Call Act), information collections are due requesting that particular companies not the national do-not-call rules that we September 23, 2003. call them. To address the more establish in this order ‘‘maximize ADDRESSES: In addition to filing prevalent use of predictive dialers, we consistency’’ with those of the FTC. The comments with the Office of the have determined that a telemarketer record clearly demonstrates widespread Secretary, a copy of comments on the may abandon no more than three consumer dissatisfaction with the information collection(s) contained percent of calls answered by a person effectiveness of the current rules and herein should be submitted to Leslie and must deliver a prerecorded network technologies available to Smith, Federal Communications identification message when protect consumers from unwanted Commission, Room 1–A804, 445 12th abandoning a call. The new rules will telephone solicitations. Indeed, many Street SW., Washington, DC 20554, or also require all companies conducting consumers believe that with the advent via the Internet to [email protected]. telemarketing to transmit caller of such technologies as predictive FOR FURTHER INFORMATION CONTACT: identification (caller ID) information, dialers that the vices of telemarketing Erica H. McMahon or Richard D. Smith when available, and prohibit them from have become inherent, while its virtues at 202–418–2512, Consumer & blocking such information. The remain accidental. We have compared Governmental Affairs Bureau. For Commission has revised its earlier and evaluated alternative methods to a additional information concerning the determination that an established national do-not-call list for protecting information collection(s) contained in business relationship constitutes consumer privacy rights and conclude this document, contact Les Smith at express invitation or permission to that these alternatives are costly and/or 202–418–0217 or via the Internet at receive an unsolicited fax, and we have ineffective for both telemarketers and [email protected]. clarified when fax broadcasters are consumers. See 47 U.S.C. 227(c)(1)(A).

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4. A national do-not-call registry that not-call registry that will provide unwanted solicitation calls as petty is supplemented by the amendments residential consumers with a one-step annoyances and suggest that consumers made to our existing rules will provide option to prohibit unwanted telephone purchase certain technologies to block consumers with a variety of options for solicitations. This registry will be unwanted calls, the evidence in this managing telemarketing calls. maintained by the FTC. Consistent with record leads us to believe the Consumers may now: (1) Place their the FTC’s determination, the national cumulative effect of these disruptions in number on the national do-not-call list; registry will become effective on the lives of millions of Americans each (2) continue to make do-not-call October 1, 2003. Subject to certain day is significant. As a result, we requests of individual companies on a exemptions, telemarketers will be conclude that adoption of a national do- case-by-case basis; and/or (3) register on prohibited from contacting those not-call list is now warranted. We the national list, but provide specific consumers that register their telephone believe that consumers should, at a companies with express permission to numbers on the national list. In reaching minimum, be given the opportunity to call them. Telemarketers may continue this conclusion, we agree with the vast determine for themselves whether or not to call individuals who do not place majority of consumers in this they wish to receive telephone their numbers on a do-not-call list and proceeding and the FTC that a national solicitation calls in their homes. The consumers with whom they have an do-not-call registry is necessary to national do-not-call list will serve as an established business relationship. We enhance the privacy interests of those option for those consumers who have believe this result is consistent with consumers that do not wish to receive found the company-specific list and Congress’ directive in the TCPA that telephone solicitations. In response to other network technologies ineffective. ‘‘[i]ndividuals’’ privacy rights, public the widespread consumer The telephone network is the primary safety interests, and commercial dissatisfaction with telemarketing means for many consumers to remain in freedoms of speech and trade must be practices, Congress has recently contact with public safety organizations balanced in a way that protects the affirmed its support of a national do- and family members during times of privacy of individuals and permits not-call registry in approving funding illness or emergency. Consumer legitimate telemarketing practices.’’ See for the FTC’s national database. See H.R. frustration with telemarketing practices TCPA, Section 2(9), reprinted in 7 FCC J. Res. 2, 108th Congress at 96 (2003). has reached a point in which many Rcd at 2744. See also H.R. REP. NO. 108–8 at 3 consumers no longer answer their 5. We agree with Congress that (2003), reprinted in 2003 U.S.C.C.A.N. telephones while others disconnect consistency in the underlying 688, 670 (‘‘[i]t is the strongly held view their phones during some hours of the regulations and administration of the of the Committee that a national do-not- day to maintain their privacy. We agree national do-not-call registry is essential call list is in the best interest of with consumers that incessant to avoid consumer confusion and consumers, businesses and consumer telephone solicitations are especially regulatory uncertainty in the protection authorities. This legislation is burdensome for the elderly, disabled, telemarketing industry. In so doing, we an important step toward a one-stop and those that work non-traditional emphasize that there will be one solution to reducing telemarketing hours. Persons with disabilities are centralized national do-not-call database abuses.’’). In so doing, Congress has often unable to register do-not-call of telephone numbers. The FTC has set indicated that this Commission should requests on many company-specific lists up and will maintain the national adopt rules that ‘‘maximize because many telemarketers lack the database, while both agencies will consistency’’ with those of the FTC. The equipment necessary to receive that coordinate enforcement efforts pursuant record in this proceeding is replete with request. Given the record evidence, to a forthcoming Memorandum of examples of consumers that receive along with Congress’s recent affirmative Understanding. The states will also play numerous unwanted calls on a daily support for a national do-not-call an important role in the enforcement of basis. The increase in the number of registry, we adopt a national do-not-call the do-not-call rules. The FTC has telemarketing calls over the last decade registry. We are mindful of the need to received funding approval from combined with the widespread use of balance the privacy concerns of Congress to begin implementation of the such technologies as predictive dialers consumers with the interests of national do-not-call registry. Because has encroached significantly on the legitimate telemarketing practices. the FTC lacks jurisdiction over certain privacy rights of consumers. For Therefore, we have provided for certain entities, including common carriers, banks, insurance companies, and example, the effectiveness of the exemptions to the national do-not-call airlines, those entities would be allowed protections afforded by the company- registry. to continue calling individuals on the specific do-not-call rules have been 8. While we agree that concerns FTC’s list absent FCC action exercising reduced significantly by dead air and regarding the cost, accuracy, and our broad authority given by Congress hang-up calls that result from predictive privacy of a national do-not-call over telemarketers. In addition, the dialers. In these situations, consumers database remain relevant, we believe FTC’s jurisdiction does not extend to have no opportunity to invoke their do- that circumstances have changed intrastate activities. Action by this not-call rights and the Commission significantly since the Commission first Commission to adopt a national do-not- cannot pursue enforcement actions. reviewed this issue over a decade ago call list, as permitted by the TCPA, Such intrusions have led many such that they no longer impose a requires all commercial telemarketers to consumers to disconnect their phones substantial obstacle to the comply with the national do-not-call during portions of the day or avoid implementation of a national registry. requirements, thereby providing more answering their telephones altogether. As several commenters in this comprehensive protections to The adoption of a national do-call-list proceeding note, advances in computer consumers and consistent treatment of will be an important tool for consumers technology and software now make the telemarketers. that wish to exercise control over the compilation and maintenance of a increasing number of unwanted national database a more reasonable National Do-Not-Call Registry telephone solicitation calls. proposition. In addition, considerable 6. Pursuant to our authority under 47 7. Although some industry experience has been gained through the U.S.C. 227(c), we adopt a national do- commenters attempt to characterize implementation of many state do-not-

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call lists. In 1992, it was estimated by sellers will receive from the national wireless subscribers may not participate some commenters that the cost of registry is the registrant’s telephone in the do-not-call list. Nextel Comments establishing such a list in the first year number. This is the minimum amount at 19. Nextel states we should define could be as high as $80 million. of information that can be provided to ‘‘residential subscribers’’ to mean Congress has recently reviewed and implement the national registry. We ‘‘telephone service used primarily for approved the FTC’s request for $18.1 note that the majority of telephone communications in the subscriber’s million to fund the national do-not-call numbers are publicly available through residence.’’ However, Nextel’s list. We believe that the advent of more telephone directories. To the extent that application would result in ‘‘[a]t most, efficient technologies and the consumers have an unlisted number, the the Commission [having the] authority experience acquired in dealing with consumer will have to make a choice as to regulate solicitations to wireless similar databases at the state level is to whether they prefer to register on a subscribers in those circumstances responsible for this substantial national do-not-call list or maintain where wireless service actually has reduction in cost. complete anonymity. We reiterate, displaced a residential land line, and 9. Similarly, we believe that however, that the only information that functions as a consumer’s primary technology has become more proficient will be provided to the telemarketer is residential telephone service.’’ Nextel in ensuring the accuracy of a national the telephone number of the consumer. Comments at 21. database. The FTC indicates that to The ‘‘seller’’ and ‘‘telemarketer’’ may be 13. Nextel’s definition of ‘‘residential guard against the possibility of the same entity or separate entities. subscribers’’ is far too restrictive and including disconnected or reassigned Each entity on whose behalf the inconsistent with the intent of section telephone numbers, technology will be telephone call is being made must 227. Specifically, there is nothing in employed on a monthly basis to check purchase access to the do-not-call section 227 to suggest that only a all registered telephone numbers against database. No corresponding name or customer’s ‘‘primary residential national databases, and remove those address information will be provided. telephone service’’ was all that Congress numbers that have been disconnected or We believe that this approach reduces sought to protect through the TCPA. In reassigned. The length of time that the privacy concerns of such consumers addition, had Congress intended to registrations remain valid also directly to the greatest extent possible. As an exclude wireless subscribers from the affects the accuracy of the registry as additional safeguard, we find that benefits of the TCPA, it knew how to telephone numbers change hands over restrictions should be imposed on the address wireless services or consumers time. We conclude that the retention use of the national list. Consistent with explicitly. For example, in section period for both the national and the FTC’s determination and 47 U.S.C. 227(b)(1), Congress specifically company-specific do-not-call requests 227(c)(3)(K), we conclude that no prohibited calls using automatic will be five years. See FTC Order, 68 FR person or entity may sell, rent, lease, telephone dialing systems or artificial or 4580 at 4640 (January 29, 2003). Our purchase, or use the national do-not-call prerecorded voice to telephone numbers rules previously required a company- database for any purpose except assigned to ‘‘paging service [or] cellular specific do-not-call request to be compliance with section 227 and any telephone service * * *.’’ Moreover, honored for ten years. See 47 CFR such state or federal law to prevent under Nextel’s definition, even 64.1200(e)(2)(vi). Five years is telephone solicitations to telephone consumers who use their wireless consistent with the FTC’s determination numbers on such list. See 47 U.S.C. telephone service in their homes to and our own record that reveals that the 227(c)(3)(K). See also 16 CFR supplement their residential wireline current ten-year retention period for 310.4(b)(2). We conclude that these service, such as by using their wireless company-specific requests is too long safeguards adequately protect the telephone service to make long distance given changes in telephone numbers. privacy rights of those consumers who phone calls to avoid wireline toll Consumers must also register their do- choose to register on the national do- charges, would be excluded from the not-call requests from either the not-call list. protections of the TCPA. Such an telephone number of the phone that 11. We conclude that the national interpretation is at odds even with they wish to register or via the Internet. database should allow for the Nextel’s own reasoning for its The FTC will confirm the accuracy of registration of wireless telephone definition—that the TCPA’s goal is ‘‘to such registrations through the use of numbers, and that such action will curb the ‘pervasive’ use of telemarketing automatic number identification (ANI) better further the objectives of the TCPA ‘to market goods and services to the and other technologies. The term ‘‘ANI’’ and the Do-Not-Call Act. In so doing, we home’.’’ Nextel Comments at 20. It is refers to the delivery of the calling agree with the FTC and several well established that wireless party’s billing number by a local commenters that wireless subscribers subscribers often use their wireless exchange carrier to any interconnecting should not be excluded from the phones in the same manner in which carrier for billing or routing purposes, protections of the TCPA, particularly they use their residential wireline and to the subsequent delivery of such the option to register on a national do- phones. Indeed, as even Nextel number to end users. 47 CFR 64.1600(b). not-call list. Congress has indicated its recognizes, there is a growing number of We believe that a five-year registration intent to provide significant protections consumers who no longer maintain period coupled with a monthly purging under the TCPA to wireless users. 47 wireline phone service, and rely only on of disconnected telephone numbers U.S.C. 227(b)(1)(iii). Allowing wireless their wireless telephone service. Thus, adequately balances the need to subscribers to register on a national do- we are not persuaded by Nextel’s maintain accuracy in the national not-call list furthers the objectives of the arguments. registry with any burden imposed on TCPA, including protection for wireless 14. Moreover, we believe it is more consumers to re-register periodically subscribers from unwanted telephone consistent with the overall intent of the their telephone numbers. solicitations for which they are charged. TCPA to allow wireless subscribers to 10. We conclude that appropriate 12. Nextel Communications, Inc. benefit from the full range of TCPA action has been taken to ensure the (Nextel) argues, however, that, because protections. Congress afforded wireless privacy of those registering on the the ‘‘TCPA only authorizes the subscribers particular protections in the national list. Specifically, the only Commission to regulate solicitations to context of autodialers and prerecorded consumer information telemarketers and ‘residential telephone subscribers,’’’ calls. 47 U.S.C. 227(b)(1)(A)(iii). In

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addition, although Congress expressed national do-not-call rules will also not documenting this process; and (v) any concern with residential privacy, it also prohibit calls to businesses and persons subsequent call otherwise violating the was concerned with the nuisance, with whom the marketer has a personal do-not-call rules is the result of error. expense and burden that telephone relationship. Telemarketers may We acknowledge that the three-month solicitations place on consumers. continue to contact all of these safe harbor period for telemarketers may Therefore, we conclude that wireless consumers despite the adoption of a prove to be too long to benefit some subscribers may participate in the national do-not-call list. Furthermore, consumers. The national do-not-call list national do-not-call list. As a practical we decline to adopt more restrictive do- has the capability to process new matter, since determining whether any not-call requirements on telemarketers registrants virtually instantaneously and particular wireless subscriber is a as suggested by several commenters. For telemarketers will have the capability to ‘‘residential subscriber’’ may be more example, we decline to adopt an ‘‘opt- download the list at any time at no extra fact-intensive than making the same in’’ approach that would ban cost. The Commission intends to determination for a wireline subscriber, telemarketing to any consumer who has monitor carefully the impact of this we will presume wireless subscribers not expressly agreed to receive requirement pursuant to its annual who ask to be put on the national do- telephone solicitations. We believe that report to Congress and may consider a not-call list to be ‘‘residential establishing such an approach would be shorter time frame in the future. subscribers.’’ This presumption is only overly restrictive on the telemarketing 17. As required by 47 U.S.C. for the purposes of section 227 and is industry. We also decline to extend the 227(c)(1)(A), we have compared and not in any way indicative of any attempt national do-not-call requirements to tax- evaluated the advantages and to classify or regulate wireless carriers exempt nonprofit organizations or disadvantages of certain alternative for purposes of other parts of Title II. entities that telemarket on behalf of methods to protect consumer privacy Such a presumption, however, may nonprofit organizations. including the use of network 16. We agree with the FTC that a safe require a complaining wireless technologies, special directory harbor should be established for subscriber to provide further proof of markings, and company-specific lists in telemarketers that have made a good the validity of that presumption should adopting a national do-not-call database. faith effort to comply with the national we need to take enforcement action. The effectiveness of the company- 15. We emphasize that it is not our do-not-call rules. A seller or specific approach has significantly intent in adopting a national do-not-call telemarketer acting on behalf of the eroded as a result of hang-up and ‘‘dead list to prohibit legitimate telemarketing seller that has made a good faith effort air’’ calls from predictive dialers. practices. We believe that industry to provide consumers with an Consumers in these circumstances have commenters present a false choice opportunity to exercise their do-not-call no opportunity to assert their do-not- between the continued viability of the rights should not be liable for violations call rights. We believe that, as a stand- telemarketing industry and the adoption that result from an error. Consistent alone option, the company-specific of a national do-not-call list. We are not with the FTC, we conclude that a seller approach no longer provides consumers persuaded that the adoption of a or the entity telemarketing on behalf of with sufficient privacy protections. We national do-not-call list will unduly the seller will not be liable for violating also conclude that the availability of interfere with the ability of the national do-not-call rules if it can certain network technologies to reduce telemarketers to contact consumers. demonstrate that, as part of the seller’s telephone solicitations is often Many consumers will undoubtedly take or telemarketer’s routine business ineffective and costly for consumers. advantage of the opportunity to register practice: (i) It has established and Although technology has improved to on the national list. Several industry implemented written procedures to assist consumers in blocking unwanted commenters suggest, however, that comply with the do-not-call rules; (ii) it calls, it has also evolved in such a way consumers derive substantial benefits has trained its personnel, and any entity as to assist telemarketers in making from telephone solicitations. If so, many assisting in its compliance, in the greater numbers of calls and even such consumers will choose not to procedures established pursuant to the circumventing such blocking register on the national do-not-call list do-not-call rules; (iii) the seller, or technologies. Millions of consumers and will opt instead to make do-not-call telemarketer acting on behalf of the continue to register on state do-not-call requests on a case-by-case basis or give seller, has maintained and recorded a lists despite the availability of such express permission to be contacted by list of telephone numbers the seller may technologies. Several commenters note specific companies. In addition, we not contact; (iv) the seller or that they continue to receive unwanted have provided for certain exemptions to telemarketer uses a process to prevent calls despite paying for technologies to the do-not-call registry in recognition of telemarketing to any telephone number reduce telephone solicitations. Several legitimate telemarketing business on any list established pursuant to the commenters also note that telemarketers practices. For example, sellers of goods do-not-call rules employing a version of routinely block transmission of caller or services via telemarketing may the do-not-call registry obtained from ID. In particular, we are concerned that continue to contact consumers on the the administrator of the registry no more the cost of technologies such as caller national list with whom they have an than three months prior to the date any ID, call blocking, and other such tools established business relationship. We call is made, and maintains records in an effort to reduce telemarketing calls also note that calls that do not fall fall entirely on the consumer. We within the definition of ‘‘telephone Moreover, responding to such a ‘‘survey’’ does not constitute express permission or establish a believe that reliance on a solution that solicitation’’ as defined in section business relationship exemption for purposes of a places the cost of reducing the number 227(a)(3) will not be precluded by the subsequent telephone solicitation. See H.R. Rep. of unwanted solicitation calls entirely national do-not-call list. These may No. 102–317 at 13 (‘‘[T]he Committee does not on the consumer is inconsistent with include surveys, market research, intend the term ‘‘telephone solicitation’’ to include public opinion polling, consumer or market Congress’ intent in the TCPA. For the political or religious speech calls.1 The surveys, or other survey research conducted by reasons outlined in the 1992 TCPA telephone. A call encouraging purchase, rental, or 1 Such calls may be prohibited if they serve as a investment would fall within the definition, Order, we also decline to adopt special pretext to an otherwise prohibited advertisement or however, even though the caller purports to be area codes or prefixes for telemarketers. a means of establishing a business relationship. taking a poll or conducting a survey.’’). We believe this option is costly for

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telemarketers that would be required to for the administration of the national agreement between the consumer and change their telephone numbers and list only for the FTC, this Commission the seller which states that the administratively burdensome to would be forced to stay implementation consumer agrees to be contacted by this implement. We also decline to adopt of any national list should the plaintiffs seller, including the telephone number special directory markings of area white prevail in one of those proceedings. to which the calls may be placed. For page directories because it would purposes of this exemption, the term Exemptions require telemarketers to purchase and ‘‘signed’’ shall include an electronic or review thousands of local telephone 20. Established Business Relationship. digital form of signature, to the extent directories, at great cost to the We agree with the majority of industry that such form of signature is recognized telemarketers. We also note that commenters that an exemption to the as a valid signature under applicable telemarketers often compile solicitation national do-not-call list should be federal or state contract law. Consumers lists from many sources other than local created for calls to consumers with registered on the national list may wish telephone directories. In addition, such whom the seller has an established to have the option to be contacted by directories do not include unlisted or business relationship. We note that 47 particular entities. Therefore, we unregistered telephone numbers and are U.S.C. 227(a)(3) excludes from the conclude that sellers may obtain the often updated infrequently. We also definition of telephone solicitation calls express written agreement to call such note that the record in this proceeding made to any person with whom the consumers. The express agreement provides little support for this option. caller has an established business between the parties shall remain in 18. We now review the other relationship. We believe the ability of effect as long as the consumer has not requirements of 47 U.S.C. 227(c)(1). As sellers to contact existing customers is asked to be placed on the seller’s required by section 227(c)(1)(B), we an important aspect of their business company-specific do-not-call list. If the have evaluated AT&T Government plan and often provides consumers with consumer subsequently requests not to Solutions, the entity selected by the FTC valuable information regarding products be called, the seller must cease calling to administer the national database, and or services that they may have the consumer regardless of whether the conclude that it has the capacity to purchased from the company. For consumer continues to do business with establish and administer the national example, magazines and newspapers the seller. We also note that database. Congress has reviewed and may want to contact customers whose telemarketers may not call consumers approved funding for the subscriptions have or soon will expire on the national do-not-call list to implementation of that database. We and offer new subscriptions. This request their written permission to be believe that it is unnecessary to evaluate conclusion is consistent with that of the called unless they fall within some any other such entities at this time. We FTC and the majority of states that have other exemption. We believe that to have considered whether different adopted do-not-call requirements and allow such calls would circumvent the methods and procedures should apply considered this issue. We revise the purpose of this exemption. Prior express for local telephone solicitations and definition of an established business permission must be obtained by some small businesses as required by section relationship so that it is limited in other means such as direct mailing. 227(c)(1)(C). We conclude that the duration to eighteen (18) months from 23. Tax-Exempt Nonprofit national do-not-call database takes into any purchase or transaction and three Organizations. We agree with those consideration the costs of those (3) months from any inquiry or commenters that contend that the conducting telemarketing on a local or application. national do-not-call requirements regional basis, including many small 21. To the extent that some consumers should not be extended to tax-exempt businesses. In particular, we note that oppose this exemption, we find that nonprofit organizations or calls made by the national do-not-call database will once a consumer has asked to be placed independent telemarketers on behalf of permit access to five or fewer area codes on the seller’s company-specific do-not- tax-exempt nonprofit organizations. We at no cost to the seller. Pursuant to call list, the seller may not call the note that 47 U.S.C. 227(a)(3) specifically section 227(c)(1)(D), we have considered consumer again regardless of whether excludes calls made by tax-exempt whether there is a need for additional the consumer continues to do business nonprofit organizations from the authority to further restrict telephone with the seller. We believe this definition of telephone solicitation. In solicitations. We conclude that no such determination constitutes a reasonable so doing, we believe Congress clearly authority is required at this time. balance between the interests of intended to exclude tax-exempt Pursuant to the Do-Not-Call Act, the consumers that may object to such calls nonprofit organizations from Commission must report to Congress on with the interests of sellers in contacting prohibitions on telephone solicitations an annual basis the effectiveness of the their customers. This conclusion is also under the TCPA. The legislative history do-not-call registry. Should the consistent with that of the FTC. indicates that commercial calls Commission determine that additional 22. Prior Express Permission. In constitute the bulk of all telemarketing authority is required over telephone addition to the established business calls. A number of commenters and the solicitations as part of that analysis; the relationship exemption, we conclude FTC agree with Congress’ conclusion as Commission will propose specific that sellers may contact consumers it relates to a national do-not-call list. restrictions pursuant to that report. As registered on a national do-not-call list For this reason, we decline to extend the required by section 227(c)(1)(E), we if they have obtained the prior express national do-not-call requirements to tax- have developed regulations to permission of those consumers. We note exempt nonprofit organizations. A few implement the national do-not-call that section 227(a)(3) excludes from the commenters seek clarification that database in the most effective and definition of telephone solicitation calls requests for blood donations will be efficient manner to protect consumer to any person with ‘‘that person’s prior exempt from the national do-not-call privacy needs while balancing express invitation or permission.’’ list. When such requests are made by legitimate telemarketing interests. Consistent with the FTC’s tax-exempt nonprofit organizations, 19. The FTC’s decision to adopt a determination, we conclude that for they will fall within the exemption for national do-not-call list is currently purposes of the national do-not-call list tax-exempt nonprofit organizations. under review in federal district court. such express permission must be 24. Others. We decline to create Because Congress has approved funding evidenced only by a signed, written specific exemptions to the national do-

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not-call requirements for entities such persons with whom the marketer has a business or entity making a ‘‘de as newspapers, magazines, regional personal relationship. Accordingly, we minimis’’ number of calls. telemarketers, or small businesses. We find that these calls do not represent the 28. In response to the Rules and find unpersuasive arguments that type of ‘‘telephone solicitations to Regulations Implementing the application of the national do-not-call which [telephone subscribers] object’’ Telephone Consumer Protection Act of database adopted herein will result in discussed in 47 U.S.C. 227(c)(1). 1991, Further Notice of Proposed severe economic consequences for these Moreover, we conclude that the Rulemaking, CG Docket No. 02–278, entities. In particular, we note the Commission also has authority to FCC 03–62 published at 68 FR 16250, exemptions adopted for calls made to recognize this limited carve-out April 3, 2003 (FNPRM) a few consumers with whom the seller has an pursuant to 47 U.S.C. 227(c)(1)(E). This commenters contend that any new rules established business relationship and subsection provides the Commission the Commission adopts would not apply those that have provided express with discretion in implementing rules to to entities engaged in the business of agreement to be called. As noted, many protect consumer privacy to ‘‘develop insurance, because such rules would consumers may also determine not to proposed regulations to implement the conflict with the McCarran-Ferguson register on the national database. methods and procedures that the Act. The McCarran-Ferguson Act Telemarketers may continue to contact Commission determines are the most provides that ‘‘[t]he business of all of these consumers. We believe these effective and efficient to accomplish the insurance * * * shall be subject to the exemptions provide telemarketers with purpose of this section.’’ 47 U.S.C. laws of the * * * States which relate to a reasonable opportunity to conduct 227(c)(1)(E). To the extent that any the regulation * * * of such business.’’ their business while balancing consumer objects to such calls, the 15 U.S.C. 1012(a). The McCarran- consumer privacy interests. Although consumer may request to be placed on Ferguson Act further provides that ‘‘[n]o we agree that newspapers and other the telemarketer’s company’s company- Act of Congress shall be construed to entities may often provide useful specific do-not-call list. We intend to invalidate, impair, or supersede any law information and services to the public, monitor these rules and caution that any enacted by any State for the purpose of given our conclusion that adoption of individual or entity relying on personal regulating the business of insurance the national do-not-call list will not relationships abusing this exemption * * * unless such Act specifically unduly interfere with the ability of may be subject to enforcement action. relates to the business of insurance.’’ 15 telemarketers to reach consumers, we do 26. In addition, we decline to extend U.S.C. 1012(b). American Council of Life Insurers (ACLI) explains that not find this to be a compelling basis to this approach beyond persons that have insurers’ marketing activities are exempt these entities. a personal relationship with the extensively regulated at the state level. marketer. For example, Vector urges the 25. We find that the national do-not- The Commission’s proposal, ACLI Commission to adopt an exemption that call rules do not apply to calls made to argues, ‘‘intrudes upon the insurance covers ‘‘face-to-face’’ appointment calls persons with whom the marketer has a regulatory framework established by the to anyone known personally to the personal relationship. As discussed states’’ and, therefore, should not be ‘‘referring source.’’ We note that such herein, a ‘‘personal relationship’’ refers applicable to insurers under McCarran- relationships become increasingly to an individual personally known to Ferguson. the telemarketer making the call. In tenuous as they extend to individuals 29. The McCarran-Ferguson Act does such cases, we believe that calls to not personally known to the marketer not operate to exempt insurance family members, friends and and thus such calls are more likely to be companies wholesale from liability acquaintances of the caller will be both unexpected to the recipient and more under the TCPA. It applies only when expected by the recipient and limited in voluminous. Accordingly, referrals to their activities constitute the ‘‘business number. In determining whether a persons that do not have a personal of insurance,’’ the state has enacted laws telemarketer is considered a ‘‘friend’’ or relationship with the marketer will not ‘‘for the purpose of regulating’’ the ‘‘acquaintance’’ of a consumer, we will fall within the category of calls business of insurance, and the TCPA look at, among other things, whether a discussed above. would ‘‘impair, invalidate, or reasonable consumer would expect calls 27. We also decline to establish an supersede’’ such state laws. See 15 from such a person because they have exemption for calls made to set ‘‘face-to- U.S.C. 1012(b). In the one case cited by a close or, at least, firsthand face’’ appointments per se. We conclude commenters as addressing the interplay relationship. If a complaining consumer that such calls are made for the purpose between McCarran-Ferguson and the were to indicate that a relationship is of encouraging the purchase of goods TCPA, a federal district court dismissed not sufficiently personal for the and services and therefore fall within a claim brought against two insurance consumer to have expected a call from the statutory definition of telephone companies under the TCPA for sending the marketer, we would be much less solicitation. We find no reason to unsolicited facsimile advertisements. likely to find that the personal conclude that such calls are somehow The Chair King, Inc. v. Houston Cellular relationship exemption is applicable. less intrusive to consumers than other Corp., 1995 WL 1760037 (S.D. Tex. While we do not adopt a specific cap on commercial telephone solicitations. The 1995), vacated for lack of subject matter the number of calls that a marketer may FTC has reviewed this issue and jurisdiction 131 F.3d 507 (5th Cir. 1997). make under this exemption, we reached the same conclusion. In The Chair King court found that the underscore that the limited nature of the addition, we decline to exempt entities TCPA conflicted with a Texas law that exemption creates a strong presumption that make a ‘‘de minimis’’ number of prohibited untrue, deceptive, or against those marketers who make more commercial telemarketing calls. In misleading advertising by insurers and than a limited number of calls per day. contrast to Congress’ rationale for their agents. In its analysis, the court Therefore, the two most common exempting nonprofit organizations, we determined that insurance advertising sources of consumer frustration believe that such commercial calls was part of the ‘‘business of insurance,’’ associated with telephone continue to be unexpected to consumers and that the Texas law in question was solicitations—high volume and even if made in low numbers. We do not enacted for the purpose of regulating the unexpected solicitations—are not likely believe the costs to access the national business of insurance. The court then present when such calls are limited to database is unreasonable for any small concluded that because the TCPA

