11–26–03 Vol. 68 No. 228 Wednesday Nov. 26

11–26–03 Wednesday Vol. 68 No. 228 Nov. 26, 2003

Pages 66319–66692

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1 II Federal Register / Vol. 68, No. 228 / Wednesday, November 26, 2003

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2 III

Contents Federal Register Vol. 68, No. 228

Wednesday, November 26, 2003

African Development Foundation Corporation for National and Community Service RULES RULES Debarment and suspension (nonprocurement) and drug-free Debarment and suspension (nonprocurement) and drug-free workplace (grants): workplace (grants): Governmentwide requirements, 66533–66646 Governmentwide requirements, 66533–66646

Agency for International Development Defense Department RULES RULES Debarment and suspension (nonprocurement) and drug-free Debarment and suspension (nonprocurement) and drug-free workplace (grants): workplace (grants): Governmentwide requirements, 66533–66646 Governmentwide requirements, 66533–66646 NOTICES Agency information collection activities; proposals, Agriculture Department submissions, and approvals, 66403–66404 See Forest Service RULES Education Department Debarment and suspension (nonprocurement) and drug-free RULES workplace (grants): Debarment and suspension (nonprocurement) and drug-free Governmentwide requirements, 66533–66646 workplace (grants): Governmentwide requirements, 66533–66646 Arts and Humanities, National Foundation NOTICES See National Foundation on the Arts and the Humanities Agency information collection activities; proposals, submissions, and approvals, 66404–66405 Centers for Disease Control and Prevention NOTICES Employment and Training Administration Agency information collection activities; proposals, NOTICES submissions, and approvals, 66437–66440 Adjustment assistance: Grants and cooperative agreements; availability, etc.: Agere Systems, Inc., 66492–66493 Health Promotion and Disease Prevention Research Arkansas Metal Castings, Inc., 66493 Centers Program, 66440–66442 Capital City Press, Inc., 66493 Injury Control Research Center Program, 66442–66447 Clariant Corp., 66494 Meetings: Defender Services, Inc., 66494 National Institute for Occupational Safety and Health— Fairchild Semiconductor Corp., 66495 B Reader Certification Program, 66447–66448 Fieldcrest Cannon, Inc., 66495 Fisher Pierce, 66495–66496 Civil Rights Commission International Stone Products, Inc., 66496 NOTICES Kokusai Semiconductor Equipment Corp., 66496 Meetings; State advisory committees: Levolor Kirsch Window Fashions, 66496 New Hampshire, 66397 Maxxim Medical, Inc., 66496–66497 Ocello, Inc., 66497 Coast Guard Pittsburgh Logistics Systems, Inc., 66497 Sebago, Inc., 66497–66498 RULES Telect, 66498 Drawbridge operations: Agency information collection activities; proposals, Louisiana, 66343 submissions, and approvals, 66498–66499 Texas, 66343 NAFTA transitional adjustment assistance: Great Western International, 66499 Commerce Department Oxford Automotive, Inc., 66499–66500 See International Trade Administration See National Oceanic and Atmospheric Administration Energy Department See Patent and Trademark Office See Federal Energy Regulatory Commission RULES See Western Area Power Administration Debarment and suspension (nonprocurement) and drug-free RULES workplace (grants): Debarment and suspension (nonprocurement) and drug-free Governmentwide requirements, 66533–66646 workplace (grants): Governmentwide requirements, 66533–66646 Commodity Futures Trading Commission NOTICES Environmental Protection Agency Contract market proposals: RULES Citrus Associates of the New York Cotton Exchange— Air quality implementation plans; approval and FCOJ-A futures and options contracts and FCOJ-B promulgation; various States: futures contract, 66402–66403 Delaware, 66343–66348

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Missouri, 66348–66350 Federal Energy Regulatory Commission North Carolina; partially removed, 66350–66351 RULES Debarment and suspension (nonprocurement) and drug-free Natural Gas Policy Act: workplace (grants): Blanket sales certificates, 66323–66338 Governmentwide requirements, 66533–66646 NOTICES PROPOSED RULES Electric rate and corporate regulation filings: Air quality implementation plans; approval and Alfalfa Electric Cooperative, Inc., et al., 66405–66408 promulgation; various States: Hydroelectric applications, 66408–66409 Delaware, 66388–66389 Preliminary permits surrender: Missouri, 66389–66390 Skookum Hydro Inc., 66410 Pesticides; tolerances in food, animal feeds, and raw Applications, hearings, determinations, etc.: agricultural commodities: Butte Creek Expansion, LLC, 66405 Dihydroazadirachtin, etc., 66390–66394 CEC Technologies, Ltd., 66405 NOTICES Agency information collection activities; proposals, Federal Highway Administration submissions, and approvals, 66412–66413 RULES Pesticide, food, and feed additive petitions: Planning and research: EDEN Bioscience Corp., 66416–66421 Interstate highway system; CFR part removed, 66338– Syngenta Seeds, Inc., 66422–66425 66340 Pesticide registration, cancellation, etc.: Cooper’s Creek Chemical Corp. et al., 66413–66416 Pesticides; emergency exemptions, etc: Federal Mediation and Conciliation Service Diuron, etc., 66425–66432 RULES Reports and guidance documents; availability, etc.: Debarment and suspension (nonprocurement) and drug-free Office of Pesticide Programs; procedural guidance for workplace (grants): policy development, 66432–66433 Governmentwide requirements, 66533–66646 Water supply: Public water supply supervision program— Federal Reserve System West Virginia, 66433–66434 NOTICES Agency information collection activities; proposals, Executive Office of the President submissions, and approvals, 66434 See National Drug Control Policy Office Banks and bank holding companies: See Presidential Documents Change in bank control, 66434–66435 Formations, acquisitions, and mergers, 66435 Export-Import Bank Permissible nonbanking activities, 66435–66436 RULES Debarment and suspension (nonprocurement) and drug-free Federal Transit Administration workplace (grants): Governmentwide requirements, 66533–66646 RULES Planning and research: Federal Aviation Administration Interstate highway system; CFR part removed, 66338– RULES 66340 Airworthiness directives: Bombardier, 66321–66323 Financial Management Service PROPOSED RULES See Fiscal Service Airworthiness directives: Boeing, 66384–66386 Fiscal Service General Electric Co.; withdrawn, 66386–66387 NOTICES McDonnell Douglas, 66382–66384 Surety companies acceptable on Federal bonds: Class E airspace, 66387–66388 Continental Heritage Insurance Co., 66530 NOTICES Aeronautical land-use assurance; waivers: Hamilton Municipal Airport, NY, 66524 Fish and Wildlife Service Meetings: PROPOSED RULES Aviation Rulemaking Advisory Committee, 66524–66525 Endangered and threatened species: RTCA Government/Industry Free Flight Steering Scimitar-horned oryx, addax, and dama gazelle, 66395– Committee, 66525 66396 RTCA, Inc., 66526 NOTICES RTCA Program Management Committee, 66525–66526 Comprehensive conservation plans; availability, etc.: Passenger facility charges; applications, etc.: Izembek National Wildlife Refuge, AK, 66474–66475 Trenton Mercer Airport; NJ, 66527 Kanuti National Wildlife Refuge, AK, 66475–66476 Kenai National Wildlife Refuge, AK, 66476–66477 Federal Communications Commission Endangered and threatened species: RULES Recovery plans— Radio stations; table of assignments: Sonoran pronghorn, 66477–66478 Georgia, 66351 Environmental statements; notice of intent: PROPOSED RULES Incidental take permits— Digital television stations; table of assignments: California; San Diego County Water Authority Habitat North Dakota, 66394–66395 Conservation Plan, 66478–66479

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Food and Drug Administration Interior Department NOTICES See Fish and Wildlife Service Food additives: See Land Management Bureau Food Contact Notification Electronic Submissions Pilot See National Park Service Project, 66448–66449 See Reclamation Bureau Human drugs: RULES Patent extension; regulatory review period Debarment and suspension (nonprocurement) and drug-free determinations— workplace (grants): ABILIFY, 66449–66450 Governmentwide requirements, 66533–66646 Memorandums of understanding: NOTICES Centers for Disease Control and Prevention and FDA; Shivwits Band of the Paiute Indian Tribe of Utah Water coordination and collaborative framework and Rights Settlement Act; implementation; statement of information exchanges principles and procedures, findings, 66473–66474 66450–66461 Reports and guidance documents; availability, etc.: Internal Revenue Service Medical devices— NOTICES Bundling multiple devices or multiple indications in Agency information collection activities; proposals, single premarket submission, 66461–66463 submissions, and approvals, 66530–66531 Premarket submissions for devices; expedited review, Meetings: 66463–66464 Art Advisory Panel, 66531 Forest Service International Trade Administration NOTICES NOTICES Meetings: Antidumping: Deschutes Provincial Advisory Committee, 66397 Folding metal tables and chairs from— Resource Advisory Committees— China, 66397–66399 Fresno County, 66397 Honey from— Argentina, 66399 General Services Administration Countervailing duties: RULES Pasta from— Debarment and suspension (nonprocurement) and drug-free Turkey, 66399–66400 workplace (grants): Export trade certificates of review, 66400–66401 Governmentwide requirements, 66533–66646 International Trade Commission Health and Human Services Department NOTICES See Centers for Disease Control and Prevention Import investigations: See Food and Drug Administration Purple protective gloves, 66491–66492 See Health Resources and Services Administration Meetings; Sunshine Act, 66492 See National Institutes of Health RULES Justice Department Debarment and suspension (nonprocurement) and drug-free RULES workplace (grants): Debarment and suspension (nonprocurement) and drug-free Governmentwide requirements, 66533–66646 NOTICES workplace (grants): Agency information collection activities; proposals, Governmentwide requirements, 66533–66646 NOTICES submissions, and approvals, 66436 Pollution control; consent judgments: Committees; establishment, renewal, termination, etc.: Glen Cove, NY, et al., 66492 National Vaccine Advisory Committee, 66436–66437 Health Resources and Services Administration Labor Department NOTICES See Employment and Training Administration Agency information collection activities; proposals, RULES submissions, and approvals, 66464–66466 Debarment and suspension (nonprocurement) and drug-free workplace (grants): Homeland Security Department Governmentwide requirements, 66533–66646 See Coast Guard See Transportation Security Administration Land Management Bureau NOTICES Housing and Urban Development Department Agency information collection activities; proposals, RULES submissions, and approvals, 66479–66480 Debarment and suspension (nonprocurement) and drug-free workplace (grants): Medicare Payment Advisory Commission Governmentwide requirements, 66533–66646 NOTICES Meetings, 66500 Inter-American Foundation RULES Merit Systems Protection Board Debarment and suspension (nonprocurement) and drug-free NOTICES workplace (grants): Senior Executive Service: Governmentwide requirements, 66533–66646 Performance Review Board; membership, 66500

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National Aeronautics and Space Administration Meetings: RULES Commercial Remote Sensing Advisory Committee, Debarment and suspension (nonprocurement) and drug-free 66401–66402 workplace (grants): Governmentwide requirements, 66533–66646 National Park Service NOTICES National Archives and Records Administration Environmental statements; availability, etc.: RULES Low Country Gullah Culture Special Resource Study; Debarment and suspension (nonprocurement) and drug-free Southeastern United States coastal areas, 66480– workplace (grants): 66481 Governmentwide requirements, 66533–66646 Meetings: Boston Harbor Islands Advisory Council, 66481 National Crime Prevention and Privacy Compact Council Native American human remains, funerary objects; RULES inventory, repatriation, etc.: Dispute adjudication procedures, 66340–66342 Arkansas Department of Parks and Tourism, et al., AR, 66481–66482 National Drug Control Policy Office Colorado College, CO, 66482–66485 RULES Denver Art Museum, CO, 66485–66486 Debarment and suspension (nonprocurement) and drug-free Illinois State Museum, IL, 66486–66487 workplace (grants): University of Idaho, Alfred W. Bowers Laboratory of Governmentwide requirements, 66533–66646 Anthropology, ID, 66487–66488 Realty actions; sales, leases, etc.: National Foundation on the Arts and the Humanities Utah, 66488 RULES Reports and guidance documents; availability, etc.: Debarment and suspension (nonprocurement) and drug-free World Heritage Committee for Yellowstone National Park, workplace (grants): WY and MT; draft site progress report; comment Governmentwide requirements— request, 66488–66490 Institute of Museum and Library Sciences, 66533– 66646 National Science Foundation National Endowment for the Arts, 66533–66646 RULES National Endowment for the Humanities, 66533–66646 Debarment and suspension (nonprocurement) and drug-free workplace (grants): National Institutes of Health Governmentwide requirements, 66533–66646 NOTICES Inventions, Government-owned; availability for licensing, Nuclear Regulatory Commission 66466 PROPOSED RULES Meetings: Domestic licensing proceedings and issuance of orders; National Eye Institute, 66466 practice rules: National Institute of Allergy and Infectious Diseases, High-level radioactive waste disposal at geologic 66467–66468 repository; licensing support network; electronic National Institute of Child Health and Human docket submissions, 66372–66382 Development, 66466–66467 NOTICES National Institute of Environmental Health Sciences, Production and utilization facilities; domestic licensing: 66468 Post-fire safe shutdown; criteria for determining National Institute of Nursing Research, 66468 feasibility of manual actions, 66501–66503 National Institute on Aging, 66467–66468 Regulatory guides; issuance, availability, and withdrawal, Scientific Review Center, 66471–66472 66503 Patent licenses; non-exclusive, exclusive, or partially Reports and guidance documents; availability, etc.: exclusive: ISCORS assessment of radioactivity in sewage sludge; Crucell Holland B.V., 66472 radiological survey results and analysis et al., 66503– Medtronic, Inc., 66472–66473 66504 National Mediation Board Office of National Drug Control Policy NOTICES See National Drug Control Policy Office Meetings: Rail industry labor disputes resolution; timely case processing, 66500–66501 Patent and Trademark Office PROPOSED RULES National Oceanic and Atmospheric Administration Practice and procedure: RULES Practice before Board of Patent Appeal and Interferences, Fishery conservation and management: 66647–66691 West Coast States and Western Pacific fisheries— Pacific Coast groundfish, 66352–66371 Peace Corps NOTICES RULES Grants and cooperative agreements; availability, etc.: Debarment and suspension (nonprocurement) and drug-free Funds; availability for 2004 FY; omnibus notice workplace (grants): Chesapeake Bay Fisheries Research Program, 66401 Governmentwide requirements, 66533–66646

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Personnel Management Office Railroad operation, acquisition, construction, etc.: RULES CSX Transportation, Inc., 66529–66530 Debarment and suspension (nonprocurement) and drug-free Wallowa County, OR, 66530 workplace (grants): Governmentwide requirements, 66533–66646 Transportation Department See Federal Aviation Administration Presidential Documents See Federal Highway Administration PROCLAMATIONS See Federal Transit Administration Special observances: See Research and Special Programs Administration National Family Week (Proc. 7739), 66319 See Surface Transportation Board RULES Presidio Trust Debarment and suspension (nonprocurement) and drug-free NOTICES workplace (grants): Meetings: Governmentwide requirements, 66533–66646 Board of Directors, 66504–66505 Transportation Security Administration Public Debt Bureau NOTICES See Fiscal Service Agency information collection activities; proposals, submissions, and approvals, 66473 Reclamation Bureau NOTICES Treasury Department Meetings: See Fiscal Service California Bay-Delta Public Advisory Committee, 66491 See Internal Revenue Service RULES Research and Special Programs Administration Debarment and suspension (nonprocurement) and drug-free NOTICES workplace (grants): Hazardous materials: Governmentwide requirements, 66533–66646 Applications; exemptions, renewals, etc., 66527–66529 Veterans Affairs Department Securities and Exchange Commission RULES NOTICES Debarment and suspension (nonprocurement) and drug-free Investment Company Act of 1940: workplace (grants): Exemption applications— Governmentwide requirements, 66533–66646 John Hancock Bank and Thrift Opportunity Fund, NOTICES 66505–66506 Poverty threshold (2002); weighted average, 66531 Public Utility Holding Company Act of 1935 filings, 66506– 66516 Western Area Power Administration Self-regulatory organizations; proposed rule changes: NOTICES Chicago Board Options Exchange, Inc., 66516–66518 Environmental statements; availability, etc.: National Association of Securities Dealers, Inc., 66518– Ivanpah Energy Center, NV; construction, operation, and 66520 maintenance, 66410–66411 New York Stock Exchange, Inc., 66520–66521 Pacific Exchange, Inc., 66521–66523 Separate Parts In This Issue Small Business Administration RULES Part II Debarment and suspension (nonprocurement) and drug-free African Development Foundation; Agency for International workplace (grants): Development; Agriculture Department; Arts and Governmentwide requirements, 66533–66646 Humanities, National Foundation, National Endowment Social Security Administration for the Arts, National Endowment for the Humanities, RULES Institute of Library and Museum Science; Commerce Debarment and suspension (nonprocurement) and drug-free Department; Corporation for National and Community workplace (grants): Service; Defense Department; Education Department; Governmentwide requirements, 66533–66646 Energy Department; Environmental Protection Agency; Executive Office of the President, National Drug State Department Control Policy Office; Export-Import Bank; Federal RULES Mediation and Conciliation Service; General Services Debarment and suspension (nonprocurement) and drug-free Administration; Health and Human Services workplace (grants): Department; Housing and Urban Development Governmentwide requirements, 66533–66646 Department; Inter-American Foundation; Interior NOTICES Department; Justice Department; Labor Department; Clean Diamond Trade Act; participating countries eligible National Aeronautics and Space Administration; for trade in rough diamonds; list, 66523–66524 National Archives and Records Administration; National Science Foundation; Peace Corps; Personnel Surface Transportation Board Management Office; Small Business Administration; NOTICES Social Security Administration; State Department; Rail carriers: Transportation Department; Treasury Department; Waybill data; release for use, 66529 Veterans Affairs Department, 66533–66646

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Part III To subscribe to the Federal Register Table of Contents Commerce Department, Patent and Trademark Office, LISTSERV electronic mailing list, go to http:// 66647–66691 listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions. Reader Aids Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.

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CFR PARTS AFFECTED IN THIS ISSUE

A cumulative list of the parts affected this month can be found in the Reader Aids section at the end of this issue.

3 CFR 33 CFR Proclamations: 117 (2 documents) ...... 66343 7739...... 66319 34 CFR 5 CFR 84...... 66534 970...... 66534 85...... 66534 668...... 66534 7 CFR 682...... 66534 3017...... 66534 3021...... 66534 36 CFR 1209...... 66534 10 CFR 1212...... 66534 606...... 66534 607...... 66534 37 CFR 1036...... 66534 Proposed Rules: Proposed Rules: 1...... 66648 2...... 66372 5...... 66648 41...... 66648 12 CFR 413...... 66534 38 CFR 44...... 66534 13 CFR 48...... 66534 145...... 66534 147...... 66534 40 CFR 32...... 66534 14 CFR 36...... 66534 39...... 66321 52 (3 documents) ...... 66343, 1265...... 66534 66348, 66350 1267...... 66534 Proposed Rules: Proposed Rules: 52 (2 documents) ...... 66388, 39 (3 documents) ...... 66382, 66389 66384, 66386 180...... 66390 71...... 66387 15 CFR 41 CFR 26...... 66534 105-68...... 66534 29...... 66534 105-74...... 66534 18 CFR 43 CFR 284...... 66323 12...... 66534 42...... 66534 20 CFR 43...... 66534 436...... 66534 439...... 66534 45 CFR 76...... 66534 21 CFR 82...... 66534 1404...... 66534 620...... 66534 1405...... 66534 630...... 66534 22 CFR 1154...... 66534 133...... 66534 1155...... 66534 137...... 66534 1169...... 66534 208...... 66534 1173...... 66534 210...... 66534 1185...... 66534 310...... 66534 1186...... 66534 312...... 66534 2542...... 66534 1006...... 66534 2545...... 66534 1008...... 66534 47 CFR 1508...... 66534 73...... 66351 1509...... 66534 Proposed Rules: 23 CFR 73...... 66394 476...... 66338 49 CFR 24 CFR 29...... 66534 21...... 66534 32...... 66534 24...... 66534 50 CFR 28 CFR 660...... 66352 67...... 66534 Proposed Rules: 83...... 66534 902...... 66340 17...... 66395 29 CFR 94...... 66534 98...... 66534 1471...... 66534 1472...... 66534 31 CFR 19...... 66534 20...... 66534 32 CFR 25...... 66534 26...... 66534

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Federal Register Presidential Documents Vol. 68, No. 228

Wednesday, November 26, 2003

Title 3— Proclamation 7739 of November 21, 2003

The President National Family Week, 2003

By the President of the United States of America

A Proclamation As Americans gather during Thanksgiving week, we honor our families, and we recognize the family as a source of help, hope, and stability for our citizens and for our country. Strong families make our Nation better. They teach our children values and help them become responsible citizens. We must encourage families to be loving and compassionate, generous and supportive, and to serve and help others. On this Thanksgiving week, we also pay respect to our brave military families whose loved ones are on active duty, many on the front lines of freedom in Iraq and Afghanistan. These families provide a bond of love and encourage- ment to our men and women in uniform as they defend liberty and protect our Nation. NOW, THEREFORE, I, GEORGE W. BUSH, President of the United States of America, by virtue of the authority vested in me by the Constitution and laws of the United States, do hereby proclaim November 23 through November 29, 2003, as National Family Week. I invite the States, communities, and all the people of the United States to join together in observing this week with appropriate ceremonies and activities to honor our Nation’s families. IN WITNESS WHEREOF, I have hereunto set my hand this twenty-first day of November, in the year of our Lord two thousand three, and of the Independence of the United States of America the two hundred and twenty-eighth. W

[FR Doc. 03–29760 Filed 11–25–03; 8:45 am] Billing code 3195–01–P

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Rules and Regulations Federal Register Vol. 68, No. 228

Wednesday, November 26, 2003

This section of the FEDERAL REGISTER The incorporation by reference of a Request To Require Replacement Parts contains regulatory documents having general certain publication listed in the With Sufficient Strength applicability and legal effect, most of which regulations was approved previously by One commenter is concerned that the are keyed to and codified in the Code of the Director of the Federal Register as of Federal Regulations, which is published under language of the AD calls for replacement 50 titles pursuant to 44 U.S.C. 1510. June 27, 2003 (68 FR 35152, June 12, of any damaged duct with a new or 2003). undamaged duct of the same part The Code of Federal Regulations is sold by number that was previously installed; ADDRESSES: The service information the Superintendent of Documents. Prices of and that a replacement duct of the same referenced in this AD may be obtained new books are listed in the first FEDERAL part number would not be of sufficient REGISTER issue of each week. from Bombardier, Inc., Canadair, strength to withstand the applied Aerospace Group, P.O. Box 6087, differential pressures it will experience. Station Centreville, Montreal, Quebec DEPARTMENT OF TRANSPORTATION The commenter requests that the FAA H3C 3G9, Canada. This information may mandate the replacement of a damaged be examined at the Federal Aviation Federal Aviation Administration wing anti-ice (WAI) duct with a stronger Administration (FAA), Transport duct with a new part number. Airplane Directorate, Rules Docket, 14 CFR Part 39 The FAA acknowledges the 1601 Lind Avenue, SW., Renton, commenter’s concern. The purpose of [Docket No. 2003–NM–159–AD; Amendment Washington; or at the FAA, New York this AD action is to supersede AD 2003– 39–13372; AD 2003–24–03] Aircraft Certification Office, 10 Fifth 12–06, amendment 39–13191 (68 FR RIN 2120–AA64 Street, Third Floor, Valley Stream, New 35152, June 12, 2003), which provides York; or at the Office of the Federal an interim action that prohibits Airworthiness Directives; Bombardier Register, 800 North Capitol Street, NW., operations into known or forecast icing Model CL–600–2C10 (Regional Jet suite 700, Washington, DC. conditions when there are indications of Series 700 & 701) Series Airplanes FOR FURTHER INFORMATION CONTACT: Dan a damaged WAI duct. That action also provides for inspections and interim AGENCY: Federal Aviation Parrillo, Aerospace Engineer, Systems and Flight Test Branch, ANE–172, FAA, replacements of damaged ducts. This Administration, DOT. new action terminates the interim ACTION: Final rule. New York Aircraft Certification Office, 10 Fifth Street, Third Floor, Valley actions of AD 2003–12–06 by mandating the replacement of all four WAI ducts SUMMARY: This amendment supersedes Stream, New York 11581; telephone with new WAI ducts that have new part an existing airworthiness directive (AD), (516) 256–7505; fax (516) 568–2716. numbers. We find that these new ducts applicable to certain Bombardier Model SUPPLEMENTARY INFORMATION: A are of sufficient strength to withstand CL–600–2C10 (Regional Jet Series 700 & proposal to amend part 39 of the Federal the applied differential pressure, as 701) series airplanes, that currently Aviation Regulations (14 CFR part 39) requested by the commenter. We have requires a revision to the Airplane by superseding AD 2003–12–06, not changed the final rule regarding this Flight Manual (AFM) to prohibit issue. operations into known or forecast icing amendment 39–13191 (68 FR 35152, conditions under certain conditions. June 12, 2003), which is applicable to Conclusion certain Bombardier Model CL–600– That AD also requires an inspection to After careful review of the available detect damage of the wing anti-ice 2C10 (Regional Jet Series 700 & 701) series airplanes, was published in the data, including the comment noted (WAI) ducts to determine if the external above, the FAA has determined that air shrouds of the ducts are open or Federal Register on August 22, 2003 (68 FR 50729). That action proposed to safety and the public interest require the cracked, and replacement of any adoption of the rule as proposed. damaged duct with a new duct or a duct require an inspection to detect damage with the same part number, and an of the wing anti-ice (WAI) ducts to Cost Impact determine if the external shrouds of the optional terminating action. This There are approximately 55 airplanes ducts are open or cracked, and amendment requires accomplishment of of U.S. registry that will be affected by replacement of any damaged duct with the previously optional terminating this AD. action for the AFM revision and a new duct or a duct with the same part The AFM revision that is currently inspection. The actions specified by this number, and an optional terminating required by AD 2003–12–06 takes AD are intended to prevent the WAI action for the AFM revision and approximately 1 work hour per airplane ducts from collapsing, cracking, or inspection. That action also proposed to to accomplish, at an average labor rate rupturing, which could cause leakage of require accomplishment of the of $65 per work hour. Based on these hot air in the under-floor pressurized previously optional terminating action figures, the cost impact of the area of the fuselage when the anti-ice for the AFM revision and inspection. previously required actions on U.S. system is turned on. Such leakage of hot Comments operators is estimated to be $3,575, or air results in insufficient heat for the $65 per airplane. anti-ice system and consequent Interested persons have been afforded The inspection that is currently aerodynamic degradation. This action is an opportunity to participate in the required by AD 2003–12–06 takes intended to address the identified making of this amendment. Due approximately 4 work hours per unsafe condition. consideration has been given to the airplane to accomplish, at an average DATES: Effective December 31, 2003. comment received. labor rate of $65 per work hour. Based

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on these figures, the cost impact of the PART 39—AIRWORTHINESS Note 1: This limitation supersedes the currently required inspection on U.S. DIRECTIVES Master Minimum Equipment List (MMEL).’’ operators is estimated to be $14,300, or ■ 1. The authority citation for part 39 Detailed Inspection and Corrective Actions if $260 per airplane. Necessary The new action that is required by continues to read as follows: (c) Within 150 flight hours after June 27, this new AD will take approximately 48 Authority: 49 U.S.C. 106(g), 40113, 44701. work hours per airplane to accomplish, 2003, do a detailed inspection to detect § 39.13 [Amended] damage of the four WAI ducts and to at an average labor rate of $65 per work determine if the external shrouds of the WAI ■ hour. Based on these figures, the cost 2. Section 39.13 is amended by ducts are open or cracked, per the alert impact of the new requirement of this removing amendment 39–13191 (68 FR service bulletin. AD on U.S. operators is estimated to be 35152, June 12, 2003), and by adding a (1) If no discrepancy is found, no further $171,600, or $3,120 per airplane. new airworthiness directive (AD), action is required by this paragraph. The cost impact figures discussed amendment 39–13372, to read as (2) If any external shroud of a WAI duct above are based on assumptions that no follows: is found open or cracked, before further operator has yet accomplished any of flight, inspect the surrounding equipment 2003–24–03 Bombardier, Inc. (Formerly and structure per a method approved by the the requirements of this AD action, and Canadair): Amendment 39–13372. that no operator would accomplish Manager, New York Aircraft Certification Docket 2003–NM–159–AD. Supersedes Office (ACO), FAA, or Transport Canada those actions in the future if this AD AD 2003–12–06, Amendment 39–13191. Civil Aviation (TCCA) (or its delegated were not adopted. The cost impact Applicability: Model CL–600–2C10 agent). figures discussed in AD rulemaking (Regional Jet Series 700 & 701) series (3) If any damaged WAI duct is found, actions represent only the time airplanes, serial numbers 10004 through before further flight, replace the WAI duct necessary to perform the specific actions 10119 inclusive; certificated in any category. with a new duct or a duct with the same part actually required by the AD. These Compliance: Required as indicated, unless number (P/N) that is free of any dent, crease, accomplished previously. figures typically do not include or other handling damage, per the alert To prevent the wing anti-ice (WAI) ducts service bulletin. incidental costs, such as the time from collapsing, cracking, or rupturing, required to gain access and close up, consequent leakage of hot air in the under- Note 1: For the purposes of this AD, a planning time, or time necessitated by floor pressurized area of the fuselage when detailed inspection is defined as: ‘‘An other administrative actions. the anti-ice system is turned on, insufficient intensive visual examination of a specific heat for the anti-ice system, and aerodynamic structural area, system, installation, or Regulatory Impact degradation, accomplish the following: assembly to detect damage, failure, or irregularity. Available lighting is normally The regulations adopted herein will Referenced Service Information supplemented with a direct source of good not have a substantial direct effect on (a) The term ‘‘service bulletin,’’ as used in lighting at intensity deemed appropriate by the States, on the relationship between this AD, means the Accomplishment the inspector. Inspection aids such as mirror, the national Government and the States, Instructions of CRJ 700/900 Series Regional magnifying lenses, etc., may be used. Surface or on the distribution of power and Jet (Bombardier) Alert Service Bulletin cleaning and elaborate access procedures responsibilities among the various A670BA–30–007, Revision A, dated April 15, may be required.’’ levels of government. Therefore, it is 2003, including Appendices A and B, dated Reporting Requirement determined that this final rule does not March 18, 2003. (d) Submit a report of the results of the have federalism implications under Restatement of Requirements of AD 2003– inspection required by paragraph (c) of this Executive Order 13132. 12–06, Amendment 39–13191 For the reasons discussed above, I AD per the alert service bulletin specified in Airplane Flight Manual (AFM) Revision paragraph (a) of this AD. Information certify that this action (1) is not a (b) Within 48 hours after June 27, 2003 (the collection requirements contained in this AD ‘‘significant regulatory action’’ under have been approved by the Office of Executive Order 12866; (2) is not a effective date of AD 2003–12–06, amendment 39–13191), revise the Limitations Section of Management and Budget (OMB) under the ‘‘significant rule’’ under DOT the CRJ 700 AFM to include the following provisions of the Paperwork Reduction Act of Regulatory Policies and Procedures (44 (this may be accomplished by inserting a 1980 (44 U.S.C. 3501 et seq.) and have been FR 11034, February 26, 1979); and (3) copy of this AD into the AFM): assigned OMB Control Number 2120–0056. will not have a significant economic (1) If the inspection was done after June 27, 1. Anti-Ice Bleed Leak Detection Controller 2003: Submit the report within 14 days after impact, positive or negative, on a (AILC) Channels (see Note 1): substantial number of small entities the inspection. Flight with ‘‘WING A/I FAULT’’ status (2) If the inspection was accomplished under the criteria of the Regulatory message on the engine indication and crew prior to June 27, 2003: Submit the report alerting system (EICAS) is not authorized, Flexibility Act. A final evaluation has within 14 days after June 27, 2003. been prepared for this action and it is except as follows: contained in the Rules Docket. A copy One may be inoperative as indicated by New Requirements of This AD of it may be obtained from the Rules ‘‘WING A/I FAULT’’ status message on EICAS provided: Terminating Action Docket at the location provided under (a) Wing Anti-Ice switch is selected OFF, (e) Within 1,500 flight hours after the the caption ADDRESSES. and effective date of this AD, replace all four WAI List of Subjects in 14 CFR Part 39 (b) Operations are not conducted into ducts with new ducts having P/N GG670– known or forecast icing conditions. 80504–5 or –6, or P/N GG670–80312–3 or –4, Air transportation, Aircraft, Aviation 2. Wing/Fuselage Anti-Ice Bleed Leak as applicable, per the alert service bulletin. safety, Incorporation by reference, Detection Loops (see Note 1): Replacement of all four WAI ducts terminates Safety. Flight with Wing/Fuselage Anti-Ice Bleed the requirements of this AD. After doing the Leak Detection Loops inoperative is not replacement, the AFM revision required by Adoption of the Amendment authorized, except as follows: paragraph (b) of this AD may be removed. ■ Accordingly, pursuant to the authority One loop (A or B) may be inoperative provided: Alternative Methods of Compliance delegated to me by the Administrator, (a) Wing Anti-Ice switch is selected OFF, (f) In accordance with 14 CFR 39.19, the the Federal Aviation Administration and Manager, New York ACO, FAA, is authorized amends part 39 of the Federal Aviation (b) Operations are not conducted into to approve alternative methods of Regulations (14 CFR part 39) as follows: known or forecast icing conditions. compliance for this AD.

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Incorporation by Reference is another part of the Commission’s markets. Contemporaneously with this (g) Unless otherwise specified in this AD, continuing effort to restore confidence rule, the Commission is also issuing a the actions shall be done in accordance with in the nation’s energy markets. rule to require wholesale sellers of CRJ 700/900 Series Regional Jet (Bombardier) EFFECTIVE DATE: The rule will become electricity at market-based rates to Alert Service Bulletin A670BA–30–007, effective December 26, 2003. adhere to certain behavioral rules when Revision A, dated April 15, 2003, including FOR FURTHER INFORMATION CONTACT: making wholesale sales of electricity. In Appendices A and B, dated March 18, 2003. 1 Robert D. McLean, Office of the General an order dated June 26, 2003, the This incorporation by reference was Commission, acting under the authority approved previously by the Director of the Counsel, Federal Energy Regulatory Federal Register as of June 27, 2003 (68 FR Commission, 888 First Street, NE., of Section 7 of the Natural Gas Act, 35152, June 12, 2003). Copies may be Washington, DC 20426, (202) 502–8156. proposed to revise Section 284.288 of its obtained from Bombardier, Inc., Canadair, Frank Karabetsos, Office of the regulations, which is currently reserved, Aerospace Group, P.O. Box 6087, Station General Counsel, Federal Energy to require that pipelines providing Centre-ville, Montreal, Quebec H3C 3G9, Regulatory Commission, 888 First unbundled sales service adhere to a Canada. Copies may be inspected at the FAA, Street, NE., Washington, DC 20426, code of conduct when making gas sales. Transport Airplane Directorate, 1601 Lind (202) 502–8133. The Commission also proposed to add Avenue, SW., Renton, Washington; or at the a new Section 284.403 to Part 284, SUPPLEMENTARY INFORMATION: FAA, New York Aircraft Certification Office, Subpart L to require persons holding 10 Fifth Street, Third Floor, Valley Stream, Table of Contents blanket marketing certificates under New York; or at the Office of the Federal Register, 800 North Capitol Street, NW., suite I. Introduction Section 284.402 to adhere to a code of 2 700, Washington, DC. II. Background conduct when making gas sales. A. Changes in the Natural Gas Industry 2. The need for this code of conduct, Note 2: The subject of this AD is addressed B. Events in Western Energy Markets in in Canadian airworthiness directive CF– we stated, was informed by the types of 2000 behavior that occurred in the Western 2003–07, effective on March 25, 2003. III. Comment Analysis A. Application of Code of Conduct to markets during 2000 and 2001, by Effective Date Jurisdictional Sellers Commission Staff’s Final Report (h) This amendment becomes effective on B. Limited Jurisdiction of Blanket concerning these markets,3 and by our December 31, 2003. Certificates experience in other competitive Issued in Renton, Washington, on C. Code of Conduct markets. We stated that in formulating November 20, 2003. 1. General Language Prohibiting our proposed code of conduct rules, we Kalene C. Yanamura, Manipulation were required to strike a careful balance 2. Wash Trades Acting Manager, Transport Airplane among a number of competing interests. 3. Collusion We noted, for example, that while Directorate, Aircraft Certification Service. 4. Reporting to Gas Index Publishers customers must be given an effective [FR Doc. 03–29532 Filed 11–25–03; 8:45 am] 5. Three-Year Data and Information remedy in the event anticompetitive BILLING CODE 4910–13–P Retention Requirement 6. Prohibition on Reporting Transaction behavior or other market abuses occur, with Affiliates sellers should be provided rules of the D. Remedies road that are clearly-delineated. We DEPARTMENT OF ENERGY 1. General Issues noted that while regulatory certainty 2. 90-Day Time Limit on Complaints was important for individual market Federal Energy Regulatory IV. Administrative Finding and Notices participants and the marketplace in Commission A. Information Collection Statement general, the Commission must not be B. Environmental Analysis impaired in its ability to provide 18 CFR Part 284 C. Regulatory Flexibility Act Certification D. Document Availability remedies for market abuses whose [Docket No. RM03–10–000; Order No. 644] E. Effective Date and Congressional Review precise form and nature cannot be Regulatory Text envisioned today. We specifically Amendments to Blanket Sales Appendix—Entities Filing Intervening and sought comments on whether our Certificates Reply Comments proposed code of conduct rules had Before Commissioners: Pat Wood, III, achieved the appropriate balance among November 17, 2003. Chairman; William L. Massey, and Nora these competing interests. AGENCY: Federal Energy Regulatory Mead Brownell. 3. Here, based on the extensive Commission. comments received by the entities listed I. Introduction ACTION: Final rule. in the Appendix to this order and based 1. The Federal Energy Regulatory on our further consideration of the SUMMARY: The Federal Energy Commission (Commission) is amending issues presented, we will adopt the code Regulatory Commission (Commission) is the blanket certificates for unbundled of conduct rules proposed in the June 26 amending its regulations regarding the gas sales services held by interstate NOPR subject to certain modifications blanket certificates for unbundled gas natural gas pipelines and the blanket discussed below. These rules, as sales services held by interstate natural marketing certificates held by persons revised, are set forth below in, 18 CFR gas pipelines and the blanket marketing making sales for resale of gas at §§ 284.288 and 284.403. certificates held by persons making negotiated rates in interstate commerce sales for resale of gas at negotiated rates to require that pipelines and all sellers 1 1103 FERC ¶ 61,350 (2003) (June 26 NOPR). in interstate commerce to require that for resale adhere to a code of conduct 2 Section 284.5 of the Commission’s regulations pipelines and all sellers for resale with respect to gas sales. The purpose also states that ‘‘[t]he Commission may prospectively, by rule or order, impose such further adhere to a code of conduct with respect of the revisions is to ensure the integrity terms and conditions as it deems appropriate on to gas sales. The purpose of the of the gas sales market that remains transactions authorized by this part.’’ revisions to the current regulatory within the Commission’s jurisdiction. 3 Final Report on Price Manipulation in Western framework is to ensure the integrity of This rule is another part of the Markets: Fact-Finding Investigation of Potential Manipulation of Electric and Natural Gas Prices, the gas sales market that remains within Commission’s continuing effort to Docket No. PA02–2–000 (March 2003) (Final the Commission’s jurisdiction. The rule restore confidence in the nation’s energy Report).

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4. Under Sections 284.288 and regulations on an annual basis and to Congress’ express finding that a 284.403 of the new codes of conduct, a include this analysis in the State of the competitive market exists for gas at the pipeline providing unbundled natural Markets Report. wellhead and in the field. The gas sales service under Section 284.284, Commission indicated that it was II. Background or any person making natural gas sales instituting light-handed regulation, for resale in interstate commerce A. Changes in Natural Gas Industry relying upon market forces at the pursuant to Section 284.402, is 7. A decade ago, as a result of changes wellhead or in the field to constrain prohibited from engaging in actions in the natural gas industry, unbundled pipeline sales for resale gas without a legitimate business purpose Congressional legislation and various prices within the Natural Gas Act’s ‘‘just that manipulate or attempt to Commission rulemaking proceedings and reasonable’’ standard. In addition, manipulate market conditions, restructuring the gas industry, the the requirement that pipelines provide including wash trades and collusion. Commission issued blanket certificates open access transportation from the 5. New Sections 284.288 and 284.403 to allow pipelines and other persons wellhead to the market also permitted also contain various reporting selling natural gas to make sales for the Commission to exercise light- obligations. To the extent a pipeline resale of natural gas at market-based or handed regulation over jurisdictional providing service under Section negotiated rates. These certificates were gas sales. Finally, the Commission 284.284, or any person making natural granted in two final rules issued by the stated that it would be regulating the gas sales for resale in interstate Commission: Order No. 636 1 and Order pipeline sales in the same manner as it commerce pursuant to Section 284.402, No. 547.2 had done for sales for resale by engages in reporting of transactions to 8. In Order No. 636, the Commission marketers. publishers of gas price indices, the required all pipelines that provide open- 10. The Commission also determined pipeline or blanket marketing certificate access transportation to offer their sales that a pipeline as a gas merchant would holder shall provide complete and services on an unbundled basis. To this be the functional equivalent of a accurate information to any such end, the Commission issued to pipelines pipeline’s marketing affiliate. The publisher. Further, such entities must holding a blanket transportation Commission concluded that standards retain all relevant data and information certificate under subpart G of part 284 of conduct set forth by Order No. 497 upon which they billed the prices they of the Commission’s regulations, or would apply to the relationship between charged for natural gas they sold performing transportation under subpart the pipeline transportation function and 4 pursuant to their market based sales B, a blanket certificate authorizing firm its merchant function. Accordingly, the certificate or the prices they reported for and interruptible sales for resale.3 The regulations issuing pipelines blanket use in price indices for three years. Commission required that all firm and sales certificates included standards of Moreover, such entities that engage in interruptible sales services be provided conduct and reporting requirements. reporting must do so consistent with the as unbundled services under the blanket The purpose of imposing the Policy Statement on Natural Gas and sales certificate. The Commission found requirements set forth in Order No. 497 Electric Price Indices, 104 FERC that this form of regulation would was to ensure that the pipeline did not ¶ 61,121 (2003) (Policy Statement), enable the pipelines to compete directly favor itself as a merchant over other gas which provides that a data provider with other gas sellers on the same terms suppliers in performing its should only report each bilateral, arm’s- at prices determined in a competitive transportation function. length transaction between non- market. The unbundled sales services 11. In Order No. 547, as part of the industry restructuring begun by Order affiliated companies. Violation of the were also afforded pregranted No. 636, the Commission issued blanket preceding provisions may result in abandonment authority. disgorgement of unjust profits, 9. In Order No. 636, the Commission certificates to all persons who are not suspension or revocation of a pipeline’s authorized pipelines to make interstate pipelines authorizing them to blanket certificate or other appropriate unbundled sales at market-based rates make jurisdictional gas sales for resale non-monetary remedies. Finally, any at negotiated rates with pregranted because it concluded that, after 5 person filing a complaint for a violation unbundling, sellers of short-term or abandonment authority. The blanket of the preceding provisions must do so long-term firm gas supplies (whether certificates were issued by operation of no later than 90 days after the end of the they be pipelines or other sellers) would 4 Inquiry Into Alleged Anticompetitive Practices calendar quarter in which the alleged not have market power over the sale of violation occurred unless that person Related to Marketing Affiliates of Interstate natural gas. The Commission’s Pipelines, Order No. 497, 53 FR 22139 (June 14, could not have known of the alleged determination was also based on 1988), FERC Statutes and Regulations, Regulation violation, in which case the 90-day time Preambles 1986–1990 ¶ 30,820 (1988), order on rehearing, Order No. 497–A, 54 FR 52781 (Dec. 22, limit will run from the discovery of the 1 Order No. 636, Pipeline Service Obligations and alleged violation. 1989), FERC Statutes and Regulations, Regulation Revisions to Regulations Governing Self- Preambles 1986–1990 ¶ 30,868 (1989), order 6. This code of conduct is designed to Implementing Transportation Under part 284 of the extending sunset date, Order No. 497–B, 55 FR provide market participants adequate Commission’s Regulations, and Regulation of 53291 (Dec. 28, 1990), FERC Statutes and opportunities to detect, and the Natural Gas Pipelines After Partial Wellhead Regulations, Regulation Preambles 1986–1990 Decontrol, FERC. Stats. & Regs. ¶ 30,939 (1992), Commission to remedy, market abuses. ¶ 30,908 (1990), order extending sunset date and order on reh’g, Order No. 636–A, FERC. Stats. & amending final rule, Order No. 497–C, 57 FR 9 (Jan. This code is clearly defined so that it Regs. ¶ 30,950 (1992), order on reh’g, Order No. 2, 1992), FERC Statutes and Regulations ¶ 30,934 does not create uncertainty, disrupt 636–B, 61 FERC. ¶ 61,272 (1992), aff’d in part, rev’d (1991), reh’g denied, 57 FR 5815, 58 FERC ¶ 61,139 competitive commodity markets or in part, United Distribution Cos. v. FERC, 88 F.3d (1992), aff’d in part and remanded in part, Tenneco simply prove ineffective. However, 1105 (DC Cir. 1996), cert. denied, 137 L. Ed. 2d 845, Gas v. Federal Energy Regulatory Commission, 969 117 S. Ct. 1723, 117 S. Ct. 1724 (1997), on remand, F.2d 1187 (DC Cir. 1992), order on remand, Order since competitive markets are dynamic, Order No. 636–C, 78 FERC. ¶ 61,186 (1997), order No. 497–D, 57 FR 58978 (Dec. 14, 1992), FERC it is important that we periodically on reh’g, Order No. 636–D, 83 FERC ¶ 61,210 Statutes and Regulations ¶ 30,958 (1992), order on evaluate the impact that these (1998). reh’g and extending sunset date, Order No. 497–E, regulations have on the energy markets. 2 Regulations Governing Blanket Marketer Sales 59 FR 243 (Jan. 4, 1994), FERC Statutes and Certificates, FERC Stats. & Regs. ¶ 30,957 (1992), Regulations ¶ 30,987 (Dec. 23, 1994), order on reh’g, We direct our office of Market Oversight order on reh’g and clarification, 62 FERC ¶ 61,239 Order No. 497–F, 59 FR 15336 (Apr. 1, 1994), 66 and Investigation to evaluate the (1993). FERC ¶ 61,347 (1994). effectiveness and consequences of these 3 18 CFR 284.281–287 (2003). 5 18 CFR § 284.401–402 (2003).

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the rule itself and there was no retaining all relevant data for three years with any pipeline or LDC. Such entities requirement for persons to file for reconstruction of price indices; (3) are those making sales for resale of gas applications seeking such authorization. establishing rules banning any form of that was previously purchased and sold The Commission determined that the prearranged wash trading; and (4) by an interstate or intrastate pipeline or competitive gas commodity market prohibiting the reporting of trades LDC or retail customer. would lead all gas suppliers to charge between affiliates to industry indices. 16. Given that the Commission does rates that are sensitive to the gas sales not have jurisdiction over the entire market and cognizant of the variety of III. Comment Analysis natural gas market, several commenters options available to gas purchasers. The A. Application of Code of Conduct to raise concerns regarding the potential Commission further stated that, in a Jurisdictional Sellers adverse effect of imposing the proposed code of conduct only on the portion of competitive market, the basis for the 14. As an initial matter, the the natural gas market under the rate to be negotiated between a willing Commission will clarify the extent of its Commission’s jurisdiction.5 buyer and seller is a commercial, not a jurisdiction over resales of natural gas. Commenters assert that the proposed regulatory, matter. The requirement that As stated above, the Commission’s NGA pipelines provide open access rules could tilt capital markets against jurisdiction to regulate the prices transportation from the wellhead to the those subject to the code of conduct charged by sellers of natural gas has market also permitted the Commission because they would be viewed as a been substantially narrowed by the to exercise light-handed regulation over riskier proposition than those entities Natural Gas Policy Act of 1978 (NGPA) jurisdictional gas sales. The selling gas that do not have the same and Congress’ subsequent enactment of Commission also determined that regulatory risk. Commenters argue that the Natural Gas Wellhead Decontrol Act marketing certificates issued by the final to impose these regulations on a portion of 1989. As a result of these statutory rule are of a limited jurisdiction. The of the market causes an uneven playing provisions first sales of natural gas were Commission held that the holders of field and amounts to undue deregulated. Under the NGPA, first sales marketing certificates are not subject to discrimination because those under the any other regulation under the Natural of natural gas are defined as any sale to rules would be: (1) Subject to sanctions Gas Act jurisdiction of the Commission an interstate or intrastate pipeline, LDC such as loss of certificate authority and by virtue of transactions under the or retail customer, or any sale in the disgorgement of profits; (2) hesitant to certificates. chain of transactions prior to a sale to engage in legitimate transactions due to an interstate or intrastate pipeline or uncertainty imposed by vague and B. Events in Western Energy Markets LDC or retail customer. NGPA Section inconsistent standards developed in 12. In March 2003, in Docket No. 2(21)(A) sets forth a general rule stating different proceedings; (3) subject to the PA02–2–000, the Commission Staff that all sales in the chain from the increased risk of private enforcement concluded its Fact Finding Investigation producer to the ultimate consumer are actions by gas purchasers before the of Potential Manipulation of Electric first sales until the gas is purchased by Commission; (4) subject to the shifting and Gas Prices and issued a Final an interstate pipeline, intrastate of investment to non-jurisdictional Report on Price Manipulation in pipeline, or LDC.4 Once such a sale is marketers, and; (5) subject to increased Western Markets (Final Report). A key executed and the gas is in the recordkeeping costs for jurisdictional conclusion of the Final Report is that possession of a pipeline, LDC, or retail entities. markets for natural gas and electricity in customer, the chain is broken, and no 17. Commenters argue that the California are inextricably linked, and subsequent sale, whether the sale is by proposed regulations are duplicative that dysfunctions in each fed off one the pipeline, or LDC, or by a subsequent because other government agencies such another during the California energy purchaser of gas that has passed through as the Federal Trade Commission, the crisis. Staff found that spot gas prices the hands of a pipeline or LDC, can Department of Justice, and various state rose to extraordinary levels, facilitating qualify under the general rule as a first agencies already exercise jurisdiction the unprecedented price increase in the sale on natural gas. In addition to the over anticompetitive behavior.6 Further, electricity market. The Final Report general rule, NGPA Section 2(21)(B) commenters argue that in addition to found that dysfunctions in the natural expressly excludes from first sale status stifling innovation, the proposed gas market appear to stem, at least in any sale of natural gas by a pipeline, regulations will erode regulated part, from efforts to manipulate price LDC, or their affiliates, except when the marketer participation, and thereby indices compiled by trade publications. pipeline, LDC, or affiliate is selling its reduce the efficiency of the markets and The Final Report stated that reporting of own production. deprive the customers of the benefits of false data and wash trading are 15. Therefore, the Commission’s deregulation. Furthermore, since this examples of efforts to manipulate jurisdiction under the NGA includes all code regulates only a small portion of published price indices. sales for resale by interstate and the market,7 they argue that the rules 13. While the Final Report contained intrastate pipelines and LDCs and their will be ineffective in achieving uniform numerous recommendations which will affiliates, other than their sales of their compliance. not be discussed here, the Staff did own production. The Commission’s 18. Finally, commenters maintain that recommend that Sections 284.284 and jurisdiction also includes a category of before imposing these potentially 284.402 of the Commission’s regulations sales by entities that are not affiliated be amended to provide explicit 5 See e.g., AGA, Peoples, NiSource, Nicor, guidelines or prohibitions for trading 4 NGPA Section 2(21)(A) states: General Rule.— Cinergy, Sempra, FPL Group, Reliant, Coral, NJR natural gas under Commission blanket The term ‘‘first sale’’ means any sale of any volume Companies, EPSA, ProLiance, Duke Energy, of natural gas—(i) To any interstate pipeline or Questar, Western. certificates. The specific intrastate pipeline; (ii) to any local distribution 6 Coral at 5. recommendations include: (1) company; (iii) to any person for use by such person; 7 See NiSource at 9 (stating that the sales for Conditioning natural gas companies’ (iv) which precedes any sale described in clauses resale by interstate pipelines and off-system sales blanket certificates on providing (i),(ii), (iii); and (v) which precedes or follows any by LDCs constitute a small portion of the gas sales sale described in clauses (i), (ii), (iii), or (iv) and is transactions in the market, in contrast to producers accurate and honest information to defined by the Commission as a first sale in order and independent marketers that account for a very entities that publish price indices; (2) to prevent circumvention of any maximum lawful substantial portion of gas sold, which are not conditioning blanket certificates on price established under this Act. subject ot the proposed regulations).

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burdensome compliance conditions, the which it does have jurisdiction tariff rates and various forms. Retaining Commission should ascertain critical outweighs concerns that a portion of the this statement of limited jurisdiction is information on its effects, including the market will not be subject to these of particular concern to LDCs that are percentage of the natural gas sellers that regulations and the potential resulting comprehensively regulated at the state would be required to comply with the market disruptions.9 level.11 Commenters argue that the proposed rule or the amount of the gas 22. This finding is based upon a Commission should clarify that blanket affected. Commenters argue that balancing of factors raised by the certificate holders are not subject to any uncertainty caused by the proposed commenters against the Commission’s other regulations except as provided in rules would be particularly damaging in duty to maintain the competitive Subpart L of Part 284. Finally, light of the current need for additional marketplace for natural gas within its commenters argued that the new rules supplies and the current need to regain jurisdiction. Although all sellers of and burdens are inappropriate for investor confidence. natural gas will not be under the same affiliates of small pipelines, particularly 19. However, several commenters set of regulations, this does not by itself where the pipeline is non-major and support the Commission’s action in place an undue burden, or for that serves few customers and the affiliated 8 imposing a code of conduct. These matter, a competitive disadvantage of seller is selling supplies for the primary commenters state that if jurisdictional any consequence upon the sellers of purpose of balancing its purchases with gas sellers seek to avoid a requirement natural gas within the Commission’s its manufacturing needs.12 These that they do business honestly by jurisdiction. This is because the commenters argue that the Commission restructuring their business to escape regulations to be placed upon should establish a procedure to exempt the Commission’s jurisdiction, Congress jurisdictional natural gas sellers only such affiliates of small pipelines. might be interested in broadening the prevent such market participants from Commission’s jurisdiction to prevent distorting the competitiveness of the 25. The Commission has reviewed the such outcomes. Moreover, they assert marketplace by engaging in abusive or comments and has determined that it that the only way that jurisdictional manipulative acts in the marketplace. will not delete the affirmative statement certificate holders could be at a For instance, commenters argue that the of limited jurisdiction from its competitive disadvantage is if they are increased regulatory risk could shift regulations; rather, in keeping with the competing against companies that are capital markets against those subject to points raised by the comments it will engaging in the very illegal acts that the the new regulations. This argument is modify the sentence to read, ‘‘[a] blanket Commission’s code of conduct is speculative and it appears to the certificate issued under Subpart L is a proscribing. Finally, commenters argue Commission that it is at least equally certificate of limited jurisdiction which that the proposed regulations should not likely that investors and gas buyers will not subject the certificate holder to harm any market participant and should would gain confidence in the any other regulation under the Natural not have a negative impact on natural knowledge that the jurisdictional seller Gas Act jurisdiction of the Commission, gas prices, but will only require action of natural gas was required to engage in other than that set forth in this Subpart consistent with a competitive market. business practices that do not abuse or L, by virtue of the transactions under 20. The Commission has reviewed the manipulate the marketplace. this certificate.’’ Because the regulations comments setting forth possible adopted by the instant rulemaking will problems in placing a code of conduct B. Limited Jurisdiction of Blanket be placed in Subpart L, this action will regulations over the portion of the Certificates maintain the original intent of the natural gas marketplace within its 23. In its June 26 NOPR, the limited market based blanket certificate jurisdiction. In the Commission’s view, Commission proposed to delete the last while allowing for the new conditions implementing these regulations sentence of 18 CFR 284.402(a) (2003) found necessary by the Commission. designed to prevent manipulation of from its regulations. That sentence 26. Further, the Commission will not market prices and prevent abusive reads, ‘‘[a] blanket certificate issued behavior which distorts the competitive grant a generic exception to these under Subpart L is a certificate of regulations for small entities. In the marketplace for natural gas will not limited jurisdiction which will not present an undue burden for gas sellers Commission’s view, entities with a subject the certificate holder to any small number of customers making few, under the Commission’s jurisdiction or other regulation under the Natural Gas disrupt the competitive gas market. or low volume, transactions should Act jurisdiction of the Commission by incur only minimal administrative or 21. As stated above, the Commission virtue of the transactions under the retains jurisdiction of sales of domestic financial burden by virtue of these certificate.’’ regulations. gas for resale by pipelines, local 24. Several commenters raise distribution companies and affiliated concerns regarding this deletion.10 C. Code of Conduct entities, if the seller does not produce Commenters argue that the statement of the gas it sells. The fact that the limited jurisdiction for the subject 1. General Language Prohibiting Commission does not regulate the entire blanket certificates should remain in the Manipulation natural gas market does not compel the regulations in order to relieve blanket 27. As revised Section 284.288(a) of Commission to refrain from exercising holders of market sales certificates from its authority over that portion of the gas the Commission’s regulations provides any aspect of the Commission’s that: market which is within its jurisdiction jurisdiction which does not apply to to prevent the manipulation of prices. market based rates such as the filing of A pipeline that provides unbundled By its action here, the Commission will natural gas service under § 284.284 is maintain and protect the competitive 9 We note that the Commission also does not have prohibited from engaging in actions or marketplace within its jurisdiction. On jurisdiction over all sales for resale in electric transactions that are without a legitimate balance, the Commission finds that its markets. The Commission nevertheless exercises its business purpose and that are intended to or statutory responsibility to ensure just authority to prevent manipulation of the market by foreseeably could manipulate market prices, those sellers over whom it does have jurisdiction. and reasonable rates for the sales over 10 See e.g., Peoples, TXU, NiSource, USG, AGA, NGSA, NJR Companies, Shell Offshore, BP, 11 See NiSource. 8 See, e.g., BP, EMIT, CPUC, NASUCA. Western. 12 See USG.

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market conditions, or market rules for natural to police allegedly manipulative the nature of the rules at issue.20 In gas.13 behavior. Hoffman, for example, the Court held 28. As discussed above, several 32. We find that our rules, including that in the case of economic regulation commenters raise concerns regarding specifically the prohibitions set forth (as opposed to criminal sanctions), the the general language prohibiting relating to market manipulation, are not vagueness test must be applied in less manipulation.14 Commenters contend unduly vague as asserted by some strict manner because, among other that the regulation contains too many commenters. While constitutional due things, ‘‘the regulated enterprise may ambiguous terms such as ‘‘legitimate process requirements mandate that the have the ability to clarify the meaning business purpose,’’ ‘‘manipulation,’’ and Commission’s rules and regulations be of the regulation by its own inquiry, or ‘‘legitimate forces of supply and sufficiently specific to give regulated by resort to an administrative demand.’’ NJR Companies assert that the parties adequate notice of the conduct process.’’ 21 proposal violates due process they require or prohibit,15 this standard 35. Applying these standards here, we requirements, and that parties must is satisfied ‘‘[i]f, by reviewing [our rules] find that our rules satisfy the receive fair notice before being deprived and other public statements issued by requirement of due process. It cannot be of their property. NJR Companies the agency, a regulated party acting in said that the prohibitions against market suggest that the Commission replace good faith would be able to identify, manipulation, as set forth in the rules, vague language with straightforward with ascertainable certainty, the are unclear in their intent. For example, requirements. standards with which the agency our requirement that a seller’s actions 29. Sempra recommends that the expects parties to conform.’’ 16 The must have a ‘‘legitimate business Commission take a cue from the Commission’s rules will be found to purpose’’ is clearly intended to give jurisprudence of the CFTC and SEC by satisfy this due process requirement ‘‘so sellers some latitude in determining adopting a standard for manipulation long as they are sufficiently specific that their business actions, while that includes ability, intent, and effect a reasonably prudent person, familiar safeguarding market participants against as required elements of an offence. with the conditions the regulations are market manipulation for which there Reliant, Select, Merrill Lynch and meant to address and the objectives the can be no legitimate business purpose. Morgan Stanley assert that the regulations are meant to achieve, would Sellers will not be required to guess at Commission should establish four have fair warning of what the the meaning of the above-referenced essential elements to prove regulations require.’’ 17 term because it can only have meaning with specific reference to seller’s own manipulation: (1) The ability to move 33. As applied by the courts, this due market prices, (2) the specific intent to business practices and motives. In other process standard has been held to allow words, if the seller has a legitimate create an artificial price, (3) the for flexibility in the wording of an existence of an artificial price, and (4) business purpose for its actions, it agency’s rules and for a reasonable cannot be sanctioned under this rule. causation of the artificial price by the 18 breadth in their construction. The 36. In establishing these rules, we accused. courts have recognized, in this regard, have worked to strike a necessary 30. Coral contends that adoption of that specific regulations cannot begin to balance. On the one hand, this the proposed regulation could have the cover all of the infinite variety of cases prohibition allows the Commission to effect of deterring blanket certificate to which they may apply and that ‘‘[b]y protect market participants from market holders from aggressively or creatively requiring regulations to be too specific, abuses that cannot be precisely marketing their gas or developing new [courts] would be opening up large envisioned at the present time. At the products that may benefit competitive loopholes allowing conduct which same time, we have attempted to set gas markets. NASUCA argues that the should be regulated to escape forth with sufficient specificity the class Commission should clarify what types regulation.’’ 19 of behaviors prohibited in a manner that of manipulative behavior is prohibited. 34. The Supreme Court has further will inform market-based rate sellers of It adds that manipulation that results noted that the degree of vagueness the type of activities that are consistent from inadequate planning, inept design, tolerated by the Constitution, as well as with just and reasonable rates. This incompetent personnel, or poor the relative importance of fair notice provides the Commission the ability to supervision should not be exempted and fair enforcement, depend in part on codify these requirements and provide a from enforceable action. regulatory vehicle for their prospective 31. Hess believes that the Commission 15 See Freeman United Coal Mining Company v. enforcement. Thus, our rules have been should not adopt this measure, asserting Federal Mine Safety and Health Review designed to meet these twin objectives— that, among other things, it has not Commission, 108 F.3d 358, 362 (DC Cir. 1997) to be specific in order to inform sellers (Freeman). sufficiently explained how it intends to 16 See General Electric Co. v. EPA, 53 F.3d 1324, as to the type of behavior that is enforce the standard. EnCana and 1329–30 (DC Cir. 1995) (holding that the agency’s prohibited today, while containing Mirant question the necessity of the rule interpretation of its rules was ‘‘so far from a enough breadth and flexibility to since the Commission and other reasonable person’s understanding of the address new and unanticipated regulations that [the regulations] could not have agencies have already shown an ability fairly informed GE of the agency’s perspective.’’). activities, as they may arise down the 17 See Freeman, 108 F.3d at 362. See also road. 13 Section 284.403(a) of the Commission’s Faultless Division, Bliss & Laughlin Industries, Inc. regulation provides that: v. Secretary of Labor, 674 F.2d 1177, 1185 (7th Cir. 20 See Village of Hoffman Estates, et al. v. The Any person making natural gas sales for resale in 1982) (‘‘[T]he regulations will pass constitutional Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498 interstate commerce pursuant to § 284.402 is muster even though they are not drafted with the (1981) (Hoffman). prohibited from engaging in actions or transactions utmost precision; all that due process requires is a 21 Id. See also Texas Eastern Products Pipeline that are without a legitimate business purpose and fair and reasonable warning.’’). Co. v. OSHRC, 827 F.2d 46, 50 (7th Cir. 1987) are intended to or foreseeably could manipulate 18 See Grayned v. City of Rockford, 408 U.S. 104, (‘‘Texas Eastern, as a major pipeline company, in market prices, market conditions, or market rules 110 (1971) (holding that an anti-noise ordinance which trenching and excavation are a part of its for natural gas. was not vague where the words of the ordinance routine, had ample opportunity to know of the 14 See e.g., TXU, NGSA, Shell, NJR Companies, ‘‘are marked by flexibility and reasonable breadth, earlier interpretation, should have been able to see NEMA, EMIT, Cinergy, Sempra, Reliant, Select, rather than meticulous specificity.’’). the sense of the regulations on their face, and if still Merrill Lynch and Morgan Stanley, Coral, Hess, 19 See Ray Evers Welding Co. v. OSHRC, 625 F.2d in doubt Texas Eastern should have taken the safer Peoples, EnCana, Mirant, NASUCA. 726, 730 (6th Cir. 1980). position both for its employees and for itself.’’).

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37. Nonetheless, we are committed to or foreseeable result. However, the disciplined by market forces. On the making our rules as specific as possible Commission recognizes that other hand, all gas transactions may not and thus, we are adopting a number of manipulation of energy markets does be constrained by market forces. For the revisions proposed by commenters not happen by accident. We also example, if a gas merchant bought in order to clarify the scope and recognize that intent often must be natural gas at a location typically used application of our rules. inferred from the facts and as an index reference point in a manner 38. We clarify that we are focusing on circumstances presented. Therefore, a that drives prices higher (and promptly behavior undertaken without an violation of the instant rule must thereafter sold such gas at the market appropriate commercial underpinning involve conduct which is intended to, prevailing price at a loss) while also for the purpose of distorting prices from or would foreseeably distort prices.23 possessing a derivative position at a those that would otherwise occur in the 40. Some ambiguity necessarily arises notional quantity significantly in excess competitive market. However, the from the fact that we cannot expressly of its physical gas position, that benefits proposed term that would have identify all behaviors that are precluded from the increase in the market price of characterized as manipulative behavior by the instant rule. However, in the natural gas at this index reference point, an act resulting in ‘‘market prices which Commission’s view, the rule and its these physical purchases may be do not reflect the legitimate forces of implementation provide sufficient interpreted as a component of a broader supply and demand’’ has resulted in clarity for market-based rates sellers to manipulative scheme and the cash confusion. While we do not believe that understand the scope of precluded market transactions may be found to be our use of this term was inappropriate behaviors. The rule clearly prohibits without a legitimate business purpose.25 or unjustified (as we intended it), many behaviors that are undertaken without a 43. We recognize that we are commenters appear to have legitimate business purpose which are establishing a general rule that will misunderstood its purpose, suggesting designed to, or foreseeably would, become more clear and concrete after that causes other than manipulation distort prices for jurisdictional natural we have had the opportunity to consider may explain a given dysfunction in the gas sales. actual cases. As with all new interplay between supply and demand. 41. Many commenters have raised requirements of this nature, with To avoid confusion on this point, then, concerns with the Commission’s caselaw comes further clarity. This and because our objectives with respect inclusion of the phrase ‘‘legitimate reflects the fact that we oversee a to this rule can be satisfied under the business purpose.’’ The Commission’s dynamic and evolving market where surviving clause, discussed above, we inclusion of the phrase is to assure addressing yesterday’s concerns may have eliminated this term from our rule. sellers that transactions with economic not address tomorrow’s. Nevertheless, We clarify that this rule is not meant to substance in which a seller offers or experience in applying this rule should say that we will identify prices that provides service to a willing buyer be instructive to both the Commission properly reflect supply and demand and where value is exchanged for value will and market-based rates sellers. As we then take action against sellers whose not be considered prohibited by our apply the rule, we will be mindful of the prices (however they may be rule. While several commenting sellers fact that we are not only taking steps to established) differ. Rather, our rule is have raised concerns regarding the assure just and reasonable rates for a designed to prohibit market-based rate inclusion of the phrase ‘‘legitimate specific transaction but also providing sellers from taking actions without a business purpose’’ in the rule, we guidance to sellers in general. As such, legitimate business purpose that are believe that not only is the inclusion of in determining the appropriate remedy intended to or foreseeably could the phrase necessary, it acts to ensure for violations of this rule, we will take interfere with the prices that would be that such sellers acting in a pro- 22 into account factors such as how self set by competitive forces. One such competitive manner will be able to evident the violation is and whether action would be a wash trade. As show that their actions were not such violation is part of a pattern of discussed below, wash trades have no designed to distort prices or otherwise manipulative behavior. economic risk or substance, and create manipulate the market. Behaviors and 44. The Commission rejects a false price for use in indices or in the transactions with economic substance in arguments that it should identify and market in general. which a seller offers or provides service prohibit only expressly-defined acts of 39. Commenters have also raised to a willing buyer where value is manipulation. For all the reasons questions regarding how the exchanged for value will be recognized discussed above, it is essential and Commission will determine whether as reflecting a legitimate business appropriate that we have a prohibition this rule has been violated. In purpose consistent with just and designed to prohibit all forms of determining whether an activity is in reasonable rates. However, an action or manipulative conduct. In sum, we violation of our rule, we will examine transaction which is anticompetitive believe our rules, as modified, all relevant facts and circumstances (even though it may be undertaken to explained and adopted herein, put surrounding the activity to evaluate maximize seller’s profits), could not sellers and all market participants on whether there is a legitimate business have a legitimate business purpose fair notice regarding the conduct we purpose attributable to the behavior. We attributed to it under our rule.24 will evaluate whether the activity was seek to encourage and the conduct we 42. Prices for transactions undertaken designed to lead to (or could foreseeably seek to prohibit. Stripped to their in the competitive marketplace where lead to) a distorted price that is not essentials, these guidelines amount to value is exchanged for value should be reflective of a competitive market. Our the following: (i) Act consistently approach will be to consider the facts 23 When deciding how best to allocate our 25 Although the instant example focused upon gas and circumstances of the activity to enforcement resources, we intend to focus our market prices manipulated upward in order to determine its purpose and its intended efforts primarily on those actions or transactions benefit the merchant derivative position, the that have, in fact, caused distorted market prices. transactions implementing any manipulation of the 22 Our rules are designed to cover actions that are 24 See Enron Power Marketing, Inc., 103 FERC natural gas market will not be considered intended to manipulate prices regardless of whether ¶ 61,343 (2003) (revoking Enron’s blanket marketing legitimate. For further discussion of several such actions actually resulted in distorted prices. certificate authorization based on Enron’s manipulative strategies see the Commission Staff’s We note, however, that in most such cases there participation in wash trades having ‘‘no legitimate Final Report on Price Manipulation in Western will be no unjust profits to disgorge. business purpose’’). Markets, Chapter IX, p. IX–9 through IX–24.