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‘‘prohibits unsolicited insurance small entities to make a significant further evaluation, the FTC selected advertising by facsimile while the Texas number of solicitation calls, we believe AT&T Government Solutions as the [laws] permit [such] advertising * * * that to do so would undermine the successful vendor for the national do- so long as the advertisements are effectiveness of the national do-not-call not-call database on March 1, 2003. truthful and not misleading,’’ the TCPA rules in protecting consumer privacy Congress has approved the necessary conflicts with the Texas law and is and create consumer confusion and funding for implementation of the preempted under McCarran-Ferguson. frustration. In so doing, we conclude national database. See 47 U.S.C. 227(b)(1)(C) and (a)(4). that the approach adopted herein 34. Pursuant to sections 227(c)(3)(B) 30. To the extent that any state law satisfies section 227(c)(4)’s requirement through (c)(3)(C), we require each regulates the ‘‘business of insurance’’ that the Commission, in developing common carrier providing telephone and the TCPA is found to ‘‘invalidate, procedures for gaining access to the exchange service to inform subscribers impair, or supersede’’ such state law, it database, consider the different needs of for telephone exchange service of the is possible that a particular activity telemarketers conducting business on a opportunity to provide notification that involving the business of insurance national, regional, State, or local level such subscriber objects to receiving would not fall within the reach of the and develop a fee schedule for telephone solicitations. Each telephone TCPA. Any determination about the recouping the cost of such database that subscriber shall be informed, by the applicability of McCarran-Ferguson, recognizes such differences. The common carrier that provides local however, requires an analysis of the national database will be available for exchange service to that subscriber, of particular activity and State law purchase by sellers on an area-code-by- (i) the subscriber’s right to give or regulating it. In addition, McCarran- area-code basis. The cost to access the revoke a notification of an objection to Ferguson applies only to federal statutes database will vary depending on the receiving telephone solicitations that ‘‘invalidate, impair, or supersede’’ number of area codes requested. Sellers pursuant to the national database and state insurance regulation. Courts have need only purchase those area codes in (ii) the methods by which such rights held that duplication of state law which the seller intends to telemarket. may be exercised by the subscriber. prohibitions by a federal statute do not In fact, sellers that request access to five Pursuant to section 227(c)(3)(C), we ‘‘invalidate, impair, or supersede’’ state or fewer area codes will be granted conclude that, beginning on January 1, laws regulating the business of access to those area codes at no cost. We 2004, such common carriers shall insurance. Nor is the mere presence of note that thirty-three states currently provide an annual notice, via an insert a regulatory scheme enough to show have five or fewer area codes. Thus, in the customer’s bill, to inform their that a state statute is ‘‘invalidated, telemarketers or sellers operating on a subscribers of the opportunity to register impaired or superseded.’’ ‘‘local’’ or ‘‘regional’’ basis within one of or revoke registrations on the national 31. We believe that the TCPA, which these thirty-three states will have access do-not-call database. Although we do was enacted to protect consumer to all of that state’s national do-not-call not specify the exact description or form privacy interests, is compatible with registrants at no cost. In addition, the that such notification should take, such states’ regulatory interests. In fact, the national database will provide a single notification must be clear and TCPA permits States to enforce the number lookup feature whereby a small conspicuous. At a minimum, it must provisions of the TCPA on behalf of number of telephone numbers can be include the toll-free telephone number residents of their State. 47 U.S.C. entered on a web page to determine and Internet address established by the 227(f)(1). In addition, we believe that whether any of those numbers are FTC to register or revoke registrations uniform application of the national do- included on the national registry. We on the national do-not-call database. not-call registry to all entities that use believe this fee structure adequately 35. Section 227(c)(3)(D) requires the the telephone to advertise best serves reflects the needs of regional Commission to specify the methods by the goals of the TCPA. To exempt the telemarketers, small business and those which registrations shall be collected insurance industry from liability under marketing on a de minimis level. For and added to the database. Consumers the TCPA would likely confuse these reasons, we conclude that this will be able to add their telephone consumers and interfere with the approach will not place any numbers to the national do-not-call protections provided by Congress unreasonable costs on small businesses. registry either through a toll-free through the TCPA. Therefore, to the 47 U.S.C. 227(c)(4)(B)(iii). telephone call or over the Internet. extent that the operation of McCarran- Consumers who choose to register by Ferguson on the TCPA is unclear, we Section 227(c)(3) Requirements phone will have to call the registration will raise this issue in our Report to 33. We conclude that the national do- number from the telephone line that Congress as required by the Do-Not-Call not-call database adopted jointly by this they wish to register. Their calls will be Act. Commission and the FTC satisfies each answered by an Interactive Voice 32. We conclude that the national do- of the statutory requirements outlined in Response (IVR) system. The consumers not-call mechanism established by the 47 U.S.C. 227(c)(3)(A) through (c)(3)(L). will be asked to enter on their telephone FTC and this Commission adequately We now discuss each such requirement. keypad the telephone number from takes into consideration the needs of Section 227(c)(3)(A) requires the which the consumer is calling. This small businesses and entities that Commission to specify the method by number will be checked against the ANI telemarket on a local or regional basis in which an entity to administer the that is transmitted with the call. If the gaining access to the national database. national database will be selected. On number entered matches the ANI, then As required by 47 U.S.C. 227(c)(1)(C), August 2, 2002, the FTC issued a the consumer will be informed that the we have considered whether different Request for Quotes (RFQ) to selected number has been registered. Consumers procedures should apply for local vendors on GSA schedules seeking who choose to register over the Internet solicitations and small businesses. We proposals to develop, implement, and will go to a Web site dedicated to the decline, however, to exempt such operate the national registry. After registration process where they will be entities from the national do-not-call evaluating those proposals, the FTC asked to enter the telephone number requirements. Given the large number of selected a competitive range of vendors they wish to register. We encourage the entities that solicit by telephone, and and issued an amended RFQ to those FTC to notify consumers in the IVR the technological tools that allow even vendors on November 25, 2002. After message that the national registry will

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prevent most, but not all, telemarketing maximum annual fee of $7,250 for and requires the Commission to specify calls. Specifically, we believe access to the entire national database. methods for protection of the privacy consumers should be informed that the Sellers may request access to five or less rights of persons whose numbers are do-not-call registry does not apply to area codes for free. Each entity on included in such database. Consistent tax-exempt nonprofit organizations and whose behalf the telephone solicitation with the determination of the FTC, we companies with whom consumers have is being made must pay this fee via conclude that any law enforcement an established business relationship. credit card or electronic funds transfer. agency that has responsibility to enforce The effectiveness and value of the After payment is processed, the federal or state do-not-call rules or national registry depends largely on an telemarketer will be given an account regulations will be permitted to access informed public. Therefore, we also number and permitted to access the the appropriate information in the intend to emphasize in our educational appropriate portions of the registry. national registry. This information will materials and on our Web site the Telemarketers will be permitted to be obtained through a secure Internet purpose and scope of the new rules. access the registry as often as they wish Web site. Such law enforcement access 36. Section 227(c)(3)(E) prohibits any for no additional cost, once the annual to data in the national registry is critical residential subscriber from being fee is paid. to enable state Attorneys General, public charged for giving or revoking 38. Section 227(c)(3)(I) requires the utility commissions or an official or notification to be included on the Commission to specify the frequency agency designated by a state, and other national do-not-call database. with which the national database will appropriate law enforcement officials to Consumers may register or revoke do- be updated and specify the method by gather evidence to support enforcement not-call requests either by a toll-free which such updates will take effect for of the do-not-call rules under the state telephone call or over the Internet. No purposes of compliance with the do-not- and federal law. In addition, we have charge will be imposed on the call regulations. Because the registration imposed restrictions on the use of the consumer. Section 227(c)(3)(F) prohibits process will be completely automated, national list. Consistent with the FTC’s any person from making or transmitting updates will occur continuously. determination, we have concluded that a telephone solicitation to the telephone Consumer registrations will be added to no person or entity may sell, rent, lease, number of any subscriber included on the registry at the same time they purchase, or use the national do-not-call the national database. Subject to the register—or at least within a few hours database for any purpose except exemptions, we adopt rules herein that after they register. The safe harbor compliance with section 227 and any will prohibit telephone solicitations to provision requires telemarketers to such state or federal law to prevent those consumers that have registered on employ a version of the registry telephone solicitations to telephone the national database. See also 16 CFR obtained not more than three months numbers on such list. We specifically 310.4(b)(1)(iii)(B). before any call is made. Thus, prohibit any entity from purchasing this 37. Section 227(c)(3)(G) requires the telemarketers will be required to update list from any entity other than the Commission to specify (i) the methods their lists at least quarterly. Instead of national do-not-call administrator or by which any person deciding to make making the list available on specific dispensing the list to any entity that has telephone solicitations will obtain dates, the registry will be available for not paid the required fee to the access to the database, by area code or downloading on a constant basis so that administrator. The only information that local exchange prefix, and (ii) the costs telemarketers can access the registry at will be made available to telemarketers to be recovered from such persons. any time. As a result, each is the telephone number of consumers Section 227(c)(3)(H) requires the telemarketer’s three-month period may registered on the list. Given the Commission to specify the methods for begin on different dates. Appropriate restrictions imposed on the use of the recovering, from the persons accessing state and federal regulators will be national database and the limited the database, the costs involved in the capable of verifying when the amount of information provided, we operations of the database. To comply telemarketer last accessed the list. In believe that adequate privacy with the national do-not-call rules, addition, the administrator will check protections have been established for telemarketers must gain access to the all telephone numbers in the do-not-call consumers. telephone numbers in the national registry each month against national database. Telemarketers will have databases, and those numbers that have 40. Section 227(c)(3)(L) requires each access to the national database by means been disconnected or reassigned will be common carrier providing services to of a fully-automated, secure Web site removed from the registry. We any person for the purpose of making dedicated to providing information to encourage parties that may have specific telephone solicitations to notify such these entities. The first time a recommendations on ways to improve person of the requirements of the telemarketer accesses the system, the the overall accuracy of the database in national do-not-call rules and the company will be asked to provide removing disconnected and reassigned regulations thereunder. We therefore certain limited identifying information, telephone numbers to submit such require common carriers, beginning such as name and address, contact proposals to our attention and to the January 1, 2004, to make a one-time person, and contact person’s telephone FTC directly. notification to any person or entity number and address. If a telemarketer is 39. Section 227(c)(3)(J) requires that making telephone solicitations that is accessing the registry on behalf of a the Commission’s regulations be served by that carrier of the national do- client seller, the telemarketer will also designed to enable states to use the not-call requirements. We do not specify need to identify that client. When a database for purposes of administering the exact description or form that such telemarketer first submits an application or enforcing state law. In fact, 47 U.S.C. notification should take. At a minimum, to access registry information, the 227(e)(2) prohibits states from using any it must include a citation to the relevant company will be asked to specify the database that does not include the part federal do-not-call rules as set forth in area codes they want to access. An of the national database that relates to 47 CFR 64.1200 and 16 CFR part 310, annual fee will be assessed based upon such state. Section 227(c)(3)(K) respectively. Although we recognize the number of area codes requested. The prohibits the use of the database for any that carriers may not be capable of FTC has proposed that sellers be purpose other than compliance with the identifying every person or entity charged $29 per area code with a do-not-call rules and any such state law engaged in telephone solicitations

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served by that carrier, we require speech into their homes and that the regulations that address this problem carriers to make reasonable efforts to government may protect this freedom.’’ serve a substantial government interest. comply with this requirement. We note Frisby v. Schultz, 487 U.S. 474, 485. See 45. Under Central Hudson’s second that failure to give such notice by the also Federal Communications prong, we find that the Commission’s common carrier to a telemarketer served Commission v. Pacifica Foundation, 438 regulations directly advance the by that carrier will not excuse the U.S. 726, 748 (1978) (‘‘[I]n the privacy substantial government interest. Under telemarketer from violations of the of the home, * * * the individual’s this prong, the government must Commission’s rules. right to be left alone plainly outweighs demonstrate that ‘‘the harms it recites are real and that its restriction will in Constitutionality the First Amendment rights of an intruder.’’). fact alleviate them to a material degree.’’ 41. We conclude that a national do- 43. In particular, the government has Florida Bar v. Went For It, Inc., 515 U.S. not-call registry is consistent with the an interest in upholding the right of 618, 626 (1995) (citations omitted). It First Amendment. We believe, like the residents to bar unwanted speech from may justify the restrictions on speech FTC, that our regulations satisfy the their homes. In Rowan v. United States ‘‘based solely on history, consensus, and criteria set forth in Central Hudson Gas Post Office, the Supreme Court upheld ‘‘simple common sense. ’’ Id. at 628 & Elec. v. Pub. Serv. Comm. of N.Y., in a statute that permitted a person to (citation omitted). Creating and which the Supreme Court established require that a mailer remove his name implementing a national do-not-call the applicable analytical framework for from its mailing lists and stop all future registry will directly advance the determining the constitutionality of a mailings to the resident: government’s interest in protecting regulation of commercial speech. residential privacy from unwanted Central Hudson Gas & Elec. v. Pub. The Court has traditionally respected the telephone solicitations. Congress, Serv. Comm. of N.Y., 447 U.S. 557 right of a householder to bar, by order or consumers, state governments and the (1980). See Kathryn Moser v. Federal notice, solicitors, hawkers, and peddlers from FTC have reached the same conclusion. Communications Commission, 46 F.3d his property. In this case the mailer’s right to communicate is circumscribed only by an The history of state administered do- 970 (9th Cir. 1995) (Moser) cert. denied, affirmative act of the addressee giving notice not-call lists demonstrates that such do- 515 U.S. 1161 (1995) (upholding ban on that he wishes no further mailings from that not-call programs have a positive impact prerecorded telephone calls); State of mailer. * * * In effect, Congress has erected on the ability of many consumers to Missouri v. American Blast Fax, 323 a wall—or more accurately permits a citizen protect their privacy by reducing the F.3d 649 (8th Cir. 2003) (American Blast to erect a wall—that no advertiser may number of unwanted telephone Fax), pet. for rehearing pending penetrate without his acquiescence. solicitations that they receive each day. (upholding ban on unsolicited fax Rowan v. United States Post Office, 397 Congress has reviewed the FTC’s advertising) and Destination Ventures v. U.S. 728 at 737–738 (1970). decision to establish a national do-not- Federal Communications Commission, call list and concluded that the do-not- 46 F.3d 54 (9th Cir.1995) (Destination 44. Here, the record supports that the call initiative will provide significant Ventures) (upholding ban on unsolicited government has a substantial interest in benefits to consumers throughout the fax advertising). Our conclusion is also regulating telemarketing calls. In 1991, United States. We reject the arguments consistent with every Court of Appeals Congress held numerous hearings on that because our do-not-call registry decision that has considered First telemarketing, finding, among other provisions do not apply to tax-exempt Amendment challenges to the TCPA. things, that ‘‘[m]ore than 300,000 nonprofit organizations, our regulations 42. Under the framework established solicitors call more than 18,000,000 do not directly and materially advance in Central Hudson, a regulation of Americans every day’’ and the government interest of protecting commercial speech will be found ‘‘[u]nrestricted telemarketing can be an residential privacy. ‘‘Government [need compatible with the First Amendment if intrusive invasion of privacy and, when not] make progress on every front before (1) there is a substantial government an emergency or medical assistance it can make progress on any front.’’ interest; (2) the regulation directly telephone line is seized, a risk to public United States v. Edge Broadcasting advances the substantial government safety.’’ Our record, like the FTC’s, Company, 509 U.S. 418, 434 (1993). See interest; and (3) the proposed demonstrates that telemarketing calls also Moser v. FCC, 46 F.3d at 975 regulations are not more extensive than are even more of an invasion of privacy (‘‘Congress may reduce the volume of necessary to serve that interest. Central than they were in 1991. The number of telemarketing calls without completely Hudson, 447 U.S. at 566. Specifically, daily calls has increased five fold (to an eliminating the calls.’’). the Court found that ‘‘[f]or commercial estimated 104 million), due in part to 46. We believe that the facts here are speech to come within the First the use of new technologies, such as easily distinguishable from those in Amendment, it at least must concern predictive dialers. An overwhelming Rubin v. Coors Brewing Company, 514 lawful activity and not be misleading. number of consumers in the U.S. 476 (1995) and City of Cincinnati Next, it must be determined whether the approximately 6,500 commenters in this v. Discovery Network, 507 U.S. 410 asserted governmental interest to be proceeding support the adoption and (1993). In Coors, the Court struck down served by the restriction on commercial implementation of a national do-not-call a prohibition against disclosure of speech is substantial. If both inquiries registry. In addition to citing concerns alcoholic content on labels or in yield positive answers, it must then be about the numerous and ever-increasing advertising that applied to beer but not decided whether the regulation directly number of calls, they complain about to wine or distilled spirits, finding that advances the governmental interest the inadequacies of the company- ‘‘the irrationality of this unique and asserted, and whether it is not more specific approach, the burdens of such puzzling regulatory framework ensures extensive than is necessary to serve that calls on the elderly and people with that the labeling ban will fail to achieve interest.’’ Id. at 557. Under the first disabilities, and the costs of acquiring [the Government’s interest in combating prong, we find that there is a substantial technologies to reduce the number of strength wars.]’’ In Discovery Network, governmental interest in protecting unwanted calls. Accordingly, we believe the Court struck down an ordinance residential privacy. The Supreme Court that the record demonstrates that which banned 62 newsracks containing has ‘‘repeatedly held that individuals telemarketing calls are a substantial commercial publications but did not are not required to welcome unwanted invasion of residential privacy, and ban 1,500–2,000 newsracks containing

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newspapers, finding that ‘‘the In Florida Bar, the Supreme Court national do-not-call registry. The record distinction bears no relationship found that a prohibition against lawyers clearly demonstrates widespread whatsoever to the particular [aesthetic] using direct mail to solicit personal consumer dissatisfaction both with the interests that the city has asserted.’’ injury or wrongful death clients within effectiveness of the current company- Here, Congress’ decision to exclude tax- 30 days of an accident was not more specific rules that are currently in place exempt nonprofit organizations from the extensive than necessary to ‘‘protect and the effectiveness and expense of definition of telemarketing in the TCPA * * * the privacy and tranquility of certain technological alternatives to was both rational and related to its personal injury victims and their loved reduce telephone solicitations. We also interest in protecting residential ones against intrusive, unsolicited note that many of the ‘‘burdens’’ of the privacy. The House Report finds that contact by lawyers.’’ Id. at 624. national do-not-call registry—issues ‘‘the record suggests that most Similarly, the Ninth Circuit has found concerning its costs, accuracy, and unwanted telephone solicitations are that the TCPA’s ban on prerecorded privacy—have been addressed by commercial in nature. * * *[T]he telemarketing calls constitutes a advances in computer technology and Committee also reached the conclusion, ‘‘reasonable fit’’ with the government’s software over the last ten years. Thus, based on the evidence, that ‘‘ calls [from legitimate interest in protecting we find that our regulations tax-exempt nonprofit organizations] are residential privacy. Moser, 46 F.3d at implementing the national do-not-call less intrusive to consumers because they 975. registry are consistent with the First are more expected. Consequently, the 49. Here, we find that our regulations Amendment and the framework two main sources of consumer problems meet the requirements of Central established in Central Hudson. 50. Furthermore, we reject the ‘‘ high volume of solicitations and Hudson’s third prong. Pursuant to our arguments that the Central Hudson unexpected solicitations—are not regulations, we adopt a single, national framework is not appropriate and that present in solicitations by nonprofit do-not-call database that we will enforce strict scrutiny is required because the organizations.’’ H.R. Rep. No. 102–317, jointly with the FTC. Our rules mandate regulations implementing the national at 16 (1991). that common carriers providing do-not-call list are content-based, due to 47. Commenters in our record also telephone exchange service shall inform the TCPA’s exemptions for non-profit express the concern that subjecting tax- their subscribers of their right to register organizations and established business exempt nonprofit organizations to the on the database either through a toll-free national do-not-call requirements may relationships. For support, commenters telephone call or over the Internet. cite to Discovery Network, 507 U.S. 410, sweep too broadly because it would Furthermore, telemarketers and sellers in which the Court struck down prompt some consumers to accept must gain access to telephone numbers Cincinnati’s ordinance which banned blocking of non-commercial, charitable in the national database and will be able newsracks containing commercial calls to which they might not otherwise to do so by means of a fully automated, publications but did not ban newsracks object as an undesired effect of secure Web site dedicated to providing containing newspapers. The Court registering on the national database to information to these entities. In found that the regulation could neither stop unwanted commercial solicitation addition, sellers will be assessed an be justified as a restriction on calls. Both the Eighth and the Ninth annual fee based upon the number of commercial speech under Central Circuits in American Blast Fax and area codes they want to assess, with the Hudson, nor could it be upheld as a Destination Ventures found that the maximum annual fee capped at $7,250. valid time, place, or manner restriction provisions of the TCPA, which bans Our rules also provide that the national on protected speech. City of Cincinnati unsolicited commercial faxes but not database will be updated continuously, v. Discovery Network Inc. et al., 507 U.S. non-commercial faxes, directly advance and telemarketers must update their 410 at 430 (1993). The Court explained a substantial government interest, and lists quarterly. We find that our that ‘‘the government may impose we believe that the same distinction regulations are a reasonable fit between reasonable restrictions on the time, may be applied to the national do-not- the ends and means and are not as place or manner of engaging in call registry. restrictive as the bans upheld in the protected speech provided that they are 48. We find under the third prong of cases cited. In Florida Bar, the Supreme adequately justified ‘‘without reference the Central Hudson test that our Court upheld an absolute ban against to the content of the regulated speech’.’’ proposed regulations are not more lawyers using direct mail to solicit Id. at 428 (citation omitted). In this case, extensive than necessary to protect personal injury or wrongful death the Court held that the City’s ban which residential privacy. The Supreme Court clients within 30 days of an accident. covered commercial publications but has made clear that with respect to this Similarly, the Ninth Circuit has upheld not newspapers was content-based. Id. prong, ‘‘the differences between the TCPA’s absolute ban on prerecorded at 429. ‘‘It is the absence of a neutral commercial speech and noncommercial telemarketing calls, and both the Eighth justification for its selective ban on speech are manifest.’’ Florida Bar, 515 and Ninth Circuit have upheld the newsracks that prevents the city from U.S. 618, 632. The Court held that: TCPA’s absolute ban on unsolicited defending its newsrack policy as [T]he least restrictive means test has no faxes. Here, our regulations do not content neutral.’’ Id. at 429–30. role in the commercial speech context. What absolutely ban telemarketing calls. 51. Here, however, there was a neutral our decisions require, instead, is a fit Rather, they provide a mechanism by justification for Congress’ decision to between the legislature’s ends and the means which individual consumers may exclude non-profit organizations. chosen to accomplish those ends, a fit that choose not to receive telemarketing Congress found that ‘‘the two sources of is not necessarily perfect, but reasonable; that calls. We also note that there are many consumer problems—high volume of represents not necessarily the single best other ways available to market products solicitations and unexpected disposition but one whose scope is in to consumers, such as newspapers, solicitations—are not present in proportion to the interest served * * * [T]he existence of numerous and obvious less- television, radio advertising and direct solicitations by nonprofit burdensome alternatives to the restriction on mail. See Florida Bar, 515 U.S. at 633– organizations.’’ H.R. Rep. No. 102–317, commercial speech is certainly a relevant 34. In addition, there simply are not at 16 (1991). Congress also made a consideration in determining whether the fit ‘‘numerous and obvious less- similar finding with respect to between the ends and means is reasonable. burdensome alternatives’’ to the solicitations based on established

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business relationships. Id. at 14. call rules. In fact, the TCPA specifically regulators will benefit from the Consumers are more likely to anticipate outlines a role for the states in this efficiencies derived from the creation of contacts from companies with whom process. See 47 U.S.C. 227(e) and (f). In a single do-not-call database. We they have an existing relationship and an effort to reconcile the state and encourage states to work diligently the volume of such calls will most likely federal roles, we have conducted several toward this goal. We recognize that a be lower. Furthermore, as the Eighth meetings with the states and FTC. We reasonable transition period may be Circuit noted when it distinguished the expect such coordination to be ongoing required to incorporate the state Discovery Network case in upholding in an effort to promote the continued registrations in a few states into the the TCPA’s ban on unsolicited faxes that effectiveness of the national do-not-call national database. We therefore adopt applies to commercial speech but not to program. We clarify the respective an 18-month transition period for states noncommercial speech, ‘‘the governmental roles in this process to download their state lists into the government may regulate one aspect of under the TCPA. We intend to develop national database. Having an 18-month a problem without regulating all a Memorandum of Understanding with transition period will allow states that others.’’ Missouri ex rel. v. American the FTC in the near future outlining the do not have full-time legislatures to Blast Fax, 323 F.3d at 656 n.4 (citing respective federal responsibilities under complete a legislative cycle and create United States v. Edge Broad. Co., 509 the national do-not-call rules. We note laws that would authorize the use of a U.S. 418 at 434). Thus, we believe it is that a few commenters have expressed national list. In addition, this transition clear that our do-not-call registry concern that the FTC and this period is consistent with the amount of regulations may apply to commercial Commission may adopt separate time that the FTC anticipates it would solicitations without applying to tax- national do-not-call lists. We reiterate take to incorporate the states’ lists into exempt nonprofit solicitations, and that here that there will be only one national the national database. Although we do such regulations are not subject to a database. not preempt or require states to higher level of scrutiny. Indeed, we 54. Use of a Single Database. We discontinue the use of their own agree with the FTC that regulation of conclude that the use of a single databases at this time, once the national non-profit solicitations are subject to a national do-not-call database, do-not-call registry goes into effect, higher level of scrutiny than administered by the vendor selected by states may not, in their ‘‘regulation of solicitations of commercial speech FTC the FTC, will ultimately prove the most telephone solicitations, require the use Order, 68 FR at 4636, n. 675, quoting efficient and economical means for of any database, list, or listing system from Metromedia v. San Diego, 453 U.S. consumer registrations and access by that does not include the part of [the 490, 513 (1981) and citing Watchtower telemarketers and regulators. The national do-not-call registry] that relates Bible and Tract Soc’y v. Village of establishment of a single database of to [each] State.’’ See 47 U.S.C. 227(e)(2). Stratton, 122 S.Ct. 2080, and ‘‘greater registrants will allow consumers to We believe that there are significant care must be given [both] to ensuring register their requests not to be called in advantages and efficiencies to be that the governmental interest is a single transaction with one derived from the creation and use of a actually advanced by the regulatory governmental agency. In addition, single database for all parties, including remedy, and [to] tailoring the regulation telemarketers may access consumer states, and we strongly encourage states narrowly so as to minimize its impact registrations for purposes of compliance to assist in this effort. The Commission on First Amendment rights.’’ FTC with the do-not-call rules through one intends to work diligently with the Order, 68 FR at 4636. visit to a national database. This will states and FTC in an effort to establish substantially alleviate the potential for a single do-not-call database. Consistency With State and FTC Do- consumer confusion and administrative Not-Call Rules burden on telemarketers that would 56. Interplay of State and Federal Do- 52. We conclude that harmonization exist if required to access multiple Not-Call Regulations. In the Rules and of the various state and federal do-not- databases. In addition, we note that Regulations Implementing the call programs to the greatest extent section 227(e)(2) prohibits states, in Telephone Consumer Protection Act of possible will reduce the potential for regulating telephone solicitations, from 1991, Notice of Proposed Rulemaking consumer confusion and regulatory using any database, list, or list system and Memorandum Opinion and Order, burdens on the telemarketing industry. that does not include the part of such 17 FCC Rcd 17459, CG Docket No. 02– An underlying concern expressed by single national database that relates to 278 and CC Docket No. 92–90 (2002) many commenters in this proceeding is that state. Thus, pursuant to this (2002 Notice), we generally raised the the potential for duplication of effort requirement, any individual state do- issue of the interplay of state and federal and/or inconsistency in the rules not-call database must include all of the do-not-call statutes and regulations. In relating to the state and federal do-not- registrants on the national database for response, several parties argued that call programs. Congress has indicated a that state. We determine that the state regulations must or should be similar concern in requiring the administrator of the national database preempted in whole, or at least in part, Commission to ‘‘maximize consistency’’ shall make the numbers in the database and several other parties argued that the with the FTC’s rules. We find that the available to the states as required by the Commission cannot or should not use of a single national database of do- TCPA. preempt. For example, several industry not-call registrants will ultimately prove 55. We believe the most efficient way commenters contend that the TCPA the most efficient and economical to create a single national database will provides the Commission with the means for consumer registrations and be to download the existing state authority to preempt state do-not-call access for compliance purposes by registrations into the national database. regulations. These commenters contend telemarketing entities and regulators. The FTC has indicated that the national that Congress intended the TCPA to 53. The states have a long history of database is designed to allow the states occupy the field or, at the very least, regulating telemarketing practices, and to download into the national registry— intended to preempt state regulation of we believe that it is critical to combine at no cost—the telephone numbers of interstate telemarketing. Many state and the resources and expertise of the state consumers that have registered with consumer commenters note, however, and federal governments to ensure their state do-not-call lists. We believe that the TCPA contemplates a role for compliance with the national do-not- that consumers, telemarketers, and the states in regulating telemarketing

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and specifically prohibits preemption of under the TCPA. Thus, telemarketers 62. We therefore believe that any state state law in certain instances. States and must comply with the federal do-not- regulation of interstate telemarketing consumers note that state do-not-call call rules even if the state in which they calls that differs from our rules almost regulations have been a successful are telemarketing has adopted an certainly would conflict with and initiative in protecting consumer otherwise applicable exemption. frustrate the federal scheme and almost privacy rights. In addition, several Because the TCPA applies to both certainly would be preempted. We will commenters note the importance of intrastate and interstate consider any alleged conflicts between federal and state cooperation in communications, the minimum state and federal requirements and the enforcing the national do-not-call requirements for compliance are need for preemption on a case-by-case regulations. The record also indicates therefore uniform throughout the basis. Accordingly, any party that that states have historically enforced nation. We believe this resolves any believes a state law is inconsistent with their own state statutes within, as well potential confusion for industry and section 227 or our rules may seek a as across state lines. The statute also consumers regarding the application of declaratory ruling from the Commission. contains a savings clause for state less restrictive state do-not-call rules. We reiterate the interest in uniformity— proceedings to enforce civil or criminal 60. Second, pursuant to 47 U.S.C. as recognized by Congress—and statutes, and at least one federal court 227(e)(1), we recognize that states may encourage states to avoid subjecting has found that the TCPA does not adopt more restrictive do-not-call laws telemarketers to inconsistent rules. preempt state regulation of autodialers governing intrastate telemarketing. With 63. National Association of Attorneys that are not in actual conflict with the limited exceptions, the TCPA General (NAAG) contends that states TCPA. Van Bergen v. Minnesota, 59 specifically prohibits the preemption of have historically enforced telemarketing F.3d 1541, 1547–48 (8th Cir. 1995). any state law that imposes more 57. The main area of difference laws, including do-not-call rules, restrictive intrastate requirements or within, as well as across, state lines between the state and federal do-not-call regulations. Section 227(e)(1) further programs relates to the exemptions pursuant to ‘‘long-arm’’ statutes. limits the Commission’s ability to According to NAAG, these state actions created from the respective do-not-call preempt any state law that prohibits regulations. Some state regulations are have been met with no successful certain telemarketing activities, challenges from telemarketers. We note less restrictive by adopting exemptions including the making of telephone that are not recognized under federal that such ‘‘long-arm’’ statutes may be solicitations. This provision is protected under section 227(f)(6) which law. For example, some states have ambiguous, however, as to whether this adopted exemptions for insurance provides that ‘‘nothing contained in this prohibition applies both to intrastate agents, newspapers, or small businesses. subsection shall be construed to and interstate calls, and is silent on the In addition, a few states have enacted prohibit an authorized State official issue of whether state law that imposes laws that are more restrictive than the from proceeding in State court on the more restrictive regulations on interstate federal regulations by not recognizing basis of an alleged violation of any telemarketing calls may be preempted. federal exemptions such as the general civil or criminal statute of such We caution that more restrictive state established business relationship. Most state.’’ 47 U.S.C. 227(f)(6). Nothing that efforts to regulate interstate calling states, however, exempt nonprofit we do in this order prohibits states from would almost certainly conflict with our organizations and companies with enforcing state regulations that are rules. whom the consumer has an established consistent with the TCPA and the rules business relationship in some manner 61. We recognize that states established under this order in state consistent with federal regulations. traditionally have had jurisdiction over court. only intrastate calls, while the 58. At the outset, we note that many Company Specific Do-Not-Call Lists states have not adopted any do-not-call Commission has had jurisdiction over rules. The national do-not-call rules will interstate calls. Here, Congress enacted Efficacy of the Company-Specific Rules govern exclusively in these states for section 227 and amended section 2(b) to both intrastate and interstate telephone give the Commission jurisdiction over 64. We conclude that retention of the solicitations. Pursuant to 47 U.S.C. both interstate and intrastate company-specific do-not-call rules will 227(f)(1), all states have the ability to telemarketing calls. Congress did so complement the national do-not-call enforce violations of the TCPA, based upon the concern that states lack registry by providing consumers with an including do-not-call violations, in jurisdiction over interstate calls. additional option for managing federal district court. Thus, we conclude Although section 227(e) gives states telemarketing calls. We believe that that there is no basis for conflict authority to impose more restrictive providing consumers with the ability to regarding the application of do-not-call intrastate regulations, we believe that it tailor their requests not to be called, rules in those states that have not was the clear intent of Congress either on a case-by-case basis under the adopted do-not-call regulations. generally to promote a uniform company do-not-call approach or more 59. For those states that have adopted regulatory scheme under which broadly under the national registry, will do-not-call regulations, we make the telemarketers would not be subject to best balance individual privacy rights following determinations. First, we multiple, conflicting regulations. We and legitimate telemarketing practices. conclude that, by operation of general conclude that inconsistent interstate As a result, those consumers that wish conflict preemption law, the federal rules frustrate the federal objective of to prohibit telephone solicitations from rules constitute a floor, and therefore creating uniform national rules, to avoid only certain marketers will continue to would supersede all less restrictive state burdensome compliance costs for have the option to do so. In addition, do-not-call rules. We believe that any telemarketers and potential consumer consumers registered on the national such rules would frustrate Congress’ confusion. The record in this do-not-call registry will have the purposes and objectives in promulgating proceeding supports the finding that opportunity to request that they not be the TCPA. Specifically, application of application of inconsistent rules for called by entities that would otherwise less restrictive state exemptions directly those that telemarket on a nationwide or fall within the established business conflicts with the federal objectives in multi-state basis creates a substantial relationship exemption by using the protecting consumer privacy rights compliance burden for those entities. option to be placed on the company-

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specific lists. This finding is consistent reasonable period to retain consumer requests, this process is now largely with that of the FTC. do-not-call requests. We believe a five- automated. As a result, such requests 65. We agree with those commenters year retention period reasonably can often be honored within a few days that contend that the company-specific balances any administrative burden or weeks. Taking into consideration do-not-call approach has not proven imposed on consumers in requesting not both the large databases of such requests ideal as a stand-alone method to protect to be called with the interests of maintained by some entities and the consumer privacy. In particular, the telemarketers in contacting consumers. limitations on certain small businesses, increase in telemarketing calls over the As noted, a shorter retention period we conclude that a reasonable time to last decade now places an extraordinary increases the accuracy of the database honor such requests must not exceed burden on consumers that do not wish while the national do-not-call option thirty days from the date such a request to receive telephone solicitations. These mitigates the burden on those is made. Consistent with our existing consumers must respond on a case-by- consumers who may believe more rules, such request applies to all case basis to request that they not be frequent company-specific do-not-call telemarketing campaigns of the seller called. The record in this proceeding is requests are overly burdensome. We and any affiliated entities that the replete with examples of consumers that believe any shorter retention period, as consumer reasonably would expect to receive numerous unwanted suggested by a few industry be included given the identification of telemarketing calls each day. In commenters, would unduly increase the the caller and the product being addition, the widespread use of burdens on consumers who would be advertised. 47 CFR 64.1200(e)(2)(v). We predictive dialers now results in many forced to make more frequent renewals note that the Commission’s rules require ‘‘dead air’’ or hang-up calls in which of their company-specific do-not-call that entities must record company- consumers do not even have the requests without substantially specific do-not-call requests and place opportunity to make a do-not-call improving the accuracy of the database. the subscriber’s telephone number on request. Such calls are particularly We therefore amend our rules to require the do-not-call list at the time the burdensome for the elderly and disabled that a do-not-call request be honored for request is made. 47 CFR consumers. We believe, however, that five years from the time the request is 64.1200(e)(2)(iii). Therefore, the measures adopted in this order will made. telemarketers with the capability to enhance the effectiveness of the 67. We decline at this time to require honor such company-specific do-not- company-specific list. For example, the telemarketers to make available a toll- call requests in less than thirty days adoption of a national do-not-call free number or Web site that would must do so. We believe this registry alleviates the concerns of those allow consumers to register company- determination adequately balances the consumers, including elderly and specific do-not-call requests or verify privacy interests of those consumers disabled consumers that may find a that such a request was made with the that have requested not to be called with case-by-case do-not-call option marketer. We also decline to require the interests of the telemarketing particularly burdensome. In addition, telemarketers to provide a means of industry. Consumers expect their restrictions on abandoned calls will confirmation so that consumers may requests not to be called to be honored reduce the number of ‘‘dead air’’ calls. verify their requests have been in a timely manner, and thirty days Caller ID requirements will improve the processed at a later date. Telemarketers should be the maximum administrative ability of consumers to identify and should, however, confirm that any such time necessary for telemarketers to enforce do-not-call rights against request will be recorded at the time the process that request. telemarketers. We also note that request is made by the consumer. In although many commenters question addition, consumers calling to register 69. In addition, we decline to extend the effectiveness of the company- do-not-call requests in response to the company-specific do-not-call rules specific approach, there is little support prerecorded messages should be to entities that solicit contributions on in the record to eliminate those rules processed in a timely manner without behalf of tax-exempt nonprofit based on the adoption of the national being placed on hold for unreasonable organizations. The TCPA excludes calls do-not-call list. We retain the option for periods of time. Although we believe or messages by tax-exempt nonprofit consumers to request on a case-by-case the additional measures discussed organizations from the definition of basis whether they desire to receive above would improve the ability of telephone solicitation. See 47 U.S.C. telephone solicitations. consumers, including consumers with 227(a)(3)(C). The Commission has disabilities, to register do-not-call clarified that telemarketers who solicit Amendments to the Company-Specific requests, we agree with those on behalf of tax-exempt nonprofit Rules commenters that contend that such organizations are not subject to the rules 66. We agree with several industry requirements would be unduly costly to governing telephone solicitations. In the commenters that the retention period for businesses. In particular, we are 2002 Notice, the Commission declined records of those consumers requesting concerned with the costs imposed on to seek further comment on this issue. not to be called should be reduced from small businesses. The Commission will, We acknowledge that this determination the current ten-year requirement to five however, continue to monitor creates an inconsistency with the FTC’s years. As many commenters note, compliance with our company-specific conclusion to extend its company- telephone numbers change hands over do-not-call rules and take further action specific requirements to entities that time and a shorter retention period will as necessary. solicit contributions on behalf of tax- help ensure that only those consumers 68. We conclude that telemarketers exempt nonprofit organizations. The who have requested not to be called are must honor a company-specific do-not- Commission, however, derives its retained on the list. Both telemarketers call request within a reasonable time of authority to regulate telemarketing from and consumers will benefit from a list such request. We disagree, however, the TCPA, which excludes tax-exempt that more accurately reflects those with commenters that suggest that nonprofit organizations from the consumers who have requested not to be periods of up to 90 days are a reasonable definition of telephone solicitation. We called. The FTC has concluded and time required to process do-not-call therefore decline to extend the several commenters in this proceeding requests. Although some administrative company-specific requirements to agree that five years is a more time may be necessary to process such entities that solicit on behalf of tax-

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exempt nonprofit organizations. We customers via telemarketing. Carriers allow them to contact customers on a note that some tax-exempt nonprofit will be able to contact customers with do-not-call list with the CPNI notice in organizations have determined to honor whom they have an established business the manner that AT&T Wireless voluntarily specific do-not-call requests. relationship via the telephone, unless describes. However, we do allow Other organizations may find it the customer has placed her name on carriers to combine in the same advantageous to follow this example. the company’s do-not-call list; whether document CPNI notice with a request 70. Finally, to make clear our the customer has consented to the use for express written consent to call determination that a company must of her CPNI does not impact the carrier’s customers on a do-not-call list, provided cease making telemarketing calls to a ability to contact the customer via that such notices and opportunities for customer with whom it has an telemarketing. consumer consent are separate and established business relationship when 73. We are not persuaded by the distinct. That is, consumers must have that customer makes a do-not-call arguments of those commenters who distinct choices regarding both whether request, we amend the company- urge the Commission to find that CPNI to allow use of their CPNI and whether specific do-not-call rules to apply to any consent should trump a customer’s to allow calls after registering a do-not- call for telemarketing purposes. We also request to be placed on a do-not-call list call request, but carriers may combine adopt a provision stating that a or similarly, that CPNI consent equates those requests for approval in the same consumer’s do-not-call request to permission to market ‘‘without notice document. Finally, we find a terminates the established business restriction.’’ We note that the Concerned distinction based on the type of CPNI relationship for purposes of Telephone Companies assert that CPNI consent unnecessary here, as carriers telemarketing calls even if the consumer consent equates to ‘‘consent to market can avail themselves of the established continues to do business with the seller. without restriction based on business relationship exception to [customers’] CPNI.’’ Concerned Interplay of Sections 222 and 227 contact their existing customers, Telephone Companies Comments at 2 irrespective of the type of CPNI consent 71. We first note that the fact that a (emphasis added). The Commission obtained. telecommunications carrier has current finds no support for this assertion in 77. Similarly, we agree with those CPNI about a particular consumer any Commission order or statutory commenters who advise against using a indicates that the consumer is a provision and, we specifically time element to determine whether a customer of that carrier. In that determine that CPNI approval does not customer’s do-not-call request takes situation, there exists an established equate to unlimited consent to market precedence over the customer’s opt-in business relationship between the without restriction. approval to use her CPNI, because customer and the carrier. See 47 CFR 74. Similarly, a number of adding a time element would 64.1200(f)(4). The established business commenters argue that a customer’s unnecessarily complicate carrier relationship is an exception to the CPNI authorization ‘‘covers a number of compliance and allow carriers to game national do-not-call registry. However, forms of marketing, including the system. In particular, the New York based on the evidence in the record and telemarketing.’’ AT&T Wireless Reply State Consumer Protection Board as supported by numerous commenters, Comments at 26–27. However, such (NYSCPB) argues that ‘‘enrollment on a we confirm our tentative conclusion assertions ignore the plain fact that national do-not-call list should take that if a customer places her name on CPNI approval deals specifically with a precedence over the prior implied a carrier’s do-not-call list, that request carrier’s use of a customer’s personal consent through the ‘opt-out’ procedure, must be honored even though the information, and only indirectly but that the latest in time should prevail customer may also have provided pertains to or arguably ‘‘authorizes’’ regarding ‘opt-in’ consents.’’ NYSCPB consent to use her CPNI under section marketing to the customer. Do-not-call Comments at 5. Because we determine 222. By doing so, we maximize the lists, on the other hand, speak directly that carriers can contact consumers with protections and choices available to to customers’ preferences regarding whom they have established business consumers, while giving maximum telemarketing contacts. Accordingly, we relationships, irrespective of those effect to the language of both statutes. At are convinced that a customer’s do-not- consumers’ CPNI preferences, we find the outset, the average consumer seems call request demonstrates more directly this proposed methodology unnecessary rather unlikely to appreciate the her willingness (or lack thereof) to in determining whether a customer’s interrelationship of the Commission’s receive telemarketing calls, as opposed CPNI consent should trump her do-not- CPNI and do-not-call rules. Allowing to any indirect inference that can be call request. Additionally, we note that CPNI consent to trump a do-not-call drawn from her CPNI approval. this proposal could be manipulated by request would, therefore, thwart most 75. Additionally, we disagree with carriers to overcome consumers’ do-not- consumers’ reasonable expectations those commenters who claim that call preferences, by allowing carriers to about how a company-specific do-not- allowing CPNI approval to trump a send CPNI notices to customers that are call list functions. Equally important, consumer’s request to be on a national intentionally timed to ‘‘overcome’’ permitting a consumer’s CPNI consent or state do-not-call list gives consumers previously expressed do-not-call to supercede a consumer’s express do- greater flexibility. A carrier’s established requests. not call request might undermine the business relationship with a customer 78. Finally, although it was not carrier’s do-not-call database as the first exempts the carrier from honoring the directly raised in the 2002 Notice, some source of information about the customer’s national do-not-call request. commenters raised the issue of whether consumer’s telemarketing preferences. However, as stated above, CPNI consent any type of do-not-call request revokes 72. Because we retain the exemption is not deemed to trump a carrier-specific or limits a carrier’s ability to use CPNI for calls and messages to customers with do-not-call list request. For similar in a manner other than telemarketing. whom the carrier has an established reasons, we decline to make a To the degree such affirmation is business relationship, the determination distinction based on what type of CPNI necessary, we agree with those that a customer’s CPNI approval does consent (opt-in versus opt-out) received, commenters who maintain that a not trump her inclusion on a do-not-call as some commenters urge. carrier’s ability to use CPNI is not list should have no impact on carriers’ 76. We do not allow carriers to impacted by a customer’s inclusion on ability to communicate with their combine the express written consent to a do-not-call list, except as noted.

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79. Constitutional Implications. We exemption focuses on the relationship See amended 47 CFR 64.1200(f)(3). The disagree with those commenters who between the sender of the message and 18-month time period runs from the argue that our decision that a customer’s the consumer, rather than on the date of the last payment or transaction CPNI approval does not trump her content of the message. It appears that with the company, making it more request to be on a do-not-call list consumers have come to expect calls likely that a consumer would expect a violates the First Amendment rights of from companies with whom they have call from a company with which they carriers and customers. Commenters cite such a relationship, and that, under have recently conducted business. The no authority to support their arguments, certain circumstances, they may be amended definition permits the and we do not believe the fact that willing to accept these calls. Finally, we relationship, once begun, to exist for customers have given their approval for believe that while consumers may find eighteen (18) months in the case of carriers to use their CPNI implicates any prerecorded voice messages intrusive, purchases or transactions and three (3) additional First Amendment issues such messages do not necessarily months in the case of inquiries or beyond those discussed. Accordingly, impose the same costs on the recipients applications, unless the consumer or the we find our rules implementing the do- as, for example, unsolicited facsimile company ‘‘terminates’’ it. We emphasize not-call registry are consistent with the messages. Therefore, we retain the here that the termination of an First Amendment as applied to any exemption for established business established business relationship is consumer, including those who have relationship calls from the ban on significant only in the context of previously given their approval to prerecorded messages. Telemarketers solicitation calls. We also note that the carriers to use their CPNI, pursuant to that claim their prerecorded messages act of ‘‘terminating’’ an established section 222. Furthermore, we believe are delivered pursuant to an established business relationship will not hinder or that the exception which allows carriers business relationship must be prepared thwart creditors’ attempts to reach to call consumers with whom they to provide clear and convincing debtors by telephone, to the extent that necessarily have an established business evidence of the existence of such a debt collection calls constitute neither relationship renders commenters’ relationship. telephone solicitations nor include arguments moot, as carriers necessarily unsolicited advertisements. Therefore, have an established business Definition of Established Business consistent with the language in the relationship with any customer from Relationship definition, a company’s prior whom they solicit CPNI approval. 81. We conclude that the relationship with a consumer entitles Established Business Relationship Commission’s current definition of the company to call that consumer for eighteen (18) months from the date of 80. We conclude that, based on the ‘‘established business relationship’’ the last payment or financial record, an established business should be revised. We are convinced transaction, even if the company does relationship exemption is necessary to that consumers are confused and even not currently provide service to that allow companies to communicate with frustrated more often when they receive customer. For example, a consumer who their existing customers. The calls from companies they have not once had telephone service with a ‘‘established business relationship,’’ or contacted or done business with for particular carrier or a subscription with EBR, permits telemarketers to call many years. The legislative history a particular newspaper could expect to consumers registered on the national suggests that it was Congress’s view that receive a call from those entities in an do-not-call list and to deliver the relationship giving a company the prerecorded messages to consumers. right to call becomes more tenuous over effort to ‘‘win back’’ or ‘‘renew’’ that The ‘‘established business relationship,’’ time. In addition, we believe that this is consumer’s business within eighteen however, is not an exception to the an area where consistency between the (18) months. In the context of company-specific do-not-call rules. FCC rules and FTC rules is critical for telemarketing calls, a consumer’s ‘‘prior Companies that call their EBR both consumers and telemarketers. We or existing relationship’’ continues for customers must maintain company- conclude that, based on the range of eighteen (18) months (3 months in the specific do-not-call lists and record any suggested time periods that would meet case of inquiries and applications) or do-not-call requests as required by the needs of industry, along with until the customer asks to be placed on amended 47 CFR 64.1200(d). The consumers’ reasonable expectations of that company’s do-not-call list. Commission has also reversed its prior who may call them and when, eighteen 82. Inquiries. The Commission asked conclusion that an ‘‘established (18) months strikes an appropriate whether we should clarify the type of business relationship’’ provides the balance between industry practices and consumer inquiry that would create an necessary permission to deliver consumers’ privacy interests. Therefore, ‘‘established business relationship’’ for unsolicited facsimile advertisements. the Commission has modified the purposes of the exemption. Some Companies maintain that the exemption definition of established business consumers and consumer groups allows them to make new offers to relationship to mean: maintain that a consumer who merely inquires about a product should not be existing customers, such as mortgage A prior or existing relationship formed by subjected to subsequent telemarketing refinancing, insurance updates, and a voluntary two-way communication subscription renewals. They suggest that between a person or entity and a residential calls. Industry commenters, on the other customers benefit from calls that inform subscriber with or without an exchange of hand, believe that companies should be them in a timely manner of new consideration, on the basis of the subscriber’s permitted to call consumers who have products, services and pricing plans. purchase or transaction with the entity made inquiries about their products and American Express contends that its within the eighteen (18) months immediately services, and that consumers have come financial advisors have a fiduciary duty preceding the date of the telephone call or on to expect such calls. The legislative to their customers, requiring them to the basis of the subscriber’s inquiry or history suggests that Congress contact customers with time-sensitive application regarding products or services contemplated that an inquiry by a information. We are persuaded that offered by the entity within the three (3) consumer could be the basis of an eliminating this EBR exemption would months immediately preceding the date of established business relationship, but possibly interfere with these types of the call, which relationship has not been that such an inquiry should occur business relationships. Moreover, the previously terminated by either party. within a reasonable period of time.

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While we do not believe any The Commission agrees with the would expect them to be included given communication would amount to an majority of industry commenters that the identification of the caller and the established business relationship for the EBR should not be limited by product advertised. See 47 CFR purposes of telemarketing calls, we do product or service. In today’s market, 64.1200(e)(2)(v). not think the definition should be many companies offer a wide variety of 86. Other Issues. The Commission narrowed to only include situations services and products. Restricting the clarifies that the established business where a purchase or transaction is EBR by product or service could relationship exemption does not permit completed. The nature of any inquiry interfere with companies’ abilities to companies to make calls based on must, however, be such to create an market them efficiently. Many referrals from existing customers and expectation on the part of the consumer telecommunications and cable clients, as the person referred that a particular company will call companies, for example, market presumably does not have the required them. As confirmed by several industry products and services in packages. As business relationship with the company commenters, an inquiry regarding a long as the company identifies itself that received the referral. An EBR is business’s hours or location would not adequately, a consumer should not be similarly not formed when a wireless establish the necessary relationship as surprised to receive a telemarketing call subscriber happens to use another defined in Commission rules. By from that company, regardless of the carrier’s services through roaming. In making an inquiry or submitting an product being offered. If the consumer such a situation, the consumer has not application regarding a company’s does not want any further calls from made the necessary purchase or inquiry products or services, a consumer might that company, he or she may request that would constitute an EBR or reasonably expect a prompt follow-up placement on its do-not-call list. provided prior express consent to receive telemarketing calls from that telephone call regarding the initial 85. Affiliated Entities. In the Rules company. We recognize that companies inquiry or application, not one after an and Regulations Implementing the often hire third party telemarketers to extended period of time. Consistent Telephone Consumer Protection Act of market their services and products. In with the FTC’s conclusion, the 1991, CC Docket No. 92–90, Report and general, those telemarketers may rely on Commission believes three months Order, 7 FCC Rcd 8752 (1992) (1992 the seller’s EBR to call an individual should be a reasonable time in which to TCPA Order), the Commission found respond to a consumer’s inquiry or consumer to market the seller’s services that a consumer’s established business application. Thus, we amend the and products. However, we disagree relationship with one company may definition of ‘‘established business with Nextel that a consumer’s EBR with also extend to the company’s affiliates relationship’’ to permit telemarketing a third party telemarketer, including a and subsidiaries. See 1992 TCPA Order, calls within three (3) months of an retail store or independent dealer, 7 FCC Rcd at 8770–71, para. 34. inquiry or application regarding a extends to a seller simply because the Consumer advocates maintain that the product or service offered by the seller has a contractual relationship EBR exemption should not company. with that telemarketer. The seller would 83. We emphasize here that the automatically extend to affiliates of the only be entitled to call a consumer definition of ‘‘established business company with whom a consumer has a under the EBR exemption based on its relationship’’ requires a voluntary two- business relationship. Industry members own EBR with a consumer. We also way communication between a person argue that it should apply to affiliates disagree with WorldCom, Inc. or entity and a residential subscriber that provide reasonably-related products (WorldCom) that the EBR should extend regarding a purchase or transaction or services. The Commission finds that, to marketing partners for purposes of made within eighteen (18) months of the consistent with the FTC’s amended telemarketing joint offers, to the extent date of the telemarketing call or Rule, affiliates fall within the the ‘‘partner’’ companies have no EBR regarding an inquiry or application established business relationship with the consumer. within three (3) months of the date of exemption only if the consumer would Telecommunications Common Carriers the call. Any seller or telemarketer using reasonably expect them to be included the EBR as the basis for a telemarketing given the nature and type of goods or 87. In the 2002 Notice, we asked what call must be able to demonstrate, with services offered and the identity of the effect the established business clear and convincing evidence, that they affiliate. This definition offers flexibility relationship exemption might have on have an EBR with the called party. to companies whose subsidiaries or the telecommunications industry, if a 84. Different Products and Services. affiliates also make telephone national do-not-call list is established. The Commission also invited comment solicitations, but it is based on According to WorldCom, telephone on whether to consider modifying the consumers’ reasonable expectations of solicitations are the primary mechanism definition of ‘‘established business which companies will call them. As the for, and the means by which consumers relationship’’ so that a company that has American Teleservices Association are accustomed to, purchasing a relationship with a customer based on (ATA) and other commenters explain, competitive telecommunications one type of product or service may not consumers often welcome calls from services. WorldCom argues that with the call consumers on the do-not-call list to businesses they know. A call from a advent of competition in the formerly advertise a different service or product. company with which a consumer has monopolized local telephone markets, Industry commenters believe an EBR not formed a business relationship and the entry of the Regional Bell with a consumer should not be directly, or does not recognize by name, Operating Companies into the long restricted by product or service, but would likely be a surprise and possibly distance market, carriers need to be able rather, should permit them to offer the an annoyance. This determination is to market effectively their new services. full range of their services and products. also consistent with current WorldCom argues that a national do- Consumer advocates who commented Commission rules on the applicability not-call list that exempts calls to on the issue maintain that a company of do-not-call requests made to affiliated persons with whom a company has that has a relationship based on one persons or entities. Under those rules, a established business relationships will service or product should not be residential subscriber’s do-not-call favor incumbent providers. According allowed to use that relationship to request will not apply to affiliated to WorldCom, incumbent local market a different service or product. entities unless the consumer reasonably exchange carriers maintain most of the

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local customer base, and therefore permit common carriers to call list, as long as a consumer has not asked would be able to telemarket new consumers with whom they have no to be placed on the company’s do-not- services to all those customers, existing relationships and who have call list. Once the consumer asks to be regardless of whether they were on the expressed a desire not to be called by placed on the company-specific do-not- national do-not-call registry, because of registering with the national do-not-call call list, the company may not call the the established business relationship list, would likely confuse consumers consumer again regardless of whether exemption. New competitors, on the and interfere with their ability to the consumer continues to do business other hand, would be restricted from manage and monitor the telemarketing with the company. This will apply to all calling those same consumers. calls they receive. services and products offered by that 88. One approach would be to narrow 91. We further note that with the company. If the consumer continues to the ‘‘established business relationship’’ establishment of a national do-not-call do business with the telemarketer after for telecommunications carriers, so that registry, carriers will still be permitted asking not to be called (by, for example, a carrier doing business with customers to contact competitors’ customers who continuing to hold a credit card, based on one type of service may not have not placed their numbers on the subscribing to a newspaper, or making call those customers registered with the national list. In addition, carriers will be a subsequent purchase), the consumer national do-not-call list to advertise a able to call their prior and existing cannot be deemed to have waived his or different service. We find, however, that customers for 18 months to market new her company-specific do-not-call the record does not support such an products and services, such as long request. In some instances, however, a approach in the context of telemarketing distance, local, or DSL services, as long consumer may grant explicit consent to calls. Along with the majority of as those customers have not placed be called during the course of a industry commenters in this proceeding, themselves on that carrier’s company- subsequent purchase or transaction. We WorldCom maintains that companies specific do-not-call list. For the amend the company-specific do-not-call ‘‘must have flexibility in remaining consumers with whom rules to apply to ‘‘any call for communicating with their customers common carriers have no established telemarketing purposes’’ to make clear not only about their current services, business relationship and who are that a company must cease making but also to discuss available alternative registered with the do-not-call list, telemarketing calls to any customer who services or products. * * * ’’ WorldCom carriers may market to them using has made a do-not-call request, Comments at 15. Limiting a common different advertising methods, such as regardless of whether they have an EBR carrier’s ‘‘established business direct mail. Therefore, we find that with that customer. We also adopt a relationship’’ by product or service treating common carriers like other provision stating that a consumer’s do- might harm competitors’’ efforts to entities that use the telephone to not-call request terminates the EBR for market new goods or services to existing advertise, best furthers the goals of the purposes of telemarketing calls even if customers, and would not be in the TCPA to protect consumer privacy the consumer continues to do business public interest. interests and to avoid interfering with with the seller. 89. WorldCom proposes instead that existing business relationships. the Commission revise the definition of Tax-Exempt Nonprofit Organization established business relationship so that Interplay Between Established Business Exemption all providers of a telecommunications Relationship and Do-Not-Call Request 93. We reaffirm the determination that service—incumbents and new entrants 92. In the 2002 Notice, we sought calls made by a for-profit telemarketer alike—are deemed to have an comment on the effect of a do-not-call hired to solicit the purchase of goods or established business relationship with request on an established business services or donations on behalf of a tax- all consumers. Alternatively, WorldCom relationship. We noted the legislative exempt nonprofit organization are suggests that the definition of an history on this issue, which suggests exempted from the rules on telephone established business relationship be that despite an established business solicitation. We again reiterate that calls revised to exclude a company whose relationship, a company that has been that do not fall within the definition of relationship with a consumer is based asked by a consumer not to call again, ‘‘telephone solicitation’’ as defined in solely on a service for which the must honor that request and avoid 47 U.S.C. 227(a)(3) will not be company has been a dominant or further calls to that consumer. precluded by the national do-not-call monopoly provider of the service, until Consumer advocates who discussed the list. These may include calls regarding such time as competitors for that service interplay between the established surveys, market research, and calls have sufficiently penetrated the market. business relationship and a do-not-call involving political and religious 90. Although we take seriously request maintained that a do-not-call discourse. In crafting the TCPA, WorldCom’s concerns about the request should ‘‘trump’’ an established Congress sought primarily to protect potential effects of a national do-not-call business relationship, and that telephone subscribers from unrestricted list on competition in the consumers should not be required to commercial telemarketing activities, telecommunications marketplace, we terminate business relationships in finding that most unwanted telephone decline to expand the definition of order to stop unwanted telemarketing solicitations are commercial in nature. ‘‘established business relationship’’ so calls. The majority of industry In light of the record before us, the that common carriers are deemed to commenters also supported the notion Commission believes that there has been have relationships with all consumers that companies should honor requests no change in circumstances that warrant for purposes of making telemarketing from individual consumers not to be distinguishing those calls made by a calls. Broadening the scope of the called, regardless of whether there is a professional telemarketer on behalf of a established business relationship in business relationship. Companies will tax-exempt nonprofit organization from such a way would be inconsistent with be permitted to call consumers with those made by the tax-exempt nonprofit Congress’s mandate ‘‘to protect whom they have an established business itself. The Commission recognizes that residential telephone subscribers’ relationship for a period of 18 months charitable and other nonprofit entities privacy rights to avoid receiving from the last payment or transaction, with limited expertise, resources and telephone solicitations to which they even when those consumers are infrastructure, might find it object.’’ See 47 U.S.C. 227(c)(1). To registered on the national do-not-call advantageous to contract out its

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fundraising efforts. Consistent with sales person is available to take the call. a given set of numbers would lead to an section 227, a tax-exempt nonprofit The principal feature of predictive unintended result. Calls to emergency organization that conducts its own dialing software is a timing function, numbers, health care facilities, and fundraising campaign or hires a not number storage or generation. wireless numbers would be permissible professional fundraiser to do it, will not Household Financial Services states that when the dialing equipment is paired be subject to the restrictions on these machines are not conceptually with predictive dialing software and a telephone solicitations. If, however, a different from dialing machines without database of numbers, but prohibited for-profit organization is delivering its the predictive computer program when the equipment operates own commercial message as part of a attached. independently of such lists and software telemarketing campaign (i.e., 95. The TCPA defines an ‘‘automatic packages. We believe the purpose of the encouraging the purchase or rental of, or telephone dialing system’’ as requirement that equipment have the investment in, property, goods, or ‘‘equipment which has the capacity (A) ‘‘capacity to store or produce telephone services), even if accompanied by a to store or produce telephone numbers numbers to be called’’ is to ensure that donation to a charitable organization or to be called, using a random or the prohibition on autodialed calls not referral to a tax-exempt nonprofit sequential number generator; and (B) to be circumvented. See 47 U.S.C. organization, that call is not by or on dial such numbers.’’ 47 U.S.C. 227(a)(1). 227(a)(1). Therefore, the Commission behalf of a tax-exempt nonprofit The statutory definition contemplates finds that a predictive dialer falls within organization. Such calls, whether made autodialing equipment that either stores the meaning and statutory definition of by a live telemarketer or using a or produces numbers. It also provides ‘‘automatic telephone dialing prerecorded message, would not be that, in order to be considered an equipment’’ and the intent of Congress. entitled to exempt treatment under the ‘‘automatic telephone dialing system,’’ Because the statutory definition does TCPA. Similarly, an affiliate of a tax- the equipment need only have the not turn on whether the call is made for exempt nonprofit organization that is ‘‘capacity to store or produce telephone marketing purposes, we also conclude itself not a tax-exempt nonprofit is not numbers (emphasis added) * * *.’’ It is that it applies to modems that have the exempt from the TCPA rules when it clear from the statutory language and ‘‘capacity (A) to store or produce makes telephone solicitations. We the legislative history that Congress telephone numbers to be called, using a emphasize here, as we did in the 2002 anticipated that the FCC, under its random or sequential number generator; Notice, that the statute and our rules TCPA rulemaking authority, might need and (B) to dial such numbers.’’ See 47 clearly apply already to messages that to consider changes in technologies. In U.S.C. 227(a)(1). are predominantly commercial in the past, telemarketers may have used dialing equipment to create and dial 10- 97. Predictive Dialers as Customer nature, and that we will not hesitate to Premises Equipment. A few commenters consider enforcement action should the digit telephone numbers arbitrarily. As one commenter points out, the maintain that predictive dialers are provider of an otherwise commercial Customer Premises Equipment (CPE) message seek to immunize itself by evolution of the teleservices industry has progressed to the point where using over which the Communications Act simply inserting purportedly ‘‘non- gives the FCC exclusive jurisdiction. commercial’’ content into that message. lists of numbers is far more cost effective. The basic function of such The ATA and Direct Marketing A call to sell debt consolidation Association (DMA) urge the services, for example, is a commercial equipment, however, has not changed— the capacity to dial numbers without Commission to assert exclusive call regardless of whether the consumer authority over CPE and, in the process, is also referred to a tax-exempt human intervention. We fully expect automated dialing technology to preempt state laws governing predictive nonprofit organization for counseling dialers. They contend that, in the services. Similarly, a seller that calls to continue to develop. 96. The legislative history also absence of a single national policy on advertise a product and states that a suggests that through the TCPA, predictive dialer use, telemarketers will portion of the proceeds will go to a Congress was attempting to alleviate a be subject to the possibility of charitable cause or to help find missing particular problem—an increasing conflicting state standards. In the past, children must still comply with the number of automated and prerecorded CPE was regulated as a common carrier TCPA rules on commercial calls. calls to certain categories of numbers. service based on the Commission’s Automated Telephone Dialing The TCPA does not ban the use of jurisdiction and statutory Equipment technologies to dial telephone numbers. responsibilities over carrier-provided It merely prohibits such technologies equipment. The Commission long ago Predictive Dialers from dialing emergency numbers, health deregulated CPE, finding that the CPE 94. Automated Telephone Dialing care facilities, telephone numbers market was becoming increasingly Equipment. The record demonstrates assigned to wireless services, and any competitive, and that in order to that a predictive dialer is equipment other numbers for which the consumer increase further the options that that dials numbers and, when certain is charged for the call. Such practices consumers had in obtaining equipment, computer software is attached, also were determined to threaten public it would require common carriers to assists telemarketers in predicting when safety and inappropriately shift separate the provision of CPE from the a sales agent will be available to take marketing costs from sellers to provision of telecommunications calls. The hardware, when paired with consumers. Coupled with the fact that services. As part of its review of CPE certain software, has the capacity to autodialers can dial thousands of regulations, the Commission pointed store or produce numbers and dial those numbers in a short period of time, calls out that it had never regarded the numbers at random, in sequential order, to these specified categories of numbers provision of terminal equipment in or from a database of numbers. As are particularly troublesome. Therefore, isolation as an activity subject to Title commenters point out, in most cases, to exclude from these restrictions II regulation. While the Commission telemarketers program the numbers to equipment that use predictive dialing recognized that such equipment is be called into the equipment, and the software from the definition of within the FCC’s authority over wire dialer calls them at a rate to ensure that ‘‘automated telephone dialing and radio communications, it found that when a consumer answers the phone, a equipment’’ simply because it relies on the equipment, by itself, is not a