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within the Commission’s established made at the same time, at the same ‘‘bookout’’ transactions. Select explains rules; (ii) do not manipulate or attempt price, and at the same delivery points, that ‘‘sleeving’’ is a commonly to manipulate natural gas markets; (iii) and (3) trades made between the same performed trading practice in which a be honest and forthright with the legal entities. NGSA submits that the creditworthy party agrees to act as an Commission and the institutions it has proposed ban on wash trades should be intermediary in transactions between established to implement open-access narrowed to encompass only two parties who do not have a credit transportation and entities publishing simultaneous offsetting trades that are relationship. Duke recommends that indices for the purpose of price intended to manipulate market prices or legitimate trades may include the so- transparency; and (iv) retain associated rules. It explains that parties may enter called ‘‘bookout’’ transactions, in which records. Viewed in this context, there into legitimate business arrangements companies with offsetting delivery can be no reasonable uncertainty over that may appear as wash trades, for obligations resulting from heavy trading the underlying objectives embodied in example, trades made to correct a activity agree not to deliver to one our rules or their requirements going scheduling or nomination error, or to another the offsetting amounts of forward. liquidate a position at a pricing point energy. In the same vein, NEMA 45. Our code of conduct rules would based on subsequent changes in market submits that there may be instances not supercede or replace parties’ rights conditions. NGSA suggests that the where legitimate business purposes under Section 5 of the NGA to file a proposed regulation regarding wash appear to be wash trades (e.g., when complaint contending that a contract trades be rewritten as: ‘‘knowingly pre- traders ‘‘book out’’ or ‘‘test the waters’’), should be revised by the Commission arranged simultaneous offsetting trades and that the Commission should not (pursuant to either the ‘‘just and of the same product among the same deem such trade to be illegal. Sempra reasonable’’ or ‘‘public interest’’ test as parties, which involve no economic request that the wash trade prohibition required by the contract). Rather, any risk, and no net change in beneficial to only apply to trades that affect the party seeking contract reformation or ownership (sometimes called ‘wash market and asks that the Commission abrogation based on a violation of one trades’).’’ clarify the definition accordingly. or more of these regulations would be 49. Reliant recommends the definition 52. Other commenters such as Shell required to demonstrate that such a of wash trades be refined to eliminate Offshore, NEMA, and Coral question violation had a direct nexus to contract the possibility that multiple traders whether the Commission has provided formation and tainted contract within the same company who are adequate definitions for the terms used formation itself. If a jurisdictional seller trading with multiple traders in another in its regulations. For example, Shell enters into a contract without engaging company do not stand accused of Offshore questions what the regulations in behavior that violates these engaging in wash trades by the mere mean by a ‘‘pre-arranged’’ trade, and regulations with respect to the coincidence that their trades offset one how it differs from any other negotiation formation of such contract, we do not another. Reliant suggests that the leading to a trade. It also questions how intend to entertain contract abrogation regulation be re-written as: ‘‘trades of to define an ‘‘offsetting trade,’’ and how complaints predicated on our instant the same product among the same the value is measured. It also asks what code of conduct rules. parties, which trades are pre-arranged to constitutes the ‘‘same product’’ (i.e., be offsetting and involve no economic 2. Wash Trades does an exchange of gas among the same risk, and no net change in beneficial parties constitute the same product, and 46. Proposed Section 284.288(a)(1) ownership (sometimes called ‘wash provides that: thus qualify as an illegal wash trade). It trades’). also notes that there are legitimate 50. The Oversight Board asserts that Prohibited actions and transactions include transactions that involve ‘‘no economic the definition of wash trade is unduly but are not limited to pre-arranged offsetting risk,’’ such as a transaction providing a trades of the same product among the same narrow, because it limits wash trades to guaranteed supply at a guaranteed price. parties, which involve no economic risk, and transactions involving the same parties, NEMA also requests additional no net change in beneficial ownership the same quantity, and no economic risk 26 clarification of the terms ‘‘wash trades’’ (sometimes called ‘‘wash trades’’). whatsoever. The Oversight Board joins and ‘‘pre-arranged deals’’ and requests 47. TXU comments that wash trades NASCUA in contending the proposed should be more precisely defined, definition would permit a party to evade that the Commission investigate the contending that the present definition the wash trade prescription by engaging meanings of the terms ‘‘intentional does not explicitly limit the applicable in transactions that result in the net manipulation’’ and ‘‘wash trades’’ as transaction to one involving the same financial position near to, but not equal they apply to securities and commodity location, price, quantity, and term, and to, zero. The Oversight Board contends futures trading. can be interpreted to prohibit legitimate that the Commission should qualify its 53. The Commission will adopt exchange transactions that occur wash trade definition to ensure that the Section 284.288(a)(1) as proposed. Thus, through displacement or backhauls. codes of conduct can effectively react to the regulation will state that: 48. Merrill Lynch and Morgan Stanley unforeseen, novel attempts to Prohibited actions and transactions include request that the Commission modify the circumvent the regulatory process. The but are not limited to pre-arranged offsetting definition of wash trades to clarify that Oversight Board requests that the trades of the same product among the same it applies to parties who intended to Commission clarify that it will define parties, which involve no economic risk and enter into simultaneous offsetting trades no net change in beneficial ownership wash trades as those necessarily (sometimes called ‘‘wash trades’’).27 to effectuate a wash trade. They request affecting market prices or modify the that the Commission further clarify its definition to include pre-arranged 54. The Commission disagrees with definition by specifying that wash multi-party transactions. the comments that its definition of wash trades must involve: (1) A deliberately 51. Commenters such as Select, Duke trades is ill conceived or vague. The pre-arranged pair of trades, (2) trades and NEMA suggest that the Commission’s definition of a ‘‘wash 27 The Commission also adopts Section 26 Proposed Section 284.403(a)(1) applies these 284.403(a)(1) as proposed, which will apply the same prohibited actions and transactions to ‘‘[a]ny trade’’ is too broad and may encompass same prohibited actions and transactions to ‘‘[a]ny person making natural gas sales for resale in transactions not intended to be wash person making natural gas sales for resale in interstate commerce pursuant to § 284.402 ***.’’ trades such as ‘‘sleeving’’ and interstate commerce pursuant to § 284.402 * * * .’’

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definition of wash trades states the two 57. The Commission finds that its approach includes elements of anti-trust key elements that the Commission sees definition of wash trading, as explained law, it is not limited to the structure of as the fundamentally manipulative here, satisfies the requirements that those laws. For example, our regulatory aspects of wash trading: (1) that the parties will generally know what is approach encompasses ‘‘partnerships’’ transaction or transactions are expected of them and what actions are whose existence does not implicate anti- prearranged to cancel each other out; prohibited. Therefore, the Commission trust concerns that may, nonetheless, and (2) that they involve no economic will not further define its regulations at undertake manipulative behavior. risk. As such, the prohibition against this point. Therefore, these regulations will be wash trades is illustrative of the interpreted and enforced by the 3. Collusion Commission’s prohibition against the Commission consistent with our own manipulation of market conditions. 58. As revised Section 284.288(a)(2) of policies and precedents. As such, we 55. Transactions such as ‘‘sleeving’’ or the Commission’s regulations provides need not be concerned here whether, or ‘‘bookouts’’ as described by the that prohibited actions and transactions to what extent, federal antitrust law may commenters do not fall with the key include but are not limited to: be broader in scope or more narrow in elements of the Commission’s definition collusion with another party for the purpose scope.31 These regulations are expressly and therefore would not be prohibited of manipulating market prices, market tailored to our statutory duties and our by the regulation. Further, trades made conditions, or market rules for natural gas.28 competitive goals with respect to the to correct scheduling or nomination 59. Several commenters argue that the natural gas market.32 errors, or trades that do not result from Commission should better define the 62. To avoid possible confusion an attempt to manipulate the market term collusion.29 For instance, TXU regarding the interpretation and scope would not be prohibited by the recommends that the Commission and from our originally proposed language Commission’s regulation. Moreover, market participants rely on federal and which prohibited collusion for the displacement or backhauls are not wash state antitrust laws specifically defining purpose of creating market prices trades as they are transportation services collusion in order to ensure certainty differing from those set by market obtained from a pipeline if operationally concerning the conduct that is forces, we have replaced this term with feasible and simply do not meet the prescribed. Sempra argues that the language consistent with our definition of wash trades as set forth Commission’s prohibition of collusion prohibition against manipulation set herein. A sleeve is not an off-setting is unconstitutionally vague, as well as forth above. Therefore, the instant trade but rather a mechanism to unnecessary since such conduct is regulation prohibits collusion with accomplish a gas sale among parties that already proscribed under other statutory another party for the purpose of have not established a credit and regulatory schemes administered by manipulating market prices, market relationship by including a third party other federal agencies with specialized conditions or market rules for natural seller that has acceptable credit in the expertise in those areas of law. gas. We find such collusive acts to be transaction chain. The two resulting 60. NEMA argues that for conduct to illustrative of our prohibition against sales (which are only offsetting to the constitute collusion, there must be an the manipulation of market prices and ‘‘sleeving’’ seller) are each with element of intent to manipulate prices clarify that Sections 284.288(a)(2) and economic risk with a change in in the marketplace as well as an actual 284.403(a)(2) merely expand our general beneficial ownership and, usually at impact on commodity prices. Shell asks manipulation standard set forth in slightly different prices to reflect the use what standard the Commission would subparagraphs (a) of these rules to of the ‘‘sleeving’’ seller’s credit. A rely upon to determine whether or not include acts taken in concert with ‘‘bookout’’ is not a pre-arranged trade there was collusion to ‘‘create’’ prices at another party. In other words, these but rather a subsequent arrangement to levels that differ from those set by regulations prohibit market financially close out trades that were market forces. manipulation undertaken by one market not prearranged and executed (and, in 61. While commenters such as participant acting alone and market fact, closed out) with economic risk. Sempra are correct in their observation manipulation undertaken collectively 56. Commenters argue that the that the prohibition set forth in Sections by more than one market participant. Commission should impose an ‘‘intent’’ 284.288(a)(1) and 284.403(a)(1) may be 4. Reporting to Gas Index Publishers standard relating to wash trading. The similar, in certain respects, to the 63. Proposed Regulation Section language, as proposed and finalized in prohibitions set forth in federal antitrust 284.288(b) states that: this order, does include the element of laws, our authority, as it relates to intent. We recognize that buyers and Sections 284.288(a)(1) and To the extent a pipeline that provides sellers trade the same products with the 284.403(a)(1), is not derived from unbundled natural gas sales service under same counterparties over the course of federal antitrust law. Rather, our § 284.284 engages in reporting of transactions authority comes from the NGA itself and to publishers of gas price indices, the a trading day. Entering into a set of pipeline shall provide complete, accurate trades that happen to offset each other its requirement that all rates and charges and factual information to such publisher. is not market manipulation. Wash trades made, demanded, or received by any The pipeline shall notify the Commission of are by their nature manipulative. By natural gas company selling natural gas whether it engages in such reporting for all definition, parties must purposefully subject to the jurisdiction of the sales. In addition, the pipeline shall adhere create prearranged off-setting trades Commission and all rules and with no economic risk to engage in a regulations affecting or pertaining to 31 Similarly, we need not revise our rule so that wash trade. We know of no legitimate such rates and charges be just and violations of the antitrust laws are also prohibited reasonable.30 Although our regulatory by our rule. Federal antitrust law will continue to business purpose to such behavior and apply where it is found to apply, with or without no commenter has suggested one. our rule. Accordingly, as opposed to many other 28 Section 284.403(a)(2) of the Commission’s 32 See Pennsylvania Water & Power Co. v. FPC, behaviors which would not, standing regulations contains an identical prohibition. 193 F.2d 230, 236 (D.C. Cir. 1951) (‘‘A rate is not 29 See e.g., Merrill Lynch and Morgan Stanley, necessarily illegal because it is the result of a alone, violate Sections 284.288(a) or Duke, TXU, Sempra, NGSA, NEMA, Shell, EnCana, conspiracy in restraint of trade in violation of the 284.403(a), wash trades will constitute a Hess, Mirant. Anti-Trust Act. What rates are legal is determined per se violation. 30 Section 4(a) of the NGA, 15 U.S.C. 717c. by the regulatory statute.’’ [cit. omit.]).

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to such other standards and requirements for Commission notification requirement is that a market-based rates seller reports price reporting as the Commission may a one-time or ongoing obligation.39 BP its transactions to publishers of natural 33 order. argues that the Commission should gas price indices, such seller must do so 64. Commenters argue that the clarify that it is only necessary to honestly and accurately. The Commission should not prescribe indicate to the Commission that the Commission also proposed to require reporting requirements that might entity engages in reporting. Merrill sellers to inform it if they undertook prevent innovation of better long-term Lynch and Morgan Stanley requests that such reporting. Based upon the solutions to the industry’s evolving the Commission clarify that if new comments received, we have modified future needs for price information.34 entrants or entities that currently do not Sections 284.288(b) and 284.403(b) to Others argue that the proposed penalties report to indices subsequently initiate read as follows: may discourage market participants reporting, such entities must notify the To the extent Seller engages in reporting of from voluntarily reporting price data. Commission within 30 days from the 65. Commenters also argue that the transactions to publishers of electricity or first date they initiated reports. natural gas indices, Seller shall provide confidential treatment of reported data, 68. As part of the reporting as required by the Policy Statement, is accurate and factual information and not provisions, numerous parties knowingly submit false or misleading critical to the voluntary reporting information or omit material information to 35 recommend that the Commission process. Moreover, several incorporate a safe harbor provision into any such publisher, by reporting its commenters recommend that the its proposal so that an industry transactions in a manner consistent with the Commission articulate specific reporting participant who, in good faith, provides procedures set forth in the Policy Statement requirements, consistent with the Policy on Natural Gas and Electric Price Indices, trade data to index developers, will not Statement. Commenters submit that issued by the Commission in Docket No. be subject to penalties for inadvertent many aspects of the reporting process PL03–3–000 and any clarifications thereto. mistakes in reporting the information. remain unclear. For instance, they argue Seller shall notify the Commission within 15 Several commenters ask that the safe that it is unclear what data must be days of the effective date of this tariff harbor provisions mirror the one provision of whether it engages in such reported, the format for the data, the adopted in the Commission’s Policy reporting of its transactions and update the policy for confirming the accuracy of Statement.40 Commenters submit that Commission within 15 days of any the data, and to which entities the seller incorporation of a safe harbor provision subsequent change to its transaction must report. BP seeks clarification of reporting status. In addition, Seller shall will encourage the voluntary reporting this rule, contending that it does not adhere to such other standards and mandate reporting, but simply requires of information. Commenters also request requirements for price reporting as the that any information reported be the Commission to clarify the proposed Commission may order. false reporting prohibition so that it ‘‘complete.’’ Specifically, BP asks the 71. In our June 26 NOPR, we referred only applies to information that is Commission to clarify that where an to our on-going proceeding investigating known to be false at the time it is entity voluntarily reports, that entity price index formation. As many reported, as opposed to false reports should not be required to report all sales commenters have pointed out, since our based on inadvertent mistakes or human at all locations. Coral suggests that proposal regarding these rules was error.41 Nicor and NGSA add that the general reviews followed by spot checks issued we have also issued a Policy Commission should expressly state that should be all that is required to assure Statement addressing standards we the safe harbor protections in the Policy a reasonable level of accuracy in believe appropriate for the formation of Statement are not eliminated or negated reported trade price information.36 price indices that will be robust and Other commenters argue that the Policy by the subject reporting requirements. 69. Calpine contends that any safe accurate in the context of a voluntary Statement obviates the need for a 42 harbor provision must be adopted into reporting regime. Included in the reporting rule.37 Policy Statement is a ‘‘Safe Harbor’’ 66. Several other commenters assert the proposed code without the burden on industry participants to self-audit under which reporting errors will not be that the rule does not go far enough.38 subject to Commission sanction. Here, They recommend that the Commission and self-correct errors not otherwise discovered in the ordinary course of we explicitly adopt the standards set require that all entities holding blanket forth in the Policy Statement for certificates report all of their trades to business. Given the volumes of data to be reported, Calpine believes it a transaction reporting. Further, we also the data collectors. They assert that only adopt the ‘‘Safe Harbor’’ set forth reporting occasional bits of information certainty that inadvertent errors that do no harm to the overall integrity of the therein as a component of our could lead to inaccuracies. enforcement policy with respect to this 67. Moreover, several commenters indices will be made. NEMA urges that the safe harbor be extended to index rule. request clarification as to whether the 72. The Commission clarifies that the prices published by parties that meet requirement that entities notify the 33 Proposed regulation Section 284.403(b) the Commission’s protocols. 70. The Commission proposed this Commission of any change in status provides a similar requirement stating: with regard to price reporting to indices To the extent that blanket marketing certificate regulation to assure that to the degree holder engages in reporting of transactions to is an ongoing obligation. As such, the publishers of gas price indices, the blanket 39 See e.g., AGA, BP (recommending a one-time entities must, upon the implementation certificate holder shall provide complete, accurate obligation), Peoples. of these regulations, inform the and factual information to any such publisher. The 40 See e.g., Select; see also AGA (recommending Commission of whether they report to blanket marketing certificate holder shall notify the that rather than incorporating a safe harbor Commission of whether it engages in such reporting the index publishers. As shown above, provision into the subject proceeding, the for all sales. In addition, the blanket marketing the Commission will modify the text of Commission should clarify that the safe harbor certificate holder shall adhere to such other announced in the Policy Statement applies Sections 284.288(b) and 284.403(b) of its standards and requirements for price reporting as specifically to a blanket marketing certificate proposed regulations to provide that the the Commission may order. holder’s obligation, to the extent it engages in 34 blanket marketing certificate holder See e.g., Western. reporting of transactions to publishers of gas price 35 shall, after the initial notification to the See e.g., PSCNY, NEMA, NGSA, Reliant, TXU. indices, to provide complete, accurate, and factual 36 See Coral at 7. information to any publisher). Commission, inform the Commission of 37 See e.g., Mirant, Hess, Coral. 41 See e.g., Merril Lynch and Morgan Stanley, 38 See e.g., EMIT, Platts, NASUCA. Select, Mirant. 42 Policy Statement, 104 FERC ¶ 61,121 (2003).

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its reporting status within 15 days of the down or elimination of certain it charged for the natural gas it sold pursuant effective date of these regulations and transactions. to this certificate or the prices it reported for within 15 days of any subsequent 76. BP asserts that relevant data use in price indices for a period of three 52 change in reporting status. should be limited to accounting data years. 73. Finally, some commenters have that records the details of each reported 80. In revising the proposed rule, we asked that we require mandatory transaction, along with a record of the clarify that we are not seeking retention reporting while others contend that we data transmitted to the index developer, ‘‘cost-of service’’ or analytical data have created requirements that will if applicable. BP adds that requiring related to sellers’ sales as some have a chilling effect on reporting. We data maintained in the accounting commenters perceived from our believe that we have struck an records would be consistent with the suggestion that entities retain all appropriate balance in these rules. For Commission’s proposed requirement for relevant data ‘‘necessary for the the moment, we are attempting to work price reporting in its recent Policy reconstruction of price indices’’ in our within the framework of voluntary Statement, which requires that price, original proposal. Rather, we are reporting. We are awaiting our staff’s volume, buy/sell indicator, delivery/ requiring that sellers retain the complete review of the comprehensiveness of receipt point, transaction date and time, set of contractual and related reporting in the wake of our Policy term, and any counterparty name be documentation upon which such Statement. At this time, we are not maintained. It argues that negotiation entities billed their customers for sales. mandating reporting. However, we have materials and other ancillary data The Commission is indifferent as to engaged in a comprehensive should not be required to be whether this material is retained in investigation of transaction reporting maintained. paper form or in an electronic medium 77. Several commenters argue that the and related issues and believe that the as long as the data can be made three-year retention period is too long, practices set forth in our Policy accessible in a reasonable fashion if its and that the burden may dissuade Statement represent the necessary review is required. In addition, blanket marketing certificate holders minimum for those entities that choose commenters raise several issues in from reporting data.46 Other to report. Accordingly, we will not regard to the three-year retention period. commenters argue that the three-year require reporting, but will seek to learn On balance, the Commission does not retention period is too short, and that which sellers are reporting and set forth believe that requiring sellers to retain with current computer technology, a standards for those that do. records for a three-year period longer retention period should not constitutes an undue burden given the 5. Three-Year Data and Information result in additional costs to market fact that the Commission is prepared to Retention Requirement participants.47 Finally, some allow the records to be kept in commenters argue that the three-year electronic or paper form. To permit a 74. Proposed Section 284.288(c) of the record retention period is consistent shorter retention period may not allow Commission’s regulations provides that: with the commercial practices of many sufficient time for the investigations A pipeline that provides unbundled natural gas sellers.48 into possible violations. natural gas sales service under § 284.284 78. Several commenters argue that the shall retain all relevant data and information record retention requirement will only 6. Prohibition on Reporting necessary for the reconstruction of price be meaningful if the Commission makes Transactions With Affiliates 43 indices for three years. reporting of all trade data mandatory.49 81. Proposed section 284.288(d) of the 75. Several entities comment on the At the same time, other commenters Commission’s regulations provides that: Commission’s proposed three-year data argue that if an entity does not report, A pipeline that provides unbundled and information retention then documentation is not necessary to natural gas sales transactions under § 284.284 requirement.44 Other commenters verify the accuracy of price indices.50 is prohibited from reporting any natural gas request clarification as to what Other commenters submit that only sales transactions between the pipeline and 53 constitutes ‘‘relevant data’’, and suggest relevant data should be retained and not its affiliates to industry indices. that the Commission specify what types peripheral documents that may have 82. Commenters generally agree with of data and information must be been generated in association with a this restriction.54 NASUCA agrees to the retained, and in what format (e.g., paper transaction, but which have no bearing prohibition of affiliate transactions from or electronic).45 Commenters are on the data reported to index price indices calculations, but contends concerned that the required publishers.51 that other non-price information, such documentation will prove too 79. This proposed rule requires that as the number of trades and the volumes burdensome due to both the time and sellers maintain relevant records associated with each trade, is important the money required to store and retrieve regarding their sales for three years. information that will help determine the information. NJR Companies argues that After review of the comments received, liquidity at various hubs for which the proposal may create a new set of we revise Section 284.288(c) to read: prices are calculated. It recommends business records that could lead to A pipeline that provides unbundled that the regulation be modified to state decreased market activity, and a slow- natural gas sales service under 284.284 must that pipelines and certificate holders retain, for a period of three years, all data and should separately report other non-price information upon which it billed the prices 43 Similarly, proposed Section 284.403(c) provides: 52 The Commission will modify Section 46 A blanket marketing certificate holder shall retain See e.g., ProLiance (requesting a 2-year 284.403(c), applying to blanket marketing certificate all relevant data and information necessary for the retention period), NEMA (requesting a 1-year holders, in a like manner. reconstruction of price indices for three years. retention period), Coral. 53 Proposed Section 284.403(d) of the 47 44 See e.g., BP, NJR Companies, NEMA, NGSA, See e.g., NASUCA (requesting a 6-year Commission’s regulations provides that: EMIT, Western, Sempra, Reliant, Coral, Hess, retention period). A blanket marketing certificate holder is Peoples, Mirant, EnCana, NASUCA, ProLiance, 48 See e.g., Western. prohibited from reporting any natural gas sales Merrill Lynch and Morgan Stanley, PG&E, Duke. 49 See e.g., EMIT. transactions between the blanket market certificate 45 See e.g., BP, NJR Companies, NEMA, Coral, 50 See e.g., Sempra. holder and its affiliates to industry indices. Peoples, Mirant, EnCana, ProLiance, Merrill Lynch 51 See e.g., BP, Hess, Mirant, Merrill Lynch and 54 See ProLiance, NASUCA, EnCana, Hess, and Morgan Stanley, PG&E. Morgan Stanley. NEMA.

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data associated with affiliate just and reasonable rate is tantamount to 89. Regarding the issue of appropriate transactions. retroactive ratemaking because NGA non-monetary penalties, PSCNY states 83. Although the separate reporting of Section 5 provides only for prospective that all violations of the regulations other non-price data associated with relief.58 The commentors argue the should be publicly disclosed in a public affiliate transactions may provide Commission is attempting to expand its file that may be accessed by buyers and additional information regarding authority to order retroactive refunds, the public. A list of bad actors and dates liquidity at certain points, the or, change retroactively the filed rate. could be maintained on the Commission finds that this information They argue that courts have been clear Commission’s Web site. Such public is not necessary for the purposes of that the Commission cannot (i) use its disclosure, PSCNY argues, would these rules. conditioning authority to circumvent provide an additional deterrent for 84. Although commenters generally other provisions of the NGA and (ii) do agree with reporting restrictions on companies to avoid the stigma indirectly what it may not do directly associated with engaging in transactions between affiliates in the and therefore the Commission cannot anticompetitive behavior. PSCNY states June 26 NOPR, new Sections 284.288(b) condition rates as it proposes to do so that in the event of a particularly blatant and 284.403(b) of the Final Rule provide here, and subject them to retroactive that to the extent a Seller engages in the refunds because Congress did not and serious violation, or multiple reporting of transactions to publishers of include such authority in the NGA. violations, the Commission should price indices, the Seller shall do so in place parties on notice that appropriate a manner consistent with the 87. Several commenters express remedies could include revocation of concern that the term ‘‘unjust profits’’ is procedures set forth in the Policy market-based rate authority. NASUCA vague and subjective, the calculation of Statement. The Policy Statement states recommends that the Commission which would necessitate a review of all that ‘‘a data provider should report each clarify that revocation of market-based market conditions.59 AGA recommends bilateral, arm’s length transaction rate authority will be for a specified between non-affiliated companies in the that the Commission limit the disgorgement of unjust profits to all minimum period of time that depends physical (cash) markets at all trading on the severity of the violation. locations.’’ 55 Therefore, an entity filing illegal activity and not impose penalties consistent with the Policy Statement for violation of those regulatory 90. In Order No. 636, the Commission will not include sales to affiliates in its provisions associated with reporting determined that after gas services were 60 report. Accordingly, the Commission activities. NJR Companies object to the unbundled, sellers of gas supplies believes the addition of these two disgorgement remedy when the would not have market power over the 61 regulations (Sections 284.288(d) and violation is inadvertent. sale of natural gas. This determination 284.403(d) of the June 26 NOPR) is 88. Several commenters argue that the was based in large part upon Congress’ redundant, and shall be deleted. Commission should consider additional finding that a competitive market exists remedies such as a remedy that would for gas at the wellhead and in the gas D. Remedies require the offending entity to make the field. The Commission determined that 1. General Issues market whole for losses incurred it would institute light-handed 62 85. Several commenters responded to because of its actions. They argue that regulation and would rely on market the Commission’s proposal that the if an entity must simply disgorge unjust forces at the wellhead to constrain sales violations of its code of conduct may profits, even if is caught for every for resale of natural gas within the just result in various remedial actions by the infraction of the code, it is no worse off and reasonable standard set forth by the Commission including the disgorgement than if it had followed the rules in the NGA. In implementing its findings in of unjust profits, suspension or first place. Therefore, they argue that Order No. 636 and Order No. 547, the revocation of the blanket sales disgorgement of unjust profits does not Commission issued blanket certificates certificates or other appropriate serve as a penalty or deterrent to future, to all persons who are not interstate similar actions. In sum, they argue that remedies. pipelines which authorized such the failure to comply with the filed rate 86. In regard to the Commission’s persons to make jurisdictional gas sales by engaging in prohibited manipulative inclusion of disgorgement as a potential for resale at negotiated rates with pre- behavior should include a potential remedy various commenters argue that granted abandonment.63 In issuing these the Commission does not have authority remedy that is greater than certificates the Commission determined to condition NGA Section 7 certificates disgorgement, such as a make the with such a retroactive refund market whole remedy. that the competitive natural gas market obligation.56 Commenters argue that the would lead all gas suppliers to charge courts have held that the Commission’s 58 Several commenters such as EnCana, Hess and rates that are sensitive to the gas sales power to condition certificates cannot Mirant argue that the term ‘‘unjust profits’’ is vague market. be permitted to diminish an entity’s and subjective and therefore difficult to calculate. Hess requests that that the Commission either adopt 91. The Commission has determined 57 rights under NGA Sections 4 and 5. a more workable formula for calculating monetary that in order to protect and maintain the These commenters argue the proposed remedies or clarify how the unjust profits standard competitive natural gas market and to disgorgement remedy is a refund will be applied. Mirant and EnCana suggest that the continue its light-handed regulation of condition that is not permitted under Commission adopt a presumption that unjust profits will be defined as the difference between a the gas sales within its jurisdiction, it is Section 5 of the NGA and that such reported transaction’s fixed price and a then- necessary to place additional conditions disgorgement of unjust profits from a existing published index price for the market and on its grant of market-based sales time period in question. Mirant asserts that it would certificates. In formulating such 55 See Policy Statement, 104 FERC ¶ 61,121 at P oppose any Commission proposal to recreate or 34 (2003). somehow adjust previously reported index prices conditions to the market based rate 56 See e.g., Comments of AGA, the FPL Group, based on an after-the-fact review of reported data. certificates the Commission is fulfilling 59 NGSA, Duke, NGSA and Cinergy. See e.g., Mirant, Cinergy, EnCana, Hess. its obligation to appropriately monitor 60 57 Citing Panhandle Eastern Pipe Line Co. v. See AGA at 10. markets and to ensure that market-based FERC, 613 F.2d 1120 (D.C. Cir. 1979): Cf. Northern 61 NJR Companies at 19. Natural Gas Co. v. FERC, 827 F.2d 779 (D.C. Cir. 62 See e.g., CPUC, NASUCA, EMIT, PG&E, PSCNY 1987). and the Oversight Board. 63 See 18 CFR 284.401–402 (2003).

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rates remain within the zone of the equitable considerations, and if the Commission is allowed to initiate reasonableness required by the NGA.64 practical consequences of its action and unlimited retroactive investigations, this 92. In order to find the market based the purposes of the NGA.69 vitiates any time constraints the rule sales service to be in the public 94. This action of remedying a otherwise places on private convenience and necessity the violation of a certificate condition is not complainants. Commenters recommend Commission finds that the conditions the same as the Commission’s action in that the scope of any investigation that herein must be met. Once the sales finding an existing rate unjust and might stem from a complaint, or the service is so conditioned, in the unreasonable after hearing under Commission’s own motion, be narrowly Commission’s view adequate safeguards Section 5 of the NGA. At the initiation defined, and require the demonstration are in place so that the Commission may of an NGA Section 5 proceeding the and quantification of the individual grant market based sales authority to existing condition has not yet been harm resulting from the prohibited jurisdictional sellers of natural gas. In so found to be unjust and unreasonable. In conduct.73 These commenters are conditioning this service, the contrast, in a remedial proceeding the concerned about the lack of finality for Commission is not prohibiting a issue is whether the entity has violated transactions under the proposed jurisdictional seller of natural gas from an existing condition of the tariff or the discovery exception to the 60-day requesting a certificate for a different regulations. Therefore, in a remedial requirement. Merrill Lynch and Morgan form of service or filing pursuant to proceeding, unlike an NGA section 5 Stanley suggest either a hard and fast Section 4 of the NGA for a different rate proceeding, the regulated entity has deadline of 60 days from the event with or conditions of service. Neither does notice of the conditions required for no exceptions or a rebuttable the Commission prohibit a customer of service at the time of the presumption the complainant knew such a seller from raising objections implementation of the service condition about the alleged violation within the under Section 5 of the NGA. and the Commission may, at its 60-day time period. 93. Moreover, if the conditions of discretion, fashion an appropriate 98. Upon consideration of the service are not met, the Commission has remedy. comments received concerning our 60- the authority to impose the appropriate 95. In appropriate circumstances day proposal, in the Commission’s view remedy for the violation.65 In particular, these remedies may include the 60-day time period may be the Commission does not agree with the disgorgement of unjust profits, insufficient time for parties to discover comments that a violation of an existing suspension or revocation of the blanket and act upon violations of these condition of service may not be sales provision or other appropriate regulations. Accordingly, the remedied by the Commission from the non-monetary remedies. Which of these Commission will modify its original time the violation occurred. The remedies is appropriate will depend on proposal to allow 90 days from the end Commission has the authority to remedy the circumstances of the case before it of the quarter from which a violation violations of certificate conditions.66 and the Commission will not determine occurred for a party to bring a complaint Moreover, the courts have held that the here which remedy or remedies it will based on these regulations. A 90-day Commission has a great deal of utilize.70 time period provides a reasonable discretion when imposing remedies 2. 90-Day Time Limit on Complaints balance between encouraging due devised to arrive at maximum diligence in protecting one’s rights, reinforcement of Congressional 96. Several commenters raise discouraging stale claims, and objectives in the NGA.67 In devising its concerns about the 60-day time limit on encouraging finality in transactions. remedy the Commission is required to complaints proposed in the June 26 71 Furthermore, the Commission clarifies exercise its discretion to arrive at an NOPR. Most of the commenters argue that the language in Sections 284.288(e) appropriate remedy,68 and to explore all that the 60-day time period is and 284.403(e), ‘‘unless that person unreasonably too short. Some could not have known of the alleged 64 commenters suggest a limit of six The Court of Appeals for the D.C. Circuit has violation’’, incorporates a held that, while the Commission ‘‘enjoys months.72 Many commenters suggest reasonableness standard, i.e., the 90-day substantial discretion in ratemaking determinations modification of the provision’s * * * by the same token, this discretion must be time period to file a complaint does not discovery exception, by adopting a bridled in accordance with the statutory mandate begin to run until a reasonable person ‘‘reasonableness’’ standard, i.e., a that the resulting rates be ‘just and reasonable.’’’ exercising due diligence should have Farmers Union Cent. Exch. Inc. v. FERC, 734 F.2d reasonable person exercising due known of the alleged wrongful conduct. 1486 at 1501 (D.C. Cir. 1984). In addition, the diligence could not have known of the regulatory regime itself must contain some form of Rather than being impermissibly vague, wrongful conduct. monitoring to ensure that rates remain within a this safeguard ensures a sufficient time- zone of reasonableness and to check rates that 97. Several commenters argue that the depart from this zone. Id. at 1509. See also Commission errs in not applying the 60- period for complainants to discover Louisiana Energy and Power Authority v. FERC, 141 day deadline to itself. They argue that hidden wrongful conduct and submit a F.3d 364 (D.C. Cir. 1998); Elizabethtown Gas Co. v. claim. FERC, 10 F.3d 866 (D.C. Cir. 1993). 99. We will also place a time 65 See e.g., Coastal Oil & Gas Corp. v. FERC, 782 69 See Continental Oil Co. v. FPC, 378 F.2d 510 F.2d 1249 (1986). (5th Cir. 1967) and FPC v. Tennessee Gas limitation on Commission enforcement 66 Consolidated Gas Transmission Corp., et al., Transmission Co., 371 U.S. 145 (1962). action for potential violations of these 771 F.2d 1536 (D.C. Cir. 1985) (holding that the 70 Moreover, if Congress grants the Commission regulations. The Commission, unlike the Commission has the authority under section 16 of additional remedial power, including the authority market participants who may be buyers the Natural Gas Act to order retroactive refunds to to levy civil penalties, the Commission will, in or otherwise directly affected by a enforce conditions in certificates). addition to the remedies set forth herein, 67 The courts have held that ‘‘the breadth of implement such authority and utilize it when transaction, may not be aware of actions agency discretion is, if anything, at its zenith when appropriate for violations of these code of conduct or transactions that potentially may the action assailed relates * * * to the fashioning regulations. violate our rules. Thus, the Commission of policies, remedies and sanctions.’’ Columbia Gas 71 The Oversight Board, Mirant, NiSource, will act within 90 days from the date it Transmission Corp., v. FERC, 750 F.2d 105, 109 Cinergy, Sempra, Reliant, EMIT, EnCana, Hess, (D.C. Cir. 1984), quoting, Niagara Mohawk Power Coral, NGSA, CPUC, NASUCA, PG&E, Merrill knew of an alleged violation of these Corp. v. FPC, 379 F.2d 153, 159 (D.C. Cir.1967). Lynch and Morgan Stanley, ProLiance. 68 Gulf Oil Corp. v. FPC, 536 F.2d 588 (3rd. Cir. 72 See the Oversight Board, EMIT, Coral, 73 See also EPSA (arguing that the Commission 1977), cert. denied, 4344 U.S. 1062 (1978), reh’g NASUCA (suggesting 6 months), and ProLiance should clarify that it will act quickly to review and denied, 435 U.S. 981 (1978). (suggesting a two-year limit). discourage frivolous complaints).

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code of conduct regulations or knew of potential liability regarding the subject make any substantive or material the potentially manipulative character transaction. In such a proceeding, changes to the information collection of an action or transaction. Commission knowledge on the part of the requirements specified in the NOPR, action in this context means a Commission must take the form of a call which was previously submitted to Commission order or the initiation of a to our Hotline alleging inappropriate OMB for approval on July 14, 2003. preliminary investigation by behavior or communication with our OMB has elected to take no action on Commission Staff pursuant to 18 CFR enforcement staff. the NOPR. Thus, the information section 1b. If the Commission does not VI. Administrative Finding and Notices collection requirements in this rule are act within this time period, the seller pending OMB approval. Comments will not be exposed to potential liability A. Information Collection Statement were solicited and received on the need regarding the subject action or for this information, whether the transaction. Knowledge on the part of 101. The code of conduct rules information will have practical utility, the Commission will take the form of a adopted herein would require the accuracy of the provided burden call to our Hotline alleging jurisdictional gas sellers to retain certain inappropriate behavior or records for three years and also require estimates, ways to enhance the quality, communication with our enforcement them to notify the Commission whether utility, and clarity of the information to Staff. or not they engage in the reporting of be collected, and any suggested methods 100. We also clarify that in this natural gas sales transactions to for minimizing respondents’ burden, context the Commission’s action will publishers of gas indices.74 including the use of automated have reference to a Commission order or 102. The Office of Management and information techniques. The to the initiation to a preliminary Budget’s (OMB) regulations require that Commission addressed these issues in investigation by Commission Staff. If the OMB approve certain information sections III(C)(4)–(5) of this order. The Commission does not act within this collection requirements imposed by burden estimates for complying with period, the Seller will not be exposed to agency rule.75 This final rule does not this proposed rule are as follows:

Number of Number of Hours per Total annual Data collection respondents responses response hours

FERC–549: (Reporting) ...... 222 222 1 222 (Recordkeeping) ...... 222 222 2 444

Totals ...... 3 666 Total annual hours for Collection (reporting + recordkeeping) = 666.

Information Collection Costs: The certificates adhere to a code of conduct following: Federal Energy Regulatory Commission seeks comments on the when making gas sales. In addition, the Commission, 888 First Street, NE., cost to comply with these requirements. Commission will require blanket sales Washington, DC 20426 [Attention: It has projected the average annualized certificate holders to maintain certain Michael Miller, Office of the Executive cost of all respondents to be: data for a period of three years. The Director, Phone: (202) 502–8415, fax: Annualized Capital Startup Costs: 666 ÷ addition of the codes of conduct, (202) 273–0873, e-mail: 2080 × $117,041 = $37,475. This is a one retention of data and standards for [email protected].] time cost for the implementation of the accuracy are efforts by the Commission 112. For submitting comments proposed requirements. to ensure the integrity of the natural gas concerning the collection of 103. OMB’s regulations require it to market that remains within its information(s) and the associated approve certain information collection jurisdiction. burden estimate(s), please send your requirements imposed by agency rule. 110. Internal review: The Commission comments to the contact listed above The Commission is submitting a copy of has reviewed the requirements and to the Office of Management and this order to OMB. pertaining to blanket sales certificates Budget, Office of Information and 104. Title: FERC–549, Gas Pipeline and has determined the proposed Regulatory Affairs, Washington, DC Rates: Natural Gas Policy Act, Section revisions are necessary to ensure the 20503, [Attention: Desk Officer for the 311. integrity of the gas sales market that Federal Energy Regulatory Commission, 105. Action: Proposed Data remains within its jurisdiction. These phone: (202) 395–7856, fax: (202) 395– Collection. requirements conform to the 7285]. 106. OMB Control No.: 1902–0086. Commission’s plan for efficient 107. Respondents: Businesses or other information collection, communication, B. Environmental Analysis for profit. and management within the natural gas 113. The Commission is required to 108. Frequency of Responses: On industry. The Commission has assured prepare an Environmental Assessment occasion. itself, by means of internal review, that or an Environmental Impact Statement 109. Necessity of Information: The there is specific, objective support for for any action that may have a code of conduct rules approved herein the burden estimates associated with the significant adverse effect on the human would revise the Commission’s information requirements. environment.76 The Commission has regulations to require that pipelines that 111. Interested persons may obtain categorically excluded certain actions provide unbundled sales service or information on the information from these requirements as not having a persons holding blanket marketing requirements by contacting the significant effect on the human

74 See Sections 284.288(b)–(c), and 284.403(b)– 76 Order No. 486, Regulations Implementing the (Dec. 17, 1987), FERC Stats. & Regs. Preambles (c). National Environmental Policy Act, 52 FR 47897 1986–1990 ¶ 30,783 (1987). 75 5 CFR 1320 (2003).

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environment.77 The actions proposed to 118. User assistance is available for (2) collusion with another party for be taken here fall within categorical eLibrary and the FERC’s Web site during the purpose of manipulating market exclusions in the Commission’s normal business hours at prices, market conditions, or market regulations for rules that are clarifying, [email protected] or by rules for natural gas. corrective, or procedural, for calling (866) 208–3676 or for TTY, (b) To the extent Seller engages in information gathering, analysis, and contact (202) 502–8659. reporting of transactions to publishers of dissemination, and for sales, exchange, electricity or natural gas indices, Seller E. Effective Date and Congressional and transportation of natural gas that shall provide accurate and factual Review requires no construction of facilities.78 information, and not knowingly submit Therefore, an environmental assessment 119. These regulations are effective false or misleading information or omit is unnecessary and has not been December 26, 2003. The Commission material information to any such prepared in this rulemaking. has determined, with the concurrence of publisher, by reporting its transactions the administrator of the Office of in a manner consistent with the C. Regulatory Flexibility Act Information and Regulatory Affairs of procedures set forth in the Policy Certification OMB, that this Final Rule is not a Statement on Natural Gas and Electric 114. The Regulatory Flexibility Act of ‘‘major rule’’ as defined in Section 351of Price Indices, issued by the Commission 1980 (RFA) 79 generally requires a the Small Business Regulatory in Docket No. PL03–3–000 and any description and analysis of final rules Enforcement Fairness Act of 1996. The clarifications thereto. Seller shall notify that will have significant economic Commission will submit the Final Rule the Commission within 15 days of the impact on a substantial number of small to both houses of Congress and the effective date of this regulation of entities. The Commission is not General Accounting Office. whether it engages in such reporting of required to make such analyses if a rule List of Subjects in 18 CFR Part 284 its transactions and update the would not have such an effect.80 Commission within 15 days of any 115. The Commission does not Continental Shelf; Incorporation by subsequent change to its transaction believe that this rule would have such reference; Natural gas; Reporting and reporting status. In addition, Seller shall an impact on small entities. Most of the recordkeeping requirements. adhere to such other standards and entities required to comply with the By the Commission. Commissioners requirements for price reporting as the proposed regulations would be Massey and Brownell concurring in part with Commission may order. pipelines, LDCs or their affiliates who separate statements attached. (c) A pipeline that provides do not meet the RFA’s definition of a Linda Mitry, unbundled natural gas sales service small entity whether or not they are Acting Secretary. under § 284.284 shall retain, for a period under the Commission’s jurisdiction. It ■ In consideration of the foregoing, the of three years, all data and information is likely that any small entities selling Commission is amending part 284, upon which it billed the prices it natural gas would be making gas sales Chapter I, Title 18, Code of Federal charged for natural gas it sold pursuant that are no longer subject to the Regulations, as follows. to its market based sales certificate or Commission’s jurisdiction. Therefore, the prices it reported for use in price the Commission certifies that this rule PART 284—CERTAIN SALES AND indices. will not have a significant economic TRANSPORTATION OF NATURAL GAS (d) Any violation of the preceding impact on a substantial number of small UNDER THE NATURAL GAS POLICY paragraphs may subject Seller to entities. ACT OF 1978 AND RELATED disgorgement of unjust profits from the date when the violation occurred. Seller D. Document Availability AUTHORITIES may also be subject to suspension or 116. In addition to publishing the full ■ 1. The authority citation for part 284 revocation of its blanket certificate text of this document in the Federal continues to read as follows: under § 284.284 or other appropriate Register, the Commission provides all Authority: 15 U.S.C. 717–717w, 3301– non-monetary remedies. interested persons an opportunity to 3432; 42 U.S.C. 7101–7532; 43 U.S.C. 1331– (e) Any person filing a complaint view and/or print the contents of this 1356. against a pipeline for violation of document via the Internet through ■ paragraphs (a) through (c) must do so no FERC’s Home Page (http://www.ferc.gov) 2. Section 284.288 is added to read as follows: later than 90 days after the end of the and in FERC’s Public Reference Room calendar quarter in which the alleged during normal business hours (8:30 a.m. § 284.288 Code of conduct for unbundled violation occurred unless that person to 5 p.m. Eastern time) at 888 First sales service. could not have known of the alleged Street, NE., Room 2A, Washington DC (a) A pipeline that provides violation, in which case the 90-day time 20426 unbundled natural gas sales service limit will run from the discovery of the 117. From FERC’s Home Page on the under § 284.284 is prohibited from alleged violation. The Commission will Internet, this information is available engaging in actions or transactions that act within 90 days from the date it knew using the eLibrary link. The full text of are without a legitimate business of an alleged violation of these code of this document is available on eLibrary purpose and that are intended to or conduct regulations or knew of the in PDF and Microsoft Word format for foreseeably could manipulate market potentially manipulative character of an viewing, printing, and/or downloading. prices, market conditions, or market action or transaction. Commission To access this document in eLibrary, rules for natural gas. Prohibited actions action in this context means a type the docket number excluding the and transactions include but are not Commission order or the initiation of a last three digits of this document in the limited to: preliminary investigation by docket number field. (1) Pre-arranged offsetting trades of Commission Staff pursuant to 18 CFR the same product among the same section 1b. If the Commission does not 77 18 CFR 380.4 (2003). parties, which involve no economic risk act within this time period, the seller 78 See 18 CFR 380.4(a)(2)(ii), 380.4(a)(5), 380.4(a)(27) (2003). and no net change in beneficial will not be exposed to potential liability 79 5 U.S.C. 601–612. ownership (sometimes called ‘‘wash regarding the subject action or 80 5 U.S.C. 605(b). trades’’); and transaction. Knowledge on the part of

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the Commission will take the form of a (c) A blanket marketing certificate Merrill Lynch Capital Services, Inc. and call to our Hotline alleging holder shall retain, for a period of three Morgan Stanley Capital Group, Inc. (Merill inappropriate behavior or years, all data and information upon Lynch and Morgan Stanley) * communication with our enforcement which it billed the prices it charged for Mirant Americas Energy Marketing, LP (Mirant) Staff. the natural gas sold pursuant to its Missouri Public Service Commission ■ 3. In § 284.402, the second sentence of market based sales certificate or the (Missouri PSC) paragraph (a) is revised to read as prices it reported for use in price National Association of State Utility follows: indices. Consumer Advocates (NASUCA) (d) Any violation of the preceding National Energy Marketers Association § 284.402 Blanket Marketing Certificates. (NEMA) paragraphs may subject Seller to Natural Gas Supply Association (NGSA) * * * A blanket certificate issued under disgorgement of unjust profits from the New Jersey Resources Corporation (NJR Subpart L is a certificate of limited date when the violation occurred. Seller Companies) jurisdiction which will not subject the may also be subject to suspension or Nicor Gas (Nicor) certificate holder to any other regulation revocation of its blanket certificate NiSource, Inc. (NiSource) under the Natural Gas Act jurisdiction under § 284.284 or other appropriate Pacific Gas and Electric Company (PG&E) of the Commission, other than that set non-monetary remedies. Peoples Gas Light and Coke Company, North Shore Gas Company, and Peoples Energy forth in this Subpart L, by virtue of the (e) Any person filing a complaint transactions under this certificate. Resources Corp. (Peoples) against a blanket marketing certificate Piedmont Natural Gas Co., Inc. ■ 4. Section 284.403 is added to read as holder for violation of paragraphs (a) Platts follows: through (c) must do so no later than 90 ProLiance Energy, LLC (ProLiance) Public Service Electric and Gas Co., PSEG § 284.403 Code of conduct for persons days after the end of the calendar quarter in which the alleged violation Power LLC and PSEG Energy Resources & holding blanket marketing certificates. Trade LLC (collectively, PSEG Companies) occurred unless that person could not (a) Any person making natural gas Public Service Commission of the State of have known of the alleged violation, in sales for resale in interstate commerce New York (PSCNY) which case the 90-day time limit will pursuant to § 284.402 is prohibited from Public Utilities Commission of the State of run from the discovery of the alleged engaging in actions or transactions that California (CPUC) violation. The Commission will act Questar Energy Trading Company (Questar) are without a legitimate business within 90 days from the date it knew of Reliant Energy Power Generation, Inc. and purpose and that are intended to or an alleged violation of these code of Reliant Energy Services, Inc. (Reliant) foreseeably could manipulate market conduct regulations or knew of the Select Energy, Inc. (Select) prices, market conditions, or market Sempra Energy (Sempra) potentially manipulative character of an rules for natural gas. Prohibited actions Shell Offshore Inc. (Shell Offshore) action or transaction. Commission and transactions include but are not TXU Portfolio Management Company LP action in this context means a limited to: (TXU) Commission order or the initiation of a (1) Pre-arranged offsetting trades of USG Pipeline Company, B–R Pipeline preliminary investigation by Company, and United States Gypsum the same product among the same Commission Staff pursuant to 18 CFR Company (USG) parties, which involve no economic risk Section 1b. If the Commission does not Virginia Industrial Gas Users’ Association and no net change in beneficial act within this time period, the seller (VIGUA) ownership (sometimes called ‘‘wash Virginia Natural Gas, Inc.** will not be exposed to potential liability trades’’); and Western Gas Resources, Inc. (Western) regarding the subject action or (2) Collusion with another party for llllll transaction. Knowledge on the part of * Entities filing reply comments in addition the purpose of manipulating market the Commission will take the form of a prices, market conditions, or market to initial comments. call to our Hotline alleging ** Entity filing reply comments only. rules for natural gas. inappropriate behavior or (b) To the extent Seller engages in Massey, Commissioner, concurring in part: communication with our enforcement The tariff conditions that the Commission reporting of transactions to publishers of Staff. approves today send a clear message to electricity or natural gas indices, Seller market-based rate sellers: Don’t lie, don’t Note: This appendix will not appear in the shall provide accurate and factual manipulate market conditions, don’t violate information, and not knowingly submit Code of Federal Regulations. market rules and don’t collude with others. false or misleading information or omit For sellers who choose to behave otherwise, material information to any such Appendix the Commission now has the tools to publisher, by reporting its transactions List of Commenters sanction such bad behavior and we give notice of what some of those sanctions could in a manner consistent with the Amerada Hess Corporation (Hess) procedures set forth in the Policy be. This action should help to restore the American Gas Association (AGA) * faith in energy markets that has been lost in Statement on Natural Gas and Electric Atmos Energy Corp. the last few years. Price Indices, issued by the Commission BP America Production Company and BP There is one aspect of today’s order, in Docket No. PL03–3–000 and any Energy Company (BP) however, that I would have written clarifications thereto. Seller shall notify California Electricity Oversight Board differently. I would not limit the monetary the Commission within 15 days of the (Oversight Board) penalty for tariff violations to disgorgement effective date of this regulation of Calpine Corporation of unjust profits. Market manipulation can whether it engages in such reporting of Cinergy Marketing & Trading, LP (Cinergy) * raise the market prices paid by all market its transactions and update the Coalition for Energy Market Integrity and participants and collected by all sellers. In Transparency (EMIT) Commission within 15 days of any such a case, the appropriate remedy may be Coral Energy Resources, L.P. (Coral) that the manipulating seller makes the subsequent change to its transaction Duke Energy Corporation (Duke) market whole. I would prefer to not take this reporting status. In addition, Seller shall Electric Power Supply Association (EPSA) or any monetary remedy off of the table, but adhere to such other standards and EnCana Marketing (USA) Inc. (EnCana) instead to allow the Commission the requirements for price reporting as the FPL Group, Inc. (FPL Group) flexibility to tailor the remedy to the Commission may order. Intercontinental Exchange, Inc. (ICE) circumstances of each case.

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This one concern with today’s order after the calendar quarter that the Federal Highway Administration, 400 should not be interpreted, however, as manipulative action was alleged to have Seventh Street, SW., Washington, DC diminishing in any way my enthusiastic occurred. The 90-day time limit strikes an 20590–0001. Office hours are from 7:45 support for this otherwise excellent order. I appropriate balance between providing a.m. to 4:15 p.m., e.t., Monday through commend my colleagues for taking this sufficient opportunity to detect violations important and much needed step. and the market’s need for finality. The Order Friday, except Federal holidays. For For these reasons, I concur in part with also places a similar time limit on FTA: Rhoda Shorter, Office of Program today’s order. Commission action. As a matter of Management, TPM–10, (202) 366–0206, William L. Massey, prosecutorial policy, the Commission will and Scott Biehl, Office of the Chief Commissioner. only initiate a proceeding or investigation Counsel, (202) 366–4063, 400 Seventh within 90 days from when we obtained Street, SW., Washington, DC 20590– Brownell, Commissioner, concurring: notice of a potential violation through either 0001. Office hours for the FTA are 8:30 1. We are adopting behavioral rules for a hotline call or communications with our market participants in the electric and a.m. to 5 p.m., e.t., Monday through enforcement staff. Friday, except Federal holidays. natural gas markets. No one can question the 6. While these rules are designed to good intention behind these behavioral rules. provide adequate opportunity to detect, and SUPPLEMENTARY INFORMATION: As I have stated before, if there are violations the Commission to remedy, market abuses Electronic Access of our rules, regulations or policies, we must and are clearly defined so that they do not be willing to punish and correct. create uncertainty, disrupt competitive An electronic copy of this document Concurrently, if there is misconduct by commodity markets or prove simply may be downloaded by using a market participants that is intended to be ineffective, competitive markets are dynamic. computer, modem and suitable anticompetitive, we must have the ability to We need to periodically evaluate the impact remedy those market abuses. communications software from the of these rules on the electric and gas markets. 2. Conversely, when we originally Government Printing Office’s Electronic We have directed our Office of Market proposed behavioral rules, I had a number of Bulletin Board Service at (202) 512– Oversight and Investigation to evaluate the concerns. I was concerned that the use of 1661. Internet users may also reach the effectiveness and consequences of these vague terms would create uncertainty and, behavioral rules on an annual basis and Office of the Federal Register’s home thereby, undermine the good intentions of include their analysis in the State of the page at: http://www.archives.gov and the the rules. I feared that subsequent Market Report. Government Printing Office’s Web page applications of the proposed behavior rules at: http://www.access.gpo.gov/nara. to real world actions could result in overly Nora Mead Brownell. proscriptive ‘‘rules of the road’’ that will [FR Doc. 03–29300 Filed 11–25–03; 8:45 am] Background dampen business innovation and creative BILLING CODE 6717–01–P In 1973, the Interstate System was market strategies. The net effect would be less competition and the associated higher about 83 percent complete; however, costs to consumers. I was concerned that we due to changed social, economic, and may be proposing a model that simply does DEPARTMENT OF TRANSPORTATION environmental conditions, many States not fit with the larger lessons we have realized it would be impracticable or learned in fostering competition over the past Federal Highway Administration unnecessary to construct some two decades, particularly in the gas market. uncompleted segments of the Interstate, 3. It is difficult to strike the right balance. Federal Transit Administration particularly in urbanized areas. But I have carefully weighed the comments and these States were reluctant to give up believe the revisions and clarifications to the 23 CFR Part 476 proposed behavioral rules achieve the these segments for fear of losing appropriate balance. We clarify that these RIN 2125–AF00 substantial amounts of Federal-aid rules do not impose a ‘‘must offer’’ funds. Therefore, the Federal-Aid requirement. We revise the definition of Interstate Highway System Highway Act of 1973 (Pub. L. 93–87, 87 manipulation to relate to actions that are Stat. 250, August 13, 1973), amended ‘‘intended to or foreseeably could’’ AGENCIES: Federal Highway title 23, United States Code, by adding manipulate markets. We add the exclusion Administration (FHWA) and Federal section 103(e)(4) to allow uncompleted that action taken at the direction of an RTO Transit Administration (FTA), DOT. or planned highways on the Interstate or ISO does not constitute manipulation. ACTION: Final rule. 4. Commenters also challenge the System in urbanized areas to be withdrawn and their funding sufficiency of the term ‘‘legitimate business SUMMARY: This final rule removes entitlements be transferred to mass purpose’’ in distinguishing between regulations that prescribed policies and transit projects. This became known as prohibited and non-prohibited behavior. We procedures for implementation of clarify that transactions with economic the ‘‘Interstate withdrawal and section 103(e)(4) of title 23, United substance, in which a seller offers or substitution program’’ (also known as States Code, which permitted the provides a service to a buyer where value is the ‘‘Interstate Transfer program’’) and it withdrawal of Interstate System exchanged for value, are not prohibited provided States with the opportunity to behavior. Behavior driven by legitimate profit segments and the substitution of public request withdrawal of a non-essential maximization or that serves important market mass transit or highway projects or both. segment of the Interstate System, and functions is not manipulation. Moreover, I The Congress recognized the expiration the substitution of transit projects to think it is important to recognize that scarcity of this program by eliminating the serve the area that would have been pricing is the market response to a supply/ underlying statutory authority for this demand imbalance that appropriately signals served by the withdrawn segment. As a regulation. Therefore, the Federal the need for infrastructure. For example, the result of this Act, the Federal Highway Highway Administration and the high prices of 2000–2001 that reflected Administration together with the Federal Transit Administration remove supply/demand fundamentals resulted in the Federal Transit Administration (known first new power plants being constructed in the regulations. as the Urban Mass Transit California in ten years; price risk being EFFECTIVE DATE: November 26, 2003. hedged through the use of long-term Administration at that time) FOR FURTHER INFORMATION CONTACT: For contracting; and renewed efforts to correct a promulgated 23 CFR Part 476, Interstate flawed market design. FHWA: Donald J. West, Office of Highway System.1 Subpart D of this 5. We have also adopted measures that Program Administration, HIPA–10, require accountability. A complaint must be (202) 366–4652, or Steve Rochlis, Office 1 See final rule published on June 12, 1974, at 39 brought to the Commission within 90 days of the Chief Counsel, (202) 366–1395, FR 20658.

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regulation outlined the procedures for underlying statutory authority for 23 Executive Order 12866 (Regulatory the withdrawal of Interstate System CFR part 476 has been eliminated, and Planning and Review) and DOT segments and the substitution of public the Interstate withdrawal and Regulatory Policies and Procedures mass transit or highway projects. substitution program no longer exists, it The FHWA and the FTA have In 1976, the Congress expanded the is appropriate to remove 23 CFR part determined that this action is not a Interstate withdrawal and substitution 476 from the Code of Federal significant regulatory action within the program to allow substitution projects to Regulations. meaning of Executive Order 12866 or include highway projects as well as The removal of 23 CFR part 476 does significant within the meaning of transit projects (see Federal-Aid not affect prior obligations under the Department of Transportation regulatory Highway Act of 1976 (Pub. L. 94–280, Interstate withdrawal and substitution policies and procedures. It is 90 Stat. 425, May 5, 1976)). The Federal- program, nor does it affect Interstate anticipated that the economic impact of Aid Highway Act of 1978 (Pub. L. 95– withdrawal and substitution funds that this rulemaking will be minimal. The 599, 92 Stat. 2689, November 6, 1978) are still available. Rather, section obsolete provision in law to withdraw further amended 23 U.S.C. 103(e)(4) by 1045(b)(2) of the Intermodal Surface Interstate System segments under part establishing time limits for withdrawals Transportation Efficiency Act of 1991 476 was eliminated on June 9, 1998, by and substitute project approvals. (ISTEA) specifies that Interstate TEA–21. Substitute projects are Nonessential Interstate System segments withdrawal and substitution funds essentially all complete and related passing through and connecting remain available until expended. funding fully utilized. urbanized areas within a State could Moreover, States that still have This final rule will not adversely also be withdrawn. Withdrawals were to Interstate withdrawal and substitution affect, in a material way, any sector of receive approval by September 30, 1983, funds available to them can elect to the economy. In addition, these changes unless the route was under judicial deobligate those funds from a particular will not interfere with any action taken injunction prohibiting construction at project and reobligate them to another or planned by another agency and will the time of enactment of the 1978 eligible project. Any State interested in not materially alter the budgetary Highway Act. All substitute projects deobligating and reobligating Interstate impact of any entitlements, grants, user were to be approved no later than withdrawal and substitution funds can fees, or loan programs. September 30, 1983. Furthermore, all contact its FHWA Division Office or substitute projects were to be under FTA Regional Office to explore that Regulatory Flexibility Act construction or under contract for possibility. In compliance with the Regulatory construction no later than September Rulemaking Analyses and Notices Flexibility Act (Pub. L. 96–354, 5 U.S.C. 30, 1986, provided sufficient funds were 601–612) the agencies have evaluated available. Therefore in 1980, the FHWA Under the Administrative Procedure the effects of this action on small and the FTA amended 23 CFR part 476 Act (APA) (5 U.S.C. 553(b)), an agency entities and have determined that the to comply with these changes.2 may waive the normal notice and action will not have a significant In 1987, Congress again modified the comment requirements if it finds, for economic impact on a substantial Interstate withdrawal and substitution good cause, that they are impracticable, number of small entities. program in a number of ways (see unnecessary, or contrary to the public This rule eliminates an obsolete part Surface Transportation and Uniform interest. The issuance of this rule of title 23 of the Code of Federal Relocation Assistance Act of 1987 ((Pub. without prior notice and opportunity for Regulation. This will simply eliminate L. 100–17, 101 Stat. 132, April 2, 1987)). public comment is based on the good any confusion that could be generated A cost adjustment provision was cause exceptions in 5 U.S.C. 553 by retaining these obsolete regulatory enacted to assure that the ‘‘buying (b)(3)(B). Seeking public comment is provisions. For these reasons, the power’’ of the value of the withdrawals unnecessary and contrary to the public FHWA and the FTA certify that this was maintained over time. A portion of interest. This action is merely a action will not have a significant the annual funding authorized for ministerial action to remove an obsolete economic impact on a substantial highway and transit substitute projects part from the CFR and the removal of number of small entities. each year was set aside to be allocated this part will have no substantive impact. Therefore, the agencies would Unfunded Mandates Reform Act of on a discretionary basis. Open to traffic 1995 Interstate segments could no longer be not anticipate receiving meaningful withdrawn. The regulations were not comments on a proposal to eliminate 23 This rule does not impose unfunded revised to reflect these provisions. CFR part 476. Prior notice is therefore mandates as defined by the Unfunded Instead, the FHWA and FTA unnecessary, and it would be contrary Mandates Reform Act of 1995 (Pub. L. administered the program under the to the public interest to delay 104–4, March 22, 1995, 109 Stat. 48). 1980 regulations and the modifications unnecessarily this effort to eliminate an This rule will not result in the made in the 1987 legislation. outdated rule. Furthermore, the FHWA expenditure by State, local, and tribal In 1998, the Congress enacted the and the FTA believe that because the governments, in the aggregate, or by the Transportation Equity Act for the 21st underlying statutory authority for 23 private sector, of $100 million or more Century (TEA–21) (Pub. L. 105–178, 112 CFR part 476 no longer exists, we are in any one year. This rule simply Stat. 107, June 9, 1998) and recognized eliminating any confusion that may be deletes an obsolete regulatory provision. the expiration of the Interstate caused from the existence of 23 CFR part 476. Executive Order 13132 (Federalism withdrawal and substitution program by Assessment) removing 23 U.S.C. 103(e)(4).3 The APA also allows agencies, upon Therefore, since the time limits for the a finding of good cause, to make a rule This action has been analyzed in Interstate withdrawal and substitution effective immediately upon publication accordance with the principles and program have long expired, the (5 U.S.C. 533(d)(3)). For the same criteria contained in Executive Order reasons discussed above, the agencies 13132, and the agencies have 2 See final rule published on October 20, 1980, at also believe good cause exists for determined that this action does not 45 FR 69396. making this action effective have sufficient federalism implications 3 See section 1106(b) of TEA–21. immediately upon publication. to warrant the preparation of a

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federalism assessment. The FHWA and October of each year. The RIN contained Significant Comments or Changes the FTA have also determined that this in the heading of this document can be Two comments from the same party action does not preempt any State law used to cross-reference this action with questioned the Council’s reference in or State regulation or affect the States’ the Unified Agenda. the Supplementary Information that ability to discharge traditional State List of Subjects in 23 CFR Part 476 ‘‘the Compact eliminates barriers to the governmental functions. sharing of criminal history record Grant programs—transportation, Executive Order 12372 information among Compact parties for Highways and roads, Mass (Intergovernmental Review) noncriminal justice purposes’’, asking if transportation. the Compact encompassed all Catalog of Federal Domestic ■ In consideration of the foregoing and noncriminal justice purposes or only Assistance Program Number 20.205, under the authority of 23 U.S.C. 315, sec. those criminal history record Highway Planning and Construction. 1106(b) of Public Law 105–178, 112 Stat. information requests supported by The regulations implementing Executive 107, 136 (1998), and 49 CFR 1.48, the fingerprint submissions. The Council’s Order 12372 regarding FHWA and FTA are amending title 23, response was that the Compact intergovernmental consultation on Code of Federal Regulations, by encompasses all noncriminal justice Federal programs and activities apply to removing part 476, as follows: purposes. The second comment asked this program. for verification of the quoted statement Paperwork Reduction Act PART 476—[REMOVED] in the Supplementary Information that ‘‘Article VI of the Compact provides for This action does not contain a Issued on: November 20, 2003. a Compact Council that has the collection of information requirement Mary E. Peters, authority to promulgate rules and under the Paperwork Reduction Act of procedures governing the use of the 1995, 44 U.S.C. 3501–3520. Federal Highway Administrator. Jennifer L. Dorn, Interstate Identification Index (III) National Environmental Policy Act Federal Transit Administrator. System for noncriminal justice purposes, not to conflict with the FBI The agencies have analyzed this [FR Doc. 03–29596 Filed 11–25–03; 8:45 am] administration of the III System for action for the purpose of the National BILLING CODE 4910–22–P criminal justice purposes.’’ The Environmental Policy Act of 1969 (42 Council’s response was that this is a U.S.C. 4321–4347) and have determined direct quote from the Compact, 28 CFR that this action will not have any effect 14616, Article VI. on the quality of the environment. NATIONAL CRIME PREVENTION AND Nine comments referencing particular PRIVACY COMPACT COUNCIL Executive Order 13175 (Tribal subsections of the proposed rule were Consultation) 28 CFR Part 902 received from a second party. The first comment referenced the use of and The FHWA and the FTA have subsequent referral to the term ‘‘directly analyzed this final action under [NCPPC 106] aggrieved’’ (§ 902.2, paragraphs (a) and Executive Order 13175, dated November (b)). To eliminate what was interpreted 6, 2000, and believe that this action will Dispute Adjudication Procedures as a ‘‘circular’’ reference, the Council is not have substantial direct effects on revising paragraph (a) to state, one or more Indian tribes; will not AGENCY: National Crime Prevention and Privacy Compact Council. ‘‘Cognizable disputes may be based impose substantial direct compliance upon: costs on Indian tribal governments; and ACTION: Final rule. will not preempt tribal law. Therefore, * * * * *’’, a tribal summary impact statement is SUMMARY: The Compact Council while paragraph (b) is left unchanged. not required. established pursuant to the National A second comment asked the Crime Prevention and Privacy Compact following questions about section Executive Order 13211 (Energy Effects) (Compact) is publishing this rule to 902.3(a): What if the dispute also poses We have analyzed this final rule establish Dispute Adjudication a conflict of interest for the Chair? under Executive Order 13211, Actions Procedures. These procedures support Could a deputy name the substitute Concerning Regulations That Article XI of the Compact. member? The Council’s original intent was that any Committee member with a Significantly Affect Energy Supply, EFFECTIVE DATE: This final rule is conflict of interest would excuse him/ Distribution, or Use. We have effective on December 26, 2003. determined that it is not a significant herself from the hearing on that topic. FOR FURTHER INFORMATION CONTACT: energy action under that order because Lt. Clarifying language is being added to it is not a significant regulatory action Col. Jeffrey D. Harmon, Compact 902.3 paragraph (a): Council Chairman, Maine State Police, under Executive Order 12866 and is not In the case when the Compact Council likely to have a significant adverse effect 36 Hospital Street, Augusta, Maine Chair is the committee member with the on the supply, distribution, or use of 04333–0042, telephone number (207) conflict, the Chair shall take appropriate energy. Therefore, a Statement of Energy 624–7060. steps to appoint a replacement that resolves Effects under Executive Order 13211 is SUPPLEMENTARY INFORMATION: This the conflict. not required. document finalizes the Compact Comment 3, on section 902.3(c), Council rule proposed in the Federal labeled the use of the phrase ‘‘lean Regulation Identification Number Register on November 25, 2002, (67 FR toward’’ as vague. The Council is A regulation identification number 70567). The Compact Council accepted modifying paragraph (c) to indicate that (RIN) is assigned to each regulatory comments on the proposed rule from the dispute resolution committee shall action listed in the Unified Agenda of interested parties until December 26, recommend hearings to all disputants Federal Regulations. The Regulatory 2002, and is finalizing the rule with who raise issues that are not clearly Information Service Center publishes certain changes in response to the frivolous or without merit, and that the the Unified Agenda in April and comments. committee will give written explanation

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when a hearing is not recommended. members. According to Compact Article establishment as defined in 5 U.S.C. Section 902.3(c) is being amended VI and the Council’s Bylaws, section 105; accordingly, Executive Order 12988 accordingly. 8.8, a quorum of Council members or is not applicable. Another comment expressed a any Committee of the Council is defined Unfunded Mandates Reform Act concern that subsection 902.4(b) seemed as a simple majority. No vote shall be to allow only the Federal Bureau of taken without a quorum. The Council is Approximately 75 percent of the Investigation or a Party State to appeal revising 902.5(i) to add the references to Compact Council members are to the U.S. Attorney General when a Article VI and the Bylaws. representatives of state and local hearing was denied. The Council A final comment questioned if the governments; accordingly, rules modified this subsection to allow any rule was modeled after any existing prescribed by the Compact Council are disputant to appeal to the Attorney precedents. The Council responded that not Federal mandates. Accordingly, no General and provide that the Attorney the rule was structured according to actions are deemed necessary under the General has the discretion to consider current administrative procedures, but provisions of the Unfunded Mandates the appeal and grant a hearing. was not modeled after an existing Reform Act of 1995. Comment 5 referred to 902.5, Hearing precedent. Small Business Regulatory Enforcement Procedures, asking if disputants would Fairness Act of 1996 be allowed to cross-examine witnesses Administrative Procedures and and introduce evidence at a hearing, if Executive Orders The Small Business Regulatory there was any way to compel the Administrative Procedures Act Enforcement Fairness Act (Title 5, U.S.C. 801–804) is not applicable to the attendance of witnesses or production of This rule is published by the Compact documents, and if there are any Council’s rule because the Compact Council as authorized by the National Council is not a ‘‘Federal agency’’ as restrictions on a disputant acting as his/ Crime Prevention and Privacy Compact her own attorney? The Council agreed to defined by 5 U.S.C. 804(1). Likewise, (Compact), an interstate/federal state the reporting requirement of the modify subsection (c)(4) to state, ‘‘Call compact which was approved and and cross-examine witnesses.’’ Council Congressional Review Act (Subtitle E of enacted into legislation by Congress the Small Business Regulatory discussion acknowledged there is no pursuant to Pub. L. 105–251. The way to compel the attendance of Enforcement Fairness Act) does not Compact Council is composed of 15 apply. See 5 U.S.C. 804. witnesses or production of documents members (with 11 state and local or to restrict a disputant acting as his/ governmental representatives), and is List of Subjects in 28 CFR Part 902 her own attorney. authorized by the Compact to Comment 6 referenced 902.5(e), Administrative Practice and promulgate rules and procedures for the asking if the intent of the Council was Procedure. effective and proper use of the Interstate to allow a Council member who raised ■ Accordingly, Chapter IX of Title 28 Identification Index (III) System for a dispute to participate fully in the Code of Federal Regulations is amended noncriminal justice purposes. The hearing and vote on the final Council by adding Part 902 to read as follows: Compact specifically provides that the decision, as this could be construed as Council shall prescribe rules and a conflict of interest. Based on input PART 902—DISPUTE ADJUDICATION procedures for the effective and proper from the Department of Justice, the PROCEDURES use of the III System for noncriminal Council decided to leave the original justice purposes, and mandates that Sec. language intact. such rules, procedures, or standards 902.1 Purpose and authority. When Congress passed the National established by the Council shall be 902.2 Raising disputes. Crime Prevention and Privacy Compact 902.3 Referral to Dispute Resolution published in the Federal Register. See Act of 1998, it set forth specific Committee. U.S. 42 .C.16, Articles II(4), VI(a)(1) and language regarding the composition of 902.4 Action by Council Chairman. VI(e). This publication complies with the Compact Council, with a particular 902.5 Hearing procedures. those requirements. 902.6 Appeal to the Attorney General. number of members representing the 902.7 Court action. states, federal agencies, and criminal/ Executive Order 12866 Authority: 42 U.S.C. 14616. noncriminal justice constituencies, each The Compact Council is not an seat representing a vote on issues— executive department or independent § 902.1 Purpose and authority. including the adjudication of disputes. regulatory agency as defined in 44 The purpose of Part 902 is to establish Requiring a member to recuse himself U.S.C. 3502; accordingly, Executive protocols and procedures for the from a dispute hearing might result in Order 12866 in not applicable. adjudication of disputes by the Compact removing a particular constituency’s Executive Order 13132 Council. The Compact Council is vote, contravening the intent of established pursuant to the National Congress. The Compact Council is not an Crime Prevention and Privacy Compact Another comment questioned the executive department or independent (Compact), Title 42, U.S.C., Chapter 140, language in section 902.5(h), asking if regulatory agency as defined in 44 Subchapter II, Section 14616. recording and transcription of a hearing U.S.C. 3502; accordingly, Executive might not always be necessary. The Order 13132 is not applicable. § 902.2 Raising disputes. Council agreed to modify the language Nonetheless, this Rule fully complies (a) Cognizable disputes may be based as follows: with the intent that the national upon: The proceedings of the hearing will be government should be deferential to the (1) A claim that the Council has recorded and, as necessary, transcribed. A States when taking action that affects misinterpreted the Compact or one of transcript of the hearing shall be made and the policymaking discretion of the the Council’s rules or standards forwarded to the Attorney General if an States. established under Article VI of the appeal is filed pursuant to section (c) of Compact; Article XI of the Compact. Executive Order 12988 (2) A claim that the Council has The next comment asked what The Compact Council is not an exceeded its authority under the defined a majority vote of Council executive agency or independent Compact;

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(3) A claim that in establishing a rule hearing, it must articulate its reason or (e) All Council members, including a or standard or in taking other action, the reasons for doing so in writing. member or members who raised the Council has failed to comply with its (d) The Dispute Resolution Committee dispute that is the subject of the hearing bylaws or other applicable procedures shall consider the matter and: shall be entitled to participate fully in established by the Council; or the rule, (1) Refer it to the Council for a the hearing and vote on the final standard or action is not otherwise in hearing; Council decision concerning the accordance with applicable law; or (2) Recommend that the Council deny dispute. (4) A claim by a Compact Party that a hearing if the Committee concludes (f) The Council shall, if necessary, another Compact Party has failed to that the matter does not constitute a continue the hearing to a subsequent comply with a provision of the Compact cognizable dispute under § 902.2(a); or Council meeting. or with any rule or standard established (3) Request more information from the by the Council. person or organization raising the (g) Summary minutes of the hearing (b) Only a Party State, the FBI, or a dispute or from other persons or shall be made and transcribed and shall person, organization, or government organizations. be available for inspection by any entity directly aggrieved by the person at the Council office within the Council’s interpretation of the Compact § 902.4 Action by Council Chairman. Federal Bureau of Investigation. or any rule or standard established by (a) The Chairman shall communicate (h) The proceedings of the hearing the Council pursuant to the Compact, or the decision of the Dispute Resolution shall be recorded and, as necessary, in connection with a matter covered Committee to the person or organization transcribed. A transcript of the hearing under Section 902.2(a)(4), may raise a that raised the dispute. will be made and forwarded to the cognizable dispute. Such disputants (b) If a hearing is not granted, the Attorney General if an appeal is filed may request a hearing on a dispute by disputant may appeal this decision to pursuant to Section (c) of Article XI of contacting the Compact Council the Attorney General. If the Attorney the Compact. Chairman in writing at the Compact General believes the disputant has raised an issue that is not frivolous or (i) The Council’s decision on the Council Office, Module C3, 1000 Custer dispute shall be based upon a majority Hollow Road, Clarksburg, West Virginia without merit, the Attorney General may order the Compact Council vote of Council members or their 26306. proxies present (as per Compact Article (c) The Chairman may ask the Chairman to grant a hearing. VI and Council Bylaws) and voting at requester for more particulars, (c) If a hearing is granted, the the hearing. The Council’s decision on supporting documentation or materials Chairman shall: the dispute shall be published in the as the circumstances warrant. (1) Include the dispute on the agenda (d) A dispute may not be based solely of a scheduled meeting of the Council Federal Register as provided by Section upon a disagreement with the merits or, at the Chairman’s discretion, (a)(2) of Article XI and Section (e) of (substantive wisdom or advisability) of schedule a special Council meeting; Article VI. a rule or standard validly established by (2) Notify the person or organization (j) The Council Chairman shall advise the Council within the scope of its raising the dispute as to the date of the Council members and hearing authority under the Compact. However, hearing and the rights of disputants participants of the right of appeal nothing in this rule prohibits further under § 902.5 (Hearing Procedures); and provided by Section (c) of Article XI of discussion of the merits of a rule or (3) Include the matter of the dispute the Compact. standard at any regularly scheduled in the prior public notice of the Council § 902.6 Appeal to the Attorney General. Council meeting. meeting required by Article VI (d)(1) of the Compact. (a) The Federal Bureau of § 902.3 Referral to Dispute Resolution Investigation or a Compact Party State Committee. § 902.5 Hearing procedures. may appeal the decision of the Council (a) The five person Dispute Resolution (a) The hearing shall be open to the to the U.S. Attorney General pursuant to Committee membership shall be public pursuant to Article VI (d)(1) of Section (c) of Article XI of the Compact. determined according to Compact the Compact. Article VI (g). Should a dispute arise (b) The Council Chairman or his/her (b) Appeals shall be filed and with an apparent conflict of interest designee shall preside over the hearing conducted pursuant to rules and between the disputant and a Committee and may limit the number of, and the procedures that may be established by member, the Committee member shall length of time allowed to, presenters or the Attorney General. recuse himself/herself and the Compact witnesses. (c) Appropriate notice of an appeal Council Chairman shall determine an (c) The person or organization raising shall be communicated to the Council appropriate substitute for that particular the dispute or a Compact Party charged Chairman by the appealing party. dispute. In the case when the Compact under the provisions of § 902.2(a)(4) Council Chairman is the committee shall be entitled to: § 902.7 Court action. member with the conflict, the Chairman (1) File additional written materials Pursuant to Section (c) of Article XI shall take appropriate steps to appoint with the Council at least ten days prior of the Compact, a decision by the a replacement that resolves the conflict. to the hearing; Attorney General on an appeal under (b) The Compact Council Chairman (2) Appear at the hearing, in person § 902.6 may be appealed by filing a suit shall refer the dispute, together with all and/or by counsel; seeking to have the decision reversed in supporting documents and materials, to (3) Make an oral presentation; and the appropriate district court of the the Council’s Dispute Resolution (4) Call and cross-examine witnesses. United States. Committee. (d) Subject to the discretion of the (c) The Dispute Resolution Committee Chairman, other persons and Dated: November 5, 2003. shall recommend hearings to all organizations may be permitted to Jeffrey D. Harmon, disputants who raise issues that are not appear and make oral presentations at Compact Council Chairman. clearly frivolous or without merit. If the the hearing or provide written materials [FR Doc. 03–29568 Filed 11–25–03; 8:45 am] Committee recommends denying a to the Council concerning the dispute. BILLING CODE 4410–02–P

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DEPARTMENT OF HOMELAND Requests to open the bridge are FOR FURTHER INFORMATION CONTACT: SECURITY infrequent with the most recent request David Frank, Bridge Administration on April 14, 2003. Waterway users Branch, telephone (504) 589–2965. Coast Guard consist mainly of small tows. Based SUPPLEMENTARY INFORMATION: The State upon coordination with waterway users of Louisiana, Department of 33 CFR Part 117 and Vessel Traffic Service Houston/ Transportation and Development Galveston, it has been determined that (LDOTD), has requested a temporary [CGD08–03–046] this closure will not have a significant deviation from the requirements of 33 effect on these vessels. CFR 117.422(a) in order to replace a Drawbridge Operation Regulations; In accordance with 33 CFR 117.35(c), hydraulic cylinder on the swing span Buffalo Bayou, Houston, TX this work will be performed with all due bridge across the Amite River, mile 6.0, speed in order to return the bridge to AGENCY: Coast Guard, DHS. at Clio, Livingston Parish, Louisiana. normal operation as soon as possible. This maintenance is essential for the ACTION: Notice of temporary deviation This deviation from the operating continued safe operation of the bridge. from regulations. regulations is authorized under 33 CFR This temporary deviation will allow the 117.35. SUMMARY: The Commander, Eighth bridge to remain in the closed-to- Coast Guard District, has issued a Dated: November 18, 2003. navigation position from 6 a.m. on temporary deviation from the regulation Marcus Redford, Monday, December 15, 2003, until 6 governing the operation of the Union Bridge Administrator. p.m. on Friday, December 19, 2003. The Pacific Railroad Swing Span Bridge [FR Doc. 03–29593 Filed 11–25–03; 8:45 am] bridge will open for emergencies during this time with delays for the across Buffalo Bayou, mile 0.1, at BILLING CODE 4910–15–P Houston, Harris County, Texas. This mobilization of equipment to swing the deviation allows the bridge to remain bridge. No alternate routes are available. closed to navigation from December 10, DEPARTMENT OF HOMELAND The vertical clearance of the bridge in 2003, through December 21, 2003. The SECURITY the closed-to-navigation position is deviation is necessary to allow for approximately 4 feet above mean high replacement of the diesel motor that Coast Guard water. operates the bridge. Presently, the draw of the S22 bridge DATES: This deviation is effective from 33 CFR Part 117 opens on signal if at least four hours advanced notice is given. Records 6 a.m. on December 10, 2003, through [CGD08–03–047] 6 p.m. on December 21, 2003. indicate that requests for the bridge to open are infrequent with only two ADDRESSES: Materials referred to in this Drawbridge Operation Regulations; Amite River, Clio, LA vessels requesting openings last document are available for inspection or December. Waterway users consist copying at the office of the Eighth Coast AGENCY: Coast Guard, DHS. mainly of small recreational vessel. It Guard District, Bridge Administration ACTION: Notice of temporary deviation has been determined that this closure Branch, Hale Boggs Federal Building, from regulations. will not have a significant effect on room 1313, 501 Magazine Street, New these vessels. Orleans, Louisiana 70130–3396 between SUMMARY: The Commander, Eighth In accordance with 33 CFR 117.35(c), 7 a.m. and 3 p.m., Monday through Coast Guard District, has issued a this work will be performed with all due Friday, except Federal holidays. The temporary deviation from the regulation speed in order to return the bridge to telephone number is (504) 589–2965. governing the operation of the SR 22 normal operation as soon as possible. The Bridge Administration Branch of Swing Span Bridge across the Amite This deviation from the operating the Eighth Coast Guard District River, mile 6.0, at Clio, Livingston regulations is authorized under 33 CFR maintains the public docket for this Parish, Louisiana. This deviation allows 117.35. temporary deviation. the bridge to remain closed to Dated: November 18, 2003. FOR FURTHER INFORMATION CONTACT: navigation from December 15, 2003, David Frank, Bridge Administration through December 19, 2003. The Marcus Redford, Branch, telephone (504) 589–2965. deviation is necessary to allow for Bridge Administrator. [FR Doc. 03–29592 Filed 11–25–03; 8:45 am] SUPPLEMENTARY INFORMATION: The Union replacement of a hydraulic cylinder on Pacific Railroad has requested a the bridge. BILLING CODE 4910–15–P temporary deviation in order to replace DATES: This deviation is effective from a motor on the swing span bridge across 6 a.m. on December 15, 2003, through Buffalo Bayou at mile 0.1 at Houston, 6 p.m. on December 19, 2003. ENVIRONMENTAL PROTECTION Harris County, Texas. This maintenance ADDRESSES: Materials referred to in this AGENCY is essential for the continued safe document are available for inspection or operation of the bridge. This temporary copying at the office of the Eighth Coast 40 CFR Part 52 deviation will allow the bridge to Guard District, Bridge Administration remain in the closed-to-navigation Branch, Hale Boggs Federal Building, [DE059–1038a; FRL–7590–9] position from 6 a.m. on Wednesday, room 1313, 501 Magazine Street, New Approval and Promulgation of Air December 10, 2003, until 6 p.m. on Orleans, Louisiana 70130–3396 between Quality Implementation Plans; Sunday, December 21, 2003. The bridge 7 a.m. and 3 p.m., Monday through Delaware; Revisions to Delaware’s will not be able to open for emergencies Friday, except Federal holidays. The Motor Vehicle Emissions Inspection during this time and no alternate routes telephone number is (504) 589–2965. Program and Low Enhanced are available. The vertical clearance of The Bridge Administration Branch of Inspection and Maintenance Program the bridge in the closed-to-navigation the Eighth Coast Guard District position is approximately 34 feet above maintains the public docket for this AGENCY: Environmental Protection mean low water, elevation 0.0. temporary deviation. Agency (EPA).

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ACTION: Direct final rule. revisions to Regulation 31 create a new amendments to Delaware Regulation 26: car clean screen provision in the LEIM Motor Vehicle Emissions Inspection SUMMARY: EPA is taking direct final program. On September 24, 2001, Program, which only applies in Sussex action to approve revisions to the DNREC submitted another SIP revision County. The revisions to Regulation 26 Delaware State Implementation Plan to Regulation 31 that incorporates an include a provision to exempt the five (SIP). The revisions effect Delaware’s on-board diagnostics (OBD) systems newest model year vehicles from Motor Vehicle Emissions Inspection check as part of the LEIM Program. inspection and an amendment to the Program and Low Enhanced Inspection This rulemaking pertains to both the program’s waiver requirements. EPA has and Maintenance Program. These January 30, 2001 and September 24, determined that the five-year-model revisions include a five-model-year 2001 SIP revisions submitted by DNREC exemption and revised waiver vehicle exemption, the incorporation of to amend Regulations 26 and 31. provisions are consistent with the a New Model Year Clean Screen applicable requirements of the Federal provision, and the addition of an on- II. Summary of SIP Revision and EPA’s Evaluation I/M rule. board diagnostic (OBD) systems check. On September 24, 2001, DNREC EPA is approving these revisions to On January 30, 2001, DNREC submitted to EPA further revisions to Delaware’s SIP in accordance with the officially submitted a revision to EPA Regulation 31 to incorporate an OBD requirements of the Clean Air Act. pertaining to SIP-approved Delaware systems check as part of the LEIM DATES: This rule is effective on January Regulation 31. Regulation 31 for the Program. This revision addresses the 26, 2004, without further notice, unless LEIM program applies in Kent and New key components for making an OBD EPA receives adverse written comment Castle Counties. The revision includes a systems check part of a LEIM program by December 26, 2003. If EPA receives new model year clean screen provision such as implementation deadlines, such comments, it will publish a timely whereby newer model year vehicles model year coverage, test standards and withdrawal of the direct final rule in the may be exempt from exhaust and procedures, waivers, and test reports. Federal Register and inform the public evaporative emissions testing when The September 24, 2001 submittal also that the rule will not take effect. waiting lines at inspection stations are revises Regulation 31 to clarify the test ADDRESSES: Comments may be too long. The previous version of procedures for the Evaporative System submitted either by mail or Regulation 31 called for the use of a low Integrity Test (pressure test). EPA has electronically. Written comments emitter profile (LEP) model to clean determined that these revisions to should be mailed to Makeba Morris, screen vehicles at the lanes during peak Regulation 31 are consistent with the Chief, Air Quality Planning Branch, inspection periods. However, this LEP applicable requirements of the Federal model clean screen provision of the Mailcode 3AP21, U.S. Environmental I/M rule. previous version of Regulation 31 was Protection Agency, Region III, 1650 not implemented, and long lines III. Final Action Arch Street, Philadelphia, Pennsylvania continued to be a problem during EPA is approving the SIP revisions 19103. Electronic comments should be certain times. The main reason for not submitted by DNREC on January 30, sent either to [email protected] or implementing the LEP clean screen 2001 pertaining to Regulations 26 and to http://www.regulations.gov, which is program was the complexity of 31 and on September 24, 2001 an alternative method for submitting integrating the LEP program into the pertaining to Regulation 31 as described electronic comments to EPA. To submit existing information systems. The in Section II of this document. comments, please follow the detailed revision to Regulation 31 replaces the EPA is publishing this rule without instructions described in part III of the LEP model clean screen provision with prior proposal because the Agency Supplementary Information section. a new model year clean screen views this as a noncontroversial Copies of the documents relevant to this exemption to exempt vehicles that are amendment and anticipates no adverse action are available for public less than eight model years old. The comment. However, in the ‘‘Proposed inspection during normal business DNREC provided a modeling analysis Rules’’ section of today’s Federal hours at the Air Protection Division, that demonstrates that with this new Register, EPA is publishing a separate U.S. Environmental Protection Agency, model year clean screen provision, its document that will serve as the proposal Region III, 1650 Arch Street, LEIM program still meets the applicable to approve the SIP revision if adverse Philadelphia, Pennsylvania 19103. performance standard required under comments are filed. This rule will be FOR FURTHER INFORMATION CONTACT: the Federal I/M rule. Furthermore, effective on January 26, 2004, without Catherine L. Magliocchetti, (215) 814– DNREC’s analysis demonstrates that further notice unless EPA receives 2174, or by e-mail at with this revision to Regulation 31, its adverse comment by December 26, [email protected]. LEIM program provides more emission 2003. If EPA receives adverse comment, SUPPLEMENTARY INFORMATION: reductions that the previous version EPA will publish a timely withdrawal in calling for the use of an LEP model to the Federal Register informing the I. Background clean screen. For a more detailed public that the rule will not take effect. On January 30, 2001, the Delaware evaluation of the modeling analysis, EPA will address all public comments Department of Natural Resources and please see the Technical Support in a subsequent final rule based on the Environmental Control (DNREC) Document (TSD) prepared in support of proposed rule. EPA will not institute a submitted SIP revisions to Delaware this rulemaking action. Copies of that second comment period on this action. Regulation 26: Motor Vehicle Emissions TSD are available from the EPA Any parties interested in commenting Inspection Program and Delaware Regional Office listed in the ADDRESSES must do so at this time. Please note that Regulation 31: Low Enhanced section of this document. EPA has if EPA receives adverse comment on an Inspection and Maintenance (LEIM) determined that these revisions to amendment, paragraph, or section of Program. The revisions to Regulation 26 Regulation 31 are consistent with the this rule and if that provision may be include a provision to exempt the five applicable requirements of the Federal severed from the remainder of the rule, newest model year vehicles from I/M rule. EPA may adopt as final those provisions inspection and an amendment to the The DNREC’s January 30, 2001 SIP of the rule that are not the subject of an program’s waiver requirements. The revision submittal also included adverse comment.

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You may submit comments either you mail to the mailing address Considerations When Preparing electronically or by mail. To ensure identified in the ADDRESSES section of Comments to EPA proper receipt by EPA, identify the this document. These electronic You may find the following appropriate rulemaking identification submissions will be accepted in suggestions helpful for preparing your number DE059–1038a in the subject line WordPerfect, Word or ASCII file format. comments: on the first page of your comment. Avoid the use of special characters and 1. Explain your views as clearly as Please ensure that your comments are any form of encryption. possible. submitted within the specified comment 2. Describe any assumptions that you period. Comments received after the 2. By Mail. Written comments should be addressed to the EPA Regional office used. close of the comment period will be 3. Provide any technical information listed in the ADDRESSES section of this marked ‘‘late.’’ EPA is not required to and/or data you used that support your document. consider these late comments. views. 1. Electronically. If you submit an For public commenters, it is 4. If you estimate potential burden or electronic comment as prescribed important to note that EPA’s policy is costs, explain how you arrived at your below, EPA recommends that you that public comments, whether estimate. include your name, mailing address, submitted electronically or in paper, 5. Provide specific examples to and an e-mail address or other contact will be made available for public illustrate your concerns. information in the body of your viewing at the EPA Regional Office, as 6. Offer alternatives. comment. Also include this contact EPA receives them and without change, 7. Make sure to submit your information on the outside of any disk unless the comment contains comments by the comment period or CD ROM you submit, and in any copyrighted material, confidential deadline identified. cover letter accompanying the disk or 8. To ensure proper receipt by EPA, business information (CBI), or other CD ROM. This ensures that you can be identify the appropriate regional file/ information whose disclosure is identified as the submitter of the rulemaking identification number in the comment and allows EPA to contact you restricted by statute. When EPA subject line on the first page of your in case EPA cannot read your comment identifies a comment containing response. It would also be helpful if you due to technical difficulties or needs copyrighted material, EPA will provide provided the name, date, and Federal further information on the substance of a reference to that material in the Register citation related to your your comment. EPA’s policy is that EPA version of the comment that is placed in comments. will not edit your comment, and any the official public rulemaking file. The identifying or contact information entire printed comment, including the IV. Statutory and Executive Order provided in the body of a comment will copyrighted material, will be available Reviews be included as part of the comment that at the Regional Office for public A. General Requirements is placed in the official public docket. inspection. If EPA cannot read your comment due Under Executive Order 12866 (58 FR to technical difficulties and cannot Submittal of CBI Comments 51735, October 4, 1993), this action is not a ‘‘significant regulatory action’’ and contact you for clarification, EPA may Do not submit information that you not be able to consider your comment. therefore is not subject to review by the i. E-mail. Comments may be sent by consider to be CBI electronically to EPA. Office of Management and Budget. For electronic mail (e-mail) to You may claim information that you this reason, this action is also not [email protected], attention submit to EPA as CBI by marking any subject to Executive Order 13211, DE059–1038. EPA’s e-mail system is not part or all of that information as CBI (if ‘‘Actions Concerning Regulations That an ‘‘anonymous access’’ system. If you you submit CBI on disk or CD ROM, Significantly Affect Energy Supply, send an e-mail comment directly mark the outside of the disk or CD ROM Distribution, or Use’’ (66 FR 28355, May without going through Regulations.gov, as CBI and then identify electronically 22, 2001). This action merely approves EPA’s e-mail system automatically within the disk or CD ROM the specific state law as meeting Federal captures your e-mail address. E-mail information that is CBI). Information so requirements and imposes no additional addresses that are automatically marked will not be disclosed except in requirements beyond those imposed by captured by EPA’s e-mail system are accordance with procedures set forth in state law. Accordingly, the included as part of the comment that is 40 CFR part 2. Administrator certifies that this rule will not have a significant economic placed in the official public docket. In addition to one complete version of impact on a substantial number of small ii. Regulations.gov. Your use of the comment that includes any Regulation.gov is an alternative method entities under the Regulatory Flexibility information claimed as CBI, a copy of of submitting electronic comments to Act (5 U.S.C. 601 et seq.). Because this the comment that does not contain the EPA. Go directly to http:// rule approves pre-existing requirements information claimed as CBI must be www.regulations.gov, then select under state law and does not impose ‘‘Environmental Protection Agency’’ at submitted for inclusion in the official any additional enforceable duty beyond the top of the page and use the ‘‘go’’ public regional rulemaking file. If you that required by state law, it does not button. The list of current EPA actions submit the copy that does not contain contain any unfunded mandate or available for comment will be listed. CBI on disk or CD ROM, mark the significantly or uniquely affect small Please follow the online instructions for outside of the disk or CD ROM clearly governments, as described in the submitting comments. The system is an that it does not contain CBI. Information Unfunded Mandates Reform Act of 1995 ‘‘anonymous access’’ system, which not marked as CBI will be included in (Pub. L. 104–4). This rule also does not means EPA will not know your identity, the public file and available for public have tribal implications because it will e-mail address, or other contact inspection without prior notice. If you not have a substantial direct effect on information unless you provide it in the have any questions about CBI or the one or more Indian tribes, on the body of your comment. procedures for claiming CBI, please relationship between the Federal iii. Disk or CD ROM. You may submit consult the person identified in the FOR Government and Indian tribes, or on the comments on a disk or CD ROM that FURTHER INFORMATION CONTACT section. distribution of power and

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responsibilities between the Federal not impose an information collection proceedings to enforce its requirements. Government and Indian tribes, as burden under the provisions of the (See section 307(b)(2).) specified by Executive Order 13175 (65 Paperwork Reduction Act of 1995 (44 List of Subjects in 40 CFR Part 52 FR 67249, November 9, 2000). This U.S.C. 3501 et seq.). Environmental protection, Air action also does not have Federalism B. Submission to Congress and the pollution control, Carbon monoxide, implications because it does not have Comptroller General substantial direct effects on the States, Intergovernmental relations, Nitrogen on the relationship between the national The Congressional Review Act, 5 dioxide, Ozone, Reporting and government and the States, or on the U.S.C. 801 et seq., as added by the Small recordkeeping requirements, Volatile distribution of power and Business Regulatory Enforcement organic compounds. Fairness Act of 1996, generally provides responsibilities among the various Dated: November 13, 2003. levels of government, as specified in that before a rule may take effect, the agency promulgating the rule must Maria Parisi Vickers, Executive Order 13132 (64 FR 43255, Acting Regional Administrator, Region III. August 10, 1999). This action merely submit a rule report, which includes a approves a state rule implementing a copy of the rule, to each House of the ■ 40 CFR part 52 is amended as follows: Federal standard, and does not alter the Congress and to the Comptroller General relationship or the distribution of power of the United States. EPA will submit a PART 52—[AMENDED] and responsibilities established in the report containing this rule and other ■ 1. The authority citation for part 52 Clean Air Act. This rule also is not required information to the U.S. Senate, continues to read as follows: subject to Executive Order 13045 the U.S. House of Representatives, and ‘‘Protection of Children from the Comptroller General of the United Authority: 42 U.S.C. 7401et seq. Environmental Health Risks and Safety States prior to publication of the rule in Subpart I—Delaware Risks’’ (62 FR 19885, April 23, 1997), the Federal Register. This rule is not a because it is not economically ‘‘major rule’’ as defined by 5 U.S.C. 804(2). ■ 2. In Section 52.420, the table in significant. paragraph (c) is amended: In reviewing SIP submissions, EPA’s C. Petitions for Judicial Review ■ a. Under Regulation 26 by revising the role is to approve state choices, Under section 307(b)(1) of the Clean entries for Section 1, Section 2, Section provided that they meet the criteria of Air Act, petitions for judicial review of 4, Section 6, Section 9, and Technical the Clean Air Act. In this context, in the this action must be filed in the United Memorandum #1. absence of a prior existing requirement States Court of Appeals for the ■ b. Under Regulation 31 by revising the for the State to use voluntary consensus appropriate circuit by January 26, 2004. entries for Section 1, Section 2, Section standards (VCS), EPA has no authority Filing a petition for reconsideration by 3, Section 5, Section 6, Section 7, Section to disapprove a SIP submission for the Administrator of this final rule does 8, Section 9, Section 13, Appendix 5(f), failure to use VCS. It would thus be not affect the finality of this rule for the Appendix 6(a), Appendix 6(a)(8), and inconsistent with applicable law for purposes of judicial review nor does it Appendix 9(a); and by adding an entry EPA, when it reviews a SIP submission, extend the time within which a petition for Appendix 6(a)(9) after the existing to use VCS in place of a SIP submission for judicial review may be filed, and entry for Appendix 6(a)(8). that otherwise satisfies the provisions of shall not postpone the effectiveness of The revisions and additions read as the Clean Air Act. Thus, the such rule or action. This action follows: requirements of section 12(d) of the approving revisions to Delaware National Technology Transfer and Regulations 26 and 31 pertaining to § 52.420 Identification of plan. Advancement Act of 1995 (15 U.S.C. vehicle inspection and maintenance * * * * * 272 note) do not apply. This rule does programs may not be challenged later in (c) EPA approved regulations.

EPA-APPROVED REGULATIONS IN THE DELAWARE SIP

State State Citation Title/Subject effective EPA approval date Additional explanation date

*******

Regulation 26 Motor Vehicle Emissions Inspection Program

Section 1 ...... Applicability and General Provisions ...... 2/12/01 [11/26/03, Federal Register page citation] Section 2 ...... Definitions ...... 2/12/01 [11/26/03, Federal Register page citation]

******* Section 4 ...... Exemptions ...... 2/12/01 [11/26/03, Federal Register page citation]

******* Section 6 ...... Compliance, Waivers and Extensions of Time ...... 2/12/01 [11/26/03, Federal Register page citation]

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EPA-APPROVED REGULATIONS IN THE DELAWARE SIP—Continued

State State Citation Title/Subject effective EPA approval date Additional explanation date

******* Section 9 ...... Calibration and Test Procedures and Approved Equipment 2/12/01 [11/26/03, Federal Register page citation] Technical Delaware Division of Motor Vehicles Vehicle Exhaust Emis- 2/12/01 [11/26/03, Federal Formally referred to Memoranum #1. sions Test. Register page cita- as Technical tion] Memorandum 1: Motor Vehicle In- spection and Main- tenance Program Vehicle Test Procecure and Ma- chine Calibration

*******

Regulation 31 Low Enhanced Inspection and Maintenance Program

Section 1 ...... Applicability ...... 10/11/01 [11/26/03, Federal Register page citation] Section 2 ...... Low Enhanced I/M Performance Standard ...... 10/11/01 [11/26/03, Federal Register page citation] Section 3 ...... Network Type and Program Evaluation ...... 10/11/01 [11/26/03, Federal Register page citation]

******* Section 5 ...... Vehicle Coverage ...... 10/11/01 [11/26/03, Federal Register page citation] Section 6 ...... Test Procedures and Standards ...... 10/11/01 [11/26/03, Federal Register page citation] Section 7 ...... Waivers and Compliance Via Diagnostic Inspection ...... 10/11/01 [11/26/03, Federal Register page citation] Section 8 ...... Motorist Compliance Enforcement ...... 10/11/01 [11/26/03, Federal Register page citation] Section 9 ...... Enforcement Against Operators and Motor Vehicle Techni- 10/11/01 [11/26/03, Federal cians. Register page citation]

******* Section 13 ...... Implementation Deadlines ...... 10/11/01 [11/26/03, Federal Register page citation]

******* Appendix 5(f) ...... New Model Year Clean Screen ...... [11/26/03, Federal Register page citation] Appendix 6(a) ...... Idle Test Procedure ...... 10/11/01 [11/26/03, Federal Register page citation]

******* Appendix 6(a)(8) .. Evaporative System Integrity (pressure) Test ...... 10/11/01 [11/26/03, Federal Register page citation] Appendix 6(a)(9) .. On-board Diagnostic Test Procedure ...... 10/11/01 [11/26/03, Federal Register page citation]

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EPA-APPROVED REGULATIONS IN THE DELAWARE SIP—Continued

State State Citation Title/Subject effective EPA approval date Additional explanation date

******* Appendix 9(a) ...... Enforcement Against Operators and Inspectors ...... 10/11/01 [11/26/03, Federal Register page citation]

*******

* * * * * Copies of documents relative to this What Is the Federal Approval Process [FR Doc. 03–29427 Filed 11–25–03; 8:45 am] action are available for public for a SIP? BILLING CODE 6560–50–P inspection during normal business In order for state regulations to be hours at the EPA Region 7 location incorporated into the Federally- listed in the previous paragraph. The enforceable SIP, states must formally ENVIRONMENTAL PROTECTION interested persons wanting to examine adopt the regulations and control AGENCY these documents should make an strategies consistent with state and appointment with the office at least 24 40 CFR Part 52 Federal requirements. This process hours in advance. generally includes a public notice, [MO 198–1198a; FRL–7591–4] FOR FURTHER INFORMATION CONTACT: public hearing, public comment period, Heather Hamilton at (913) 551–7039, or and a formal adoption by a state- Approval and Promulgation of State by E-mail at [email protected]. authorized rulemaking body. Implementation Plans; State of Once a state rule, regulation, or Missouri SUPPLEMENTARY INFORMATION: Throughout this document whenever control strategy is adopted, the state submits it to us for inclusion into the AGENCY: Environmental Protection ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean Agency (EPA). EPA. This section provides additional SIP. We must provide public notice and seek additional public comment ACTION: Direct final rule. information by addressing the following questions: regarding the proposed Federal action on the state submission. If adverse SUMMARY: This action approves What is a SIP? revisions in the Missouri state rules comments are received, they must be What is the Federal approval process for a addressed prior to any final Federal with regard to conformity requirements SIP? in Kansas City and St. Louis. These What does Federal approval of a state action by us. changes are made to incorporate regulation mean to me? All state regulations and supporting amendments in the Federal What is being addressed in this action? information approved by EPA under transportation conformity rule effective Have the requirements for approval of a SIP section 110 of the CAA are incorporated on August 6, 2002. Approval of these revision been met? into the Federally-approved SIP. revised rules will ensure consistency What action is EPA taking? Records of such SIP actions are between the state and Federally- maintained in the Code of Federal What Is a SIP? approved rules. Regulations (CFR) at title 40, part 52, entitled ‘‘Approval and Promulgation of DATES: Section 110 of the Clean Air Act This direct final rule will be Implementation Plans.’’ The actual state effective January 26, 2004, unless EPA (CAA) requires states to develop air pollution regulations and control regulations which are approved are not receives adverse comments by reproduced in their entirety in the CFR December 26, 2003. If adverse strategies to ensure that state air quality meets the national ambient air quality outright but are ‘‘incorporated by comments are received, EPA will reference,’’ which means that we have publish a timely withdrawal of the standards established by EPA. These ambient standards are established under approved a given state regulation with direct final rule in the Federal Register a specific effective date. informing the public that the rule will section 109 of the CAA, and they not take effect. currently address six criteria pollutants. What Does Federal Approval of a State ADDRESSES: Comments may be These pollutants are: Carbon monoxide, Regulation Mean to Me? nitrogen dioxide, ozone, lead, submitted either by mail or Enforcement of the state regulation particulate matter, and sulfur dioxide. electronically. Written comments before and after it is incorporated into should be submitted to Heather Each state must submit these the Federally-approved SIP is primarily Hamilton, Air Planning and regulations and control strategies to us a state responsibility. However, after the Development Branch, 901 North 5th for approval and incorporation into the regulation is Federally approved, we are Street, Kansas City, Kansas 66101. Federally-enforceable SIP. authorized to take enforcement action Electronic comments should be sent Each Federally-approved SIP protects against violators. Citizens are also either to [email protected], or air quality primarily by addressing air offered legal recourse to address to http://www.regulations.gov, which is pollution at its point of origin. These violations as described in section 304 of an alternative method for submitting SIPs can be extensive, containing state the CAA. electronic comments to EPA. To submit regulations or other enforceable comments, please follow the detailed documents and supporting information What Is Being Addressed in This instructions described in ‘‘What action such as emission inventories, Action? is EPA taking’’ in the SUPPLEMENTARY monitoring networks, and modeling The Missouri Department of Natural INFORMATION section. demonstrations. Resources (MDNR) has requested that

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EPA approve changes to the identified as the submitter of the impact on a substantial number of small transportation conformity rules; 10 CSR comment and allows EPA to contact you entities under the Regulatory Flexibility 10–2.390 for the Kansas City area, and in case EPA cannot read your comment Act (5 U.S.C. 601 et seq.). Because this 10 CSR 10–5.480 for the St. Louis area. due to technical difficulties or needs rule approves pre-existing requirements The changes were adopted by the further information on the substance of under state law and does not impose Missouri Air Conservation Commission your comment. EPA’s policy is that EPA any additional enforceable duty beyond on May 29, 2003, and became effective will not edit your comment, and any that required by state law, it does not on September 30, 2003. identifying or contact information contain any unfunded mandate or This revision will accomplish the provided in the body of a comment will significantly or uniquely affect small implementation of the one-year grace be included as part of the comment that governments, as described in the period before conformity is required in is placed in the official public docket. Unfunded Mandates Reform Act of 1995 areas that are designated non-attainment If EPA cannot read your comment due (Public Law 104–4). for a given air quality standard for the to technical difficulties and cannot This rule also does not have tribal first time and will require that contact you for clarification, EPA may implications because it will not have a conformity be determined within 18 not be able to consider your comment. substantial direct effect on one or more months of EPA’s affirmative finding that a. Electronic mail. Comments may be Indian tribes, on the relationship the SIP’s motor vehicle emissions sent by e-mail to Heather Hamilton at between the Federal Government and budgets are adequate. The revision is [email protected]. Please Indian tribes, or on the distribution of consistent with the EPA regulation include identification number, MO 198– power and responsibilities between the promulgated on August 6, 2002 (67 FR 1198, in the subject line. EPA’s e-mail Federal Government and Indian tribes, 50808). system is not an ‘‘anonymous access’’ as specified by Executive Order 13175 system. If you send an e-mail comment (65 FR 67249, November 9, 2000). This Have the Requirements for Approval of directly without going through action also does not have Federalism a SIP Revision Been Met? Regulations.gov, EPA’s e-mail system implications because it does not have The state submittal has met the public automatically captures your e-mail substantial direct effects on the States, notice requirements for SIP submissions address. E-mail addresses that are on the relationship between the national in accordance with 40 CFR 51.102. The automatically captured by EPA’s e-mail government and the States, or on the submittal also satisfied the system are included as part of the distribution of power and completeness criteria of 40 CFR part 51, comment that is placed in the official responsibilities among the various appendix V. In addition, as explained public docket. levels of government, as specified in above and in more detail in the b. Regulations.gov. Your use of Executive Order 13132 (64 FR 43255, technical support document which is Regulations.gov is an alternative method August 10, 1999). This action merely part of this document, the revision of submitting electronic comments to approves a state rule implementing a meets the substantive SIP requirements EPA. Go directly to http:// Federal standard, and does not alter the of the CAA, including section 110 and www.regulations.gov, click on ‘‘To relationship or the distribution of power implementing regulations. Search for Regulations,’’ then select and responsibilities established in the Environmental Protection Agency and CAA. This rule also is not subject to What Action Is EPA Taking? use the ‘‘go’’ button. The list of current Executive Order 13045, ‘‘Protection of We are taking direct final action to EPA actions available for comment will Children from Environmental Health approve this revision. The revisions be listed. Please follow the online Risks and Safety Risks’’ (62 FR 19885, make changes to the existing rules instructions for submitting comments. April 23, 1997), because it is not which are noncontroversial. Therefore, The system is an ‘‘anonymous access’’ economically significant. we do not anticipate any adverse system, which means EPA will not In reviewing SIP submissions, EPA’s comments. Please note that if EPA know your identity, e-mail address, or role is to approve state choices, receives adverse comment on part of other contact information unless you provided that they meet the criteria of this rule and if that part can be severed provide it in the body of your comment. the CAA. In this context, in the absence from the remainder of the rule, EPA may 2. By Mail. Written comments should of a prior existing requirement for the adopt as final those parts of the rule that be sent to the name and address listed State to use voluntary consensus are not the subject of an adverse in the ADDRESSES section of this standards (VCS), EPA has no authority comment. document. to disapprove a SIP submission for You may submit comments either failure to use VCS. It would thus be Statutory and Executive Order Reviews electronically or by mail. To ensure inconsistent with applicable law for proper receipt by EPA, identify the Under Executive Order 12866 (58 FR EPA, when it reviews a SIP submission, appropriate rulemaking identification 51735, October 4, 1993), this action is to use VCS in place of a SIP submission number, MO 198–1198, in the subject not a ‘‘significant regulatory action’’ and that otherwise satisfies the provisions of line on the first page of your comment. therefore is not subject to review by the the CAA. Thus, the requirements of Please ensure that your comments are Office of Management and Budget. For section 12(d) of the National submitted within the specified time this reason, this action is also not Technology Transfer and Advancement period. Comments received after the subject to Executive Order 13211, Act of 1995 (15 U.S.C. 272 note) do not close of the comment period will be ‘‘Actions Concerning Regulations That apply. This rule does not impose an marked ‘‘late.’’ EPA is not required to Significantly Affect Energy Supply, information collection burden under the consider these late comments. Distribution, or Use’’ (66 FR 28355, May provisions of the Paperwork Reduction 1. Electronically. If you submit an 22, 2001). This action merely approves Act of 1995 (44 U.S.C. 3501 et seq.). electronic comment as prescribed state law as meeting Federal The Congressional Review Act, 5 below, EPA recommends that you requirements and imposes no additional U.S.C. 801 et seq., as added by the Small include your name, mailing address, requirements beyond those imposed by Business Regulatory Enforcement and an e-mail address or other contact state law. Accordingly, the Fairness Act of 1996, generally provides information in the body of your Administrator certifies that this rule that before a rule may take effect, the comment. This ensures that you can be will not have a significant economic agency promulgating the rule must

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submit a rule report, which includes a extend the time within which a petition PART 52—[AMENDED] copy of the rule, to each House of the for judicial review may be filed, and Congress and to the Comptroller General shall not postpone the effectiveness of ■ 1. The authority citation for part 52 of the United States. EPA will submit a such rule or action. This action may not continues to read as follows: be challenged later in proceedings to report containing this rule and other Authority: 42 U.S.C. 7401 et seq. required information to the U.S. Senate, enforce its requirements. (See section the U.S. House of Representatives, and 307(b)(2).) Subpart AA—Missouri the Comptroller General of the United List of Subjects in 40 CFR Part 52 States prior to publication of the rule in Environmental protection, Air ■ 2. In § 52.1320 the table in paragraph the Federal Register. A major rule (c) is amended by: cannot take effect until 60 days after it pollution control, Carbon monoxide, is published in the Federal Register. Incorporation by reference, ■ a. Revising the entry for 10–2.390 This action is not a ‘‘major rule’’ as Intergovernmental relations, Lead, under Chapter 2. defined by 5 U.S.C. 804(2). Nitrogen dioxide, Ozone, Particulate ■ b. Revising the entry for 10–5.480 matter, Reporting and recordkeeping under Chapter 5. Under section 307(b)(1) of the CAA, requirements, Sulfur oxides, Volatile petitions for judicial review of this organic compounds. The revisions read as follows: action must be filed in the United States Court of Appeals for the appropriate Dated: November 13, 2003. § 52.1320 Identification of plan. circuit by January 26, 2004. Filing a James B. Gulliford, * * * * * Regional Administrator, Region 7. petition for reconsideration by the (c) * * * Administrator of this final rule does not ■ Chapter I, title 40 of the Code of affect the finality of this rule for the Federal Regulations is amended as purposes of judicial review nor does it follows:

EPA-APPROVED MISSOURI REGULATIONS

State ef- Missouri citation Title fective EPA ap- Explanation date proval date

Missouri Department of Natural Resources Chapter 2—Air Quality Standards and Air Pollution Control Regulations for the Kansas City Metropolitan Area

*******

10–2.390 ...... Conformity to State Implementation Plans of Transportation 9/30/03 [11/26/03, Plans, Programs, and Projects Developed, Funded or Ap- and FR proved Under Title 23 U.S.C. of the Federal Transit Act. page citation]

*******

Chapter 5—Air Quality Standards and Air Pollution Control Regulations for the St. Louis Metropolitan Area

*******

10–5.480 ...... Conformity to State Implementation Plans of Transportation 9/30/03 [11/26/03, Plans, Programs, and Projects Developed, Funded or Ap- and FR proved Under Title 23 U.S.C. of the Federal Transit Act. page citation]

*******

* * * * * ENVIRONMENTAL PROTECTION ACTION: Partial removal of direct final [FR Doc. 03–29425 Filed 11–25–03; 8:45 am] AGENCY rule. BILLING CODE 6560–50–P 40 CFR Part 52 SUMMARY: Due to comments received, EPA is publishing a partial removal of [NC–106–20336(w); FRL–7588–6] the direct final approval of revisions to the North Carolina State Approval and Promulgation of Implementation Plan (SIP) that was Implementation Plans for North Carolina: Partial Removal of Direct published on September 17, 2003 (68 FR Final Rule 54362 ). EPA stated in the direct final rule that if EPA received comments by AGENCY: Environmental Protection October 17, 2003, the rule would be Agency (EPA). withdrawn and not take effect, or if

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comments were received on an these rules into the SIP, and providing requirements, Volatile organic amendment, paragraph, or section of a 30-day public comment period and compounds. this rule we may adopt as final those explained that if we received comments, Dated: November 10, 2003. we would withdraw the relevant direct provisions of the rules that are not the A. Stanley Meiburg, subject of comments. final action. Acting Regional Administrator, Region 4. DATES: This rule is effective November We received comments, and are 26, 2003. therefore removing the direct final ■ Chapter I, title 40, Code of Federal approval of North Carolina’s rule FOR FURTHER INFORMATION CONTACT: Regulations, is amended as follows: 2D.0952 ‘‘Petition for Alternative ´ Rosymar De La Torre Colon, Air Controls For RACT’’ and 2D.0959 PART 52—[AMENDED] Planning Branch, U.S. Environmental ‘‘Petition for Superior Alternative Protection Agency Region 4, 61 Forsyth Controls’’. We are not opening an ■ 1. The authority citation for part 52 Street, SW., Atlanta, Georgia 30303– additional comment period. At a later continues to read as follows: 8960. Phone number: 404/562–8965; E- date, we intend to respond to comments Authority: 42 U.S.C. 7401 et seq. mail: [email protected]. and finalize action on this rule based on SUPPLEMENTARY INFORMATION: On the September 17, 2003 proposal. The Subpart II—North Carolina September 17, 2003 (68 FR 54406), EPA other rules listed above are not affected proposed to approve the following rules by this withdrawal and are incorporated ■ 2. In § 52.1770(c), table 1 is amended into the North Carolina State into the SIP as of November 17, 2003. under subchapter 2D by revising entries Implementation Plan: Sections 2D.0105, for: ‘‘.0952’’ and ‘‘.0959’’ to read as 2D.0507, 2D.0509, 2D.0515, 2D.0516, List of Subjects in 40 CFR Part 52 follows: 2D.0521, 2D.0912, 2D.0927, 2D.0932, Environmental protection, Air 2D.0952, 2D.0954 and 2D.0959. On the pollution control, Intergovernmental § 52.1770 Identification of plan. same day (68 FR 54362), EPA also relations, Ozone, Particulate matter, * * * * * published a direct final rule approving Reporting and recordkeeping (c) * * *

EPA APPROVED NORTH CAROLINA REGULATIONS

State EPA ap- State Citation Title/subject effective date proval date Explanation

Subchapter 2D—Air Pollution Control Requirements

Section .0900—Volatile Organic Compounds

******* Section .0952 ...... Petition for Alternative Controls ...... 05/01/95 ...... 02/01/96 ...... 62 FR 3589.

******* Section .0959 ...... reserved.

*******

* * * * * reallotted Channel 222A from Pelham, 12th Street, SW., Room CY–B402, [FR Doc. 03–29429 Filed 11–25–03; 8:45 am] Georgia, to Meigs, Georgia, modifying Washington, DC 20554, telephone 202– BILLING CODE 6560–50–P the license for Station WQLI, in 863–2893, facsimile 202–863–2898, or response to a petition filed by Mitchell via e-mail [email protected]. County Television. With this action, this Federal Communications Commission. FEDERAL COMMUNICATIONS proceeding is terminated. John A. Karousos, COMMISSION FOR FURTHER INFORMATION CONTACT: Kathleen Scheuerle, Media Bureau, Assistant Chief, Audio Division, Media 47 CFR Part 73 (202) 418–2180. Bureau. [FR Doc. 03–29519 Filed 11–25–03; 8:45 am] [DA 03–3556; MB Docket No.03–58; RM– SUPPLEMENTARY INFORMATION: This is a 10608] summary of the Commission’s BILLING CODE 6712–01–P Memorandum Opinion and Order, MB Radio Broadcasting Services; Meigs Docket No. 03–58, adopted November and Pelham, GA 12, 2003, and released November 14, AGENCY: Federal Communications 2003. The full text of this Commission Commission. decision is available for inspection and ACTION: Final rule; denial. copying during regular business hours in the FCC’s Reference Information SUMMARY: This document denies a Center, Portals II, 445 12th Street, SW., Petition for Reconsideration filed by Room CY–A257, Washington, DC 20554. Mitchell County Television of action in The complete text of this decision may the Report and Order in MB Docket 03– also be purchased from the 58. See 68 FR 40186, July 7, 2003. The Commission’s duplicating contractor, Report and Order in this proceeding Qualex International, Portals II, 445

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DEPARTMENT OF COMMERCE (Northwest Region, NMFS), phone: 206– 43473 (July 23, 2003), at 68 FR 52703 526–6140; fax: 206–526–6736; and e- (September 5, 2003), and at 68 FR 60865 National Oceanic and Atmospheric mail: [email protected] or (October 24, 2003). Administration [email protected]. The following changes to current groundfish management measures were SUPPLEMENTARY INFORMATION 50 CFR Part 660 recommended by the Pacific Council, in [Docket No. 021209300–3048–02; I.D. Electronic Access consultation with Pacific Coast Treaty 111903C] This Federal Register document is Tribes and the States of Washington, Oregon, and California, at its November available on the Government Printing 3–7, 2003, meeting in Del Mar, CA. Fisheries off West Coast States and in Office’s Web site at: http:// the Western Pacific; Pacific Coast _ At the Pacific Council’s November 3– www.access.gpo.gov/su docs/ca/docs/ 7, 2003, meeting, the most recent Groundfish Fishery; Annual aces/aces140.html. Background Specifications and Management commercial and recreational catch data information and documents are were reviewed by the Pacific Council’s Measures; Trip Limit Adjustments; available at the NMFS Northwest Region Corrections Groundfish Management Team (GMT) Web site at: http://www.nwr.noaa.gov/ in preparation for recommending AGENCY: National Marine Fisheries 1sustfsh/gdfsh01.htm and at the Pacific inseason adjustments to the Pacific Service (NMFS), National Oceanic and Fishery Management Council’s Web site Council. These data included: Atmospheric Administration (NOAA), at: http://www.pcouncil.org. Commercial landed catch data through Commerce. Background the middle of October available in the ACTION: Inseason adjustments to trip Pacific Fishery Information Network limits and rockfish conservation areas; The Pacific Coast Groundfish FMP (PacFIN); estimated discard in the partial closures of recreational fisheries; and its implementing regulations at 50 commercial groundfish fisheries; corrections; request for comments. CFR part 660, subpart G, regulate fishing recreational catch estimates through the for over 80 species of groundfish off the end of August available in the SUMMARY: NMFS announces changes to coasts of Washington, Oregon, and Recreational Fishery Information commercial fisheries trip limits and California. Annual groundfish Network (RecFIN); as well as estimated rockfish conservation areas (RCAs), as specifications and management recreational catch through the end of well as recreational fisheries closures measures are initially developed by the October and projected recreational catch and prohibitions for the Pacific Coast Pacific Fishery Management Council through the end of the year compiled by groundfish fishery. Trip limit (Pacific Council), and are implemented state agency personnel and GMT adjustments include changes to the by NMFS. The groundfish specifications members. When the GMT reviewed limited entry trawl Dover sole, include acceptable biological catches these data, it became apparent that the thornyhead, and sablefish (DTS) limits (ABCs) and optimum yields (OYs) for RecFIN catch estimates for California, north of 40°10′ N. lat. This action also groundfish species and species groups. specifically nearshore rockfish, canary expands the commercial trawl and non- The OYs are the annual harvest targets rockfish, and lingcod, during the trawl RCAs as well as the areas closed and management measures are months of July and August were to recreational fishing to provide more implemented at the start of the season, significantly higher than the GMT had protection for overfished continental and adjusted inseason, to allow the initially predicted for those months. shelf species, particularly canary fishery to achieve, but not exceed, the RecFIN catch estimates for the State of rockfish and lingcod. These changes OYs for groundfish. The ABCs are the California during July and August are as will be effective for the trawl ‘‘A’’ maximum total mortality levels for follows: shallow nearshore rockfish 88.2 platoon, as well as the trawl ‘‘B’’ species or species groups under mt (88,200 kg), deeper nearshore platoon, on November 21, 2003. These sustainable management. Should catch rockfish 748 mt (748,000 kg), lingcod actions, which are authorized by the levels approach the ABC, total mortality 509 mt (509,000 kg), and canary rockfish Pacific Coast Groundfish Fishery of that species or species group will be 14 mt (14,000 kg). Management Plan (FMP), will allow minimized in order to prevent While catch rate and the weight of fisheries access to more abundant exceeding the ABC and overfishing that individual fish were above average groundfish stocks while protecting species or species group. The during this period, the principle factor overfished and depleted stocks. specifications and management contributing to the significantly higher DATES: Changes to management measures for the 2003 fishing year than predicted RecFIN catch estimates measures are effective November 21, (January 1–December 31, 2003) were is the exceptionally high estimates of 2003, until the 2004 annual initially published in the Federal effort (angler days) for the private and specifications and management Register as an emergency rule for rental boat participants in northern measures are effective, unless modified, January 1–February 28, 2003 (68 FR 908, California (north of 34°27′ N. lat.). This superseded, or rescinded through a January 7, 2003) and as a proposed rule higher than expected influx of effort is publication in the Federal Register. for March 1–December 31, 2003 (68 FR estimated to have occurred during the Comments on this rule will be accepted 936, January 7, 2003). The emergency first two months (July and August) of through December 26, 2003. rule was amended at 68 FR 4719, the fishery. It may be due, in part, to a ADDRESSES: Submit comments to D. January 30, 2003, and the final rule for NMFS and State of California Robert Lohn, Administrator, Northwest March 1–December 31, 2003 was prohibition on fishing between 40°10′ Region, NMFS, 7600 Sand Point Way published in the Federal Register on N. lat. and the U.S./Mexico border for NE, Seattle, WA 98115–0070; or Rod March 7, 2003 (68 FR 11182). The final the first six months of 2003. McInnis, Acting Administrator, rule has been subsequently amended at Combining RecFin catch estimates Southwest Region, NMFS, 501 West 68 FR 18166 (April 15, 2003), at 68 FR from California with catch estimates Ocean Blvd, Suite 4200, Long Beach, CA 23901 (May 6, 2003), at 68 FR 23924 from other recreational and commercial 90802–4213. (May 6, 2003), at 68 FR 32680 (June 2, fisheries coastwide produces total FOR FURTHER INFORMATION CONTACT: 2003), at 68 FR 35575 (June 16, 2003), mortality estimates that exceed harvest Carrie Nordeen or Jamie Goen at 68 FR 40187 (July 7, 2003), at 68 FR targets for groundfish species and/or

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species groups. Specifically, the total the harvest of canary rockfish and found at depths shallower than 150-fm mortality estimate for canary rockfish, lingcod within levels that allow (274-m), allowing the petrale sole an overfished species, through October continued rebuilding, as well as fishery to continue as previously is 52 mt (52,000 kg), as compared to its minimizing the mortality of California scheduled is not predicted to result in 2003 OY of 44 mt (44,000 kg) and ABC nearshore rockfish species, the Pacific additional mortality of canary rockfish. of 272 mt (272,000 kg); and the total Council was faced with the need to Using NMFS West Coast Groundfish mortality estimate for lingcod, another recommend drastic inseason Observer data, the effects of allowing overfished species, through October is adjustments. In an effort to continue the slope/petrale sole fishery to 956.4 mt (956,400 kg), as compared to sustainable groundfish management continue as previously scheduled is its 2003 OY of 651 mt (651,000 kg) and while recognizing the economic predicted to result in about 1 mt (1,000 ABC of 841 mt (841,000 kg). importance of allowing fishery access to kg) of additional lingcod take by the end Additionally, the California state more abundant groundfish stocks, the of 2003. harvest guidelines for shallow nearshore Pacific Council recommended a series of In the inseason adjustment to Pacific rockfish (105 mt (105,000 kg)) and inseason adjustments to groundfish Coast annual specifications and deeper nearshore rockfish (54 mt management measures that would management measures for October— (54,000 kg)) are also predicted to be provide some fishery opportunities with December (68 FR 60865, October 24, exceeded by the end of October. minimal mortality of canary rockfish 2003), NMFS announced a western Because of the magnitude of RecFIN and lingcod. trawl RCA boundary with specific catch estimates for the California latitude and longitude coordinates recreational groundfish fisheries during Trawl Rockfish Conservation Area approximating the 200-fm (366-m) July and August and its implications for (RCA) Coastwide depth contour which was modified to other Pacific Coast groundfish fisheries In order to provide some year-end allow for petrale sole fishing. That for the remainder of the year, the fishing opportunity for the trawl fleet boundary contained several errors, California Department of Fish and Game while protecting canary rockfish and specifically it omitted boundary (CDFG) staff thought these catch lingcod, the trawl RCA (the area closed modifications to allow for fishing in the estimates warranted evaluation. to fishing for groundfish with trawl petrale sole areas off the states of Therefore, CDFG staff explored these gear) is expanded in size for the Oregon and California. Therefore, this data by stratifying RecFIN catch remainder of the year to extend from the inseason action corrects that 200-fm estimates by area (Area One is between shoreline to specific latitude and (366-m) trawl RCA boundary by 42°00′ N. lat. (Oregon/California border) longitude coordinates that approximate modifying it to allow for petrale fishing and 40°10′ N. lat. and Area Two is the 200-fm (366-m) depth contour and in areas where petrale sole aggregate. between 40°10′ N. lat. and the 34°27′ N. are modified to allow fishing for petrale Non-Trawl Rockfish Conservation Area lat.) as well as applying a historical sole. This increase in the size of the (RCA) Coastwide effort estimate to replace the trawl RCA results in a change from the exceptionally high RecFIN effort previously scheduled eastern trawl RCA In 2003, the Pacific Coast non-trawl estimate for July and August 2003. The boundary. That previously scheduled fleet has been severely constrained by historical estimate used was the next eastern trawl RCA boundary consisted low trip limits as well as limited highest effort estimate from the July and of specific latitude and longitude nearshore fishing opportunities. August period which occurred during coordinates approximating the 50-fm Throughout the year, the non-trawl RCA 1985. When RecFIN catch estimates (91-m) depth contour between the U.S./ (the area closed to fishing for groundfish were stratified by applying the effort Canada border and 40°10′ N. lat., with non-trawl gear) has extended from and catch per unit effort (CPUE) for the coordinates approximating the 60-fm an eastern boundary ranging between two areas, the total mortality estimates (110-m) depth contour between 40°10′ the shoreline and specific latitude and for canary rockfish (48.3 mt (48,300 kg)) N. lat. and 34°27′ N. lat., and longitude coordinates approximating and lingcod (928.2 mt (928,200 kg)) coordinates approximating the 100-fm the 30-fm (55-m) depth contour out to were slightly lower than those estimated (183-m) depth contour between 34°27′ a western boundary ranging between by unadjusted RecFIN data. When the N. lat. and the U.S./Mexico border. specific latitude and longitude unusually high RecFIN effort estimate Expanding this closed area is intended coordinates approximating the 100-fm for July and August was treated as an to protect canary rockfish and lingcod (183-m) and 150-fm (274-m) depth anomaly and replaced with the by prohibiting trawling over the contours. These management measures historical estimate described above, the continental shelf, where canary rockfish were designed to limit the incidental estimated total mortality for canary and lingcod are found. take of overfished groundfish species. rockfish was similar to the stratified Year-end fishery access to deepwater, Much like inseason adjustments to the estimate (47.8 mt (47,800 kg)). However, slope species, specifically petrale sole, trawl RCA, the non-trawl RCA is this technique of adjusting the RecFIN is economically important to the limited similarly expanded to prevent further effort estimate reduced the total entry trawl groundfish fleet. According mortality of canary rockfish, lingcod, mortality estimate for lingcod to 821.2 to PacFIN, the coastwide exvessel price and California’s nearshore rockfish mt (821,200 kg), a harvest level that still for petrale sole is currently averaging species. In an effort to protect these exceeds the lingcod OY but is about 20 about one dollar per pound and last species while still allowing access to mt (20,000 kg) below the lingcod ABC. year’s exvessel revenue generated by more abundant deepwater groundfish The Pacific Council reviewed RecFIN petrale sole landed with trawl gear was stocks, the non-trawl RCA is expanded catch estimates, data presented by over three and a half million dollars. for the remainder of the year to extend CDFG, statements on inseason During winter months (November— from the shoreline to specific latitude adjustments prepared by the GMT and February), petrale sole aggregate in and longitude coordinates that Groundfish Advisory Panel (GAP), as certain areas along the coast to spawn. approximate the 200-fm (366-m) depth well as public testimony before Within these ‘‘petrale sole areas’’, contour, modified to allow fishing for recommending inseason adjustments to petrale sole can be harvested with a petrale sole, between the U.S./Canada groundfish management measures for lower bycatch rate than in other areas. border and 46°16′ N. lat. and from the the remainder of 2003. In order to keep Because canary rockfish are typically shoreline to specific latitude and

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longitude coordinates that approximate use small footrope gear. Because RCA from July through December. Despite the 150-fm (274-m) depth contour regulations specify that small footrope this restricted season length, RecFIN between 46°16′ N. lat. and the U.S./ and midwater trawl gear are the only catch estimates for California, Mexico border. This increase in the size limited entry trawl gears permitted specifically nearshore rockfish, canary of the non-trawl RCA results in a change shoreward of the trawl RCA while all rockfish, and lingcod, during the from the previously scheduled non- limited entry trawl gears (large and months of July and August were trawl RCA. The previously scheduled small footrope, midwater) are permitted significantly higher than predicted. As non-trawl RCA boundary extended from seaward of the RCA, the intent of the discussed previously, combining the shoreline to specific latitude and differential trip limits is to encourage RecFIN catch estimates from California fishing seaward of the trawl RCA rather longitude coordinates approximating with catch estimates from other the 100-fm (183-m) depth contour than shoreward of the trawl RCA. recreational and commercial fisheries between the U.S./Canada border and As discussed earlier, this inseason 46°16′ N. lat., from specific latitude and action is expanding the eastern coastwide produces total mortality longitude coordinates approximating boundary of the trawl RCA to the estimates which exceed harvest targets the 27-fm (49-m) to the 100-fm (183-m) shoreline. Thus, there is no trawling for some groundfish species and/or depth contours between the 46°16′ N. opportunity shoreward of the trawl RCA species groups. Therefore, the Pacific lat. and 40°10′ N. lat., from specific from November 21, 2003, through Council recommended inseason latitude and longitude coordinates December 31, 2003, and no need for adjustments to recreational groundfish approximating the 20-fm (37-m) to the differential trip limits. Therefore, the fisheries coastwide. From November 21, 150-fm (274-m) depth contours between Pacific Council recommended that the 2003, through December 31, 2003, 40°10′ N. lat. and 34°27′ N. lat., and differential DTS trip limits between the recreational groundfish fisheries off the from the 30-fm (55-m) to the 150-fm U.S./Canada border and 40°10′ N. lat. be State of Washington will be prohibited (274-m) depth contours between 34°27′ removed for November and December. seaward of the Federal/State three mile N. lat. and the U.S./Mexico border. The previously scheduled DTS trip boundary. Effective November 13, 2003, The GMT predicted that allowing limits associated with the use of large the state of Washington took action to fishing to continue seaward of the footrope or midwater trawl gear (i.e., prohibit the retention of canary rockfish expanded non-trawl RCA for the 7,000 lb (3,175 kg) per 2 months of shoreward of the three mile boundary. remainder of the year would result in no sablefish, 4,500 lb (2,041 kg) per 2 Because inclement weather curtails additional mortality of canary rockfish months of longspine thornyhead, 900 lb recreational groundfish fisheries off or California nearshore rockfish species (408 kg) per 2 months of shortspine Washington during winter months, the and only minimal additional mortality thornyhead, and 30,000 lb (13,608 kg) additional mortality of either canary of lingcod. No additional mortality of per 2 months of Dover sole) will be canary rockfish or the California available to vessels using all limited rockfish or lingcod associated with this nearshore rockfish species is predicted entry trawl gear types. This change is fishery occurring in State waters is because these species are typically not expected to negatively affect predicted to be near zero. Additionally, found at depths shallower than 150-fm continental shelf overfished species, recreational fishing for lingcod off (274-m). The GMT predicted that because those waters are protected by Washington closed on October 16, 2003. additional mortality of lingcod from the the trawl RCA. Additionally, because Off the State of Oregon, recreational remaining non-trawl fishery would be this change does not increase overall groundfish fisheries from November 21, minimal. According to NMFS shelf and limits for deepwater species, NMFS 2003, through December 31, 2003, will slope survey data from the summers of does not expect this action to increase be prohibited seaward of specific 1984 to the present, 1 percent of lingcod the impact of the fishery on continental latitude and longitude coordinates catches occurred at depths greater than slope overfished species. approximating the 27-fm (49-m) depth 150-fm (274-m) between the U.S./ Recreational Groundfish Fisheries contour and shoreward of the 27-fm (49- Canada border and 40°10′ N. lat. and 34 Coastwide m) depth contour retention of canary percent of lingcod catches occurred at rockfish and lingcod will be prohibited. Much like the Pacific Coast depths greater than 150-fm (274-m) Similarly to Washington, effort in ° ′ commercial fisheries, the Pacific Coast between 40 10 N. lat. and the U.S./ Oregon’s recreational groundfish Mexico border. Because this adjustment recreational fisheries have been restricted in recent years to rebuild fisheries during November and to the non-trawl RCA is occurring from December is low. Because of this low November 21, 2003, through December overfished groundfish species. effort, Oregon Department of Fish and 31, 2003 the GMT has predicted that Management measures intended to impacts on lingcod would be further reduce the incidental take of overfished Wildlife has predicted that the reduced because lingcod typically move species in recreational fisheries include additional mortality associated with this into shallower waters (less than 100-fm such things as decreased bag limits, fishery would be approximately 0.11 mt (183-m)) to spawn during winter reduced season length, and closed areas. (110 kg) of canary rockfish and 0.09 mt months. An example of these restrictive (90 kg) of lingcod. Off the state of management measures was evident this California, all recreational groundfish Limited Entry DTS Trawl Limits North year in the California recreational fisheries, with the exception of the fixed ≥ ′ of 40 10 N. lat fishery that occurs between 40°10′ N. gear sanddab fishery, will be prohibited Throughout 2003, differential trip lat. and the U.S./Mexico border. from November 21, 2003, through limits, or trip limits that vary with gear Historically, this recreational fishery has December 31, 2003. Because of the small type, have been in place for DTS (Dover had year-round fishing opportunities. In hooks used in this recreational sanddab sole, thornyheads, sablefish) species in an effort to keep this fishery’s harvest fishery, California Department of Fish the area between the U.S./Canada levels within 2003 OYs for overfished and Game has predicted that the ° ′ border and 40 10 N. lat. Specifically, species and within California harvest additional mortality of canary rockfish, vessels that use large footrope or guidelines for target species, the season lingcod, and California nearshore midwater trawl gear are offered higher length for this fishery was reduced to rockfish species would be near zero. DTS trip limits than those vessels that six months and scheduled to extend

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NMFS Actions FR 23925, May 6, 2003, at 68 FR 32680, Table 3 (South), Table 4 (North), and June 2, 2003, at 68 FR 35575, June 16, Table 4 (South) are revised to read as ■ For the reasons stated herein, NMFS 2003, at 68 FR 40187, July 7, 2003, at 68 concurs with the Pacific Council’s follows: FR 43473, July 23, 2003, at 68 FR 52703, recommendations and hereby announces IV. NMFS Actions the following changes to the 2003 September 5, 2003, and at 68 FR 60865, specifications and management October 24, 2003) to read as follows: B. Limited Entry Fishery measures (68 FR 11182, March 7, 2003, ■ 1. On pages 11218–11221, in section (1) * * * as amended at 68 FR 18166, April 15, IV., under B. Limited Entry Fishery, at 2003, at 68 FR 23901, May 6, 2003, at 68 the end of paragraph (1), Table 3 (North), BILLING CODE 3510–22–P

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* * * * * paragraph (1), Table 5 (North) and Table IV. NMFS Actions 5 (South) are revised to read as follows: ■ 2. On pages 11224 and 11225, in C. Trip Limits in the Open Access section IV., under C. Trip Limits in the Fishery Open Access Fishery, at the end of (1) * * *

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BILLING CODE 3510–22–C

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* * * * * open, the first Pacific halibut taken of 32 Recreational fishing for the RCG ■ 3. On page 11226, in section IV., under in (81 cm) or greater in length may be Complex is prohibited. D. Recreational Fishery, in column 2, retained. During the all-depth (iii) California scorpionfish. California paragraph (1)(a) is renumbered as recreational fisheries for Pacific halibut, scorpionfish only occur south of 40°10′ paragraph (1)(a)(i), a new paragraph vessels with halibut on board may not N. lat. Recreational fishing for the (1)(a) and paragraph (1)(a)(ii) are added, take and retain, possess or land California scorpionfish is prohibited. and paragraph(1)(b) is revised to read as yelloweye rockfish or canary rockfish. (iv) Lingcod. Recreational fishing for follows: * * * * * lingcod is prohibited. * * * * * ■ 5. On pages 11226 and 11227, in * * * * * (1) Washington. For each person section IV., under D. Recreational Additionally, there is a correction to engaged in recreational fishing seaward Fishery, paragraphs (3)(a), (3)(a)(i), the western trawl RCA boundary with of Washington, the groundfish bag limit (3)(a)(ii), (3)(b)(ii) through (iv) are specific latitude and longitude is 15 groundfish, including rockfish and revised to read as follows: coordinates approximating the 200-fm lingcod, and is open year-round (except (366-m) depth contour (modified to * * * * * as specified below). The following allow fishing for petrale sole) that was (3) California. Seaward of California sublimits and closed areas apply: ° ′ announced in an inseason action on (a) Closed Areas.— (north and south of 40 10 N. lat.), October 24, 2003 (68 FR 60865). (i) Yelloweye Rockfish Conservation California law provides that, in times 1. On pages 60867–60870, in section Area. The Yelloweye Rockfish and areas when the recreational fishery IV., under A. General Definitions, Conservation Area, or YRCA, is a ‘‘C- is open, there is a 20-fish bag limit for paragraph (19)(e)(xviii) is revised to shaped’’ area which is closed to all species of finfish, within which no read as follows: recreational groundfish and halibut more than 10 fish of any one species (xviii) * * * fishing. The YRCA is defined by latitude may be taken or possessed by any one * * * * * and longitude coordinates specified at person. Retention of cowcod is (72) 46°15.99′ N. lat., 124°24.88′ W. 50 CFR 660.304(d). prohibited in California’s recreational long.; (ii) Federal waters (3–200 nautical fishery all year in all areas. Retention of (73) 46°14.22′ N. lat., 124°26.28′ W. miles). Recreational groundfish fishing all federally managed groundfish long.; is prohibited in Federal waters, from 3 species, except sanddabs, is prohibited (74) 46°11.53′ N. lat., 124°39.58′ W. to 200 nautical miles offshore from in the recreational fishery seaward of long.; November 21, 2003, through December California November 21, 2003, through (75) 46°08.77′ N. lat., 124°41.71′ W. 31, 2003. December 31, 2003. long.; (b) Rockfish. In areas seaward of (a) North of 40°10′ N. lat. In times and (76) 46°05.86′ N. lat., 124°42.27′ W. Washington that are open to recreational areas when the recreational fishery is long.; groundfish fishing, there is a 10 rockfish open and for each person engaged in (77) 46°03.85′ N. lat., 124°48.20′ W. per day bag limit. Taking and retaining recreational fishing seaward of long.; yelloweye rockfish and canary rockfish California north of 40°10′ N. lat., the (78) 46°02.34′ N. lat., 124°48.51′ W. is prohibited. following seasons, bag limits, and size long.; * * * * * limits apply: (79) 45°58.99′ N. lat., 124°44.42′ W. ■ (i) RCG Complex. The California long.; 4. On page 11226, in section IV., under ° ′ ° ′ D. Recreational Fishery, in column 2, rockfish, cabezon, greenling complex (80) 45 49.74 N. lat., 124 43.69 W. (RCG Complex), as defined in State long.; paragraph (2) is revised to read as ° ′ ° ′ follows: regulations (Section 1.91, Title 14, (81) 45 49.68 N. lat., 124 42.37 W. California Code of Regulations), long.; * * * * * (82) 45°40.83′ N. lat., 124°40.90′ W. (2) Oregon. The bag limits for each includes all rockfish, kelp greenling, rock greenling, and cabezon. This long.; person engaged in recreational fishing (83) 45°34.88′ N. lat., 124°32.58′ W. seaward of Oregon is 10 marine fish per category does not include California scorpionfish, also known as ‘‘sculpin.’’ long.; day, which excludes salmon, tuna, (84) 45°13.04′ N. lat., 124°21.92′ W. surfperch, sanddab, lingcod, and Recreational fishing for the RCG Complex is prohibited. long.; baitfish, but which includes rockfish (85) 45°00.17′ N. lat., 124°29.28′ W. and other groundfish. The minimum (ii) Lingcod. Recreational fishing for lingcod is prohibited. long.; size limit for cabezon retained in the (86) 44°50.99′ N. lat., 124°35.40′ W. recreational fishery is 15 in (38 cm). * * * * * ° ′ long.; Within the 10 marine fish bag limit, no (b) South of 40 10 N. lat. In times and (87) 44°46.87′ N. lat., 124°38.20′ W. more than 1 may be yelloweye rockfish areas when the recreational fishery is long.; and taking and retaining canary rockfish open and for each person engaged in (88) 44°48.25′ N. lat., 124°40.62′ W. and lingcod is prohibited. From recreational fishing seaward of long.; ° ′ November 21, 2003, through December California south of 40 10 N. lat., the (89) 44°41.34′ N. lat., 124°49.20′ W. 31, 2003, recreational groundfish fishing following seasons, bag limits, size limits long.; is prohibited seaward of specific and closed areas apply: (90) 44°23.30′ N. lat., 124°50.17′ W. latitude and longitude coordinates (ii) RCG Complex. The California long.; approximating the 27-fm (49-m) depth rockfish, cabezon, greenling complex (91) 44°13.19′ N. lat., 124°58.66′ W. contour off Oregon. Coordinates for (RCG Complex), as defined in State long.; specific latitude and longitude regulations (Section 1.91, Title 14, (92) 43°57.37′ N. lat., 124°58.71′ W. coordinates approximating the 27-fm California Code of Regulations), long.; (49-m) depth contour are listed in includes all rockfish, kelp greenling, (93) 43°52.32′ N. lat., 124°49.43′ W. section IV.A.(19)(e)(i). When the all- rock greenling, and cabezon. This long.; depth recreational fisheries for Pacific category does not include California (94) 43°51.35′ N. lat., 124°37.94′ W. halibut (Hippoglossus stenolopis) are scorpionfish, also known as ‘‘sculpin.’’ long.;