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‘‘communication’’ service, and therefore automated or prerecorded telephone 64.1200(c)(2) so that the prohibition there was no mandate that it be calls * * * to be a nuisance and an expressly applies to messages that regulated. None of the commenters who invasion of privacy.’’ TCPA, Section constitute ‘‘telephone solicitations,’’ as argue this point describe a change in 2(10), reprinted in 7 FCC Rcd at 2744. well as to those that include or circumstances that would warrant It also found that ‘‘[b]anning such introduce an ‘‘unsolicited reevaluating the Commission’s earlier automated or prerecorded telephone advertisement.’’ The current rule determination and risk disturbing the calls to the home, except when the exempts from the prohibition any call competitive balance the Commission receiving party consents to receiving the that is made for a commercial purpose deemed appropriate in 1980. In call or when such calls are necessary in but does not include the transmission of addition, it is not the equipment itself an emergency situation affecting the any unsolicited advertisement. See 47 that states are considering regulating; it health and safety of the consumer, is the CFR 64.1200(c)(2). We amend the rule to is the use of such equipment that has only effective means of protecting exempt a call that is made for a caught the attention of some state telephone consumers from this nuisance commercial purpose but does not legislatures. We believe it is preferable and privacy invasion.’’ TCPA, Section include or introduce an unsolicited at this time to regulate the use of 2(12), reprinted in 7 FCC Rcd at 2744– advertisement or constitute a telephone predictive dialers under the TCPA’s 45. Congress determined that such solicitation. See amended rule at 47 CFR specific authority to regulate prerecorded messages cause greater 64.1200(a)(2)(iii). We agree with those telemarketing practices. Therefore, we harm to consumers’ privacy than commenters who suggest that decline to preempt state laws governing telephone solicitations by live application of the prerecorded message the use of predictive dialers and telemarketers. The record reveals that rule should turn, not on the caller’s abandoned calls or to regulate consumers feel powerless to stop characterization of the call, but on the predictive dialers as CPE. prerecorded messages largely because purpose of the message. Amending the they are often delivered to answering rule to apply to messages that constitute ‘‘War Dialing’’ machines and because they do not ‘‘telephone solicitations,’’ is consistent 98. In the 2002 Notice, the always provide a means to request with the goals of the TCPA and Commission sought comment on the placement on a do-not-call list. addresses the concerns raised by practice of using autodialers to dial 100. Additionally, the term commenters about purported ‘‘free large blocks of telephone numbers in ‘‘unsolicited advertisement’’ means offers.’’ In addition, we believe the order to identify lines that belong to ‘‘any material advertising the amended rule will afford consumers a telephone facsimile machines. Of those commercial availability or quality of any greater measure of protection from commenters who weighed in on ‘‘war property, goods, or services which is unlawful prerecorded messages and dialing’’ (using automated equipment to transmitted to any person without that better inform the business community dial telephone numbers, generally person’s prior express invitation or about the general prohibition on such sequentially, and software to determine permission.’’ 47 U.S.C. 227(a)(4); 47 messages. whether each number is associated with CFR 64.1200(f)(5). The TCPA’s definition does not require a sale to be 102. The so-called ‘‘dual purpose’’ a fax line or voice line), there was calls described in the record—calls from unanimous support for a ban on the made during the call in order for the message to be considered an mortgage brokers to their clients practice. Commenters explained that notifying them of lower interest rates, ringing a telephone for the purpose of advertisement. Offers for free goods or services that are part of an overall calls from phone companies to determining whether the number is customers regarding new calling plans, associated with a fax or voice line is an marketing campaign to sell property, goods, or services constitute or calls from credit card companies invasion of consumers’ privacy interests offering overdraft protection to existing and should be prohibited. Moreover, ‘‘advertising the commercial availability or quality of any property, goods, or customers—would, in most instances, they asserted there is no free speech constitute ‘‘unsolicited advertisements,’’ issue when the caller has no intention services.’’ See 47 U.S.C. 227(a)(4). Therefore, the Commission finds that regardless of the customer service of speaking with the called party. The element to the call. The Commission TCPA prohibits the transmission of prerecorded messages containing free offers and information about goods and explained in the 2002 Notice that such unsolicited facsimile advertisements messages may inquire about a absent the consent of the recipient. The services that are commercially available are prohibited to residential telephone customer’s satisfaction with a product Commission agrees that because the already purchased, but are motivated in purpose of ‘‘war dialing’’ is to identify subscribers, if not otherwise exempted. For example, a prerecorded message part by the desire to sell ultimately those numbers associated with facsimile additional goods or services. If the call machines, the practice serves few, if that contains language describing a new product, a vacation destination, or a is intended to offer property, goods, or any, legitimate business interests and is company that will be in ‘‘your area’’ to services for sale either during the call, an intrusive invasion of consumers’ perform home repairs, and asks the or in the future (such as in response to privacy. Therefore, the Commission consumer to call a toll-free number to a message that provides a toll-free adopts a rule that prohibits the practice ‘‘learn more,’’ is an ‘‘unsolicited number), that call is an advertisement. of using any technology to dial any advertisement’’ under the TCPA if sent Similarly, a message that seeks people telephone number for the purpose of without the called party’s express to help sell or market a business’ determining whether the line is a fax or invitation or permission. See 47 U.S.C. products, constitutes an advertisement voice line. 227(a)(4). However, as long as the if the individuals called are encouraged Artificial or Prerecorded Voice message is limited to identification to purchase, rent, or invest in property, Messages information only, such as name and goods, or services, during or after the telephone number, it will not be call. However, the Commission points Offers for Free Goods or Services; considered an ‘‘unsolicited out that, if the message is delivered by Information-Only Messages advertisement’’ under our rules. a company that has an established 99. Congress found that ‘‘residential 101. In addition, we amend the business relationship with the recipient, telephone subscribers consider prerecorded message rule at 47 CFR it would be permitted under our rules.

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We also note that absent an established individual. With respect to the caller’s time warrant the adoption of new rules. business relationship, the telemarketer name, the prerecorded message must Few commenters in this proceeding must first obtain the prior express contain, at a minimum, the legal name described either receiving such consent of the called party in order to under which the business, individual or messages or that they were particularly lawfully initiate the call. Purporting to entity calling is registered to operate. problematic. The few commenters who obtain consent during the call, such as The Commission recognizes that some addressed the issue were split on requesting that a consumer ‘‘press 1’’ to businesses use ‘‘d/b/as’’ or aliases for whether such messages fall within the receive further information, does not marketing purposes. The rule does not TCPA’s definition of ‘‘unsolicited constitute the prior consent necessary to prohibit the use of such additional advertisement’’ and are thus subject to deliver the message in the first place, as information, provided the legal name of the restrictions on their delivery. We the request to ‘‘press 1’’ is part of the the business is also stated. The rule also conclude that if the purpose of the telemarketing call. requires that the telephone number message is merely to invite a consumer stated in the message be one that a to listen to or view a broadcast, such Identification Requirements consumer can use during normal message is permitted under the current 103. The TCPA rules require that all business hours to ask not to be called rules as a commercial call that ‘‘does not artificial or prerecorded messages again.2 If the number provided in the include the transmission of any delivered by an automatic telephone message is that of a telemarketer hired unsolicited advertisement’’ and under dialing system identify the business, to deliver the message, the company on the amended rules as ‘‘a commercial call individual, or other entity initiating the whose behalf the message is sent is that does not include or introduce an call, and the telephone number or nevertheless liable for failing to honor unsolicited advertisement or constitute address of such business, individual or any do-not-call request. This is a telephone solicitation.’’ See amended other entity. See 47 CFR 64.1200(d). consistent with the rules on live 47 CFR 64.1200(a)(2)(iii). However, Additionally, the Commission’s rules solicitation calls by telemarketers. If a messages that encourage consumers to contain identification requirements that consumer asks not to be called again, listen to or watch programming, apply without limitation to ‘‘any the telemarketer must record the do-not- including programming that is telephone solicitation to a residential call request, and the company on whose retransmitted broadcast programming telephone subscriber.’’ 47 CFR behalf the call was made must honor for which consumers must pay (e.g., 64.1200(e)(2)(iv). The term ‘‘telephone that request. cable, digital satellite, etc.), would be solicitation’’ is defined to mean ‘‘the considered advertisements for purposes Radio Station and Television initiation of a telephone call or message of our rules. The Commission reiterates, Broadcaster Calls for the purpose of encouraging the however, that messages that are part of purchase or rental of * * * property, 105. The TCPA prohibits the delivery an overall marketing campaign to goods, or services * * *’’ (emphasis of prerecorded messages to residential encourage the purchase of goods or added). 47 CFR 64.1200(f)(3). We sought telephone lines without the prior services or that describe the commercial comment, however, on whether we express consent of the called party. 47 availability or quality of any goods or should modify our rules to state U.S.C. 227(b)(1)(B). Commission rules services, are ‘‘advertisements’’ as expressly that the identification exempt from the prohibition calls that defined by the TCPA. Messages need requirements apply to otherwise lawful are made for a commercial purpose but not contain a solicitation of a sale artificial or prerecorded messages, as do not include any unsolicited during the call to constitute an well as to live solicitation calls. advertisement. 47 CFR 64.1200(c)(2). advertisement. 104. The vast majority of consumer The Commission sought comment on and industry commenters support prerecorded messages sent by radio Abandoned Calls modifying the rules to provide expressly stations or television broadcasters that 106. Given the arguments raised on that telemarketers must comply with the encourage telephone subscribers to tune both sides of this issue as well as the identification requirements when in at a particular time for a chance to FTC’s approach to the problem, the delivering prerecorded messages. Some win a prize or similar opportunity. We Commission has determined to adopt a consumers urge the Commission to asked whether the Commission should rule to reduce the number of abandoned require specifically that companies specifically address these kinds of calls, calls consumers receive. Under the new provide the name of the company under and if so, how. The record reveals that rules, telemarketers must ensure that which it is registered to do business. such calls by radio stations and any technology used to dial telephone They explain that a company will often television broadcasters do not at this numbers abandons no more than three use a ‘‘d/b/a’’ (‘‘doing business as’’) or (3) percent of calls answered by a ‘‘alias’’ in the text of the prerecorded 2 This would be 9 a.m.–5 p.m., Monday through person, measured over a 30-day period. message, making it difficult to identify Friday, during the particular telemarketing A call will be considered abandoned if the company calling. The Commission campaign. A seller or telemarketer’s telephone number must permit consumers to make their do- it is not transferred to a live sales agent recognizes that adequate identification not-call requests in a timely manner. Therefore, the within two (2) seconds of the recipient’s information is vital so that consumers seller or telemarketer must staff the ‘‘do-not-call completed greeting. When a call is can determine the purpose of the call, number’’ sufficiently or use an automated system abandoned within the three (3) percent for processing requests in such a way that possibly make a do-not-call request, and consumers are not placed on hold or forced to wait maximum allowed, a telemarketer must monitor compliance with the TCPA for an agent to answer the connection for an deliver a prerecorded identification rules. Therefore, we are amending our unreasonable length of time. We also reiterate the message containing only the rules to require expressly that all Commission’s determination in its 1995 TCPA telemarketer’s name, telephone number, Reconsideration Order that any number provided prerecorded messages, whether for identification purposes may not be a number and notification that the call is for delivered by automated dialing that requires the recipient of a solicitation to incur ‘‘telemarketing purposes.’’ To allow equipment or not, identify the name of more than nominal costs for making a do-not-call time for a consumer to answer the the business, individual or other entity request (i.e., for which charges exceed costs for phone, the telemarketer must allow the transmission of local or ordinary station-to-station that is responsible for initiating the call, long distance calls). See 1995 TCPA phone to ring for fifteen seconds or four along with the telephone number of Reconsideration Order, 10 FCC Rcd 12391, 12409, rings before disconnecting any such business, other entity, or para. 38. See also amended 47 CFR 64.1200(b)(2). unanswered call. Finally, telemarketers

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using predictive dialers must maintain disconnected calls, and that used instead by telemarketers to records that provide clear and telemarketers are permitted to manage transmit prerecorded messages to convincing evidence that the dialers their calling campaigns effectively answering machines; in such used comply with the three (3) percent under the new rules on abandoned calls. circumstances, calls that reach live call abandonment rate, ‘‘ring time’’ and Although we recognize that this rate of persons are disconnected. It is unclear two-second-transfer rule. measurement differs from the FTC’s from the record how prevalent the use rule, we believe a rate measured over a of AMD is in the telemarketing industry. Maximum Rate on Abandoned Calls longer period of time will allow for One commenter stated that the 107. The Commission believes that variations in telemarketing campaigns elimination of AMD would put establishing a maximum call such as calling times, number of ‘‘consumer-oriented’’ telemarketing abandonment rate is the best option to operators available, number of firms out of business. However, other reduce effectively the number of hang- telephone lines used by the call centers, industry members acknowledge that ups and ‘‘dead air’’ calls consumers and other similar factors. The record AMD contributes significantly to the experience. We recognize that industry also suggests that an abandonment rate amount of ‘‘dead air’’ consumers generally advocates a five percent measured over a 30-day period will experience, and one large telemarketing abandonment rate, claiming that a rate allow telemarketers to more easily firm maintains that AMD should be lower than five percent would reduce comply with the recordkeeping banned completely. The Commission efficiencies the technology provides. requirements associated with the use of believes that the record does not Some industry commenters indicate that predictive dialers. warrant a ban on the use of AMD. a 3 percent rate still obtains Instead, if the AMD technology is Two-Second-Transfer Rule productivity benefits. However, the deployed in such a way that the delay Commission is not convinced that a five 109. The record confirms that many in transfer time to a sales agent is percent rate will lead to a reasonable consumers are angered by the ‘‘dead limited to two seconds, then its reduction in the number of abandoned air’’ they often face when answering the continued use should not adversely calls. The DMA’s current guideline, telephone. Running to the telephone affect consumers’ privacy interests. cited by many commenters, calls for an only to be met by silence can be abandonment rate of no higher than five frustrating and even frightening, if the Prerecorded Message for Identification percent. And several telemarketers caller cannot be identified. To address 111. The FTC’s ‘‘safe harbor’’ maintain that they now utilize an the problem of ‘‘dead air’’ produced by provisions require that, when a sales abandonment rate of five percent or dialing technologies, the Commission agent is unavailable to speak to a person lower in their calling campaigns. has determined that a call will be answering the phone, marketers deliver Consumers nevertheless report receiving considered abandoned if the a prerecorded message that states the as many as 20 dropped calls per day telemarketer fails to connect the call to name and telephone number of the that interrupt dinners, interfere with a sales representative within two (2) seller on whose behalf the call was home business operations, and seconds of the person’s completed made. The Commission has similarly sometimes frighten the elderly and greeting. Calls disconnected because determined that when a telemarketer parents with young children. A rule that they were never answered (within the abandons a call under the three (3) is consistent with the FTC’s will required 15 seconds or 4 rings) or percent rate allowed, the telemarketer effectively create a national standard because they received busy signals will must deliver a prerecorded message with which telemarketers must comply not be considered abandoned. Calls that containing the name of the business, and should lead to fewer abandoned reach voicemail or an answering individual or other entity initiating the calls, while permitting telemarketers to machine will not be considered call, as well as the telephone number of continue to benefit from such ‘‘answered’’ by the called party. such business, individual or other technology. It is also responsive to Therefore, a call that is disconnected entity. The message must also state that Congress’ mandate in the Do-Not-Call upon reaching an answering machine the call is for ‘‘telemarketing purposes.’’ Act to maximize consistency with the will not be considered an abandoned By requiring such notice, we believe FTC’s rules. call. This requirement is consistent with consumers will be less likely to return 108. The three percent abandonment the FTC’s rule. the call simply to learn the purpose of rate will be measured over a 30-day 110. Answering Machine Detection. the call and possibly incur unnecessary period, a standard supported by several Opposition from industry to the two- charges. We recognize that many industry commenters. Industry members second-transfer requirement appears to consumers are frustrated with maintain that measuring the be based largely on its implications for prerecorded messages. However, the abandonment rate on a per day basis use of Answering Machine Detection record also reveals that consumers are would severely curtail the efficiencies (AMD). Some industry members explain frightened and angered by ‘‘dead air’’ gained from the use of predictive that AMD is used by telemarketers to calls and repeated hang-ups. A dialers, and may be overly burdensome detect answering machines, and thereby prerecorded message, limited to to smaller telemarketers. A per day avoid leaving messages on them. The identification information only, should measurement, they argue, would not ATA and DMA maintain that if mitigate the harms that result from account for short-term fluctuations in telemarketers are required to connect to ‘‘dead air,’’ as consumers will know marketing campaigns. They further a sales agent or message within 1–2 who is calling them. And, they will argue that the impact of abandoned calls seconds, a large percentage of calls more easily be able to make a do-not- on consumers depends more on the reaching answering machines will be call request of a company by calling the aggregate number of contacts made by a transferred to sales agents, thereby number provided in the message. We telemarketer over time and not on the reducing the efficiencies gained from note that such messages sent in excess number in any given day. The AMD. According to these commenters, of the three (3) percent allowed under Commission believes that a three (3) 1–2 seconds is often insufficient for the call abandonment rate, will be percent abandonment rate measured AMD to determine accurately if the call considered abandoned calls, unless over a 30-day period will ensure that has reached an answering machine. otherwise permitted by our rules. The consumers consistently receive fewer Other commenters explain that AMD is content of the message must be limited

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to name and telephone number, along to current DMA guidelines, and used by October 1, 2003, which is consistent with a notice to the called party that the some telemarketers already. One with the date that telemarketers must call is for ‘‘telemarketing purposes.’’ industry commenter asserted that comply with the FTC’s call The message may not be used to deliver telemarketers often set the predictive abandonment rules. This should permit an unsolicited advertisement. As long as dialers to ring for a very short period of telemarketers to make any modifications the message is limited to identification time before disconnecting the call; in to their autodialing equipment or information only, it will not be such cases, the predictive dialer does purchase any new software to enable considered an ‘‘unsolicited not record the call as having been them to comply with the three (3) advertisement’’ under our rules. We abandoned. The practice of ringing and percent call abandonment rate, the caution that additional information in then disconnecting the call before the prerecorded message requirement and the prerecorded message constituting an consumer has an opportunity to answer the two-second-transfer rule. unsolicited advertisement would be a the phone is intrusive of consumer violation of our rules, if not otherwise privacy and serves only to increase Wireless Telephone Numbers permitted under 47 CFR 64.1200(a)(2). efficiencies for telemarketers. Moreover, Telemarketing Calls to Wireless in discussing the interplay between the Established Business Relationship Numbers FTC’s rules with the Commission’s 116. We affirm that under the TCPA, 112. While the TCPA prohibits rules, very few commenters opposed the telephone calls to residential phone it is unlawful to make any call using an ‘‘ring time’’ requirement adopted by the automatic telephone dialing system or lines using an artificial or prerecorded FTC, or raised any particular concerns an artificial or prerecorded message to voice to deliver a message without the about how it might work in the TCPA any wireless telephone number. See 47 prior express consent of the called framework. Therefore, given the U.S.C. 227(b)(1). Both the statute and party, the Commission determined that substantial interest in protecting our rules prohibit these calls, with the TCPA permits an exemption for consumers’ privacy interests, as well as limited exceptions, ‘‘to any telephone established business relationship calls Congress’s direction to maximize number assigned to a paging service, from the restriction on artificial or consistency with the FTC’s rules, we cellular telephone service, specialized prerecorded message calls to residences. have determined to adopt the 15 second mobile radio service, or other common The record reveals that an established or four (4) ring requirement. business relationship exemption is 114. Finally, consistent with the carrier service, or any service for which necessary to allow companies to contact FTC’s rules, the Commission has the called party is charged.’’ 47 U.S.C. their existing customers. Companies determined that telemarketers must 227(b)(1)(A)(iii). This encompasses both currently use prerecorded messages, for maintain records establishing that the voice calls and text calls to wireless example, to notify their customers about technology used to dial numbers numbers including, for example, short new calling plans, new mortgage rates, complies with the three (3) percent call message service calls, provided the call and seasonal services such as chimney abandonment rate, ‘‘ring time,’’ and is made to a telephone number assigned sweeping and lawn care. Therefore, two-second rule on connecting to a live to such service. Congress found that prerecorded messages sent by sales agent. Telemarketers must provide automated or prerecorded telephone companies to customers with whom such records in order to demonstrate calls were a greater nuisance and they have an established business compliance with the call abandonment invasion of privacy than live solicitation relationship will not be considered rules. Only by adopting a recordkeeping calls. Moreover, such calls can be costly ‘‘abandoned’’ under the revised rules, if requirement will the Commission be and inconvenient. The Commission has they are delivered within two (2) able to enforce adequately the rules on long recognized, and the record in this seconds of the person’s completed the use of predictive dialers. proceeding supports the same greeting. Similarly, any messages 115. The TCPA seeks primarily to conclusion, that wireless customers are initiated with the called party’s prior protect subscribers from unrestricted charged for incoming calls whether they express consent and delivered within commercial telemarketing calls, and pay in advance or after the minutes are two (2) seconds of the called person’s therefore exempts calls or messages by used. Wireless subscribers who completed greeting are not ‘‘abandoned’’ tax-exempt nonprofit organizations from purchase a large ‘‘bucket’’ of minutes at calls under the new rules. Such the definition of telephone solicitation. a fixed rate nevertheless are charged for messages must identify the business, Therefore, the Commission has those minutes, and for any minutes that individual or entity making the call and determined not to extend the call exceed the ‘‘bucket’’ allowance. This contain a telephone number that a abandonment rules to tax-exempt ‘‘bucket’’ could be exceeded more consumer may call to request placement nonprofit organizations in the absence quickly if consumers receive numerous on a do-not-call list. We recognize that of further guidance from Congress. unwanted telemarketing calls. the established business relationship Because this will result in an Moreover, as several commenters point exception to the prohibition on inconsistency with the FTC’s rules, we out, telemarketers have no way to prerecorded messages conflicts with the will discuss the call abandonment rules determine how consumers are charged FTC’s amended rule. However, for the in the report due to Congress within 45 for their wireless service. reasons described above, we believe the days after the promulgation of final 117. Although the same economic and current exception is necessary to avoid rules. See Do-Not-Call Act, Section 4. safety concerns apply to all telephone interfering with ongoing business However, the call abandonment rules solicitation calls received by wireless relationships. will apply to all other companies subscribers, the Commission has engaged in telemarketing, and the determined not to prohibit all live Ring Duration existence of an established business telephone solicitations to wireless 113. The Commission also adopts a relationship between the telemarketer numbers. We note, however, that the requirement that telemarketers allow the and consumer will not be an exception TCPA already prohibits live solicitation phone to ring for 15 seconds or four (4) to these rules. For these entities, the call calls to wireless numbers using an rings before disconnecting any abandonment rules will become autodialer. See 47 U.S.C. 227(b)(1). The unanswered call. This standard is effective on October 1, 2003. We decline national do-not-call database will allow consistent with that of the FTC, similar to establish an effective date beyond for the registration of wireless telephone

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numbers for those subscribers who wish telemarketers use to avoid making Caller Identification to avoid live telemarketing calls to their prohibited calls to wireless numbers. 124. The Commission has determined wireless phones. Wireless subscribers 121. LNP and pooling do not make it to require all sellers and telemarketers thus have a simple means of preventing impossible for telemarketers to comply to transmit caller ID information, most live telemarketing calls if they so with the TCPA. The record regardless of their calling systems. In desire. Registration on the do-not-call demonstrates that information is addition, any person or entity engaging database will not prevent calls from available from a variety of sources to in telemarketing is prohibited from entities that have an established assist telemarketers in determining blocking the transmission of caller ID business relationship with a wireless which numbers are assigned to wireless information. Caller ID information must subscriber. Wireless subscribers who carriers. For example, NeuStar, Inc. as include either ANI or Calling Party receive such live calls can easily make the North American Numbering Plan Number (CPN) and, when available by a company-specific do-not-call request. Administrator, the National Pooling the telemarketer’s carrier, the name of Moreover, relying on the do-not-call Administrator, and the LNP the telemarketer. If the information database to control live telephone Administrator makes information required is not passed through to the solicitations recognizes that prohibiting available that can assist telemarketers in consumer, through no fault of the such calls to wireless numbers may identifying numbers assigned to telemarketer originating the call, then unduly restrict telemarketers’ ability to wireless carriers. Also, other the telemarketer will not be held liable contact those consumers who do not commercial enterprises such as for failure to comply with the rules. In object to receiving telemarketing calls Telcordia, the owner-operator of the such a circumstance, the telemarketer and use their wireless phones as either Local Exchange Routing Guide maintain must provide clear and convincing their primary or only phone. information that can assist telemarketers evidence that the caller ID information 118. The Commission’s rules provide in identifying numbers assigned to that companies making telephone could not be transmitted. However, the wireless carriers. We acknowledge that Commission concurs with the FTC that solicitations to residential telephone beginning November 24, 2003, numbers subscribers must comply with time of caller ID information can be transmitted previously used for wireline service cost effectively for the vast majority of day restrictions and must institute could be ported to wireless service procedures for maintaining do-not-call calls made by telemarketers. Caller ID providers and that telemarketers will allows consumers to screen out lists. See 47 CFR 64.1200(e). We need to take the steps necessary to conclude that these rules apply to calls unwanted calls and to identify identify these numbers. We also note companies that they wish to ask not to made to wireless telephone numbers. that there are various solutions that will We believe that wireless subscribers call again. Knowing the identity of the enable telemarketers to identify wireless caller is also helpful to consumers who should be afforded the same protections numbers in a pooling and number as wireline subscribers. feel frightened or threatened by hang-up portability environment. We decline to and ‘‘dead air’’ calls. We disagree with Wireless Number Portability and mandate a specific solution, but rather those commenters who argue that caller Pooling rely on the telemarketing industry to ID information only benefits those 119. Based on the evidence in the select solutions that best fit consumers who subscribe to caller ID record, we find that it is not necessary telemarketers’ needs. The record services. Consumers can also use the to add rules to implement the TCPA as demonstrates that telemarketers have *69 feature to obtain caller ID a result of the introduction of wireless found adequate methods in the past to information transmitted by a Local Number Portability (LNP) and comply with the TCPA’s prohibition on telemarketer. The *69 feature, available thousands-block number pooling. The telephone calls using an autodialer or an through many subscribers’ telephone TCPA rules prohibiting telemarketers artificial or prerecorded voice message service providers, provides either: (1) from placing autodialed and to any telephone number assigned to a Information regarding the last incoming prerecorded message calls to wireless cellular telephone service, a paging call, and the option to dial the caller numbers have been in place for twelve service, or any service for which the back, or (2) the ability to return the last years. Further, the Commission’s called party is charged for the call. We incoming call. Call information, pooling requirements have been in place expect telemarketers to continue to however, would not be available for an for several years and the porting make use of the tools available in the incoming call, if the caller failed to requirements have been in place for marketplace in order to ensure transmit caller ID information or over five years. Accordingly, continued compliance with the TCPA. blocked such information. Caller ID also telemarketers have received sufficient 122. Moreover, the record indicates should increase accountability and notice of these requirements in order to that telemarketing to wireless phones is provide an important resource for the develop business practices that will not a significant problem, indicating FCC and FTC in pursuing enforcement allow them to continue to comply with that the industries’ voluntary efforts actions against TCPA and TSR violators. the TCPA. have been successful. Commenters 125. We conclude that while SS7 120. Additionally, telemarketers have further declare that the wireless and capability is not universally available, taken measures in the past to identify telemarketing industries have been the vast majority of the United States wireless numbers, and there is no actively working together to ensure that has access to SS7 infrastructure. The indication that these measures would telemarketing does not become a SS7 network contains functionality to not continue to be effective for problem for wireless customers. transmit both the CPN and the charge identifying wireless numbers affected by 123. Finally, we reject proposals to number. ‘‘Charge number’’ is defined in pooling and porting. As noted above, create a good faith exception for 47 CFR 64.1600(d) and refers to the the industry currently makes use of a inadvertent autodialed or prerecorded delivery of the calling party’s billing variety of tools to enable it to avoid calls to wireless numbers and proposals number by a local exchange carrier for making prohibited calls. The record to create implied consent because we billing or routing purposes, and to the provides a sampling of methods, find that there are adequate solutions in subsequent delivery of such number to including the DMA’s ‘‘Wireless the marketplace to enable telemarketers end users. Under the Commission’s Telephone Suppression Service,’’ that to identify wireless numbers. rules, with certain limited exceptions,