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(95) 43°49.73′ N. lat., 124°40.26′ W. (130) 40°31.28′ N. lat., 124°40.98′ W. (165) 38°35.26′ N. lat., 123°41.99′ W. long.; long.; long.; (96) 43°39.06′ N. lat., 124°38.55′ W. (131) 40°29.68′ N. lat., 124°38.06′ W. (166) 38°33.38′ N. lat., 123°41.76′ W. long.; long.; long.; (97) 43°28.85′ N. lat., 124°39.99′ W. (132) 40°25.01′ N. lat., 124°36.36′ W. (167) 38°19.95′ N. lat., 123°32.90′ W. long.; long.; long.; (98) 43°20.22′ N. lat., 124°43.05′ W. (133) 40°22.28′ N. lat., 124°31.83′ W. (168) 38°14.38′ N. lat., 123°25.51′ W. long.; long.; long.; (99) 43°13.29′ N. lat., 124°47.00′ W. (134) 40°16.96′ N. lat., 124°31.91′ W. (169) 38°09.39′ N. lat., 123°24.39′ W. long.; long.; long.; (100) 43°10.64′ N. lat., 124°49.95′ W. (135) 40°17.59′ N. lat., 124°45.28′ W. (170) 38°10.09′ N. lat., 123°27.21′ W. long.; long.; long.; (101) 43°04.26′ N. lat., 124°53.05′ W. (136) 40°13.23′ N. lat., 124°32.40′ W. (171) 38°03.76′ N. lat., 123°31.90′ W. long.; long.; long.; (102) 42°53.93′ N. lat., 124°54.60′ W. (137) 40°10.14′ N. lat., 124°24.55′ W. (172) 38°02.06′ N. lat., 123°31.26′ W. long.; long.; long.; (103) 42°47.57′ N. lat., 124°48.12′ W. (138) 40°06.45′ N. lat., 124°19.24′ W. (173) 38°00.01′ N. lat., 123°29.56′ W. long.; long.; long.; (104) 42°46.19′ N. lat., 124°44.52′ W. (139) 40°07.08′ N. lat., 124°17.80′ W. (174) 37°58.07′ N. lat., 123°27.21′ W. long.; long.; long.; (105) 42°41.75′ N. lat., 124°44.69′ W. (140) 40°05.55′ N. lat., 124°18.11′ W. (175) 37°55.02′ N. lat., 123°27.44′ W. long.; long.; long.; (106) 42°38.81′ N. lat., 124°43.09′ W. (141) 40°04.74′ N. lat., 124°18.11′ W. (176) 37°51.39′ N. lat., 123°25.22′ W. long.; long.; long.; (107) 42°31.83′ N. lat., 124°46.23′ W. (142) 40°02.35′ N. lat., 124°16.53′ W. (177) 37°43.94′ N. lat., 123°11.49′ W. long.; long.; long.; (108) 42°32.08′ N. lat., 124°43.58′ W. (143) 40°01.13′ N. lat., 124°12.98′ W. (178) 37°35.96′ N. lat., 123°02.23′ W. long.; long.; long.; (109) 42°30.96′ N. lat., 124°43.84′ W. (144) 40°01.55′ N. lat., 124°09.80′ W. (179) 37°23.48′ N. lat., 122°57.76′ W. long.; long.; long.; (110) 42°28.41′ N. lat., 124°49.17′ W. (145) 39°58.54′ N. lat., 124°12.43′ W. (180) 37°23.23′ N. lat., 122°53.78′ W. long.; long.; long.; (111) 42°24.80′ N. lat., 124°45.93′ W. (146) 39°55.72′ N. lat., 124°07.44′ W. (181) 37°13.97′ N. lat., 122°49.91′ W. long.; long.; long.; (112) 42°19.71′ N. lat., 124°41.60′ W. (147) 39°42.64′ N. lat., 124°02.52′ W. (182) 37°09.98′ N. lat., 122°45.61′ W. long.; long.; long.; (113) 42°15.12′ N. lat., 124°38.34′ W. (148) 39°35.96′ N. lat., 123°59.47′ W. (183) 37°07.38′ N. lat., 122°46.38′ W. long.; long.; long.; (114) 42°12.35′ N. lat., 124°38.09′ W. (149) 39°34.61′ N. lat., 123°59.58′ W. (184) 37°00.64′ N. lat., 122°37.70′ W. long.; long.; long.; (115) 42°04.38′ N. lat., 124°36.83′ W. (150) 39°34.79′ N. lat., 123°58.47′ W. (185) 36°57.40′ N. lat., 122°28.36′ W. long.; long.; long.; (116) 41°59.98′ N. lat., 124°36.80′ W. (151) 39°33.79′ N. lat., 123°56.77′ W. (186) 36°59.21′ N. lat., 122°25.64′ W. long.; long.; long.; (117) 41°47.79′ N. lat., 124°29.48′ W. (152) 39°33.03′ N. lat., 123°57.06′ W. (187) 36°56.90′ N. lat., 122°25.42′ W. long.; long.; long.; (118) 41°21.01′ N. lat., 124°29.01′ W. (153) 39°32.20′ N. lat., 123°59.12′ W. (188) 36°57.43′ N. lat., 122°22.55′ W. long.; long.; long.; (119) 41°13.50′ N. lat., 124°24.40′ W. (154) 39°07.81′ N. lat., 123°59.06′ W. (189) 36°55.43′ N. lat., 122°22.43′ W. long.; long.; long.; (120) 41°11.00′ N. lat., 124°22.99′ W. (155) 39°03.06′ N. lat., 123°57.77′ W. (190) 36°52.27′ N. lat., 122°13.16′ W. long.; long.; long.; (121) 41°06.69′ N. lat., 124°23.30′ W. (156) 38°52.26′ N. lat., 123°56.18′ W. (191) 36°47.10′ N. lat., 122°07.53′ W. long.; long.; long.; (122) 40°54.73′ N. lat., 124°28.15′ W. (157) 38°50.21′ N. lat., 123°55.48′ W. (192) 36°47.10′ N. lat., 122°02.08′ W. long.; long.; long.; (123) 40°53.95′ N. lat., 124°26.04′ W. (158) 38°46.81′ N. lat., 123°51.49′ W. (193) 36°43.76′ N. lat., 121°59.15′ W. long.; long.; long.; (124) 40°49.96′ N. lat., 124°26.04′ W. (159) 38°45.28′ N. lat., 123°51.55′ W. (194) 36°38.84′ N. lat., 122°02.20′ W. long.; long.; long.; (125) 40°44.49′ N. lat., 124°30.81′ W. (160) 38°42.76′ N. lat., 123°49.73′ W. (195) 36°30.82′ N. lat., 122°01.13′ W. long.; long.; long.; (126) 40°40.58′ N. lat., 124°32.06′ W. (161) 38°41.53′ N. lat., 123°47.80′ W. (196) 36°30.94′ N. lat., 122°00.54′ W. long.; long.; long.; (127) 40°36.09′ N. lat., 124°40.11′ W. (162) 38°41.41′ N. lat., 123°46.74′ W. (197) 36°25.99′ N. lat., 121°59.50′ W. long.; long.; long.; (128) 40°34.19′ N. lat., 124°41.20′ W. (163) 38°38.01′ N. lat., 123°45.74′ W. (198) 36°22.00′ N. lat., 122°01.02′ W. long.; long.; long.; (129) 40°32.93′ N. lat., 124°41.86′ W. (164) 38°37.19′ N. lat., 123°43.98′ W. (199) 36°19.01′ N. lat., 122°05.01′ W. long.; long.; long.;

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(200) 36°14.73′ N. lat., 122°01.55′ W. (232) 33°35.51′ N. lat., 119°48.49′ W. the best available science, it is predicted long.; long.; that harvest levels in the Pacific Coast (201) 36°14.03′ N. lat., 121°58.09′ W. (233) 33°42.76′ N. lat., 119°47.77′ W. groundfish fishery exceeded the ABC for long.; long.; lingcod and the OY for canary rockfish, (202) 36°09.74′ N. lat., 121°45.01′ W. (234) 33°53.62′ N. lat., 119°53.28′ W. both overfished groundfish species, long.; long.; during October. The inseason (203) 36°06.75′ N. lat., 121°40.73′ W. (235) 33°57.61′ N. lat., 119°31.26′ W. adjustments in this document primarily long.; long.; include increases to closed areas, or (204) 35°58.19′ N. lat., 121°34.63′ W. (236) 33°56.34′ N. lat., 119°26.04′ W. RCAs, and prohibitions in recreational long.; long.; groundfish fisheries to minimize the (205) 35°52.21′ N. lat., 121°32.46′ W. (237) 33°57.79′ N. lat., 119°26.85′ W. total mortality of canary rockfish and long.; long.; lingcod and allow for the continued (206) 35°51.21′ N. lat., 121°30.94′ W. (238) 33°58.88′ N. lat., 119°20.06′ W. rebuilding of those overfished stocks. long.; long.; These inseason adjustments must be (207) 35°46.28′ N. lat., 121°30.29′ W. (239) 34°02.65′ N. lat., 119°15.11′ W. implemented in a timely manner to long.; long.; reduce the magnitude of overfishing on (208) 35°33.67′ N. lat., 121°20.09′ W. (240) 33°59.02′ N. lat., 119°02.99′ W. lingcod and the amount by which the long.; long.; canary rockfish OY is exceeded. (209) 35°31.33′ N. lat., 121°15.22′ W. (241) 33°57.61′ N. lat., 118°42.07′ W. Additionally, this inseason action long.; long.; contains a correction to the western (210) 35°23.29′ N. lat., 121°11.41′ W. (242) 33°50.76′ N. lat., 118°37.98′ W. boundary of the trawl RCA and non- long.; long.; differential trip limits for DTS species. (211) 35°15.26′ N. lat., 121°04.49′ W. (243) 33°38.41′ N. lat., 118°17.03′ W. This correction to the trawl RCA and long.; long.; adjusted DTS trip limits allow fishers to (212) 35°07.05′ N. lat., 121°00.26′ W. (244) 33°37.14′ N. lat., 118°18.39′ W. access groundfish allocations without long.; long.; exceeding the OY for those species and (213) 35°07.46′ N. lat., 120°57.10′ W. (245) 33°35.51′ N. lat., 118°18.03′ W. with minimal effects on overfished or long.; long.; depleted stocks. Delaying these (214) 34°44.29′ N. lat., 120°54.28′ W. (246) 33°30.68′ N. lat., 118°10.35′ W. adjustments could prevent the industry long.; long.; from obtaining the intended economic (215) 34°44.23′ N. lat., 120°58.27′ W. (247) 33°32.49′ N. lat., 117°51.85′ W. benefits associated with these long.; long.; adjustments. The Pacific Coast (216) 34°32.33′ N. lat., 120°50.23′ W. (248) 32°58.87′ N. lat., 117°20.36′ W. commercial groundfish fishery is long.; long.; and managed by trip limits and area (217) 34°27.00′ N. lat., 120°42.55′ W. (249) 32°35.53′ N. lat., 117°29.67′ W. closures, most of which are based on a long.; long. 2-month cumulative period (January- (218) 34°17.72′ N. lat., 120°19.26′ W. * * * * * February, March-April, May-June, July- long.; August, September-October, November- (219) 34°22.45′ N. lat., 120°12.81′ W. Classification December). Because the last 2-month long.; These actions are authorized by the cumulative period began on November (220) 34°21.36′ N. lat., 119°54.88′ W. Pacific Coast groundfish FMP and its 1, 2003, these actions should be long.; implementing regulations, and are based implemented as soon as possible to (221) 34°09.95′ N. lat., 119°46.18′ W. on the most recent data available. The protect overfished groundfish species long.; aggregate data upon which these actions and allow access to more abundant (222) 34°09.08′ N. lat., 119°57.53′ W. are based are available for public groundfish stocks. The affected public long.; inspection at the Office of the had the opportunity to comment on (223) 34°07.53′ N. lat., 120°06.35′ W. Administrator, Northwest Region, these actions at the November 3–7, long.; NMFS, (see ADDRESSES) during business 2003, Pacific Council meeting in Del (224) 34°10.54′ N. lat., 120°19.07′ W. hours. Mar, CA. For these reasons, good cause long.; The Assistant Administrator for also exists to waive the 30-day delay in (225) 34°14.68′ N. lat., 120°29.48′ W. Fisheries (AA), NMFS, finds good cause effectiveness requirement of 5 U.S.C. long.; to waive the requirement to provide 553(d)(3). (226) 34°09.51′ N. lat., 120°38.32′ W. prior notice and opportunity for public These actions are taken under the long.; comment on this action pursuant to 5 authority of 50 CFR 300.63(a)(3) and (227) 34°03.06′ N. lat., 120°35.54′ W. U.S.C. 553(b)(B), because providing 660.323(b)(1), and are exempt from long.; prior notice and opportunity for review under Executive Order 12866. ° ′ ° ′ (228) 33 56.39 N. lat., 120 28.47 W. comment would be impracticable. It Authority: 16 U.S.C. 1801 et seq. long.; would be impracticable because (229) 33°50.25′ N. lat., 120°09.43′ W. affording prior notice and opportunity Dated: November 21, 2003. long.; for public comment would impede the Bruce C. Morehead, (230) 33°37.96′ N. lat., 120°00.08′ W. Agency’s function of managing fisheries Acting Director, Office of Sustainable long.; to protect overfished groundfish species Fisheries, National Marine Fisheries Service. (231) 33°34.52′ N. lat., 119°51.84′ W. while allowing the harvest of more [FR Doc. 03–29584 Filed 11–21–03; 4:50 pm] long.; abundant groundfish species. Based on BILLING CODE 3510–22–P

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Proposed Rules Federal Register Vol. 68, No. 228

Wednesday, November 26, 2003

This section of the FEDERAL REGISTER your comments. Comments on 20555–0001, telephone (301) 415–1642, contains notices to the public of the proposed rulemakings submitted in writing or in e-mail [email protected]. issuance of rules and regulations. The electronic form will be made available SUPPLEMENTARY INFORMATION: purpose of these notices is to give interested to the public in their entirety on the persons an opportunity to participate in the NRC rulemaking web site. Personal I. Background rule making prior to the adoption of the final rules. information will not be removed from The Commission’s regulations in 10 your comments. CFR part 2, subpart J, provide for, Mail comments to: Secretary, U.S. among other things, the use of an NUCLEAR REGULATORY Nuclear Regulatory Commission, electronic information management COMMISSION Washington, DC 20555–0001, ATTN: system to provide documents related to Rulemakings and Adjudications Staff. the high-level radioactive waste (HLW ) 10 CFR Part 2 E-mail comments to: [email protected]. If licensing proceeding. Originally you do not receive a reply e-mail RIN 3150–AH31 promulgated on April 14, 1989 (54 FR confirming that we have received your 14944), the information management Licensing Proceeding for the Receipt comments, contact us directly at (301) system required by Subpart J is to have of High-Level Radioactive Waste at a 415–1966. You may also submit the following functions: Geologic Repository: Licensing comments via the NRC’s rulemaking (1) The Licensing Support Network Support Network, Submissions to the Web site at http://ruleforum.llnl.gov. (LSN) provides full text search and Electronic Docket Address questions about our rulemaking retrieval access to the relevant Web site to Carol Gallagher (301) 415– documents of all parties and potential AGENCY: Nuclear Regulatory 5905; e-mail [email protected]. parties to the HLW licensing proceeding Commission. Hand deliver comments to: 11555 in the time period before the U.S. ACTION: Proposed rule. Rockville Pike, Rockville, Maryland Department of Energy (DOE) license 20852, between 7:30 am and 4:15 pm application for the repository is SUMMARY: The Nuclear Regulatory Federal workdays. (Telephone (301) submitted; Commission is proposing to amend its 415–1966). (2) The NRC Electronic Information Rules of Practice applicable to the use Fax comments to: Secretary, U.S. Exchange (EIE) provides for electronic of the Licensing Support Network (LSN) Nuclear Regulatory Commission at (301) submission of filings by the parties, as and the electronic hearing docket in the 415–1101. well as the orders and decisions of the licensing proceeding on the disposal of Publicly available documents related Atomic Safety and Licensing Board high-level radioactive waste at a to this rulemaking may be viewed Panel (ASLBP), during the proceeding; geologic repository. The proposed electronically on the public computers and amendments would establish the basic located at the NRC’s Public Document (3) The Electronic Hearing Docket requirements and standards for the Room (PDR), O1 F21, One White Flint (EHD) provides for the development and submission of adjudicatory materials to North, 11555 Rockville Pike, Rockville, access to an electronic version of the the electronic hearing docket by parties Maryland. The PDR reproduction HLW licensing proceeding docket. to the high-level radioactive waste contractor will copy documents for a The creation of the LSN (originally licensing proceeding. The proposed fee. Selected documents, including called the ‘‘Licensing Support System’’) amendments would also address the comments, may be viewed and was stimulated by the requirements of issue of reducing the unnecessary downloaded electronically via the NRC Section 114(d)(2) of the Nuclear Waste loading of duplicate documents on rulemaking Web site at http:// Policy Act of 1982 (NWPA). This individual participant Licensing ruleforum.llnl.gov. provision sets as a goal Commission Support Network document collection Publicly available documents created issuance of a final decision approving or servers; the continuing obligation of or received at the NRC after November disapproving issuance of the LSN participants to update their 1, 1999, are available electronically at construction authorization for a geologic documentary material after the initial the NRC’s Electronic Reading Room at repository for HLW within three years of certification; the Secretary of the http://www.nrc.gov/reading-rm/ the docketing of the DOE license Commission’s determination that the adams.html. From this site, the public application. The Commission DOE license application is can gain entry into the NRC’s anticipated that the HLW proceeding electronically accessible; and the Agencywide Document Access and would involve substantial numbers and provisions on material that may be Management System (ADAMS), which volumes of documents created by well- excluded from the LSN. provides text and image files of NRC’s informed parties on numerous and DATES: Submit comments by January 12, public documents. If you do not have complex issues. The Commission 2004. Comments received after this date access to ADAMS or if there are believed that the LSN could facilitate will be considered if it is practical to do problems in accessing the documents the timely review of DOE’s license so, but the Commission is able to ensure located in ADAMS, contact the NRC application by providing for electronic consideration only for comments Public Document Room (PDR) Reference access to relevant documents via the received on or before this date. staff at 1–800–397–4209, 301–415–4737 LSN before the license application is ADDRESSES: You may submit comments or by e-mail to [email protected]. submitted, rather than the traditional, by any one of the following methods. FOR FURTHER INFORMATION CONTACT: and potentially time-consuming, Please include the following number Francis X. Cameron, U.S. Nuclear discovery process associated with the RIN 3150-AH31 in the subject line of Regulatory Commission, Washington DC physical production of documents after

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a license application is submitted. In are the subject of these proposed Additionally, any or all of these types addition, the Commission believed that revisions. The Commission, which of documents could contain embedded early access to these documents in an appreciates the advice of the LSNARP photographs, charts, tables, and other electronically searchable form would on these items, anticipates additional graphics. allow for a thorough and comprehensive interaction with the LSNARP on matters Complex documents consist (entirely technical review of the license raised in the proposed rule, and will or in part) of electronic files having application by all parties and potential further evaluate any LSNARP advice in substantial portions that are neither parties to the HLW licensing conjunction with its evaluation of the textual nor image in nature. For proceeding, resulting in better focused public comments received on these example, these types of specialized contentions in the proceeding. The LSN proposed revisions. documents may include: would also facilitate agency responses • Executable files, which can be II. Submissions to the Electronic Docket to Freedom of Information Act (FOIA) opened (run) to execute a programmed for the Hearing requests by providing the public with series of instructions on a computer or electronic access to relevant documents. As noted, one of the objectives of the network; The current requirements in 10 CFR regulations in 10 CFR Part 2, Subpart J • Runtime executable software, 2.1003(a) require the DOE to make its is to provide for electronic submission which generally is operational upon documentary material available to other of filings by the parties, as well as the demand without being installed on a potential parties and the public in orders and decisions of the ASLBP, computer or network; electronic form via the LSN no later during the proceeding. The objective of • Viewer or printer executable than six months in advance of DOE’s this function is to reduce the time that software that causes images to be submission of its license application to it takes to serve filings by substituting displayed on the computer monitor or the NRC. The NRC must make its electronic transmission for the physical pages to print on an attached printer; documentary material available in mailing of filings that is typically used • Files from a dynamic link library electronic form via the LSN no later in NRC licensing proceedings. (.dll), which are a collection of small, than thirty days after the DOE Shortening the amount of time for bundled executable programs that each certification of compliance. All other certain activities during the hearing provide one or more distinctive participants must make their documents process will support the NRC’s efforts to functions used by application programs available in electronic form no later meet the schedule in the NWPA. and operating systems and are available than ninety days after the DOE Section 2.1013(c)(1) requires that all when needed by applications or certification of compliance. Originally, filings in the HLW licensing proceeding operating systems; the LSN was conceived of as a large, be transmitted electronically (emphasis • Large data sets associated with an centralized information management added) by the submitter to the Presiding executable; and system administered by what was then Officer, the parties, and the Secretary of • Actual software code for analytical called the Licensing Support System the Commission. The Commission programs that a party may intend to Administrator (now the LSN believes that the majority of these filings introduce into the proceeding. Administrator). To take advantage of the will consist of simple documents that As part of complex document advances in technology that occurred can be readily transmitted by EIE. submittals, the NRC anticipates since the promulgation of the original However, after further considering the receiving files that— rule, the Commission revised the rule to nature of some of the documents that (1) Due to their file size, may preclude use the Internet to link geographically may be submitted by the parties during easy transmission, retrieval, and use; or dispersed sites rather than relying on a the proceeding, the Commission (2) May require specialized software complex and expensive centralized believes that it is necessary to specify and/or hardware for faithful display and system (63 FR 71729; December 30, requirements for submitting large and/or subsequent use; and 1998). complex documents. (3) May not be suitable for inclusion The proposed amendments would Large documents consist of electronic in a ‘‘generic’’ file format such as the address a number of aspects of the files that, because of their size, create Adobe’’ Acrobat Portable Document current rules: challenges for both the NRC staff, Format (PDF). • The requirements and standards for potential parties and the public when Examples of files that could be part of a party’s submissions to the electronic transmitting, viewing, or downloading a complex document are: docket for the HLW licensing the document (e.g., significant delays in • Maps. proceeding; transmission, uploading, or • Databases. • Those provisions that could result downloading times). The Commission • Simulations. in the loading of duplicate documents anticipates that the potential license • Audio files. on individual participant LSN application and some filings in the HLW • Video files. document collection servers; adjudicatory proceeding will be of a size • Executable programs. • The provisions related to the that will create transmission, viewing, Some of the problems posed by the Secretary of the Commission’s or downloading challenges. In electronic transmission of these large or determination that the DOE license electronic format, some of these files complex documents are: application is electronically accessible; . could be up to several hundreds of Electronic Submission Process • Those provisions related to the megabytes (MB) in size. Examples of continuing obligation of LSN potential large documents are: When submitted via the Internet, very participants to update their • DOE Site Characterization Plan large documents or files can cause documentary material; and • DOE License Application and ‘‘time-out’’ problems for computers at • Those provisions on material that supporting materials either end of the transfer, resulting in a may be excluded from the LSN. • DOE Environmental Impact failed or canceled transfer. Time-outs The Commission has consulted the Statement occur when a computer program LSN Advisory Review Panel (LSNARP) • Adjudicatory documents (e.g., terminates prematurely, sometimes on the document format standards and motions, responses, transcripts, because the computer notices a lapse in the document duplication issues that exhibits, and orders) interaction with the user during the long

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amount of time needed to transfer a and/or software to execute software across wide area networks or from the large document. Transmission times are program files and access their associated Internet via phone lines. dependent on the speed of the sender’s data. ‘‘Large documents’’ are those that communication device and the Official Record and Federal Records have textual or graphic oriented technology used by the Internet service Management Considerations material larger than 50 MB in size. provider. Large documents or files Under proposed § 2.1013(c)(1)(ii), these require lengthy transmission times For both large and complex documents must be submitted via the during which the potential for error documents, the NRC must consider the EIE in multiple transmissions of 50 MB conditions or other service interruptions need to generate an official record of the each. The large document submission increases in direct proportion to the proceeding for use in potential appellate may also be supplemented with a time the communication link must be environments, see 10 CFR 2.1013(a), courtesy copy on optical storage media maintained. Service interruptions can and for generating an Official Agency to provide NRC staff, parties, and result from human error, excessive Record (OAR) version of the docketed interested governmental participants in network traffic, or network component materials for retirement to the National the HLW licensing proceeding with a failure that prevent users from Archives and Records Administration useful reference copy of the document. communicating with other users or (NARA). Each of these situations For purposes of the NRC staff review of networks over a local network requires the ability to reassemble the the DOE license application, as opposed record version of the documentary connection or the Internet. The time-out to an electronic submission to the material (excluding software problems could affect each party who adjudicatory docket, the requirements executables), independent of the media receives the documents as part of the for DOE’s submission of the license service of a filing. The actual transfer or software initially used to create it. In response to these potential application are already specified 10 CFR times for very large documents or files 63.22 of the Commission’s regulations. may approach 24 hours using standard problems, the Commission is proposing a revised framework for the submission Section 63.22(a) specifies that the Internet File Transfer Protocol (FTP) application, any amendments to the routines. In terms of ensuring of filings during the HLW licensing proceeding. This revised framework is application, and an accompanying timeliness, this may not be a significant environmental impact statement and improvement over the use of an based on segmenting large documents using manageable file size units to any supplements, must be signed by the overnight courier to send the files on Secretary of Energy or the Secretary’s optical storage media (e.g., CD–ROM). reduce the potential for interruption or delay in transmission, uploading, or representative and must be filed with Access to Large, Complex Documents in downloading. For example, large the Director in triplicate on paper and the Electronic Hearing Docket (EHD) documents could be segmented into optical storage media. In addition, 10 Keeping a large document together in pieces, which correspond to the CFR 63.22(b) requires that 30 additional one very large file may allow users to organization (chapters or sections) of the copies of the license application be easily search for, retrieve, and analyze document, in order to address the submitted on paper and optical storage the document in its entirety, but may transfer and retrieval performance media. result in service interruption problems problems discussed above. The author ‘‘Complex documents’’ are any similar to those described above. This is of the document would be in the best combination of the following: particularly true if a user wants to position to break up document files into • Textual or graphic-oriented download the image file of one of these usable segments without adversely electronic files large documents. Retrieval time will be impacting the organization or content of • Electronic files that cannot be unacceptably slow, or will result in a the document. segmented into 50 MB files time-out problem with the user’s The electronic submission of filings in • Other electronic objects, such as Internet connection. Users of the EHD the HLW licensing proceeding must be computer programs, simulations, video, may encounter comparable download made via the Internet using the NRC audio, data files, and files with special delays because of the file size of large EIE, when practicable. The EIE is an printing requirements. or complex documents and, depending electronic transfer mechanism being Under proposed § 2.1013(c)(1)(iii), on the nature of the file, the file may not established by the NRC for electronic those portions of complex documents be executable on a user’s desktop transmission of documents to the that can be electronically submitted personal computer because of agency via the Internet. EIE provides for through the EIE, again in 50 MB or less configuration, memory, display, or other the transmission of documents in a segments, will be transmitted technical problems. verifiable and certifiable mode that electronically. Those portions that are includes digital signatures. Use of Large, Complex Documents in a The proposed amendments would not amenable to electronic transmission Hearing Room revise § 2.1001 to establish three will be delivered on optical storage Large documents may be pre-filed in categories of electronic filings for media. The optical storage media must their entirety as potential exhibits in the purposes of the HLW licensing include the complete document, i.e., hearing docket; however, in the hearing proceeding and would revise include the portions of the document room, it is possible that only portions of § 2.1013(c)(1) to specify the submission that have been delivered via the EIE. such documents, i.e., chapters, pages, or requirements for these three categories In addition to these proposed paragraphs will be offered. In a dynamic of electronic filings. revisions, § 2.1013 (c)(1) would also be and fast-paced hearing room ‘‘Simple documents’’ are textual or amended to require the following: environment, it would not be desirable graphic oriented material that are less • Electronic submissions must have to delay the proceeding to wait for a than 50 megabytes (MB) in size. These 300 dots per inch (dpi) as the minimum large file to load; navigate to the desired documents are transmitted resolution for bi-tonal, color, and chapters, pages, or paragraphs; and then electronically via EIE as contemplated grayscale resolution. extract the appropriate selection for use by the current 10 CFR 2.1011. Test • Electronic submissions must be in in the proceeding. Complex documents results have demonstrated that 50 MB is the appropriate PDF output format. may also require specialized hardware a reasonable size for downloading files These formats and their use are:

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• PDF—Formatted Text and and instructions on sensitive or LSN Web site from the DOE LSN Graphics—use for textual documents classified information. document collection server, but also converted from native applications The proposed revisions would also from the LSN document collection • PDF—Searchable Image (Exact)— clarify the responsibility of the server of other participants. Without use for textual documents converted Secretary of the Commission, under compromising the objective of ensuring from scanned documents + §§ 2.1012(a) and 2.1013 (a)(2), to that all documentary material is • PDF—Image Only—use for gra- determine if the DOE license available on the LSN, the Commission phic-, image-, and forms-oriented application for a HLW repository can be believes that it would be beneficial to documents properly accessed under the eliminate or at least significantly reduce Tagged Image File Format (TIFF) Commission’s ‘‘electronic docket rules’’. the loading of duplicate documents. images and the results of spreadsheet Under § 2.1012(a), the DOE license Reducing duplication will not only applications will need to be converted application cannot be docketed unless alleviate burdens on the participants, to PDF, except in those rare instances the Secretary of the Commission finds but will also make search and retrieval where PDF conversion is not that it can be effectively accessed. The of the LSN collection more efficient. practicable. Spreadsheets may be proposed revisions would not change  Therefore, the proposed amendment to submitted using Microsoft Excel, this requirement. However, the § 2.1003(a)(1) would allow a LSN Corel Quattro Pro, or Lotus 123. Commission is clarifying that this • participant to avoid loading a document Electronic submissions to the compliance requirement refers to the created by another LSN participant if hearing docket cannot contain any accessibility of the DOE license that document has already been made hyperlinks to other documents or Web application as part of the NRC staff available by the LSN participant who sites. Electronic submissions to the licensing docket rather than the created the document or on whose hearing docket, however, may contain Commission’s hearing docket (emphasis behalf the document was created. hyperlinks within a single PDF file, if added). This is consistent with If, in the process of eliminating those links are created using PDF traditional NRC practice where a license authoring software. Hyperlinks are duplicate documents, an LSN application is part of the NRC staff participant identifies a document which electronic links that allow a user to licensing docket but is not added to the automatically access a document or web the creator of that document has not Commission’s hearing docket unless a included on its LSN document site by clicking on the hyperlink. The party offers all or part of the license existing NRC Document Management collection server, as a practical matter, application as evidence. Sections the participant who identified the System used as the basis for the 2.1012(a) and 2.1013(a)(2) would be document should include it on its LSN electronic hearing docket does not revised to specify that the Secretary’s document collection server, as well as accept hyperlinks to other documents or determination on electronic notifying the creator of the document websites. Even if the NRC Document accessibility would be based on whether that it is taking that action. Moreover, in Management System were changed in the DOE license application could be such circumstances, it is not apparent the future to include a hyperlink effectively accessed through the what purpose would be served by capability, questions about the integrity Commission’s Agencywide Document raising the issue before the Pre-license of the Commission’s electronic hearing Access and Management System application Presiding Officer (PAPO) docket might arise if the hyperlink in a (ADAMS) rather than the electronic unless the documentary material has document did not function. This could hearing docket. happen because either a ‘‘hyperlinked’’ some readily apparent significance as a website is not operating or a III. Documentary Material Class 2 document (as delineated in the ‘‘hyperlinked’’ document is not Section 2.1003 of the current LSN rule discussion below) or a significant included in the electronic hearing requires a party, a potential party, or an number of ‘‘missing’’ documents were docket. Furthermore, it is uncertain interested governmental participant identified with regard to a particular whether NARA will accept as an official (hereinafter ‘‘participant’’) to make its LSN participant, so as to raise the issue record documents containing hyperlinks documentary material available in of a concerted, deliberate effort not to to other documents or web sites. electronic form. The definition of comply with the regulations. • Electronic submissions must be free ‘‘documentary material’’ includes The Commission is also proposing to of any security restrictions imposed by material prepared by an individual amend § 2.1003 by adding a new the author (proposed § 2.1013(c)(1)(vii)). participant, for example, all reports or paragraph (e) to this section. Proposed Additional information on the studies prepared by, or on behalf of, a § 2.1003(e) would require LSN submission of these filings will be participant. It also includes other participants to supplement the provided in a guidance document from material in the possession of the documentary material provided under the NRC. See ‘‘Guidance for Submission participant on which the participant § 2.1003(a) in its initial certification of Electronic Docket Materials Under 10 intends to rely and/or cite in support of with documentary material produced CFR Part 2, Subpart J’’, U.S. Nuclear its position in the HLW licensing after that event. While much of an LSN Regulatory Commission, October, 2003. proceeding or that doesn’t support its participant’s documentary material will The Guidance document is available on position. This provision can be read to be made available early, it is reasonable the NRC Web site (http://www.nrc.gov). obligate a party who possesses a to expect that additional material will The NRC expects parties, interested document prepared by another be created after the initial compliance governmental participants, and participant to make that document period specified in § 2.1003(a). In potential parties to use the detailed available on its LSN document addition, the ongoing performance instructions in the Guidance document collection server even though it is confirmation program required of DOE to ensure that their electronic filings are already available on the LSN document by § 63.131 of the Commission’s effectively submitted. Areas covered by collection server of the party who had regulations will generate additional the guidance document address the prepared the document. For example, documentary material after the license need for and format of the transmittal under this interpretation a document application is docketed. In addition, letter for electronic filings, file naming prepared by DOE would not only need during the proceeding, the Atomic conventions, copyrighted information, to be available through the centralized Safety and Licensing Board can always

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direct that additional discovery must for a geologic repository at the Yucca makes it apparent the scope of the DOE take place. Mountain site, such as reports or studies documentary material in those classes Finally, the Commission is providing on other potential repository sites or on had changed, a process that might well further information and a clarification issues outside of the NRC licensing be repeated by all parties following the on the responsibilities of LSN criteria. In addition, § 63.21 of the admission of contentions. Finally, as participants in regard to the three Commission’s regulations requires that part of the regular post-contention classes of documentary material in the DOE Environmental Impact admission discovery process under § 2.1001. These three classes are: Statement (EIS) must accompany the § 2.1018, a party could be required to 1. Any information on which a party, license application. Therefore, reports identify the specific documents that potential party, or interested and studies relevant to issues addressed comprise its Class 1 and Class 2 governmental participant intends to rely by the DOE EIS must also be made documentary material. As a and/or cite in support of its position in available as Class 3 documentary consequence, while it is not possible to the HLW proceeding; material. This is also consistent with the say there are no special circumstances 2. Any information that is known to, coverage of the Topical Guidelines. that would necessitate a ruling by the and in the possession of, or developed To assist participants in identifying PAPO on the availability of a particular by the party that is relevant to, but does documentary material that may be document in the pre-license application not support, that information noted in relevant to the future license application stage based on its Class 1 or Class 2 item 1 or that party’s position; and in the time period before it is submitted, status, disputes over Class 1 and Class 3. All reports and studies prepared by the Commission is recommending that 2 documentary material generally would or on behalf of a potential party, LSN participants use the NRC Yucca be of a type that would be more interested governmental participant, or Mountain Review Plan (NUREG–1804, appropriately raised before the party, including all related ‘‘circulated Rev. 2, July, 2003) as a guide. The Yucca Presiding Officer designated in the drafts’’ relevant to the license Mountain Review Plan provides Notice of Hearing during the fifteen application and the issues set forth in guidance to the NRC staff on evaluating months following the admission of the Topical Guidelines, regardless of the DOE license application. As such, it contentions that are allotted to the NRC whether they will be relied upon or anticipates the form and substance of staff to complete the Safety Evaluation cited by a party. the DOE license application and can be Report in its entirety. The first two classes of documentary used as a reliable guide for identifying material are tied to a ‘‘reliance’’ documentary material. IV. Exclusions criterion. Reliance is fundamentally The Commission also notes that the The Commission has reviewed its related to a position that a party in the history of the LSN and its predecessor, procedural rules for the HLW licensing HLW licensing proceeding will take in the Licensing Support System, makes it proceeding, including the LSN regard to compliance with the apparent it was the Commission’s requirements, to assess whether they Commission regulations on the issuance expectation that the LSN, among other appropriately reflect the evolution of the of a construction authorization for the things, would provide potential relevant technology, law, and policy repository. These compliance issues participants with the opportunity to since the rules were originally take the form of ‘‘contentions’’ of law or frame focused and meaningful promulgated in 1987, being mindful of fact that a party has successfully had contentions and to avoid the delay a recent report by the House Committee admitted for litigation in the HLW potentially associated with document on Appropriations, issued July, 2003, proceeding under § 2.1014(a)(2) of the discovery, by requiring parties and expressing concern on the extent of regulations. The third class of material, potential parties to the proceeding to documentation that DOE may be ‘‘reports and studies prepared for or on make all their Subpart J-defined required to provide as part of the LSN. behalf of the potential party, * * *’’ has documentary material available through The Committee encouraged the meaning independent of any the LSN prior to the submission of the Commission to review its regulatory contentions that might be offered. The DOE application. These purposes still requirements regarding the LSN to material in this class must be available obtain. Nonetheless, the Commission is ensure that they do not require the on the LSN regardless of whether it has clarifying that, because the full scope of duplication of information otherwise any relation to a contention offered at coverage of the reliance concept will easily obtainable, focus on information the hearing. It is also a likely source of only become apparent after proffered that is truly relevant to the substantive the material that a party would use to contentions are admitted by the decisions that will have to be made, and develop its contentions. ‘‘Reports’’ and Presiding Officer in the proceeding, an establish a time frame in accord with ‘‘studies’’ will also include the basic LSN participant would not be expected the traditional conduct of an documents relevant to licensing such as to identify specifically which of its adjudicatory proceeding.1 Based on our the DOE environmental impact documents fall within either Class 1 or review, the Commission has determined statement, the NRC Yucca Mountain Class 2 documentary material in the pre- that the LSN rule could be further Review Plan, as well as other reports or license application phase. revised to address the Committee’s studies prepared by a LSN participant or In this regard, the Commission still concerns, while still maintaining the its contractor. expects all participants to make a good overall purpose and functionality of the To fall within the definition of faith effort to include on their LSN LSN. ‘‘documentary material’’, reports or document collection servers all of the The Commission is proposing to studies must have a nexus to both the Class 1 and Class 2 documentary revise § 2.1005 of the rule to specify an license application (emphasis added) material that reasonably can be additional category of documents, and the Topical Guidelines contained in identified by the date specified for ‘‘congressional correspondence’’, that NRC Regulatory Guide 3.69. This dual initial compliance in § 2.1003(a) of the may be excluded from the LSN. Section requirement is designed to ensure that Commission’s regulations. Thereafter, in 2.1005 of the Commission’s regulations LSN participants do not have to conjunction with its license application establishes several categories of identify, and include as documentary submission, DOE would be required to documents that do not have to be material, reports or studies that have no supplement its Class 1 and Class 2 bearing on the DOE license application documents to the degree the application 1 H.R. Rep. No. 108, 108th Cong. 1st Sess. (2003).

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entered into the LSN, either under the establish requirements and standards for Hearing Docket (EHD), which is documentary material requirements of the submission of filings to the accessible via the Internet; electronic § 2.1003, or under the derivative electronic docket for the HLW licensing objects that cannot be made directly discovery provisions of § 2.1019. These proceeding. Although the specific accessible via the EHD Web site, such as include materials that are either widely standards in the proposed rule are computer simulation models, will be available or do not have any significant unique to the Commission’s HLW described in the EHD and made relevance to the issues that might be proceeding, they are based on industry- available on optical storage media. litigated in the HLW licensing wide standards such as Portable The assessment of existing and proceeding. The Commission is Document Format (PDF). anticipated technology capabilities proposing to add ‘‘correspondence identified a number of potential issues Environmental Impact: Categorical between a party, potential party, or that may make it difficult to meet the Exclusion interested governmental participant and challenges of electronic submission of the Congress of the United States’ to The NRC has determined that this large documents as specified in 10 CFR these exclusions. This reflects the proposed regulation is the type of action part 2, subpart J. Those challenges are Commission’s current judgment that described in categorical exclusion 10 driven by the following fundamental this type of material will not have a CFR 51.22(c)(1). Therefore, neither an issues: significant bearing on repository environmental impact statement nor an • Technology limitations of current licensing issues. Much of this material environmental assessment has been electronic document and records either relates to budgetary issues or is prepared. transmission and management systems. merely a reiteration of an agency Paperwork Reduction Act Statement • Maintaining document and object primary document. It would normally fidelity, integrity, and authenticity. not be the source of material that a party This proposed rule does not contain • Receiving source document formats would rely on for its case in the hearing information collection requirements in an acceptable resolution. or as a source of material that would be and, therefore, is not subject to the • Management of and access to non- contrary to such reliance information. requirements of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.). textual information. However, the material directed to • Federal entities will still be available as Federal recordkeeping Regulatory Analysis requirements. part of the normal Federal • recordkeeping requirements. If a The following regulatory analysis General usability of the electronic identifies several alternatives to the submittals. particular item of Congressional • correspondence does become relevant to Commission’s proposal set forth in the Potential limitations of information a contention admitted in the HLW proposed rule. Subpart J of 10 CFR part technology (hardware, software, or proceeding, it can be made available at 2 establishes an electronic environment Internet service provider) used by the that time. The Commission does not for the adjudicatory proceeding for general public. anticipate that any disputes over this consideration of a potential license The Nature of the Documents clearly and narrowly defined exclusion application by the U.S. Department of would be brought before the PAPO. Energy (DOE) to construct, receive, and Documents may be large, complex, or emplace waste at the proposed HLW a combination of both, as follows: Plain Language repository at Yucca Mountain, Nevada. • Large documents consist of The Presidential memorandum dated The NRC expects to begin receiving and electronic files that, because of their June 1, 1998, entitled, ‘‘Plain Language processing a significant volume of size, create challenges for both the NRC in Government Writing,’’ directed that electronic documents associated with and the public when transmitting, the Government’s writing be in plain the adjudicatory proceeding in the near viewing, or downloading the document language. This memorandum was future. Some of these filings will consist (e.g., significant delays in transmission, published June 10, 1998 (63 FR 31883). of large or complex documents uploading, or downloading times). The In complying with this directive, Examples of these large electronic files NRC anticipates that the potential editorial changes have been made in include maps, charts, video license application and some filings in these proposed revisions to improve the presentations, computer modeling or the HLW adjudicatory proceeding will organization and readability of the simulation programs with their be of a size that will create transmission, existing language of the paragraphs associated databases, and narrative viewing, or downloading challenges. In being revised. These types of changes reports with extensive embedded electronic format, some of these files are not discussed further in this graphic objects. Consistent with 10 CFR could contain several hundred document. The NRC requests comments part 2, subpart J: megabytes. on the proposed rule specifically with • The NRC has established the • Complex documents consist respect to the clarity of the language Licensing Support Network (LSN) so (entirely or in part) of electronic files used. Comments should be sent to the that all parties, potential parties, and having substantial portions that are address listed under the ADDRESSES participants in the proceeding will be neither textual nor image in nature. For caption of the preamble. able to make their documentary material example, specialized exhibits may electronically available to meet include computer software programs Voluntary Consensus Standards discovery requirements through and their operating components, large The National Technology Transfer individual participant LSN Web sites. data files, and actual software code for and Advancement Act of 1995, Pub. L. • The NRC will direct all participants analytical programs that a party may 104–113, requires that Federal agencies in the adjudicatory proceeding to use intend to introduce into the proceeding. use technical standards that are the agency’s EIE capabilities to submit Articulation of the Issues developed or adopted by voluntary their filings electronically to the NRC consensus standards bodies unless when practicable. Large and/or complex documents may using such a standard is inconsistent • After processing, documents pose challenges in any or all of the with applicable law or otherwise submitted in the HLW proceeding following general areas: impractical. This proposed rule would would be available in the Electronic • Electronic Submission Process.

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When submitted via the Internet, very program files and access their associated content of a PDF format file through the large documents or files can cause data. use of the Adobe Reader viewer ‘‘time-out’’ problems for computers at • Official Record and Federal software. either end of the transfer, resulting in a Records Management Considerations. Examples of files that could be part of failed or canceled transfer. For both large and complex complex documents include maps, Transmission times are dependent on documents, the NRC must consider the databases, simulations, audio files, the speed of the sender’s need to generate an official record of the video files, and executable programs. communication device and the proceeding for use in potential appellate The analysis of the challenges of technology used by the Internet service environments, see 10 CFR 2.1013(a), handling large documents in the NRC provider. Very large document or files and for generating an Official Agency and public IT environments considered require lengthy transmission times Record (OAR) version of the docketed the following functional areas: during which the potential for error materials for retirement to the National • Transmit activities entail sending a conditions or other service interruptions Archives and Records Administration submittal from the submitter to the increases in direct proportion to the (NARA). Each of these situations NRC, either via electronic format time the communication link must be requires the ability to reassemble the (through transmission or media) or as a maintained. The time-out problems record version of the documentary physical object (e.g., video or audio). • could affect each party who receives the material (excluding software Capture relates to the receipt of documents as part of the service of a executables), independent of the media electronic objects, with notifications filing. The actual transfer times for very or software initially used to create it. provided according to an approved large documents or files may approach Coupled with the project objectives service list, preferably through e-mail. 24 hours using standard Internet File and technical requirements (discussed Upon receipt at the NRC, each submittal Transfer Protocol (FTP) routines. In in the next section), these issues is staged for additional processing. • terms of ensuring timeliness, this may represent the framework for potential Index & Cross-Reference are two not be a significant improvement over solutions. The NRC analysis distilled distinct processes. Each submittal must the use of an overnight courier to send and assessed the objectives, technical be indexed based on prescribed profile the files on optical storage media (e.g., requirements, and issues and developed templates. In addition, as part of the CD–ROM). four designs. cataloging process, a submittal may be • Access to Large, Complex identified (or cross-referenced) as part of Technical Requirements a package or compound document. Documents in the Electronic Hearing • Docket (EHD). Given the anticipated size and Store manages the storage location Keeping a large document together in complexity of individual documents, of a submittal, i.e., within a folder or one very large file may allow users to and the quantity of submittals, the need larger collection for electronic easily search for, retrieve, and analyze to transmit, manage, and retrieve submittals, or the physical media the document in its entirety, but may electronic documents and objects location for submittals provided on result in service interruption problems challenges both the NRC’s current optical storage media (e.g., CD–ROM) similar to those described above. This is processes and its information containing text, data, and objects. This particularly true if a user wants to technology/information management process involves applying security and download the image file of one of these (IT/IM) infrastructures, and the audit controls, as well as the large documents. Retrieval time will be information technology (hardware, appropriate retention schedule. • Search & Retrieve operations unacceptably slow, or will result in a software, Internet service provider) in involve querying the bibliographic time-out problem with the user’s use by the general public. Examples of header and content, displaying the Internet connection. potential large documents are: • The DOE Site Characterization Plan; pertinent object(s), and, if desired, Users of the EHD may encounter • The DOE License Application and printing all or part of the displayed comparable download delays because of supporting materials; object(s). the file size of large or complex • The DOE Environmental Impact • Create & Revise activities facilitate documents and, depending on the Statement; the creation or revision of new nature of the file, the file may not be • Adjudicatory documents (e.g., documents using content that has been executable on a user’s desktop personal motions, responses, transcripts, extracted (copied and pasted) from computer because of configuration, exhibits, and orders). original submittals. memory, display, or other technical Any or all of these types of documents • Copy & Distribute activities involve problems. may contain embedded photographs, maintaining distribution (service) lists • Use of Large, Complex Documents charts, tables, and other graphics that and providing the means to copy or in a Hearing Room. contribute to the understanding of the download an individual document or a Large documents may be pre-filed as narrative. collection of documents. potential exhibits in the docket; The NRC also anticipates receiving These activities may also involve however, in a hearing room, it is files that could be part of complex reproduction when the need arises to possible that only portions of such document submittals that: generate a hard copy of a submittal (e.g., documents, i.e., specified chapters, (1) Due to their file size, may preclude ‘‘8.5″ x 11″ paper’’, drawings, etc.). pages, or paragraphs’ will be offered. In easy transmission, retrieval, and use; or Finally, there was an assessment of a dynamic and fast-paced hearing room (2) May require specialized software the existing NRC document and records environment, it would not be desirable and/or hardware for faithful display and management systems environment as to delay the proceeding to wait for a subsequent use; and well as requirements for enhancements large file to load; navigate to the desired (3) May not be suitable for inclusion to support the large document business chapters, pages, or paragraphs; and then in a ‘‘generic’’ file format such as PDF. requirements. extract the appropriate selection for use The PDF standard, though it is in the proceeding. Complex documents proprietary to Adobe, has been Assessment and Alternatives may also require specialized hardware published and is available for use by The NRC assessed a number of and/or software to execute software software vendors. Users can access the alternatives to the existing technology

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infrastructure, current and planned pieces. Based on the service list, an e- some technical constraint). Interested operating procedures for processing mail is sent to provide notification of parties can search the EHD on the documents, and regulatory requirements receipt and a link from the EIE server to bibliographic header, the content, or a to determine how the identified the file for immediate access by parties combination of the two. Retrieval of a objectives, issues, and technical and participants to the proceeding. In document or specified component(s) is requirements can be addressed while addition, the file is made available (as directly to the user’s desktop. ensuring that— appropriate) to the EHD. Interested Additionally, the NRC provides copies • Document fidelity and integrity is parties can search on the bibliographic (upon request and for a fee) of the preserved (e.g. organization, accuracy, header information, the content, or a optical storage media (e.g., CD–ROM) completeness); combination of the two. Retrieval of a for public access. • Documents are accessible to users document is directly to the user’s Positives: The NRC provides guidance via commonly used computer desktop. to the submitter to facilitate processing configurations; Positives: This alternative would and use within the agency. This • The information is available on satisfy the electronic transmission alternative also avoids potential reliable and controllable media; and requirements of 10 CFR Part 2, Subpart problems associated with submitting • Unique submittals with special J. This alternative primarily benefits and large files via the EIE. software/hardware components can be is less restrictive to the submitter. That Negatives: This alternative does not handled. is, the submitter dictates the form and meet the electronic service requirements The assessment also considered that format of the content, and the submittal of 10 CFR part 2, subpart J. There may the NRC should provide guidance to comes in as a single optimized PDF also be a delay in parties and participants in the proceeding well in format file. participants receiving documents. As advance of when large, complex filings Negatives: Submittal file size could be compared with Alternative 1, additional are reasonably anticipated. The very large (potentially several hundred processing will be required to extract, guidance, as well as the underlying MB), particularly if graphics are widely profile, and store files in a timely technology and procedures, would used. The transmission may be manner. In addition, use of this address matters such as processes, file problematic because of service alternative could adversely affect sizes, file formats, document interruptions or time-outs attributable to document fidelity and integrity (e.g. organization overviews to facilitate the very long transfer times required for organization, accuracy, or completeness) reconstruction of the complete filing, large files. File sizes could also make which could affect the efficient conduct labeling formats, and alternative transfer this alternative unfeasible for of an adjudication, as well as for agency media. subsequent users of a file, primarily recordkeeping and eventual turnover to This section presents general concepts because of download delays and time- NARA. and four alternatives for handling large, outs. In addition, although any Alternative 3 complex electronic submittals in the executables contained in the submittal HLW proceeding. could be stored in the EHD, they could Description: Documents, images, and not be indexed for search and retrieval other components (including the General Concept or accessed online. The executable file transmittal letter and enhanced Web- The overall information infrastructure would need to be downloaded and run form) are transmitted through the EIE as for receiving and managing HLW-related locally. multiple segmented files (‘‘chunks’’) of documents involves several existing a single submittal. All text-based agency information systems. Alternative 2 components (e.g., narrative with Participants in the proceeding will Description: The only object embedded graphics) are rendered as primarily send submittals to the NRC in transmitted through the EIE is the optimized PDF format files. Based on the preferred PDF format via EIE, which transmittal letter for the large, complex the service list, the NRC sends an e-mail provides a Web-form (an entry form document, which notifies the NRC of an containing links from the EIE server to similar to that of an overnight express impending package submittal. All other the transmittal letter and the various mail carrier shipping form) for the electronic files pertaining to the segmented files for immediate access by submitter to accurately identify what is submittal are sent on optical storage parties and participants to the being transmitted. Upon receipt, each media (e.g., CD–ROM), which is proceeding. Upon receipt and submittal would be entered into delivered to the NRC via an overnight subsequent processing, the NRC makes ADAMS. Once captured within express mail carrier. Based on the the segmented files available (as ADAMS, the submittal would be service list, the NRC sends an e-mail appropriate) to the EHD as a ‘‘package’’ available for internal use by agency containing links from the EIE server to or ‘‘compound document.’’ Interested staff, and the information would be the transmittal letter for immediate parties can search on the bibliographic made publicly available (as appropriate) access by parties and participants to the headers, or content, or a combination of via the EHD. Variations on this general proceeding. All text-based components both. Retrieval of selected components process and issues associated with large, (e.g., narrative with embedded graphics) is direct to the user’s computer. complex documents are described in the are rendered as optimized PDF format Positives: This alternative satisfies following sections. files. The NRC extracts each file from electronic transmission requirements of the optical storage media (e.g., CD– 10 CFR part 2 and allows submission Aternative 1 ROM) and makes the files available (as via the EIE. It also allows the NRC to Description: Documents, images, and appropriate) to the EHD as either provide guidance to have precisely other submittal components are individual objects or a compound defined segments and bibliographic submitted through the EIE as a single document, depending on the document header information associated with each file, and the EIE Web-form serves as the organization. The NRC also links a segment. The segmentation facilitates transmittal letter. The NRC captures bibliographic header to the appropriate later use and access. large files as single units, without the optical storage media (e.g., CD–ROM) Negatives: This alternative requires need for any manual manipulation, such for files or objects that are not the EIE to facilitate the transfer, as breaking a submission into workable candidates for extraction (because of segregate component content from

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bibliographic header information and submissions via optical storage media • Develop a rule change to implement the transmittal letter, and make that (e.g., CD–ROM). This alternative the recommended alternative. information available to the EHD. A provides several means to optimize a Regulatory Flexibility Certification possible fatal flaw is that some file types submission and allows the NRC to may not be able to be segmented into process the submission appropriately; As required by the Regulatory manageable sizes (e.g., graphic-oriented provide access to end-users (i.e., Flexibility Act (5 U.S.C. 605(b)), the materials showing subsurface geology in adjudicatory proceeding participants Commission has evaluated the impact of color or computer modeling information and the general public); and prepare for the proposed rule on small entities. The and/or software), and some materials the eventual transfer to NARA. NRC has established standards for may not be accessible via the EHD. Negatives: Processing by the NRC staff determining who qualifies as small Alternative 4 will need to be closely coordinated to entities (10 CFR 2.810). The maintain the integrity of the various Commission certifies that this proposed Description: All text-based submittal components (segmented files rule, if adopted, would not have a components (e.g. narrative with stored in ADAMS with the bibliographic significant economic effect on a embedded graphics) are rendered as header records that point to optical substantial number of small entities. optimized PDF format files and storage media, such as a CD–ROM). The proposed amendments would transmitted in manageable segments. All Documentary material submitted on modify the NRC’s rules of practice and non-text components (e.g., runtime optical storage media and sent by procedure in regard to the HLW executable software, viewer or printer overnight mail (or other expedited licensing proceeding. Parties to the executables) that are not suitable for an delivery services) would not meet the HLW licensing proceeding will be optimized PDF file are placed on optical electronic transmission requirements of required to submit their filings during storage media (e.g., CD–ROM). When 10 CFR part 2, subpart J. There may be the proceeding according to the necessary, due to the nature of the a delay in parties and participants standards in the proposed rule. Some of submittal, a submittal letter identifies receiving document components the participants affected by the all electronic files that comprise the contained only on the optical storage proposed rule, for example, DOE, NRC, submission, clearly indicating which media (e.g., CD–ROM). the State of Nevada, would not fall components are submitted via EIE, and within the definition of ‘‘small entity’’ which are submitted on optical storage Planned Actions under the NRC’s size standards. Other media (e.g., CD–ROM). The submittal Alternative 4 is the recommended parties and potential parties may qualify letter, enhanced Web-forms, and all approach for the NRC to meet the as ‘‘small entities’’ under these size segmented text files are sent through the identified objectives. The NRC believes EIE. The optical storage media (e.g., CD– standards. However, the required that this alternative provides the best ROM) containing the complete standards will overall make it easier for means for transferring the wide variety submission (i.e., text-based segments those parties who are small entities to of file types and sizes received from submitted via EIE and any files participate in the HLW licensing submitted only on optical storage parties and participants in the proceeding. proceeding, as well as the most practical media) are delivered to the NRC and Backfit Analysis other parties via an overnight mail means for delivering electronic carrier or other overnight delivery information to parties and participants The NRC has determined that a service. The NRC links a bibliographic in the HLW adjudicatory proceeding, backfit analysis is not required for this header to the optical storage media (e.g., the presiding officer, and the Office of proposed rule because these CD–ROM) component of the the Secretary (SECY), under the amendments would not include any submission. requirements of 10 CFR part 2, subpart provisions that require backfits as Based on the service list, the NRC J. defined in 10 CFR chapter I. Toward that end, the agency will take sends an e-mail containing links from List of Subjects in 10 CFR Part 2 the EIE server to the transmittal letter the following steps: and the various components submitted • Develop guidance for use in Administrative practice and through the EIE for immediate access by generating HLW proceeding procedure, Antitrust, Byproduct parties and participants to the submissions that specifies the size, file material, Classified information, proceeding. The NRC indexes the text- characteristics, and method (either EIE Environmental protection, Nuclear based components sent via EIE and or optical storage media) for different materials, Nuclear power plants and makes them available to the EHD as a submittal types (i.e. simple, large, or reactors, Penalties, Sex discrimination, ‘‘package’’ or ‘‘compound document.’’ complex). This guidance will also Source material, Special nuclear Additionally, the NRC provides copies provide direction concerning the material, Waste treatment and disposal. information the agency requires to (upon request and for a fee) of the For the reasons set out in the ensure proper identification of each optical storage media (e.g., CD–ROM) preamble and under the authority of the segment. for the public. Interested parties can Atomic Energy Act of 1954, as amended, • Implement enhancements to the search on the bibliographic header the Energy Reorganization Act of 1974, agency’s existing IT/IM systems (such as information, content, or a combination as amended; and 5 U.S.C. 553; the an improved EIE capability) in of both. Retrieval of text-based Nuclear Regulatory Commission is anticipation of storage, search, and components is directly to the user’s proposing the following amendments to retrieval needs, as they pertain to computer, and non-text components are 10 CFR part 2. retrievable from the optical storage Alternative 4. media (e.g., CD–ROM). • Implement enhancements to the PART 2—RULES OF PRACTICE FOR Positives: This alternative combines agency’s current document processing DOMESTIC LICENSING PROCEEDINGS the best features and advantages of work flows in anticipation of the AND ISSUANCE OF ORDERS Alternatives 2 and 3, including text- receipt, indexing, and distribution of based component submission through information, as they pertain to 1. The authority citation for Part 2 the EIE and non-text component Alternative 4. continues to read as follows:

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Authority: Secs. 161, 181, 68 Stat. 948, Large document means a document 5. In § 2.1012, paragraph (a) is revised 953, as amended (42 U.S.C. 2201, 2231); sec. that consists of electronic files that are to read as follows: 191, as amended, Pub. L. 87–615, 76 Stat. 409 larger than 50 megabytes. § 2.1012 Compliance. (42 U.S.C. 2241); sec. 201, 88 Stat. 1242, as * * * * * amended (42 U.S.C. 5841); 5 U.S.C. 552. (a) If the Department of Energy fails to Simple document means a document Section 2.101 also issued under secs. 53, make its initial certification at least six that consists of electronic files that are 62, 63, 81, 103, 104, 105, 68 Stat. 930, 932, months prior to tendering the 50 megabytes or less. 933, 935, 936, 937, 938, as amended (42 application, upon receipt of the U.S.C. 2073, 2092, 2093, 2111, 2133, 2134, * * * * * tendered application, notwithstanding 2135); sec. 114(f), Pub. L. 97–425, 96 Stat. 3. In § 2.1003, the introductory text of the provisions of § 2.101(f)(3), the 2213, as amended (42 U.S.C. 10134(f)); sec. paragraph (a) and paragraph (a)(1) are Director of the NRC’s Office of Nuclear 102, Pub. L. 91–190, 83 Stat. 853, as amended revised, and paragraph (e) is added, to Material Safety and Safeguards will not (42 U.S.C. 4332); sec. 301, 88 Stat. 1248 (42 read as follows: docket the application until at least six U.S.C. 5871). Sections 2.102, 2.103, 2.104, 2.105, 2.721 also issued under secs. 102, 103, § 2.1003 Availability of Material. months have elapsed from the time of the certification. The Director may 104, 105, 183, 189, 68 Stat. 936, 937, 938, (a) Subject to the exclusions in determine that the tendered application 954, 955, as amended (42 U.S.C. 2132, 2133, § 2.1005 and paragraphs (b), (c), and (e) is not acceptable for docketing under 2134, 2135, 2233, 2239). Section 2.105 also of this section, DOE shall make this subpart if the application is not issued under Pub. L. 97–415, 96 Stat. 2073 available, no later than six months in accompanied by an updated (42 U.S.C. 2239). Sections 2.200–2.206 also advance of submitting its license issued under secs. 161 b, I, o, 182, 186, 234, certification pursuant to § 2.1009(b), or application to receive and possess high- 68 Stat. 948–951, 955, 83 Stat. 444, as if the Secretary of the Commission level radioactive waste at a geologic amended (42 U.S.C. 2201 (b), (I), (o), 2236, determines that the application cannot repository operations area, the NRC 2282); sec. 206, 88 Stat 1246 (42 U.S.C. 5846). be effectively accessed through the shall make available no later than thirty Sections 2.205(j) also issued under Pub. L. Commission’s Agencywide Documents days after the DOE certification of 101–410, 104 Stat. 890, as amended by Access and Management System compliance under § 2.1009(b), and each section 31001(s), Pub. L. 104–134, 110 Stat. (ADAMS). 1321–373 (28 U.S.C. 2461 note). Sections other potential party, interested 2.600–2.606 also issued under sec. 102, Pub. governmental participant or party shall * * * * * L. 91–190, 83 Stat. 853, as amended (42 make available no later than ninety days 6. In § 2.1013, paragraph (a)(2) and U.S.C. 4332). Sections 2.700a, 2.719 also after the DOE certification of (c)(1) are revised to read as follows: issued under 5 U.S.C. 554. Sections 2.754, compliance under § 2.1009(b)— § 2.1013 Use of the electronic docket 2.760, 2.770, 2.780 also issued under 5 U.S.C. (1) An electronic file including during the proceeding. 557. Section 2.764 also issued under secs. bibliographic header for all * * * * * 135, 141, Pub. L. 97–425, 96 Stat. 2232, 2241 documentary material (including (42 U.S.C. 10155, 10161). Section 2.790 also (a) * * * circulated drafts but excluding (2) The Secretary of the Commission issued under sec. 103, 68 Stat. 936, as preliminary drafts) generated by, or at amended (42 U.S.C. 2133) and 5 U.S.C. 552. will establish an electronic docket to the direction of, or acquired by, a Sections 2.800 and 2.808 also issued under contain the official record materials of 5 U.S.C. 553. Section 2.809 also issued under potential party, interested governmental the high-level radioactive waste 5 U.S.C. 553 and sec. 29, Pub. L. 85–256, 71 participant or party; provided, however, licensing proceeding in searchable full Stat. 579, as amended (42 U.S.C. 2039). that an electronic file need not be text, or, for material that is not suitable Subpart K also issued under sec. 189, 68 Stat. provided for acquired documentary for entry in searchable full text, by 955 (42 U.S.C. 2239); sec. 134, Pub. L. 97– material that has already been made header and image, as appropriate. 425, 96 Stat. 2230 (42 U.S.C. 10154). Subpart available by the potential party, * * * * * L also issued under sec. 189, 68 Stat. 955 (42 interested governmental participant or (c)(1) All filings in the adjudicatory U.S.C. 2239). Appendix A also issued under party that originally created the proceeding on the license application to sec. 6, Pub. L. 91–560, 84 Stat. 1473 (42 documentary material. Concurrent with receive and possess high-level U.S.C. 2135). the production of the electronic files radioactive waste at a geologic will be an authentication statement for repository operations area under part 60 2. In § 2.1001, definitions of posting on the LSN website that ‘‘Complex document,’’ ‘‘Large or 63 of this chapter shall be transmitted indicates where an authenticated image by the submitter to the Presiding document,’’ and ‘‘Simple document’’ are copy of the documents can be obtained. added to read as follows: Officer, parties, and Secretary of the * * * * * Commission, according to the following § 2.1001 Definitions. (e) Each potential party, interested requirements— * * * * * governmental participant or party shall (i) ‘‘Simple documents’’ must be continue to make available to other transmitted electronically via the NRC Complex document means a participants via the LSN documentary Electronic Information Exchange (EIE); document that consists (entirely or in material created after the time of its (ii) ‘‘Large documents’’ must be part) of electronic files having initial certification in accordance with transmitted electronically in multiple substantial portions that are neither paragraph (a)(1) through (a)(4) of this transmissions of 50 megabytes each via textual nor image in nature. For section. EIE; example, specialized submissions may 4. In § 2.1005, paragraph (i) is added (iii) Those portions of complex include runtime executable software, to read as follows: documents that are amenable to viewer or printer executables, dynamic electronic submission must be link library (.dll) files, large data sets § 2.1005 Exclusions. transmitted electronically. Those associated with an executable, and * * * * * portions that are not amenable to actual software code for analytical (i) Correspondence between a electronic transmission must be programs that a party may intend to potential party, interested governmental delivered on optical storage media. The introduce into the proceeding. participant, or party and the Congress of optical storage media must include the * * * * * the United States. complete document, including the

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portions of the document that have been bolts, barrel nuts, and the associated Comments Invited transmitted electronically; holes in the horizontal stabilizer Interested persons are invited to (iv) Electronic submissions must have structure, and to detect corrosion of the participate in the making of the 300 dots per inch (dpi) as the minimum left- and right-hand elevator sector proposed rule by submitting such resolution for bi-tonal, color resolution, pinch bolts and associated holes, as written data, views, or arguments as and grayscale resolution. applicable; and corrective actions, if they may desire. Communications shall (v) Electronic submissions must be necessary. This action is necessary to identify the Rules Docket number and generated in the appropriate PDF output detect and correct corrosion of the left- be submitted in triplicate to the address format by using: and right-hand horizontal stabilizer specified above. All communications (A) PDF—Formatted Text and hinge fitting bolts, barrel nuts, and received on or before the closing date Graphics for textual documents associated holes in the horizontal for comments, specified above, will be converted from native applications; stabilizer structure, and the left- and considered before taking action on the (B) PDF—Searchable Image (Exact) for right-hand elevator sector pinch bolts proposed rule. The proposals contained textual documents converted from and associated holes, which could lead in this action may be changed in light scanned documents; and to loss of a hinge fitting and reduced of the comments received. (C) PDF—Image Only for graphic-, structural integrity of the horizontal Submit comments using the following image-, and forms-oriented documents. stabilizer. This action is intended to format: In addition, Tagged Image File Format address the identified unsafe condition. • Organize comments issue-by-issue. (TIFF) images and the results of For example, discuss a request to DATES: Comments must be received by spreadsheet applications must to be change the compliance time and a January 12, 2004. converted to PDF, except in those rare request to change the service bulletin instances where PDF conversion is not ADDRESSES: Submit comments in reference as two separate issues. practicable. triplicate to the Federal Aviation • For each issue, state what specific (vi) All electronic submissions must Administration (FAA), Transport change to the proposed AD is being be free of hyperlinks to other documents Airplane Directorate, ANM–114, requested. or websites, provided, however, that Attention: Rules Docket No. 2002–NM– • Include justification (e.g., reasons or electronic submissions to the hearing 212–AD, 1601 Lind Avenue, SW., data) for each request. docket may contain hyperlinks within a Renton, Washington 98055–4056. Comments are specifically invited on single PDF file, if those links are created Comments may be inspected at this the overall regulatory, economic, using PDF authoring software; location between 9 a.m. and 3 p.m., environmental, and energy aspects of (vii) All electronic submissions must Monday through Friday, except Federal the proposed rule. All comments be free of author-imposed security holidays. Comments may be submitted submitted will be available, both before restrictions. via fax to (425) 227–1232. Comments and after the closing date for comments, * * * * * may also be sent via the Internet using in the Rules Docket for examination by Dated at Rockville, Maryland, this 20th day the following address: 9-anm- interested persons. A report of November, 2003. [email protected]. Comments sent summarizing each FAA-public contact For the Nuclear Regulatory Commission. via fax or the Internet must contain concerned with the substance of this Annette Vietti-Cook, ‘‘Docket No. 2002–NM–212–AD’’ in the proposal will be filed in the Rules Secretary of the Commission. subject line and need not be submitted Docket. [FR Doc. 03–29557 Filed 11–25–03; 8:45 am] in triplicate. Comments sent via the Commenters wishing the FAA to acknowledge receipt of their comments BILLING CODE 7590–01–P Internet as attached electronic files must be formatted in Microsoft Word 97 or submitted in response to this action 2000 or ASCII text. must submit a self-addressed, stamped postcard on which the following DEPARTMENT OF TRANSPORTATION The service information referenced in statement is made: ‘‘Comments to the proposed rule may be obtained from Federal Aviation Administration Docket Number 2002–NM–212–AD.’’ Boeing Commercial Aircraft Group, The postcard will be date stamped and Long Beach Division, 3855 Lakewood returned to the commenter. 14 CFR Part 39 Boulevard, Long Beach, California [Docket No. 2002–NM–212–AD] 90846, Attention: Data and Service Availability of NPRMs Management, Dept. C1–L5A (D800– Any person may obtain a copy of this RIN 2120–AA64 0024). This information may be NPRM by submitting a request to the examined at the FAA, Transport FAA, Transport Airplane Directorate, Airworthiness Directives; McDonnell Airplane Directorate, 1601 Lind Douglas Model 717–200 Airplanes ANM–114, Attention: Rules Docket No. Avenue, SW., Renton, Washington; or at 2002–NM–212–AD, 1601 Lind Avenue, AGENCY: Federal Aviation the FAA, Los Angeles Aircraft SW., Renton, Washington 98055–4056. Administration, DOT. Certification Office, 3960 Paramount Discussion ACTION: Notice of proposed rulemaking Boulevard, Lakewood, California. The FAA has received a report (NPRM). FOR FURTHER INFORMATION CONTACT: Maureen Moreland, Aerospace indicating that the barrel nuts and bolts SUMMARY: This document proposes the Engineer, Airframe Branch, ANM–120L, used to attach the horizontal stabilizer adoption of a new airworthiness FAA, Los Angeles Aircraft Certification hinge fittings to the rear spar of the horizontal stabilizer were not properly directive (AD) that is applicable to Office, 3960 Paramount Boulevard, certain McDonnell Douglas Model 717– protected against corrosion during Lakewood, California 90712–4137; 200 airplanes. This proposal would assembly of certain McDonnell Douglas telephone (562) 627–5238; fax (562) require a general visual inspection to Model 717–200 airplanes. In addition, 627–5210. detect corrosion of the left- and right- there is the possibility that the left- and hand horizontal stabilizer hinge fitting SUPPLEMENTARY INFORMATION: right elevator sector pinch bolts may not

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have been properly treated for corrosion • Removing corrosion; a method approved by the FAA, or per protection. These conditions, if not • Performing corrective actions; and data meeting the type certification basis detected and corrected, could result in • Contacting Boeing for repair if of the airplane approved by a Boeing corrosion of the left- and right-hand corrosion rework exceeds tolerance Company Designated Engineering horizontal stabilizer hinge fitting bolts, limits. Representative who has been authorized barrel nuts, and associated holes in the Accomplishment of the actions by the FAA to make such findings. horizontal stabilizer structure, and the specified in the service bulletin is Operators should also note that, left- and right-hand elevator sector intended to adequately address the pinch bolts and associated holes, which identified unsafe condition. although the service bulletin does not could lead to loss of a hinge fitting and list a grace period in the compliance Explanation of Requirements of times, this proposal adds a grace period reduced structural integrity of the Proposed Rule horizontal stabilizer. to the compliance times. The FAA finds Since an unsafe condition has been that such a grace period will preclude Explanation of Relevant Service identified that is likely to exist or airplanes from being grounded Information develop on other products of this same unnecessarily. The FAA has reviewed and approved type design, the proposed AD would Cost Impact Boeing Service Bulletin 717–55–0003, require accomplishment of the actions dated June 18, 2002, which describes specified in the service bulletin There are approximately 84 airplanes the following procedures: described previously, except as • of the affected design in the worldwide Performing a general visual discussed below. fleet. The FAA estimates that 67 inspection for corrosion in the left- and Differences Between Proposed Rule and airplanes of U.S. registry would be right-hand horizontal stabilizer hinge affected by this proposed AD. The work fitting bolts, barrel nuts, and the Service Bulletin hours vary according to the associated holes in the horizontal Operators should note that, although configuration group to which the stabilizer structure; the service bulletin specifies that the • Performing a visual inspection for manufacturer may be contacted for affected airplane belongs. corrosion in the left- and right-hand disposition of certain repair conditions, The following table shows the elevator sector pinch bolts and this proposal would require the repair of estimated cost impact for airplanes associated holes; those conditions to be accomplished per affected by this proposed AD:

TABLE—COST IMPACT

Work hours Cost per Airplane configuration group— per airplane Labor rate per airplane (estimated)— work hour (estimated)—

1 ...... 61 $65 $3,965 2 ...... 57 65 3,705

The cost impact figures discussed it is determined that this proposal Administration proposes to amend part above are based on assumptions that no would not have federalism implications 39 of the Federal Aviation Regulations operator has yet accomplished any of under Executive Order 13132. (14 CFR part 39) as follows: the proposed requirements of this AD For the reasons discussed above, I action, and that no operator would certify that this proposed regulation (1) PART 39—AIRWORTHINESS accomplish those actions in the future if is not a ‘‘significant regulatory action’’ DIRECTIVES this proposed AD were not adopted. The under Executive Order 12866; (2) is not cost impact figures discussed in AD a ‘‘significant rule’’ under the DOT 1. The authority citation for part 39 rulemaking actions represent only the Regulatory Policies and Procedures (44 continues to read as follows: time necessary to perform the specific FR 11034, February 26, 1979); and (3) if Authority: 49 U.S.C. 106(g), 40113, 44701. actions actually required by the AD. promulgated, will not have a significant These figures typically do not include economic impact, positive or negative, § 39.13 [Amended] incidental costs, such as the time on a substantial number of small entities 2. Section 39.13 is amended by required to gain access and close up, under the criteria of the Regulatory adding the following new airworthiness planning time, or time necessitated by Flexibility Act. A copy of the draft directive: other administrative actions. regulatory evaluation prepared for this Manufacturer warranty remedies may be action is contained in the Rules Docket. McDonnell Douglas: Docket 2002–NM–212– available for labor costs associated with A copy of it may be obtained by AD. Applicability: Model 717–200 airplanes, as this proposed AD. As a result, the costs contacting the Rules Docket at the attributable to the proposed AD may be listed in Boeing Service Bulletin 717–55– location provided under the caption 0003, dated June 18, 2002, certificated in any less than stated above. ADDRESSES. category. Regulatory Impact List of Subjects in 14 CFR Part 39 Compliance: Required as indicated, unless accomplished previously. The regulations proposed herein Air transportation, Aircraft, Aviation To detect and correct corrosion of the left- would not have a substantial direct safety, Safety. and right-hand horizontal stabilizer hinge effect on the States, on the relationship The Proposed Amendment fitting bolts, barrel nuts, and associated holes between the national Government and in the horizontal stabilizer structure, and the the States, or on the distribution of Accordingly, pursuant to the left- and right-hand elevator sector pinch power and responsibilities among the authority delegated to me by the bolts and associated holes, which could lead various levels of government. Therefore, Administrator, the Federal Aviation to loss of a hinge fitting and reduced

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structural integrity of the horizontal left- and right-hand elevator sector pinch the fuselage skin and frame shear tie stabilizer, accomplish the following: bolts and associated holes for corrosion in assemblies, which could propagate and accordance with the service bulletin. Service Bulletin References result in possible in-flight (1) If no corrosion is found, before further decompression of the airplane. This (a) The term ‘‘service bulletin,’’ as used in flight, install bolts and barrel nuts with this AD, means the Accomplishment applicable corrosion protection in action is intended to address the Instructions of Boeing Service Bulletin 717– accordance with the service bulletin. identified unsafe condition. 55–0003, dated June 18, 2002. (2) If any corrosion is found, before further DATES: Comments must be received by flight, remove the corrosion and do the Initial Inspection January 12, 2004. actions specified in paragraph (d)(2)(i) or (b) Prior to the accumulation of 18,000 (d)(2)(ii) of this AD, as applicable, in ADDRESSES: Submit comments in total flight cycles, or within 15 months after accordance with the service bulletin. triplicate to the Federal Aviation the effective date of this AD, whichever is (i) If corrosion rework is within tolerance Administration (FAA), Transport later: Perform the general visual inspections limits, before further flight, perform the Airplane Directorate, ANM–114, specified in paragraphs (c) and (d) of this AD, corrective actions in accordance with the Attention: Rules Docket No. 2002–NM– as applicable, in accordance with the service service bulletin, as applicable. bulletin. 288–AD, 1601 Lind Avenue, SW., (ii) If corrosion rework exceeds the Renton, Washington 98055–4056. Note 1: For the purposes of this AD, a tolerance limits and the service bulletin general visual inspection is defined as: ‘‘A specifies to contact Boeing for repair: Before Comments may be inspected at this visual examination of an interior or exterior further flight, repair in accordance with a location between 9 a.m. and 3 p.m., area, installation, or assembly to detect method approved by the Manager, Los Monday through Friday, except Federal obvious damage, failure, or irregularity. This Angeles ACO, FAA; or in accordance with holidays. Comments may be submitted level of inspection is made from within data meeting the type certification basis of via fax to (425) 227–1232. Comments touching distance unless otherwise specified. the airplane approved by a Boeing Company may also be sent via the Internet using A mirror may be necessary to enhance visual DER who has been authorized by the the following address: 9–anm– access to all exposed surfaces in the Manager, Los Angeles ACO, to make such [email protected]. Comments sent findings. For a repair method to be approved, inspection area. This level of inspection is via fax or the Internet must contain made under normally available lighting the approval must specifically reference this conditions such as daylight, hangar lighting, AD. ‘‘Docket No. 2002–NM–288–AD’’ in the flashlight, or droplight and may require subject line and need not be submitted Alternative Methods of Compliance removal or opening of access panels or doors. in triplicate. Comments sent via the Stands, ladders, or platforms may be required (e) In accordance with 14 CFR 39.19, the Internet as attached electronic files must to gain proximity to the area being checked.’’ Manager, Los Angeles ACO, FAA, is be formatted in Microsoft Word 97 or authorized to approve alternative methods of 2000 or ASCII text. Horizontal Stabilizer Hinge Fitting Bolt compliance for this AD. Inspection The service information referenced in Issued in Renton, Washington, on the proposed rule may be obtained from (c) For Group 1 and Group 2 airplanes November 20, 2003. Boeing Commercial Airplane Group, PO identified in paragraph 1.A.1. of the service Kalene C. Yanamura, bulletin: Perform a general visual inspection Box 3707, Seattle, Washington 98124– Acting Manager, Transport Airplane of the left- and right-hand horizontal 2207. This information may be Directorate, Aircraft Certification Service. stabilizer hinge fitting bolts, barrel nuts, and examined at the FAA, Transport the associated holes in the horizontal [FR Doc. 03–29573 Filed 11–25–03; 8:45 am] Airplane Directorate, 1601 Lind stabilizer for corrosion in accordance with BILLING CODE 4910–13–P Avenue, SW., Renton, Washington. the service bulletin. FOR FURTHER INFORMATION CONTACT: (1) If no corrosion is found, before further Candice Gerretsen, Aerospace Engineer, flight, install bolts and barrel nuts with DEPARTMENT OF TRANSPORTATION applicable corrosion protection in Airframe Branch, ANM–120S, FAA, accordance with the service bulletin. Federal Aviation Administration Seattle Aircraft Certification Office, (2) If any corrosion is found, before further 1601 Lind Avenue, SW., Renton, flight, remove the corrosion and do the 14 CFR Part 39 Washington 98055–4056; telephone actions specified in paragraph (c)(2)(i) or (425) 917–6428; fax (425) 917–6590. (c)(2)(ii) of this AD, as applicable, in [Docket No. 2002–NM–288–AD] SUPPLEMENTARY INFORMATION: accordance with the service bulletin. RIN 2120–AA64 (i) If corrosion rework is within tolerance Comments Invited limits, before further flight, perform the Airworthiness Directives; Boeing corrective actions in accordance with the Interested persons are invited to service bulletin, as applicable. Model 747–400F Series Airplanes participate in the making of the (ii) If corrosion rework exceeds the AGENCY: Federal Aviation proposed rule by submitting such tolerance limits and the service bulletin Administration, DOT. written data, views, or arguments as specifies to contact Boeing for repair: Before they may desire. Communications shall ACTION: Notice of proposed rulemaking further flight, repair in accordance with a identify the Rules Docket number and (NPRM). method approved by the Manager, Los be submitted in triplicate to the address Angeles Aircraft Certification Office (ACO), FAA; or in accordance with data meeting the SUMMARY: This document proposes the specified above. All communications type certification basis of the airplane adoption of a new airworthiness received on or before the closing date approved by a Boeing Company Designated directive (AD) that is applicable to for comments, specified above, will be Engineering Representative (DER) who has certain Boeing Model 747–400F series considered before taking action on the been authorized by the Manager, Los Angeles airplanes. This proposal would require proposed rule. The proposals contained ACO, to make such findings. For a repair repetitive detailed and general visual in this action may be changed in light method to be approved, the approval must inspections of the external fuselage skin of the comments received. specifically reference this AD. for cracks; various inspections of the Submit comments using the following Elevator Sector Pinch Bolt Inspection affected area where cracks are found to format: • (d) For Group 1 airplanes identified in determine the extent of the damage; and Organize comments issue-by-issue. paragraph 1.A.1. of the service bulletin: repair of cracks. This action is necessary For example, discuss a request to Perform a general visual inspection of the to detect and correct fatigue cracks in change the compliance time and a

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request to change the service bulletin –300, –100B SUD, –400, and ‘‘400D The cost impact figure discussed reference as two separate issues. series airplanes have different shipping above is based on assumptions that no • For each issue, state what specific fixtures that provide adequate support. operator has yet accomplished any of change to the proposed AD is being Therefore, these airplanes are not the proposed requirements of this AD requested. subject to the same unsafe condition action, and that no operator would • Include justification (e.g., reasons or identified in the 747–400F series accomplish those actions in the future if data) for each request. airplanes having line numbers 968 this proposed AD were not adopted. The Comments are specifically invited on through 1286, inclusive. cost impact figures discussed in AD the overall regulatory, economic, rulemaking actions represent only the Explanation of Relevant Service environmental, and energy aspects of time necessary to perform the specific Information the proposed rule. All comments actions actually required by the AD. submitted will be available, both before The FAA has reviewed and approved These figures typically do not include and after the closing date for comments, Boeing Special Attention Service incidental costs, such as the time in the Rules Docket for examination by Bulletin 747–53–2480, dated March 28, required to gain access and close up, interested persons. A report 2002, which describes procedures for planning time, or time necessitated by summarizing each FAA-public contact repetitive detailed and general visual other administrative actions. concerned with the substance of this inspections of the external fuselage skin Manufacturer warranty remedies may be proposal will be filed in the Rules for cracks; various inspections of the available for labor costs associated with Docket. affected area where cracks are found to this proposed AD. As a result, the costs Commenters wishing the FAA to determine the extent of the damage; and attributable to the proposed AD may be acknowledge receipt of their comments repair of cracks. Repair of a crack less than stated above. submitted in response to this action eliminates the need for the repetitive must submit a self-addressed, stamped detailed and general visual inspections Regulatory Impact postcard on which the following for that repair area only. The regulations proposed herein statement is made: ‘‘Comments to Accomplishment of the actions would not have a substantial direct Docket Number 2002–NM–288–AD.’’ specified in the service bulletin is effect on the States, on the relationship The postcard will be date stamped and intended to adequately address the between the national Government and returned to the commenter. identified unsafe condition. the States, or on the distribution of Availability of NPRMs Explanation of Requirements of power and responsibilities among the Proposed Rule various levels of government. Therefore, Any person may obtain a copy of this it is determined that this proposal NPRM by submitting a request to the Since an unsafe condition has been would not have federalism implications FAA, Transport Airplane Directorate, identified that is likely to exist or under Executive Order 13132. ANM–114, Attention: Rules Docket No. develop on other products of this same For the reasons discussed above, I 2002–NM–288–AD, 1601 Lind Avenue, type design, the proposed AD would certify that this proposed regulation (1) SW., Renton, Washington 98055–4056. require accomplishment of the actions is not a ‘‘significant regulatory action’’ Discussion specified in the service bulletin under Executive Order 12866; (2) is not described previously, except as a ‘‘significant rule’’ under the DOT The FAA has received reports discussed below. indicating that cracking was noticed Regulatory Policies and Procedures (44 during production of three Boeing Differences Between Proposed Rule and FR 11034, February 26, 1979); and (3) if Model 747–400F series airplanes. The Service Bulletin promulgated, will not have a significant economic impact, positive or negative, cracking occurred on the section 42 skin Although the service bulletin on a substantial number of small entities panel assemblies at several fastener specifies that operators may contact the under the criteria of the Regulatory locations common to the body station manufacturer for an alternate repair for Flexibility Act. A copy of the draft 800 frame shear tie between stringers 13 certain cracking conditions, this regulatory evaluation prepared for this and 15 on both the left and right sides proposed AD would require operators to action is contained in the Rules Docket. of the airplanes. The maximum crack repair those conditions per a method A copy of it may be obtained by length was approximately 0.5 inch. approved by the FAA or per data contacting the Rules Docket at the Further investigation revealed that the meeting the type certification basis of location provided under the caption cracks resulted from cyclic fatigue due the airplane approved by a Boeing ADDRESSES. to insufficient support at the tool Company Designated Engineering attachment locations for the section 42 Representative who has been authorized List of Subjects in 14 CFR Part 39 skin panel assemblies during shipment. by the FAA to make such findings. Fatigue cracks in the fuselage skin and Air transportation, Aircraft, Aviation frame shear assemblies, if not detected Cost Impact safety, Safety. and corrected, could propagate and There are approximately 72 airplanes The Proposed Amendment result in undetected cracks and possible of the affected design in the worldwide Accordingly, pursuant to the in-flight decompression of the airplane. fleet. The FAA estimates that 12 Boeing Model 747–400F series airplanes of U.S. registry would be authority delegated to me by the airplanes after line number 1286 have affected by this proposed AD, that it Administrator, the Federal Aviation been inspected and show no damage. would take approximately 1 work hour Administration proposes to amend part Section 42 skin panel assemblies on per airplane to accomplish the proposed 39 of the Federal Aviation Regulations future Model 747–400F series airplanes inspections, and that the average labor (14 CFR part 39) as follows: will be shipped in a modified shipping rate is $65 per work hour. Based on PART 39—AIRWORTHINESS fixture that provides improved support these figures, the cost impact of the DIRECTIVES to prevent future damage. The section proposed AD on U.S. operators is 42 skin panel assemblies for Boeing estimated to be $780, or $65 per 1. The authority citation for part 39 Model 747–100, –200B, –200C, –100B, airplane, per inspection cycle. continues to read as follows:

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Authority: 49 U.S.C. 106(g), 40113, 44701. the inspector. Inspection aids such as mirror, DEPARTMENT OF TRANSPORTATION magnifying lenses, etc., may be used. Surface § 39.13 [Amended] cleaning and elaborate access procedures Federal Aviation Administration 2. Section 39.13 is amended by may be required.’’ adding the following new airworthiness 14 CFR Part 39 directive: Note 2: For the purposes of this AD, a general visual inspection is defined as: ‘‘A [Docket No. 86–ANE–12–AD] Boeing: Docket 2002–NM–288–AD. visual examination of an interior or exterior RIN 2120–AA64 Applicability: Model 747–400F series area, installation, or assembly to detect airplanes, having line numbers 968 through obvious damage, failure, or irregularity. This Airworthiness Directives; General 1286 inclusive, certificated in any category. level of inspection is made from within Compliance: Required as indicated, unless Electric CF6–80C2 Series Turbofan touching distance unless otherwise specified. accomplished previously. Engines To detect and correct fatigue cracks in the A mirror may be necessary to enhance visual fuselage skin and frame shear tie assemblies, access to all exposed surfaces in the AGENCY: Federal Aviation which could propagate and result in possible inspection area. This level of inspection is Administration, DOT. in-flight decompression of the airplane, made under normally available lighting ACTION: Proposed rule; withdrawal. accomplish the following: conditions such as daylight, hangar lighting, flashlight, or droplight and may require SUMMARY: This action withdraws a Service Bulletin Reference removal or opening of access panels or doors. notice of proposed rulemaking (NPRM) (a) The term ‘‘service bulletin,’’ as used in Stands, ladders, or platforms may be required that proposed a new airworthiness this AD, means the Accomplishment to gain proximity to the area being checked.’’ directive (AD), applicable to General Instructions of Boeing Special Attention Electric (GE) CF6–80C2 series turbofan Service Bulletin 747–53–2480, dated March Crack Findings: Inspections and Repair 28, 2002. engines. That action would have (d) If any crack is found during any required imposing a life limit on certain Compliance Time inspection required by paragraph (c) of this forward engine mount thrust links. (b) At the later compliance time specified AD, before further flight, do the actions Since that NPRM was issued, the FAA in paragraphs (b)(1) and (b)(2) of this AD, do specified in paragraphs (d)(1) and (d)(2) of has determined that the affected parts the inspections specified in paragraph (c) of this AD. are no longer eligible for installation, this AD. (1) Perform inspections of the affected area and therefore, the unsafe condition is (1) Within 6,000 flight cycles after the date to determine the extent of the crack using the of issuance of the original Airworthiness not likely to exist or develop on other Certificate or date of issuance of the Export following applicable inspection methods, per products of the same type design. Certificate of Airworthiness, whichever the service bulletin: detailed inspection; Accordingly, the proposed rule is comes first. open-hole high frequency eddy current withdrawn. (HFEC) inspection; surface HFEC inspection; (2) Within 3,000 flight cycles after the FOR FURTHER INFORMATION CONTACT: effective date of this AD. and dye penetrant inspection. Karen Curtis, Aerospace Engineer, (2) Repair any crack per the service Repetitive Inspections Engine Certification Office, FAA, Engine bulletin. Where the service bulletin specifies and Propeller Directorate, 12 New (c) Perform both inspections of the external contacting Boeing for an alternate repair England Executive Park, Burlington, MA fuselage skin as shown in Table 1 of this AD, method: Before further flight, repair per a per the service bulletin. Repeat the 01803; telephone (781) 238–7192; fax method approved by the Manager, Seattle inspections thereafter at intervals not to (781) 238–7199. exceed 3,000 flight cycles. Aircraft Certification Office (ACO), FAA, or per data meeting the type certification basis SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal TABLE 1.—INSPECTION REQUIREMENTS of the airplane approved by a Boeing Company DER who has been authorized by Aviation Regulations (14 CFR part 39) to add a new airworthiness directive (AD), Type of in- the Manager, Seattle ACO, to make such spection Area to inspect findings. applicable to GE CF6–80C2 series turbofan engines, was published in the (1) Detailed .... Inspect the skin surface for Terminating Action for Repaired Area Federal Register on July 11, 1986 (51 FR cracks initiating from the (e) Accomplishment of the repair per 25208). The proposed rule would have shear tie fasteners (14 lo- paragraph (d)(2) of this AD ends the required imposing a life limit on certain cations on each side) repetitive inspection requirements of forward engine mount thrust links. The common to the body sta- paragraph (c) of this AD for that repaired area forward engine mount frame thrust tion 800 frame between only. links, part numbers (P/Ns) 9383M45G01 stringers S–13 and S–15 on both the left and right Alternative Methods of Compliance and 9383M45G02, and the forward sides of the airplane. engine mount platform thrust links, P/ (f) In accordance with 14 CFR 39.19, the (2) General ..... Inspect the skin surface at Ns 9383M45G03 and 9383M45G04, Manager, ACO, FAA, is authorized to all fastener locations for would have been life-limited to 5,000 cracks between body sta- approve alternative methods of compliance cycles-since-new (CSN). That action was tions 780 to 800 and (AMOCs) for this AD. prompted by the results of low-cycle- stringers S–13 through Issued in Renton, Washington, on fatigue test results that determined S–15 on both the left and November 20, 2003. certain forward engine mount frame and right sides of the airplane. Kalene C. Yanamura, platform thrust links had a finite low- cycle-fatigue life limit. GE Service Note 1: For the purposes of this AD, a Acting Manager, Transport Airplane Directorate, Aircraft Certification Service. Bulletin (SB) 72–022, dated April 26, detailed inspection is defined as: ‘‘An 1988, introduced a redesigned forward intensive visual examination of a specific [FR Doc. 03–29572 Filed 11–25–03; 8:45 am] engine thrust mount system. The structural area, system, installation, or BILLING CODE 4910–13–P assembly to detect damage, failure, or proposed actions were intended to irregularity. Available lighting is normally prevent fracture of forward mount thrust supplemented with a direct source of good links, which could result in the mount’s lighting at intensity deemed appropriate by inability to carry design loads.

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Since that NPRM was issued, the FAA proposal necessary. Class E airspace comments, a self-addressed stamped has determined that all affected engines extending upward from 700 feet or more postcard on which the following are in compliance with the proposed AD above the surface of the earth currently statement is made: ‘‘Comments to by having complied with GE SB 72–022, exists in support of Instrument Flight Docket No. FAA–2003–16207; Airspace dated April 26, 1989. The SB was issued Rules (IFR) operations. This additional Docket No. 03–ANM–10’’. The postcard as a Category 3, Campaign Change, and Class E airspace extending upward from will be date/time stamped and returned GE recommended that this SB be done 700 feet or more above the surface of the to the commenter. at the next shop visit. In addition, the earth is necessary for the safety of IFR Availability of NPRM FAA has determined that the affected aircraft executing new RNAV (GPS) parts are no longer eligible for SIAPs at Polson Airport. Controlled An electronic copy of this document installation, and therefore, the unsafe airspace is developed where there is a may be downloaded through the condition is not likely to exist or requirement for IFR services, which Internet at http://dms.dot.gov. Recently develop on other products of the same includes transitioning to/from the published rulemaking documents can type design. Accordingly, the proposed terminal or en route environment at also be accessed through the FAA’s Web rule is withdrawn. Polson Airport, Polson, MT. page at http://www.faa.gov or the Superintendent of Document’s Web Withdrawal of this notice of proposed DATES: Comments must be received by rulemaking applies only to the NRPM, page at http://www.access.gpo.gov/nara. January 12, 2004. Additionally, any person may obtain and does not prevent us from issuing ADDRESSES: Send comments on this another notice in the future, nor does it a copy of this notice by submitting a proposal to the Docket Management request to the Federal Aviation commit us to any course of action in the System, U.S. Department of future. Administration, 1601 Lind Avenue, Transportation, Room Plaza 401, 400 SW., Renton, WA, 98055. This action is not covered under Seventh Street, SW., Washington, DC Executive Order 12866, the Regulatory Communications must identify both 20590–0001. You must identify the document numbers for this notice. Flexibility Act, or DOT Regulatory docket number, FAA–2003–16207 Policies and Procedures (44 FR 11034, Persons interested in being placed on a Airspace Docket No. 03–ANM–10, at the mailing list for future NPRMs should February 26, 1979) because it only beginning of your comments. You may withdraws a notice of proposed contact the FAA’s Office of Rulemaking, also submit comments on the Internet at (202) 267–9677, to request a copy of rulemaking, and it is neither a proposed http://dms.dot.gov. You may review the nor a final rule. Advisory Circular No. 11–2A, Notice of public docket containing the proposal, Proposed Rulemaking Distribution List of Subjects in 14 CFR Part 39 any comments received, and any final System, which describes the application Air transportation, Aircraft, Aviation dispositions in person in the Docket procedures. safety, Safety. Office between 9 a.m. and 5 p.m., Monday through Friday, except Federal The Proposal The Withdrawal holidays. The Docket Office (telephone This action amends title 14 Code of The notice of proposed rulemaking, number 1 (800) 647–5527) is on the Federal Regulations, part 71 (14 CFR Docket No. 86–ANE–12–AD, published plaza level of the Department of part 71) by revising Class E airspace at in the Federal Register on July 11, 1986 Transportation NASSIF Building at the Polson Airport, Polson, MT. The (51 FR 25208), is withdrawn. above address. establishment of new RNAV (GPS) An informed docket may also be SIAPs at the Polson Airport makes this Issued in Burlington, Massachusetts, on examined during normal business hours November 20, 2003. proposal necessary. Establishing Class E at the Office of the Regional Air Traffic airspace extending upward from 700 Francis A. Favara, Division, Northwest Mountain Region, feet or more above the surface of the Acting Manager, Engine and Propeller Federal Aviation Administration, earth is necessary to provide adequate Directorate, Aircraft Certification Service. Airspace Branch ANM–520, 1601 Lind controlled airspace for the safety of IFR [FR Doc. 03–29571 Filed 11–25–03; 8:45 am] Avenue, SW., Renton, WA 98055. RNAV operations at Polson Airport. BILLING CODE 4910–13–P SUPPLEMENTARY INFORMATION: Controlled airspace is developed where there is a requirement for IFR services, Comments Invited which includes transitioning to/from DEPARTMENT OF TRANSPORTATION Interested parties are invited to the terminal or en route environment at Federal Aviation Administration participate in this proposed rulemaking Polson Airport, Polson, MT. by submitting such written data, views, Class E airspace designations are 14 CFR Part 71 or arguments, as they may desire. published in paragraph 6005 of FAA Comments that provide the factual basis Order 7400.9L dated September 16, [Docket No. FAA–2003–16207; Airspace supporting the views and suggestions 2003, and effective September 15, 2004, Docket No. 03–ANM–10] presented are particularly helpful in which is incorporated by reference in 14 developing reasoned regulatory CFR 71.1. The Class E airspace Proposed Revision of Class E decisions on the proposal. Comments designation listed in this document will Airspace: Polson, MT are specifically invited on the overall be published subsequently in this AGENCY: Federal Aviation regulatory, aeronautical, economic, Order. Administration (FAA), DOT. environmental, and energy-related The FAA has determined that this ACTION: Notice of proposed rulemaking. aspects of the proposal. proposed regulation only involves an Communications should identify Docket established body of technical SUMMARY: This proposal would revise No. FAA–2003–16207, Airspace Docket regulations for which frequent and Class E airspace at Polson Airport, 03–ANM–10, and be submitted in routine amendments are necessary to Polson, MT. The establishment of Area triplicate to the address listed above. keep them operationally current. Navigation (RNAV) Global Positioning Commenters wishing the FAA to Therefore, this proposed regulation—(1) System (GPS) Standard Instrument acknowledge receipt of their comments is not a ‘‘significant regulatory action’’ Approach Procedures (SIAP) makes this on this action must submit, with those under Executive Order 12866; (2) is not

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a ‘‘significant rule’’ under DOT ENVIRONMENTAL PROTECTION electronic comments to EPA. To submit Regulatory Policies and Procedures (44 AGENCY comments, please follow the detailed FR 11034; February 26, 1979); and (3) instructions described in the does not warrant preparation of a 40 CFR Part 52 Supplementary Information section. regulatory evaluation as the anticipated Copies of the documents relevant to this [DE056/059–1038b; FRL–7591–1] impact is so minimal. Since this is a action are available for public routine matter that will only affect air Approval and Promulgation of Air inspection during normal business traffic procedures and air navigation, it Quality Implementation Plans; hours at the Air Protection Division, is certified that this proposed rule Delaware; Revisions to Delaware’s U.S. Environmental Protection Agency, would not have a significant economic Motor Vehicle Emissions Inspection Region III, 1650 Arch Street, impact on a substantial number of small Program and Low Enhanced Philadelphia, Pennsylvania 19103; and entities under the criteria of the Inspection and Maintenance Program the Delaware Department of Natural Regulatory Flexibility Act. Resources & Environmental Control, 89 AGENCY: Environmental Protection Kings Highway, P.O. Box 1401, Dover, List of Subjects in 14 CFR Part 71 Agency (EPA). Delaware 19903. Airspace, Incorporation by reference, ACTION: Proposed rule. FOR FURTHER INFORMATION CONTACT: Navigation (air). Catherine L. Magliocchetti, (215) 814– SUMMARY: EPA proposes to approve the The Proposed Amendment 2174, or by e-mail at State Implementation Plan (SIP) [email protected]. Accordingly, pursuant to the revisions submitted by the State of authority delegated to me, the Federal Delaware pertaining to its Vehicle SUPPLEMENTARY INFORMATION: For Aviation Administration proposes to Emissions Inspection Program and Low further information, please see the amend 14 CFR part 71 as follows: Enhanced Inspection and Maintenance information provided in the direct final Program. These revisions include a five- action, with the same title, that is PART 71—DESIGNATION OF CLASS A, model-year vehicle exemption, the located in the ‘‘Rules and Regulations’’ CLASS B, CLASS C, CLASS D, AND incorporation of a New Model Year section of this Federal Register CLASS E AIRSPACE AREAS; Clean Screen provision, and the publication. AIRWAYS; ROUTES; AND REPORTING addition of an on-board diagnostic You may submit comments either POINTS (OBD) systems check. In the Final Rules electronically or by mail. To ensure section of this Federal Register, EPA is proper receipt by EPA, identify the 1. The authority citation for 14 CFR appropriate rulemaking identification part 71 continues to read as follows: approving these revisions as a direct final rule without prior proposal number DE056–1038 in the subject line Authority: 49 U.S.C. 106(g), 40103, 40113, because the Agency views these as on the first page of your comment. 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– Please ensure that your comments are 1963 Comp., p. 389. noncontroversial submittals and anticipates no adverse comments. A submitted within the specified comment period. Comments received after the § 71.1 [Amended] more detailed description of the state submittals and EPA’s evaluation are close of the comment period will be 2. The incorporation by reference in included in a Technical Support marked ‘‘late.’’ EPA is not required to 14 CFR 71.1 of the Federal Aviation Document (TSD) prepared in support of consider these late comments. Administration Order 7400.9L, Airspace 1. Electronically. If you submit an this rulemaking action. A copy of the Designations and Reporting Points, electronic comment as prescribed TSD is available, upon request, from the dated September 16, 2003, and effective below, EPA recommends that you EPA Regional Office listed in the September 15, 2004, is amended as include your name, mailing address, ADDRESSES section of this document. If follows: and an e-mail address or other contact no adverse comments are received in information in the body of your Paragraph 6005, Class E airspace areas response to this action, no further comment. Also include this contact extending upward from 700 feet or more activity is contemplated. If EPA receives information on the outside of any disk above the surface of the earth. adverse comments, the direct final rule or CD–ROM you submit, and in any * * * * * will be withdrawn and all public cover letter accompanying the disk or comments received will be addressed in ANM CO E5 Polson, MT (Revised) CD–ROM. This ensures that you can be a subsequent final rule based on this Polson Airport, Polson, MT identified as the submitter of the proposed rule. EPA will not institute a (Lat. 47°49′44″ N., long. 114°11′06″ W.) comment and allows EPA to contact you second comment period. Any parties That airspace extending upward from 700 in case EPA cannot read your comment interested in commenting on this action feet above the surface of the earth bounded due to technical difficulties or needs should do so at this time. by a line beginning at lat. 47°49′55″ N., long further information on the substance of 114°13′30″ W., to lat. 47°47′00″ N., long. DATES: Comments must be received in ° ′ ″ ° ′ ″ your comment. EPA’s policy is that EPA 114 01 00 W.; to lat. 47 31 45 N., writing by December 26, 2003. will not edit your comment, and any 114°10′10″ W.; to lat. 47°35′35″ N., long. ADDRESSES: Comments may be 114°22′35″ W.; thence to point of origin; identifying or contact information excluding that airspace within Federal submitted either by mail or provided in the body of a comment will airways. electronically. Written comments be included as part of the comment that should be mailed to Makeba Morris, * * * * * is placed in the official public docket. Chief, Air Quality Planning Branch, If EPA cannot read your comment due Issued in Seattle, Washington, on Mailcode 3AP21, U.S. Environmental to technical difficulties and cannot November 12, 2003. Protection Agency, Region III, 1650 contact you for clarification, EPA may John Pipes, Arch Street, Philadelphia, Pennsylvania not be able to consider your comment. Acting Assistant Manager, Air Traffic 19103. Electronic comments should be i. E-mail. Comments may be sent by Division, Northwest Mountain Region. sent either to [email protected] or electronic mail (e-mail) to [FR Doc. 03–29594 Filed 11–25–03; 8:45 am] to http://www.regulations.gov., which is [email protected], attention BILLING CODE 4910–13–M an alternative method for submitting DE056–1038. EPA’s e-mail system is not

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an ‘‘anonymous access’’ system. If you within the disk or CD–ROM the specific ENVIRONMENTAL PROTECTION send an e-mail comment directly information that is CBI). Information so AGENCY without going through Regulations.gov, marked will not be disclosed except in EPA’s e-mail system automatically accordance with procedures set forth in 40 CFR Part 52 captures your e-mail address. E-mail 40 CFR part 2. [MO 198–1198; FRL–7591–3] addresses that are automatically In addition to one complete version of captured by EPA’s e-mail system are the comment that includes any Approval and Promulgation of included as part of the comment that is information claimed as CBI, a copy of Implementation Plans; State of MO placed in the official public docket. the comment that does not contain the AGENCY: ii. Regulations.gov. Your use of information claimed as CBI must be Environmental Protection Regulation.gov is an alternative method submitted for inclusion in the official Agency (EPA). of submitting electronic comments to public regional rulemaking file. If you ACTION: Proposed rule. EPA. Go directly to http:// submit the copy that does not contain www.regulations.gov, then select SUMMARY: EPA proposes to approve a CBI on disk or CD–ROM, mark the revision to the State Implementation ‘‘Environmental Protection Agency’’ at outside of the disk or CD–ROM clearly the top of the page and use the ‘‘go’’ Plan (SIP) submitted by the state of that it does not contain CBI. Information Missouri. The purpose of this revision is button. The list of current EPA actions not marked as CBI will be included in available for comment will be listed. to update the transportation conformity the public file and available for public rule. Please follow the online instructions for inspection without prior notice. If you DATES: submitting comments. The system is an have any questions about CBI or the Comments on this proposed ‘‘anonymous access’’ system, which procedures for claiming CBI, please action must be received in writing by means EPA will not know your identity, December 26, 2003. consult the person identified in the FOR e-mail address, or other contact FURTHER INFORMATION CONTACT section. ADDRESSES: Comments may be information unless you provide it in the submitted either by mail or body of your comment. Considerations When Preparing electronically. Written comments iii. Disk or CD–ROM. You may submit Comments to EPA should be mailed to Heather Hamilton, comments on a disk or CD–ROM that Environmental Protection Agency, Air you mail to the mailing address You may find the following suggestions helpful for preparing your Planning and Development Branch, 901 identified in the ADDRESSES section of comments: North 5th Street, Kansas City, Kansas this document. These electronic 66101. Electronic comments should be submissions will be accepted in 1. Explain your views as clearly as sent either to WordPerfect, Word or ASCII file format. possible. [email protected], or to http:// Avoid the use of special characters and 2. Describe any assumptions that you www.regulations.gov, which is an any form of encryption. used. alternative method for submitting 2. By Mail. Written comments should 3. Provide any technical information electronic comments to EPA. To submit be addressed to the EPA Regional office and/or data you used that support your comments, please follow the detailed listed in the ADDRESSES section of this views. instructions described in ‘‘What action document. 4. If you estimate potential burden or is EPA taking’’ in the SUPPLEMENTARY For public commenters, it is costs, explain how you arrived at your INFORMATION section of the direct final important to note that EPA’s policy is estimate. rule which is located in the rules that public comments, whether section of the Federal Register. submitted electronically or in paper, 5. Provide specific examples to will be made available for public illustrate your concerns. FOR FURTHER INFORMATION CONTACT: viewing at the EPA Regional Office, as 6. Offer alternatives. Heather Hamilton at (913) 551–7039, or EPA receives them and without change, 7. Make sure to submit your by e-mail at [email protected]. unless the comment contains comments by the comment period SUPPLEMENTARY INFORMATION: In the copyrighted material, confidential deadline identified. final rules section of the Federal business information (CBI), or other 8. To ensure proper receipt by EPA, Register, EPA is approving the SIP information whose disclosure is identify the appropriate regional file/ revision as a direct final rule without restricted by statute. When EPA rulemaking identification number in the prior proposal because the Agency identifies a comment containing subject line on the first page of your views this as a noncontroversial copyrighted material, EPA will provide response. It would also be helpful if you revision amendment and anticipates no a reference to that material in the provided the name, date, and Federal relevant adverse comments to this version of the comment that is placed in Register citation related to your action. A detailed rationale for the the official public rulemaking file. The comments. approval is set forth in the direct final entire printed comment, including the Please note that if EPA receives rule. If no relevant adverse comments copyrighted material, will be available adverse comment on an amendment, are received in response to this action, at the Regional Office for public paragraph, or section of this rule and if no further activity is contemplated in inspection. that provision may be severed from the relation to this action. If EPA receives relevant adverse comments, the direct Submittal of CBI Comments remainder of the rule, EPA may adopt as final those provisions of the rule that final rule will be withdrawn and all Do not submit information that you are not the subject of an adverse public comments received will be consider to be CBI electronically to EPA. comment. addressed in a subsequent final rule You may claim information that you based on this proposed action. EPA will submit to EPA as CBI by marking any Dated: November 13, 2003. not institute a second comment period part or all of that information as CBI (if Maria Parisi Vickers, on this action. Any parties interested in you submit CBI on disk or CD–ROM, Acting Regional Administrator, Region III. commenting on this action should do so mark the outside of the disk or CD–ROM [FR Doc. 03–29428 Filed 11–25–03; 8:45 am] at this time. Please note that if EPA as CBI and then identify electronically BILLING CODE 6560–50–P receives adverse comment on part of

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this rule and if that part can be severed DATES: Comments, identified by docket Documents.’’ You can also go directly to from the remainder of the rule, EPA may (ID) number OPP–2003–0209, must be the Federal Register listings at http:// adopt as final those parts of the rule that received on or before January 26, 2004. www.epa.gov/fedrgstr/. A frequently are not the subject of an adverse ADDRESSES: Comments may be updated electronic version of 40 CFR comment. For additional information, submitted by mail, electronically, or in part 180 is available at http:// see the direct final rule which is located person. Please follow the detailed www.access.gpo.gov/nara/cfr/ in the rules section of this Federal instructions for each method as cfrhtml_00/Title_40/40cfr180_00.html, a Register. provided in Unit I. of the beta site currently under development. SUPPLEMENTARY INFORMATION. 2. In person. The Agency has Dated: November 13, 2003. To ensure proper receipt by EPA, it is imperative established an official record for this James B. Gulliford, that you identify docket ID number action under docket ID number OPP– Regional Administrator, Region 7. OPP–2003–0209 in the subject line on 2003–0209. The official record consists [FR Doc. 03–29426 Filed 11–25–03; 8:45 am] the first page of your response. of the documents specifically referenced BILLING CODE 6560–50–P FOR FURTHER INFORMATION CONTACT: By in this action, and other information mail: Barbara Mandula, Biopesticides related to this action, including any and Pollution Prevention Division information claimed as Confidential ENVIRONMENTAL PROTECTION (7511C), Office of Pesticide Programs Business Information (CBI). This official AGENCY Environmental Protection Agency, 1200 record includes the documents that are physically located in the docket, as well Pennsylvania Ave., NW., Washington, 40 CFR Part 180 as the documents that are referenced in DC 20460; telephone number: (703) those documents. The public version of [OPP–2003–0209; FRL–7332-4] 308–7378; e-mail address: the official record does not include any [email protected]. Proposed Revocation of Tolerance information claimed as CBI. The public Exemptions for Certain Biopesticides SUPPLEMENTARY INFORMATION: version of the official record, which I. General Information includes printed, paper versions of any AGENCY: Environmental Protection electronic comments submitted during Agency (EPA). A. Does this Action Apply to Me? an applicable comment period is ACTION: Proposed rule. You may be affected by this action if available for inspection in the Public you are an agricultural producer, food Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall SUMMARY: manufacturer, or pesticide This document proposes to #2, 1921 Jefferson Davis Hwy., revoke exemptions from the manufacturer. Potentially affected categories and entities may include, but Arlington, VA, from 8:30 a.m. to 4 p.m., requirement of a tolerance, as expressed Monday through Friday, excluding legal in 40 CFR part 180, on residues of the are not limited to: • Crop production (NAICS 111) holidays. The PIRIB telephone number following pesticide active ingredients • Animal production (NAICS 112) is (703) 305–5805. because there are no active Federal • Food manufacturing (NAICS 311) Insecticide, Fungicide, and Rodenticide • Pesticide manufacturing (NAICS C. How and to Whom Do I Submit Act (FIFRA) product registrations 32532) Comments? applicable to these exemptions: This listing is not intended to be You may submit comments through Dihydroazadirachtin; Kontrol HV; exhaustive, but rather provide a guide the mail, in person, or electronically. To Metarhizium anisopliae strain ESF1 in for readers regarding entities likely to be ensure proper receipt by EPA, it is attractant stations; polyhedral occlusion affected by this action. Other types of imperative that you identify docket ID bodies of Autographa californica NPV; entities not listed in the table could also number OPP–2003–0209 in the subject Pseudomonas fluorescens EG-1053; be affected. The North American line on the first page of your response. Pseudomonas fluorescens NCIB 12089; Industrial Classification System 1. By mail. Submit your comments to: and Puccinia canaliculata ATCC (NAICS) codes have been provided to Public Information and Records (40199). In addition, this document assist you and others in determining Integrity Branch (PIRIB), Information proposes to revoke the tolerance whether or not this action might apply Resources and Services Division exemption for Bacillus thuringiensis to certain entities. If you have questions (7502C), Office of Pesticide Programs CryIA(b) delta-endotoxin and the regarding the applicability of this action (OPP), Environmental Protection genetic material necessary for its to a particular entity, consult the person Agency, 1200 Pennsylvania Ave., NW., production in corn because that listed under FOR FURTHER INFORMATION Washington, DC 20460. tolerance exemption has been replaced CONTACT. 2. In person or by courier. Deliver by a tolerance exemption that applies to your comments to: Public Information all plants. The regulatory actions B. How Can I Get Additional and Records Integrity Branch (PIRIB), proposed in this document contribute Information, Including Copies of this Information Resources and Services toward the Agency’s tolerance Document and Other Related Division (7502C), Office of Pesticide reassessment requirements of the Documents? Programs (OPP), Environmental Federal Food, Drug, and Cosmetic Act 1. Electronically. You may obtain Protection Agency, Rm. 119, Crystal (FFDCA) section 408(q), as amended by electronic copies of this document, and Mall #2, 1921 Jefferson Davis Hwy., the Food Quality Protection Act (FQPA) certain other related documents that Arlington, VA. The PIRIB is open from of 1996. By law, EPA is required by might be available electronically, from 8:30 a.m. to 4 p.m., Monday through August 2006 to reassess tolerances in the EPA Internet Home Page at http:// Friday, excluding legal holidays. The existence on August 2, 1996. For www.epa.gov/. To access this document, PIRIB telephone number is (703) 305– counting purposes, the proposed on the Home Page select ‘‘Laws and 5805. revocations would count as nine FQPA Regulations,’’ ‘‘Regulations and 3. Electronically. You may submit tolerance/exemption reassessments Proposed Rules,’’ and then look up the your comments electronically by e-mail made toward the August 2006 review entry for this document under the to: [email protected], or you can deadline. ‘‘Federal Register—Environmental submit a computer disk as described in

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this unit. Do not submit any information F. What Can I Do if I Wish the Agency tolerance exemptions that have been electronically that you consider to be to Maintain a Tolerance Exemption that superseded, unless any person CBI. Electronic comments must be the Agency Proposes to Revoke? commenting on the proposal indicates a submitted as an ASCII file avoiding use This proposed rule provides a need for the tolerance exemption to of special characters and any form of comment period of 60 days for any cover residues in or on imported encryption. Comments and data will person to state an interest in retaining commodities or domestic commodities also be accepted on standard disks in a tolerance exemption proposed for legally treated. WordPerfect 6.1/8.0 or ASCII file revocation. If EPA receives a comment Following are the details of the final format. All comments in electronic form within the 60–day period to that effect, product cancellations for the above must be identified by docket ID number EPA will not proceed to revoke the active ingredients and the number of OPP–2003–0209. Electronic comments tolerance exemption immediately. tolerances that will be counted as may also be filed online at many Federal However, EPA will take steps to ensure reassessed once a final rule is issued. 1. Dihydroazadirachtin. Product Depository Libraries. the submission of any needed 70051–29 canceled on August 25, 2000 supporting data and will issue an order D. How Should I Handle CBI that I Want for non-payment of maintenance fees. in the Federal Register under FFDCA to Submit to the Agency? Announced on September 6, 2000 (67 section 408(f) if needed. The order FR 54114) (FRL–6737–7). According to Do not submit any information would specify data needed and the time Agency records, this product was the electronically that you consider to be frames for its submission, and would last FIFRA registered product CBI. You may claim information that require that within 90 days some person containing the active ingredient you submit to EPA in response to this or persons notify EPA that they will Dihydroazadirachtin, which is exempt document as CBI by marking any part or submit the data. If the data are not from the requirement of a tolerance in all of that information as CBI. submitted as required in the order, EPA or on all raw agricultural commodities Information so marked will not be will take appropriate action under when applied as specified under 40 CFR disclosed except in accordance with FFDCA. EPA issues a final rule after 180.1169. The Agency believes that procedures set forth in 40 CFR part 2. considering comments that are sufficient time has passed for stocks to In addition to one complete version of submitted in response to this proposed have been exhausted and for treated the comment that includes any rule. In addition to submitting commodities to have cleared channels information claimed as CBI, a copy of comments in response to this proposal, of trade. Revocation of this tolerance the comment that does not contain the you may also submit an objection at the exemption in a final rule will count as information claimed as CBI must be time of the final rule. If you fail to file submitted for inclusion in the public one tolerance reassessment. an objection to the final rule within the 2. Kontrol HV. Product 17217–2 version of the official record. time period specified, you will have canceled on July 21, 1998 for non- Information not marked confidential waived the right to raise any issues payment of 1998 maintenance fees. will be included in the public version resolved in the final rule. After the Announced on July 31 1998 (63 FR of the official record without prior specified time, issues resolved in the 41145) (FRL–6015–8). According to notice. If you have any questions about final rule cannot be raised again in any Agency records, this product was the CBI or the procedures for claiming CBI, subsequent proceedings. last FIFRA registered product please consult the person listed under II. Background containing the active ingredient Kontrol FOR FURTHER INFORMATION CONTACT. HV, which is exempt from the A. What Action is the Agency Taking? E. What Should I Consider as I Prepare requirement of a tolerance when used My Comments for EPA? EPA is proposing to revoke various on cotton to control the tobacco exemptions from the requirement of a budworm under 40 CFR 180.1063. The You may find the following tolerance, as expressed in specific Agency believes that sufficient time has suggestions helpful for preparing your sections of 40 CFR part 180, for residues passed for stocks to have been comments: of the following active ingredients exhausted and for treated commodities 1. Explain your views as clearly as because of non-payment of maintenance to have cleared channels of trade. possible. fees and because there are no currently Revocation of this tolerance exemption 2. Describe any assumptions that you registered products to which the subject in a final rule will count as one used. tolerance exemptions apply: Polyhedral tolerance reassessment. 3. Provide copies of any technical occlusion bodies of Autographa 3. Metarhizium anisopliae strain ESF1 information and/or data you used that californica NPV in 40 CFR 180.1125; in attractant stations. Product 64296–2 support your views. Dihydroazadirachtin in 40 CFR canceled on August 25, 2000 for non- 4. If you estimate potential burden or 180.1169; Kontrol HV in 40 CFR payment of maintenance fees. costs, explain how you arrived at the 180.1063; Metarhizium anisopliae strain Announced on September 6, 2000 (65 estimate that you provide. ESF1 in attractant stations in 40 CFR FR 54114) (FRL–6737–7). According to 5. Provide specific examples to 180.1116; Pseudomonas fluorescens EG- Agency records, this product was the illustrate your concerns. 1053 in 40 CFR 180.1088; Pseudomonas last FIFRA registered product 6. Offer alternative ways to improve fluorescens NCIB 12089 in 40 CFR containing the active ingredient the proposed rule. 180.1129; and Puccinia canaliculata metarhizium anisopliae strain ESF1 for 7. Make sure to submit your ATCC 40199 in 40 CFR 180.1123. use in attractant stations. Currently, comments by the deadline in this It is EPA’s general practice to propose there are three tolerance exemptions in document. revocation of those tolerance 40 CFR 180.1116 for metarhizium 8. To ensure proper receipt by EPA, exemptions for residues of pesticide anisopliae ESF1 in or on all raw be sure to identify the docket ID number active ingredients on food for which agricultural commodities, animal feed, assigned to this action in the subject there are no active registered uses under and processed food when used in line on the first page of your response. FIFRA, or for which there are no attractant stations. The Agency believes You may also provide the name, date, registered products to which the that sufficient time has passed for stocks and Federal Register citation. tolerance exemption applies, or for to have been exhausted and for treated

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commodities to have cleared channels in a final rule will count as one used as plant-incorporated protectants in all of trade. Revocation of this tolerance tolerance reassessment. plant raw agricultural commodities 40 CFR exemption in a final rule will count as 7. Puccinia canaliculata ATCC 40199. 180.1173, August 2, 1996 (61 FR 40343) three tolerance reassessments. Product 65263–1 canceled July 29, 1999 (FRL–5391–3). 4. Polyhedral occlusion bodies of for non-payment of fees for 1999. The October 15, 2001 Biopesticides Autographa californica nuclear Announced on August 11, 1999 (64 FR Registration Action Document further polyhedrosis virus (NPV). Product 43820) (FRL–6086–8). According to states that the tolerance exemption in 40 70051–43 canceled on July 21, 1998 for Agency records, this product was the CFR 180.1152 is also considered non-payment of maintenance fees. last FIFRA registered product reassessed because it is included in the Announced on July 31, 1998 (63 FR containing the active ingredient broader tolerance exemption described 41145) (FRL–6015–8). According to Puccinia canaliculata ATCC 40199, in (c) above. The report continues: Agency records, this product was the which is exempt from the requirement The Agency plans on revoking this more last FIFRA registered product of a tolerance in or on all raw narrow tolerance exemption in the near future in order to reduce confusion. containing the active ingredient agricultural commodities when applied Therefore, in this document EPA is polyhedral occlusion bodies of as specified under 40 CFR 180.1123. proposing to revoke the exemption in 40 Autographa californica NPV, which is The Agency believes that sufficient time CFR 180.1152 because it is no longer exempt from the requirement of a has passed for stocks to have been needed. The final rule will not change tolerance in or on all raw agricultural exhausted and for treated commodities availability or use of the pesticide commodities under 40 CFR 180.1125. to have cleared channels of trade. The Agency believes that sufficient time Revocation of this tolerance exemption mentioned. A hardcopy of the Executive has passed for stocks to have been in a final rule will count as one Summary of the October 15, 2001 exhausted and for treated commodities tolerance reassessment. document is available in the public to have cleared channels of trade. 8. Bacillus thuringiensis. EPA is docket for this rule, while an electronic The tolerance exemption in 40 CFR proposing to revoke the exemption from copy is available through EPA’s 180.1125 for polyhedral occlusion a requirement of a tolerance for residues electronic public docket and comment bodies of Autographa californica of Bacillus thuringiensis CryIA(b) delta- system, EPA Dockets at http:// nuclear polyhedrosis virus in or on all endotoxin and the genetic material www.epa.gov/edocket/. You may search raw agricultural commodities was necessary for its production in corn for docket ID number OPP–2003–0209, previously reassessed in 2002 and listed as (plasmid vector pCIB4431) in then click on that docket number to counted at that time. Therefore, 40 CFR 180.1152. That tolerance view its contents. revocation of this tolerance exemption exemption is no longer necessary, B. What is the Agency’s Authority for in a final rule would not be counted having since been subsumed by a Taking this Action? toward the tolerance reassessment total. tolerance exemption, 40 CFR 180.1173, 5. Pseudomonas fluorescens EG-1053. announced on August 2, 1996 (61 FR A ‘‘tolerance’’ represents the Product 55638–5 canceled on July 9, 40343) (FRL–5391–3), that applies to all maximum level for residues of pesticide 1997 for non-payment of maintenance plants and all genetic material necessary chemicals legally allowed in or on raw fees. Announced on July 23, 1997 (62 to produce CryIA(b). The text of 40 CFR agricultural commodities and processed FR 39517) (FRL–5729–8). According to 180.1152 exempts this active ingredient foods hereinafter collectively referred to Agency records, this product was the from the requirement of a tolerance as (‘‘food’’). Section 408 of FFDCA, 21 last FIFRA registered product when used as a plant pesticide in or on U.S.C. 301 et seq., as amended by the containing the active ingredient the raw agricultural commodities field FQPA of 1996, Public Law 104–170, Pseudomonas fluorescens EG-1053, corn, sweet corn, and popcorn. Because authorizes the establishment of which is exempt from the requirement this tolerance exemption was previously tolerances exemptions from tolerance of a tolerance when used in or on reassessed, as explained below, the requirements, modifications in cottonseed and cotton forage under 40 number of tolerances that will be tolerances, and revocation of tolerances CFR 180.1088. The Agency believes that counted as reassessed by revocation of for residues of pesticide chemicals in or sufficient time has passed for stocks to 40 CFR 180.1152 is zero. on foods, 21 U.S.C. 346(a). Without a have been exhausted and for treated EPA has found previously that the tolerance or exemption, food containing commodities to have cleared channels exemption in 40 CFR 180.1152, Bacillus pesticide residues is considered to be of trade. Revocation of this tolerance thuringiensis CryIA(b) delta-endotoxin unsafe and therefore ‘‘adulterated’’ exemption in a final rule will count as and the genetic material necessary for under section 402(a) of the FFDCA. If two tolerance reassessments. its production (plasmid vector food containing pesticide residues is 6. Pseudomonas fluorescens NCIB pCIB4431) in corn, is superseded by the considered to be ‘‘adulterated,’’ you may 12089. Product 67186–1 canceled June exemption in 40 CFR 180.1173, covering not distribute the product in interstate 27, 1997 for non-payment of fees for all plant-incorporated protectants. In a commerce 21 U.S.C. 331a) and 342(a). 1997. Announced on July 23, 1997 (62 registration decision document titled For a food-use pesticide to be sold and FR 39517) (FRL–5729–8). According to ‘‘Biopesticides Registration Action distributed, the pesticide must not only Agency records, this product was the Document: Bacillus thuringiensis Plant- have appropriate tolerances under the last FIFRA registered product Incorporated Protectants,’’ issued FFDCA, but also must be registered containing the active ingredient October 15, 2001, EPA states: under FIFRA 7 U.S.C. (et seq.). Food-use Pseudomonas fluorescens NCIB 12089, By this reassessment, EPA has completed pesticides not registered in the United which is exempt from the requirement its tolerance reassessment for Cry1A(b) States have tolerances for residues of of a tolerance when used in or on (§180.1173) and for Cry3A (§180.1147) under pesticides in or on commodities mushrooms under 40 CFR 180.1129. 408(q) of the FFDCA. The following tolerance imported into the United States. The Agency believes that sufficient time exemptions allow the use of the listed plant- EPA’s general practice is to propose incorporated protectants in food and/or feed. has passed for stocks to have been c. Bacillus thuringiensis Cry1A(b) delta- revocation of tolerances for residues of exhausted and for treated commodities endotoxin and the genetic material necessary pesticide active ingredients on crops for to have cleared channels of trade. for its production in all plants are exempt which FIFRA registrations no longer Revocation of this tolerance exemption from the requirement of a tolerance when exist and on which the pesticide may

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therefore, no longer be used in the required to support the continuation of would be counted as reassessments United States. EPA also revokes a tolerance or exemption, EPA may toward the August 2006 review deadline tolerances that have been superseded or require that parties interested in of FFDCA section 408(q), as amended by replaced. EPA has historically been maintaining the tolerances or FQPA in 1996. concerned that retention of tolerances exemptions provide the necessary III. Are the Proposed Actions that are not necessary to cover residues information. If the requisite information Consistent With International in or on legally treated foods may is not submitted, EPA may issue an Obligations? encourage misuse of pesticides within order revoking the tolerance or the United States. Nonetheless, EPA exemption at issue. The tolerance revocations in this will establish and maintain tolerances proposal are not discriminatory and are C. When Do These Actions Become even when corresponding domestic uses designed to ensure that both Effective? are canceled if the tolerances, which domestically-produced and imported EPA refers to as ‘‘import tolerances,’’ are EPA is proposing that revocation of foods meet the food safety standards necessary to allow importation into the these tolerance exemptions become established by the FFDCA. The same United States of food containing such effective on the day the final rule food safety standards apply to pesticide residues. However, where revoking these tolerance exemptions is domestically produced and imported there are no imported commodities that published in the Federal Register. The foods. require these import tolerances, the Agency believes that the revocation date EPA is working to ensure that the U.S. Agency believes it is appropriate to allows users to exhaust stocks and tolerance reassessment program under revoke tolerances for unregistered allows sufficient time for passage of FQPA does not disrupt international pesticides in order to prevent potential treated commodities through the trade. EPA considers Codex Maximum misuse. channels of trade. However, if EPA is Residue Limits (MRLs) in setting U.S. Furthermore, and as a general matter, presented with information that existing tolerances and in reassessing them. the Agency believes that retention of stocks would still be available and that MRLs are established by the Codex import tolerances not needed to cover information is verified, the Agency will Committee on Pesticide Residues, a any imported food may result in an consider leaving the existing tolerance committee within the Codex unnecessary restriction on trade of exemption in place. If you have Alimentarius Commission, an pesticides and foods. Under section 408 comments regarding existing stocks and international organization formed to of the FFDCA, a tolerance may only be whether the effective date allows promote the coordination of established or maintained if EPA sufficient time for treated commodities international food standards. It is EPA’s determines that the tolerance is safe to clear the channels of trade, please policy to harmonize U.S. tolerances based on a number of factors, including submit comments as described under with Codex MRLs to the extent possible, an assessment of the aggregate exposure Unit I.C. Similarly, if you have provided that the MRLs achieve the to the pesticide and an assessment of comments regarding these tolerance level of protection required under the cumulative effects of such pesticide exemption revocations or the effective FFDCA. EPA’s effort to harmonize with and other substances that have a date of the revocations, please submit Codex MRLs is summarized in the common mechanism of toxicity. In comments as described under Unit I.C. tolerance reassessment section of doing so, EPA must consider potential Any commodities listed in this individual Reregistration Eligibility contributions to such exposure from all proposal treated with the pesticides Decision documents. EPA has tolerances. If the cumulative risk is such subject to this proposal, and in the developed guidance concerning that the tolerances in aggregate are not channels of trade following the submissions for import tolerance safe, then every one of these tolerances tolerance revocations, shall be subject to support (June 1, 2000 65 FR 35069) is potentially vulnerable to revocation. FFDCA section 408(i)(5), as established (FRL–6559–3). This guidance will be Furthermore, if unneeded tolerances are by FQPA. Under this section, any made available to interested persons. included in the aggregate and residues of these pesticides in or on Electronic copies are available on the cumulative risk assessments, the such food shall not render the food internet at http://www.epa.gov/. On the estimated exposure to the pesticide adulterated so long as it is shown to the Home Page select ‘‘Laws and would be inflated. Consequently, it may satisfaction of the Food and Drug Regulations,’’ then select ‘‘Regulations be more difficult for others to obtain Administration (FDA) that: (1) The and Proposed Rules’’ and then look up needed tolerances or to register needed residue is present as the result of an the entry for this document under new uses. To avoid potential trade application or use of the pesticide at a Federal Register—Environmental restrictions, the Agency is proposing to time and in a manner that was lawful Documents.’’ You can also go directly to revoke tolerances and exemptions for under FIFRA, and (2) the residue does the Federal Register listings at http:// residues on crop uses for which FIFRA not exceed the level that was authorized www.epa.gov/fedrgstr/. registrations no longer exist, unless at the time of the application or use to IV. Regulatory Assessment someone expresses a need for such be present on the food under a tolerance Requirements tolerances. Through this proposed rule, or exemption from tolerance. Evidence the Agency is inviting individuals who to show that food was lawfully treated In this proposed rule, EPA is need these import tolerance exemptions may include records that verify the proposing to revoke specific tolerance to identify themselves and those dates that the pesticide was applied to exemptions established under FFDCA exemptions that are needed to cover such food. section 408. The Office of Management imported commodities. and Budget (OMB) has exempted this Parties interested in retention of the D. What Is the Contribution to Tolerance type of action, i.e., a tolerance tolerance exemptions should be aware Reassessment? exemption revocation for which that additional data may be needed to By law, EPA is required by August extraordinary circumstances do not support retention. These parties should 2006 to reassess the tolerances in exist from review under Executive be aware that, under FFDCA section existence on August 2, 1996. For Order 12866, entitled Regulatory 408(f), if the Agency determines that counting purposes, and based on this Planning and Review (58 FR 51735, additional information is reasonably proposed action, nine exemptions October 4, 1993). Because this proposed

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rule has been exempted from review proposal, and will be addressed prior to List of Subjects in 40 CFR Part 180 under Executive Order 12866 due to its issuing a final rule. Environmental protection, lack of significance, this proposed rule In addition, the Agency has Administrative practice and procedures, is not subject to Executive Order 13211, determined that this action will not Agricultural commodities, Pesticides entitled Actions Concerning Regulations have a substantial direct effect on States, and pests, Reporting and recordkeeping That Significantly Affect Energy Supply, on the relationship between the national requirements. Distribution, or Use (66 FR 28355, May government and the States, or on the 22, 2001). This proposed rule does not Dated: November 7, 2003. distribution of power and James Jones, contain any information collections responsibilities among the various subject to OMB approval under the Director, Office of Pesticide Programs. levels of government, as specified in Paperwork Reduction Act (PRA), 44 Therefore, it is proposed that 40 CFR Executive Order 13132, entitled U.S.C. 3501 et seq., or impose any part 180 be amended as follows: Federalism (64 FR 43255, August 10, enforceable duty or contain any 1999). Executive Order 13132 requires unfunded mandate as described under PART 180—[AMENDED] EPA to develop an accountable process Title II of the Unfunded Mandates to ensure ‘‘meaningful and timely input 1. The authority citation for part 180 Reform Act of 1995 (UMRA) Public Law continues to read as follows: 104–4. Nor does it require any special by State and local officials in the development of regulatory policies that Authority: 21 U.S.C. 321(q), 346(a) and considerations as required by Executive 371. Order 12898, entitled Federal Actions to have federalism implications.’’ ‘‘Policies that have federalism implications’’ is Address Environmental Justice in §§ 180.1063, 180.1088, 180.1116, Minority Populations and Low-Income defined in the Executive Order to 180.1123, 180.1125, 180.1129, 180.1152, Populations (59 FR 7629, February 16, include regulations that have and 180.1169 [Removed] 1994); or OMB review or any other ‘‘substantial direct effects on the States, Agency action under Executive Order on the relationship between the national 2. Sections 180.1063, 180.1088, 13045, entitled Protection of Children government and the States, or on the 180.1116, 180.1123, 180.1125, 180.1129, from Environmental Health Risks and distribution of power and 180.1152, and 180.1169 are removed. Safety Risks (62 FR 19885, April 23, responsibilities among the various [FR Doc. 03–29322 Filed 11–25–03; 8:45 am] 1997). This action does not involve any levels of government.’’ This proposed BILLING CODE 6560–50–S technical standards that would require rule directly regulates growers, food Agency consideration of voluntary processors, food handlers and food consensus standards pursuant to section retailers, not States. This action does not FEDERAL COMMUNICATIONS 12(d) of the National Technology alter the relationships or distribution of COMMISSION Transfer and Advancement Act of 1995 power and responsibilities established (NTTAA), Public Law 104–113, section by Congress in the preemption 47 CFR Part 73 12(d) 15 U.S.C. 272 note). Pursuant to provisions of FFDCA section 408(n)(4). [DA 03–3644, MB Docket No. 03–234, RM– the Regulatory Flexibility Act (RFA) 5 For these same reasons, the Agency has 10698] U.S.C. 601 (et seq.), the Agency determined that this proposed rule does previously assessed whether revocations not have any ‘‘tribal implications’’ as Digital Television Broadcast Service; of tolerances might significantly impact described in Executive Order 13175, Fargo, ND a substantial number of small entities entitled Consultation and Coordination AGENCY: Federal Communications and concluded that, as a general matter, with Indian Tribal Governments (65 FR Commission. these actions do not impose a significant 67249, November 6, 2000). Executive ACTION: Proposed rule. economic impact on a substantial Order 13175, requires EPA to develop number of small entities. This analysis an accountable process to ensure SUMMARY: The Commission requests was published on December 17, 1997 ‘‘meaningful and timely input by tribal comments on a petition filed by North (62 FR 66020), and was provided to the officials in the development of Dakota Television License Sub, LLC, Chief Counsel for Advocacy of the Small regulatory policies that have tribal licensee of station KVLY–go, North Business Administration. Taking into implications.’’ ‘‘Policies that have tribal Dakota, proposing the substitution of account this analysis, and available implications’’ is defined in the DTV channel 44 for DTV channel 58. information concerning the pesticides Executive Order to include regulations DTV Channel 44 can be allotted to Fargo listed in this proposed rule, I certify that that have ‘‘substantial direct effects on at reference coordinates 47–20–32 N. this action will not have a significant and 97–17–20 W. with a power of 414, economic impact on a substantial one or more Indian tribes, on the relationship between the Federal a height above average terrain HAAT of number of small entities. Specifically, as 543 meters. Since the community of per the 1997 notice, EPA has reviewed Government and the Indian tribes, or on the distribution of power and Fargo is within 400 kilometers of the its available data on imports and foreign U.S.-Canadian border, concurrence from pesticide usage and concludes that there responsibilities between the Federal Government and Indian tribes.’’ This the Canadian government must be is a reasonable international supply of obtained for this allotment. food not treated with canceled proposed rule will not have substantial pesticides. Furthermore, for the direct effects on tribal governments, on DATES: Comments must be filed on or pesticides named in this proposed rule, the relationship between the Federal before January 5, 2004, and reply the Agency knows of no extraordinary Government and Indian tribes, or on the comments on or before January 20, circumstances that exist as to the distribution of power and 2004. present proposed revocations that responsibilities between the Federal ADDRESSES: The Commission permits would change EPA’s previous analysis. Government and Indian tribes, as the electronic filing of all pleadings and Any comments about the Agency’s specified in Executive Order 13175. comments in proceeding involving determination should be submitted to Thus, Executive Order 13175 does not petitions for rule making (except in EPA along with comments on the apply to this proposed rule. broadcast allotment proceedings). See

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Electronic Filing of Documents in Rule Commission proceedings, such as this part of this comment period and will be Making Proceedings, GC Docket No. 97– one, which involve channel allotments. fully considered in the final 113 (rel. April 6, 1998). Filings by paper See 47 CFR 1.1204(b) for rules determination. can be sent by hand or messenger governing permissible ex parte contacts. DATES: The most recent comment period delivery, by commercial overnight For information regarding proper for the proposed rule closed October 22, courier, or by first-class or overnight filing procedures for comments, see 47 2003. With this reopening notification, U.S. Postal Service mail. The CFR 1.415 and 1.420. written comments may now be Commission’s contractor, Natek, Inc., submitted until January 12, 2004. will receive hand-delivered or List of Subjects in 47 CFR Part 73 ADDRESSES: Submit any comments, messenger-delivered paper filings for Digital television broadcasting, information, and questions by mail to Television. the Commission’s Secretary at 236 the Chief, Division of Scientific Massachusetts Avenue, NE., Suite 110, For the reasons discussed in the Authority, U.S. Fish and Wildlife Washington, DC 20002. The filing hours preamble, the Federal Communications Service, 4401 N. Fairfax Drive, Room at this location are 8 a.m. to 7 p.m. All Commission proposes to amend 47 CFR 750, Arlington, VA 22203; or by fax to hand deliveries must be held together part 73 as follows: 703–358–2276; or by e-mail to with rubber bands or fasteners. Any [email protected]. Comments envelopes must be disposed of before PART 73—RADIO BROADCAST and supporting information will be entering the building. Commercial SERVICES available for public inspection, by overnight mail (other than U.S. Postal appointment, from 8 a.m. to 4 p.m. at Service Express Mail and Priority Mail) 1. The authority citation for part 73 continues to read as follows: the above address. You may also obtain must be sent to 9300 East Hampton copies of the November 5, 1991, Drive, Capitol Heights, MD 20743. U.S. Authority: 47 U.S.C. 154, 303, 334 and 336. proposed rule, and the July 24, 2003, Postal Service first-class mail, Express § 73.622 [Amended] notice to reopen the comment period Mail, and Priority Mail should be from the above address. addressed to 445 12th Street, SW., 2. Section 73.622(b), the Table of FOR FURTHER INFORMATION CONTACT: Washington, DC 20554. All filings must Digital Television Allotments under North Dakota is amended by removing Eleanora Babij at the above address, or be addressed to the Commission’s by phone, 703–358–1708; fax, 703–358– Secretary, Office of the Secretary, DTV channel 58 and adding DTV channel 44 at Fargo. 2276; or e-mail, Federal Communications Commission, [email protected]. Washington, DC 20554. In addition to Federal Communications Commission. filing comments with the FCC, Barbara A. Kreisman, SUPPLEMENTARY INFORMATION: interested parties should serve the Chief, Video Division, Media Bureau. Background petitioner, or its counsel or consultant, [FR Doc. 03–29467 Filed 11–25–03; 8:45 am] The scimitar-horned oryx (Oryx as follows: Andrew S. Kersting, BILLING CODE 6712–01–P Dickstein, Shapiro, Morin & Oshinsky, dammah), addax (Addax LLP, 2101 L Street, NW., Washington, nasomaculatus), and dama gazelle DC 20037–1526 (Counsel for North (Gazella dama) originally occupied the DEPARTMENT OF THE INTERIOR Dakota Television Sub, LLC). same general region of North Africa. The reasons for the decline of all three FOR FURTHER INFORMATION CONTACT: Pam Fish and Wildlife Service antelope species are similar. Blumenthal, Media Bureau, (202) 418– Desertification, coupled with severe 1600. 50 CFR Part 17 droughts, has dramatically reduced SUPPLEMENTARY INFORMATION: This is a RIN 1080–AI82 available habitat. The growth of synopsis of the Commission’s Notice of permanent farming has brought Proposed Rule Making, MB Docket No. Endangered and Threatened Wildlife additional pressures, such as human 03–234, adopted November 6, 2003, and and Plants; Endangered Status for habitat disturbance and competition released November 14, 2003. The full Scimitar-Horned Oryx, Addax, and from domestic livestock, which have text of this document is available for Dama Gazelle restricted these antelopes to marginal public inspection and copying during habitat. Additional pressures from the regular business hours in the FCC AGENCY: Fish and Wildlife Service, civil wars in Chad and the Sudan have Reference Information Center, Portals II, Interior. resulted in increased military activity, 445 12th Street, SW., Room CY–A257, ACTION: Proposed rule; reopening of construction, and uncontrolled hunting. Washington, DC 20554. This document comment period. For further information regarding may also be purchased from the background biological information, Commission’s duplicating contractor, SUMMARY: We, the U.S. Fish and factors affecting the species, and Qualex International, Portals II, 445 Wildlife Service (Service), provide conservation measures available to 12th Street, SW., Room CY–B402, notice of the reopening of the comment scimitar-horned oryx, addax, and dama Washington, DC 20554, telephone 202– period for the proposed rule to list three gazelle, please refer to the proposed rule 863–2893, facsimile 202–863–2898, or species of antelope: scimitar-horned published in the Federal Register on via e-mail [email protected]. oryx (Oryx dammah), addax (Addax November 5, 1991 (56 FR 56491), and Provisions of the Regulatory nasomaculatus), and dama gazelle the notice to reopen the comment Flexibility Act of 1980 do not apply to (Gazella dama), as endangered. The period published on July 24, 2003 (68 this proceeding. comment period is reopened to FR 43706). Members of the public should note accommodate requests by two non- that from the time a Notice of Proposed government organizations for additional Public Comments Solicited Rule Making is issued until the matter time to provide information. Comments We will accept written comments and is no longer subject to Commission previously submitted need not be information during this reopened consideration or court review, all ex resubmitted because they will be comment period from the public, other parte contacts are prohibited in incorporated into the public record as concerned governmental agencies, the