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common carriers using SS7 and offering Consumer Advocates, the Commission’s 129. The TCPA seeks primarily to or subscribing to any service based on rules exempt from the current caller ID protect subscribers from unrestricted SS7 functionality are required to rules, PBX and Centrex systems which commercial telemarketing calls. transmit the CPN associated with an lack the capability to pass CPN Therefore, the Commission has interstate call to connecting carriers. See information. Regardless of whether a determined not to extend the caller ID 47 CFR 64.1600, 64.1601. Regardless of call is made using a typical T–1 trunk requirements to tax-exempt nonprofit whether SS7 is available, a LEC at the or an ISDN trunk, ANI is transmitted to organizations. However, the caller ID originating end of a call must receive the Local Exchange Carrier for billing rules will apply to all other companies and be able to transmit the ANI to the purposes. With both PBX and Centrex engaged in telemarketing, and the connecting carrier, as the ANI is the systems, the carrier can determine the existence of an established business number transmitted through the billing number from the physical line relationship between the telemarketer network that identifies the calling party being used to make a call, even if the and the consumer shall not be an for billing purposes. The term ‘‘ANI’’ billing number is not transmitted along exception to these rules. For all covered refers to the delivery of the calling that line to the carrier. We are cognizant entities, the effective date of the caller party’s billing number by a local of the fact that with PBX and Centrex ID requirements will be January 29, exchange carrier to any interconnecting systems, the billing number could be 2004. This will provide telemarketers a carrier for billing or routing purposes, associated with multiple outgoing lines. reasonable period of time to obtain or and to the subsequent delivery to end Nevertheless, telemarketers using PBX update any equipment or systems to users. See 47 CFR 64.1600(b). ANI is or Centrex systems are required under enable them to transmit caller ID generally inferred by the switch. Each the new rules not to block ANI, at a information. We decline to extend the line termination on the telco switch minimum, for caller ID purposes. effective date beyond January 29, 2004, corresponds to a different phone 127. We recognize that ISDN which is consistent with the date on number for ANI. Thus, we determine technology is preferred, as it presents which telemarketers are required to that telemarketers must ensure that the opportunity to transmit both CPN comply with the FTC’s caller ID either CPN or ANI is made available for and ANI. However, in situations where provision. all telemarketing calls in order to satisfy existing technology permits only the Unsolicited Facsimile Advertisements their caller ID requirements. Whenever transmission of the ANI or charge possible, CPN is the preferred number number, then the ANI or charge number Prior Express Invitation or Permission and should be transmitted. Provision of will satisfy the Commission’s rules, 130. The Commission has determined Caller ID information does not obviate provided it allows a consumer to make that the TCPA requires a person or the requirement for a caller to verbally a do-not-call request during regular entity to obtain the prior express supply identification information business hours. By allowing invitation or permission of the recipient during a call. See 47 CFR 64.1200(e)(iv). transmission of ANI or charge number before transmitting an unsolicited fax Consistent with the FTC’s rules, CPN to satisfy the caller ID requirement, we advertisement. This express invitation can include any number associated with believe that carriers need not incur or permission must be in writing and the telemarketer or party on whose significant costs to upgrade T–1 and include the recipient’s signature. The behalf the call is made, that allows the ISDN switches. For these same reasons, term ‘‘signature’’ in the amended rule consumer to identify the caller. This we also believe that mandating caller ID shall include an electronic or digital includes a number assigned to the will not create a competitive advantage form of signature, to the extent that such telemarketer by its carrier, the specific towards particular carriers. As typical form of signature is recognized as a number from which a sales T–1 technology is upgraded to ISDN valid signature under applicable federal representative placed a call, the number technology, we expect that law or state contract law. The recipient for the party on whose behalf the telemarketers will increasingly be able must clearly indicate that he or she telemarketer is making the call, or the to transmit the preferred CPN instead of consents to receiving such faxed seller’s customer service number. Any ANI or charge number. advertisements from the company to number supplied must permit an 128. Finally, the record strongly which permission is given, and provide individual to make a do-not-call request supports a prohibition on blocking the individual or business’s fax number during regular business hours for the caller ID information. Both National to which faxes may be sent. duration of the telemarketing Consumers League and National 131. Established Business campaign.3 Association of State Utility Consumer Relationship. The TCPA does not act as 126. Some commenters state that it is Advocates state that there is no valid a total ban on fax advertising. Persons not technically feasible for telemarketers reason why a telemarketer should be and businesses that wish to advertise to transmit caller ID information when allowed to intentionally block the using faxes may, under the TCPA, do so using a private branch exchange (PBX) transmission of caller ID. We conclude with the express permission of the and typical T–1 trunks. As noted by that the caller ID requirements for recipients. In the 2002 Notice, we National Association of State Utility commercial telephone solicitation calls sought comment on whether an do not implicate the privacy concerns established business relationship 3 This would mean 9 a.m.–5 p.m. Monday through Friday. A seller or telemarketer calling on associated with blocking capability for between a fax sender and recipient behalf of a seller must be able to record do-not-call individuals. See 47 CFR 64.1601(b). We establishes the requisite consent to requests at the number transmitted to consumers as recognize that absent a prohibition on receive telephone facsimile caller ID. Therefore, if the person answering the blocking, a party could transmit CPN in advertisements. The majority of calls at this number is not the sales representative who made the call or an employee of the seller or accordance with the new rules and industry commenters support the telemarketer who made the call, or if the simultaneously transmit a request to finding that facsimile transmissions telemarketer is using an automated system to block transmission of caller ID from persons or entities that have an answer the calls, the seller is nevertheless information. Thus, the Commission has established business relationship with responsible for ensuring that any do-not-call request is recorded and the consumer’s name, if provided, determined to prohibit any request by a the recipient can be deemed to be and telephone number are placed on the seller’s do- telemarketer to block caller ID invited or permitted by the recipient. not-call list at the time the request is made. information or ANI. These commenters maintain that

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eliminating the EBR exemption for advertisements. Such an opt-out list association), it was appropriate to treat facsimile advertisements would would require the recipient to possibly the issue of consent in any complaint interfere with ongoing business bear the cost of the initial facsimile and regarding unsolicited facsimile relationships, raise business costs, and inappropriately place the burden on the advertisements on a case-by-case basis. limit the flow of valuable information to recipient to contact the sender and In the 2002 Notice, we sought comment consumers. They urge the Commission request inclusion on a ‘‘do-not-fax’’ list. specifically on the issue of membership to amend the rules to provide expressly 134. Instead, Congress determined in a trade association or similar group for the EBR exemption. Conversely, the that companies that wish to fax and asked whether publication of one’s majority of consumer advocates argue unsolicited advertisements to customers fax number in an organization’s that the TCPA requires companies to must obtain their express permission to directory constitutes an invitation or obtain express permission from do so before transmitting any faxes to permission to receive an unsolicited fax. consumers—even their existing them. See 47 U.S.C. 227(b)(1)(C) and The American Business Media argued customers—before transmitting a fax to (a)(4). Advertisers may obtain consent that those willing to make fax numbers a consumer. Some consumer advocates for their faxes through such means as available in directories released to the maintain that the Commission erred in direct mail, Web sites, and interaction public do so with an expectation that its 1992 determination that a consumer, with customers in their stores. Under such fax numbers will be used for by virtue of an established business the new rules, the permission to send advertising. Consumer advocates, relationship, has given his or her fax advertisements must be provided in however, contend that publicly listing a express invitation or permission to writing, include the recipient’s fax number is not a broad invitation to receive faxes from that company. They signature and facsimile number, and send commercial faxes. TOPUC asserted urge the Commission to eliminate the cannot be in the form of a ‘‘negative that businesses often publish their fax EBR exemption, noting that Congress option.’’ A facsimile advertisement numbers for the convenience of their initially included in the TCPA an EBR containing a telephone number and an customers, clients and other trade exemption for faxes, but removed it instruction to call if the recipient no association members, not for the benefit from the final version of the statute. longer wishes to receive such faxes, of telemarketers. 132. We now reverse our prior would constitute a ‘‘negative option.’’ 136. The Commission agrees that fax conclusion that an established business This option (in which the sender numbers are published and distributed relationship provides companies with presumes consent unless advised for a variety of reasons, all of which are the necessary express permission to otherwise) would impose costs on usually connected to the fax machine send faxes to their customers. As of the facsimile recipients unless or until the owner’s business or other personal and effective date of these rules, the EBR recipient were able to ask that such private interests. The record shows that will no longer be sufficient to show that transmissions be stopped. For example, they are not distributed for other an individual or business has given a company that requests a fax number companies’ advertising purposes. Thus, their express permission to receive on an application form could include a a company wishing to fax ads to unsolicited facsimile advertisements. clear statement indicating that, by consumers whose numbers are listed in The record in this proceeding reveals providing such fax number, the a trade publication or directory must consumers and businesses receive faxes individual or business agrees to receive first obtain the express permission of they believe they have neither solicited facsimile advertisements from that those consumers. Express permission to nor given their permission to receive. company. Such statement, if receive a faxed ad requires that the Recipients of these faxed advertisements accompanied by the recipient’s consumer understand that by providing assume the cost of the paper used, the signature, will constitute the necessary a fax number, he or she is agreeing to cost associated with the use of the prior express permission to send receive faxed advertisements. We facsimile machine, and the costs facsimile advertisements to that believe the burden on companies to associated with the time spent receiving individual or business. We believe that obtain express permission is warranted a facsimile advertisement during which even small businesses may easily obtain when balanced against the need to the machine cannot be used by its permission from existing customers who protect consumers and businesses from owner to send or receive other facsimile agree to receive faxed advertising, when bearing the advertising costs of those transmissions. customers patronize their stores or companies. Finally, the Commission 133. The legislative history indicates provide their contact information. The affirms that facsimile requests for that one of Congress’ primary concerns Commission believes that given the cost permission to transmit faxed ads, was to protect the public from bearing shifting and interference caused by including toll-free opt-out numbers, the costs of unwanted advertising. unsolicited faxes, the interest in impose unacceptable costs on the Certain practices were treated protecting those who would otherwise recipients. This kind of ‘‘negative differently because they impose costs on be forced to bear the burdens of option’’ is contrary to the statutory consumers. For example, under the unwanted faxes outweighs the interests requirement for prior express TCPA, calls to wireless phones and of companies that wish to advertise via permission or invitation. numbers for which the called party is fax. charged are prohibited in the absence of 135. Membership in a Trade Fax Broadcasters an emergency or without the prior Association. In its 1995 Reconsideration 137. The Commission explained in express consent of the called party. See Order, the Commission determined that the 2002 Notice that some fax 47 U.S.C. 227(b)(1). Because of the cost mere distribution or publication of a broadcasters, who transmit other shifting involved with fax advertising, telephone facsimile number is not the entities’ advertisements to a large Congress similarly prohibited equivalent of prior express permission number of telephone facsimile machines unsolicited faxes without the prior to receive faxed advertisements. The for a fee, maintain lists of facsimile express permission of the recipient. 47 Commission also found that given the numbers that they use to direct their U.S.C. 227(b)(1)(C) and (a)(4). Unlike the variety of circumstances in which such clients’ advertisements. We noted that do-not-call list for telemarketing calls, numbers may be distributed (business this practice, among others, indicates a Congress provided no mechanism for cards, advertisements, directory listings, fax broadcaster’s close involvement in opting out of unwanted facsimile trade journals, or by membership in an sending unlawful fax advertisements

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and may subject such entities to a high degree of involvement or actual which a subscriber (a fax broadcaster or enforcement action under the TCPA and notice on the part of the broadcaster. other individual, business, or entity) our existing rules. We then sought The new rules provide that if the fax sends an unsolicited facsimile message, comment on whether the Commission broadcaster supplies the fax numbers that common carrier will not be liable should address specifically in the rules used to transmit the advertisement, the for the facsimile. the activities of fax broadcasters. fax broadcaster will be liable for any 140. Nextel urges the Commission to Companies and organizations whose unsolicited advertisement faxed to clarify that section 217 of the members hire fax broadcasters to consumers and businesses without their Communications Act does not impose a transmit their messages argue that the prior express invitation or permission. higher level of liability on common fax broadcaster should be liable for We agree, however, that if the company carriers than on other entities for violations of the TCPA’s faxing whose products are advertised has violations of the TCPA. Section 217 prohibition. American International supplied the list of fax numbers, that provides that ‘‘[i]n construing and Automobile Dealers Association company is in the best position to enforcing the provisions of this Act, the maintains this should be the case, even ensure that recipients have consented to act, omission, or failure of any officer, if the fax broadcaster uses the list of fax receive the faxes and should be liable agent, or other person acting for or numbers provided by the company for violations of the prohibition. employed by any common carrier or doing the advertising. Nextel argues that Therefore, the fax broadcaster will not user, acting within the scope of his liability ought to lie with the party be responsible for the ads, in the employment, shall in every case be also controlling the destination of the fax; absence of any other close involvement, deemed to be the act, omission, or that fax broadcasters who actively such as determining the content of the failure of such carrier or user as well as compile and market databases of fax faxed message. A high degree of that of the person.’’ 47 U.S.C. 217. The numbers are the major perpetrators of involvement might be demonstrated by Commission declines to address the TCPA fax violations. Nextel specifically a fax broadcaster’s role in reviewing and scope of section 217 in this rulemaking, urges the Commission to find that assessing the content of a facsimile which was not raised in the 2002 Notice companies whose products are message. In such circumstances where or in subsequent notices in this advertised by independent retailers both the fax broadcaster and advertiser proceeding. should not be liable for TCPA violations demonstrate a high degree of Fax Servers when they have no knowledge of such involvement, they may be held jointly 141. The TCPA makes it unlawful for activities. Fax broadcasters disagree that and severally liable for violations of the any person to use any telephone they should be liable for unlawful faxes, unsolicited facsimile provisions. In facsimile machine, computer, or other maintaining that many of them do not adopting this rule, the Commission device to send an unsolicited exercise any editorial control or focuses on the nature of an entity’s advertisement to a telephone facsimile discretion over the content of the activity rather than on any label that the machine. 47 U.S.C. 227(b)(1)(C). The messages, and do not provide the list of entity may claim. We believe the rule TCPA defines the term ‘‘telephone fax numbers to which the ads are will better inform the business facsimile machine’’ to mean ‘‘equipment transmitted. Many industry as well as community about the prohibition on which has the capacity (A) to transcribe consumer commenters agree that only unsolicited fax advertising and the text or images, or both, from paper into those fax broadcasters who are closely liability that attaches to such faxing. an electronic signal and to transmit that involved in the transmission of the fax And, it will better serve consumers who signal over a regular telephone line, or should be subject to liability. Reed are often confused about which party is (B) to transcribe text or images (or both) asserts that liability should rest with the responsible for unlawful fax advertising. from an electronic signal received over entity on whose behalf a fax is sent; that For the same reasons, the new rules a regular telephone line onto paper.’’ 47 fax broadcasters are not in a position to define ‘‘facsimile broadcaster’’ to mean U.S.C. 227(a)(2). The Commission know firsthand whether, for example, a person or entity that transmits sought comment on any developing an established business relationship messages to telephone facsimile technologies, such as computerized fax exists between the company and machines on behalf of another person or servers, that might warrant revisiting consumer. entity for a fee. See 47 CFR these rules. 138. The Commission’s rulings clearly 64.1200(f)(4). 142. Commenters who addressed this indicate that a fax broadcaster’s 139. Some commenters ask the issue were divided on whether fax exemption from liability is based on the Commission to clarify the extent of servers should be subject to the type of activities it undertakes, and only common carriers’ liability for the unsolicited facsimile provisions. Some exists ‘‘[i]n the absence of ‘a high degree transmission of unsolicited faxes. Cox industry representatives urged the of involvement or actual notice of an specifically urges the Commission to Commission to clarify that the TCPA illegal use and failure to take steps to distinguish the obligations of fax does not prohibit the transmission of prevent such transmissions.’’’ 1992 broadcasters from ‘‘traditional common unsolicited fax advertisements to fax TCPA Order, 7 FCC Rcd at 8780, para. carriers.’’ As noted above, the servers and personal computers because 54 (quoting Use of Common Carriers, 2 Commission has stated that ‘‘[i]n the these transmissions are not sent to a FCC Rcd 2819, 2820 (1987)). The absence of ‘a high degree of involvement ‘‘telephone facsimile machine,’’ as Commission believes that, based on the or actual notice of an illegal use and defined in the statute. Nextel maintains record and our own enforcement failure to take steps to prevent such that such faxes do not implicate the experience, addressing the activities of transmissions,’ common carriers will harms Congress sought to redress in the fax broadcasters will better inform both not be held liable for the transmission TCPA, as they are not reduced to paper consumers and businesses about the of a prohibited facsimile message.’’ 1992 and can be deleted from one’s inbox prohibition on unsolicited fax TCPA Order, 7 FCC Rcd at 8780, para. without being opened or examined. advertising. The Commission has 54 (quoting Use of Common Carriers, 2 Other commenters disagree, noting that determined to amend the rules to state FCC Rcd 2819, 2820 (1987)). We there are other costs associated with explicitly that a fax broadcaster will be reiterate here that if a common carrier faxes sent to computers and fax servers. liable for an unsolicited fax if there is is merely providing the network over They note that the TPCA only requires

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that the equipment have the capacity to that the recipients’ requested faxes are advertisements when there is a high transcribe text or messages onto paper, not timely received. Such faxes may degree of involvement on the part of the and that computer fax servers and increase labor costs for businesses, fax broadcaster. Commenters suggested personal computers have that capacity. whose employees must monitor faxes to the Commission clarify what constitutes 143. We conclude that faxes sent to determine which ones are junk faxes an adequate identification header. personal computers equipped with, or and which are related to their Consistent with our amended attached to, modems and to company’s business. Finally, because a identification rules for telemarketing computerized fax servers are subject to sender of a facsimile message has no calls, senders of fax advertisements will the TCPA’s prohibition on unsolicited way to determine whether it is being be required under the new rules to use faxes. However, we clarify that the sent to a number associated with a the name under which they are prohibition does not extend to facsimile stand-alone fax machine or to one officially registered to conduct business. messages sent as email over the Internet. associated with a personal computer or Use of a ‘‘d/b/a’’ (‘‘doing business as’’) The record confirms that a conventional fax server, it would make little sense to or other more widely recognized name stand-alone telephone facsimile apply different rules based on the is permissible; however, the official machine is just one device used for this device that ultimately received it. identification of the business, as filed purpose; that developing technologies Identification Requirements with state corporate registration offices permit one to send and receive facsimile or comparable regulatory entities, must messages in a myriad of ways. Today, a 146. The TCPA and Commission rules be included, at a minimum. modem attached to a personal computer require that any message sent via a allows one to transmit and receive telephone facsimile machine contain the Private Right of Action electronic documents as faxes. ‘‘Fax date and time it is sent and an 147. The Commission declines to servers’’ enable multiple desktops to identification of the business, other make any determination about the entity, or individual sending the send and receive faxes from the same or specific contours of the TCPA’s private message and the telephone number of shared telephony lines. right of action. Congress provided the sending machine or of such 144. The TCPA’s definition of consumers with a private right of action, ‘‘telephone facsimile machine’’ broadly business, other entity, or individual. 47 ‘‘if otherwise permitted by the laws or applies to any equipment that has the U.S.C. 227(d)(1)(B); 47 CFR 68.318(d). In rules of court of a State.’’ 47 U.S.C. capacity to send or receive text or the 2002 Notice, the Commission asked 227(c)(5). This language suggests that images. The purpose of the requirement whether these rules have been effective Congress contemplated that such legal that a ‘‘telephone facsimile machine’’ at protecting consumers’ rights to action was a matter for consumers to have the ‘‘capacity to transcribe text or enforce the TCPA. The Commission pursue in appropriate state courts, images’’ is to ensure that the prohibition determined in its Rules and Regulations subject to those courts’ rules. The on unsolicited faxing not be Implementing the Telephone Consumer Commission believes it is for Congress, circumvented. Congress could not have Protection Act of 1991, CC Docket No. not the Commission, to either clarify or intended to allow easy circumvention of 92–90, Order on Further its prohibition when faxes are Reconsideration, 12 FCC Rcd 4609, limit this right of action. (intentionally or not) transmitted to 4613, para. 6 (1997) (1997 TCPA Informal Complaint Rules personal computers and fax servers, Reconsideration Order) that a facsimile rather than to traditional stand-alone broadcast service must ensure that the 148. In the 2002 Notice, the facsimile machines. As the House identifying information of the entity on Commission noted that it had released Report accompanying the TCPA whose behalf the provider sent messages another Notice of Proposed Rulemaking explained, ‘‘facsimile machines are appear on facsimile messages. In its in February of 2002, seeking comment designed to accept, process and print all discussion, the Commission clarified on whether to extend the informal messages which arrive over their that the sender of a facsimile message is complaint rules to entities other than dedicated lines. The fax advertiser takes the creator of the content of the common carriers. We sought comment advantage of this basic design by message, finding that Section 227(d)(1) in this proceeding on whether the sending advertisements to available fax of the TCPA mandates that a facsimile Commission should amend these numbers, knowing that it will be include the identification of the informal complaint rules to apply to received and printed by the recipient’s business, other entity, or individual telemarketers. We will review this issue machine.’’ H.R. Rep. No. 102–317 at 10 creating or originating a facsimile as part of the Informal Complaints (1991). However, Congress also took message, and not the entity that proceeding. All comments filed in this account of the ‘‘interference, transmits the message. The Commission proceeding that address the interruptions, and expense’’ resulting believes that if a fax broadcaster is applicability of the informal complaint from junk faxes, emphasizing in the responsible for the content of the rules to telemarketers will be same Report that ‘‘[i]n addition to the message or for determining the incorporated into CI Docket No. 02–32. costs associated with the fax destination of the message (i.e., Time of Day Restrictions advertisements, when a facsimile supplying the list of facsimile numbers machine is receiving a fax, it may to which the faxes are sent), it should 149. Commission rules restrict require several minutes or more to be identified on the facsimile, along telephone solicitations between the process and print the advertisement. with the entity whose products are hours of 8 a.m. and 9 p.m. local time at During that time, the fax machine is advertised. Therefore, we amend the the called party’s location. 47 CFR unable to process actual business rules to require any fax broadcaster that 64.1200(e)(1). As part of our review of communications. H.R. Rep. No. 102–317 demonstrates a high degree of the TCPA rules, we sought comment on at 25 (1991).’’ involvement in the transmission of such how effective these time restrictions 145. Facsimile messages sent to a facsimile message to be identified on the have been at limiting objectionable computer or fax server may shift the facsimile, along with the identification solicitation calls. The Commission also advertising costs of paper and toner to of the sender. This will permit asked whether more restrictive calling the recipient, if they are printed. They consumers to hold fax broadcasters times could work in conjunction with a may also tie up lines and printers so accountable for unlawful fax national registry to better protect

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consumers from telephone solicitations notably, the FTC’s adoption of a unnecessarily duplicative enforcement to which they object. nationwide do-not-call registry, the actions. 150. Industry members that related Do-Not-Call Act, and finally our 155. In determining enforcement commented on the calling time adoption of requirements that maximize priorities under the new telemarketing restrictions unanimously asserted that consistency with those adopted by the rules, we contemplate that the the current calling times should be FTC create an overlap in federal Enforcement Bureau will continue its retained. Some explained that any regulations governing major policy of reviewing FCC and FTC restrictions on calls made during the telemarketing activities. There are other consumer complaint data and conferring early evening hours, in particular, overlapping regulations such as with appropriate state and federal would interfere with telemarketers’ provisions governing abandoned calls, agencies to detect both egregious ability to reach their customers. transmission of caller ID, and time-of- violations and patterns of violations, Consumers, on the other hand, urged day restrictions. We hereby direct and will act accordingly. The the Commission to adopt tighter Commission staff to negotiate with FTC Enforcement Bureau has in place restrictions on the times that staff a Memorandum of Understanding effective procedures to review aggregate telemarketers may call them. Some between the respective staffs to achieve complaint information to determine the object to calls at the end of the day and an efficient and effective enforcement general areas that merit enforcement during the dinner hour; others prefer strategy that will promote compliance actions, and to identify both particular that telemarketers not be able to begin with federal telemarketing regulations. violators and the individual consumers calling until later in the morning. Some 153. The FCC’s jurisdiction over who may be able to assist the staff in suggest the calling times should parallel telemarketing is significantly broader pursuing enforcement actions against local noise ordinances. EPIC advocated than the FTC’s. First, as noted above, such violators. Enforcement action allowing consumers to specify the hours the FTC does not have authority over could include, for example, forfeiture they wish to receive calls. telemarketing calls made by in-house proceedings under section 503(b),4 151. The Commission declines to employees of common carriers, banks, cease and desist proceedings under revise the restrictions on calling times. credit unions, savings and loans, section 312(c), injunctions under Instead, we retain the current calling insurance companies, and airlines. In section 401, and revocation of common times, which are consistent with the addition, the FTC’s telemarketing rules carrier section 214 operating authority. FTC’s rules. We believe the current pertain only to interstate transmissions. calling times strike the appropriate In contrast, the FCC’s telemarketing Other Issues balance between protecting consumer rules apply without exception to any Access to TCPA Inquiries and privacy and not unduly burdening entity engaged in any of the Complaints industry in their efforts to conduct telemarketing activities targeted by the 156. The Commission stated that the legitimate telemarketing. We also TCPA and the Commission’s related 2002 Notice was ‘‘prompted, in part, by believe that Commission rules that rules, including those that involve the increasing number and variety of diverge from the FTC’s calling purely intrastate activities. 47 U.S.C. inquiries and complaints involving our restrictions will lead to confusion for 152(b). Given the substantial gaps in the rules on telemarketing and unsolicited consumers. Moreover, consumers who FTC’s authority over the full range of fax advertisements.’’ A few commenters want to block unwanted calls during telemarketing activities, we contemplate maintain that the Commission should certain times will now have the option that our enforcement staff will focus not consider final rules until parties of placing their telephone numbers on particularly on those activities and have had an opportunity to analyze the the national do-not-call registry. They entities that fall outside the FTC’s consumer complaints referenced in the will have the additional option of giving reach—airlines, banks, credit unions, 2002 Notice. Other commenters contend express verifiable authorization to only savings and loans, insurance companies, those companies from which they wish and common carriers, as well as that the number of complaints received to hear. The Commission declines at intrastate transmissions by any entity. by the Commission does not necessarily this time to require companies to adhere 154. Nevertheless, we do not demonstrate a problem that demands to consumers’ calling preferences, contemplate Commission enforcement government intervention. The ATA filed including ‘‘acceptable’’ calling times. that targets only those activities, a Freedom of Information Act (FOIA) The Commission encourages any seller entities, or transmissions that are request with the Commission on or telemarketer to comply with outside the FTC’s jurisdiction. The October 16, 2002, seeking access to the consumers’ requests not to be called TCPA creates a statutory expectation for TCPA-related informal complaints. The during certain times of the day. We FCC enforcement in the telemarketing FOIA generally provides that any person believe that the costs of monitoring area. See 47 U.S.C. 227(f)(3), (7). has a right to obtain access to federal calling times for individual consumers Moreover, the TCPA’s detailed agency records, subject to enumerated could be substantial for many standards pertaining to do-not-call exemptions from disclosure. The FOIA companies, particularly small matters evince Congressional intent that requirements do not apply to records businesses. the FCC assume a prominent role in that contain ‘‘personnel and medical federal regulation of this aspect of files and similar files the disclosure of Enforcement Priorities telemarketing, a mandate that is not which would constitute a clearly 152. TCPA enforcement has been a altered by the Do-Not-Call Act. unwarranted invasion of personal Commission priority over the past Accordingly, even with the FTC’s new privacy.’’ See 5 U.S.C. 552(b)(6). Many several years, and we intend that it do-not-call regulations, including its of the complaints sought by the ATA remain so. In guiding our future administration of a national do-not-call contain personal private information. In enforcement plans, we recognize that registry, we emphasize that the addition, the complaints are part of a the FTC’s recent rule changes expand Commission must stand ready to that agency’s regulation of telemarketing enforce each of our telemarketing rules 4 Before initiating a forfeiture proceeding against most entities that do not hold an FCC authorization, activities and require coordination to in appropriate cases. For reasons of the violator must have received a Commission ensure consistent and non-redundant efficiency and fairness, our staff will citation and then engaged in an additional federal enforcement in this area. Most work closely with the FTC to avoid violation. 47 U.S.C. 503(b)(5).

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system of records subject to the Privacy promulgation of final rules in this clarify Commission rules governing Act. 5 U.S.C. 552(a); 47 CFR 0.551 et proceeding, and annually thereafter. By unwanted telephone solicitations, the seq. For these reasons, the Commission this Order, the Commission delegates its use of automatic telephone dialing agreed to release the complaints on a authority to the Chief, Consumer & systems, prerecorded or artificial voice rolling basis only after personal Governmental Affairs Bureau, to issue messages, telephone facsimile information was redacted. In response all such reports. machines, the effectiveness of company- to ATA’s FOIA request, the Commission specific do-not-call lists, and the Procedural Issues has thus far provided approximately appropriateness of establishing a 2,420 redacted complaints. Final Regulatory Flexibility Analysis national do-not-call list. In addition, in 157. We agree with commenters that 159. As required by the Regulatory the IRFA, the Commission sought the increasing number of inquiries and Flexibility Act of 1980, as amended comments on the effect the proposed complaints about telemarketing (RFA), 5 U.S.C. 603,5 an Initial policies and rules would have on small practices should not form the basis Regulatory Flexibility Analysis (IRFA) business entities. upon which we revise or adopt new was incorporated in the 2002 Notice 162. In this Order the Commission rules under the TCPA. Rather, such released by the Commission on revises the current TCPA rules and information can be considered in September 18, 2002. The Commission adopts new rules to provide consumers determining whether to seek comment sought written public comments on the with additional options for avoiding on the effectiveness of any of its rules. proposals contained in the 2002 Notice, unwanted telephone solicitations. We Other considerations included: the including comments on the IRFA. On establish a national do-not-call registry Commission’s own enforcement March 25, 2003, the Commission for consumers who wish to avoid most experience; the amount of time that had released the FNPRM, seeking comments unwanted telemarketing calls. This passed since the Commission undertook on the requirements contained in the national do-not-call registry will a broad review of the TCPA rules, Do-Not-Call Act which was signed into supplement the current company- during which time telemarketing law on March 11, 2003. None of the specific do-not-call rules, which will practices have changed significantly; comments filed in this proceeding were continue to permit consumers to request that particular companies not call them. and the actions by the FTC to consider specifically identified as comments changes to its telemarketing rules, The Commission also adopts a new addressing the IRFA; however, including the establishment of a provision to permit consumers comments that address the impact of the national do-not-call registry. We note registered with the national do-not-call proposed rules and policies on small that, even in the absence of any such list to provide permission to call to entities are discussed below. This complaints, the Commission is required specific companies by an express present Final Regulatory Flexibility by the Do-Not-Call Act to complete the written agreement. The TCPA rules Analysis (FRFA) conforms to the RFA. TCPA rulemaking commenced last year. exempt from the ‘‘do-not-call’’ See 5 U.S.C. 604. We disagree with commenters who requirements nonprofit organizations suggest that parties must have access to A. Need for, and Objectives of, the and companies with whom consumers all of the complaints referenced in the Order have an established business NPRM in order to be able to have a 160. Since 1992, when the relationship. The definition of meaningful opportunity to participate in Commission adopted rules pursuant to ‘‘established business relationship’’ has this proceeding. It is not the existence the TCPA, telemarketing practices have been amended so that it is limited to 18 of the complaints, or the number of changed significantly. New technologies months from any purchase or financial complaints, that led the Commission to have emerged that allow telemarketers transaction with the company and to institute this proceeding to consider to better target potential customers and three months from any inquiry or revision of its TCPA rules. Rather, our make marketing using telephones and application from the consumer. Any TCPA rules have been in place for more facsimile machines more cost-effective. company that is asked by a consumer, than ten years. We opened this At the same time, these new including an existing customer, not to call again must honor that request for proceeding to determine ‘‘whether the telemarketing techniques have Commission’s rules need to be revised five years. We retain the current calling heightened public concern about the in order to more effectively carry out time restrictions of 8 a.m. until 9 p.m. effect telemarketing has on consumer Congress’s directives in the TCPA.’’ 163. To address the use of predictive privacy. A growing number of states 2002 Notice, 17 FCC Rcd at 17461, para. dialers, we have determined that a have passed, or are considering, 1. In any event, since September 2002, telemarketer must abandon no more legislation to establish statewide do-not- consumers, industry, and state than three percent of calls answered by call lists, and the FTC has decided to governments have filed over 6,000 a person, must deliver a prerecorded establish a national do-not-call registry. comments in this proceeding, during identification message when Congress provided in the TCPA that which time the Commission extended abandoning a call, and must allow the ‘‘individuals’ privacy rights, public the comment periods twice and released telephone to ring for 15 seconds or four safety interests, and commercial an FNPRM in order to ensure that rings before disconnecting an freedoms of speech and trade must be parties had ample opportunity to unanswered call. The new rules also balanced in a way that protects the comment on possible FCC action. The require all companies conducting privacy of individuals and permits substantial record compiled in this telemarketing to transmit caller legitimate telemarketing practices.’’ See proceeding, along with the identification information when TCPA, Section 2(9), reprinted in 7 FCC Commission’s own enforcement available, and they prohibit companies Rcd 2736 at 2744. from blocking such information. The experience, provides the basis for the 161. The 2002 Notice sought actions we take here today. Commission has revised its earlier comments on whether to revise or determination that an established Reports to Congress business relationship constitutes 5 The RFA, see 5 U.S.C. 601–612, has been 158. The Do-Not-Call Act requires the amended by the Small Business Regulatory express invitation or permission to Commission to transmit reports to Enforcement Fairness Act of 1996 (SBREFA), Public receive an unsolicited facsimile Congress within 45 days after the Law 104–121, Title II, 110 Stat. 857 (1996). advertisement. We find that the

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permission to send fax ads must be in 166. National Do-Not-Call List. As because small businesses benefit writing, include the recipient’s discussed more extensively in the tremendously by advertising in yellow signature, and clearly indicate the Order, some commenters opposed the pages and on-line. However, other recipient’s consent to receive such ads. adoption of a national do-not-call commenters requested that small In addition, we have clarified when fax registry, stating that company-specific businesses be allowed to include their broadcasters are liable for the do-not-call lists adequately protect telephone numbers on the national do- transmission of unlawful fax consumer privacy. Other commenters not-call list. One small business advertisements. supported the establishment of a commenter stated that ’’*** 164. We believe the rules the national do-not-call registry, arguing telemarketing * * * interferes with Commission adopts in the Order strike that ‘‘further regulation is needed business operations, especially small an appropriate balance between because the current system does little or business operations * * *.’’ maximizing consumer privacy nothing to protect privacy in the home.’’ Mathemaesthetics, Inc. protections and avoiding imposing See Privacy Rights Clearinghouse (Mathemaesthetics) Comments at 6. undue burdens on telemarketers. In (Privacy Rights) at 2. National Another commenter argued that ‘‘people addition, the Commission must comply Federation of Independent Business that work from home * * * should not with the Do-Not-Call Act, which (NFIB) ‘‘believes that significant have to be bothered with telemarketing requires the Commission to file an burdens are being placed upon calls that would impact their job annual report to the House Committee businesses of all sizes in order to performance and potentially their on Energy and Commerce and the comply with the regulations * * *, but ability to make a living.’’ David T. Senate Committee on Commerce, that small businesses bear the brunt of Piekarski Comments (Docket No. 03–62) Science and Transportation. This report those burdens.’’ NFIB Comments at 1. at 1–2. Finally, some have assured the is to include: (1) An analysis of the NFIB suggested that women, minorities Commission that a national do-not-call effectiveness of the registry; (2) the and small businesses will be affected list would be manageable and feasible to number of consumers included on the disproportionately by any new maintain. NCS Pearson, Inc. (NCS), for registry; (3) the number of persons restrictions. And, some commenters example, maintained that even accessing the registry and the fees maintained that businesses, including extremely small telemarketers could collected for such access; (4) a small businesses, will suffer a reduction gain access to the do-not-call list at a description of coordination with state in telemarketing sales as a result of the reasonable cost using the Internet. do-not-call registries; and, lastly, (5) a establishment of a national do-not-call 169. Web site or Toll-Free Number to description of coordination of the list. Small Business Survival Committee Access Company-Specific Lists and to registry with the Commission’s (SBSC), while opposed to a national do- Confirm Requests. The Commission enforcement efforts. not-call list, nevertheless offered a sought comment on whether to consider any modifications that would allow B. Summary of Significant Issues Raised recommendation that would make such consumers greater flexibility to register by Public Comments in Response to the a list less onerous for small businesses. on company-specific do-not-call lists. IRFA SBSC suggested exempting local calls that might result in a face-to-face We specifically asked whether 165. There were no comments filed in transaction from the do-not-call list companies should be required to direct response to the IRFA. Some requirements. National Association of provide a toll-free number and/or Web commenters, however, raised issues and Insurance & Financial Advisors also site that consumers can access to questions about the impact the proposed encouraged exempting calls which register their names on do-not-call lists. rules and policies would have on small result in face-to-face meetings and Some commenters argued that it would entities. Telemarketers maintained that recommended an exemption for those be costly if small, local businesses were ‘‘telemarketing is used to introduce businesses that make a de minimis required to design and maintain Web consumers to novel and competitive number of calls. sites or provide toll-free numbers for products and services,’’ often offered by 167. The Commission received consumers to make do-not-call requests. small businesses. Some commenters comments arguing that a national do- In addition, they maintained that insisted that business-to-business not-call list ‘‘would be cumbersome’’ businesses should not be required to telemarketing is essential for small and too expensive for small businesses confirm registration of a consumer’s businesses. They indicated that they to use. Direct Selling Association name on a company’s do-not-call list. rely on fax broadcasting as a cost- specifically indicated that a national do- Confirmations by mail, they stated, effective form of advertising. On the not-call list would increase businesses’ would be expensive for a business and other hand, other small businesses have start-up costs if they were required to probably perceived by the consumer as requested that the Commission allow purchase the list. In addition, Mortgage ‘‘junk mail.’’ their telephone numbers to be included Bankers Association of America (MBA) 170. Established Business on any national do-not-call list and maintained that many small lenders use Relationship. One issue raised by urged the Commission to adopt rules referrals from existing customers, not commenters as particularly burdensome protecting them from unsolicited faxes. large lists, to attract new business. Such for small business was monitoring The rules adopted herein reflect not referrals, MBA suggested, will be existing business relationships and do- only the difficult balancing of difficult to scrub against a national do- not-call requests. NFIB stated that individuals’ privacy rights against the not-call list. Some commenters members have found requests by protections afforded commercial speech, suggested that an option to help reduce existing customers to cease contacting but the difficult balancing of the the cost of a national do-not-call list for them ‘‘unwieldy and difficult * * * to interests of small businesses that rely on small businesses would be to offer translate as a business practice.’’ NFIB telemarketing against those that are smaller pieces of the list to small Comments at 2. ‘‘An individual who harmed by unwanted telephone calls businesses. continues to interact with a [sic] these and facsimile transmissions. The 168. Yellow Pages Integrated Media small businesses following a ‘do not amended rules should reduce burdens Association urged the Commission to contact’ request does not sever the on both consumers and businesses, continue to exempt business-to-business business relationship de facto ***’’. including small businesses. calls from a national do-not-call list, NFIB Comments at 2. According to

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NFIB, it should be the right of the business, including via facsimile the rules adopted herein. The RFA business to continue to call that advertising. In addition, NFIB indicated generally defines the term ‘‘small customer. They argued that it should be that businesses engaged in facsimile entity’’ as having the same meaning as the responsibility of the customer to advertising should not be required to the terms ‘‘small business,’’ ‘‘small terminate the relationship with that identify themselves, and that customers organization,’’ and ‘‘small governmental business affirmatively. should be required to notify the jurisdiction.’’ 5 U.S.C. 601(6). In 171. National Automobile Dealers business that they do not wish to addition, the term ‘‘small business’’ has Association (NADA) indicated that there receive such faxes. NADA agreed that the same meaning as the term ‘‘small has been no significant change that the Commission should ‘‘preserve its business concern’’ under the Small would warrant a revision of the determination that a prior business Business Act. 5 U.S.C. 601(3) established business relationship relationship between a fax sender and (incorporating by reference the exemption. In fact, NADA stated that recipient establishes the requisite definition of ‘‘small-business concern’’ ‘‘narrowing the exemption would consent to receive fax advertisements.’’ in the Small Business Act, 15 U.S.C. unnecessarily deprive small businesses NADA Comments at 2. According to 632). Under the Small Business Act, a of a cost-effective marketing NADA, changing these rules would ‘‘small business concern’’ is one that: (1) opportunity.’’ NADA Comments at 2. deprive small businesses of a marketing Is independently owned and operated; According to NADA, small businesses tool upon which they have come to rely. (2) is not dominant in its field of must maximize their marketing 175. Other commenters disagreed, operation; and (3) satisfies any resources and the best way to do so is explaining that numerous small additional criteria established by the to direct their marketing efforts toward businesses are burdened by the Small Business Administration (SBA). their existing customers. intrusion of ringing telephones and fax 15 U.S.C. 632. 172. While no commenter specifically machines, the receipt of advertisements 178. The Commission’s rules on addressed the effect of time limits on in which they are not interested, the telephone solicitation and the use of small businesses, several entities depletion of toner and paper, and the autodialers, artificial or prerecorded discussed time limits for the established time spent dealing with these unwanted messages and telephone facsimile business relationship rule in general. faxes. A few home-based businesses and machines apply to a wide range of DMA indicated the difficulty in other companies maintain that facsimile entities, including all entities that use establishing a ‘‘clock’’ that ‘‘will apply advertisements interfere with the receipt the telephone or facsimile machine to across all the industries that use the of faxes connected to their own advertise. 47 CFR 64.1200. That is, our phone to relate to their customers.’’ business, and that the time spent action affects the myriad of businesses DMA Comments at 20. DMA continued collecting and sorting these faxes throughout the nation that use by stating ‘‘[d]ifferent business models increases their labor costs. In fact, NFIB telemarketing to advertise. For instance, require different periods of time.’’ DMA has received complaints from its own funeral homes, mortgage brokers, Comments at 20. This concept was members ‘‘who * * * failed to realize automobile dealers, newspapers and supported by Nextel, ‘‘the FTC’s that their membership entitles them to telecommunications companies could eighteen-month limit on its EBR rule the receipt of such information via fax.’’ all be affected. Thus, we expect that the would be inappropriate for the NFIB Comments at 2 (emphasis added). rules adopted in this proceeding could telecommunications industry’’ and 176. Caller ID Requirements. In have a significant economic impact on would ‘‘dramatically increase response to the Commission’s proposal a substantial number of small entities. administrative burdens and costs for all to require telemarketers to transmit 179. Nationwide, there are a total of businesses as they would be forced to caller ID or prohibit the blocking of such 22.4 million small businesses, according monitor and record every customer information, NYSCPB favored to SBA data. And, as of 1992, inquiry and purchasing pattern to prohibiting the intentional blocking of nationwide there were approximately ensure compliance with the FCC’s caller ID information, but acknowledged 275,801 small organizations [not-for- rules.’’ Nextel Reply Comments 12–13. that requiring the transmission of caller profit]. 173. Unsolicited Facsimile ID may be inappropriate for smaller 180. Again, we note that our action Advertising and ‘‘War Dialing’’. Privacy firms. NYSCPB stated that ‘‘[w]hile affects an exhaustive list of business Rights commented that the practice of mandatory transmission of caller ID types and varieties. We will mention dialing large blocks of numbers to information would undoubtedly with particularity the intermediary identify facsimile lines, i.e., ‘‘war facilitate do-not-call enforcement * * * groups that engage in this activity. SBA dialing,’’ should be prohibited, we would not want to impose onerous has determined that ‘‘telemarketing especially because such calls cannot be burdens on smaller, less technically bureaus’’ with $6 million or less in characterized as telemarketing. It argued sophisticated firms * * *.’’ NYSCPB- annual receipts qualify as small that ‘‘this practice is particularly Other Than National DNC List businesses. See 13 CFR 121.201, NAICS troubling for small business owners who Comments at 9. In addition, NYSCPB code 561422. For 1997, there were 1,727 often work out of home offices’’ because suggested that smaller businesses that firms in the ‘‘telemarketing bureau’’ it deprives the small business owner of lack the capability to transmit caller ID category, total, which operated for the the use of the equipment, creates an be exempt from providing caller ID entire year. Of this total, 1,536 reported annoyance and interrupts business calls. information until the business installs annual receipts of less than $5 million, Privacy Rights Comments at 4–5. new equipment with caller ID and an additional 77 reported receipts 174. NFIB advocated on behalf of its capabilities. of $5 million to $9,999,999. Therefore, small business members that ‘‘the the majority of such firms can be C. Description and Estimate of the ability to fax information to their considered to be small businesses. established customers is an essential Number of Small Entities to Which the commercial tool.’’ NFIB Comments at 3– Rules Will Apply D. Description of Projected Reporting, 4. Any customer who provides contact 177. The RFA directs agencies to Recordkeeping, and Other Compliance information when patronizing a provide a description of, and where Requirements for Small Entities business is providing express feasible, an estimate of the number of 181. The rules contained herein permission to be contacted by that small entities that may be affected by require significant recordkeeping

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requirements on the part of businesses, it has considered in developing its consumer privacy. In addition, we including small business entities. First, approach, which may include the declined to permit businesses to register while the national do-not-call list will following four alternatives (among their numbers on the national do-not- be developed and maintained by the others): ‘‘(1) The establishment of call registry, despite the requests of FTC, all businesses that engage in differing compliance or reporting numerous small business owners to do telemarketing will be responsible for requirements or timetables that take into so. The TCPA expressly contemplates obtaining the list of telephone numbers account the resources available to small that a national do-not-call database on the national do-not-call list and entities; (2) the clarification, includes residential telephone scrubbing their calling lists to avoid consolidation, or simplification of subscribers’ numbers. Although calling those numbers. They must also compliance or reporting requirements business numbers will not be included continue to be responsible for under the rule for such small entities; in the national do-not-call database, a maintaining their own company-specific (3) the use of performance rather than business could nevertheless request that do-not-call lists; however, this is not a design standards; and (4) an exemption its number be added to a company’s do- new requirement, but a continuation of from coverage of the rule, or any part not-call list. the Commission’s existing rules. The thereof, for such small entities.’’ 5 188. The Commission considered the Commission has reduced the period of U.S.C. 603(c)(1) through (c)(4). costs to small businesses of purchasing time that businesses must retain 186. There were five specific areas in the national do-not-call list. In an company-specific do-not-call requests which the Commission considered attempt to minimize the cost for small from 10 years to five years. In addition, alternatives for small businesses. These businesses, we have considered an for those businesses, including small areas were: (1) Establishing a National alternative and determined that businesses, that wish to call consumers Do-Not-Call List ((a) providing a portion businesses will be allowed to obtain up under the ‘‘established business of the national do-not-call list (five area to five area codes free of charge. Since relationship’’ exemption, they must codes) for free, (b) providing businesses many small businesses telemarket continue to maintain customer lists in with 30 days to process do-not-call within a local area, providing five area the normal course of business. Because requests, and (c) reducing the do-not- codes at no cost should help to reduce of the time limits associated with this call record retention rate from 10 years or eliminate the costs of purchasing the rule, businesses will need to monitor to five years); (2) maintaining the national registry for small businesses. and record consumer contacts to assure current established business rule Furthermore, as suggested by NCS, that they are complying with the 18- exemption and adopting the FTC’s time small businesses should be able to gain month and three-month provisions in limits of 18 months and three months; access to the national list in an efficient, the rule. Businesses that want to call (3) establishing a call abandonment rate cost-effective manner via the Internet. consumers with whom they have no of three percent, rather than zero 189. As discussed extensively in the relationship, but who are listed on the percent, and measuring the rate over a Order, many businesses, including national do-not-call list, must obtain a 30-day period, rather than on a per day small business entities, requested consumer’s express permission to call. basis; (4) continuing to prohibit specific exemptions from the This permission must be evidenced by facsimile advertising to residential and requirements of a national do-not-call a signed, written agreement. business numbers; and (5) declining to list. In order to minimize potential 182. Second, all businesses that use require businesses to maintain a Web confusion for both consumers and autodialers, including predictive site or toll-free number for do-not-call businesses alike, we declined to create dialers, to sell goods or services, will be requests or confirmation of such specific exemptions for small required to maintain records requests by consumers. Small businesses. We believe the exemptions documenting compliance with the call businesses presented arguments on both adopted for calls made to consumers abandonment rules. Such records sides of each of these issues. with whom a seller has an established should demonstrate the telemarketers’ 187. National Do-Not-Call List. This business relationship and those that compliance with a call abandonment Order establishes a national do-not-call have provided express agreement to be rate of no less than three percent list for those residential telephone called provide businesses with a measured over a 30-day period, with the subscribers who wish to avoid most reasonable opportunity to conduct their two-second-transfer rule, and with the unwanted telephone solicitations. business while protecting consumer ring duration requirement. Although many businesses, including privacy interests. 183. Third, with the exception of tax- small businesses, objected to a national 190. The Commission also considered exempt nonprofit organizations, all do-not-call registry, the Commission modifying for small businesses the time businesses that engage in telemarketing determined that a national do-not-call frames for (1) processing consumers’ do- will be required to transmit caller ID list was necessary to carry out the not-call requests; (2) retaining consumer information. directives in the TCPA. We agreed with do-not-call records; and (3) scrubbing 184. Fourth, businesses that advertise those commenters who maintained that calling lists against the national do-not- by fax will be required to maintain the company-specific approach to call registry. In doing so, we recognized records demonstrating that recipients concerns about unwanted telephone the limitations on small businesses of have provided express permission to solicitations does not alone adequately processing requests in a timely manner. send fax advertisements. Such protect individuals’ privacy interests. Therefore, we determined to require that permission must be given in writing, We declined to exempt local both large and small businesses must and businesses must document that they solicitations and small businesses from honor do-not-call requests within 30 have obtained the required permission. the national do-not-call list. Given the days from the date such a request is numerous entities that solicit by made, instead of requiring that E. Steps Taken To Minimize the telephone, and the technological tools businesses honor requests in less time. Significant Economic Impact on Small that allow even small entities to make Although some commenters suggested Entities, and Significant Alternatives a significant number of solicitation periods of up to 60 to 90 days to process Considered calls, we believe that to do so would do-not-call requests, we determined that 185. The RFA requires an agency to undermine the effectiveness of the such an inconsistency in the rules describe any significant alternatives that national do-not-call rules in protecting would lead to confusion for consumers.

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Consumers might not easily recognize described their frustration over hang-up businesses, which are inundated with that the telemarketer calling represented calls that interrupt their work and with unwanted fax advertisements. a small business and that they must answering the phone ‘‘only to find 196. Web site or Toll-Free Number to then allow a longer period of time for complete silence on the other end.’’ Access Company-Specific Lists and to their do-not-call requests to be Mathemaesthetics Comments at 6. Most Confirm Requests. Lastly, the processed. industry members encouraged the Commission has determined not to 191. The Commission also determined Commission to adopt an abandonment require businesses to provide a Web site to reduce the retention period of do-not- rate of no less than five percent, or toll-free number for consumers to call records from 10 years to five years. claiming that this rate ‘‘minimizes request placement on company-specific This modification should benefit abandoned calls, while still allowing for do-not-call lists or to respond businesses that are concerned about the substantial benefits achieved by affirmatively to do-not-call requests or telephone numbers that change hands predictive dialers.’’ WorldCom Reply at otherwise provide some means of over time. They argue that a shorter 18–19. The Commission has determined confirmation that consumers have been retention requirement will result in do- that a three percent maximum rate on added to a company’s do-not-call list. not-call lists that more accurately reflect abandoned calls balances the interests Several commenters indicated that such those consumers who have requested of businesses that derive economic requirements would be costly to small not to be called. Finally, we considered benefits from predictive dialers and businesses. Although we believe these allowing small businesses additional consumers who find intrusive those measures would improve the ability of time to scrub their customer call lists calls delivered by predictive dialers. We consumers to register do-not-call against the national do-not-call believe that this alternative, a rate of requests, we agree that such database. The FTC’s rules require three percent, will also benefit small requirements would be potentially telemarketers to scrub their lists every businesses that are affected by costly to businesses, particularly small 90 days. For the sake of consistency, interruptions from hang-ups and ‘‘dead businesses. Instead, we believe that the and to avoid confusion on the part of air’’ calls. national do-not-call registry will consumers and businesses, the 194. The three percent rate will be provide consumers with a viable Commission determined to require all measured over a 30-day period, rather alternative if they are concerned that businesses to access the national than on a per day basis. Industry their company-specific do-not-call registry and scrub their calling lists of members maintained that a per day requests are not being honored. In numbers in the registry every 90 days. measurement would not account for addition, consumers may pursue a 192. Established Business short-term fluctuations in marketing private right of action if there is a Relationship. We have modified the campaigns and may be overly violation of the do-not-call rules. This current definition of ‘‘established burdensome to smaller telemarketers. alternative should reduce, for small business relationship’’ so that it is We believe that measuring the three businesses who engage in telemarketing, limited in duration to 18 months from percent rate over a longer period of time both the potential cost and resource any purchase or transaction and three will still reduce the overall number of burdens of maintaining company- months from any inquiry or application. abandoned calls, yet permit specific lists. The revised definition is consistent with telemarketers to manage individual 197. Report to Congress: The the definition adopted by the FTC. We calling campaigns effectively. It will Commission will send a copy of the concluded that regulating the duration also permit telemarketers to more easily Order, including this FRFA, in a report of an established business relationship comply with the recordkeeping to be sent to Congress pursuant to the is necessary to minimize confusion and requirements associated with the use of Congressional Review Act, 5 U.S.C. frustration for consumers who receive predictive dialers. 801(a)(1)(A). In addition, the calls from companies they have not 195. Unsolicited Facsimile Commission will send a copy of the contacted or patronized for many years. Advertising. The record reveals that Order, including this FRFA, to the Chief There was little consensus among facsimile advertising can both benefit Counsel for Advocacy of the SBA. A industry members about how long an and harm small businesses with limited copy of the Order and FRFA (or established business relationship should resources. The small businesses and summaries thereof) will also be last following a transaction between the organizations that rely upon faxing as a published in the Federal Register. consumer and seller. We believe the 18- cost-effective way to advertise insist that Ordering Clauses month timeframe strikes an appropriate the Commission allow facsimile balance between industry practices and advertising to continue. Other small 198. Accordingly, pursuant to the consumer privacy interests. Although businesses contend that facsimile authority contained in Sections 1–4, businesses, including small businesses advertising interferes with their daily 222, 227, and 303(r) of the must monitor the length of relationships operations, increases labor costs, and Communications Act of 1934, as with their customers to determine wastes resources such as paper and amended; 47 U.S.C. 151–154, 222 and whether they can lawfully call a toner. The Commission has reversed its 227; and 47 CFR 64.1200 of the customer, we believe that a rule prior conclusion that an established Commission’s rules, and the Do-Not- consistent with the FTC’s will benefit business relationship provides Call Implementation Act, Public Law businesses by creating one uniform companies with the necessary express 108–10, 117 Stat. 557, the Report and standard with which businesses must permission to send faxes to their Order in CG Docket No. 02–278 IS comply. customers. Under the amended rules, a ADOPTED, and Parts 64 and 68 of the 193. Call Abandonment. In the 2002 business may advertise by fax with the Commission’s rules, 47 CFR Parts Notice, the Commission requested prior express permission of the fax 64.1200, 64.1601, and 68.318, are information on the use of predictive recipient, which must be in writing. amended as set forth in the attached dialers and the harms that result when Businesses may obtain such written Rule Changes. Effective August 25, predictive dialers abandon calls. In permission through direct mail, Web 2003, except for 47 CFR 64.1200(c)(2), response, some small businesses urged sites, or during interaction with which contains the national do-not-call the Commission to adopt a maximum customers in their stores. This rules, which will go into effect on rate of zero on abandoned calls. They alternative will benefit those small October 1, 2003; 47 CFR 64.1200(a)(5)

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and (6) which contain the call § 64.1200 Delivery restrictions. (5) Disconnect an unanswered abandonment rules, which will go into (a) No person or entity may: (1) telemarketing call prior to at least 15 effect on October 1, 2003; 47 CFR Initiate any telephone call (other than a seconds or four (4) rings. 64.1601(e), which contains the caller ID call made for emergency purposes or (6) Abandon more than three percent rules, which will go into effect on made with the prior express consent of of all telemarketing calls that are January 29, 2004; and §§64.1200(a)(3)(i), the called party) using an automatic answered live by a person, measured (d)(1), (d)(3), (d)(6), (f)(3) and (g)(1), telephone dialing system or an artificial over a 30-day period. A call is which contain information collection or prerecorded voice, ‘‘abandoned’’ if it is not connected to a requirements under the Paperwork (i) To any emergency telephone line, live sales representative within two (2) Reduction Act (PRA) that have not been including any 911 line and any seconds of the called person’s approved by the Office of Management emergency line of a hospital, medical completed greeting. Whenever a sales and Budget (OMB). The Commission physician or service office, health care representative is not available to speak will publish a document in the Federal facility, poison control center, or fire with the person answering the call, that Register announcing the effective date protection or law enforcement agency; person must receive, within two (2) for those sections. (ii) To the telephone line of any guest seconds after the called person’s 199. The comments addressing the room or patient room of a hospital, completed greeting, a prerecorded applicability of the informal complaint health care facility, elderly home, or identification message that states only rules to telemarketers ARE similar establishment; or the name and telephone number of the INCORPORATED into CI Docket 02–32. (iii) To any telephone number business, entity, or individual on whose 200. The Commission’s Consumer & assigned to a paging service, cellular behalf the call was placed, and that the Governmental Affairs Bureau shall have telephone service, specialized mobile call was for ‘‘telemarketing purposes.’’ authority to issue any reports to radio service, or other radio common The telephone number so provided Congress as required by the Do-Not-Call carrier service, or any service for which must permit any individual to make a Implementation Act. the called party is charged for the call. do-not-call request during regular 201. The Commission’s Consumer & (2) Initiate any telephone call to any business hours for the duration of the Governmental Affairs Bureau, Reference residential line using an artificial or telemarketing campaign. The telephone Information Center, SHALL SEND a prerecorded voice to deliver a message number may not be a 900 number or any copy of this Report and Order, including without the prior express consent of the other number for which charges exceed the Final Regulatory Flexibility called party, unless the call, local or long distance transmission Analysis, to the Chief Counsel for (i) Is made for emergency purposes, charges. The seller or telemarketer must (ii) Is not made for a commercial Advocacy of the Small Business maintain records establishing purpose, Administration. compliance with paragraph (a)(6) of this (iii) Is made for a commercial purpose section. List of Subjects in 47 CFR Parts 64 and but does not include or introduce an (i) A call for telemarketing purposes 68 unsolicited advertisement or constitute that delivers an artificial or prerecorded a telephone solicitation, Telephone. voice message to a residential telephone (iv) Is made to any person with whom line that is assigned to a person who Federal Communications Commission. the caller has an established business either has granted prior express consent William F. Caton, relationship at the time the call is made, for the call to be made or has an Deputy Secretary. or established business relationship with (v) Is made by or on behalf of a tax- Final Rules the caller shall not be considered an exempt nonprofit organization. abandoned call if the message begins ■ For the reasons discussed in the (3) Use a telephone facsimile within two (2) seconds of the called preamble, the Federal Communications machine, computer, or other device to person’s completed greeting. Commission amends parts 64 and 68 of send an unsolicited advertisement to a (ii) Calls made by or on behalf of tax- the Code of Federal Regulations as telephone facsimile machine, exempt nonprofit organizations are not follows: (i) For purposes of paragraph (a)(3) of covered by paragraph (a)(6) of this this section, a facsimile advertisement is section. PART 64—MISCELLANEOUS RULES not ‘‘unsolicited’’ if the recipient has (7) Use any technology to dial any RELATING TO COMMON CARRIERS granted the sender prior express telephone number for the purpose of invitation or permission to deliver the determining whether the line is a ■ 1. The authority citation for part 64 advertisement, as evidenced by a facsimile or voice line. continues to read: signed, written statement that includes (b) All artificial or prerecorded Authority: 47 U.S.C. 154, 254(k); secs. the facsimile number to which any telephone messages shall: 403(b)(2)(B), (c), Public Law 104–104, 110 advertisements may be sent and clearly (1) At the beginning of the message, Stat. 56. Interpret or apply 47 U.S.C. 201, indicates the recipient’s consent to state clearly the identity of the business, 218, 225, 226, 228, and 254(k) unless receive such facsimile advertisements individual, or other entity that is otherwise noted. from the sender. responsible for initiating the call. If a ■ 2. Subpart L is amended by revising (ii) A facsimile broadcaster will be business is responsible for initiating the the subpart heading to read as follows: liable for violations of paragraph (a)(3) call, the name under which the entity is * * * * * of this section if it demonstrates a high registered to conduct business with the degree of involvement in, or actual State Corporation Commission (or Subpart L—Restrictions on notice of, the unlawful activity and fails comparable regulatory authority) must Telemarketing and Telephone to take steps to prevent such facsimile be stated, and Solicitation transmissions. (2) During or after the message, state (4) Use an automatic telephone clearly the telephone number (other * * * * * dialing system in such a way that two than that of the autodialer or ■ 3. Section 64.1200 is revised to read as or more telephone lines of a multi-line prerecorded message player that placed follows: business are engaged simultaneously. the call) of such business, other entity,

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or individual. The telephone number administrator of the national database request not to be called to a party other provided may not be a 900 number or and does not participate in any than the person or entity on whose any other number for which charges arrangement to share the cost of behalf a telemarketing call is made or an exceed local or long distance accessing the national database, affiliated entity. transmission charges. For telemarketing including any arrangement with (4) Identification of sellers and messages to residential telephone telemarketers who may not divide the telemarketers. A person or entity subscribers, such telephone number costs to access the national database making a call for telemarketing purposes must permit any individual to make a among various client sellers; or must provide the called party with the do-not-call request during regular (ii) It has obtained the subscriber’s name of the individual caller, the name business hours for the duration of the prior express invitation or permission. of the person or entity on whose behalf telemarketing campaign. Such permission must be evidenced by the call is being made, and a telephone (c) No person or entity shall initiate a signed, written agreement between the number or address at which the person any telephone solicitation, as defined in consumer and seller which states that or entity may be contacted. The paragraph (f)(9) of this section, to: the consumer agrees to be contacted by telephone number provided may not be (1) Any residential telephone this seller and includes the telephone a 900 number or any other number for subscriber before the hour of 8 a.m. or number to which the calls may be which charges exceed local or long after 9 p.m. (local time at the called placed; or distance transmission charges. party’s location), or (iii) The telemarketer making the call (5) Affiliated persons or entities. In (2) A residential telephone subscriber has a personal relationship with the the absence of a specific request by the who has registered his or her telephone recipient of the call. subscriber to the contrary, a residential number on the national do-not-call (d) No person or entity shall initiate subscriber’s do-not-call request shall registry of persons who do not wish to any call for telemarketing purposes to a apply to the particular business entity receive telephone solicitations that is residential telephone subscriber unless making the call (or on whose behalf a maintained by the federal government. such person or entity has instituted call is made), and will not apply to Such do-not-call registrations must be procedures for maintaining a list of affiliated entities unless the consumer honored for a period of 5 years. Any persons who request not to receive reasonably would expect them to be person or entity making telephone telemarketing calls made by or on behalf included given the identification of the solicitations (or on whose behalf of that person or entity. The procedures caller and the product being advertised. telephone solicitations are made) will instituted must meet the following (6) Maintenance of do-not-call lists. A not be liable for violating this minimum standards: person or entity making calls for requirement if: (1) Written policy. Persons or entities telemarketing purposes must maintain a (i) It can demonstrate that the making calls for telemarketing purposes record of a caller’s request not to receive violation is the result of error and that must have a written policy, available further telemarketing calls. A do-not- as part of its routine business practice, upon demand, for maintaining a do-not- call request must be honored for 5 years it meets the following standards: call list. from the time the request is made. (A) Written procedures. It has (2) Training of personnel engaged in (7) Tax-exempt nonprofit established and implemented written telemarketing. Personnel engaged in any organizations are not required to comply procedures to comply with the national aspect of telemarketing must be with 64.1200(d). do-not-call rules; informed and trained in the existence (e) The rules set forth in paragraph (c) (B) Training of personnel. It has and use of the do-not-call list. and (d) of this section are applicable to trained its personnel, and any entity (3) Recording, disclosure of do-not- any person or entity making telephone assisting in its compliance, in call requests. If a person or entity solicitations or telemarketing calls to procedures established pursuant to the making a call for telemarketing purposes wireless telephone numbers to the national do-not-call rules; (or on whose behalf such a call is made) extent described in the Commission’s (C) Recording. It has maintained and receives a request from a residential Report and Order, CG Docket No. 02– recorded a list of telephone numbers telephone subscriber not to receive calls 278, FCC 03–153, ‘‘Rules and that the seller may not contact; from that person or entity, the person or Regulations Implementing the (D) Accessing the national do-not-call entity must record the request and place Telephone Consumer Protection Act of database. It uses a process to prevent the subscriber’s name, if provided, and 1991.’’ telephone solicitations to any telephone telephone number on the do-not-call list (f) As used in this section: number on any list established pursuant at the time the request is made. Persons (1) The terms automatic telephone to the do-not-call rules, employing a or entities making calls for dialing system and autodialer mean version of the national do-not-call telemarketing purposes (or on whose equipment which has the capacity to registry obtained from the administrator behalf such calls are made) must honor store or produce telephone numbers to of the registry no more than three a residential subscriber’s do-not-call be called using a random or sequential months prior to the date any call is request within a reasonable time from number generator and to dial such made, and maintains records the date such request is made. This numbers. documenting this process; and period may not exceed thirty days from (2) The term emergency purposes (E) Purchasing the national do-not- the date of such request. If such requests means calls made necessary in any call database. It uses a process to ensure are recorded or maintained by a party situation affecting the health and safety that it does not sell, rent, lease, other than the person or entity on whose of consumers. purchase or use the national do-not-call behalf the telemarketing call is made, (3) The term established business database, or any part thereof, for any the person or entity on whose behalf the relationship means a prior or existing purpose except compliance with this telemarketing call is made will be liable relationship formed by a voluntary two- section and any such state or federal law for any failures to honor the do-not-call way communication between a person to prevent telephone solicitations to request. A person or entity making a call or entity and a residential subscriber telephone numbers registered on the for telemarketing purposes must obtain with or without an exchange of national database. It purchases access to a consumer’s prior express permission consideration, on the basis of the the relevant do-not-call data from the to share or forward the consumer’s subscriber’s purchase or transaction