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scientific community, industry, or any oryx, addax, and dama gazelle, and representatives or officials of other interested party. Comments particularly whether any captive or non- organizations or businesses, available particularly are sought concerning; native free ranging populations are for public inspection in their entirety. (1) Biological, commercial trade, or likely to have been hybridized. Comments and materials received will other relevant data concerning any Our practice is to make comments, be available for public inspection, by threat (or lack thereof) to the scimitar- including names and home addresses of appointment, from 8 a.m. to 4 p.m. at horned oryx, addax, and dama gazelle; respondents, available for public review the Division of Scientific Authority (see (2) Additional information concerning ADDRESSES section). the range, distribution, and population during regular business hours. Any size of the scimitar-horned oryx, addax, person commenting may request that we Author and dama gazelle; withhold their home address, which we (3) Current planned activities in the will honor to the extent allowable by The primary author of this notice is species’ range and their possible law. In some circumstances, we may Eleanora Babij, Division of Scientific impacts on the scimitar-horned oryx, also withhold a commenter’s identity, as Authority, U.S. Fish and Wildlife addax, and dama gazelle; allowable by law. If you wish us to Service (see ADDRESSES section). (4) Information on the validity of G. withhold your name or address, you Authority: 16 U.S.C. 1361–1407; 16 U.S.C. d. lozanoi as a subspecies; must state this request prominently at 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– (5) Alternatives to the treatment of the beginning of your comment. 625, 100 Stat. 3500; unless otherwise noted. However, we will not consider captive and non-native free-ranging Dated: November 14, 2003. populations of scimitar-horned oryx, anonymous comments. To the extent Steve Williams, addax, and dama gazelle; and consistent with applicable law, we will (6) Information on the genetic make all submissions from Director, Fish and Wildlife Service. integrity of captive and non-native free- organizations or businesses, and from [FR Doc. 03–29533 Filed 11–25–03; 8:45 am] ranging populations of scimitar-horned individuals identifying themselves as BILLING CODE 4310–55–P

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Notices Federal Register Vol. 68, No. 228

Wednesday, November 26, 2003

This section of the FEDERAL REGISTER project proposals for FY2004 funds Committee will begin at 9 a.m. and end contains documents other than rules or regarding the Secure Rural Schools and at 3:30 p.m., Thursday, December 4, proposed rules that are applicable to the Community Self-Determination Act of 2003, in the Aldermanic Chambers of public. Notices of hearings and investigations, 2000 (Pub. L. 106–393) for expenditure Manchester City Hall, 108 Elm Street, committee meetings, agency decisions and of Payments to States Fresno County Manchester, New Hampshire.. The rulings, delegations of authority, filing of petitions and applications and agency Title II funds. purpose of the community forum is to statements of organization and functions are DATES: The meeting will be held on address issues related to access to health examples of documents appearing in this December 16, 2003 from 6:30 p.m. to care by limited-English-proficient and section. 9:30 p.m. hearing-impaired persons. Persons desiring additional ADDRESSES: The meeting will be held at information should contact Aonghas St- the High Sierra Ranger District, Sierra Hilaire of the Eastern Regional Office, DEPARTMENT OF AGRICULTURE National Forest, 29688 Auberry Road, (202) 376–7533, TDD: (202) 376–8116. Prather, California 93651. Send written Forest Service Hearing impaired persons who will comments to Robbin Ekman, Fresno attend the community forum and County Resource Advisory Committee Deschutes Provincial Advisory require the services of a sign language Coordinator, c/o Sierra National Forest Committee (DPAC) interpreter should contact the Eastern High Sierra Ranger District, 29688 Regional Office at least 10 (ten) working AGENCY: Forest Service, USDA. Auberry Road, Prather, CA 93651 or days before the scheduled date of the ACTION: Notice of meeting. electronically to [email protected]. community forum. SUMMARY: The Deschutes Provincial FOR FURTHER INFORMATION CONTACT: The community forum will be Advisory Committee will meet on Robbin Ekman, Fresno County Resource conducted pursuant to the provisions of December 12th, 2003 starting at 9 a.m. Advisory Committee Coordinator, (559) the rules and regulations of the at the Mid-Oregon Federal Credit Union 855–5355 ext. 3341. Commission. SUPPLEMENTARY INFORMATION: Conference Room on 1386 NE Cushing The Dated at Washington, DC November 19, (near the corner of 27th and Neff), Bend, meeting is open to the public. 2003. Oregon. Agenda items will include an Committee discussion is limited to Ivy L. Davis, overview of the fire history on the Forest Service staff and Committee Chief, Regional Programs Coordination Unit. Deschutes National Forest, the district members. However, persons who wish fire recovery briefings, Recreation Fee to bring Payments to States Fresno [FR Doc. 03–29585 Filed 11–25–03; 8:45 am] Demo Project, and the Lower Deschutes County Title II project matters to the BILLING CODE 6335–01–P River limited entry system. The attention of the Committee may file remainder of the day will include info written statements with the Committee sharing and a Public Forum from 4 p.m. staff before or after the meeting. DEPARTMENT OF COMMERCE till 4:30 p.m. All Deschutes Province Public sessions will be provided and International Trade Administration Advisory Committee Meetings are open individuals who made written requests to the public. by December 16, 2003 will have the [A–570–868] FOR FURTHER INFORMATION CONTACT: opportunity to address the Community Chris Mickle, Province Liaison, at those sessions. Agenda items to be Certain Folding Metal Tables and Deschutes NF, Crescent RD, P.O. Box covered include: (1) Call for new Chairs from the People’s Republic of 208, Crescent, OR 97754, Phone (541) projects; (2) Status report from project China: Notice of Partial Rescission of 433–3216. recipients; (3) review and adopt project First Antidumping Duty Administrative Review Dated: November 20, 2003. monitoring form and (4) Public Leslie A.C. Weldon, comment. AGENCY: Import Administration, Deschutes National Forest Supervisor. Dated: November 19, 2003. International Trade Administration, [FR Doc. 03–29633 Filed 11–25–03; 8:45 am] Ray Porter, Department of Commerce. BILLING CODE 3410–11–M District Ranger, ACTION: Notice of Partial Rescission of [FR Doc. 03–29569 Filed 11–25–03; 8:45 am] First Antidumping Duty Administrative BILLING CODE 3410–11–M Review. DEPARTMENT OF AGRICULTURE SUMMARY: On July 29, 2003, the Forest Service Department of Commerce (‘‘the COMMISSION ON CIVIL RIGHTS Department’’) published in the Federal Fresno County Resource Advisory Register a notice announcing the Committee Agenda and Notice of Public Meeting of the New Hampshire Advisory initiation of the administrative review of AGENCY: Forest Service, USDA. Committee the antidumping duty order on folding ACTION: Notice of Meeting. metal tables and chairs from the Notice is hereby given, pursuant to People’s Republic of China (‘‘PRC’’). SUMMARY: The Fresno County Resource the provisions of the rules and The period of review (‘‘POR’’) is Advisory Committee will meet in regulations of the U.S. Commission on December 3, 2001, to May 31, 2003. See Prather, California. The purpose of the Civil Rights, that a community forum of Notice of Initiation of Antidumping and meeting is to discuss and to recommend the New Hampshire Advisory Countervailing Duty Administrative

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Reviews, Requests for Revocation in Part and not as a set. Furniture Development Co., Ltd and and Deferral of Administrative Reviews, (2) Assembled and unassembled folding Feili (Fujian) Co., Ltd (‘‘Feili’’), New- 68 FR 44524, July 29, 2003 (‘‘Initiation chairs made primarily or exclusively Tec Integration Co., Ltd. (‘‘New-Tec’’), Notice’’). This review has now been from steel or other metal (‘‘folding and Shichang. The Department initiated partially rescinded for certain metal chairs’’). Folding metal chairs the review for all companies. See companies because the requesting party include chairs with one or more cross- Initiation Notice. withdrew its requests. braces, regardless of shape or size, On October 27, 2003, the petitioner EFFECTIVE DATE: November 26, 2003. affixed to the front and/or rear legs requested a withdrawal of its request for FOR FURTHER INFORMATION CONTACT: John with rivets, welds or any other type of review of products manufactured or fastener. Folding metal chairs include: Drury, Patrick Edwards or Anya exported by Feili and New-Tec. The those that are made solely of steel or Naschak, Enforcement Group III, Office applicable regulation, 19 CFR 8, Import Administration, International other metal; those that have a back 351.213(d)(1), states that if a party that Trade Administration, U.S. Department pad, a seat pad, or both a back pad requested an administrative review of Commerce, 14th Street and and a seat pad; and those that have withdraws the request within 90 days of Constitution Avenue, N.W., Room 7866, seats or backs made of plastic or other Washington, D.C. 20230; telephone materials. The subject merchandise is the publication of the notice of (202) 482–0195, (202) 482–8029, (202) commonly, but not exclusively, initiation of the requested review, the 482–6375, respectively. packed singly, in multiple packs of Secretary will rescind the review. The petitioner made a request for SUPPLEMENTARY INFORMATION: the same item, or in five piece sets consisting of four chairs and one withdrawal within the 90–day deadline, Scope of the Review table. Specifically excluded from the in accordance with 19 CFR The merchandise subject to this scope of folding metal chairs are the 351.213(d)(1). Respondents Feili and review consists of assembled and following: New-Tec objected to this request, on the unassembled folding tables and folding a. Folding metal chairs with a grounds that Feili and New-Tec had also chairs made primarily or exclusively wooden back or seat, or both; submitted requests for review of entries from steel or other metal, as described b. Lawn furniture; of subject merchandise produced by below: c. Stools; Feili and New-Tec. Petitioner argued (1) Assembled and unassembled folding d. Chairs with arms; and that there is no record evidence that tables made primarily or exclusively e. Child-sized chairs. Feili or New-Tec officially filed a copy from steel or other metal (‘‘folding The subject merchandise is currently of their request for review and, further, metal tables’’). Folding metal tables classifiable under subheadings that there is no copy of such a request include square, round, rectangular, 9401710010, 9401710030, 9401790045, available in the public case file at the and any other shapes with legs affixed 9401790050, 9403200010 and Department. The Department has found with rivets, welds, or any other type 9403200030 of the Harmonized Tariff that Feili and New-Tec have submitted of fastener, and which are made most Schedule of the United States no evidence on record that any commonly, but not exclusively, with (‘‘HTSUS’’). Although the HTSUS individual representing their interests in a hardboard top covered with vinyl or subheadings are provided for this case attempted to file on the official fabric. Folding metal tables have legs convenience and U.S. Customs and record a request for review with the that mechanically fold independently Border Protection (‘‘CBP’’) purposes, the requisite number of copies to the Import Department’s written description of the of one another, and not as a set. The Administration Docket Center, nor that subject merchandise is commonly, but merchandise is dispositive. the review request was served on not exclusively, packed singly, in Background: interested parties in this case, as multiple packs of the same item, or in five piece sets consisting of four On June 16, 2003, in response to the required under the regulations. The chairs and one table. Specifically Department’s notice of opportunity to Department has determined that the excluded from the scope of folding request a review published in the record strongly indicates that Feili and metal tables are the following: Federal Register, Wok and Pan New-Tec did not officially request a a. Lawn furniture; Industry, Inc. (‘‘Wok & Pan’’) requested review in this case. For further b. Trays commonly referred to as the Department conduct an discussion of these issues, please see the ‘‘TV trays’’; administrative review of the Decision Memorandum to Joseph A. c. Side tables; antidumping duty order on folding Spetrini, Deputy Assistant Secretary for d. Child-sized tables; metal tables and chairs (‘‘FMTC’’) from Import Administration, Group III from e. Portable counter sets consisting the PRC (See Notice of Antidumping John Drury, Patrick Edwards, Anya of rectangular tables 36’’ high and Duty Order: Folding Metal Tables and Naschak, case analysts for Office 8 matching stools; and Chairs from the People’s Republic of through Richard O. Weible, Office 8 f. Banquet tables. A banquet table is China, 67 FR 43277 (June 27, 2002)) for Director (November 20, 2003). a rectangular table with a plastic or entries of subject merchandise made by Therefore, for Feili and New-Tec, the laminated wood table top Wok & Pan. On June 26, 2003, EJ approximately 28’’ to 36’’ wide by Footwear, LLC requested the Department is rescinding this review of 48’’ to 96’’ long and with a set of Department conduct an administrative the antidumping duty order on FMTC folding legs at each end of the table. review of entries of subject merchandise from the PRC covering the period One set of legs is composed of two made by Dongguan Shichang Metals December 3, 2001, to May 31, 2003. individual legs that are affixed Factory Co., Ltd. (‘‘Shichang’’). On June This notice is issued and published in together by one or more cross- 30, 2003, the Meco Corporation accordance with sections 751(a)(1) and braces using welds or fastening (‘‘petitioner’’) requested the Department 777(i)(l) of the Act and 19 CFR hardware. In contrast, folding metal conduct an administrative review of 351.213(d)(4) of the Department’s tables have legs that mechanically entries of subject merchandise made by regulations. fold independently of one another, three Chinese producers/exporters: Feili

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Dated: November 20, 2003. The Department initiated the review DEPARTMENT OF COMMERCE James J. Jochum, for all companies. On January 17, 2003, Assistant Secretary for Import petitioners withdrew their request for International Trade Administration Administration. review of 14 companies and the [C-489–806] [FR Doc. 03–29600 Filed 11–25–03; 8:45 am] Department granted this request. See BILLING CODE 3510–DS–S Notice of Partial Rescission of Certain Pasta from Turkey: Notice of Antidumping Duty Administrative Rescission of Countervailing Duty Review, 68 FR 13895 (March 21, 2003). Administrative Review DEPARTMENT OF COMMERCE Based on withdrawals of request for AGENCY: Import Administration, review from Compania Apicola International Trade Administration International Trade Administration, Argentina S.A. and Mielar S.A., the Department of Commerce. [A-357–812] Department rescinded the review with respect to these two companies. See ACTION: Notice of Rescission of Honey From Argentina: Extension of Notice of Partial Rescission of Countervailing Duty Administrative Time Limit for Preliminary Results of Review. Administrative Review Antidumpting Duty Administrative Review, 68 FR 25568 (May 13, 2003). On SUMMARY: In response to a request made AGENCY: Import Administration, August 13, 2003, Radix S.R.L. (Radix) on July 31, 2003, by Gidasa Sabanci International Trade Administration, and Compania Europeo Americana S.A. Gida Sanayi ve Ticaret A.S., a producer/ Department of Commerce. (CEASA), submitted letters of exporter of certain pasta from Turkey, ACTION: Notice of Extension of Time withdrawal of request for review. On the the Department of Commerce initiated Limit. same date, petitioners also submitted a an administrative review of the letter of withdrawal of request for countervailing duty order on certain SUMMARY: The Department of Commerce review with respect to Radix and (the Department) is extending the time pasta from Turkey, covering the period CEASA. The Department granted these January 1, 2002, through December 31, limit for the preliminary results of the requests and subsequently rescinded the 2001–2002 administrative review of the 2002. See Initiation of Antidumping and review with respect to Radix and Countervailing Duty Administrative antidumping duty order on honey from CEASA. See Notice of Partial Rescission Argentina. This review covers five Reviews and Request for Revocation in of Antidumping Duty Administrative exporters of the subject merchandise to Part, 68 FR 50750 (August 22, 2003). As Review, 68 FR 52386 (September 3, the United States and the period May a result of a timely withdrawal of the 2003). 11, 2001 through November 30, 2002. request for review by Gidasa Sabanci EFFECTIVE DATE: November 26, 2003. Notice of Extension Gida Sanayi ve Ticaret, A.S., we are rescinding this review. FOR FURTHER INFORMATION CONTACT: Brian J. Sheba at (202) 482–0145 or Pursuant to the time limits for EFFECTIVE DATE: November 26, 2003. Donna Kinsella at (202) 482–0194, administrative reviews set forth in FOR FURTHER INFORMATION CONTACT: Antidumping and Countervailing Duty section 751(a)(3)(A) of the Tariff Act of Melanie Brown, AD/CVD Enforcement, Enforcement Group III, Office Eight, 1930, as amended (the Tariff Act), the Group I, Office 1, Import Import Administration, International original time limit for the preliminary Administration, U.S. Department of Trade Administration, U.S. Department results of review was September 2, Commerce, 14th Street and Constitution of Commerce, 14th Street and 2003. On July 23, 2003, we extended the Avenue, NW, Washington, DC 20230; Constitution Avenue NW, Washington, time limit for the preliminary results of telephone: (202) 482–4987. review to December 8, 2003. See DC 20230. SUPPLEMENTARY INFORMATION: Extension of Time Limit for Preliminary SUPPLEMENTARY INFORMATION: Results of Administrative Review, 68 FR Background Background 43491. It is not practicable to complete On July 24, 1996, the Department of On December 31, 2002, the American this review within this time limit due to Commerce (‘‘the Department’’) Honey Producers Association and the a number of significant case issues, such published a countervailing duty order Sioux Honey Association (collectively as sales below cost, the collection of on certain pasta from Turkey. See ‘‘petitioners’’) requested an cost data, high inflation, and currency Notice of Countervailing Duty Order: administrative review of the devaluation. Therefore, the Department Certain Pasta from Turkey, 61 FR 38546 antidumping duty order on honey from is further extending the time limit for (July 24, 1996). On July 31, 2003, Gidasa Argentina in response to the completion of the preliminary results of Sabanci Gida Sanayi ve Ticaret, A.S. Department’s notice of opportunity to review until December 31, 2003 in (‘‘Gidasa’’), a producer/exporter of request a review published in the accordance with section 751(a)(3)(A) of certain pasta from Turkey, requested an Federal Register. See Notice of the Tariff Act. The deadline for the final administrative review of the Antidumping Duty Order: Honey from results of this review will continue to be countervailing duty order on certain Argentina, 66 FR 63672 (December 10, 120 days after publication of the pasta from Turkey for the relevant 2001). The petitioners requested the preliminary results. period. In accordance with 19 CFR Department conduct an administrative This extension is in accordance with 351.221(c)(1)(i), we initiated the review review of entries of subject merchandise section 751(a)(3)(A) of the Tariff Act (19 on August 22, 2003 (68 FR 50750). On made by 21 Argentine producers/ U.S.C. 1675 (a)(3)(A) (2001)). November 3, 2003, Gidasa withdrew its exporters. In addition, the Department Dated: November 20, 2003. request for review. received requests for review from 9 Argentine exporters. See Initiation of Edward C. Yang, Scope of Review Antidumping and Countervailing Duty Acting Deputy Assistant Secretary for Import Imports covered by this review are Administrative Reviews and Request for Administration, Group III. shipments of certain non-egg dry pasta Revocation in Part, 68 FR 3009 (January [FR Doc. 03–29602 Filed 11–25–03; 8:45 am] in packages of five pounds (2.27 22, 2003). BILLING CODE 3510–DS–S kilograms) or less, whether or not

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enriched or fortified or containing milk disclosed under APO in accordance undermilled or unpolished rice, coated or other optional ingredients such as with 19 CFR 351.305(a)(3). Timely rice, oiled rice, enriched rice, rice bran, chopped vegetables, vegetable purees, written notification of the return or rice polish, head rice, broken rice, milk, gluten, diastases, vitamins, destruction of APO materials or secondhead rice, brewers rice, coloring and flavorings, and up to two conversion to judicial protective order is screenings, rice flour, and rice hulls. percent egg white. The pasta covered by hereby requested. Failure to comply this scope is typically sold in the retail with the regulations and the terms of an 2. Technology Rights market, in fiberboard or cardboard APO is a sanctionable violation. Technology Rights, including, but not cartons, or polyethylene or This notice is issued and published in limited to: patents, trademarks, service polypropylene bags of varying accordance with 19 CFR 351.213(d)(4). marks, copyrights, trade secrets and dimensions. Dated: November 17, 2003. know-how that relate to the Products. Excluded from the scope of this Jeffrey May, review are refrigerated, frozen, or 3. Export Trade Facilitation Services (as Deputy Assistant Secretary for Import they relate to the Export of Products and canned pastas, as well as all forms of Administration. egg pasta, with the exception of non-egg Technology Rights) [FR Doc. 03–29601 Filed 11–25–03; 8:45 am] dry pasta containing up to two percent BILLING CODE 3510–DS–S Export Trade Facilitation Services, egg white. including, but not limited to: arranging The merchandise subject to review is and coordinating delivery of Product to currently classifiable under item DEPARTMENT OF COMMERCE port of export, arranging for inland and/ 1902.19.20 of the Harmonized Tariff or ocean transportation, allocating Schedule of the United States (HTSUS). International Trade Administration Product to vessel; arranging for storage Although the HTSUS subheading is space at port; arranging for provided for convenience and Customs Export Trade Certificate of Review warehousing, stevedoring, wharfage, purposes, the written description of the handling, inspection, fumigation, merchandise subject to the order is ACTION: Notice of Issuance of an Export quality control, financing, freight dispositive. Trade Certificate of Review, Application No. 03–00005. forwarding, insurance and Scope Rulings documentation; reviewing letters of The Department has issued the SUMMARY: The Department of Commerce credit; invoicing foreign buyer; following scope ruling to date: (1) On has issued an Export Trade Certificate of collecting payment; and arranging for October 26, 1998, the Department self- Review to American Commodity payment of applicable brokerage fees initiated a scope inquiry to determine Company, LLC (‘‘ACC’’). This notice and commissions. summarizes the conduct for which whether a package weighing over five Export Markets pounds as a result of allowable industry certification has been granted. tolerances is within the scope of the FOR FURTHER INFORMATION CONTACT: The Export Markets include all parts antidumping and countervailing duty Jeffrey C. Anspacher, Director, Office of of the world except the United States orders. On May 24, 1999, we issued a Export Trading Company Affairs, (the fifty states of the United States, the final scope ruling finding that, effective International Trade Administration, by District of Columbia, the October 26, 1998, pasta in packages telephone at (202) 482–5131 (this is not Commonwealth of Puerto Rico, the weighing or labeled up to (and a toll-free number), or by e-mail at Virgin Islands, American Samoa, Guam, including) five pounds four ounces is [email protected]. the Commonwealth of the Northern within the scope of the antidumping SUPPLEMENTARY INFORMATION: Title III of Mariana Islands, and the Trust Territory and countervailing duty orders. See the Export Trading Company Act of l982 of the Pacific Islands). Memorandum from John Brinkmann to (15 U.S.C. 4001–21) authorizes the Export Trade Activities and Methods of Richard Moreland, dated May 24, 1999, Secretary of Commerce to issue Export Operation in the case file in the Central Records Trade Certificates of Review. The Unit, main Commerce building, room B- regulations implementing Title III are With respect to the sale of Products, 099 (‘‘CRU’’). found at 15 CFR part 325 (2003). licensing of Technology Rights, and The Office of Export Trading provisions of the Export Trade Rescission of Administrative Review Company Affairs (‘‘OETCA’’) is issuing Facilitation Services, under its proposed The Department’s regulations, at 19 this notice pursuant to 15 CFR 325.6(b), Export Trade Certificate of Review, the CFR 351.213(d)(1), provide that the which requires the Department of American Commodity Company, LLC Department will rescind an Commerce to publish a summary of the may: administrative review if the party that Certification in the Federal Register. (a) Receive information on an requested a review withdraws the Under section 305 (a) of the Act and 15 individual basis from individual request within 90 days of the date of CFR 325.ll(a), any person aggrieved by Suppliers regarding Product available publication of the notice of initiation of the Secretary’s determination may, for export and delivery schedules for the the requested review. Gidasa withdrew within 30 days of the date of this notice, purpose of determining the availability its request for an administrative review bring an action in any appropriate of Products for purchase and export; on November 3, 2003, which is within district court of the United States to set (b) Solicit offers from Suppliers to sell the 90-day deadline. No other party aside the determination on the ground Product to ACC for a specific export requested a review of Gidasa’s sales. that the determination is erroneous. opportunity; Therefore, the Department is rescinding this administrative review. Description of Certified Conduct (c) Obtain agreements from Suppliers This notice also serves as a reminder Export Trade to offer/sell Product through the to parties subject to administrative certified activities of ACC; protective order (APO) of their 1. Products (d) Establish prices, quantities and responsibility concerning the U.S. rice and rice products including: terms for sales of Product in export disposition of proprietary information rough rice, brown rice, milled, markets;

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(e) Solicit orders from potential provision of Export Trade Facilitation Marine Fisheries Service publishes this foreign distributors and purchasers of Services. notice to extend the solicitation period Product for delivery to export markets; ‘‘Supplier’’ means a person who on a notice inviting the public to submit (f) Submit offers to potential produces, provides or sells a Product. proposals for available funding for the distributors and purchasers for sale of Terms and Conditions of Certificate Chesapeake Bay Fisheries Research Product for delivery to export markets; Program, which funds projects that (g) Negotiate and enter into 1. In engaging in Export Trade support research, monitoring, modeling agreements for sale of Product in export Activities and Methods of Operation, and management addressing various markets; ACC shall not intentionally disclose, aspects of Chesapeake Bay fisheries, (h) Enter into agreements to purchase directly or indirectly, to any Supplier published on Friday, October 17, 2003. Product from one or more Suppliers by any information regarding its or any NOAA extends the solicitation period which Suppliers may agree to sell other Supplier’s costs, production, by 11 days to provide the public more exclusively to ACC for delivery in a capacity, inventories, domestic prices, time to submit proposals. The new particular export market or markets. domestic sales, domestic customers, or deadline for the receipt of proposals is ACC may agree to purchase exclusively U.S. business plans, strategies, or December 12, 2003. All other from particular Supplier(s) for resale of methods, unless such information is requirements for this solicitation remain Product in a particular export market or already generally available to the trade the same. or public. markets; DATES: Applications must be received (i) Enter into agreements with one or 2. ACC will comply with requests by 5 p.m. eastern daylight savings time more Export Trade Intermediaries or made by the Secretary of Commerce on on December 12, 2003. Originally, the purchasers for their purchase of Product behalf of the Secretary or the Attorney application deadline was published on by which ACC may agree to deal General for information or documents October 17, 2003 (68 FR 59778). exclusively with a given customer in the relevant to conduct under the export market and/or that customer may Certificate. The Secretary of Commerce ADDRESSES: The address for submitting agree to deal exclusively with ACC. will request such information or Proposals electronically is: http:// Additionally, that customer may agree documents when either the Attorney www.grants.gov/. (Electronic not to purchase from ACC’s competitors General or the Secretary of Commerce submission is encouraged). Paper unless authorized by the ACC to do so; believes that the information or applications must be mailed to the (j) Allocate sales of Product and/or documents are required to determine following address: Derek M. Orner, distribute export orders among that the Export Trade, Export Trade NOAA Chesapeake Bay Office, 410 Suppliers on any basis ACC deems Activities and Methods of Operation of Severn Avenue, Suite 107A, Annapolis, appropriate; a person protected by this Certificate of MD 21403. (k) Act as broker and/or operate as Review continue to comply with the FOR FURTHER INFORMATION CONTACT: For sub-contractor to suppliers and possibly standards of section 303(a) of the Act. further information, contact Derek M. take title to Product; A copy of this certificate will be kept Orner, NOAA Chesapeake Bay (l) Utilize applicable export assistance in the International Trade Office,410 Severn Avenue, Suite 107A, and incentive programs which are Administration’s Freedom of Annapolis, MD 21403, or by phone at available to ACC within the government Information Records Inspection Facility 410–267–5676, or fax to 410–267–5666, and trade sectors; Room 4102, U.S. Department of or via Internet at [email protected]. Commerce, 14th Street and Constitution (m) Provide and/or arrange for the Dated: November 20, 2003. provision of Export Trade Facilitation Avenue, NW., Washington, DC 20230. John Oliver, Services; Dated: November 19, 2003. Deputy Assistant Administrator for (n) Use its discretion, in good faith, to Jeffrey C. Anspacher, sell Product, quote prices for Product, Operations, National Marine Fisheries Director, Office of Export Trading, Company Service. provide information regarding Product, Affairs. or to market or sell Product to any [FR Doc. 03–29599 Filed 11–25–03; 8:45 am] [FR Doc. 03–29563 Filed 11–25–03; 8:45 am] BILLING CODE 3510–12–S distributors or purchasers of its BILLING CODE 3510–DR–P choosing in export markets or in any countries or geographic areas in export DEPARTMENT OF COMMERCE markets; and DEPARTMENT OF COMMERCE (o) Meet with Suppliers, Export Trade National Oceanic and Atmospheric Intermediaries, or trade associations National Oceanic and Atmospheric Administration periodically to discuss matters specific Administration to exporting Product (not related to [Docket No. 030602141–3284–05; I.D. Commercial Remote Sensing Advisory price and supply arrangements between 061703A] Committee Meeting applicant and the individual suppliers) such as relevant facts concerning export RIN 0648–ZB55 ACTION: Notice of public meeting. markets (e.g. demand conditions, Availability of Grants Funds for Fiscal transportation costs and prices), or the SUMMARY: The Advisory Committee on Year 2004 possibility of joint marketing, selling or Commercial Remote Sensing (ACCRES) will meet December 11, 2003. bidding arrangements in the export AGENCY: National Marine Fisheries Date and Time: The meeting is markets. Service (NMFS), National Oceanic and scheduled as follows: Atmospheric Administration (NOAA), Definition December 11, 2003, 8:30 a.m.–5 p.m. Department of Commerce. The first part of this meeting will be ‘‘Export Trade Intermediary’’ means a ACTION: Notice; extension of application closed to the public. The public portion person who acts as distributor, sales deadline. representative, sales or marketing agent, of the meeting will begin at 1 p.m. or broker, or who performs similar SUMMARY: The National Oceanic and ADDRESSES: The meeting will be held in functions including or arranging for the Atmospheric Administration, National Room 8331 of Silver Spring Metro

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Center Building I (SSMC I) in Silver Additional Information and Public Commission approve the subject Spring, Maryland. SSMC I is located at Comments proposed new FCOJ–A futures and 1335 East-West Highway. It is located Any member of the public wishing options contracts and FCOJ–B futures near the Silver Spring Metro Station on further information concerning the contract. The proposals were submitted the Red Line. While open to the public, meeting or who wishes to submit oral or pursuant to Commission Regulations seating capacity may be limited. written comments should contact 40.3 and 40.5. Timothy Stryker, Designated Federal The delivery provisions of the SUPPLEMENTARY INFORMATION: As proposed FCOJ–A futures contract are required by section 10(a)(2) of the Officer for ACCRES, NOAA/NESDIS International and Interagency Affairs the same as the existing FCOJ–2 futures Federal Advisory Committee Act, 5 contract, and the delivery provisions of U.S.C. App. (1982), notice is hereby Office, 1335 East-West Highway, Room 7311, Silver Spring, Maryland 20910. the proposed FCOJ–B futures contract given of the meeting of ACCRES. are the same as the existing FCOJ–1 ACCRES was established by the Copies of the draft meeting agenda can be obtained from Tahara Moreno at futures contract. The FCOJ–A contract Secretary of Commerce (Secretary) on will trade outright, as the principal May 21, 2002, to advise the Secretary (301) 713–2024 ext. 202, fax (301) 713– 2032, or e-mail trading vehicle, and the FCOJ–B through the Under Secretary of [email protected]. contract will trade as a differential to Commerce for Oceans and Atmosphere The ACCRES expects that public the FCOJ–A contract (currently, the on long- and short-range strategies for statements presented at its meetings will FCOJ–1 contract trades outright and the the licensing of commercial remote not be repetitive of previously- FCOJ–2 contract trades as a differential sensing satellite systems. submitted oral or written statements. In to the FCOJ–1 contract). Both the FCOJ–A and FCOJ–B futures Matters To Be Considered general, each individual or group making an oral presentation may be contracts will require delivery of 15,000 The first part of the meeting will be limited to a total time of five minutes. pounds of US Grade A orange solids closed to the public pursuant to Section Written comments (please provide at with a Brix value of not less than 62.5 10(d) of the Federal Advisory least 13 copies) received in the NOAA/ degrees, and a Brix to acid value ration Committee Act, 5 U.S.C. App. 2, as NESDIS International and Interagency of not less than 14 to 1 nor more than amended by Section 5(c) of the Affairs Office on or before December 5, 19 to 1. Deliverable product must also Government in Sunshine Act, Pub. L. 2003, will be provided to Committee have a minimum score of 94, with the 94–409 and in accordance with Section members in advance of the meeting. minimums for the component factors 552b(c)(1) of Title 5, United States Code. Comments received too close to the fixed at 37 for color, 37 for flavor and Accordingly, portions of this meeting meeting date will normally be provided 19 for defects. In addition, both the which involve the ongoing review and to Committee members at the meeting. FCOJ–A and FCOJ–B futures contracts will require delivery in drums or tanks, implementation of the April 2003 U.S. FOR FURTHER INFORMATION CONTACT: Commercial Remote Sensing Space Timothy Stryker, NOAA/NESDIS at the seller’s option, at Exchange- Policy and related national security and International and Interagency Affairs, licensed warehouses in Florida, New foreign policy considerations for 1335 East West Highway, Room 7311, Jersey, Delaware, or California. The NOAA’s licensing decisions may be Silver Spring, Maryland 20910; principal difference between the two closed to the public. These briefings are telephone (301) 713–2024 x205, fax contracts is that the FCOJ–A futures likely to disclose matters that are (301) 713–2032, e-mail contract, which, as noted, will be the specifically authorized under criteria [email protected], or Douglas principal trading vehicle, will require established by Executive Order 12958 to Brauer at telephone (301) 713–2024 delivery of product that is 100% Florida be kept secret in the interest of national x213, e-mail [email protected]. origin, 100% Brazilian origin, or a combination of the two origins, whereas defense or foreign policy and are in fact Gregory W. Withee, the FCOJ–B contract, which, as noted, properly classified pursuant to such Assistant Administrator for Satellite and will trade as a differential to FCOJ–A, Executive Order. Information Services. will not have a country or state of origin All other portions of the meeting will [FR Doc. 03–29561 Filed 11–25–03; 8:45 am] requirement. be open to the public. During the open BILLING CODE 3510–HR–P The Director of the Division of Market portion of the meeting, the Committee Oversight (Division) of the Commission, will discuss its initial findings, the acting pursuant to the authority status of NOAA’s licensing program COMMODITY FUTURES TRADING delegated by Commission Regulation review, special NOAA projects COMMISSION 140.96, has determined that publication concerning the commercial remote of the Exchange’s proposal for comment sensing industry, and civil agency Citrus Associates of the New York is in the public interest, and will assist initiatives on the use of commercial Cotton Exchange Proposed FCOJ–A the Commission in considering the remote sensing products and services. Futures and Options Contract and views of interested persons. The committee will also receive public FCOJ–B Contract DATES: Comments must be received on comments on its activities. AGENCY: Commodity Futures Trading or before December 11, 2003. Special Accommodations Commission. ADDRESSES: Interested persons should ACTION: Notice of availability of terms submit their views and comments to These meetings are physically and conditions of new contract Jean A. Webb, Secretary, Commodity accessible to people with disabilities. specifications for FCOJ–A futures and Futures Trading Commission, Three Requests for special accommodations options contracts and FCOJ–B futures Lafayette, Centre, 1155 21st Street, NW., may be directed to ACCRES, NOAA/ contract. Washington 20581 by the specified date. NESDIS International and Interagency In addition, comments may be sent by Affairs Office, 1335 East-West Highway, SUMMARY: The Citrus Associates of the facsimile transmission to (202) 418– Room 7311, Silver Spring, Maryland New York Cotton Exchange (CANYCE or 5521 or by electronic mail to 20910. Exchange) has requested that the [email protected]. Reference should be

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made to FCOJ–A and FCOJ–B futures information collection requirement and products imposed by statute or policy to and options contract and FCOJ–B seeks public comment on the provisions protect the industrial base; to ensure futures contract. thereof. DoD invites comments on: (a) compliance with U.S. trade agreements FOR FURTHER INFORMATION CONTACT: Whether the proposed collection of and memoranda of understanding that Please contact Martin Murray of the information is necessary for the proper promote reciprocal trade with U.S. Division of Market Oversight, performance of the functions of DoD, allies; and to prepare reports for Commodity Futures Trading including whether the information will submission to the Department of Commission, Three Lafayette Centre, have practical utility; (b) the accuracy of Commerce on the Balance of Payments 1155 21st Street, NW., Washington the estimate of the burden of the Program. 20581, (202) 418–5276. Facsimsile proposed information collection; (c) Affected Public: Businesses or other number: (202) 418–5507. Electronic ways to enhance the quality, utility, and for-profit and not-for-profit institutions. mail: [email protected]. clarity of the information to be Annual Burden Hours: 352,380 collected; and (d) ways to minimize the (52,285 reporting hours; 300,095 SUPPLEMENTARY INFORMATION: Copies of burden of the information collection on recordkeeping hours). the Exchange’s proposal will be respondents, including the use of Number of Respondents: 22,415. available for inspection at the Office of automated collection techniques or Responses Per Respondent: the Secretariat, Three Lafayette Centre, other forms of information technology. Approximately 7. 1155 21st Street, NW., Washington The Office of Management and Budget Number of Responses: 165,134. 20581. Copies of the proposal can also (OMB) has approved this information Average Burden Per Response: .32 be obtained through the Commission’s collection for use through March 31, hours. Web site at http://www.cftc.gov/dea/ 2004. DoD proposes that OMB extend its Frequency: On occasion. pending/deanewcontr.htm, or through approval for use through March 31, Summary of Information Collection the Office of the Secretariat by mail at 2007. the above mailing address or by phone DFARS 252.225–7000, Buy American DATES: at (202) 418–5100. DoD will consider all comments Act-Balance of Payments Program Other materials submitted by the received by January 26, 2004. Certificate, as prescribed in 225.1101(1), CANYCE in support of the request for ADDRESSES: Respondents may submit requires an offeror to identify, in its approval may be available upon request comments directly on the Internet at proposal, supplies that are not domestic pursuant to the Freedom of Information http://emissary.acq.osd.mil/dar/ end products, separately listing Act (5 U.S.C. 552) and the Commission’s dfars.nsf/pubcomm. As an alternative, qualifying country and other foreign end regulations thereunder (17 CFR part 145 respondents may e-mail comments to: products. (2002)), except to the extent they are [email protected]. Please cite OMB Control DFARS 252.225–7003, Report of entitled to confidential treatment as set Number 0704–0229 in the subject line of Intended Performance Outside the forth in 17 CFR 145.5 and 145.9. e-mailed comments. United States, and 252.225–7004, Requests for copies of such materials Respondents that cannot submit Reporting of Contract Performance should be made to the FOI, Privacy and comments using either of the above Outside the United States, as prescribed Sunshine Act Compliance Staff of the methods may submit comments to: in 225.7203, require offerors and Office of the Secretariat at the Defense Acquisition Regulations contractors to report information on Commission’s headquarters in Council, Attn: Ms. Amy Williams, subcontracts to be performed outside accordance with 17 CFR 145.7 and OUSD(AT&L)DPAP(DAR), IMD 3C132, the United States. The reporting 145.8 at the above address. 3062 Defense Pentagon, Washington, DC thresholds are $500,000 for contracts 20301–3062; facsimile (703) 602–0350. exceeding $10 million and the Issued in Washington, DC on November 20, Please cite OMB Control Number 0704– simplified acquisition threshold 2003. 0229. ($100,000) for contracts exceeding Michael Gorham, At the end of the comment period, $500,000. The contractor may submit Director. interested parties may view public the report on DD Form 2139, Report of [FR Doc. 03–29498 Filed 11–25–03; 8:45 am] comments on the Internet at http:// Contract Performance Outside the BILLING CODE 8351–01–M emissary.acq.osd.mil/dar/dfars.nsf. United States, or may use a computer- FOR FURTHER INFORMATION CONTACT: Ms. generated report that contains all Amy Williams, (703) 602–0328. The information required by DD Form 2139. DEPARTMENT OF DEFENSE information collection requirements DFARS 252.225–7005, Identification addressed in this notice are available of Expenditures in the United States, as [OMB Control Number 0704–0229] electronically via the Internet at: prescribed in 225.1103(1), requires Information Collection Requirement; http://www.acq.osd.mil/dp/dars/ contractors incorporated or located in Defense Federal Acquisition dfars.html. Paper copies are available the United States to identify, on each Regulation Supplement; Foreign from Ms. Amy Williams, request for payment under contracts for Acquisition OUSD(AT&L)DPAP(DAR), IMD 3C132, supplies to be used, or for construction 3062 Defense Pentagon, Washington, DC or services to be performed, outside the AGENCY: Department of Defense (DoD). 20301–3062. United States, that part of the requested ACTION: Notice and request for SUPPLEMENTARY INFORMATION: payment representing estimated comments regarding a proposed Title, Associated Form, and OMB expenditures in the United States. extension of an approved information Number: Foreign Acquisition—Defense DFARS 252.225–7013, Duty-Free collection requirement. Federal Acquisition Regulation Entry, as prescribed in 225.1101(4), Supplement Part 225 and Related replaces three clauses formerly at SUMMARY: In compliance with Section Clauses at 252.225; DD Form 2139; OMB DFARS 252.225–7009, Duty-Free 3506(c)(2)(A) of the Paperwork Control Number 0704–0229. Entry—Qualifying Country Supplies Reduction Act of 1995 (44 U.S.C. Needs and Uses: DoD needs this (End Products and Components), Chapter 35), DoD announces the information to ensure compliance with DFARS 252.225–7010, Duty-Free proposed extension of a public restrictions on the acquisition of foreign Entry—Additional Provisions, and

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DFARS 252.225–7037, Duty-Free contracting officer regarding any United Respondents and frequency of Entry—Eligible End Products. This new Kingdom levies included in the offered collection; and (6) Reporting and/or clause requires the contractor to provide price, and require the contractor to Recordkeeping burden. OMB invites information on shipping documents and provide information to the contracting public comment. customs forms regarding products that officer regarding any United Kingdom The Department of Education is are eligible for duty-free entry. levies to be included in a subcontract especially interested in public comment DFARS 252.225–7016, Restriction on that exceeds $1 million, before award of addressing the following issues: (1) Is Acquisition of Ball and Roller Bearings, the subcontract. this collection necessary to the proper as prescribed in 225.7009–4(a), requires DFARS 252.225–7035, Buy American functions of the Department; (2) will the contractor to retain records showing Act—North American Free Trade this information be processed and used compliance with the requirement that Agreement Implementation Act— in a timely manner; (3) is the estimate ball and roller bearings delivered under Balance of Payments Program of burden accurate; (4) how might the the contract be wholly manufactured in Certificate, as prescribed in 225.1101(9), Department enhance the quality, utility, the United States or Canada. The requires an offeror to list any qualifying and clarity of the information to be contractor must retain the records for 3 country, NAFTA country, or other collected; and (5) how might the years after final payment and must make foreign end product that it intends to Department minimize the burden of this the records available upon request of the furnish under the contract. collection on the respondents, including contracting officer. The contractor may through the use of information request a waiver of this requirement in Michele P. Peterson, technology. accordance with DFARS 225.7009–3, Executive Editor, Defense Acquisition Regulations Council. Dated: November 21, 2003. which requires the contractor to submit Angela C. Arrington, a written plan for transitioning to [FR Doc. 03–29495 Filed 11–25–03; 8:45 am] BILLING CODE 5001–08–P Leader, Regulatory Information Management domestically manufactured bearings, if Group, Office of the Chief Information Officer. the waiver is requested under a Office of Special Education and multiyear contract or a contract DEPARTMENT OF EDUCATION Rehabilitative Services exceeding 12 months. Type of Review: Extension. DFARS 252.225–7018, Notice of Title: Annual Client Assistance Prohibition of Certain Contracts with Notice of Proposed Information Collection Requests Program (CAP) Report. Foreign Entities for the Conduct of Frequency: Annually. Ballistic Missile Defense Research, AGENCY: Department of Education. Affected Public: State, local, or tribal Development, Test, and Evaluation, as SUMMARY: The Leader, Regulatory gov’t, SEAs or LEAs. prescribed in 225.7017–4, gives notice Information Management Group, Office Reporting and Recordkeeping Hour of the statutory prohibition on award of of the Chief Information Officer, invites Burden: a contract to a foreign government or comments on the proposed information Responses: 56. Burden Hours: 350. firm, if the contract provides for the collection requests as required by the Abstract: Form RSA–227 is used to conduct of research, development, test, Paperwork Reduction Act of 1995. or evaluation in connection with the analyze and evaluate the Client DATES: Ballistic Missile Defense Program. The Interested persons are invited to Assistance Program (CAP) administered provision requires an offeror to indicate submit comments on or before January by designated CAP agencies. These whether it is or is not a U.S. firm. 26, 2004. agencies provide services to clients and DFARS 252.225–7020, Trade SUPPLEMENTARY INFORMATION: Section client applicants of programs, projects, Agreements Certificate, as prescribed in 3506 of the Paperwork Reduction Act of and community rehabilitation programs 225.1101(5), requires an offeror to list 1995 (44 U.S.C. chapter 35) requires that authorized by the Rehabilitation Act of the item number and country of origin the Office of Management and Budget 1973, as amended. Data also are of any nondesignated country end (OMB) provide interested Federal reported on information and referral product that it intends to furnish under agencies and the public an early services provided to any individual the contract. This provision is used in opportunity to comment on information with a disability. all solicitations for products subject to collection requests. OMB may amend or Requests for copies of the proposed the Trade Agreements Act. waive the requirement for public information collection request may be DFARS 252.225–7025, Restriction on consultation to the extent that public accessed from http://edicsweb.ed.gov, Acquisition of Forgings, as prescribed in participation in the approval process by selecting the ‘‘Browse Pending 225.7102–4, requires the contractor to would defeat the purpose of the Collections’’ link and by clicking on retain records showing compliance with information collection, violate State or link number 2411. When you access the the requirement that end items and their Federal law, or substantially interfere information collection, click on components delivered under the with any agency’s ability to perform its ‘‘Download Attachments ‘‘to view. contract contain forging items that are of statutory obligations. The Leader, Written requests for information should domestic manufacture only. The Regulatory Information Management be addressed to Vivian Reese, contractor must retain the records for 3 Group, Office of the Chief Information Department of Education, 400 Maryland years after final payment and must make Officer, publishes that notice containing Avenue, SW., Room 4050, Regional the records available upon request of the proposed information collection Office Building 3, Washington, DC contracting officer. The contractor may requests prior to submission of these 20202–4651 or to the e-mail address request a waiver of this requirement in requests to OMB. Each proposed [email protected]. Requests may also accordance with DFARS 225.7102–3. information collection, grouped by be electronically mailed to the internet DFARS 252.225–7032, Waiver of office, contains the following: (1) Type address [email protected] or faxed to United Kingdom Levies—Evaluation of of review requested, e.g., new, revision, 202–708–9346. Please specify the Offers, and 252.225–7033, Waiver of extension, existing or reinstatement; (2) complete title of the information United Kingdom Levies, as prescribed Title; (3) Summary of the collection; (4) collection when making your request. in 225.1101(7) and (8), require an offeror Description of the need for, and Comments regarding burden and/or to provide information to the proposed use of, the information; (5) the collection activity requirements

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should be directed to Sheila Carey at her Commission or may be viewed on the with respect to gas producing properties e-mail address [email protected]. Commission’s Web site at http:// in Kansas; (3) it neither owns any Individuals who use a www.ferc.gov, using the eLibrary working interests in any gas producing telecommunications device for the deaf (FERRIS) link. Enter the docket number properties; (4) it has no record of such (TDD) may call the Federal Information excluding the last three digits in the Kansas properties; (5) it has virtually no Relay Service (FIRS) at 1–800–877– docket number field to access the revenues from any source with which it 8339. document. For assistance, please contact might make refunds; and (6) it does not [FR Doc. 03–29581 Filed 11–25–03; 8:45 am] FERC Online Support at have the financial resources to [email protected] or toll- prosecute its claim for relief through the BILLING CODE 4000–01–P free at (866) 208–3676, or for TTY, evidentiary and multiple briefing phases contact (202) 502–8659. Protests and associated with the Commission hearing interventions may be filed electronically in Docket No. RP98–39–029. DEPARTMENT OF ENERGY via the Internet in lieu of paper; see 18 Any person desiring to protest said Federal Energy Regulatory CFR 385.2001(a)(1)(iii) and the filing should file a protest with the Commission instructions on the Commission’s Web Federal Energy Regulatory Commission, site under the ‘‘e-Filing’’ link. The 888 First Street, NE., Washington, DC [Docket No. EG04–3–000] Commission strongly encourages 20426, in accordance with sections electronic filings. 385.211 of the Commission’s Rules and Butte Creek Expansion, LLC; Notice of Comment Date: October 29, 2003. Regulations. All such protests must be Application for Commission filed in accordance with section 154.210 Determination of Exempt Wholesale Linda Mitry, of the Commission’s Regulations. Generator Status Acting Secretary. Protests will be considered by the [FR Doc. 03–29516 Filed 11–25–03; 8:45 am] October 14, 2003. Commission in determining the BILLING CODE 6717–01–P Take notice that on October 8, 2003, appropriate action to be taken, but will Butte Creek Expansion, LLC (Butte not serve to make protestants parties to the proceeding. Any person wishing to Creek), filed with the Federal Energy DEPARTMENT OF ENERGY Regulatory Commission an application become a party to the proceeding or to for determination of exempt wholesale Federal Energy Regulatory participate as a party in any hearing generator status pursuant to part 365 of Commission therein must file a motion to intervene the Commission’s regulations. in accordance with the Commission Butte Creek, a Delaware limited [Docket No. SA04–1–000] rules. This filing is available for review liability company, states that it will be at the Commission in the Public CEC Technologies, Limited; Notice of Reference Room or may be viewed on engaged directly and exclusively in the Petition for Adjustment business of owning all or part of one or the Commission’s Web site at http:// more eligible facilities, and selling November 19, 2003. www.ferc.gov using the eLibrary link. electric energy at wholesale. Butte Creek Take notice that on October 28, 2003, Enter the docket number excluding the further states that it is developing an CEC Technologies Limited (CEC), filed a last three digits in the docket number approximately 238 megawatt wind petition for staff adjustment under field to access the document. For power generation facility to be located section 502(c) of the Natural Gas Policy assistance, please contact FERC Online in Prowers County, Colorado and Act (NGPA) of 1978,1 and Rules 207 and Support at indicates that the Project will be an 212 (18 CFR 385.207—385.212) of the [email protected] or toll- eligible facility pursuant to section Commission’s Rules of Practice and free at (866) 208–3676, or TTY, contact 32(a)(2) of PUHCA. Procedure.CEC seeks relief from paying (202) 502–8659. The Commission Butte Creek states that it has served a Kansas ad valorem tax refunds to strongly encourages electronic filings. copy of the filing on the Securities and Northern Natural Gas Company See 18 CFR 385.2001(a)(1)(iii) and the Exchange Commission and the Public (Northern), pursuant to the instructions on the Commission’s web Utilities Commission of the State of Commission’s January 2, 2003, order in site under the eFiling link. Comment Date: December 3, 2003. Colorado. Northern, Docket No. RP98–39–029.2 Any person desiring to intervene or to In this petition, CEC asserts it first Magalie R. Salas, protest this filing should file with the became aware of a refund claim against Secretary. Federal Energy Regulatory Commission, CEC earlier this year when it received a [FR Doc. E3–00392 Filed 11–25–03; 8:45 am] 888 First Street, NE., Washington, DC letter from Northern stating that BILLING CODE 6717–01–P 20426, in accordance with Rules 211 Chinook Energy Corporation (Chinook) and 214 of the Commission’s Rules of had a refund obligation of Kansas ad Practice and Procedure (18 CFR 385.211 valorem taxes by reason of Chinook’s DEPARTMENT OF ENERGY and 385.214). Protests will be ownership of working interest in natural considered by the Commission in gas wells in Comanche County, Kansas. Federal Energy Regulatory determining the appropriate action to be CEC asserts: (1) It had no knowledge Commission taken, but will not serve to make of the claims made by Northern and [Docket No. EC04–18–000, et al.] protestants parties to the proceeding. therefore is not in a position to affirm Any person wishing to become a party or deny Northern’s claims; (2) it does Alfalfa Electric Cooperative, Inc., et al.; must file a motion to intervene. All such not own any gas producing properties in Electric Rate and Corporate Filings motions or protests should be filed on Kansas or have any records of Chinook or before the comment date, and, to the or CEC ever receiving any revenues from November 19, 2003. extent applicable, must be served on the Northern or from any other pipeline The following filings have been made applicant and on any other person with the Commission. The filings are designated on the official service list. 1 15 U.S.C. 3142 (c) (1982). listed in ascending order within each This filing is available for review at the 2 102 FERC ¶ 61,007 (2003). docket classification.

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1. Alfalfa Electric Cooperative, Inc., The Applicants state that a copy of Energy Regulatory Commission an Choctaw Electric Cooperative, Inc., the application was served upon the application pursuant to section 203 of People’s Electric Cooperative Connecticut Department of Public the Federal Power Act for authorization [Docket Nos. EC04–18–000 and EL04–18– Utility Control. to indirectly dispose of jurisdictional 000] Comment Date: December 2, 2003. facilities through a change of control transaction that has been proposed as 3. Dominion Nuclear Marketing I, Inc., Take notice that on November 12, part of Covanta’s plan of reorganization Dominion Nuclear Marketing II, Inc., 2003, Alfalfa Electric Cooperative, Inc. filed with the U.S. Bankruptcy Court for Dominion Nuclear Connecticut, Inc., (AEC), Choctaw Electric Cooperative, the Southern District of New York. and Dominion Energy Marketing, Inc. Inc. (CEC), and People’s Electric Applicants respectfully request that Cooperative (PEC) (collectively, the [Docket Nos. EC04–20–000 and ER04–189– the Commission approve this transfer on Cooperatives) filed with the Federal 000] an expedited basis and no later than Energy Regulatory Commission (the Take notice that on November 12, December 19, 2003. Commission) a petition for declaratory 2003, Dominion Nuclear Marketing I, Comment Date: December 4, 2003. order pursuant to Rule 207(a)(2) of the Inc. (DNM I), Dominion Nuclear 6. FirstEnergy Corp. and its Public Commission’s Rules of Practice and Marketing II, Inc. (DNM II), Dominion Utility Subsidiaries NRG Energy, Inc. Procedure, 18 CFR 385.207(a)(2) (2003), Nuclear Connecticut, Inc. (DNC) and and its Public Utility Subsidiaries disclaiming jurisdiction under section Dominion Energy Marketing, Inc. 201 of the Federal Power Act (FPA), 16 (DEMI) filed an application pursuant to [Docket No. EC04–23–000] U.S.C. 824(e) (2000). The Cooperatives section 203 of the Federal Power Act, Take notice that on November 14, state that they are seeking a disclaimer for an order authorizing the proposed 2003, FirstEnergy Corp. and its public of jurisdiction over the passive internal corporate reorganization utility subsidiaries (FirstEnergy) and investors, including owner lessors, pursuant to which DNM I and DNM II’s NRG Energy, Inc. and its public utility owner participants, and managers or interest in DNC will be transferred to subsidiaries (NRG) (collectively owner trustees (collectively, Passive DEMI and DNM I and DNM II’s market- Applicants) filed with the Federal Participants) in a lease and leaseback based rate schedules shall be cancelled. Energy Regulatory Commission an transaction (the Transaction) involving Comment Date: December 3, 2003. application pursuant to section 203 of bulk electric distribution systems the Federal Power Act for authorization 4. Union Electric Company d/b/a owned by the Cooperatives and for FirstEnergy to acquire certain debt AmerenUE and Central Illinois Public including transmission facilities owned and common equity securities of NRG as Service Company d/b/a AmerenCIPS by PEC and wholesale distribution a means of settling outstanding claims facilities owned by AEC (PEC’s [Docket No. EC04–21–000] against NRG, and for authorization for transmission facilities and AEC’s Take notice that on November 12, FirstEnergy to dispose of such securities wholesale distribution facilities are 2003, Union Electric Company d/b/a as soon as possible thereafter in light of collectively the Jurisdictional AmerenUE (AmerenUE) and Central market conditions. Applicants state that Facilities.). The Cooperatives also Illinois Public Service Company d/b/a if a Settlement Agreement is approved, petitioned the Commission to authorize AmerenCIPS (AmerenCIPS) FirstEnergy will be entitled to receive the lease and leaseback of the (collectively, AmerenUE and approximately 6.5% of the common Jurisdictional Facilities pursuant to AmerenCIPS are referred to as stock of NRG and approximately $30 section 203 of the FPA Applicants), submitted an application million of NRG Senior Notes. The Cooperatives request that the pursuant to section 203 of the Federal Comment Date: December 5, 2003. Commission issue the requested Power Act, and Part 33 of the Federal 7. H.Q. Energy Services (U.S.) Inc. declaratory order by December 19, 2003. Energy Regulatory Commission Comment Date: December 3, 2003. (Commission) regulations, 18 CFR Part [Docket No. ER97–851–013] 2. Lake Road Trust Ltd. Lake Road 33, requesting all Commission Take notice that on November 12, Generating Company, L.P., Lake Road authorizations and approvals necessary 2003, H.Q. Energy Services (U.S.) Inc. Holding Company LLC, Lake Road GP for AmerenUE to sell and transfer, and (HQUS) tendered for filing an updated Company LLC for AmerenCIPS to purchase and accept, market power study and Change in certain jurisdictional assets now owned Status Report pursuant to the [Docket No. EC04–19–000] by AmerenUE. Commission’s order in H.Q. Energy Take notice that on November 12, Applicants state that copies of this Services (U.S.) Inc., 81 FERC ¶ 61,184 2003, Lake Road Trust Ltd. and Lake filing have been served on all affected (1997). The HQUS states that its Road Generating Company, L.P. state commissions and also parties to submission demonstrates that HQUS (together, the Lake Road Parties) and contracts affected by the transfer. continues to satisfy the Commission’s Lake Road Holding Company LLC and Comment Date: December 3, 2003. requirements for authority to sell power at market-based rates. Lake Road GP Company LLC 5. Covanta Energy Corporation Covanta Comment Date: December 3, 2003. (collectively, Applicants) filed with the Fairfax, Inc. Covanta Haverhill Federal Energy Regulatory Commission Associates Covanta Union, Inc. Covanta 8. Midwest Independent Transmission an application pursuant to section 203 Onondaga, Limited Partnership System Operator, Inc. of the Federal Power Act for authorization to transfer certain [Docket No. EC04–22–000] [Docket No. ER03–986–002] jurisdictional facilities held by the Lake Take notice that on November 13, Take notice that on November 12, Road Parties to the lenders, interest 2003 Covanta Energy Corporation 2003, the Midwest Independent hedge providers and investors of the (Covanta), Covanta Fairfax, Inc., Transmission System Operator, Inc. Lake Road Parties. Applicants seek Covanta Haverhill Associates, Covanta (Midwest ISO) submitted for filing a expedited review of the application and Union, Inc. and Covanta Onondaga, revised Interconnection and Operating request confidential treatment of certain Limited Partnership (collectively, the Agreement among Montana-Dakota documents submitted therewith. Applicants) filed with the Federal Utilities Co., a Division of MDU

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Resources Group, Inc. (Transmission), States, Inc., Entergy Louisiana, Inc., authority granted in Docket No. ER97– the Midwest ISO and Montana-Dakota Entergy Mississippi, Inc., and Entergy 3663–000. Utilities Co., a Division of MDU New Orleans, Inc., (collectively, Comment Date: December 4, 2003. Resources Group, Inc. (Generation) Entergy) filed an amendment to its filing pursuant to Section 205 of the Federal in the above-captioned proceeding in 15. KeySpan Generation LLC Power Act and Section 35.13 of the response to the Commission’s October [Docket No. ER04–112–001] Commission’s regulations, 18 CFR 35.13 22, 2003 Letter Order. Entergy states Take notice that on November 13, (2002). that the amendment and original filing 2003, KeySpan Generation LLC The Midwest ISO requests an effective address proposed revisions to the submitted for filing an amendment to date of June 17, 2003. Entergy Open Access Transmission their October 30, 2003 filing in Docket The Midwest ISO states it has served Tariff, FERC Electric Tariff Second No. ER04–112–000. all parties listed on the official service Revised Volume No. 3, designed to Comment Date: November 21, 2003. list maintained by the Secretary in this implement an Available Flowgate proceeding. In addition, the filing has Capability process for evaluating short- 16. New York Independent System been electronically posted on the term transmission service requests. Operator, Inc. Midwest ISO’s website at http:// Comment Date: December 3, 2003. [Docket No. ER04–186–000] www.midwestiso.org under the heading 12. Midwest Independent Transmission ‘‘Filings to FERC’’ for other interested Take notice that on November 12, System Operator, Inc. parties in this matter. The Midwest ISO 2003, the New York Independent further states it will provide hard copies [Docket No. ER03–1260–001] System Operator, Inc. (NYISO), filed to any interested parties upon request. Take notice that on November 12, proposed revisions to the Independent Comment Date: December 3, 2003. 2003, the Midwest Independent System Operator Agreement. NYISO states that the proposed revisions would 9. Kansas City Power & Light Company Transmission System Operator, Inc. (Midwest ISO) submitted for filing a amend the Independent System [Docket No. ER03–997–001] second revised Interconnection and Operator Agreement to allow two Take notice that on November 12, Operating Agreement among GM individuals to be elected to the position 2003, Kansas City Power & Light Transmission, LLC, the Midwest ISO of chairperson or vice-chairperson of the Company (KCPL) submitted for filing its and Northern States Power Company d/ Management Committee. proposed procedures regarding the b/a Xcel Energy pursuant to Section 205 The NYISO states it has served a copy dispute between KCPL and the City of of the Federal Power Act and Section of this filing to all parties that have Independence, Missouri regarding an 35.13 of the Commission’s regulations, executed Service Agreements under the agreement filed under KCPL’s Market- 18 CFR 35.13. The Midwest ISO NYISO’s OATT or Services Tariff, the Based Rate Tariff providing for the sale requests an effective date of September New York State Public Services of 90 MW of capacity from KCPL to the 1, 2002. Commission and to the electric utility City of Independence. The Midwest ISO states it has served regulatory agencies in New Jersey and Comment Date: December 3, 2003. all parties listed on the official service Pennsylvania. list maintained by the Secretary in this Comment Date: December 3, 2003. 10. Northeast Utilities Service Company proceeding. In addition, the filing has 17. North Jersey Energy Associates, A [Docket No. ER03–1247–001] been electronically posted on the Limited Partnership Take notice that on November 12, Midwest ISO’s website at http:// 2003, Northeast Utilities Service www.midwestiso.org under the heading [Docket No. ER04–187–000] Company, on behalf of its affiliates, The ‘‘Filings to FERC’’ for other interested Take notice that on November 12, Connecticut Light and Power Company, parties in this matter. The Midwest ISO 2003, North Jersey Energy Associates, A Western Massachusetts Electric further states that it will provide hard Limited Partnership (NJEA) petitioned Company, Holyoke Power Company, copies to any interested parties upon the Commission to: (1) accept for filing Holyoke Water Power Company, and request. NJEA’s FERC Electric Tariff (Tariff) and Public Service Company of New Comment Date: December 3, 2003. grant NJEA the blanket authority to Hampshire (collectively, NU 13. Northern/AES Energy, LLC make market-based sales of energy, Companies), submitted First Revised capacity and ancillary services under its Sheet No. 29 superseding Original Sheet [Docket No. ER04–102–001] Tariff; (2) accept for filing NJEA’s No. 29 of the NU Companies’ Open- Take notice that on November 12, Amended and Restated Power Purchase Access Transmission Tariff for local 2003, Northern/AES Energy LLC Agreement; (3) grant NJEA such waivers network service, FERC Electric Tariff (Northern) tendered for filing an and authorizations as have been granted Original Volume No. 10, in compliance amendment to the Notice of by the Commission to other entities with the Commission’s October 22, 2003 Cancellation filed on October 29, 2003 authorized to transact at market-based Order Accepting and Suspending in Docket No. ER04–102–000. rates; and (4) grant NJEA a waiver of the Revised Open Access Transmission Comment Date: December 3, 2003. 60-day and 120-day notice requirements Tariff, and Establishing Hearing and in section 35.3 of the Commission’s 14. Union Electric Development Settlement Judge Procedures, Northeast regulations, 18 CFR 35.3, to the extent Corporation Utilities Service Company, 105 FERC ¶ necessary to permit this filing to become 61,089 (2003). [Docket No. ER04–104–001] effective conditioned on and as of the Comment Date: December 3, 2003. Take notice that on November 13, future date that NJEA notifies the Commission that it has terminated the 11. Entergy Services, Inc. 2003, Union Electric Development Corporation (UEDC) submitted for filing Qualifying Facility status of its 300 MW [Docket No. ER03–1272–001] a Notice of Cancellation of its FERC natural gas-fired electricity and steam Take notice that on November 12, Electric Tariff, Original Volume No. 1. enerating facility in the borough of 2003, Entergy Services, Inc., on behalf of UEDC asserts that the purpose of the Sayreville, New Jersey. Entergy Arkansas, Inc., Entergy Gulf filing is to cancel its market-based Comment Date: December 3, 2003.