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with the entity within the eighteen (18) (ii) To any person with whom the be a violation of this paragraph to months immediately preceding the date caller has an established business substitute (for the name and phone of the telephone call or on the basis of relationship; or number used in, or billed for, making the subscriber’s inquiry or application (iii) By or on behalf of a tax-exempt the call) the name of the seller on behalf regarding products or services offered nonprofit organization. of which the telemarketing call is placed by the entity within the three months (10) The term unsolicited and the seller’s customer service immediately preceding the date of the advertisement means any material telephone number. The telephone call, which relationship has not been advertising the commercial availability number so provided must permit any previously terminated by either party. or quality of any property, goods, or individual to make a do-not-call request (i) The subscriber’s seller-specific do- services which is transmitted to any during regular business hours. not-call request, as set forth in person without that person’s prior paragraph (d)(3) of this section, express invitation or permission. (2) Any person or entity that engages terminates an established business (11) The term personal relationship in telemarketing is prohibited from relationship for purposes of means any family member, friend, or blocking the transmission of caller telemarketing and telephone solicitation acquaintance of the telemarketer making identification information. even if the subscriber continues to do the call. (3) Tax-exempt nonprofit business with the seller. (g) Beginning January 1, 2004, organizations are not required to comply (ii) The subscriber’s established common carriers shall: with this paragraph. business relationship with a particular (1) When providing local exchange business entity does not extend to service, provide an annual notice, via an PART 68—CONNECTION OF affiliated entities unless the subscriber insert in the subscriber’s bill, of the TERMINAL EQUIPMENT TO THE would reasonably expect them to be right to give or revoke a notification of TELEPHONE NETWORK included given the nature and type of an objection to receiving telephone goods or services offered by the affiliate solicitations pursuant to the national ■ 5. The authority citation for part 68 and the identity of the affiliate. do-not-call database maintained by the continues to read: (4) The term facsimile broadcaster federal government and the methods by means a person or entity that transmits which such rights may be exercised by Authority: 47 U.S.C. 154, 303. messages to telephone facsimile the subscriber. The notice must be clear machines on behalf of another person or and conspicuous and include, at a ■ 6. Section 68.318 is amended by entity for a fee. minimum, the Internet address and toll- revising paragraph (d) to read as follows: (5) The term seller means the person free number that residential telephone or entity on whose behalf a telephone subscribers may use to register on the § 68.318 Additional limitations. call or message is initiated for the national database. * * * * * purpose of encouraging the purchase or (2) When providing service to any (d) Telephone facsimile machines; rental of, or investment in, property, person or entity for the purpose of Identification of the sender of the goods, or services, which is transmitted making telephone solicitations, make a message. It shall be unlawful for any one-time notification to such person or to any person. person within the United States to use (6) The term telemarketer means the entity of the national do-not-call a computer or other electronic device to person or entity that initiates a requirements, including, at a minimum, send any message via a telephone telephone call or message for the citation to 47 CFR 64.1200 and 16 CFR facsimile machine unless such person purpose of encouraging the purchase or 310. Failure to receive such notification clearly marks, in a margin at the top or rental of, or investment in, property, will not serve as a defense to any person bottom of each transmitted page of the goods, or services, which is transmitted or entity making telephone solicitations to any person. from violations of this section. message or on the first page of the (7) The term telemarketing means the (h) The administrator of the national transmission, the date and time it is sent initiation of a telephone call or message do-not-call registry that is maintained and an identification of the business, for the purpose of encouraging the by the federal government shall make other entity, or individual sending the purchase or rental of, or investment in, the telephone numbers in the database message and the telephone number of property, goods, or services, which is available to the States so that a State the sending machine or of such transmitted to any person. may use the telephone numbers that business, other entity, or individual. If (8) The term telephone facsimile relate to such State as part of any a facsimile broadcaster demonstrates a machine means equipment which has database, list or listing system high degree of involvement in the the capacity to transcribe text or images, maintained by such State for the sender’s facsimile messages, such as or both, from paper into an electronic regulation of telephone solicitations. supplying the numbers to which a signal and to transmit that signal over a ■ 4. Section 64.1601 is amended by message is sent, that broadcaster’s name, regular telephone line, or to transcribe adding paragraph (e) to read as follows: under which it is registered to conduct text or images (or both) from an business with the State Corporation electronic signal received over a regular § 64.1601 Delivery requirements and Commission (or comparable regulatory telephone line onto paper. privacy restrictions. authority), must be identified on the (9) The term telephone solicitation * * * * * facsimile, along with the sender’s name. means the initiation of a telephone call (e) Any person or entity that engages Telephone facsimile machines or message for the purpose of in telemarketing, as defined in section manufactured on and after December 20, encouraging the purchase or rental of, or 64.1200(f)(7) must transmit caller 1992, must clearly mark such investment in, property, goods, or identification information. identifying information on each services, which is transmitted to any (1) For purposes of this paragraph, transmitted page. person, but such term does not include caller identification information must * * * * * a call or message: include either CPN or ANI, and, when (i) To any person with that person’s available by the telemarketer’s carrier, [FR Doc. 03–18766 Filed 7–24–03; 8:45 am] prior express invitation or permission; the name of the telemarketer. It shall not BILLING CODE 6712–01–P

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Part III

Department of Labor Occupational Safety and Health Administration

Voluntary Protection Programs To Provide Safe and Healthful Working Conditions, Draft Revisions; Notice

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DEPARTMENT OF LABOR subject, and docket number so we can year’s industry averages for nonfatal attach them to your comments. injuries and illnesses. OSHA proposes Occupational Safety and Health Access to comments and submissions: to now require that, to qualify for Star, Administration OSHA will make all comments and applicants’ and participants’ rates must submissions available for inspection be below the two BLS industry rates for Voluntary Protection Programs To and copying at the OSHA Docket Office at least 1 of the 3 most recent years Provide Safe and Healthful Working at the above address. Comments, and published. This change would also Conditions, Draft Revisions; Notice submissions relating to this document apply to the requirements for construction applicants’ qualification AGENCY: Occupational Safety and Health that are not protected by copyright, will for the Merit Program. Administration (OSHA), Department of also be available on OSHA’s website. Labor. OSHA cautions you about submitting B. Statutory Framework personal information such as Social ACTION: Notice of proposed changes to Security numbers and birth dates. The Occupational Safety and Health the program; request for comments. Contact the OSHA Docket Office at (202) Act of 1970, 29 U.S.C. 651 et seq. 693–2350 for information about (hereinafter referred to as the Act or the SUMMARY: The Occupational Safety and OSH Act), was enacted ‘‘to assure so far Health Administration requests materials not available through the OSHA website and for assistance in as possible every working man and comments on a proposed revision to its woman in the Nation safe and healthful Voluntary Protection Programs (VPP) using the website to locate docket submissions. working conditions and to preserve our that would change the benchmark injury human resources. * * *’’ and illness rates used to determine FOR FURTHER INFORMATION CONTACT: Section 2(b) specifies the measures by whether VPP applicants and Cathy Oliver, Director, Office of which the Congress would have OSHA participants meet the rate requirements Partnerships and Recognition, carry out these purposes. They include for the VPP Star Program. This change Occupational Safety and Health the following provisions that establish would also apply to the requirements Administration, Room N3700, 200 the legislative framework for the for construction applicants’ Constitution Ave. NW., Washington, DC Voluntary Protection Programs: qualification for the Merit Program. 20210, telephone (202) 693–2213. * * * (1) by encouraging employers and DATES: Comments must be submitted by Electronic copies of this Federal employees in their efforts to reduce the the following dates: Register notice, as well as news releases number of occupational safety and health Hard Copy: Your comments must be and other relevant documents, are hazards at their places of employment, and postmarked by August 25, 2003. available at OSHA’s website, http:// to stimulate employers and employees to www.osha.gov. institute new and to perfect existing Facsimile and electronic programs for providing safe and healthful transmission: Your comments must be SUPPLEMENTARY INFORMATION: working conditions; sent by August 25, 2003. * * * (4) by building upon advances I. Introduction ADDRESSES: Regular mail, express already made through employer and A. Background employee initiative for providing safe and delivery, hand-delivery, and messenger healthful working conditions; service: You must submit three copies of The Voluntary Protection Programs * * * (5) * * * by developing innovative your comments and attachments to the (VPP), adopted by OSHA in Federal methods, techniques, and approaches for OSHA Docket Office, Docket No. C–06, Register Notice 47 FR 29025, July 2, dealing with occupational safety and health Room N–2625, Occupational Safety and 1982, have established the efficacy of problems; Health Administration, U.S. Department cooperative action among government, * * * (13) by encouraging joint labor- of Labor, 200 Constitution Ave., NW., industry, and labor to address worker management efforts to reduce injuries and disease arising out of employment. Washington, DC 20210. Please contact safety and health issues and expand the OSHA Docket Office at (202) 693– worker protection. VPP participation II. Discussion of the Proposed Change 2350 for information about security requirements center on comprehensive OSHA has been concerned for some procedures concerning the delivery of management systems with active time about the effect on some VPP materials by express delivery, hand employee involvement to prevent or applicants and participants of delivery, and messenger service. OSHA control the safety and health hazards at substantial fluctuations from year to Docket Office and Department of Labor the worksite. Employers who qualify year in a limited number of BLS rates. hours of operation are 8:15 a.m. to 4:45 generally view OSHA standards as a For example, worksites in the p.m., EST. minimum level of safety and health manufacturing classification Petroleum Facsimile: If your comments, performance and set their own more and Coal Products/Petroleum Refining including any attachments, are 10 pages stringent standards where necessary for (Standard Industrial Classification— or fewer, you may fax them to the OSHA effective employee protection. SIC—Code 29/291) were compared with Docket Office at (202) 693–1648. You One way that OSHA determines the published average total recordable case must include the docket number of this qualification of applicants and the incidence rates (TCIR) of 2.50 in 1999, document, Docket No. C–06, in your continuing qualification of participants 3.70 in 2000, and 1.40 in 2001. This comments. in the VPP Star Program, the most represented a rate change from 1999 to Electronic: You may submit challenging participation category, is to 2000 of plus 32 percent, and from 2000 comments, but not attachments, through compare their injury and illness rates to to 2001 of minus 62 percent. Similarly, OSHA’s Web site at the following industry rates—benchmarks—published worksites in the manufacturing address: http://ecomments.osha.gov. annually by the Bureau of Labor classification Sanitary Paper Products Information such as studies and journal Statistics (BLS). For Star eligibility, rates (SIC 2676) were compared with a articles must be submitted in triplicate must be below the benchmark BLS rates. published average TCIR of 7.00 in 1999, hard copy to the OSHA Docket Office at This notice proposes to change the 4.50 in 2000, and 5.40 in 2001. This the address above. The additional benchmark rates that OSHA employs. represented a 20 percent increase from materials must clearly identify your Until now, the benchmarks have been 1999 to 2000, and a 35 percent decrease electronic comments by name, date, two rates obtained from the most recent from 2000 to 2001.

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The effect of these rate fluctuations is participant is fulfilling the requirement specific industry national averages for to create an unpredictable moving target for continuous improvement. In nonfatal injuries and illnesses (at the that, in any particular year, may not addition to examining a worksite’s most precise level available, either three fairly represent the injury and illness injury and illness rates, OSHA will or four digits) published by the Bureau situation in an industry. It certainly continue to carefully evaluate how well of Labor Statistics (BLS).’’ creates a difficult dilemma for OSHA if a site is implementing the required B. The Alternative Rate Calculation for the agency must approve one worksite major elements of Management Qualifying Small Businesses and disapprove another when both have Leadership and Employee Involvement; similarly excellent safety and health Worksite Analysis; Hazard Prevention The complete wording of management systems and similar injury and Control; and Safety and Health III.F.4.a.(2)(a) would change to: and illness experience. This situation Training. ‘‘To determine whether the employer occurs when OSHA compares one By going to the BLS website, a qualifies for the alternative calculation worksite against a 2000 benchmark rate, worksite aspiring to qualify for Star or method, do the following: for example, and a similarly performing to continue its Star qualification will be • Using the most recent employment site against an unreasonably divergent able to easily determine the rate against statistics (hours worked in the most 2001 benchmark rate. which its own rate will be compared. If recent calendar year), calculate a There is no easy solution to this there is a downward trend in the hypothetical total recordable case problem. Injury and illness rates are industry, that also will be apparent, but incidence rate for the employer useful tools in judging how well a a sudden, inexplicably large drop in the assuming that the employer had two worksite is protecting its employees. BLS’s industry rate will not have the cases during the year; OSHA believes, however, that the goals impact it currently has for some VPP • Compare that hypothetical rate to of VPP are not well served when participants and applicants. And while the 3 most recently published years of worksites that have established a sudden, inexplicably large increase in BLS combined injury/illness total excellent protective systems and that are the BLS’s industry rate may make it recordable case incidence rates for the steadily improving their injury and easier for a worksite to meet the Star industry; and illness rates fail to obtain Star approval rate requirements, the program’s many • If the hypothetical rate (based on because of statistical anomalies in other, rigorous requirements will two cases) is equal to or higher than the national rates. continue to ensure that only worksites national average for the firm’s industry After exploring various ways to with excellent safety and health in at least 1 of the 3 years, the employer address this problem, OSHA proposes to management systems gain VPP Star qualifies for the alternative calculation change the way it compares VPP approval. method.’’ applicants’ and participants’ injury and To implement this revision, OSHA illness rates to the national rates that C. Construction Applicants’ proposes changes in the following BLS publishes. The agency would no Qualification for Merit sections of the VPP: longer compare the individual worksite III.F.4.a.(1) This is the basic Star rate The beginning of III.H.2.b.(2) would rates to the most recently published BLS requirement. change to: industry rates at the most precise level III.F.4.a.(2)(a) This is the alternative ‘‘For construction, if the incidence available (at this time usually three or rate calculation available to qualifying rates for the applicant site are not below four digits). Instead, OSHA would look small businesses. the industry averages as required for at the most recent 3 years of BLS rates III.H.2.b.(2) This deals with Star, the applicant company must (at the most precise level available each construction applicants’ qualification demonstrate that the company-wide 3- year) and require that worksite rates be for VPP’s Merit Program. year rates are below at least 1 of the 3 below at least 1 of those 3 years of rates most recently published years of BLS to qualify or continue to qualify for Star III. Proposed Changes to the Voluntary rates for the industry (at the three-digit participation. Protection Programs level).’’ This proposed change might have the effect of reducing somewhat the weight A. The Star Rate Requirement. Signed at Washington, DC this 8th day of OSHA heretofore has assigned to rates The beginning of III.F.4.a.(1) would July 2003. within VPP. Rates will continue to play change to: John L. Henshaw, a significant role, however. They are one ‘‘For site employees—Two rates Assistant Secretary of Labor for Occupational indicator of how well a safety and reflecting the experience of the most Safety and Health. health management system is operating recent 3 calendar years must be below [FR Doc. 03–18928 Filed 7–24–03; 8:45 am] and of how well a VPP candidate or at least 1 of the 3 most recent years of BILLING CODE 4510–26–P

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Part IV

Department of Education Special Demonstration Programs—Model Demonstrations To Improve the Literacy and Employment Outcomes of Individuals With Disabilities; Notices

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DEPARTMENT OF EDUCATION with the specific requirements of invitational priority. However, we do Executive Order 12866 and its overall not give an application that meets the RIN 1820–ZA29 requirement of reducing regulatory invitational priority a competitive or Special Demonstration Programs— burden that might result from these absolute preference over other Model Demonstrations To Improve the proposed priorities. Please let us know applications (34 CFR 75.105(c)(1)). of any further opportunities we should Literacy and Employment Outcomes of Priorities Individuals With Disabilities take to reduce potential costs or increase potential benefits while preserving the Background AGENCY: Office of Special Education and effective and efficient administration of Preliminary data from the Rehabilitative Services, Department of the program. Longitudinal Study of the Vocational Education. During and after the comment period, Rehabilitation Services Program suggest ACTION: Notice of proposed priorities. you may inspect all public comments reading achievement levels are highly about these proposed priorities in room positively correlated with earnings. Data SUMMARY: The Assistant Secretary for 3038, Switzer Building, 330 C Street, the Office of Special Education and also indicate that VR agencies provide SW., Washington, DC, between the basic literacy services to only one Rehabilitative Services (OSERS) hours of 8:30 a.m. and 4 p.m., Eastern proposes priorities under the Special percent of the VR population. As a Time, Monday through Friday of each result of these findings, the Demonstration Programs. The Assistant week except Federal holidays. Secretary may use these priorities in Rehabilitation Services Administration fiscal year (FY) 2003 and in later years. Assistance to Individuals With (RSA) is testing two instructional We take this action to focus attention on Disabilities in Reviewing the reading curricula: The Lindamood-Bell Rulemaking Record Language Program (LBLP) and the the adult literacy needs of individuals  with disabilities pursuing employment On request, we will supply an Wilson Reading System (WRS). Both under the State Vocational appropriate aid, such as a reader or curricula have proven effective with Rehabilitation Services Program. We print magnifier, to an individual with a adults with disabilities. However, the intend that projects funded under these disability who needs assistance to impact of these curricula on the literacy priorities will demonstrate that certain review the comments or other skills of adults with disabilities has not specific literacy services may raise the documents in the public rulemaking been assessed, and neither curriculum literacy levels and earnings of record for these proposed priorities. If has been studied in a VR setting by individuals with disabilities compared you want to schedule an appointment RSA. Thus, RSA is interested in testing to individuals who receive the usual for this type of aid, please contact the the impact of each curriculum on the literacy of adults with disabilities vocational rehabilitation (VR) services. person listed under FOR FURTHER against the traditional services provided DATES: We must receive your comments INFORMATION CONTACT. We will announce the final priorities by VR. on or before August 25, 2003. Both curricula are phonics-based, but ADDRESSES: Address all comments about in a notice in the Federal Register. We will determine the final priorities after their instructional models differ. The these proposed priorities to Susan-Marie WRS, based on the principles of Orton- Marsh, U.S. Department of Education, considering responses to this notice and other information available to the Gillingham methodology, focuses on 400 Maryland Avenue, SW., Switzer decoding and spelling for adults who Building, room 3316, Washington, DC Department. This notice does not preclude us from proposing or funding have been unable to learn encoding and 20202–2641. If you prefer to send your decoding through traditional basal comments through the Internet, use the additional priorities, subject to meeting applicable rulemaking requirements. methods, whole language, or other following address: Susan- phonics programs and who require [email protected]. Note: This notice does not solicit multisensory language instruction to You must include the term ‘‘Model applications. In any year in which we choose to use these proposed priorities, we invite master the phonological coding system Demonstrations to Improve the Literacy of English. Teaching models of direct and Employment Outcomes of applications through a notice in the Federal Register. When inviting applications we instruction with drill are implemented. Individuals With Disabilities’’ in the designate the priority as absolute, The WRS Web site address is: http:// subject line of your electronic message. competitive preference, or invitational. The www.WilsonLanguage.com. FOR FURTHER INFORMATION CONTACT: effect of each type of priority follows: The LBLP is used to develop students’ Susan-Marie Marsh. Telephone: (202) Absolute priority: Under an absolute cognitive and linguistic abilities in the 358–2796 or via Internet: Susan- priority, we consider only applications areas of phonemic and orthographic [email protected]. that meet the priority (34 CFR awareness (symbol imagery) for If you use a telecommunications 75.105(c)(3)). decoding and spelling, and concept device for the deaf (TDD), you may call Competitive preference priority: imagery for vocabulary development the TDD number at (202) 205–8133. Under a competitive preference priority, and oral and written language Individuals with disabilities may we give competitive preference to an comprehension. The curriculum is obtain this document in an alternative application by either (1) awarding student-driven, sequential, and format (e.g., Braille, large print, additional points, depending on how constructivist-based, aimed at audiotape, or computer diskette) on well or the extent to which the ultimately developing students’ request to the contact person listed application meets the competitive thinking or reasoning skills necessary under FOR FURTHER INFORMATION priority (34 CFR 75.105(c)(2)(i)); or (2) for effective language processing CONTACT. selecting an application that meets the (including reading), including all those SUPPLEMENTARY INFORMATION: competitive priority over an application areas predictive for reading success, of comparable merit that does not meet including phonemic awareness, Invitation To Comment the priority (34 CFR 75.105(c)(2)(ii)). phonics, fluency, vocabulary, and We invite you to submit comments Invitational priority: Under an comprehension. All of LBLP’s regarding these proposed priorities. We invitational priority, we are particularly instructional approaches use a Socratic invite you to assist us in complying interested in applications that meet the pedagogy whereby the teacher leads the

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learner or learners in homogenous Employment (IPE) requires those training on administration of literacy groups, via a series of diagnostically services. Furthermore, those services assessment instruments, (2) educational based questions toward the area or areas may not be provided or paid for under assessment and evaluation, (3) research needing to be stimulated. Instruction is these demonstration grants. expenses, (4) support services such as customized and relies heavily on 3. The use of diagnostic tests and consumer transportation, childcare, and appropriate assessments from the most effective assessments of reading facilitation for attendance and retention, basic linguistic units all the way proficiency consistent with the (5) instructional materials, (6) through the higher level cognitive and procedures of RSA’s outside evaluator. curriculum and instruction, (7) linguistic functions including 4. The administration of a pre- and professional development for instructors metacognition, critical thinking, post-test to project participants as and administrators, (8) assistive language processing, and inferential directed by RSA’s outside evaluator. technology devices and services, (9) thinking. Further information may be Interventions instructional technology, and (10) found on the Internet at the following consultants. Web site: http://www.lblp.com. An applicant for this competition An independent evaluator, selected must choose either the LBLP or the WRS Invitational Priority after awards are made, will work with for its curriculum and provide a Within the priority for this grantees to ensure that their projects are rationale for its choice (e.g., the local competition, we are particularly designed and implemented in a manner adult literacy provider already uses interested in applications that meet the that will allow for rigorous evaluation, WRS). However, an applicant may also following invitational priority: including the assignment of project choose to describe its capacity to use the Establishing partnerships with other participants into literacy intervention other curriculum if it would be willing organizations that can assist in carrying and control groups. to substitute the alternative curriculum out their respective projects related to as its curriculum in order to enhance its improving literacy and employability Proposed Priority—Model ability to compete. RSA will select skills of adults with disabilities. Demonstrations To Improve the grantees in a manner to ensure that each These organizations might include Literacy Skills and Employment curriculum intervention is adequately Adult Education and Family Literacy Outcomes of Individuals With represented in the applications selected (AEFL) programs, institutions of higher Disabilities for funding. education, volunteer-based literacy This priority supports projects that programs, community rehabilitation demonstrate the effect literacy services Project Participants programs, nonprofit or for-profit and instruction have on improving The following participant research vendors of literacy services, and other literacy skills of targeted groups of VR criteria must be met: workforce agencies. Applicants under consumers and the effect on their 1. Projects must have a sufficient this invitational priority must meet the employment and earnings outcomes. number of individuals in the control requirements in 34 CFR 75.127 through Projects must demonstrate how VR and experimental groups so that the 75.129, which governs how partnerships offices can effectively integrate literacy effects of the literacy intervention can and other groups of eligible parties may services into their service delivery be adequately measured. submit applications and conduct funded systems and can best provide literacy 2. Project participants must be eligible projects. services and instruction to a targeted to receive VR services by the State VR Under 34 CFR 75.105(c)(1) we do not group of VR consumers. agency and have, or be in the process of give an application that meets the developing, an IPE. invitational priority a competitive or Evaluation 3. All project participants (control and absolute preference over other Projects must assure cooperation with experimental groups) must be given an applications. RSA and RSA’s outside evaluator in informed choice with respect to meeting the evaluation needs of the participation in the demonstration Executive Order 12866 project and RSA. Project cooperation project consistent with the human This notice of proposed priorities has with RSA’s outside evaluator must subjects provisions as included in the been reviewed in accordance with include the following: application package. Executive Order 12866. Under the terms 1. The assessment of all entering VR 4. Project participants for the of the order, we have assessed the consumers in the designated project experimental and control groups must potential costs and benefits of this service area using brief be selected using the requisite regulatory action. methodologically acceptable screening instrument. RSA requires use of the The potential costs associated with instruments for learning disabilities and Learning Needs Screening Tool, a the notice of proposed priorities are literacy levels to determine their validated and public domain screener, those resulting from statutory eligibility for the project. The which can be incorporated into the VR requirements and those we have assessment does not include VR intake process. Copies of the screener as determined as necessary for consumers with evidence of mental well as further information may be administering this program effectively retardation in their case files. found on the Internet at the following and efficiently. 2. The assignment of approximately Web site: http://www.seakingwdc.org/ In assessing the potential costs and one-half of the eligible project ld/WaScreenTool.htm. benefits—both quantitative and participants into a literacy intervention qualitative—of this notice of proposed group who would receive the additional Use of Funds priorities, we have determined that the services and benefits of the project and Funds may be used only for project benefits of the proposed priorities approximately one-half of the project costs and related activities and may not justify the costs. participants into a control group who be used to supplant the cost of services We have also determined that this would not receive projects services. ordinarily provided by the VR program. regulatory action does not unduly However, no individual in the control Related activities may include, but are interfere with State, local, and tribal group can be denied literacy services if not limited to—(1) counselor training or governments in the exercise of their his or her Individualized Plan for orientation, including counselor governmental functions.

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Summary of Potential Costs and DEPARTMENT OF EDUCATION Priorities Benefits Model Demonstrations To Improve the [CFDA No. 84.235P] The Assistant Secretary has Literacy and Employment Outcomes of determined this project to be beneficial Special Demonstration Programs— Individuals With Disabilities to the ongoing research and further Model Demonstrations To Improve the It is the policy of the Department of assistance of VR customers. No other Literacy and Employment Outcomes of Education not to solicit applications direct financial contribution is expected Individuals With Disabilities; Notice before the publication of final priorities. of the grantee. Inviting Applications for New Awards However, in this case it is essential to for Fiscal Year (FY) 2003 solicit applications on the basis of the Intergovernmental Review notice of proposed priorities published Purpose of Program: Special elsewhere in this issue of the Federal This program is subject to Executive Demonstration Programs support Register, because the Department’s Order 12372 and the regulations in 34 projects that expand and improve the authority to obligate these funds will CFR part 79. One of the objectives of the provision of rehabilitation and other expire on September 30, 2003. Executive order is to foster an services authorized under the Applicants should base their intergovernmental partnership and a Rehabilitation Act of 1973, as amended applications on the proposed priorities. strengthened federalism. The Executive (Act), or further the purposes of the Act If changes are made in the final notice order relies on processes developed by in empowering individuals with in response to public comments or other State and local governments for disabilities to maximize employment, considerations, applicants will be given coordination and review of proposed economic self-sufficiency, an opportunity to revise or resubmit Federal financial assistance. independence, and inclusion and their applications. integration into society. This This document provides early For FY 2003, this priority is an competition focuses attention on the absolute priority. Under 34 CFR notification of our specific plans and adult literacy needs of individuals with actions for this program. Applicable 75.105(c)(3) we consider only learning disabilities pursuing applications that meet this priority. Program Regulations: 34 CFR part 373. employment under the State Vocational Invitational Priority Electronic Access to This Document Rehabilitation Services Program. We intend that projects funded under these The invitational priority in the notice You may view this document, as well priorities will demonstrate that certain of proposed priorities published as all other Department of Education specific literacy services may raise the elsewhere in this issue of the Federal documents published in the Federal literacy levels and earnings of Register also applies to this Register, in text or Adobe Portable individuals with disabilities compared competition. Document Format (PDF) on the Internet to individuals who receive the usual Under 34 CFR 75.105(c)(1) we do not at the following site: http://www.ed.gov/ vocational rehabilitation (VR) services. give an application that meets the legislation/FedRegister. Eligible Applicants: State VR invitational priority a competitive or agencies. absolute preference over other To use PDF you must have Adobe Applications Available: July 28, 2003. applications. Acrobat Reader, which is available free Deadline for Transmittal of Application Procedures at this site. If you have questions about Applications: August 27, 2003. using PDF, call the U.S. Government Deadline for Intergovernmental Note: Some of the procedures in these Printing Office (GPO), toll free, at 1– Review: September 26, 2003. instructions for transmitting applications 888–293–6498; or in the Washington, Estimated Available Funds: differ from those in the Education DC, area at (202) 512–1530. $1,600,000. Department General Administrative Regulations (EDGAR) (34 CFR 75.102). Under Note: The official version of this document Estimated Average Size of Awards: $200,000. the Administrative Procedure Act (5 U.S.C. is the document published in the Federal 553) the Department generally offers Register. Free Internet access to the official Estimated Number of Awards: 8. Eight interested parties the opportunity to edition of the Federal Register and the Code projects will be funded in total. Four comment on proposed regulations. However, of Federal Regulations is available on GPO projects will be funded under each of these amendments make procedural changes Access at: http://www.access.gpo.gov/nara/ the two reading curricula described in only and do not establish new substantive index.html. the Background section of the notice of policy. Therefore, under 5 U.S.C. 553(b)(A), proposed priorities published elsewhere the Secretary has determined that proposed (Catalog of Federal Domestic Assistance rulemaking is not required. Number 84.235P Special Demonstration in this issue of the Federal Register. Programs—Model Demonstration Projects to Note: The Department is not bound by any Pilot Project for Electronic Submission Improve the Literacy and Employment estimates in this notice. of Applications Outcomes of Individuals With Disabilities) Project Period: Up to 60 months. In FY 2003, the U.S. Department of Program Authority: 29 U.S.C. 773(b). Page Limit: The application narrative Education is continuing to expand its Dated: July 22, 2003. (Part III of the application) is where you, pilot project for electronic submission of the applicant, address the selection applications to include additional Robert H. Pasternack, criteria that reviewers use to evaluate formula grant programs and additional Assistant Secretary for Special Education and your application. It is suggested that you discretionary grant competitions. The Rehabilitative Services. limit Part III to 35 pages. Special Demonstration Programs— [FR Doc. 03–19013 Filed 7–24–03; 8:45 am] Applicable Regulations: (a) The CFDA number 84.235P is one of the BILLING CODE 4000–01–P Education Department General programs included in the pilot project. Administrative Regulations (EDGAR) in If you are an applicant under the 34 CFR parts 74, 75, 77, 79, 80, 81, 82, Special Demonstration Programs, you 85, 97, and 99. (b) The regulations for may submit your application to us in this program in 34 CFR part 373. either electronic or paper format.

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The pilot project involves the use of your application on the closing date U.S. Department of Education, 400 the Electronic Grant Application System because the e-Application system is Maryland Avenue, SW., room 3317, (e-Application). Users of e-Application unavailable, we will grant you an Switzer Building, Washington, DC will be entering data on-line while extension of 1 business day in order to 20202–2550. Telephone: (202) 205– completing their applications. You may transmit your application electronically, 8207. If you use a telecommunications not e-mail a soft copy of a grant by mail, or by hand delivery. For us to device for the deaf (TDD), you may call application to us. If you participate in grant this extension— the Federal Information Relay Service this voluntary pilot project by 1. You must be a registered user of e- (FIRS) at 1–800–877–8339. However, submitting an application electronically, Application, and have initiated an e- the Department is not able to reproduce the data you enter on-line will be saved Application for this competition; and in an alternative format the standard into a database. We request your 2. (a) The e-Application system must forms included in the application participation in e-Application. We shall be unavailable for 60 minutes or more package. continue to evaluate its success and between the hours of 8:30 a.m. and 3:30 solicit suggestions for improvement. p.m., Washington, DC time, on the FOR FURTHER INFORMATION CONTACT: If you participate in e-Application, deadline date; or Susan-Marie Marsh, U.S. Department of please note the following: (b) The e-Application system must be Education, 400 Maryland Avenue, SW., • Your participation is voluntary. unavailable for any period of time room 3316, Switzer Building, • You will not receive any additional during the last hour of operation (that is, Washington, DC 20202–2650. point value because you submit a grant for any period of time between 3:30 and Telephone: (202) 358–2796, or via application in electronic format, nor 4:30 p.m., Washington, DC time) on the Internet: [email protected]. will we penalize you if you submit an deadline date. If you use a TDD, you may call FIRS application in paper format. When you The Department must acknowledge at 1–800–877–8339. Individuals with enter the e-Application system, you will and confirm these periods of disabilities may obtain this document in find information about its hours of unavailability before granting you an an alternative format (e.g. Braille, large operation. extension. To request this extension you • print, audiotape, or computer diskette) You may submit all documents must contact either (1) the person listed on request to the program contact electronically, including the elsewhere in this notice under FOR person listed in the preceding Application for Federal Education FURTHER INFORMATION CONTACT or (2) the paragraph. Assistance (ED 424), Budget e-GRANTS help desk at 1–888–336– Information—Non-Construction 8930. Electronic Access to This Document Programs (ED 524), and all necessary You may access the electronic grant assurances and certifications. application for the Special You may view this document, as well • After you electronically submit Demonstration Programs at: http://e- as all other Department of Education your application, you will receive an grants.ed.gov. documents published in the Federal automatic acknowledgement, which We have included additional Register, in text or Adobe Portable will include a PR/Award number (an information about the e-Application Document Format (PDF) on the Internet identifying number unique to your pilot project (see Parity Guidelines at the following site: http://www.ed.gov/ application). between Paper and Electronic legislation/FedRegister. • Within 3 working days after Applications) in the application To use PDF you must have Adobe submitting your electronic application, package. Acrobat Reader, which is available free fax a signed copy of the Application for For Applications Contact: Education at this site. If you have questions about Federal Education Assistance (ED 424) Publications Center (ED Pubs), P.O. Box using PDF, call the U.S. Government to the Application Control Center after 1398, Jessup, MD 20794–1398. Printing Office (GPO), toll free, at 1– following these steps: Telephone (toll free): 1–877–433–7827. 888–293–6498; or in the Washington, 1. Print ED 424 from e-Application. FAX (301) 470–1244. If you use a DC area at (202) 512–1530. 2. The institution’s Authorizing telecommunications device for the deaf Representative must sign this form. (TDD), you may call (toll free): 1–877– Note: The official version of this document 3. Place the PR/Award number in the is the document published in the Federal 576–7734. Register. Free Internet access to the official upper right hand corner of the hard You may also contact ED Pubs at its edition of the Federal Register and the Code copy signature page of the ED 424. Web site: http://www.ed.gov/pubs/ of Federal Regulations is available on GPO 4. Fax the signed ED 424 to the edpubs.html. Access at: http://www.access.gpo.gov/nara/ Application Control Center at (202) Or you may contact ED Pubs at its e- index.html. 260–1349. mail address: [email protected]. • We may request that you give us If you request an application from ED Program Authority: 29 U.S.C. 773(b). original signatures on all other forms at Pubs, be sure to identify this Dated: July 22, 2003. a later date. competition as follows: CFDA number • Closing Date Extension in Case of 84.235P. Loretta Petty Chittum, System Unavailability: If you elect to Individuals with disabilities may Acting Assistant Secretary for Special participate in the e-Application pilot for obtain a copy of the application package Education and Rehabilitative Services. the Special Demonstration Programs in an alternative format by contacting [FR Doc. 03–19014 Filed 7–24–03; 8:45 am] and you are prevented from submitting the Grants and Contracts Services Team, BILLING CODE 4000–01–P

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Reader Aids Federal Register Vol. 68, No. 143 Friday, July 25, 2003

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING JULY

Federal Register/Code of Federal Regulations At the end of each month, the Office of the Federal Register General Information, indexes and other finding 202–741–6000 publishes separately a List of CFR Sections Affected (LSA), which aids lists parts and sections affected by documents published since Laws 741–6000 the revision date of each title. Presidential Documents 3 CFR 212...... 43901 214...... 43901 Executive orders and proclamations 741–6000 Proclamations: The United States Government Manual 741–6000 245...... 43901 7688...... 39793 248...... 43901 Other Services 7689...... 39795 299...... 43901 Electronic and on-line services (voice) 741–6020 7690...... 40115 Privacy Act Compilation 741–6064 7691...... 43455 9 CFR Public Laws Update Service (numbers, dates, etc.) 741–6043 Administrative Orders: 53...... 42565 TTY for the deaf-and-hard-of-hearing 741–6086 Presidential 77...... 43618 Determinations: Proposed Rules: No. 2003–27 of June ELECTRONIC RESEARCH 60...... 40541 30, 2003 ...... 41219 130...... 40817, 43661 World Wide Web 4 CFR Full text of the daily Federal Register, CFR and other publications 10 CFR Proposed Rules: 50...... 40469 is located at: http://www.access.gpo.gov/nara 27...... 41742 72...... 42570 Federal Register information and research tools, including Public 28...... 41742 95...... 41221 Inspection List, indexes, and links to GPO Access are located at: 29...... 41742 http://www.archives.gov/federallregister/ Proposed Rules: 5 CFR 2...... 40026 E-mail 2600...... 41681 20...... 40026 FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is 21...... 40026 an open e-mail service that provides subscribers with a digital 6 CFR 34...... 41757 form of the Federal Register Table of Contents. The digital form Proposed Rules: 50 ...... 40026, 41963, 43673 of the Federal Register Table of Contents includes HTML and 25...... 41420 51...... 40026 PDF links to the full text of each document. 52...... 40026 7 CFR 72...... 40026, 42646 To join or leave, go to http://listserv.access.gpo.gov and select 54...... 39805 73...... 40026 Online mailing list archives, FEDREGTOC-L, Join or leave the list 140...... 40026 (or change settings); then follow the instructions. 278...... 41051 279...... 41051 170...... 40026 PENS (Public Law Electronic Notification Service) is an e-mail 301 ...... 43285, 43286, 43613 Ch. II ...... 40553 service that notifies subscribers of recently enacted laws. 400...... 43457 Ch. III ...... 40553 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html 407...... 43457 Ch. X...... 40553 and select Join or leave the list (or change settings); then follow 457...... 43457 12 CFR the instructions. 652...... 40751 718...... 39447 201...... 41054 FEDREGTOC-L and PENS are mailing lists only. We cannot 225...... 39807, 41901 respond to specific inquiries. 925...... 41683 948...... 40117 910...... 39810 Reference questions. Send questions and comments about the 989...... 41686, 42943 913...... 39810 Federal Register system to: [email protected] 993...... 40754, 43614 Proposed Rules: The Federal Register staff cannot interpret specific documents or 999...... 43614 Ch. 7 ...... 39863 regulations. 1405...... 39447 701...... 39866 1487...... 42563 745...... 39868 FEDERAL REGISTER PAGES AND DATE, JULY Proposed Rules: 900...... 39027 301...... 40534 932...... 39027 39005–39446...... 1 331...... 43660 955...... 39027 39447–39804...... 2 373...... 40541 13 CFR 39805–40114...... 3 868...... 42644 40115–40468...... 7 922...... 43975 121...... 39448 40469–40750...... 8 923...... 43975 Proposed Rules: 40751–41050...... 9 924...... 43975 120...... 40553 41041–41218...... 10 930...... 43978 121...... 40820, 43981 41219–41518...... 11 948...... 43031 41519–41680...... 14 958...... 40815 14 CFR 41681–41900...... 15 1150...... 39861 21...... 43883 41901–42240...... 16 1580...... 39478 23...... 40757 42241–42562...... 17 2903...... 41751 25...... 40478, 43287 42563–42942...... 18 3015...... 41947 36...... 43883 42943–43284...... 21 3019...... 41947 39 ...... 39449, 39815, 40478, 43285–43454...... 22 3020...... 41947 40481, 40483, 40484, 40487, 43455–43612...... 23 40759, 41055, 41056, 41059, 43613–43900...... 24 8 CFR 41063, 41210, 41519, 41521, 43901–44190...... 25 103...... 43901 41861, 41901, 41903, 41906,

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42241, 42242, 42244, 42573, 260...... 40340 41906, 42251, 42254, 42590, 16...... 39395 42577, 42578, 42580, 42581, 284...... 40207 42970 17...... 39397 42583, 42948, 42950, 42952, 357...... 40340 20...... 40130, 42593 199...... 43299 42954, 42956, 42957, 42958, 375...... 40340 25...... 40130, 42593 701...... 43461 43260, 43621 301...... 40768, 41073 71 ...... 40761, 40762, 40763, 19 CFR 602 ...... 39012, 41067, 41230, 33 CFR 40764, 40765, 41691, 41692, 10...... 43624 41906, 42254 2...... 42595 41693, 41694, 41695, 41696, 24...... 43624 Proposed Rules: 26 ...... 39353, 41913, 42595 42246, 42962, 43292, 43293, 101...... 42586, 42587 1 ...... 39498, 40218, 40224, 62...... 42595 43477, 43921 102...... 43630 40579, 40581, 40583, 40848, 64...... 42595 73...... 42963 111...... 43624 41087, 42476, 42652, 43047, 95...... 42595 91...... 41212, 43883 122...... 42587 43055, 43058, 43059 100 ...... 40167, 42282, 42595 93...... 41212 133...... 43635 31...... 42329 101...... 39240, 41914 97...... 41523, 41525 Proposed Rule: 301 ...... 39498, 40849, 40850, 102...... 39240, 41914 119...... 41214 4...... 43574 40857, 41089, 41090 103...... 39284, 41914 121 ...... 41214, 42874, 42832 101...... 42650 104...... 39292, 41915 125...... 42832 103...... 43574 27 CFR 105...... 39315, 41916 129...... 42874 113...... 43574 4...... 39454 106...... 39338, 41916 135...... 41214, 42832 122...... 43574 9...... 39833 110...... 42285 382...... 40488 40...... 43294 117 ...... 41716, 41917, 41918, 399...... 43882 123...... 43574 192...... 43574 275...... 43294 41920, 42282, 43303, 43305, Proposed Rules: Proposed Rules: 43306 21...... 43885 20 CFR 4...... 39500 120...... 42595 23...... 42315 24...... 39500 160...... 39292, 41915 39 ...... 39483, 39485, 39870, 218...... 39009 161...... 39353, 41913 40573, 40821, 40823, 40827, 220...... 39009 28 CFR 164...... 39353, 41913 40829, 40831, 40834, 41760, 225...... 39009 165 ...... 39013, 39015, 39017, 41762, 41967, 41968, 41970, 404...... 40119 2...... 41527, 41696 39292, 39353, 39455, 40024, 41972, 41973, 41977, 42317, 416...... 40119 29 CFR 40168, 40169, 40170, 40173, 42647, 43033, 43040, 43042, Proposed Rules: 40174, 40176, 40770, 40772, 43045, 43681, 43683, 43686, 404...... 40213 102...... 39836 41078, 41081, 41268, 41269, 43688, 43690, 43693, 43695, 416...... 40213 1952...... 43457 41531, 41716, 41719, 41721, 43698 1956...... 43457 21 CFR 41722, 41913, 41915, 41920, 61...... 43885 4022...... 41714 41922, 42282, 42285, 42287, 65...... 43885 101...... 39831, 41434 4044...... 41714 42289, 42595, 43308, 43309, 71 ...... 39238, 42322, 43340 510...... 41065, 42250 Proposed Rules: 43637, 43926 77...... 43885 520 ...... 41065, 42967, 42968, 35...... 41512 107...... 43885 43293, 43925 1625...... 41542 Proposed Rules: 109...... 43885 522 ...... 42250, 42589, 42968 1627...... 41542 100...... 40615 119...... 40206 524...... 42250, 42969 1926...... 39877, 39880 110...... 39503 121...... 40206, 43885 556...... 42589 117...... 42331, 43066 125...... 42323 558...... 41066, 42589 30 CFR 147...... 40229 135 ...... 40206, 42323, 43885 862...... 40125 75...... 40132 165 ...... 40231, 40859, 41091, 145...... 40206, 43885 1300...... 41222 250 ...... 41077, 41861, 43295 41764, 41982, 41984, 43700 154...... 43885 1301...... 41222 913...... 40138 34 CFR 1275...... 43982 1304...... 41222 917 ...... 41911, 42266, 42274 1305...... 41222 263...... 43639 15 CFR 920...... 42277 1307...... 41222 934...... 40142 36 CFR 30...... 42534 Proposed Rules: 938...... 40147 50...... 42585 101...... 41507 943...... 40154 Proposed Rules: 80...... 42585 131...... 39873 948...... 40157 7...... 43068 922...... 39005, 43922 348...... 42324 Proposed Rules: 219...... 41864 2016...... 43922 1301...... 40576 70...... 39881 294...... 41864, 41865 Proposed Rules: 75...... 39881 37 CFR 930...... 40207 22 CFR 90...... 39881 16 CFR 41...... 40127 250...... 40585, 41090 1...... 41532 Proposed Rules: 254...... 40585 260...... 39837 Proposed Rules: 303...... 39490 917...... 41980 460...... 41872 934...... 40225 38 CFR 17 CFR 23 CFR 935...... 43063 3...... 42602 17...... 43927 4...... 42964 Proposed Rules: 946...... 40227 945...... 43888 21...... 42977 30...... 39006, 40498 31 CFR 275...... 42247 24 CFR 39 CFR 279...... 42247 50...... 41250 Proposed Rules: Proposed Rules: 348...... 41266 111...... 40774 1...... 40835 1000...... 42651 Proposed Rules: Proposed Rules: 3282...... 42327, 43987 103...... 39039 111...... 43989 18 CFR 101...... 40500 25 CFR 32 CFR 40 CFR 141...... 40500 Proposed Rules: 9...... 39374 51...... 39842 201...... 40500 Ch. I...... 39038, 42651 10...... 39379 52 ...... 39457, 40520, 40528, 260...... 40500 11...... 39381 40782, 40786, 40789, 41083, 352...... 40500 26 CFR 12...... 39387 42172, 42978, 42981, 43312, 357...... 40500 1 ...... 39011, 39012, 39452, 13...... 39389 43316, 43462 Proposed Rules: 39453, 40129, 40130, 40510, 14...... 39391 62...... 40531 141...... 40340 40766, 41067, 41230, 41417, 15...... 39394 63...... 42603

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70...... 40528 406...... 43998 80...... 42984 31...... 40466 80...... 39018 411...... 43995 90...... 42296, 42984 52...... 40104 81...... 40789, 43316 424...... 44000 95...... 42984 82 ...... 41925, 42884, 43786, 101 ...... 42610, 42984, 43942 49 CFR 43930 43 CFR Proposed Rules: 40...... 43946 131...... 40428 10...... 39853 1...... 40876, 44003 136...... 43272 2...... 44011 71...... 43334, 43336 180 ...... 39428, 39435, 39460, 44 CFR 15...... 44011 541...... 39471 571...... 43964, 43972 39462, 39846, 40178, 40791, 64...... 39019 22...... 44003 575...... 43339 40803, 41271, 41535, 41927, 65...... 39021 52...... 43070 43465 67...... 39023 54...... 41996, 42333 Proposed Rules: 261...... 43939 73 ...... 40237, 42662, 42663, 192...... 41768 Proposed Rules: 271...... 42605, 43326 42664, 42665, 42666, 43702, 390...... 42339 67 ...... 39042, 39044, 39046 300...... 41273 43703, 43704, 43705 391...... 42339, 43889 Proposed Rules: 46 CFR 90...... 42337, 44003 393...... 43891 19...... 39882 395...... 43893 27...... 39882 2...... 39292, 41915 48 CFR 396...... 43893 30...... 43824 7...... 42595 Ch. 1...... 43854, 43875 571...... 43895 31...... 43824 28...... 42595 1...... 43855 583...... 43899 33...... 43824 31...... 39292, 41915 2...... 43857 71...... 39292, 41915 35...... 43824 5...... 43855, 43859 50 CFR 40...... 43824 91...... 39292, 41915 7...... 43859 51...... 39888 115...... 39292, 41915 10...... 43859 17 ...... 39624, 40076, 43647 52 ...... 39041, 39506, 40233, 126...... 39292, 41915 11...... 43857 20...... 43010 40617, 40861, 40864, 40865, 176...... 39292, 41915 14...... 43855 21...... 43010 41987, 42174, 42653, 42657, 401...... 43470 19...... 43855, 43873 92...... 43010 43069, 43341, 43481 530...... 43326 22...... 43855, 43863 223...... 41942 62...... 40618 23...... 43857, 43868 229...... 41725 47 CFR 70...... 40617, 40871 31...... 43863, 43871 300...... 39024 81...... 42657, 43341 0...... 39471 36...... 43855 600...... 42613 82...... 43991 1...... 42984 37...... 43863 648 ...... 40808, 41945, 43974 136...... 41988 21...... 42984, 43002 39...... 43872 660 ...... 40187, 41085, 42643, 180...... 41989 22...... 42290, 42984 52 ...... 43855, 43863, 43868, 43473 271...... 42662 24...... 42984 43873 679 ...... 40811, 40812, 41085, 25...... 43645, 43942 53...... 43855 41086, 41946, 43030, 43479, 41 CFR 27...... 42984 207...... 43331 43480 Proposed Rules: 32...... 38641 217...... 43332 Proposed Rules: 105-55...... 42170 52...... 43003, 43009 501...... 41286 16...... 43482 105-56...... 41093 54 ...... 38642, 39471, 41936, 538...... 41286 17 ...... 39507, 39892, 42666, 105-550...... 41274 43472 552...... 41286 43706 105-570...... 41290 64 ...... 40184, 41942, 43010, Ch. 10...... 39854, 42717 18...... 44020 301–50...... 40618 44144 1801...... 43333 20...... 42546 68...... 44144 1811...... 43333 229...... 40888 42 CFR 69...... 43327 1823...... 43333 600 ...... 40892, 42360, 42668, 411...... 43940 73 ...... 38643, 40185, 40186, 1851...... 43333 42669, 42670, 43072 412...... 41860 40187, 41284, 41724, 42608, 1852...... 43333 635...... 41103, 41769 489...... 43940 42609, 42984, 43329, 43645, Proposed Rules: 648...... 41535, 42671 Proposed Rules: 43646 15...... 40466 679...... 43342, 43483 405...... 43995 74...... 41284 30...... 40104 697 ...... 39048, 42360, 43074

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REMINDERS Boeing; published 7-10-03 West Coast States and Texas; comments due by 8- The items in this list were Turbomeca S.A.; published Western Pacific 1-03; published 7-2-03 editorially compiled as an aid 6-20-03 fisheries— [FR 03-16579] to Federal Register users. VETERANS AFFAIRS Coastal pelagic species; Virginia; comments due by Inclusion or exclusion from DEPARTMENT comments due by 7-28- 7-28-03; published 6-27- 03; published 6-26-03 this list has no legal Medical benefits: 03 [FR 03-16233] significance. [FR 03-16084] Non-VA physicians— FARM CREDIT Pacific Coast groundfish; ADMINISTRATION Medication prescribed by comments due by 7-28- RULES GOING INTO non-VA physicians; 03; published 6-13-03 Farm credit system: EFFECT JULY 25, 2003 requirements and limits; [FR 03-15030] Farmers, ranchers, and published 7-25-03 Pacific Coast groundfish; aquatic producers or comments due by 7-31- harvesters; eligibility and AGRICULTURE scope of financing; DEPARTMENT COMMENTS DUE NEXT 03; published 7-7-03 [FR 03-17058] comments due by 7-31- Food and Nutrition Service WEEK 03; published 5-2-03 [FR COMMODITY FUTURES Food Stamp Program: 03-10898] TRADING COMMISSION Electronic benefit transfer AGRICULTURE Commodity Exchange Act: FEDERAL systems interoperability DEPARTMENT Customer funds investment; COMMUNICATIONS and portability; published Agricultural Marketing COMMISSION 6-25-03 Service comments due by 7-30- 03; published 6-30-03 [FR Radio stations; table of Egg, poultry, and rabbit COMMERCE DEPARTMENT 03-16473] assignments: National Oceanic and products; inspection and grading: DEFENSE DEPARTMENT Arizona; comments due by Atmospheric Administration 7-28-03; published 6-19- Fees and charges increase; Federal Acquisition Regulation Fishery conservation and (FAR): 03 [FR 03-15497] management: comments due by 7-28- 03; published 6-26-03 [FR Part 27 Rewrite in Plain Kentucky and Tennessee; Northeastern United States 03-16166] Language; comments due comments due by 7-28- fisheries— by 7-28-03; published 5- 03; published 6-19-03 [FR AGRICULTURE Northeast multispecies; 28-03 [FR 03-12891] 03-15496] DEPARTMENT published 7-25-03 GENERAL SERVICES Animal and Plant Health DEFENSE DEPARTMENT ADMINISTRATION ENVIRONMENTAL Inspection Service Engineers Corps PROTECTION AGENCY Exportation and importation of Danger zones and restricted Federal Acquisition Regulation Air quality implementation animals and animal areas: (FAR): plans; approval and byproducts: San Francisco, CA; Yerba Part 27 Rewrite in Plain promulgation; various Buena Island; comments Bovine spongiform Language; comments due States: due by 7-28-03; published encephalopathy; disease by 7-28-03; published 5- 6-26-03 [FR 03-16016] California; published 6-25-03 status change— 28-03 [FR 03-12891] Indiana; published 6-25-03 Canada; comments due ENVIRONMENTAL Federal travel: Utah; published 6-25-03 by 7-28-03; published PROTECTION AGENCY eTravel Service; comments HEALTH AND HUMAN 5-29-03 [FR 03-13440] Air programs: due by 7-30-03; published Transportation conformity; SERVICES DEPARTMENT AGRICULTURE 6-30-03 [FR 03-16454] rule amendments in Food and Drug DEPARTMENT HOMELAND SECURITY response to court Administration DEPARTMENT Rural Housing Service decision; comments due Animal drugs, feeds, and Multi-family housing programs: by 7-30-03; published 6- Customs and Border related products: Direct multi-family housing 30-03 [FR 03-15253] Protection Bureau Phenylbutazone paste; loans and grants; Air quality implementation Customs brokers: published 7-25-03 comments due by 8-1-03; plans: Individual license OFFICE OF UNITED STATES published 6-2-03 [FR 03- Preparation, adoption, and examination dates; TRADE REPRESENTATIVE 12761] submittal— comments due by 7-28- Trade Representative, Office AGRICULTURE 8-hour ozone national 03; published 5-29-03 [FR of United States DEPARTMENT ambient air quality 03-13455] Andean Trade Preference Act, Federal claims collection: standard; HOMELAND SECURITY as amended by Andean Debt management; implementation; DEPARTMENT Trade Promotion and Drug comments due by 7-29- comments due by 8-1- Coast Guard 03; published 6-2-03 Eradication Act; countries 03; published 5-30-03 [FR Maritime security: eligibility for benefits; 03-13245] [FR 03-13240] Air quality implementation Area maritime security; petition process; published COMMERCE DEPARTMENT 7-25-03 plans; approval and comments due by 7-31- National Oceanic and promulgation; various 03; published 7-1-03 [FR TRANSPORTATION Atmospheric Administration 03-16187] DEPARTMENT States: Fishery conservation and Colorado; comments due by Automatic Identification Workplace drug and alcohol management: 7-30-03; published 6-30- System; vessel carriage testing programs: Atlantic coastal fisheries 03 [FR 03-16026] requirements; comments Drug and alcohol cooperative New Hampshire; comments due by 7-31-03; published management information management— due by 7-28-03; published 7-1-03 [FR 03-16191] system reporting forms; Horseshoe crabs; 6-26-03 [FR 03-16238] Facility security; comments published 7-25-03 comments due by 8-1- North Carolina; comments due by 7-31-03; published TRANSPORTATION 03; published 7-17-03 due by 7-30-03; published 7-1-03 [FR 03-16189] DEPARTMENT [FR 03-18104] 6-30-03 [FR 03-00172] General provisions; Federal Aviation Weakfish; comments due Pennsylvania; comments comments due by 7-31- Administration by 7-31-03; published due by 7-28-03; published 03; published 7-1-03 [FR Airworthiness directives: 7-1-03 [FR 03-16573] 6-26-03 [FR 03-16024] 03-16186]

VerDate Jan 31 2003 17:29 Jul 24, 2003 Jkt 200001 PO 00000 Frm 00004 Fmt 4712 Sfmt 4711 E:\FR\FM\25JYCU.LOC 25JYCU Federal Register / Vol. 68, No. 143 / Friday, July 25, 2003 / Reader Aids v

Outer Continental Shelf Sarbanes-Oxley Act of 2002; Rolls-Royce Deutschland comments due by 7-28- facility security; comments implementation: Ltd. & Co. KG; comments 03; published 5-29-03 [FR due by 7-31-03; published Corporate and Criminal due by 7-28-03; published 03-13455] 7-1-03 [FR 03-16190] Fraud Accountability Act; 5-28-03 [FR 03-13221] Financial institutions: Vessels; security measures; discrimination complaints; Univair Aircraft Corp.; comments due by 7-31- handling procedures; comments due by 7-28- Customer Identification 03; published 7-1-03 [FR comments due by 7-28- 03; published 5-30-03 [FR Program; comments due 03-16188] 03; published 5-28-03 [FR 03-13511] by 7-31-03; published 7-1- 03 [FR 03-16562] Ports and waterways safety, 03-13082] Airworthiness standards: and uninspected vessels: NATIONAL AERONAUTICS Special conditions— AND SPACE Boeing Model 777 series Towing vessels; fire LIST OF PUBLIC LAWS suppression systems and ADMINISTRATION airplanes; comments voyage planning; Federal Acquisition Regulation due by 7-28-03; comments due by 7-28- (FAR): published 6-13-03 [FR This is a continuing list of 03; published 4-29-03 [FR 03-14992] public bills from the current Part 27 Rewrite in Plain session of Congress which 03-10421] Language; comments due Boeing Model 777 series airplanes; correction; have become Federal laws. It INTERIOR DEPARTMENT by 7-28-03; published 5- may be used in conjunction 28-03 [FR 03-12891] comments due by 7-28- Fish and Wildlife Service 03; published 6-23-03 with ‘‘PLUS’’ (Public Laws Migratory bird hunting: NUCLEAR REGULATORY [FR C3-14992] Update Service) on 202–741– COMMISSION Alaska; spring/summer Class D, E2, and E5 airspace; 6043. This list is also migratory bird subsistence Production and utilization comments due by 7-30-03; available online at http:// harvest; comments due by facilities; domestic licensing: published 6-30-03 [FR 03- www.nara.gov/fedreg/ 7-30-03; published 6-23- Risk-informed categorization 16465] plawcurr.html. 03 [FR 03-15659] and treatment of Class E airspace; comments The text of laws is not structures, systems, and Seasons, limits, and due by 7-30-03; published published in the Federal components for nuclear shooting hours; 6-30-03 [FR 03-16463] Register but may be ordered power reactors; comments establishment, etc.; TRANSPORTATION in ‘‘slip law’’ (individual due by 7-30-03; published comments due by 7-30- DEPARTMENT pamphlet) form from the 5-16-03 [FR 03-11696] 03; published 7-17-03 [FR National Highway Traffic Superintendent of Documents, 03-18096] PEACE CORPS Safety Administration U.S. Government Printing INTERIOR DEPARTMENT Freedom of Information Act; Motor vehicle safety Office, Washington, DC 20402 Surface Mining Reclamation implementation; comments standards: (phone, 202–512–1808). The and Enforcement Office due by 8-1-03; published 7- Defect and noncompliance— text will also be made Permanent program and 2-03 [FR 03-16523] Early warning and available on the Internet from abandoned mine land PERSONNEL MANAGEMENT customer satisfaction GPO Access at http:// reclamation plan OFFICE campaign www.access.gpo.gov/nara/ nara005.html. Some laws may submissions: Preference eligibles claims documentation; reporting not yet be available. Kentucky; comments due by submission; representative requirements; comments due by 7-28-03; 7-28-03; published 6-27- recognition; removal of S. 709/P.L. 108–60 03 [FR 03-16354] regulations; comments due published 6-11-03 [FR Pennsylvania; comments by 7-28-03; published 5-27- 03-14702] To award a congressional due by 7-28-03; published 03 [FR 03-13137] Early warning and gold medal to Prime Minister Tony Blair. (July 17, 2003; 6-26-03 [FR 03-16101] SMALL BUSINESS customer satisfaction campaign 117 Stat. 862) LABOR DEPARTMENT ADMINISTRATION documentation; reporting Small business size standards: Last List July 16, 2003 Employee Benefits Security requirements; comments Administration Nonmanufacturer rule; due by 7-28-03; Group health plans; access, waivers— published 6-11-03 [FR portability, and renewability Small arms ammunition 03-14703] Public Laws Electronic requirements: manufacturing; TREASURY DEPARTMENT Notification Service Health care continuation termination; comments Foreign Assets Control (PENS) coverage; comments due due by 7-31-03; Office published 7-9-03 [FR by 7-28-03; published 5- Iraqi sanctions regulations: 28-03 [FR 03-13057] 03-17322] Non-commercial funds PENS is a free electronic mail LABOR DEPARTMENT TRANSPORTATION transfers and related notification service of newly DEPARTMENT Occupational Safety and transactions, activities by enacted public laws. To Health Administration Federal Aviation U.S. government and subscribe, go to http:// Administration contractors or grantees, listserv.gsa.gov/archives/ Occcupational safety and publaws-l.html health standards: Airworthiness directives: etc.; authorizations; comments due by 7-28- Walking and working Boeing; comments due by Note: This service is strictly 03; published 5-27-03 [FR surfaces; personal 7-28-03; published 7-2-03 for E-mail notification of new 03-13053] protective equipment (fall [FR 03-16693] laws. The text of laws is not protection systems); McDonnell Douglas; TREASURY DEPARTMENT available through this service. comments due by 7-31- comments due by 7-28- Customs brokers: PENS cannot respond to 03; published 5-2-03 [FR 03; published 6-11-03 [FR Individual license specific inquiries sent to this 03-10617] 03-14673] examination dates; address.

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