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18. Delmarva Power & Light Company Enter the docket number excluding the Regulatory Commission, 888 First Street [Docket No. ER04–188–000] last three digits in the docket number NE., Washington, DC 20426. filed to access the document. For The Commission’s Rules of Practice Take notice that on November 12, assistance, call (202) 502–8222 or TTY, require all intervenors filing documents 2003, Delmarva Power & Light Company (202) 502–8659. Protests and with the Commission to serve a copy of (Delmarva) tendered for filing a Notice interventions may be filed electronically that document on each person on the of Cancellation and an Order No. 614 via the Internet in lieu of paper; see 18 official service list for the project. compliant cancelled rate schedule sheet CFR 385.2001(a)(1)(iii) and the Further, if an intervenor files comments (collectively referred to as Cancellation instructions on the Commission’s Web or documents with the Commission Documents) terminating the rate site under the ‘‘e-Filing’’ link. The relating to the merits of an issue that schedule between Delmarva and the Commission strongly encourages may affect the responsibilities of a Delaware City of Lewes (the Lewes Rate electronic filings. particular resource agency, they must Schedule). Delmarva also tendered for also serve a copy of the document on filing a new executed Interconnection Magalie R. Salas, that resource agency. Agreement with the City of Lewes Secretary. Comments, recommendations, terms (Lewes IA). [FR Doc. E3–00391 Filed 11–25–03; 8:45 AM] and conditions, and prescriptions may Delmarva requests that the BILLING CODE 6717–01–P be filed electronically via the Internet in Commission allow the Cancellation lieu of paper. The Commission strongly Documents to become effective on encourages electronic filings. See 18 December 31, 2003, the date that the DEPARTMENT OF ENERGY CFR 385.2001(a)(1)(iii) and the Lewes Rate Schedule terminates as of its instructions on the Commission’s Web own terms. Delmarva further requests Federal Energy Regulatory site (http://www.ferc.gov) under the ‘‘e- that the Commission allow the Lewes IA Commission Filing’’ link. to become effective on January 1, 2004, k. This application has been accepted, the first date on which interconnection Notice of Application Ready for and is ready for environmental analysis service will no longer be provided as Environmental Analysis and Soliciting at this time. part of the bundled service provided Comments, Recommendations, Terms l. The existing Buffalo River Project under the Lewes Rate Schedule. and Conditions, and Prescriptions consists of: (1) A 142-foot-long by 12- Delmarva states that copies of the November 19, 2003. foot-high timber-faced rock-filled filing were served upon the City of diversion dam; (2) a 40-foot-long by 3- Take notice that the following Lewes and the Delaware Public Service foot-high concrete slab spillway with hydroelectric application has been filed Commission. stop logs; (3) a fish passage structure; (4) Comment Date: December 3, 2003. with the Commission and is available a concrete intake structure with a 5-foot for public inspection. steel slide gate; (5) a trash rack; (6) a 52- 19. Alan J. Fohrer a. Type of Application: Subsequent foot-long by 5-foot-diameter concrete [Docket No. ID–3949–000] Minor License. encased steel penstock; (7) a 34-foot- Take notice that on October 8, 2003, b. Project No.: 1413–032. long by 22-foot-high masonry block Alan J. Fohrer submitted for filing an c. Date filed: October 30, 2002. powerhouse containing a 250-kilowatt application for authorization under d. Applicant: Fall River Rural Electric Bouvier Kaplan inclined shaft turbine; section 305(b) of the Federal Power Act Cooperative, Inc. and (8) other appurtenant facilities. The to hold the following positions: Director e. Name of Project: Buffalo River applicant estimates that the total and Chief, California Edison Company, Hydroelectric Project. average annual generation would be Executive Officer, Director, Duratek, Inc. f. Location: On the Buffalo River near 1,679 megawatthours. Comment Date: December 10, 2003. its confluence with the Henry’s Fork m. A copy of the application is River, near the town of Idaho Falls, in available for review at the Commission Standard Paragraph Fremont County, Idaho. The project in the Public Reference Room or may be Any person desiring to intervene or to occupies 9.8 acres of land within the viewed on the Commission’s Web site at protest this filing should file with the Targhee National Forest. http://www.ferc.gov using the Federal Energy Regulatory Commission, g. Filed Pursuant to: Federal Power ‘‘eLibrary’’ link. Enter the docket 888 First Street, NE., Washington, DC Act 16 U.S.C. 791(a)–825(r). number excluding the last three digits in 20426, in accordance with Rules 211 h. Applicant Contact: Fall River Rural the docket number field to access the and 214 of the Commission’s Rules of Electric Cooperative, Inc., 1150 North document. For assistance, contact FERC Practice and Procedure (18 CFR 385.211 3400 East, Ashton, Idaho 83420, Tel. # Online Support at and 385.214). Protests will be (208) 652–7431, and/or Brent L. Smith, [email protected] or toll- considered by the Commission in President, Northwest Power Services, free at 1–866–208–3676, or for TTY, determining the appropriate action to be Inc, P.O. Box 535, Rigby, Idaho 83442, (202) 502–8659. A copy is also available taken, but will not serve to make Tel. # (208) 745–0834. for inspection and reproduction at the protestants parties to the proceeding. i. FERC Contact: Gaylord Hoisington, address in item h above. Any person wishing to become a party (202) 502–6032, All filings must (1) bear in all capital must file a motion to intervene. All such [email protected]. letters the title ‘‘COMMENTS’’, ‘‘REPLY motions or protests should be filed on j. Deadline for filing comments, COMMENTS’’, or before the comment date, and, to the recommendations, terms and ‘‘RECOMMENDATIONS’’, ‘‘TERMS extent applicable, must be served on the conditions, and prescriptions is 60 days AND CONDITIONS’’, or applicant and on any other person from the issuance of this notice. Reply ‘‘PRESCRIPTIONS’’; (2) set forth in the designated on the official service list. comments are due 105 days from the heading the name of the applicant and This filing is available for review at the issuance date of this notice. the project number of the application to Commission or may be viewed on the All documents (original and eight which the filing responds; (3) furnish Commission’s Web site at http:// copies) should be filed with: Magalie R. the name, address, and telephone www.ferc.gov, using the ‘‘FERRIS’’ link. Salas, Secretary, Federal Energy number of the person submitting the

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filing; and (4) otherwise comply with Heather Campbell at (202) 502–6182, or ‘‘e-library’’ link. Enter the docket the requirements of 18 CFR 385.2001 e-mail address: number excluding the last three digits in through 385.2005. All comments, [email protected]. the docket number field to access the recommendations, terms and conditions j. Deadline for filing comments and or document. For assistance, call toll-free or prescriptions must set forth their motions: December 19, 2003. 1–866–208–3676 or e-mail evidentiary basis and otherwise comply All documents (original and eight [email protected]. For TTY, with the requirements of 18 CFR 4.34(b). copies) should be filed with: Ms. call (202) 502–8659. A copy is also Magalie R. Salas, Secretary, Federal Agencies may obtain copies of the available for inspection and Energy Regulatory Commission, 888 application directly from the applicant. reproduction at the address in item h. First Street, NE., Washington DC 20426. Each filing must be accompanied by above. proof of service on all persons listed on Please include the project number (P– the service list prepared by the 2210–091, –093, or –094) on any m. Individuals desiring to be included Commission in this proceeding, in comments or motions filed. Comments, on the Commission’s mailing list should accordance with 18 CFR 4.34(b), and protests, and interventions may be filed so indicate by writing to the Secretary 385.2010. electronically via the internet in lieu of of the Commission. You may also register online at paper. See, 18 CFR 385.2001(a)(1)(iii) n. Comments, Protests, or Motions to and the instructions on the http://www.ferc.gov/docs-filing/ Intervene—Anyone may submit Commission(s Web site athttp:// esubscription.asp to be notified via e- comments, a protest, or a motion to www.ferc.gov under the (e-Filing(link. mail of new filings and issuances intervene in accordance with the related to this or other pending projects. The Commission strongly encourages e- filings. requirements of Rules of Practice and For assistance, contact FERC Online Procedure, 18 CFR 385.210, .211, .214. Support. k. Description of Request: Appalachian is requesting approval of In determining the appropriate action to Magalie R. Salas, non-project uses of project lands for the take, the Commission will consider all Secretary. proposals described below. protests or other comments filed, but [FR Doc. E3–00393 Filed 11–25–03; 8:45 am] P–2210–091—Request for approval for only those who file a motion to BILLING CODE 6717–01–P Waterways Properties to install and intervene in accordance with the operate within the project boundary two Commission’s Rules may become a docks with a total of twenty-eight party to the proceeding. Any comments, DEPARTMENT OF ENERGY covered stationary slips and two protests, or motions to intervene must floaters. The first dock would have 16 be received on or before the specified Federal Energy Regulatory covered boat slips and two floaters. The comment date for the particular Commission second dock would have 12 boat slips. application. The docks and associated facilities will Notice of Applications for Non-Project serve multi-family type dwellings and o. Filing and Service of Responsive Use of Project Lands and Soliciting single family homes. Construction Documents—Any filings must bear in Comments, Motions To Intervene, and would take place along the Roanoke all capital letters the title Protests River at a development known as the ‘‘COMMENTS’’, ‘‘RECOMMENDATIONS FOR TERMS November 19, 2003. Waterways. There is no dredging AND CONDITIONS’’, ‘‘PROTEST’’, OR Take notice that the following associated with the proposal. ‘‘MOTION TO INTERVENE’’, as applications have been filed with the P–2210–093—Request for approval for Commission and are available for public Pat Bailey of CB Rentals and Sales to applicable, and the Project Number of inspection: install and operate one dock with eight the particular application to which the a. Application Types: Non-Project Use stationary covered slips, and four filing refers. A copy of any motion to of Project Lands. floating slips plus two additional intervene must also be served upon each b. Project Nos: 2210–091, 2210–093 floaters. In addition, the existing dock representative of the Applicant and 2210–094. will be modified to incorporate 8 jet ski specified in the particular application. lifts. Construction would take place c. Dates Filed: 2210–091 filed on p. Agency Comments—Federal, State, along the Roanoke River at an area October 14, 2003, 2210–093 filed on and local agencies are invited to file October 20, 2003, and 2210–094 filed on identified as CB Rental and Sales. The site is located off Virginia Route 122. No comments on the described October 16, 2003. applications. Copies of the applications d. Applicant: Appalachian Power dredging will be needed. may be obtained by agencies directly Company (APC). P–2210–094—Request for approval for e. Name of Project: Smith Mountain WHM Corporation to construct and from the Applicant. If an agency does Pumped Storage Project. operate twenty three stationary docks not file comments within the time f. Location: The project is located on with a total of 296 covered boat slips specified for filing comments, it will be the Roanoke River, in Bedford, and 6 boat docks with a total of 74 presumed to have no comments. One Pittsylvania; Franklin and Roanoke floating boat slips for a total of 370 boat copy of an agency’s comments must also Counties, Virginia. slips. Construction would take place in be sent to the Applicant’s g. Filed Pursuant to: Federal Power the upper third of the Roanoke River at representatives. Act, 16 U.S.C. 791(a) 825(r) and 799 and a site known as Bridgewater Bay. No 801. dredging is proposed. Magalie R. Salas, h. Applicant Contact: Teresa P. l. Location of the Applications: These Secretary. Rogers, Hydro Generation Department, filings are available for review at the [FR Doc. E3–00394 Filed 11–25–03; 8:45 am American Electric Power, P.O. Box Commission in the Public Reference BILLING CODE 6717–01–P 2021, Roanoke, VA 24022–2121, (540) Room 888 First Street, NE, Room 2A, 985–2441 Washington, D.C. 20426 or may be i. FERC Contact: Any questions on viewed on the Commission’s Web site at this notice should be addressed to Mrs. http://www.ferc.gov using the

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DEPARTMENT OF ENERGY surrender their preliminary permits because of the status of current Federal Energy Regulatory economic conditions. Commission [Project No. 11847–003, Project No. 11848– 003, Project No. 11849–003, and Project No. 11850–003]

Washington Hydro Energy Development Corporation, Skookum Hydro Inc.: Notice of Surrender of Preliminary Permits

November 19, 2003. Take notice that the permittees for the subject projects have requested to

Expiration Project No. Project name Stream State date

11847–003 .... Cumberland Creek ...... Cumberland Creek ...... WA ...... 11–30–2003 11848–003 .... Mill Creek ...... Mill Creek ...... WA ...... 11–30–2003 11849–003 .... O’Toole Creek ...... O’Toole Creek ...... WA ...... 11–30–2003 11850–003 .... Skookum Creek ...... Skookum and Orsino Creeks ...... WA ...... 11–30–2003

The permits shall remain in effect considered the environmental impacts SUPPLEMENTARY INFORMATION: The BLM through the thirtieth day after issuance of the Ivanpah Energy Center Project is the lead agency for the IEC EIS (Final of this notice unless that day is (Project) and the interconnection to EIS dated May 2003). Western requested Saturday, Sunday, or holiday as Western’s Mead Substation. Western to be, and was designated, a cooperating described in18 CFR 385.2007, in which specifically evaluated proposed agency for the IEC EIS on October 2, case each permit shall remain in effect modifications to facilities at the 2002. The EIS addresses the effects of through the first business day following substation. The modifications are the Project, including modification of that day. New applications involving necessary to accommodate the new Western’s transmission system. After an these project sites, to the extent Valley Electric Association (VEA) 230- independent review of the EIS, Western provided for under 18 CFR part 4, may kilovolt (kV) transmission line concluded that its comments and be filed on the next business day. interconnection for this new source of suggestions had been satisfied and electric power. Western adopted the subsequently adopted the IEC EIS as its Magalie R. Salas, BLM EIS on May 28, 2003. This Record own under 40 CFR part 1506.3. Secretary. of Decision (ROD) announces Western’s Western’s EIS document number is [FR Doc. E3–00395 Filed 11–25–03; 8:45 am] decision to grant the VEA DOE/EIS–0354. BILLING CODE 6717–01–P interconnection request. Western will ensure that its responsibilities under the Project Purpose and Need National Historic Preservation Act and The Project is designed to provide DEPARTMENT OF ENERGY the Endangered Species Act are met electric power to the southern Nevada before the interconnection is Western Area Power Administration power grid. Currently, demand in the implemented. southwestern United States exceeds Valley Electric Association FOR FURTHER INFORMATION CONTACT: Mr. capacity and continues to increase. Peak Interconnection of Ivanpah Energy John Holt, Environmental Manager, demand energy requirements for the Center to Mead Substation (DOE/EIS– Desert Southwest Customer Service Arizona-New Mexico-southern Nevada 0354) Region, Western Area Power Power Area are projected to grow at an Administration, P.O. Box 6457, annual compound rate of 3.3 percent AGENCY: Western Area Power Phoenix, AZ 85005, telephone (602) between 2000 and 2010. Annual energy Administration, DOE. 352–2592, E-mail [email protected]. requirements for the period are expected ACTION: Record of decision. Copies of the EIS and the BLM Record to increase at a compound rate of 3.4 of Decision are available from Jerry percent according to North American SUMMARY: The Department of the Crockford, Project Manager, BLM Electric Reliability Council projections. Interior, Bureau of Land Management Farmington Field Office, 1235 La Plata The Project action alternatives (BLM), prepared an Environmental Hwy, Suite A, Farmington, NM 87401, considered in the EIS would partially Impact Statement (EIS) evaluating the telephone (505) 599–6333, E-mail satisfy this projected need. construction, operation and [email protected]. For information Description of Alternatives maintenance of the Ivanpah Energy about the DOE National Environmental Center (IEC) power plant and ancillary Policy Act (NEPA) process, contact The Draft EIS evaluated two facilities. The project would provide Carol M. Borgstrom, Director, NEPA alternative plant sites, four alternative 500 megawatts (MW) of baseload power Policy and Compliance, EH–42, U.S. transmission line alignments, and the to the southern Nevada power grid. As Department of Energy, 1000 No Action Alternative. The Primm Plant a cooperating agency for the EIS, the Independence Avenue SW., site was selected as the environmentally Department of Energy’s (DOE) Western Washington, DC 20585, telephone (202) preferred alternative. However, this Area Power Administration (Western) 586–4600 or (800) 472–2756. alternative became commercially

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unavailable to the Project proponent proposed electric power would be with the condition that the Project must after the Draft EIS was published. The unavailable to potential users of the comply with the terms and conditions Final EIS, therefore, evaluated only the southern Nevada power grid. recommended in the FWS Final proposed alternative plant site Western’s Decision Biological Opinion to avoid, minimize, (Goodsprings Site) and two associated or mitigate any Project impacts to alternative transmission line The BLM released its Project ROD on biological resources. Western will October 23, 2003, granting BLM rights- alignments, plus the No Action ensure that its responsibilities under the of-way for the Goodsprings Alternative Alternative. Endangered Species Act are met before The proposed alternative is located plant site and Alternative E the transmission system modifications entirely within Clark County, Nevada, transmission line alignment. Based on are implemented. and primarily on BLM land, within a the need for the Project and the results BLM utility corridor, or on Western of the EIS, Western’s decision is to grant The BLM has consulted with the State withdrawn land. The alternative the interconnection request for the VEA Historic Preservation Office and Native principally consists of a 30-acre transmission line component of the American Tribes. A Programmatic (permanent disturbance) site for the Project. Western will facilitate the VEA Agreement (PA) and treatment plan generation plant southeast of the town 230-kV Alternative E transmission line were developed to avoid, minimize, and of Goodsprings, Nevada, and a new 230- approach across Western’s withdrawn mitigate adverse effects to historical and kV transmission line to Western’s Mead lands to Mead Substation and modify cultural properties. Western is a Substation. current substation configuration to signatory to the PA and will ensure that The plant design is a 500–MW, accommodate the requested its responsibilities under the PA and the natural gas-fired, combined-cycle, dry- interconnection in the southeast portion National Historic Preservation Act are of the 230-kV area within the Mead and refrigeration-cooled, baseload met before the action is implemented. electrical power generation station, as Substation. The No Action Alternative described in the EIS. Associated Project was not selected because it would not Western contacted 26 Native components include an onsite power meet the defined purpose and need for American Tribes during the Final EIS substation, transmission line the Project. Nor would this alternative 30-day waiting period to ensure it interconnection for the proposed Table allow Western to meet its obligations to satisfied Nation-to-Nation consultation Mountain Wind Generation Facility, VEA, as defined by Western’s General requirements regarding the Project. fiber optic ground wires, natural gas Requirements for Interconnections and Western received no response to its pipeline, water treatment plant, water Western’s obligations to provide inquiries and no additional action is supply pipeline, telecommunications interconnection under Section 211 of required. cable, and necessary temporary and the Federal Power Act. The Project area does intersect 100- permanent access roads. Two alternative transmission line Mitigation Measures and Commitments year floodplains in a few locations, but alignments were considered, The Final EIS identified mitigation individual and cumulative floodplain Alternatives C and E. Both include measures needed to reduce Project impacts associated with transmission interconnecting with the existing VEA impacts. Specific measures are line structure location and construction 230-kV Pahrump-to-Mead transmission discussed in Section 1.3 on pages 1–2 to are negligible. There are no wetlands line at the Goodsprings power plant site 1–6 of the Final EIS. Additional affected by the Project. However, and constructing a new Goodsprings-to- mitigation measures and standard Western will require appropriate Mead 230-kV line. Alternative E would practices are provided in the BLM measures to minimize any potential generally follow or parallel the existing Construction, Operations and impacts. Pahrump-to-Mead line and right-of-way Maintenance Plan. Western is adopting those mitigation southeast across the Ivanpah Valley, The EIS impact analysis concluded measures that apply to its action, the that, with mitigation measures, most then northeast across the McCullough interconnection and authorization for Mountain Range and the Eldorado impacts from the selected Project use of its withdrawn land for the 230– Valley to Mead Substation alternative would not be significant. The kV transmission line, and will issue a (approximately 47.5 miles). Alternative only significant and unavoidable C deviates from Alternative E only along impacts of the Project are to Category B Mitigation Action Plan before any one line segment that remains on the (medium population density) desert construction activity takes place. The west side of Eldorado Valley before tortoise habitat. These impacts are Plan will address the adopted and crossing to Mead Substation associated with construction at the plant standard mitigation measures. When (approximately 47.8 miles). Regardless site, telecommunication lines, access completed, the Mitigation Action Plan of the transmission line alternative, the roads, water supply line, and will be made available to the public. interconnection at Western’s Mead transmission lines. Significant impacts Compliance With Regulations Substation will require constructing a would result from direct incidental take new transmission line within the same during construction or operation, This ROD has been prepared alignment across Western’s withdrawn habitat fragmentation, introduction of following Council on Environmental lands, and modifying the 230-kV area of nonnative plant species, soil Quality 1 regulations for implementing the substation. compaction, and increased public NEPA (40 CFR parts 1500–1508) and The No Action Alternative would access to the Project area. DOE Procedures for Implementing preclude construction and operation of The BLM provided a biological NEPA (10 CFR part 1021). the proposed power plant, transmission assessment outlining Project impacts to line, and other Project components. the U.S. Fish and Wildlife Service Dated: November 18, 2003. Existing conditions would remain (FWS). In response, the FWS issued a Michael S. Hacskaylo, unchanged. No environmental impacts Biological Opinion for the Project dated Administrator. are associated with the No Action October 17, 2003. Western’s decision is [FR Doc. 03–29566 Filed 11–25–03; 8:45 am] Alternative, but the generation, to grant the VEA interconnection BILLING CODE 6450–01–P transmission, and end use of the request. However, the grant is issued

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ENVIRONMENTAL PROTECTION public docket is available through EPA Manufacturers can also initiate a recall AGENCY Dockets (EDOCKET) at http:// voluntarily by submitting a Voluntary www.epa.gov/edocket. Use EDOCKET to Emission Recall Report (VERR). VERRs [OAR–2003–0059, FRL–7591–8] obtain a copy of the draft collection of and VERR updates allow EPA to Agency Information Collection information, submit or view public determine whether the manufacturer Activities: Proposed Collection; comments, access the index listing of conducting the recall is acting in Comment Request; Emission Defect the contents of the public docket, and to accordance with the CAA and to Information Reports and Voluntary access those documents in the public examine and monitor the effectiveness Emission Recall Reports, EPA ICR docket that are available electronically. of the recall campaign. Number 0282.13, OMB Control Number Once in the system, select ‘‘search,’’ The information is collected by the 2060–0048 then key in the docket ID number Engine Programs Group, Certification identified above. and Compliance Division, Office of AGENCY: Environmental Protection Any comments related to this ICR Transportation and Air Quality, Office Agency. should be submitted to EPA within 60 of Air and Radiation. Confidentiality of ACTION: Notice. days of this notice. EPA’s policy is that proprietary information submitted by public comments, whether submitted manufacturers is granted in accordance SUMMARY: In compliance with the electronically or in paper, will be made with the Freedom of Information Act, Paperwork Reduction Act (44 U.S.C. available for public viewing in EPA regulations at 40 CFR part 2, and 3501 et seq.), this document announces EDOCKET as EPA receives them and class determinations issued by EPA’s that EPA is planning to submit a without change, unless the comment Office of General Counsel. An agency continuing Information Collection contains copyrighted material, CBI, or may not conduct or sponsor, and a Request (ICR) to the Office of other information whose public person is not required to respond to, a Management and Budget (OMB). This is disclosure is restricted by statute. When collection of information unless it a request to renew an existing approved EPA identifies a comment containing displays a currently valid OMB control collection. This ICR is scheduled to copyrighted material, EPA will provide number. The OMB control numbers for expire on January 31, 2004. Before a reference to that material in the EPA’s regulations in 40 CFR are listed submitting the ICR to OMB for review version of the comment that is placed in in 40 CFR part 9. and approval, EPA is soliciting EDOCKET. The entire printed comment, The EPA would like to solicit comments on specific aspects of the including the copyrighted material, will comments to: proposed information collection as be available in the public docket. (i) Evaluate whether the proposed described below. Although identified as an item in the collection of information is necessary DATES: Comments must be submitted on official docket, information claimed as for the proper performance of the or before January 26, 2004. CBI, or whose disclosure is otherwise functions of the Agency, including ADDRESSES: Submit your comments, restricted by statute, is not included in whether the information will have referencing docket ID number OAR– the official public docket, and will not practical utility; 2003–0059, to EPA online using be available for public viewing in (ii) Evaluate the accuracy of the EDOCKET (our preferred method), by e- EDOCKET. For further information Agency’s estimate of the burden of the mail to a-and-r- about the electronic docket, see EPA’s proposed collection of information, [email protected], or by mail to: Federal Register notice describing the including the validity of the EPA Docket Center, Environmental electronic docket at 67 FR 38102 (May methodology and assumptions used; Protection Agency, Air and Radiation 31, 2002), or go to www.epa.gov./ (iii) Enhance the quality, utility, and Docket and Information Center, Mail edocket. clarity of the information to be Code 6102T, 1200 Pennsylvania Ave., Affected entities: Entities potentially collected; and (iv) Minimize the burden of the NW., Washington, DC 20460. affected by this action are manufacturers of nonroad engines and heavy-duty collection of information on those who FOR FURTHER INFORMATION CONTACT: Ms. truck engines. are to respond, including through the Nydia Y. Reyes-Morales, Mail Code Title: Emission Defect Information use of appropriate automated electronic, 6403J, Environmental Protection Reports and Voluntary Emission Recall mechanical, or other technological Agency, 1200 Pennsylvania Ave., NW., Reports. collection techniques or other forms of Washington, DC 20460; telephone Abstract: Per sections 207(c)(1) and information technology, e.g., permitting number: 202–343–9264; fax number: 213 of the Clean Air Act (CAA), when electronic submission of responses. 202–343–2057; e-mail address: reyes- emission testing shows that a Burden Statement: The annual public [email protected]. substantial number of properly reporting and recordkeeping burden for SUPPLEMENTARY INFORMATION: EPA has maintained and used engines produced this collection of information is established a public docket for this ICR by a manufacturer do not conform to estimated to average 21 hours per under Docket ID number OAR–2003– emission standards, the manufacturer is response. DIRs and VERRs are 0059, which is available for public required to recall the engines. submitted on occasion, whereas VERRs viewing at the Air and Radiation Docket Manufacturers are also required to updates are submitted quarterly by in the EPA Docket Center (EPA/DC), submit Defect Information Reports approximately 15 respondents. EPA EPA West, Room B102, 1301 (DIRs) to alert EPA of the existence of estimates that the total cost to Constitution Ave., NW., Washington, emission-related defects on certain respondents resulting from this DC. The EPA Docket Center Public classes of engines that may cause the collection is approximately $353,749. Reading Room is open from 8:30 a.m. to engines’ emissions to exceed the This estimate includes operation and 4:30 p.m., Monday through Friday, standards and ultimately may lead to a maintenance expenses of approximately excluding legal holidays. The telephone recall. EPA uses these reports to target $443. No start-up costs are associated number for the Reading Room is (202) potentially nonconforming classes of with this information collection. Burden 566–1744, and the telephone number for engines for future testing, to monitor means the total time, effort, or financial the Air and Radiation Docket is (202) compliance with applicable regulations resources expended by persons to 566–1742. An electronic version of the and to order a recall, if necessary. generate, maintain, retain, or disclose or

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provide information to or for a Federal registrants of the affected creosote the public docket does not include agency. This includes the time needed products nor that of the affected ACC Confidential Business Information (CBI) to review instructions; develop, acquire, product have requested any existing or other information whose disclosure is install, and utilize technology and stocks provision, and all registrants restricted by statute. The official public systems for the purposes of collecting, waived the 180–day comment period docket is the collection of materials that validating, and verifying information, (i.e., any comment period in excess of is available for public viewing at the processing and maintaining 30 days). This notice provides an Public Information and Records information, and disclosing and additional 30–day public comment Integrity Branch (PIRIB), Rm. 119, providing information; adjust the period in response to request for such Crystal Mall # 2, 1921 Jefferson Davis existing ways to comply with any extension. Hwy., Arlington, VA. This docket previously applicable instructions and DATES: Unless a request is withdrawn by facility is open from 8:30 a.m. to 4 p.m., requirements; train personnel to be able December 26, 2003, or unless the Monday through Friday, excluding legal to respond to a collection of Agency receives substantive comments holidays. The docket telephone number information; search data sources; within this additional comment period is (703) 305–5805. complete and review the collection of that would merit further review of the 2. Electronic access. You may access information; and transmit or otherwise request, the Agency intends to issue this Federal Register document disclose the information. orders granting these requests to cancel electronically through the EPA Internet under the ‘‘Federal Register’’ listings at Dated: November 21, 2003. certain products, and to amend to terminate certain uses. The Agency will http://www.epa.gov/fedrgstr/. Robert Brenner, An electronic version of the public consider withdrawal requests received Acting Assistant Administrator, Office of Air docket is available through EPA’s on or before December 26, 2003. and Radiation. electronic public docket and comment Comments, identified by docket ID [FR Doc. 03–29589 Filed 11–25–03; 8:45 am] system, EPA Dockets. You may use EPA number OPP–2003–0324, must be BILLING CODE 6560–50–P Dockets at http://www.epa.gov/edocket/ received on or before December 26, to submit or view public comments, 2003. access the index listing of the contents ENVIRONMENTAL PROTECTION ADDRESSES: Comments may be of the official public docket, and to AGENCY submitted electronically, by mail, or access those documents in the public [OPP–2003–0324; FRL–7336–3] through hand delivery/courier. Follow docket that are available electronically. the detailed instructions as provided in Although not all docket materials may Notice of Receipt of Requests to Unit I. of the SUPPLEMENTARY be available electronically, you may still Cancel Certain Creosote and Acid INFORMATION. access any of the publicly available Copper Chromate (ACC) Wood FOR FURTHER INFORMATION CONTACT: docket materials through the docket Preservative Products, and/or to Bonaventure A. Akinlosotu, facility identified in Unit I.B.1. Once in Amend to Terminate Certain Uses of Antimicrobials Division (7510C), Office the system, select ‘‘search,’’ then key in Other Creosote Products; Extension of of Pesticide Programs, Environmental the appropriate docket ID number. Comment Period Protection Agency, 1200 Pennsylvania Certain types of information will not Ave., NW., Washington, DC 20460– be placed in the EPA Dockets. AGENCY: Environmental Protection 0001; telephone number: (703) 605– Information claimed as CBI and other Agency (EPA). 0653; e-mail address: information whose disclosure is ACTION: Notice. [email protected]. restricted by statute, which is not included in the official public docket, SUMMARY: In accordance with section SUPPLEMENTARY INFORMATION: will not be available for public viewing 6(f)(1) of the Federal Insecticide, I. General Information in EPA’s electronic public docket. EPA’s Fungicide, and Rodenticide Act policy is that copyrighted material will (FIFRA), as amended, EPA is extending A. Does this Action Apply to Me? not be placed in EPA’s electronic public for an additional 30 days the comment This action is directed to the public docket but will be available only in period commenced by a September 29, in general. Although this action may be printed, paper form in the official public 2003 Notice of Receipt of Requests by of particular interest to persons who docket. To the extent feasible, publicly registrants of pesticide products produce or use pesticides, the Agency available docket materials will be made containing either Creosote or Acid has not attempted to describe all the available in EPA’s electronic public Copper Chromate (ACC) to voluntarily specific entities that may be affected by docket. When a document is selected cancel certain pesticide registrations this action. If you have any questions from the index list in EPA Dockets, the and/or to amend to terminate certain regarding the information in this notice, system will identify whether the uses of affected products. Specifically, consult the person listed under FOR document is available for viewing in the five registrants who are members of FURTHER INFORMATION CONTACT. EPA’s electronic public docket. the Creosote Council III have requested Although not all docket materials may to cancel the registrations for their B. How Can I Get Copies of this be available electronically, you may still creosote non-pressure treatment end-use Document and Other Related access any of the publicly available products and/or to amend to terminate Information? docket materials through the docket all non-pressure treatment uses of other 1. Docket. EPA has established an facility identified in Unit I.B. EPA creosote products. These registrants are official public docket for this action intends to work towards providing requesting that these voluntary product under docket identification (ID) number electronic access to all of the publicly cancellations and/or use terminations OPP–2003–0324. The official public available docket materials through become effective December 31, 2004. docket consists of the documents EPA’s electronic public docket. Osmose, Inc., the sole registrant of ACC, specifically referenced in this action, For public commenters, it is is also requesting to immediately cancel any public comments received, and important to note that EPA’s policy is the registration for its product with no other information related to this action. that public comments, whether provision for existing stocks. Neither the Although a part of the official docket, submitted electronically or in paper,

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will be made available for public is placed in the official public docket, D. How Should I Submit CBI to the viewing in EPA’s electronic public and made available in EPA’s electronic Agency? docket as EPA receives them and public docket. If EPA cannot read your Do not submit information that you without change, unless the comment comment due to technical difficulties consider to be CBI electronically contains copyrighted material, CBI, or and cannot contact you for clarification, through EPA’s electronic public docket other information whose disclosure is EPA may not be able to consider your or by e-mail. You may claim restricted by statute. When EPA comment. information that you submit to EPA as identifies a comment containing i. EPA Dockets. Your use of EPA’s CBI by marking any part or all of that copyrighted material, EPA will provide electronic public docket to submit information as CBI (if you submit CBI a reference to that material in the comments to EPA electronically is on disk or CD ROM, mark the outside version of the comment that is placed in EPA’s preferred method for receiving of the disk or CD ROM as CBI and then EPA’s electronic public docket. The comments. Go directly to EPA Dockets identify electronically within the disk or entire printed comment, including the CD ROM the specific information that is copyrighted material, will be available at http://www.epa.gov/edocket/, and CBI). Information so marked will not be in the public docket. follow the online instructions for Public comments submitted on submitting comments. Once in the disclosed except in accordance with computer disks that are mailed or system, select ‘‘search,’’ and then key in procedures set forth in 40 CFR part 2. delivered to the docket will be docket ID number OPP–2003–0324. The In addition to one complete version of transferred to EPA’s electronic public system is an ‘‘anonymous access’’ the comment that includes any docket. Public comments that are system, which means EPA will not information claimed as CBI, a copy of mailed or delivered to the docket will be know your identity, e-mail address, or the comment that does not contain the scanned and placed in EPA’s electronic other contact information unless you information claimed as CBI must be public docket. Where practical, physical provide it in the body of your comment. submitted for inclusion in the public objects will be photographed, and the ii. E-mail. Comments may be sent by docket and EPA’s electronic public docket. If you submit the copy that does photograph will be placed in EPA’s e-mail to [email protected], not contain CBI on disk or CD ROM, electronic public docket along with a Attention: Docket ID Number OPP– mark the outside of the disk or CD ROM brief description written by the docket 2003–0324. In contrast to EPA’s clearly that it does not contain CBI. staff. electronic public docket, EPA’s e-mail Information not marked as CBI will be system is not an ‘‘anonymous access’’ C. How and To Whom Do I Submit included in the public docket and EPA’s system. If you send an e-mail comment Comments? electronic public docket without prior directly to the docket without going You may submit comments notice. If you have any questions about through EPA’s electronic public docket, electronically, by mail, or through hand CBI or the procedures for claiming CBI, EPA’s e-mail system automatically delivery/courier. To ensure proper please consult the person listed under captures your e-mail address. E-mail receipt by EPA, identify the appropriate FOR FURTHER INFORMATION CONTACT. addresses that are automatically docket ID number in the subject line on E. What Should I Consider as I Prepare the first page of your comment. Please captured by EPA’s e-mail system are My Comments for EPA? ensure that your comments are included as part of the comment that is submitted within the specified comment placed in the official public docket, and You may find the following period. Comments received after the made available in EPA’s electronic suggestions helpful for preparing your close of the comment period will be public docket. comments: marked ‘‘late.’’ EPA is not required to iii. Disk or CD ROM. You may submit 1. Explain your views as clearly as consider these late comments. If you comments on a disk or CD ROM that possible. wish to submit CBI or information that you mail to the mailing address 2. Describe any assumptions that you is otherwise protected by statute, please identified in Unit I.C.2. These electronic used. follow the instructions in Unit I.D. Do submissions will be accepted in 3. Provide any technical information not use EPA Dockets or e-mail to submit WordPerfect or ASCII file format. Avoid and/or data you used that support your CBI or information protected by statute. the use of special characters and any views. 1. Electronically. If you submit an form of encryption. 4. If you estimate potential burden or electronic comment as prescribed in this 2. By mail. Send your comments to: costs, explain how you arrived at your unit, EPA recommends that you include Public Information and Records estimate. your name, mailing address, and an e- Integrity Branch (PIRIB) (7502C), Office 5. Provide specific examples to mail address or other contact of Pesticide Programs (OPP), illustrate your concerns. information in the body of your Environmental Protection Agency, 1200 6. Offer alternatives. comment. Also include this contact 7. Make sure to submit your Pennsylvania Ave., NW., Washington, information on the outside of any disk comments by the comment period DC 20460–0001, Attention: Docket ID or CD ROM you submit, and in any deadline identified. Number OPP–2003–0324. cover letter accompanying the disk or 8. To ensure proper receipt by EPA, CD ROM. This ensures that you can be 3. By hand delivery or courier. Deliver identify the appropriate docket ID identified as the submitter of the your comments to: Public Information number in the subject line on the first comment and allows EPA to contact you and Records Integrity Branch (PIRIB), page of your response. It would also be in case EPA cannot read your comment Office of Pesticide Programs (OPP), helpful if you provided the name, date, due to technical difficulties or needs Environmental Protection Agency, Rm. and Federal Register citation related to further information on the substance of 119, Crystal Mall #2, 1921 Jefferson your comments. your comment. EPA’s policy is that EPA Davis Hwy., Arlington, VA, Attention: will not edit your comment, and any Docket ID Number OPP–2003–0324. II. What Action is the Agency Taking? identifying or contact information Such deliveries are only accepted This notice announces receipt by the provided in the body of a comment will during the docket’s normal hours of Agency of requests from registrants to be included as part of the comment that operation as identified in Unit I.B.1. cancel the registrations of four pesticide

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products and to amend to terminate FIFRA requires that before acting on a the public comment period by an certain uses of seven other pesticide request for voluntary cancellation, EPA additional 30 days. The Agency has products (See Tables 1 and 2), and must provide a 30–day public comment considered the request and has no extends by an additional 30 days the period on the request for voluntary objection to extending the public public comment period on requests. In cancellation. In addition, section comment period by an additional 30 a June 30, 2003 letter, which was 6(f)(1)(C) of FIFRA requires that EPA days and is doing so by this notice. received by the Agency on July 14, provide a 180–day comment period on Accordingly, EPA will provide an 2003, Osmose, Inc. requested voluntary a request for voluntary termination of additional 30–day public comment cancellation of its ACC product. any minor agricultural use before period on the requests. EPA anticipates Similarly, in letters dated September 5, granting the request, unless (1) the granting the cancellation requests and 2003, Coopers Creek Chemical registrant requests a waiver of the requests for termination of uses shortly Corporation, KMG-Bernuth, Inc., comment period, or (2) the after the end of the additional 30–day Koppers, Inc., Railworks Wood Administrator determines that comment period for this notice unless Products, and Rutgers Chemicals AG, the Agency receives substantive requested voluntary cancellation of continued use of the pesticide would pose an unreasonable adverse effect on comments within the comment period certain creosote end-use products and/ that would merit further review of the or amendments to terminate certain the environment. The registrants have request, or unless the subject request for creosote end uses of other creosote end- requested that EPA waive the 180–day voluntary cancellation and/or use use products. comment period. EPA is granting the Under section 6(f)(1)(A) of FIFRA, registrants’ request to waive the 180– termination is withdrawn as provided registrants may request, at any time, that day comment period. Since publication herein. their pesticide registrations be canceled of the Notice of Receipt on September The following products would be or amended to terminate one or more 29, 2003 (68 FR 55952–55954), the affected by the requests for voluntary pesticide uses. Section 6(f)(1)(B) of Agency has been requested to extend cancellations:

TABLE 1.— REQUESTS FOR CANCELLATION OF PRODUCTS

Registration No. Product name Chemical name

003008–00060 Osmose ACC 50% Wood Preservative Chromic acid, Cupric acid

061468–00005 Coal Tar Creosote Creosote

073408–00001 Creosote Creosote

073408–00002 Creosote Solution Creosote

The following creosote/coal tar terminate non-pressure treatment uses treatment of utility poles, end cuts, creosote product uses would be affected of the products listed in Table 2 below: piling applications/repair, pole framing by the requests for amendments to home and farm use, ground line and railroad tie uses/repair.

TABLE 2.— REQUEST FOR AMENDMENTS TO TERMINATE NON-PRESSURE TREATMENT USES

Registration No. Product name Chemical name

000363–00014 C-4 Brand Black Creosote Coal Tar solution Creosote

000363–00015 C-4 Brand Coopersote Creosote Oil Creosote

061468–00006 Creosote Creosote

061470–00001 KMG-B Coal Tar Creosote Creosote

061483–0007 Creosote Oil-24CB Coal Tar Creosote

061483–0008 Creosote/Coal Tar solution Coal Tar Creosote

061483–0009 Creosote Oil Coal Tar Creosote

Unless the Agency receives Agency intends to issue orders registrant directly before the lapse of substantive comments within this canceling all of these registrations and this 30–day period. additional public comment period that granting the amendments effecting the The following Table 3 includes the would merit further review of the use terminations. Users of these names and addresses of record for all request, or unless a request is pesticides or anyone else desiring the registrants of the products in Tables 1 withdrawn by the registrant within 30 retention of a registration or particular and 2, in sequence by EPA company days of publication of this notice, the use should contact the applicable number:

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TABLE 3.—REGISTRANTS REQUESTING VOLUNTARY CANCELLATION AND/OR AMENDMENT TO TERMINATE USES

EPA Company No. Company name and address

000363 Coopers Creek Chemical Corp., 884 River Road, West Conshohocken, PA 19428–2699

003008 Osmose Inc., 980 Ellicott Street, Buffalo, NY 14209–2398

061468 Koppers Inc., 436 Seventh Avenue, Pittsburgh, PA 15219–1800

061470 Rutgers Chemicals, 10611 Harwin Drive, Suite 402, Houston, TX 77036

061483 KMG-Bernuth, Inc., 10611 Harwin Drive, Suite 402, Houston, TX 77036–1534

073408 Railworks Wood Products, 2525 Prairieton Road, Terre Haute, IN 47802

III. What is the Agency’s Authority for they are exhausted, provided that such ENVIRONMENTAL PROTECTION Taking this Action? further sale and use comply with the AGENCY Section 6(f)(1) of FIFRA provides that EPA-approved label and labeling of the [OPP–2003–0364; FRL–7333–8] a registrant of a pesticide product may affected product. Exception to these at any time request that any of its general rules will be made in specific Sodium thiosulfate; Notice of Filing a pesticide registrations be canceled or cases when more stringent restrictions Pesticide Petition to Amend a amended to terminate uses. FIFRA on sale, distribution, or use of the Tolerance for a Certain Pesticide further provides that, before acting on products or their ingredients have Chemical in or on Food the request, EPA must publish a notice already been imposed, as in a Special AGENCY: Environmental Protection of receipt of any such request in the Review action, or where the Agency has Agency (EPA). Federal Register, and provide a 30–day identified significant potential risk ACTION: Notice. public comment period. Thereafter, the concerns associated with a particular Administrator may approve such a chemical. This is in accordance with the SUMMARY: This notice announces the request. Agency’s statement of policy as set forth amendment of a pesticide petition IV. Procedures for Withdrawal of in the Federal Register of June 26, 1991 proposing the establishment of Request (56 FR 29362) (FRL–3846–4). regulations for residues of a certain Registrants who choose to withdraw a 1. Creosote. The registrants of affected pesticide chemical in or on various food request for voluntary cancellation or creosote products have requested that commodities. amendment to terminate uses must the voluntary product cancellations DATES: Comments, identified by docket submit such withdrawal in writing to and/or use terminations become ID number OPP–2003–0364, must be the person listed under FOR FURTHER effective December 31, 2004, with no received on or before December 26, INFORMATION CONTACT. The Agency will provision for existing stocks. 2003. consider withdrawal requests received 2. ACC. The effective date of ADDRESSES: Comments may be on or before December 26, 2003. This cancellation will be the date of the submitted electronically, by mail, or written withdrawal of the request for through hand delivery/courier. Follow cancellation order. Osmose stated in its cancellation or amendment to terminate the detailed instructions as provided in request that its affected product (EPA uses will apply only to the applicable Unit I. of the SUPPLEMENTARY Reg. No. 3008–60) is no longer being FIFRA section 6(f)(1) request listed in INFORMATION. this notice. If the product(s) have been manufactured or distributed by them FOR FURTHER INFORMATION CONTACT: subject to a previous cancellation or use and that, therefore, there is no need for Princess Campbell, Registration termination action, the effective date of a time period for the depletion of Division (7505C), Office of Pesticide cancellation and all other provisions of existing stocks. Programs, Environmental Protection any earlier cancellation or use List of Subjects Agency, 1200 Pennsylvania Ave., NW., termination order are controlling. The Washington, DC 20460–0001; telephone withdrawal request must also include a Environmental Protection, Creosote, commitment to pay any reregistration number: (703) 308–8033 ; e-mail Acid Copper Chromate, Pesticides and address: [email protected]. fees that are due, and to fulfill any Pests. applicable unsatisfied data SUPPLEMENTARY INFORMATION: requirements. Dated: November 20, 2003. I. General Information Frank Sanders, V. Provisions for Disposition of Existing A. Does this Action Apply to Me? Stocks Director, Antimicrobials Division, Office of Pesticide Programs. You may be potentially affected by Existing stocks are those stocks of [FR Doc. 03–29591 Filed 11–25–03; 8:45 am] this action if you are an agricultural registered pesticide products which are BILLING CODE 6560–50–S producer, food manufacturer, or currently in the United States and pesticide manufacturer. Potentially which have been packaged, labeled, and affected entities may include, but are released for shipment prior to the not limited to: effective date of the cancellation action. • Crop production (NAICS 111) Unless the provisions of an earlier order • Animal production (NAICS 112) apply, existing stocks already in the • Food manufacturing (NAICS 311) hands of dealers or users can be • Pesticide manufacturing (NAICS distributed, sold, or used legally until 32532)

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This listing is not intended to be included in the official public docket, marked ‘‘late.’’ EPA is not required to exhaustive, but rather provides a guide will not be available for public viewing consider these late comments. If you for readers regarding entities likely to be in EPA’s electronic public docket. EPA’s wish to submit CBI or information that affected by this action. Other types of policy is that copyrighted material will is otherwise protected by statute, please entities not listed in this unit could also not be placed in EPA’s electronic public follow the instructions in Unit I.D. Do be affected. The North American docket but will be available only in not use EPA Dockets or e-mail to submit Industrial Classification System printed, paper form in the official public CBI or information protected by statute. (NAICS) codes have been provided to docket. To the extent feasible, publicly 1. Electronically. If you submit an assist you and others in determining available docket materials will be made electronic comment as prescribed in this whether this action might apply to available in EPA’s electronic public unit, EPA recommends that you include certain entities. If you have any docket. When a document is selected your name, mailing address, and an e- questions regarding the applicability of from the index list in EPA Dockets, the mail address or other contact this action to a particular entity, consult system will identify whether the information in the body of your the person listed under FOR FURTHER document is available for viewing in comment. Also include this contact INFORMATION CONTACT. EPA’s electronic public docket. information on the outside of any disk Although not all docket materials may or CD ROM you submit, and in any B. How Can I Get Copies of this be available electronically, you may still cover letter accompanying the disk or Document and Other Related access any of the publicly available CD ROM. This ensures that you can be Information? docket materials through the docket identified as the submitter of the 1. Docket. EPA has established an facility identified in Unit I.B. EPA comment and allows EPA to contact you official public docket for this action intends to work towards providing in case EPA cannot read your comment under docket identification (ID) number electronic access to all of the publicly due to technical difficulties or needs OPP–2003–0364. The official public available docket materials through further information on the substance of docket consists of the documents EPA’s electronic public docket. your comment. EPA’s policy is that EPA specifically referenced in this action, For public commenters, it is will not edit your comment, and any any public comments received, and important to note that EPA’s policy is identifying or contact information other information related to this action. that public comments, whether provided in the body of a comment will Although a part of the official docket, submitted electronically or in paper, be included as part of the comment that the public docket does not include will be made available for public is placed in the official public docket, Confidential Business Information (CBI) viewing in EPA’s electronic public and made available in EPA’s electronic or other information whose disclosure is docket as EPA receives them and public docket. If EPA cannot read your restricted by statute. The official public without change, unless the comment comment due to technical difficulties docket is the collection of materials that contains copyrighted material, CBI, or and cannot contact you for clarification, is available for public viewing at the other information whose disclosure is EPA may not be able to consider your Public Information and Records restricted by statute. When EPA comment. Integrity Branch (PIRIB), Rm. 119, identifies a comment containing i. EPA Dockets. Your use of EPA’s Crystal Mall #2, 1921 Jefferson Davis copyrighted material, EPA will provide electronic public docket to submit Hwy., Arlington, VA. This docket a reference to that material in the comments to EPA electronically is facility is open from 8:30 a.m. to 4 p.m., version of the comment that is placed in EPA’s preferred method for receiving Monday through Friday, excluding legal EPA’s electronic public docket. The comments. Go directly to EPA Dockets holidays. The docket telephone number entire printed comment, including the at http://www.epa.gov/edocket/, and is (703) 305–5805. copyrighted material, will be available follow the online instructions for 2. Electronic access. You may access in the public docket. submitting comments. Once in the this Federal Register document Public comments submitted on system, select ‘‘search,’’ and then key in electronically through the EPA Internet computer disks that are mailed or docket ID number OPP–2003–0364. The under the ‘‘Federal Register’’ listings at delivered to the docket will be system is an ‘‘anonymous access’’ http://www.epa.gov/fedrgstr/. transferred to EPA’s electronic public system, which means EPA will not An electronic version of the public docket. Public comments that are know your identity, e-mail address, or docket is available through EPA’s mailed or delivered to the docket will be other contact information unless you electronic public docket and comment scanned and placed in EPA’s electronic provide it in the body of your comment. system, EPA Dockets. You may use EPA public docket. Where practical, physical ii. E-mail. Comments may be sent by Dockets at http://www.epa.gov/edocket/ objects will be photographed, and the e-mail to [email protected], to submit or view public comments, photograph will be placed in EPA’s Attention: Docket ID Number OPP– access the index listing of the contents electronic public docket along with a 2003–0364. In contrast to EPA’s of the official public docket, and to brief description written by the docket electronic public docket, EPA’s e-mail access those documents in the public staff. system is not an ‘‘anonymous access’’ docket that are available electronically. system. If you send an e-mail comment Although not all docket materials may C. How and To Whom Do I Submit directly to the docket without going be available electronically, you may still Comments? through EPA’s electronic public docket, access any of the publicly available You may submit comments EPA’s e-mail system automatically docket materials through the docket electronically, by mail, or through hand captures your e-mail address. E-mail facility identified in Unit I.B.1. Once in delivery/courier. To ensure proper addresses that are automatically the system, select ‘‘search,’’ then key in receipt by EPA, identify the appropriate captured by EPA’s e-mail system are the appropriate docket ID number. docket ID number in the subject line on included as part of the comment that is Certain types of information will not the first page of your comment. Please placed in the official public docket, and be placed in the EPA Dockets. ensure that your comments are made available in EPA’s electronic Information claimed as CBI and other submitted within the specified comment public docket. information whose disclosure is period. Comments received after the iii. Disk or CD ROM. You may submit restricted by statute, which is not close of the comment period will be comments on a disk or CD ROM that

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you mail to the mailing address 2. Describe any assumptions that you residues or an explanation of why no identified in Unit I.C.2. These electronic used. such method is needed. submissions will be accepted in 3. Provide copies of any technical EDEN Bioscience Corporation WordPerfect or ASCII file format. Avoid information and/or data you used that the use of special characters and any support your views. PP OE6177 4. If you estimate potential burden or form of encryption. EPA has received a pesticide petition costs, explain how you arrived at the 2. By mail. Send your comments to: (PP OE6177) from EDEN Bioscience estimate that you provide. Public Information and Records Corporation, 3830 Monte Villa Parkway, Integrity Branch (PIRIB) (7502C), Office 5. Provide specific examples to illustrate your concerns. Bothell WA 98021–6942 proposing, of Pesticide Programs (OPP), pursuant to section 408(d) of the Federal Environmental Protection Agency, 1200 6. Make sure to submit your comments by the deadline in this Food, Drug, and Cosmetic Act (FFDCA), Pennsylvania Ave., NW., Washington, notice. 21 U.S.C. 346a(d), to amend 40 CFR part DC20460–0001, Attention: Docket ID 7. To ensure proper receipt by EPA, 180 by amending the current exemption Number OPP–2003–0364. be sure to identify the docket ID number from the requirement of a tolerance for 3. By hand delivery or courier. Deliver assigned to this action in the subject the inert ingredient sodium thiosulfate your comments to: Public Information line on the first page of your response. in or on all food crops. EPA has and Records Integrity Branch (PIRIB), You may also provide the name, date, determined that the petition contains Office of Pesticide Programs (OPP), and Federal Register citation. data or information regarding the Environmental Protection Agency, Rm. elements set forth in section 408(d)(2) of 119, Crystal Mall #2, 1921 Jefferson II. What Action is the Agency Taking? the FFDCA; however, EPA has not fully Davis Hwy., Arlington, VA, Attention: EPA has received a pesticide petition evaluated the sufficiency of the Docket ID Number OPP–2003–0364. as follows proposing the establishment submitted data at this time or whether Such deliveries are only accepted and/or amendment of regulations for the data supports granting of the during the docket’s normal hours of residues of a certain pesticide chemical petition. Additional data may be needed operation as identified in Unit I.B.1. in or on various food commodities before EPA rules on the petition. D. How Should I Submit CBI to the under section 408 of the Federal Food, In the Federal Register of September Agency? Drug, and Cosmetic Act (FFDCA), 21 6, 2000 (65 FR 54015) (FRL–6738–4), U.S.C. 346a. EPA has determined that EPA issued a notice pursuant to section Do not submit information that you this petition contains data or 408 of the Federal Food, Drug, and consider to be CBI electronically information regarding the elements set Cosmetic Act (FFDCA), 21 U.S.C. through EPA’s electronic public docket forth in FFDCA section 408(d)(2); 346a(d), announcing the filing of a or by e-mail. You may claim however, EPA has not fully evaluated tolerance petition (PP OE6177) by EDEN information that you submit to EPA as the sufficiency of the submitted data at Bioscience. This notice included a CBI by marking any part or all of that this time or whether the data support summary of the petition prepared by the information as CBI (if you submit CBI granting of the petition. Additional data petitioner and this summary contained on disk or CD ROM, mark the outside may be needed before EPA rules on the conclusions and arguments to support of the disk or CD ROM as CBI and then petition. its conclusion that the petition identify electronically within the disk or complied with the Food Quality List of Subjects CD ROM the specific information that is Protection Act (FQPA) of 1996. This CBI). Information so marked will not be Environmental protection, petition requested that 40 CFR part 180 disclosed except in accordance with Agricultural commodities, Feed be amended by establishing an procedures set forth in 40 CFR part 2. additives, Food additives, Pesticides exemption from the requirement of a In addition to one complete version of and pests, Reporting and recordkeeping tolerance for residues of the inert the comment that includes any requirements. ingredient sodium thiosulfate in or on information claimed as CBI, a copy of Dated: November 13, 2003. all food crops. The final rule exempted the comment that does not contain the Debra Edwards, the inert ingredient sodium thiosulfate information claimed as CBI must be Director, Registration Division, Office of from requirement of a tolerance when it submitted for inclusion in the public Pesticide Programs. comprises no more than 6% of the docket and EPA’s electronic public formulated product and when used on docket. If you submit the copy that does Summary of Petition growing crops or on raw agricultural not contain CBI on disk or CD ROM, The petitioner summary of the commodities after harvest. EPA mark the outside of the disk or CD ROM pesticide petition is printed below as published a final rule establishing a clearly that it does not contain CBI. required by FFDCA section 408(d)(3). tolerance exemption in the Federal Information not marked as CBI will be The summary of the petition was Register on December 21, 2001 (66 FR included in the public docket and EPA’s prepared by the petitioner and 65850) (FRL–6811–6) amending 40 CFR electronic public docket without prior represents the view of the petitioner. 180.1001(c). Research by EDEN notice. If you have any questions about The summary may have been edited by Bioscience Corporation indicates that CBI or the procedures for claiming CBI, EPA if the terminology used was higher levels of sodium thiosulfate are please consult the person listed under unclear, the summary contained needed in certain situations, such as the FOR FURTHER INFORMATION CONTACT. extraneous material, or the summary use of very high water volumes with unintentionally made the reader products containing a low percentage of E. What Should I Consider as I Prepare conclude that the findings reflected active ingredient. Therefore, EDEN My Comments for EPA? EPA’s position and not the position of proposes to amend this exemption to You may find the following the petitioner. The petition summary permit the use of sodium thiosulfate in suggestions helpful for preparing your announces the availability of a a pesticide formulated product with no comments: description of the analytical methods numerical limitation when used on 1. Explain your views as clearly as available to EPA for the detection and growing crops or on raw agricultural possible. measurement of the pesticide chemical commodities after harvest.

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A. Residue Chemistry versicolor (tinea versicolor, a type of such as KomedTM, an acne medication 1. Plant metabolism. Due to the ringworm). Recent studies have shown containing 8% sodium thiosulfate breakdown of sodium thiosulfate in that sodium thiosulfate may be effective together with 2% salicylic acid, 25% in reducing some chemically induced isopropyl alcohol and other ingredients. chlorinated water to sodium chloride, TM TM water, sulfur, and sulfate prior to cancers. In veterinary medicine it is Tinver and Versiclear , are lotions application to plants, there is no plant used to treat or prevent cyanide used for tinea versicolor (ringworm). metabolism of the parent compound. All poisoning; as a ‘‘general detoxifier’’ to Both lotions contain 25% sodium of the breakdown products are treat bloat; and when applied dermally thiosulfate, 1% salicylic acid and 10% to treat ringworm and mange. Sodium considered to be plant nutrients. isopropyl alcohol. It is recommended thiosulfate is also being used that the lotions be applied twice daily Sodium thiosulfate pentahydrate (CAS experimentally to increase food to affected and susceptible skin for at 10102–17–7) is an odorless crystalline utilization in livestock. least a week to many months until substance with a molecular weight of Sodium thiosulfate is present at 8% in complete control of tinea versicolor is 248.18. The molecular formula is Na S 2 23 lotion formulations to treat acne. Other achieved. Sodium thiosulfate (12%) is (Na 29.08%, O 30.36%, S 40.56%). It lotions, containing 25% sodium also mixed with a sterile solution of has a pKa of 1.6, is soluble in water thiosulfate, are used for treating 0.5% potassium ferricyanide to treat (42%; by weight at 0°C) and insoluble ringworm and may be applied twice silver nitrate burns. No adverse effects in alcohol. The aqueous solution is daily to affected and susceptible skin for are expected when sodium thiosulfate is practically neutral with a pH range of at least a week to many months until used topically. There is little 6.5-8.0. In aqueous solution sodium complete control is achieved. Sodium information available on inhalation thiosulfate slowly decomposes to its thiosulfate (12%) is also mixed with a toxicity of sodium thiosulfate, but as molecular constituents. Sodium sterile solution of 0.5% potassium with all dust or crystalline compounds, thiosulfate pentahydrate has a melting ° ferricyanide to treat silver nitrate burns. breathing product dust or mist may point of 48 C when heated rapidly. It Sodium thiosulfate is used to treat ° irritate the respiratory tract. Product loses all its water at 100 C and drinking water where there is concern labeling calls for mixers to wear a dust decomposes at higher temperatures. with high levels of chlorine, chloroform mask, thus precluding inhalation of dust When sodium thiosulfate is used to or other reactive species, especially in when sodium thiosulfate is present as remove chlorine from an aqueous drinking water produced by part of the product formulation. Eden solution it follows the equations: desalination plants. It is also used as a Bioscence Corporation believes that the Na2S2O3 + 4Cl2+ 5H2O = 2NaHSO4 + dechlorinator in aquariums and use of sodium thiosulfate as proposed is 8HCl and Na2S2O3 + 2HCl = 2NaCl + aquaculture, and in a number of not expected to pose an inhalation H2O + S + SO2. manufacturing processes that require hazard since it is already incorporated 2. Analytical method. Analysis of the removal of chlorine or other reactive into the formulation at low to moderate sodium thiosulfate can be accomplished species. concentrations (1 to 25%), or will be through a variety of methods. Some Sodium thiosulfate is classified in the added in tablet form. Once the sodium researchers have employed a gas Code of Federal Regulations, U.S. Food thiosulfate either in tablet form or in the chromatographic (GC) analytical method and Drug Administration, title 21, part formulated end product is mixed with using a C18 column and 420-E 184, as a Direct Food Substance water, it breaks down into sodium fluorescence detector for determining Affirmed As Generally Recognized As chloride, water, sulfur and sulfate, elution of thiosulfate in plasma and Safe (§ 184.1807) and title 21, part 582 which eliminates further possibility of urine. Other researchers have reported as a Substance Generally Recognized As inhalation exposure to the parent using a high performance liquid Safe, (§ 582.6807). According to compound. chromatographic (HPLC) method used § 184.1807, sodium thiosulfate is used Although intravenous (IV) exposure to to determine thiosulfate concentrations as a formulation aid and a reducing sodium thiosulfate is irrelevant to in plasma and urine. Medical agent. It is used in alcoholic beverages concerns with its proposed use, researchers have also described the use and table salt at levels not to exceed information from IV studies and of a clinical nephelometer to determine good manufacturing practice, currently therapeutic uses provides further data sulfate and thiosulfate concentrations in 0.00005% in alcoholic beverages and on the safety of sodium thiosulfate. plasma and urine. 0.1% in table salt. Section 582.6807 Sodium thiosulfate is considered to be 3. Magnitude of residues. Due to the authorizes the use of sodium thiosulfate essentially a nontoxic drug, although breakdown of sodium thiosulfate in as a sequestrant in salt with a tolerance nausea and vomiting have been water to sodium chloride, water, sulfur of 0.1%. described with rapid IV administration and sulfate, there are no residues of 1. Acute toxicity. Sodium thiosulfate of antidotal doses to normal adult sodium thiosulfate applied to the plants. exhibits a low order of acute toxicity. In human volunteers. The standard dose of an acute oral toxicity study of sodium sodium thiosulfate for treatment of B. Toxicological Profile > thiosulfate in the rat, an LD50 5,000 cyanide poisoning in humans is an IV Sodium thiosulfate has been safely milligrams/kilograms (mg/kg) was administration of 50 milliliters (mL) of used for over 100 years as a therapeutic established, which places this material a 250 mg/mL (25%) solution. Patients agent; medical uses of sodium in Toxicity Category IV. Sodium also have been administered 50 mL of thiosulfate have been well documented thiosulfate is not well absorbed through a 50% sodium thiosulfate solution since 1895. In humans it is employed as the intestinal tract at high doses. without adverse effects. Sodium an antidote for acute cyanide poisoning; Sodium thiosulfate is low in acute thiosulfate administered IV at 150–200 as a chemoprotectant against toxicity but may cause irritation of the mg/kg over a period of 15 minutes, is carboplatin and cisplatin induced gastrointestinal tract and purging if large part of the therapy to treat suspected ototoxicity; to prevent cyanide quantities are ingested. Sodium cyanide toxicity from administration of poisoning from treatment with sodium thiosulfate has been used as a topical sodium nitroprusside. nitroprusside, nitrile compounds and treatment for a variety of ailments for The lethal dose of sodium thiosulfate laetrile; to reduce calcinosis; and is used numerous years. Sodium thiosulfate is when given at intravenous doses to rats topically to treat acne and pityriasis available in various lotion formulations is greater than 2.5 g/kg. The IV LD50 in

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mice is 1.19 g/kg, while the median 2. Genotoxicity. Sodium thiosulfate is 4. Subchronic toxicity. No studies that lethal dose in dogs is 3 g/kg. The lethal not genotoxic and is regularly used in fall into the usual subchronic category dose injected into the flank of rabbits cell culture mediums as a source of were found. However, data from chronic was estimated to be 4 g/kg. The main sulfur. Sodium thiosulfate does not and acute studies provide adequate toxic effects from IV administration of cause cell death or reduce the rate of information as to the non-toxicity of sodium thiosulfate appear to be osmotic, growth in a wide variety of bacteria. sodium thiosulfate. It should be noted which result from the rapid sodium load Sodium thiosulfate is non-mutagenic to that VersiclearTM Lotion containing 25% together with acid-base disturbances. Salmonella typhimurium and can sodium thiosulfate and 1% salicylic Osmotic and acid-base disturbances reduce the mutagenic effects induced by acid in propylene glycol is have not been observed at lower doses other chemicals. Sodium thiosulfate recommended for subchronic treatment or from dermal or oral administration of does not increase the rate of sister of tinea versicolor in humans. In a series sodium thiosulfate. chromatid exchanges (SCEs) or of studies of various therapeutics for Information from intraperitoneal (IP) chromosomal aberrations in human cyanide poisoning in sheep, up to 660 studies provide further support that lymphocytes. Sodium thiosulfate has mg/kg of sodium thiosulfate was sodium thiosulfate has relatively low been shown to reduce the number of administered in distilled water via acute toxicity. Sodium thiosulfate SCEs in human lymphocytes and stomach tube directly to the rumen of protects the auditory system from the Chinese hamster (CH) lung cells when ewes that had been treated with lethal major ototoxic effects of cisplatin and administered simultaneously with doses of sodium cyanide (7.6 mg/kg). reduces other overt signs of systemic known SCE inducers. When sodium All ewes treated with 660 mg/kg sodium toxicity. thiosulfate at concentrations up to 5 X thiosulfate survived. Ewes receiving Hamsters receiving IP injections of 10\2\ M was added to untreated human 66.7 mg/kg sodium thiosulfate still sodium thiosulfate at 1,600 mg/kg every cells, there was no effect at all on the exhibited severe signs of cyanide other day until five injections were cells. In vitro studies with sodium poisoning and subsequently died. Based completed showed no ill effects from thiosulfate and LX-1 small-cell lung on this study, it is recommended that sodium thiosulfate. When sodium carcinoma cells found that sodium cyanide toxicity in ruminants should be thiosulfate was injected in hamsters in thiosulfate concentrations of 10 mg/kg treated with high doses of sodium combination with cisplatin (a and above were toxic to LX-1 cells, thiosulfate (500 mg/kg or more) and chemotherapeutic agent that has been presumably due to high osmolarity. repeated as needed, since sodium shown to cause ototoxicity), sodium However, lower concentrations of thiosulfate is rapidly cleared from the thiosulfate provided amelioration over a sodium thiosulfate had no effect on cell body and sustained release of free broad hearing range, as well as growth. Sodium thiosulfate has also cyanide from the rumen is possible. providing protection from cisplatin been shown to inhibit cisplatin-induced An evaluation of 41 potential induced gastrointestinal necrosis and mutagenesis in somatic tissue of chemopreventive agents using the nephrotoxicity. Similarly, in a study Drosophila. inhibition of carcinogen-induced where guinea pigs treated with aberrant crypt foci (ACF) in the rat cisplatin, cisplatin and sodium 3. Reproductive and developmental colon as the measure of efficacy found thiosulfate, saline or sodium thiosulfate toxicity. Sodium thiosulfate is not that sodium thiosulfate was one of 18 only (1,600 mg/kg/day for 8 days), there considered to be a reproductive or agents that significantly reduced the were no signs of toxicity in any of the developmental toxicant due to its rapid incidence of ACF. guinea pigs treated with sodium breakdown in the body to normal 5. Chronic toxicity. Long term thiosulfate only. There were no effects constituents, (i.e. thiosulfate is a normal treatment of patients with a variety of on body weight (bwt) or auditory constituent of blood and is utilized by illnesses has shown that ingestion of brainstem response and animals treated mitochondrial enzyme rhodanase, a.k.a. low levels of sodium thiosulfate is a with cisplatin and sodium thiosulfate, thiosulfate sulfurtransferase, as a sulfur non-toxic and safe therapeutic agent. A had improved hearing and lost less donor). In addition, remaining patient with renal tubular acidosis I was weight than animals treated with thiosulfate is rapidly hydrolyzed by treated for 9 years with sodium cisplatin only. water into sodium chloride, water, thiosulfate, 15–20 mmol daily (orally), Sodium thiosulfate has been shown to sulfur and sulfate, which are all to control nephrocalcinosis. During this be an effective antidote in mice exposed compounds readily used by living time period, there were no treatment- to acrylonitrile. Mice were given IP organisms. Teratology studies related adverse effects, nephrocalcinosis injections of sodium thiosulfate at 400 conducted in two species established did not worsen, and renal function mg/kg from 10 to 30 minutes prior to that the administration of 550 mg/kg improved. Thirty-four patients received acrylonitrile administration at the LD50 sodium thiosulfate for 13 days in the daily oral doses of sodium thiosulfate dose level of 60 mg/kg. All mice mouse and of 580 mg/kg sodium (10 mmol twice daily with meals) for 3 appeared normal after prophylactic thiosulfate for 10 days in the rabbit had to 4 years in the treatment of recurrent treatment with sodium thiosulfate and no effect on nidation or on maternal or calcium urinary lithiasis. Sodium showed no ill effects from subsequent fetal survival in either species. Use of thiosulfate was well tolerated by all acrylonitrile exposure. Animals treated sodium nitroprusside for the treatment patients for over 4 years with no with sodium thiosulfate only, showed of hypertensive emergencies in apparent toxic or side effects. It was also no evidence of toxicity. pregnancy has been hampered by found that the patients only absorbed Aquated cisplatin has a higher uptake concern for the possibility of cyanide 20–25% of the oral dose, excreting four by tumors than that of cisplatin, but poisoning in both the mother and fetus. to five mmol as urinary thiosulfate. aquated cisplatin is also more Coinfusion of sodium thiosulfate with Higher oral dose levels of sodium nephrotoxic. Subcutaneous injection of nitroprusside in gravid ewes prevented thiosulfate resulted in watery stools in sodium thiosulfate (1,000 mg/kg) five fetal and maternal cyanide toxicity. some patients so higher oral dose levels minutes before IP administration of Physicians are currently treating some were not used in this clinical trial. aquated cisplatin to B6D2F1 mice pregnant women with IV administration Three patients undergoing resulted in reduced aquated cisplatin- of sodium thiosulfate and sodium maintenance hemodialysis for more induced nephrotoxicity. nitroprusside. than 4 years developed calcified masses.

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To reduce the symptoms, each patient markedly after injection. Total excretion thiosulfate in water to sodium chloride, was given 20 mmol of sodium was 42.6 ± 3.5% of the injected dose at water, sulfur and sulfate, there are no thiosulfate IV at the end of each 180 minute. Total excretion increased to residues of sodium thiosulfate applied hemodialysis for the next 6 to 12 only 47.4 ± 2.4% at 18 hours after to the plants and thus there are no months. A considerable regression of injection. Sodium thiosulfate kinetics residues in food. calcified masses with concurrent were also studied in patients i. Food. The proposed use will not clinical improvement was observed in undergoing cancer treatment. Sodium two of the patients while the third thiosulfate was eliminated from the result in any dietary exposure beyond patient showed a softening in the mass plasma by first-order kinetics. On the what is currently present in salt and but no regression in size due to average approximately 28% of the dose alcohol. encapsulation prior to starting sodium was recovered unchanged in the urine. ii. Drinking water. There is no thiosulfate treatment. For all patients, In these patients, 95% of the total exposure to sodium thiosulfate through there were no new calcified masses recoverable thiosulfate was excreted drinking water. Any sodium thiosulfate observed during sodium thiosulfate within 4 hours after termination of that gets into water is quickly broken treatment, sodium thiosulfate was well infusion. When sodium thiosulfate is down to the following non-toxic tolerated, and no apparent side effects coadministered with cisplatin (a compounds: Sodium chloride, water, were observed. chemotherapeutic agent that often sulfur and sulfate. 6. Animal metabolism. Thiosulfate is causes nephrotoxicity), inactive mobile a normal constituent of mammalian metabolites of cisplatin are formed by a 2. Non-dietary exposure. The only urine. In humans, urinary thiosulfate direct reaction between cisplatin and anticipated human exposure to non- excretion averages approximately 30 sodium thiosulfate in the systemic dietary sources of sodium thiosulfate mole per 24 hours, which is less than circulation, which results in a reduction would be through medical treatment, 1% of the total urinary sulfur load. in the amount of cisplatin in the kidney. occupational exposure, or aquaculture Sodium thiosulfate is not well absorbed The strong diuretic action of sodium (hobbyists). when administered orally as it is broken thiosulfate also increases elimination of D. Cumulative Effects down in the acidic gastric juices to form both compounds, thus minimizing the sulfite and sulphur. Research has shown time the remaining cisplatin is in the Studies have shown that excess that 20–25% of a chronic low level dose kidneys. sodium thiosulfate beyond endogenous is excreted in the urine as urinary Sodium thiosulfate has been used to levels of thiosulfate is rapidly cleared thiosulfate. estimate extracellular water in cattle from the body and there are no When sodium thiosulfate is given and was found to reach equilibrium cumulative effects. It should also be intravenously, it is distributed with extracellular water in 5 to 10 throughout the extracellular fluid and minutes after infusion. Sodium noted that with the exception of renal excretion occurs by glomerular thiosulfate was cleared from venous possible occupational exposure of the filtration and secretion. The serum half- blood in a two part fashion: First, it was mixer/loader/applicator, the proposed life of thiosulfate in humans (after bolus cleared from the plasma into the uses of sodium thiosulfate will not injections) is around 15 to 20 minutes. interstitial fluid, then secondly through result in exposure to any other persons When sodium thiosulfate is renal clearance from the extracellular or any non-target organisms. administered during sodium water. A first-order clearance of the E. Safety Determination nitroprusside therapy, the plasma half sodium thiosulfate was demonstrated 15 life of thiosulfate is reported to be as to 20 minutes after infusion. When 1. U.S. population. EDEN Bioscience short as 15 minutes to as long as 3 combined with urea, sodium thiosulfate Corporation believes that the use of hours. Depending on the dosage, around gave reasonable estimates of empty body sodium thiosulfate as an adjuvant added 10 to 50% of exogenous thiosulfate is water, extracellular water, intracellular to tank mixes does not pose a safety eliminated unchanged via the kidneys. water and lean body mass. No adverse concern for the U.S. population due to Endogenous levels of plasma and effects were noted in any of the steers. the non-toxic nature of the compound urinary thiosulfate concentrations, 7. Metabolite toxicology. None of the and the absence of exposure. determined from healthy volunteers are metabolites of sodium thiosulfate are 1.13 ± 0.11 milligrams/deciliter (mg/dL) considered to be of toxicological 2. Infants and children. Infants and and 0.28 ± 0.02 mg/dL, respectively. significance. Thiosulfate is a normal children will not be exposed to sodium Clearance of endogenous thiosulfate in body constituent as are the other thiosulfate from its use as an adjuvant normal males was 0.26 ± 0.04 mL/min, breakdown products from the reaction in conjunction with formulated with net excretion accounting for only of sodium thiosulfate in chlorinated products. 0.17% of the filtered load. The majority water: Sodium chloride, water, sulfur F. International Tolerances of endogenous thiosulfate is actively and sulfate. reabsorbed and endogenous levels are 8. Endocrine disruption. Sodium There are no known international regulated by the kidney through thiosulfate does not affect the endocrine tolerances for sodium thiosulfate. secretion into and reabsorption out of system, except as a detoxifying agent of tubules. compounds that have been shown to [FR Doc. 03–29320 Filed 11–25–03; 8:45 am] Sodium thiosulfate is known to be a adversely affect the endocrine system BILLING CODE 6560–50–S strong diuretic. Following IV (i.e. chlorine and other reactant species). administration of sodium thiosulfate, peak thiosulfate concentrations were C. Aggregate Exposure obtained 5 minutes after injection. The 1. Dietary exposure. The proposed use half-life of the distribution phase was 23 of sodium thiosulfate to remove minutes while that of the elimination chlorine and other reactive species from phase was 182 minutes. Urine tank water ensures that there is no concentration, clearance and rate of dietary exposure to sodium thiosulfate. thiosulfate excretion increased Due to the breakdown of sodium

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ENVIRONMENTAL PROTECTION questions regarding the applicability of list in EPA Dockets, the system will AGENCY this action to a particular entity, consult identify whether the document is the person listed under FOR FURTHER available for viewing in EPA’s electronic [OPP–2003–0350; FRL–7332–8] INFORMATION CONTACT. public docket. Although not all docket materials may be available Bacillus Thuringiensis VIP3A Insect B. How Can I Get Copies of this electronically, you may still access any Control Protein as Expressed in Event Document and Other Related of the publicly available docket COT102; Notice of Filing a Pesticide Information? Petition to Establish an Exemption materials through the docket facility 1. Docket. EPA has established an from the Requirement of a Tolerance identified in Unit I.B.1. EPA intends to official public docket for this action work towards providing electronic for a Certain Pesticide Chemical in or under docket ID number OPP–2003– on Food access to all of the publicly available 0350. The official public docket consists docket materials through EPA’s AGENCY: Environmental Protection of the documents specifically referenced electronic public docket. Agency (EPA). in this action, any public comments For public commenters, it is ACTION: Notice. received, and other information related important to note that EPA’s policy is to this action. Although a part of the that public comments, whether SUMMARY: This notice announces the official docket, the public docket does submitted electronically or in paper, initial filing of a pesticide petition not include Confidential Business will be made available for public proposing the establishment of Information (CBI) or other information viewing in EPA’s electronic public regulations for residues of a certain whose disclosure is restricted by statute. docket as EPA receives them and pesticide chemical in or on various food The official public docket is the without change, unless the comment commodities. collection of materials that is available contains copyrighted material, CBI, or DATES: Comments, identified by docket for public viewing at the Public other information whose disclosure is identification (ID) number OPP–2003– Information and Records Integrity restricted by statute. When EPA 0350, must be received on or before Branch (PIRIB), Rm. 119, Crystal Mall identifies a comment containing December 26, 2003. #2, 1921 Jefferson Davis Hwy., copyrighted material, EPA will provide Arlington, VA. This docket facility is a reference to that material in the ADDRESSES: Comments may be open from 8:30 a.m. to 4 p.m., Monday version of the comment that is placed in submitted electronically, by mail, or through Friday, excluding legal EPA’s electronic public docket. The through hand delivery/courier. Follow holidays. The docket telephone number entire printed comment, including the the detailed instructions as provided in is (703) 305–5805. copyrighted material, will be available Unit I. of the SUPPLEMENTARY 2. Electronic access. You may access in the public docket. INFORMATION. this Federal Register document Public comments submitted on FOR FURTHER INFORMATION CONTACT: electronically through the EPA Internet computer disks that are mailed or Leonard Cole, Biopesticides and under the ‘‘Federal Register’’ listings at delivered to the docket will be Pollution Prevention Division (7511C), http://www.epa.gov/fedrgstr/. transferred to EPA’s electronic public Office of Pesticide Programs, An electronic version of the public docket. Public comments that are Environmental Protection Agency, 1200 docket is available through EPA’s mailed or delivered to the docket will be Pennsylvania Ave., NW., Washington, electronic public docket and comment scanned and placed in EPA’s electronic DC 20460–0001; telephone number: system, EPA Dockets. You may use EPA public docket. Where practical, physical (703) 305–5412; e-mail address: Dockets at http://www.epa.gov/edocket/ objects will be photographed, and the [email protected]. to submit or view public comments, photograph will be placed in EPA’s access the index listing of the contents electronic public docket along with a SUPPLEMENTARY INFORMATION: of the official public docket, and to brief description written by the docket I. General Information access those documents in the public staff. docket that are available electronically. A. Does this Action Apply to Me? Although not all docket materials may C. How and to Whom Do I Submit You may be potentially affected by be available electronically, you may still Comments? this action if you are an agricultural access any of the publicly available You may submit comments producer, food manufacturer, or docket materials through the docket electronically, by mail, or through hand pesticide manufacturer. Potentially facility identified in Unit I.B.1. Once in delivery/courier. To ensure proper affected entities may include, but are the system, select ‘‘search,’’ then key in receipt by EPA, identify the appropriate not limited to: the appropriate docket ID number. docket ID number in the subject line on • Crop production (NAICS 111) Certain types of information will not the first page of your comment. Please • Animal production (NAICS 112) be placed in EPA’s Dockets. Information ensure that your comments are • Food manufacturing (NAICS 311) claimed as CBI and other information submitted within the specified comment • Pesticide manufacturing (NAICS whose disclosure is restricted by statute, period. Comments received after the 32532) which is not included in the official close of the comment period will be This listing is not intended to be public docket, will not be available for marked ‘‘late.’’ EPA is not required to exhaustive, but rather provides a guide public viewing in EPA’s electronic consider these late comments. If you for readers regarding entities likely to be public docket. EPA’s policy is that wish to submit CBI or information that affected by this action. Other types of copyrighted material will not be placed is otherwise protected by statute, please entities not listed in this unit could also in EPA’s electronic public docket but follow the instructions in Unit I.D. Do be affected. The North American will be available only in printed, paper not use EPA Dockets or e-mail to submit Industrial Classification System form in the official public docket. To the CBI or information protected by statute. (NAICS) codes have been provided to extent feasible, publicly available 1. Electronically. If you submit an assist you and others in determining docket materials will be made available electronic comment as prescribed in this whether this action might apply to in EPA’s electronic public docket. When unit, EPA recommends that you include certain entities. If you have any a document is selected from the index your name, mailing address, and an e-

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mail address or other contact Pennsylvania Ave., NW., Washington, 6. Make sure to submit your information in the body of your DC 20460–0001, Attention: Docket ID comments by the deadline in this comment. Also include this contact Number OPP–2003–0350. notice. information on the outside of any disk 3. By hand delivery or courier. Deliver 7. To ensure proper receipt by EPA, or CD ROM you submit, and in any your comments to: Public Information be sure to identify the docket ID number cover letter accompanying the disk or and Records Integrity Branch (PIRIB), assigned to this action in the subject CD ROM. This ensures that you can be Office of Pesticide Programs (OPP), line on the first page of your response. identified as the submitter of the Environmental Protection Agency, Rm. You may also provide the name, date, comment and allows EPA to contact you 119, Crystal Mall #2, 1921 Jefferson and Federal Register citation. in case EPA cannot read your comment Davis Hwy., Arlington, VA, Attention: II. What Action is the Agency Taking? due to technical difficulties or needs Docket ID Number OPP–2003–0350. further information on the substance of Such deliveries are only accepted EPA has received a pesticide petition your comment. EPA’s policy is that EPA during the docket’s normal hours of as follows proposing the establishment will not edit your comment, and any operation as identified in Unit I.B.1. and/or amendment of regulations for identifying or contact information residues of a certain pesticide chemical provided in the body of a comment will D. How Should I Submit CBI to the in or on various food commodities be included as part of the comment that Agency? under section 408 of the Federal Food, is placed in the official public docket, Do not submit information that you Drug, and Cosmetic Act (FFDCA), 21 and made available in EPA’s electronic consider to be CBI electronically U.S.C. 346a. EPA has determined that public docket. If EPA cannot read your through EPA’s electronic public docket this petition contains data or comment due to technical difficulties or by e-mail. You may claim information regarding the elements set and cannot contact you for clarification, information that you submit to EPA as forth in FFDCA section 408(d)(2); EPA may not be able to consider your CBI by marking any part or all of that however, EPA has not fully evaluated comment. information as CBI (if you submit CBI the sufficiency of the submitted data at i. EPA Dockets. Your use of EPA’s on disk or CD ROM, mark the outside this time or whether the data support electronic public docket to submit of the disk or CD ROM as CBI and then granting of the petition. Additional data comments to EPA electronically is identify electronically within the disk or may be needed before EPA rules on the EPA’s preferred method for receiving petition. comments. Go directly to EPA Dockets CD ROM the specific information that is at http://www.epa.gov/edocket/, and CBI). Information so marked will not be List of Subjects disclosed except in accordance with follow the online instructions for Environmental protection, procedures set forth in 40 CFR part 2. submitting comments. Once in the Agricultural commodities, Feed system, select ‘‘search,’’ and then key in In addition to one complete version of additives, Food additives, Pesticides docket ID number OPP–2003–0350. The the comment that includes any and pests, Reporting and recordkeeping system is an ‘‘anonymous access’’ information claimed as CBI, a copy of requirements. the comment that does not contain the system, which means EPA will not Dated: November 12, 2003. know your identity, e-mail address, or information claimed as CBI must be Janet L. Andersen, other contact information unless you submitted for inclusion in the public provide it in the body of your comment. docket and EPA’s electronic public Director, Biopesticides and Pollution ii. E-mail. Comments may be sent by docket. If you submit the copy that does Prevention Division, Office of Pesticide Programs. e-mail to [email protected], not contain CBI on disk or CD ROM, Attention: Docket ID Number OPP– mark the outside of the disk or CD ROM Summary of Petition clearly that it does not contain CBI. 2003–0350. In contrast to EPA’s The petitioner summary of the Information not marked as CBI will be electronic public docket, EPA’s e-mail pesticide petition is printed below as included in the public docket and EPA’s system is not an ‘‘anonymous access’’ required by FFDCA section 408(d)(3). electronic public docket without prior system. If you send an e-mail comment The summary of the petition was notice. If you have any questions about directly to the docket without going prepared by the petitioner and CBI or the procedures for claiming CBI, through EPA’s electronic public docket, represents the view of the petitioner. EPA’s e-mail system automatically please consult the person listed under The petition summary announces the captures your e-mail address. E-mail FOR FURTHER INFORMATION CONTACT. availability of a description of the addresses that are automatically E. What Should I Consider as I Prepare analytical methods available to EPA for captured by EPA’s e-mail system are My Comments for EPA? the detection and measurement of the included as part of the comment that is pesticide chemical residues or an placed in the official public docket, and You may find the following explanation of why no such method is made available in EPA’s electronic suggestions helpful for preparing your needed. public docket. comments: iii. Disk or CD ROM. You may submit 1. Explain your views as clearly as Syngenta Seeds, Incorporated comments on a disk or CD ROM that possible. you mail to the mailing address PP 3F6756 2. Describe any assumptions that you identified in Unit I.C.2. These electronic EPA has received a pesticide petition used. submissions will be accepted in (3F6756) from Syngenta Seeds, WordPerfect or ASCII file format. Avoid 3. Provide copies of any technical Incorporated, P.O. Box 12257, 3054 the use of special characters and any information and/or data you used that Cornwallis Road, Research Triangle form of encryption. support your views. Park, NC 27709–2257, proposing 2. By mail. Send your comments to: 4. If you estimate potential burden or pursuant to section 408(d) of the Public Information and Records costs, explain how you arrived at the FFDCA, 21 U.S.C. 346a(d), to amend 40 Integrity Branch (PIRIB) (7502C), Office estimate that you provide. CFR part 180 to establish an exemption of Pesticide Programs (OPP), 5. Provide specific examples to from the requirement of a tolerance for Environmental Protection Agency, 1200 illustrate your concerns. the plant-pesticide Bacillus

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thuringiensis VIP3A Insect Control predictability in producing a high- homology) to VIP3A or VIP3A--like Protein as Expressed in Event COT102 yielding cotton crop. genes that appear to occur commonly in and the genetic material necessary for VIP3A expressing cotton plants Bt strains from a variety of sources. In its production in or on cotton. derived from transformation event addition, it has been determined that Pursuant to section 408(d)(2)(A)(i) of COT102 have been field tested under the VIP3A protein demonstrates insect the FFDCA, as amended, Syngenta U.S. Department of Agriculture (USDA) specific toxicity and must be ingested to Seeds, Incorporated has submitted the Notifications and in compliance with be active. Once in the insect gut, the following summary of information, data, the guidelines for USDA regulated VIP3A protein binds to specific and arguments in support of their plantings in 2000, 2001, and 2002. The receptors (different from those bound by pesticide petition. This summary was overall results of those trials have Cry1A proteins), inserts into the prepared by Syngenta Seeds, indicated that cotton plants derived membrane and forms ion-specific pores. Incorporated and EPA has not fully from event COT102 have significant and These events disrupt the digestive evaluated the merits of the pesticide specific insecticidal activity against processes and cause death of the insect. petition. The summary may have been several lepidopteran pests including, The lack of mammalian toxicity has edited by EPA if the terminology used but not limited to, Helicoverpa zea been confirmed in numerous safety was unclear, the summary contained (cotton bollworm), Heliothis virescens studies conducted in laboratory extraneous material, or the summary (tobacco budworm), and Pectinophora animals, which are traditional unintentionally made the reader gossypiella (pink bollworm). experimental surrogates for humans. conclude that the findings reflected B. Product Identity/Chemistry These studies, summarized herein, EPA’s position and not the position of demonstrate the lack of toxicity of the the petitioner. 1. Identity of the pesticide and VIP3A protein following high-dose corresponding residues. Cotton, acute oral exposures to mice, rapid A. Product Name and Proposed Use Gossypium hirsutum, has been Practices degradation of VIP3A upon exposure to genetically modified to be resistant to simulated gastric fluid, and the lack of Syngenta has developed a new cotton selected lepidopteran insect pests. amino acid sequence similarity of the line that expresses an insect control Insect protection was accomplished by VIP3A protein to proteins known to be protein designated VIP3A. It has been the insertion of the VIP3A(a) gene, mammalian toxins or human allergens. genetically incorporated into a cotton which was cloned from Bacillus It can be concluded from these studies plant product identified as Bacillus thuringiensis strain AB88. The identity that the VIP3A protein will be non-toxic thuringiensis (Bt) VIP3A Insect Control of the active pesticidal ingredient in to humans. Protein as Expressed in Event COT102. cotton plants derived from When proteins are toxic, they are VIP3A is one of a novel class of recently transformation event COT102 includes known to act via acute mechanisms and discovered insecticidal proteins that the protein VIP3A and the genetic at very low doses (Sjoblad, R.D., J.T. occur naturally in Bacillus material necessary for its production in McClintock and R. Engler (1992) thuringiensis. The VIPs (vegetative cotton. Research has demonstrated the ‘‘Toxicological Considerations for insecticidal proteins) are produced specific insecticidal properties of VIP3A Protein Components of Biological during vegetative bacterial growth. to certain lepidopteran insects in cotton Pesticide Products.’’ Regulatory Toxicol. Other than its demonstrated as well as its lack of effects on nontarget Pharmacol. 15: 3–9). Therefore, when a insecticidal activity, VIP3A is not organisms such as mammals, birds, fish, protein demonstrates no acute oral known to have any other biological or and beneficial insects. toxicity in high-dose testing using a catalytic function. Although VIP3A 2. Magnitude of residue at the time of standard laboratory mammalian test protein shares no homology with known harvest and method used to determine species, this supports the determination Cry proteins, extensive testing has the residue. A determination of the that the protein will be non-toxic to established that VIP3A is similarly very magnitude of residue at harvest is not humans and other mammals, and will specific in its activity, and has required for residues exempt from not present a hazard under any realistic demonstrated toxicity only to the larvae tolerances. However, the petitioner has exposure scenario, including long-term of certain lepidopteran species, provided data on the quantity of VIP3A exposures. including key pests of cotton. Further, protein measured in various plant parts Studies conducted to assess the because VIP3A appears to target a including seeds of VIP3A cotton, as mammalian safety of VIP3A protein different receptor than Cry proteins in measured by enzyme linked have demonstrated no toxicity. Four sensitive species, it represents a immunosorbent assay (ELISA). acute oral toxicity studies in mice have potentially useful tool in the prevention Additionally, the petitioner has been completed. Three of the VIP3A test or management of pest resistance to Cry provided data on the quantity or substances used were produced via proteins. presence of VIP3A protein in processed microbial expression systems and one Upon commercial introduction, the cottonseed products. prepared by extracting protein from use of transgenic VIP3A cotton plants is 3. A statement of why an analytical leaves of VIP3A event Pacha-derived expected to offer an important new method for detecting and measuring the corn plants. The four test substances option in lepidopteran pest control and levels of the pesticide residue are not contained VIP3A protein that differed integrated pest management programs. needed. An analytical method is not from the VIP3A protein expressed in Moreover, VIP3A cotton will be an required because this petition requests event COT102 by zero to two amino attractive, biologically based alternative an exemption from tolerances. However, acids. At maximum dosage the to the use of foliar insecticides. The use the petitioner has submitted an microbially expressed test substance of VIP3A cotton plants is expected to analytical method for detection of the was administered at a level of 5,000 offer substantial environmental and VIP3A protein in cottonseed by ELISA milligrams/kilogram (mg/kg) with an worker safety benefits associated with analysis. estimated acute lethal dose (LD)50 by the reduced need for broad-spectrum gavage determined to be >3,675 mg insecticides. Additionally, benefits to C. Mammalian Toxicological Profile VIP3A/kg (mg/kg body weight). Because cotton growers will likely include The VIP3A(a) gene expressed in Event toxicity was not observed at this dose, greater profitability, convenience and COT102 cotton is very similar (ca. 99% it can be concluded that the LD50 for

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pure VIP3A protein is >3,675 mg/kg display characteristics commonly very high dose levels, and support the body weight. The VIP3A protein in both associated with allergens, including prediction that the VIP3A protein would the microbial and plant derived test glycosylation or stability to heat and be non-toxic to humans. Therefore no substance was determined to be food processing. Additionally, VIP3A is effects on the immune or endocrine substantially equivalent to VIP3A susceptible to gastric digestion by systems are predicted. When proteins produced in event COT102 derived pepsin and did not provoke an allergic are toxic, they are known to act via cotton plants, as measured by biological response in an experimental atopic dog acute mechanisms and at very low dose activity, protein size, immunreactivity, model of human food allergy. levels. Sjoblad, Roy D., et al. mass spectral analysis of amino acid ii. Drinking water. No exposure to ‘‘Toxicological Considerations for sequence, and apparent lack of post- VIP3A and the genetic material Protein Components of Biological translational modifications. necessary for its production in cotton Pesticide Products,’’ Regulatory The amino acid sequence of VIP3A is via drinking water is expected. The Toxicology and Pharmacology 15, 3–9 not homologous to that of any known or proteins are incorporated into the plant (1992). Further, the VIP3A protein is putative allergens described in public and will not be available. However, if derived from a source that is not known databases. The VIP3A protein is not exposure were to occur by this route, no to exert an influence on the endocrine derived from a known source of risk would be expected because the system. allergens and does not display VIP3A protein is not toxic to mammals characteristics commonly associated 2. Non-dietary exposure. Non-dietary H. Existing Tolerances with allergens, including glycosylation exposure is not anticipated, due to the There are no existing tolerances for or stability to heat and food processing. proposed use pattern of the product. the Bt VIP3A protein and the genetic Additionally, VIP3A is susceptible to Exposure via dermal or inhalation material necessary for its production. gastric digestion by pepsin and did not routes is unlikely because the plant- Other Bt-based pesticide products are provoke an allergic response in an incorporated protectant is contained exempt from tolerances. experimental atopic dog model of within plant cells. However, if exposure human food allergy. were to occur by non-dietary routes, no I. International Tolerances VIP3A protein appears to be present risk would be expected because the There are no existing international in multiple commercial formulations of VIP3A protein is not toxic to mammals. tolerances or exemptions from tolerance Bt microbial insecticides at for the Bt VIP3A protein and the genetic E. Cumulative Exposure concentrations estimated to be ca. 0.4, material necessary for its production. 32 ppm. This conclusion is based on the Because there is no indication of [FR Doc. 03–29185 Filed 11–25–03; 8:45 am] presence of proteins of the appropriate mammalian toxicity to the VIP3A BILLING CODE 6560–50–S molecular weight and immunoreactivity protein, it is reasonable to conclude that (by SDS-PAGE and western blot), and there are no cumulative effects for this quantitation by ELISA. Therefore, it is plant-incorporated protectant. ENVIRONMENTAL PROTECTION conceivable that small quantities of AGENCY VIP3A protein are present in the food F. Safety Determination supply because VIP3A (or a very similar 1. U.S. population. The lack of [OPP–2003–0358; FRL–7334–7] protein, based on size and mammalian toxicity at high levels of Pesticide Emergency Exemptions; immunoreactivity) appears to be present exposure to the VIP3A protein in currently registered insecticide demonstrates the safety of the product at Agency Decisions and State and products used on food crops, including levels well above possible maximum Federal Agency Crisis Declarations fresh market produce. These exposure levels anticipated via AGENCY: Environmental Protection commercial Bt products are all exempt consumption of processed food Agency (EPA). from food and feed tolerances. products produced from VIP3A cotton. ACTION: Notice. Moreover, little to no human dietary D. Aggregate Exposure exposure to VIP3A protein is expected SUMMARY: EPA has granted or denied 1. Dietary exposure—i. Food. Food to occur via VIP3A cotton. Due to the emergency exemptions under the products derived from cotton (refined lack of toxicity of the VIP3A protein and Federal Insecticide, Fungicide, and cottonseed oil and cellulose ‘‘linters’’ its very low potential for allergenicity, Rodenticide Act (FIFRA) for use of fiber) are highly processed and are dietary exposure is not anticipated to pesticides as listed in this notice. The essentially devoid of any proteins. pose any harm for the U.S. population. exemptions or denials took place during Moreover, no VIP3A protein was No special safety provisions are the period April 1, 2003 to September detected in refined cottonseed oil or applicable for consumption patterns or 30, 2003 to control unforseen pest cotton fiber produced from event for any population sub-groups. outbreaks. COT102-derived VIP3A cotton plants. 2. Infants and children. The plant- Therefore, no human dietary exposure incorporated protectant active FOR FURTHER INFORMATION CONTACT: See to VIP3A protein is expected to occur ingredient, Bacillus thuringiensis VIP3A each emergency exemption or denial for via VIP3A cotton. Even if dietary insect control protein and the genetic the name of a contact person. The exposure to VIP3A protein were to material necessary for its production in following information applies to all occur, data derived from bioinformatic cotton, demonstrates no mammalian contact persons: Team Leader, analyses as well as direct in vitro and in toxicity. Thus, there are no threshold Emergency Response Team, Registration vivo testing collectively indicate that the effects of concern and, consequently, Division (7505C), Office of Pesticide VIP3A protein is unlikely to have there is no need to apply an additional Programs, Environmental Protection allergenic potential. The amino acid margin of safety. Agency, 1200 Pennsylvania Ave., NW., sequence of VIP3A is not homologous to Washington, DC 20460–0001; telephone that of any known or putative allergens G. Effects on the Immune and Endocrine number: (703) 308–9366. described in public databases. The Systems SUPPLEMENTARY INFORMATION: EPA has VIP3A protein is not derived from a The safety data submitted show no granted or denied emergency known source of allergens and does not adverse effects in mammals, even at exemptions to the following State and

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Federal Agencies. The emergency electronic public docket and comment III. Emergency Exemptions and Denials exemptions may take the following system, EPA Dockets. You may use EPA A. U.S. States and Territories form: Crisis, public health, quarantine, Dockets at http://www.epa.gov/edocket/ or specific. EPA has also listed denied to submit or view public comments, Alabama emergency exemption requests in this access the index listing of the contents Department of Agriculture and notice. of the official public docket, and to Industries I. General Information access those documents in the public docket that are available electronically. Specific. EPA authorized the use of A. Does this Action Apply to Me? Although not all docket materials may diuron on catfish to control algae; June You may be potentially affected by be available electronically, you may still 1, 2003 to November 1, 2003. Contact: this action if you are a Federal or State access any of the publicly available (Libby Pemberton). government agency involved in docket materials through the docket Arkansas administration of environmental quality facility identified in Unit I.B.1. Once in programs (i.e., Departments of the system, select ‘‘search,’’ then key in State Plant Board Agriculture, Environment, etc.). the appropriate docket ID number. Crisis. On May 2, 2003, for the use of Potentially affected entities may II. Background fomesafen on snap beans to control include, but are not limited to: broad leaf weeds. This program ended • Federal or State Government Under FIFRA section 18, EPA can on May 9, 2003. Contact: (Andrea Entity, (NAICS 9241), i.e., Department authorize the use of a pesticide when Conrath). of Agriculture, Environment, etc. emergency conditions exist. On May 29, 2003, for the use of This listing is not intended to be Authorizations (commonly called sodium chlorate on wheat to control exhaustive, but rather provides a guide emergency exemptions) are granted to weeds. This program ended on June 12, for readers regarding entities likely to be State and Federal agencies and are of 2003. Contact: (Libby Pemberton.) affected by this action. Other types of four types: Denial. On August 26, 2003 EPA entities not listed in this unit could also 1. A ‘‘specific exemption’’ authorizes denied the use of flumioxazin on cotton be affected. The North American use of a pesticide against specific pests to control broad leaf weeds. This request Industrial Classification System on a limited acreage in a particular was denied because the criteria for an (NAICS) codes have been provided to State. Most emergency exemptions are emergency situation were not met. assist you and others in determining specific exemptions. Contact: (Libby Pemberton). whether this action might apply to Specific. EPA authorized the use of 2. ‘‘Quarantine’’ and ‘‘public health’’ certain entities. If you have any diuron on catfish to control algae; April exemptions are a particular form of questions regarding the applicability of 4, 2003 to November 30, 2003. Contact: specific exemption issued for this action to a particular entity, consult (Libby Pemberton.) the person listed under FOR FURTHER quarantine or public health purposes. EPA authorized the use of fomesafen INFORMATION CONTACT. These are rarely requested. on snap beans to control broad leaf 3. A ‘‘crisis exemption’’ is initiated by weeds; May 9, 2003 to September 15, B. How Can I Get Copies of this a State or Federal agency (and is 2003. Contact: (Andrea Conrath). Document and Other Related confirmed by EPA) when there is EPA authorized the use of Information? insufficient time to request and obtain methoxyfenozide on soybeans to control 1. Docket. EPA has established an EPA permission for use of a pesticide in armyworms; August 13, 2003 to October official public docket for this action an emergency. 30, 2003. Contact: (Dan Rosenblatt) under docket identification (ID) number EPA may deny an emergency California OPP–2003–0358. The official public exemption: If the State or Federal docket consists of the documents agency cannot demonstrate that an Environmental Protection Agency, specifically referenced in this action, emergency exists, if the use poses Department of Pesticide Regulation. any public comments received, and unacceptable risks to the environment, Crisis. On April 3, 2003, for the use other information related to this action. or if EPA cannot reach a conclusion that of oxytetracycline on apples to control Although a part of the official docket, the proposed pesticide use is likely to fire blight. This program ended on the public docket does not include result in ‘‘a reasonable certainty of no August 1, 2003. Contact: (Andrea Confidential Business Information (CBI) harm’’ to human health, including Conrath). or other information whose disclosure is exposure of residues of the pesticide to Specific. EPA authorized the use of restricted by statute. The official public infants and children. tebuconazole on garlic to control garlic docket is the collection of materials that rust; April 16, 2003 to July 3, 2003. If the emergency use of the pesticide is available for public viewing at the Contact: (Andrea Conrath). on a food or feed commodity would Public Information and Records EPA authorized the use of Integrity Branch (PIRIB), Rm. 119, result in pesticide chemical residues, imidacloprid on garden beets to control Crystal Mall #2, 1921 Jefferson Davis EPA establishes a time-limited tolerance aphids; April 18, 2003 to March 1, 2004. Hwy., Arlington, VA. This docket meeting the ‘‘reasonable certainty of no Contact: (Andrew Ertman). facility is open from 8:30 a.m. to 4 p.m., harm standard’’ of the Federal Food, EPA authorized the use of Monday through Friday, excluding legal Drug, and Cosmetic Act (FFDCA). myclobutanil on peppers (bell and non- holidays. The docket telephone number In this document: EPA identifies the bell) to control powdery mildew; June is (703) 305–5805. State or Federal agency granted the 25, 2003 to May 31, 2004. Contact: 2. Electronic access. You may access exemption or denial, the type of (Barbara Madden). this Federal Register document exemption, the pesticide authorized and EPA authorized the use of avermectin electronically through the EPA Internet the pests, the crop or use for which on basil to control leafminers; July 1, under the ‘‘Federal Register’’ listings at authorized, and the duration of the 2003 to October 31, 2003. Contact: http://www.epa.gov/fedrgstr/. exemption. EPA also gives the Federal (Barbara Madden). An electronic version of the public Register citation for the time-limited EPA authorized the use of fludioxonil docket is available through EPA’s tolerance, if any. on pomegranates to control gray mold;

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August 1, 2003 to December 15, 2003. Delaware On June 10, 2003, for the use of Contact: (Andrew Ertman). diflubenzuron on alfalfa to control Department of Agriculture EPA authorized the use of grasshoppers and crickets. This program myclobutanil on artichokes to control Specific. EPA authorized the use of ended on October 31, 2003. Contact: powdery mildew; August 18, 2003 to imidacloprid on peaches, nectarines, (Andrea Conrath). August 17, 2004. Contact: (Barbara plums and apricots to control aphids; On June 13, 2003, for the use of Madden). April 2, 2003 to October 15, 2003. diflubenzuron on wheat and barley to EPA authorized the use of Contact: (Andrew Ertman). control grasshoppers. This program thiophanate methyl on mushroom EPA authorized the use of terbacil on ended on June 27, 2003. Contact: spawn to control green mold; September watermelons to control annual broad (Andrea Conrath). 11, 2003 to September 10, 2004. leaf weeds; April 28, 2003 to June 15, Specific. EPA authorized the use of Contact: (Andrea Conrath). 2003. Contact: (Barbara Madden). lambda-cyhalothrin on barley to control EPA authorized the use of fomesafen the Russian wheat aphid, and cereal leaf EPA authorized the use of on snap beans to control broad leaf beetle; April 4, 2003 to July 30, 2003. tebufenozide on garden beets to control weeds; May 9, 2003 to October 1, 2003. Contact: (Andrew Ertman). armyworms; September 15, 2003 to Contact: (Andrea Conrath). September 10, 2004. Contact: (Stacey EPA authorized the use of Groce). Florida myclobutanil on hops to control EPA authorized the use of Department of Agriculture and powdery mildew; May 1, 2003 to imidacloprid on almonds to control the Consumer Services September, 2003. Contact: (Barbara glassy-winged sharpshooter; September Madden). 16, 2003 to June 22, 2004. Contact: Specific. EPA authorized the use of EPA authorized the use of cymoxanil (Andrew Ertman). thiophanate methyl on fruiting on hops to control downy mildew; May EPA authorized the use of vegetables to control white mold 2, 2003 to September 15, 2003. Contact: imidacloprid on blueberries to control (sclerotinia sclerotiorum); July 2, 2003 (Libby Pemberton). the glassy-winged sharpshooter; to March 31, 2004. Contact: (Andrea EPA authorized the use of September 16, 2003 to December 31, Conrath). sulfentrazone on chickpeas to control EPA authorized the use of 2003. Contact: (Andrew Ertman). Russian thistle; May 13, 2003 to June 20, carfentrazone-ethyl on fruiting 2003. Contact: (Andrew Ertman). EPA authorized the use of fenhexamid vegetables (except cucurbits) to control EPA authorized the use of on kiwifruit to control gray mold; paraquat resistant nightshade, common sulfentrazone on potatoes to control September 23, 2003 to December 1, groundsel, and morning glory; July 17, ALS-inhibitor and triazine resistant 2003. Contact: (Stacey Groce) 2003 to May 31, 2004. Contact: (Andrew kochia, common lambsquarters and Colorado Ertman). EPA authorized the use of pigweed; May 16, 2003 to June 15, 2003. Department of Agriculture fenbuconazole on blueberries to control Contact: (Andrew Ertman). EPA authorized the use of Crisis. On February 18, 2003, for the leaf spot; September 15, 2003 to thiabendazole on lentils to control use of lambda-cyhalothrin on alfalfa/ September 14, 2004. Contact: (Andrea ascochyta blight; May 19, 2003 to June grass mixed stands, pasture land and Conrath). 1, 2003. Contact: (Andrea Conrath). range land, and grass grown for seed to Georgia EPA authorized the use of fluroxypyr control army cutworms. This program on field corn and sweet corn to control ended on June 15, 2003. Contact: Department of Agriculture volunteer potatoes; May 20, 2003 to (Andrew Ertman). Specific. EPA authorized the use of August 1, 2003. Contact: (Andrew Specific. EPA authorized the use of indoxacarb on collards to control Ertman). tetraconazole on sugarbeets to control diamondback moth; April 20, 2003 to EPA authorized the use of zinc cercospora; April 28, 2003 to September April 20, 2004. Contact: (Barbara phosphide on alfalfa to control meadow 30, 2003. Contact: (Andrea Conrath). Madden). voles and field mice; May 23, 2003 to Connecticut Hawaii May 23, 2004. Contact: (Libby Pemberton). Department of Environmental Department of Agriculture EPA authorized the use of Protection Specific. EPA authorized the use of fenpyroximate on hops to control spider Specific. EPA authorized the use of hydramethylnon on pineapple to mites; May 27, 2003 to September 15, triazamate on Christmas trees to control control big-headed and Argentine ants; 2003. Contact: (Andrea Conrath). root aphids; April 4, 2003 to September June 6, 2003 to June 24, 2004. Contact: EPA authorized the use of quinoxyfen 30, 2003. Contact: (Barbara Madden). (Libby Pemberton). on hops to control powdery mildew; EPA authorized the use of Idaho July 1, 2003 to September 15, 2003. This propiconazole on blueberries to control request was granted because the Agency mummy berry disease; May 2, 2003 to Department of Agriculture has determined that the onset of the June 30, 2003. Contact: (Andrea Crisis. On April 15, 2003, for the use powdery mildew pest problem has Conrath). of thiamethoxam on succulent and dry created an urgent and non-routine EPA authorized the use of bean seed to control leaf hoppers. This situation which will result in a azoxystrobin on tobacco to control blue program is expected to end on May 15, significant economic losses for hops mold; May 27, 2003 to December 12 2003. Contact: (Andrew Ertman). growers. Contact: (Barbara Madden). 2003. Contact: (Libby Pemberton). On June 6, 2003, for the use of zinc EPA authorized the use of zinc EPA authorized the use of thymol and phosphide on barley, wheat, potatoes, phosphide on potatoes, sugarbeets, eucalyptus oil on beehives to control and sugarbeets to control meadow voles wheat, and barley to control meadow varroa mites; August 27, 2003 to and field mice. This program is voles and field mice; July 29, 2003 to December 31, 2003. Contact: (Stacey expected to end on October 1, 2003. October 1, 2003. Contact: (Libby Groce). Contact: (Libby Pemberton). Pemberton).

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EPA authorized the use of Specific. EPA authorized the use of Massachusetts myclobutanil on sugarbeets to control fluroxypyr on grain sorghum to control Massachusetts Department of Food and powdery mildew; July 31, 2003 to acetolactate synthase and triazine Agriculture October 15, 2003. Contact: (Stacey resistant kochia; June 19, 2003 to July Groce). 30, 2003. Contact: (Libby Pemberton). Specific. EPA authorized the use of EPA authorized the use of flufenacet fenbuconazole on blueberries to control on wheat to control grass weeds; Louisiana mummy berry disease; April 24, 2003 to September 1, 2003 to June 30, 2004. Department of Agriculture and Forestry June 30, 2003. Contact: (Andrea Contact: (Andrew Ertman). Conrath). EPA authorized the use of flufenacet Crisis. On June 19, 2003, for the use EPA authorized the use of indoxacarb on triticale to control grass weeds; of flumioxazin on sweet potatoes to on cranberries to control weevils; May September 1, 2003 to June 30, 2004. control weeds. This program ended on 9, 2003 to September 30, 2003. Contact: Contact: (Andrew Ertman). July 15, 2003. Contact: (Libby (Andrea Conrath). Pemberton). EPA authorized the use of Illinois Denial. On August 26, 2003 EPA azoxystrobin on tobacco to control blue Department of Agriculture denied the use of flumioxazin on cotton mold; May 27, 2003 to December 31, to control broad leaf weeds. This request Specific. EPA authorized the use of 2003. Contact: (Libby Pemberton). was denied because the criteria for an EPA authorized the use of thymol and sulfentrazone on horseradish to control emergency situation were not met. broad leaf weeds; April 15, 2003 to July eucalyptus oil on beehives to control Contact: (Libby Pemberton). varroa mites; August 27, 2003 to 15, 2003. Contact: (Andrew Ertman). Specific. EPA authorized the use of s- EPA authorized the use of fomesafen December 31, 2003. Contact: (Stacey metolachlor on sweet potatoes to control on snap beans to control broad leaf Groce). sedge weeds; May 1, 2003 to July 15, weeds; May 9, 2003 to August 31, 2003. 2003. Contact: (Andrew Ertman). Michigan Contact: (Andrea Conrath). EPA authorized the use of thymol and EPA authorized the use of bifenthrin Michigan Department of Agriculture on sweet potatoes to control soil beetles, eucalyptus oil on beehives to control Crisis. On April 30, 2003, for the use and sweet potato weevil; May 19, 2003 varroa mites; August 27, 2003 to of oxytetracycline on apples to control to November 30, 2003. Contact: (Andrea December 31, 2003. Contact: (Stacey fire blight. This program ended on June Conrath). Groce). 30, 2003. Contact: (Andrea Conrath). EPA authorized the use of Indiana Specific. EPA authorized the use of methoxyfenozide on soybeans to control mancozeb on ginseng to control Office of Indiana State Chemist saltmarsh caterpillar, soybean loopers, alternaria leaf and stem blight and and armyworms; May 30, 2003 to phytophthora leaf blight; April 1, 2003 Specific. EPA authorized the use of September 30, 2003. Contact: (Barbara fenbuconazole on blueberries to control to October 15, 2003. Contact: (Libby Madden). Pemberton). mummy berry disease; April 24, 2003 to EPA authorized the use of July 31, 2003. Contact: (Andrea EPA authorized the use of tebufenozide on sweet potatoes to fenbuconazole on blueberries to control Conrath). control armyworms; June 19, 2003 to EPA authorized the use of mummy berry disease; April 24, 2003 to October 31, 2003. Contact: (Andrew thiophanate methyl on blueberries to September 1, 2003. Contact: (Andrea Ertman). control various fungal diseases; May 5, Conrath). 2003 to September 30, 2003. Contact: Maine EPA authorized the use of (Andrea Conrath). dimethenamid-p on dry bulb onions EPA authorized the use of fomesafen Department of Agriculture, Food, and grown on muck soils to control yellow on snap beans to control broad leaf Rural Resources nutsedge; May 1, 2003 to July 30, 2003. weeds; May 9, 2003 to September 1, Specific. EPA authorized the use of Contact: (Barbara Madden). 2003. Contact: (Andrea Conrath). thymol and eucalyptus oil in beehives EPA authorized the use of EPA authorized the use of thymol and to control varroa mites; May 23, 2003 to thiophanate methyl on blueberries to eucalyptus oil in beehives to control December 31, 2003. This request was control various fungal diseases; May 5, varroa mites; May 23, 2003 to December granted because not only will 2003 to September 30, 2003. Contact: 31, 2003. Contact: (Barbara Madden). beekeepers be adversely impacted if (Andrea Conrath). EPA authorized the use of Iowa varroa mites are not adequately controlled but that the impact on much tebuconazole on wheat to control Department of Agriculture and Land of agriculture in the United States could fusarium head blight; May 6, 2003 to Stewardship be dire. Over 150 crops have been June 15, 2003. Contact: (Libby Specific. EPA authorized the use of identified that require bees for Pemberton). EPA authorized the use of fomesafen thymol and eucalyptus oil on beehives pollination. Contact: (Barbara Madden). on snap beans to control broad leaf to control varroa mites; August 27, 2003 Maryland weeds; May 9, 2003 to August 30, 2003. to December 31, 2003. Contact: (Stacey Department of Agriculture Contact: (Andrea Conrath). Groce). EPA authorized the use of fomesafen Kansas Specific. EPA authorized the use of on dry beans to control broad leaf terbacil on watermelons to control weeds; May 9, 2003 to August 15, 2003. Department of Agriculture annual broad leaf weeds; April 29, 2003 Contact: (Andrea Conrath). Crisis. On June 11, 2003, for the use to June 15, 2003. Contact: (Barbara EPA authorized the use of of fluroxypyr on grain sorghum to Madden). tetraconazole on sugarbeets to control control acetolactate synthase and EPA authorized the use of fomesafen cercospora; June 6, 2003 to September triazine resistant kochia. This program on snap beans to control broad leaf 30, 2003. Contact: (Andrea Conrath). ended on July 30, 2003. Contact: (Libby weeds; May 9, 2003 to September 15, EPA authorized the use of Pemberton). 2003. Contact: (Andrea Conrath). imidacloprid on blueberries to control

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Japanese beetle grubs and adults; June and armyworms; May 15, 2003 to Nebraska 15, 2003 to September 30, 2003. September 30, 2003. Contact: (Barbara Department of Agriculture Contact: (Andrew Ertman). Madden). EPA authorized the use of EPA authorized the use of bifenthrin Crisis. On June 17, 2003, for the use sulfentrazone on strawberries to control on sweet potatoes to control soil beetles; of fluroxypyr on grain sorghum to broad leaf weeds; June 25, 2003 to May 19, 2003 to September 30, 2003. control acetolactate synthase and December 15, 2003. Contact: (Andrew Contact: (Andrea Conrath). triazine resistant kochia. This program ended on July 15, 2003. Contact: (Libby Ertman). EPA authorized the use of thymol and EPA authorized the use of thymol and Pemberton). eucalyptus oil in beehives to control eucalyptus oil on beehives to control Specific. EPA authorized the use of varroa mites; May 23, 2003 to December varroa mites; August 27, 2003 to tetraconazole on sugarbeets to control 31, 2003. Contact: (Barbara Madden). December 31, 2003. Contact: (Stacey cercospora; April 28, 2003 to September Groce). EPA authorized the use of 30, 2003. Contact: (Andrea Conrath). tebufenozide on sweet potatoes to EPA authorized the use of fomesafen Minnesota control beet armyworms and fall on dry beans to control broad leaf Department of Agriculture armyworms; July 15, 2003 to October weeds; May 9, 2003 to August 5, 2003. 15, 2003. Contact: (Barbara Madden). Crisis. On August 7, 2003, for the use Contact: (Andrea Conrath). of propiconazole on drybeans to control Missouri EPA authorized the use of fluroxypyr on grain sorghum to control acetolactate rust. This program ended on August 21, Department of Agriculture 2003. Contact: (Libby Pemberton). synthase and triazine resistant kochia; Denial. On June 13, 2003 EPA denied Specific. EPA authorized the use of June 19, 2003 to July 30, 2003. Contact: the use of sulfentrazone on potatoes to fomesafen on snapbeans to control (Libby Pemberton). control nightshade. This request was broad leaf weeds; May 9, 2003 to EPA authorized the use of thymol and denied because yield losses were not September 10, 2003. Contact: (Andrea eucalyptus oil on beehives to control supported by the submitted data. Conrath). varroa mites; August 27, 2003 to December 31, 2003. Contact: (Stacey Contact: (Andrew Ertman). EPA authorized the use of thymol and Groce). Specific. EPA authorized the use of eucalyptus oil on beehives to control tetraconazole on sugarbeets to control varroa mites; August 27, 2003 to Nevada cercospora; April 28, 2003 to September December 31, 2003. Contact: (Stacey Department of Agriculture 30, 2003. Contact: (Andrea Conrath). Groce). EPA authorized the use of 2,4-D on Crisis. On June 6, 2003, for the use of Montana wild rice to control common water bifenazate on timothy to control banks plantain; May 1, 2003 to July 31, 2003. Department of Agriculture grass mite. This program ended on Contact: (Andrew Ertman). August 30, 2003. Contact: (Andrea EPA authorized the use of Crisis. On May 21, 2003, for the use Conrath). tebuconazole on wheat and barley to of lambda-cyhalothrin on barley to On June 13, 2003, for the use of control fusarium headblight; May 7, control cutworms and cereal leaf diflubenzuron on alfalfa to control 2003 to September 1 2003. Contact: beetles. This program ended on July 30, grasshoppers and crickets. This program (Libby Pemberton). 2003. Contact: (Andrew Ertman). ended on October 31, 2003. Contact: EPA authorized the use of fomesafen On June 12, 2003, for the use of (Andrea Conrath). on dry beans to control broad leaf diflubenzuron on wheat and barley to weeds; May 9, 2003 to August 15, 2003. control grasshoppers. This program New Hampshire Contact: (Andrea Conrath). ended on July 15, 2003. Contact: Department of Agriculture EPA authorized the use of thymol and (Andrea Conrath). eucalyptus oil in beehives to control Specific. EPA authorized the use of On June 17, 2003, for the use of propiconazole on blueberries to control varroa mites; May 23, 2003 to December tebuconazole on barley and wheat to 31, 2003. Contact: (Barbara Madden). mummy berry disease; May 16, 2003 to control fusarium head blight. This June 15, 2003. Contact: (Andrea Mississippi program ended on July 20, 2003. Conrath). Contact: (Libby Pemberton). Department of Agriculture and New Jersey Commerce Specific. EPA authorized the use of tetraconazole on sugarbeets to control Department of Environmental Denial. On August 26, 2003 EPA cercospora; April 28, 2003 to September Protection denied the use of flumioxazin on cotton 30, 2003. Contact: (Andrea Conrath). to control broad leaf weeds. This request Crisis. On August 21, 2003, for the use EPA authorized the use of was denied because the criteria for an of propamocarb hydrochloride on thiabendazole on lentils to control emergency situation were not met. tomatoes to control late blight. This ascochyta blight; May 19, 2003 to June Contact: (Libby Pemberton). program ended October 3, 2003. 1, 2003. Contact: (Andrea Conrath). Specific. EPA authorized the use of Contact: (Liby Pemberton). diuron on catfish to control algae; April EPA authorized the use of lambda- Public Health. EPA authorized the use 20, 2003 to November 30, 2003. Contact: cyhalothrin on barley to control the of fipronil in a rodent bait box system (Libby Pemberton). Russian wheat aphid, cereal leaf beetles, to control immature blacklegged ticks EPA authorized the use of s- and cutworms; June 8, 2003 to July 30, which are vectors for lyme disease; May metolachlor on sweet potatoes to control 2003. Contact: (Andrew Ertman). 24, 2003 to December 31, 2003. Lyme sedge weeds; May 5, 2003 to July 15, EPA authorized the use of disease is caused by the bacterium, 2003. Contact: (Andrew Ertman). azoxystrobin on safflower to control borrelia burgdorferi. These bacteria are EPA authorized the use of alternaria leaf spot; July 1, 2003 to transmitted to humans by the bite of methoxyfenozide on soybeans to control August 15, 2003. Contact: (Libby infected deer ticks. Contact: (Barbara saltmarsh caterpillar, soybean loopers, Pemberton). Madden).

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Specific. EPA authorized the use of leaf weeds; May 9, 2003 to August 30, 2003 to September 1, 2003. Contact: fenbuconazole on blueberries to control 2003. Contact: (Andrea Conrath). (Libby Pemberton). mummy berry disease; April 24, 2003 to EPA authorized the use of EPA authorized the use of fomesafen June 30, 2003. Contact: (Andrea desmedipham on red (table) beets to on dry beans to control broad leafweeds; Conrath). control several important broad leaf May 9, 2003 to August 15, 2003. EPA authorized the use of weeds, including hairy galinsoga, Contact: (Andrea Conrath). thiophanate methyl on blueberries to common ragweed, redroot pigweed, EPA authorized the use of control various fungal diseases; June 2, common lambsquarters, velvetleaf, tebuconazole on sunflower to control 2003 to July 31, 2003. Contact: (Andrea nightshade spp., and wild mustard; May rust; June 8, 2003 to September 5, 2003. Conrath). 15, 2003 to August 15, 2003. Contact: Contact: (Andrea Conrath). EPA authorized the use of thymol and (Libby Pemberton). EPA authorized the use of eucalyptus oil in beehives to control EPA authorized the use of lambda- azoxystrobin on safflower to control varroa mites; June 17, 2003 to December cyhalothrin on alfalfa/clover/grass alternaria leaf spot; July 1, 2003 to 31, 2003. Contact: (Barbara Madden). mixed stands to control the potato August 15, 2003. Contact: (Libby EPA authorized the use of thiophante leafhopper; June 1, 2003 to August 31, Pemberton) methyl on tomatoes to control white 2003. Contact: (Andrew Ertman). EPA authorized the use of sethoxydim mold (sclerotinia sclerotiorum); July 2, North Carolina 2003 to July 31, 2003. Contact: (Andrea on no till or reduced tillage safflower to Conrath). Department of Agriculture control wild oats; June 21, 2003 to July 31, 2003. Contact: (Libby Pemberton). New Mexico Specific. EPA authorized the use of thymol and eucalyptus oil in beehives EPA authorized the use of zeta- Department of Agriculture to control varroa mites; June 25, 2003 to cypermethrin on flax to control grasshoppers; August 29, 2003 to Specific. EPA authorized the use of December 31, 2003. Contact: (Barbara Madden). September 30, 2003. Contact: (Libby spinosad on onions to control Pemberton). thysanoptera feeding pests; July 3, 2003 EPA authorized the use of s- to November 1, 2003. Contact: (Andrew metolachlor on sweet potatoes to control EPA authorized the use of thymol and Ertman). pigweed; July 2, 2003 to August 15, eucalyptus oil on beehives to control EPA authorized the use of 2003. Contact: (Andrew Ertman). varroa mites; August 27, 2003 to EPA authorized the use of myclobutanil on peppers (bell and December 31, 2003. Contact: (Stacey tebufenozide on sweet potatoes to chile) to control powdery mildew; July Groce). control beet armyworms and fall 25, 2003 to October 15, 2003. Contact: Ohio armyworms; July 25, 2003 to December (Stacey Groce). 31, 2003. Contact: (Andrew Ertman). EPA authorized the use of spinosad Department of Agriculture on alfalfa to control lepidopteran pests; North Dakota Crisis. On July 14, 2003, for the use August 1, 2003 to November 1, 2003. Department of Agriculture of thiophanate methyl on fruiting Contact: (Andrew Ertman). vegetables to control sclerotinia. This Crisis. On May 29, 2003, for the use New York program ended on September 30, 2003. of zeta-cypermethrin on mustard to Contact: (Andrea Conrath). control crucifer flea beetles. This Department of Environmental Specific. EPA authorized the use of program ended on June 13, 2003. Conservation sulfentrazone on strawberries to control Contact: (Libby Pemberton). common groundsel; June 20, 2003 to Public Health. EPA authorized the use On July 3, 2003, for the use of zeta- December 15, 2003. Contact: (Andrew of fipronil in a rodent bait box system cypermethrin on flax to control Ertman). to control immature blacklegged ticks grasshoppers. This program ended on which are vectors for lyme disease; May September 30, 2003. Contact: (Libby EPA authorized the use of 9, 2003 to December 31, 2003. Lyme Pemberton). dimethenamid-p on dry bulb onions to disease is caused by the bacterium, On August 7, 2003, for the use of control yellow nutsedge; June 25, 2003 borrelia burgdorferi. These bacteria are propiconazole on dry beans to control to July 30, 2003. Contact: (Barbara transmitted to humans by the bite of rust. This program ended on August 22, Madden). infected deer ticks. Contact: (Barbara 2003. Contact: (Libby Pemberton). Oklahoma Madden). Denial. On June 13, 2003 EPA denied Specific. EPA authorized the use of the use of sulfentrazone on potatoes to Department of Agriculture fenbuconazole on blueberries to control control nightshade. This request was mummy berry disease; April 24, 2003 to Crisis. On April 29, 2003, for the use denied because yield losses were not of fomesafen on snap beans to control June 30, 2003. Contact: (Andrea supported by the submitted data. Conrath). broad leaf weeds. This program ended Contact: (Andrew Ertman). on May 9, 2003. Contact: (Andrea EPA authorized the use of Specific. EPA authorized the use of Conrath). dimethenamid on dry bulb onion to thiabendazole on lentils as a seed control yellow nutsedge; May 1, 2003 to treatment to control Ascochyta blight; Specific. EPA authorized the use of July 30, 2003. Contact: (Barbara April 8, 2003 to June 1, 2003. Contact: fomesafen on snap beans to control Madden). (Andrea Conrath). broad leaf weeds; May 9, 2003 to EPA authorized the use of EPA authorized the use of September 10, 2003. Contact: (Andrea thiophanate methyl on blueberries to tetraconazole on sugarbeets to control Conrath). control various fungal diseases; May 5, cercospora; April 28, 2003 to September EPA authorized the use of thymol and 2003 to September 30, 2003. Contact: 30, 2003. Contact: (Andrea Conrath). eucalyptus oil on beehives to control (Andrea Conrath). EPA authorized the use of varroa mites; August 27, 2003 to EPA authorized the use of fomesafen tebuconazole on wheat and barley to December 31, 2003. Contact: (Stacey on dry and snap beans to control broad control fusarium head blight; May 7, Groce).

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Oregon EPA authorized the use of South Dakota myclobutanil on sugarbeets to control Department of Agriculture Department of Agriculture powdery mildew; July 31, 2003 to Crisis. On April 2, 2003, for the use October 15, 2003. Contact: (Stacey Specific. EPA authorized the use of of oxytetracycline on apples to control Groce). sulfentrazone on sunflowers to control kochia; April 1, 2003 to June 30, 2003. fire blight. This program ended on EPA authorized the use of ethoprop Contact: (Andrew Ertman). August 1, 2003. Contact: (Andrea on baby mint to control garden EPA authorized the use of Conrath). symphylans; August 1, 2003 to Specific. EPA authorized the use of tebuconazole on wheat and barley to September 15, 2003. Contact: (Libby sulfentrazone on strawberries to control control fusarium head blight; June 1, Pemberton). broad leaf weeds; April 1, 2003 to 2003 to August 31, 2003. Contact: (Libby February 28, 2004. Contact: (Andrew EPA authorized the use of flufenacet Pemberton). Ertman). on wheat to control grass weeds; EPA authorized the use of EPA authorized the use of bifenthrin September 1, 2003 to June 30, 2004. sulfentrazone on flax to control kochia on orchardgrass grown for seed to Contact: (Andrew Ertman). and ALS-resistant kochia; May 16, 2003 control the orchardgrass billbug; April EPA authorized the use of flufenacet to June 30, 2003. Contact: (Andrew 4, 2003 to November 15, 2003. Contact: on triticale to control grass weeds; Ertman). (Andrea Conrath). September 1, 2003 to June 30, 2004. Tennessee EPA authorized the use of Contact: (Andrew Ertman). thiabendazole on lentils as a seed EPA authorized the use of Department of Agriculture treatment to control ascochyta blight; propiconazole on filberts to control Specific. EPA authorized the use of April 8, 2003 to June 1, 2003. Contact: eastern filbert blight; February 15, 2003 sulfentrazone on succulent beans to (Andrea Conrath). to May 30, 2003. Contact: (Dan control hophornbeam copperleaf; May EPA authorized the use of triazamate Rosenblatt). 15, 2003 to September 30, 2003. on Christmas trees to control root Contact: (Andrew Ertman). aphids; April 15, 2003 to October 31, Pennsylvania Texas 2003. Contact: (Barbara Madden). Department of Agriculture EPA authorized the use of ethoprop Department of Agriculture on baby hops to control garden Specific. EPA authorized the use of Crisis. On July 16, 2003, for the use symphylan; April 15, 2003 to May 31, imidacloprid on stone fruit to control of fluroxypyr on grain sorghum to 2003. Contact: (Barbara Madden). green peach aphid; April 26, 2003 to control kochia and other broad leaf EPA authorized the use of October 15, 2003. Contact: (Andrew weed species. This program ended on myclobutanil on hops to control Ertman). July 31, 2003. Contact: (Libby powdery mildew; May 1, 2003 to EPA authorized the use of September 2003. Contact: (Barbara Pemberton). thiophanate methyl on blueberries to Specific. EPA authorized the use of Madden). control various fungal diseases; May 5, spinosad on pastureland and rangeland EPA authorized the use of cymoxanil 2003 to September 30, 2003. Contact: to control armyworms; May 22, 2003 to on hops to control downy mildew; May (Andrea Conrath). September 1, 2003. Contact: (Andrew 2, 2003 to September 15, 2003. Contact: EPA authorized the use of thymol and Ertman). (Libby Pemberton). EPA authorized the use of spinosad EPA authorized the use of eucalyptus oil on beehives to control on alfalfa to control lepidopteran pests; myclobutanil on hops to control varroa mites; August 19, 2003 to August 1, 2003 to November 1, 2003. powdery mildew; May 1, 2003 to December 31, 2003. Contact: (Stacey Groce). Contact: (Andrew Ertman). September 2003. Contact: (Barbara EPA authorized the use of Madden). Rhode Island fenbuconazole on grapefruit to control EPA authorized the use of two greasy spot; August 20, 2003 to August unregistered pheromones, (Z,E)-3,13- Department of Environmental 20, 2004. Contact: (Dan Rosenblatt). octadecadienyl and (Z,Z)-3,13- Management octadecadienyl on hybrid poplars grown Specific. EPA authorized the use of Utah for pulp and saw timber to control fenbuconazole on blueberries to control Department of Agriculture western poplar clearwing moths mummy berry disease; April 24, 2003 to (WPCM); May 27, 2003 to October 1, Specific. EPA authorized the use of June 30, 2003. Contact: (Andrea diflubenzuron on alfalfa to control the 2003. This request was granted because Conrath). the situation is urgent and non-routine mormon cricket and various based on the sudden population South Carolina grasshopper species; April 11, 2003 to October 31, 2003. Contact: (Andrea explosion of the WPCM and the Clemson University apparent change in the habitat Conrath). preferences for young healthy trees. Specific. EPA authorized the use of EPA authorized the use of thymol and Contact: (Barbara Madden). thymol and eucalyptus oil in beehives eucalyptus oil in beehives to control EPA authorized the use of quinoxyfen to control varroa mites; May 23, 2003 to varroa mites; May 23, 2003 to December on hops to control powdery mildew; December 31, 2003. This request was 31, 2003. Contact: (Barbara Madden). June 15, 2003 to September 15, 2003. granted because not only will Vermont This request was granted because the beekeepers be adversely impacted if Agency has determined that the onset of varroa mites are not adequately Department of Agriculture the powdery mildew pest problem has controlled but that the impact on much Specific. EPA authorized the use of created an urgent and non-routine of agriculture in the United States could thymol and eucalyptus oil on beehives situation which will result in a be dire. Over 150 crops have been to control varroa mites; September 9, significant economic losses for hops identified that require bees for 2003 to December 31, 2003. Contact: growers. Contact: (Barbara Madden). pollination. Contact: (Barbara Madden). (Stacey Groce).

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Virginia apparent change in the habitat to July 31, 2003. Contact: (Andrew preferences for young healthy trees. Ertman). Department of Agriculture and Contact: (Barbara Madden). EPA authorized the use of Consumer Services EPA authorized the use of tetraconazole on sugarbeets to control Specific. EPA authorized the use of fenpyroximate on hops to control spider cercospora; April 28, 2003 to September terbacil on watermelons to control mites; May 27, 2003 to September 15, 30, 2003. Contact: (Andrea Conrath). annual broad leaf weeds; April 1, 2003 2003. Contact: (Andrea Conrath). B. Federal Departments and Agencies to July 10, 2003. Contact: (Barbara EPA authorized the use of quinoxyfen Madden). on hops to control powdery mildew; Environmental Protection Agency EPA authorized the use of July 1, 2003 to September 15, 2003. This Crisis. On June 13, 2003, for the use imidacloprid on stone fruit to control request was granted because the Agency of hydrogen peroxide for aphids; April 26, 2003 to October 1, has determined that the onset of the decontamination of interior spaces and 2003. Contact: (Andrew Ertman). powdery mildew pest problem has personal and office items on which EPA authorized the use of fomesafen created an urgent and non-routine bacillus anthracis may be present at the on snap beans to control broad leaf situation which will result in a U.S. Department of State SA-32 Mail weeds; May 9, 2003 to September 20, significant economic losses for hops and Pouch Facility. This program is 2003. Contact: (Andrea Conrath). growers. Contact: (Barbara Madden). expected to end on June 28, 2003. EPA authorized the use of EPA authorized the use of mancozeb Contact: (Barbara Madden). thiophanate methyl on tomatoes to on ginseng to control alternaria leaf and control white mold (sclerotinia stem blight and phytophthora leaf List of Subjects sclerotiorum); July 2, 2003 to September blight; July 29, 2003 to August 15, 2003. Environmental protection, Pesticides 30, 2003. Contact: (Andrea Conrath). Contact: (Libby Pemberton). and pest. Washington EPA authorized the use of zinc Dated: November 18, 2003. phosphide on alfalfa/clover/timothy to Peter Caulkins, Department of Agriculture control vole complex; August 5, 2003 to May 1, 2004. Contact: (Libby Acting Director, Registration Division, Office Crisis. On April 2, 2003, for the use of Pesticide Programs. Pemberton). of oxytetracycline on apples to control [FR Doc. 03–29321 Filed 11–25–03; 8:45 am] fire blight. This program ended on EPA authorized the use of flufenacet BILLING CODE 6560–50–S August 1, 2003. Contact: (Andrea on wheat to control grass weeds; Conrath). September 1, 2003 to June 30, 2004. Contact: (Andrew Ertman). On April 16, 2003, for the use of ENVIRONMENTAL PROTECTION EPA authorized the use of flufenacet thiamethoxam on succulent and dry AGENCY bean seed to control leaf hoppers. This on triticale to control grass weeds; program is expected to end on May 15, September 1, 2003 to June 30, 2004. [OPP–2003–0335; FRL–7330–3] 2003. Contact: (Andrew Ertman). Contact: (Andrew Ertman). Pesticides: Procedural Guidance for On June 7, 2003, for the use of West Virginia EPA’s Office of Pesticide Programs diflubenzuron on wheat and barley to Procedures Concerning the control grasshoppers. This program Department of Agriculture Development, Modification, and ended on June 21, 2003. Contact: Specific. EPA authorized the use of Implementation of Policy Guidance (Andrea Conrath). imidacloprid on peaches and nectarines Documents; Notice of Availability Specific. EPA authorized the use of to control aphids; April 2, 2003 to triazamate on Christmas trees to control November 30, 2003. Contact: (Andrew AGENCY: Enironmental Protection root aphids; April 15, 2003 to October Ertman). Agency (EPA). 31, 2003. Contact: (Barbara Madden). ACTION: Notice. EPA authorized the use of Wisconsin thiabendazole on lentils as a seed Department of Agriculture, Trade, and SUMMARY: EPA is announcing the treatment to control ascochyta blight; Consumer Protection availability of a paper discussing April 8, 2003 to June 1, 2003. Contact: procedural guidance for policy (Andrea Conrath). Denial. On June 13, 2003, EPA denied development in the Office of Pesticide EPA authorized the use of the use of sulfentrazone on potatoes to Programs (OPP). These procedures have myclobutanil on hops to control control nightshade. This request was two goals: To increase public powdery mildew; May 1, 2003 to denied because yield losses were not participation in the development, September 2003. Contact: (Barbara supported by the submitted data. modification and implementation of Madden). Contact: (Andrew Ertman). OPP policy guidance documents; and to EPA authorized the use of Specific. EPA authorized the use of clarify that while such documents are sulfentrazone on chickpeas to control propiconazole on cranberry to control non-binding policy statements and not Russian thistle; May 13, 2003 to June 20, cottonball disease; April 15, 2003 to July legally binding rules, they nonetheless 2003. Contact: (Andrew Ertman). 31, 2003. Contact: (Barbara Madden). play an important role in helping to EPA authorized the use of two EPA authorized the use of thymol and ensure a consistent starting point for unregistered pheromones, (Z,E)-3,13- eucalyptus oil in beehives to control OPP decision making. A draft of this octadecadienyl and (Z,Z)-3,13- varroa mites; June 17, 2003 to December document was made available for octadecadienyl on hybrid poplars grown 31, 2003. Contact: (Barbara Madden). comment on March 12, 2003. A for pulp and saw timber to control Wyoming document summarizing EPA’s response WPCM; May 27, 2003 to October 1, to public comments on the draft is also 2003. This request was granted because Department of Agriculture available in EPA’s docket. the situation is urgent and non-routine Specific. EPA authorized the use of FOR FURTHER INFORMATION CONTACT: based on the sudden population lambda-cyhalothrin on barley to control William L. Jordan, Senior Policy explosion of the WPCM and the the Russian wheat aphid; April 10, 2003 Adviser (7501C), Office of Pesticide

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Programs, Environmental Protection then key in the appropriate docket ID less stringent than the corresponding Agency, 1200 Pennsylvania Ave., NW., number. Federal regulations. Therefore, EPA has Washington, DC 20460–0001; telephone decided to tentatively approve these II. What Action is the Agency Taking? number: (703) 305–1049; fax number: program revisions. All interested parties (703) 308–4776; e-mail address: EPA is making available a paper on are invited to submit written comments [email protected]. procedures for developing, modifying, on this determination and may request SUPPLEMENTARY INFORMATION: and implementing its policy guidance a public hearing. documents concerning the regulation of DATES: Comments or a request for a I. General Information pesticides. These procedures have two public hearing must be submitted by A. Does this Action Apply to Me? goals. The first is to increase public December 26, 2003. This determination participation in the development, shall become effective on December 26, This action is directed to the public modification, and implementation of 2003, if no timely and appropriate in general, and may be of interest to a OPP policy guidance documents; the request for a hearing is received and the wide range of stakholders, including second is to clarify that while such Regional Administrator does not elect to environmental, human health, and documents are not binding policy hold a hearing on his own motion, and agricultural advocates; the chemical statements and are not legally binding if no comments are received which industry; pesticide users; and members rules, they nonetheless play an cause EPA to modify its tentative of the public interested in the use of important role in helping to ensure a approval. pesticides. The Agency has not consistent starting point for OPP attempted to describe all the persons or ADDRESSES: Comments or a request for decision making. a public hearing must be submitted to entities who may be interested in or EPA has considered comments affected by this action. If you have any the U.S. Environmental Protection received on this document, and has Agency Region III, 1650 Arch Street, questions regarding the applicability of revised the paper in response to this action to a particular entity, consult Philadelphia, PA 19103–2029. All comments, as appropriate. EPA is also documents relating to this the person listed under FOR FURTHER including in the docket for this action INFORMATION CONTACT. determination are available for a response to all significant comments. inspection between the hours of 8 a.m. B. How Can I Get Copies of this List of Subjects and 4:30 p.m., Monday through Friday, Document and Other Related at the following offices: Information? Environmental protection, Pesticides, • Drinking Water Branch, Water Policy guidance. 1. Docket. EPA has established an Protection Division, U.S. Environmental official public docket for this action Dated: November 10, 2003. Protection Agency Region III, 1650 Arch under docket identification (ID) number James Jones Street, Philadelphia, PA 19103–2029. • OPP–2003–0335. The official public Director, Office of Pesticide Programs. West Virginia Department of Health docket consists of the documents [FR Doc. 03–29187 Filed 11–25–03; 8:45 am] and Human Resources, Environmental Engineering Division, 815 Quarrier specifically referenced in this action, BILLING CODE 6560–50–S any public comments received, and Street, Suite 418, Charleston, WV 25301. other information related to this action. FOR FURTHER INFORMATION CONTACT: Although a part of the official docket, ENVIRONMENTAL PROTECTION Jason Gambatese, Drinking Water the public docket does not include AGENCY Branch (3WP22) at the Philadelphia Confidential Business Information (CBI) address given above; telephone (215) [FRL–7591–7] or other information whose disclosure is 814–5759 or fax (215) 814–2318. restricted by statute. The official public Notice of Tentative Approval and SUPPLEMENTARY INFORMATION: All docket is the collection of materials that Solicitation of Request for a Public interested parties are invited to submit is available for public viewing at the Hearing for Public Water System written comments on this determination Public Information and Records Supervision Program Revision for the and may request a public hearing. All Integrity Branch (PIRIB), Rm. 119, State of West Virginia comments will be considered, and, if Crystal Mall #2, 1921 Jefferson Davis necessary, EPA will issue a response. Hwy., Arlington, VA. This docket AGENCY: Environmental Protection Frivolous or insubstantial requests for a facility is open from 8:30 a.m. to 4 p.m., Agency (EPA). hearing may be denied by the Regional Monday through Friday, excluding legal ACTION: Notice of tentative approval and Administrator. However, if a substantial holidays. The docket telephone number solicitation of requests for a public request for a public hearing is made by is (703) 305–5805. hearing. December 26, 2003, a public hearing 2. Electronic access. You may access will be held. this Federal Register document SUMMARY: Notice is hereby given in A request for public hearing shall electronically through the EPA Internet accordance with the provision of section include the following: (1) The name, under the ‘‘Federal Register’’ listings at 1413 of the Safe Drinking Water Act as address, and telephone number of the http://www.epa.gov/fedrgstr/. amended, and the rules governing individual, organization, or other entity An electronic version of the public National Primary Drinking Water requesting a hearing; (2) a brief docket is available through EPA’s Regulations that the State of West statement of the requesting person’s electronic public docket and comment Virginia has revised its approved Public interest in the Regional Administrator’s system, EPA Dockets. You may use EPA Water System Supervision Program. determination and of information that Dockets at http://www.epa.gov/edocket/ West Virginia has adopted a Filter the requesting person intends to submit to submit or view public comments, Backwash Recycling Rule to require at such a hearing; and (3) the signature access the index listing of the contents water systems to institute changes to of the individual making the request; or, of the official public docket, and to return recycle flows of a plant’s if the request is made on behalf of an access those documents in the public treatment process that may compromise organization or other entity, the docket that are available electronically. pathogen treatment. EPA has signature of a responsible official of the Once in the system, select ‘‘search,’’ determined that these revisions are no organization or other entity.

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Dated: November 12, 2003. Frequency: Weekly, Daily FEDERAL RESERVE SYSTEM Maria Parisi Vickers, Reporters: Primary dealers in the U.S. Acting Regional Administrator, EPA, Region government securities market Change in Bank Control Notices; III. Annual reporting hours: 12,342 hours Acquisition of Shares of Bank or Bank [FR Doc. 03–29590 Filed 11–25–03; 8:45 am] Estimated average hours per response: Holding Companies BILLING CODE 6560–50–P FR 2004A, 1.5 hours; FR 2004B, 2 hours; FR 2004C, 1.25 hours; FR 2004SI, 2 The notificants listed below have hours; FR 2004SD, 2 hours; FR 2004WI, applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and FEDERAL RESERVE SYSTEM 1 hour. Number of respondents: 22 § 225.41 of the Board’s Regulation Y (12 Agency Information Collection General description of report: This CFR 225.41) to acquire a bank or bank Activities: Announcement of Board information collection is voluntary (12 holding company. The factors that are Approval Under Delegated Authority U.S.C. 248 (a)(2), 353–359, and 461(c)); considered in acting on the notices are and Submission to OMB however, primary dealers are expected set forth in paragraph 7 of the Act (12 to file the report with the Federal U.S.C. 1817(j)(7)). AGENCY: Board of Governors of the Reserve. Individual respondent data are The notices are available for Federal Reserve System regarded as confidential under the immediate inspection at the Federal SUMMARY: Background. Freedom of Information Act (5 U.S.C. Reserve Bank indicated. The notices Notice is hereby given of the final 552 (b)(4) and (b)(8)). also will be available for inspection at approval of proposed information Abstract: The FR 2004A collects data the office of the Board of Governors. collections by the Board of Governors of as of Wednesday of each week on Interested persons may express their the Federal Reserve System (Board) dealers’ outright positions in Treasury views in writing to the Reserve Bank under OMB delegated authority, as per and other marketable debt securities. indicated for that notice or to the offices 5 CFR 1320.16 (OMB Regulations on The FR 2004B collects data cumulated of the Board of Governors. Comments Controlling Paperwork Burdens on the for the week ended Wednesday on the must be received not later than Public). Board–approved collections of volume of transactions made by dealers December 9, 2003. information are incorporated into the in the same instruments for which A. Federal Reserve Bank of St. Louis official OMB inventory of currently positions are reported on the FR 2004A. (Randall C. Sumner, Vice President) 411 approved collections of information. The FR 2004C collects data as of Locust Street, St. Louis, Missouri 63166- Copies of the OMB 83–Is and supporting Wednesday of each week on the 2034: statements and approved collection of amounts of dealer financing and fails. information instrument(s) are placed 1. Linda Harper, Manchester, The FR 2004SI collects data as of Missouri; to retain voting shares of into OMB’s public docket files. The Wednesday of each week on outright, Federal Reserve may not conduct or Gateway Bancshares, Inc., St. Louis, financing, and fails positions in current Missouri, and thereby indirectly retain sponsor, and the respondent is not or on–the–run issues. Under certain required to respond to, an information voting shares of Gateway National Bank circumstances the FR 2004SI data can of St. Louis, St. Louis, Missouri. collection that has been extended, also be collected on a daily basis for on– revised, or implemented on or after the–run and off–the–run securities. The Board of Governors of the Federal Reserve October 1, 1995, unless it displays a FR 2004WI collects daily information on System, November 19, 2003. currently valid OMB control number. a next–business–day basis on positions Robert deV. Frierson, FOR FURTHER INFORMATION CONTACT: in to–be–issued Treasury coupons Deputy Secretary of the Board. Federal Reserve Clearance Officer– securities, mainly the trading on a [FR Doc. 03–29470 Filed 11–25–03; 8:45 am] Cindy Ayouch––Division of Research when–issued delivery basis. BILLING CODE 6210–01–S and Statistics, Board of Governors of the Current actions: The Federal Reserve Federal Reserve System, Washington, proposed to make the following DC 20551 (202–452–3829). modifications to the reporting series: 1) FEDERAL RESERVE SYSTEM OMB Desk Officer–Joseph Lackey–– delete the columns for cumulative Office of Information and Regulatory weekly volume and average weekly Change in Bank Control Notices; Affairs, Office of Management and rates for repurchase agreements on the Acquisition of Shares of Bank or Bank Budget, New Executive Office Building, FR 2004C, 2) include a new column, Holding Companies Room 10235, Washington, DC 20503. FRBNY Security ID, on the FR 2004SI, The notificants listed below have 3) formalize the collection of the FR Final approval under OMB delegated applied under the Change in Bank 2004SI daily data in the new reporting authority of the extension for three Control Act (12 U.S.C. 1817(j)) and form, FR 2004SD, 4) publish all data years, with revision, of the following § 225.41 of the Board’s Regulation Y (12 collected on the FR 2004C, (5) change report: CFR 225.41) to acquire a bank or bank the data submission schedule to be holding company. The factors that are 1. Report title: The Government uniform across the four weekly reports, considered in acting on the notices are Securities Dealers Reports: The Weekly and (6) adjust row and column headings set forth in paragraph 7 of the Act (12 Report of Dealer Positions (FR 2004A), to be uniform across reports and to more U.S.C. 1817(j)(7)). The Weekly Report of Cumulative clearly identify the data to be reported. Dealer Transactions (FR 2004B), The The revised reporting forms will be The notices are available for Weekly Report of Dealer Financing and implemented as of January 7, 2004. immediate inspection at the Federal Fails (FR 2004C), The Weekly Report of Reserve Bank indicated. The notices Specific Issues (FR 2004SI), The Daily Board of Governors of the Federal Reserve also will be available for inspection at System, November 19, 2003. Report of Specific Issues (FR 2004SD), the office of the Board of Governors. and The Daily Report of Dealer Activity Jennifer J. Johnson Interested persons may express their in Treasury Financing (FR 2004WI). Secretary of the Board. views in writing to the Reserve Bank Agency form number: FR 2004 [FR Doc. 03–29468 Filed 11–25–03; 8:45 am] indicated for that notice or to the offices OMB Control number: 7100–0003 BILLING CODE 6210–01–S of the Board of Governors. Comments

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must be received not later than the Board of Governors. Interested a nonbanking company, the review also December 10, 2003. persons may express their views in includes whether the acquisition of the A. Federal Reserve Bank of Atlanta writing on the standards enumerated in nonbanking company complies with the (Sue Costello, Vice President) 1000 the BHC Act (12 U.S.C. 1842(c)). If the standards in section 4 of the BHC Act Peachtree Street, N.E., Atlanta, Georgia proposal also involves the acquisition of (12 U.S.C. 1843). Unless otherwise 30303: a nonbanking company, the review also noted, nonbanking activities will be 1. John M. Dudley Sr., Irrevocable includes whether the acquisition of the conducted throughout the United States. Family Trust, John M. Dudley, Jr., and nonbanking company complies with the Additional information on all bank Leslie Green, Phenix City, Alabama, as standards in section 4 of the BHC Act holding companies may be obtained trustees to retain voting shares of (12 U.S.C. 1843). Unless otherwise from the National Information Center Phenix–Girard Bancshares, Inc., and noted, nonbanking activities will be Web site at http://www.ffiec.gov/nic/. thereby indirectly retain voting shares of conducted throughout the United States. Unless otherwise noted, comments Phenix-Girard Bank, Phenix City, Additional information on all bank regarding each of these applications Alabama. holding companies may be obtained must be received at the Reserve Bank B. Federal Reserve Bank of Chicago from the National Information Center indicated or the offices of the Board of (Patrick Wilder, Managing Examiner) website at www.ffiec.gov/nic/. Governors not later than December 19, 230 South LaSalle Street, Chicago, Unless otherwise noted, comments 2003. Illinois 60690-1414: regarding each of these applications A. Federal Reserve Bank of 1. Floyd H. Garrott, Battle Ground, must be received at the Reserve Bank Minneapolis (Richard M. Todd, Vice Indiana, individually and as trustee of indicated or the offices of the Board of President and Community Affairs the John F. Garrott Trust; to retain Governors not later than December 19, Officer) 90 Hennepin Avenue, voting shares of The Farmers State 2003. Minneapolis, Minnesota 55480-0291: Bank, Brookston, Indiana. A. Federal Reserve Bank of Chicago 1. Gateway Bancorporation, Inc., C. Federal Reserve Bank of (Patrick Wilder, Managing Examiner) Mendota, Heights, Minnesota; to Minneapolis (Richard M. Todd, Vice 230 South LaSalle Street, Chicago, become a bank holding company by President and Community Affairs Illinois 60690-1414: acquiring 100 percent of the voting Officer) 90 Hennepin Avenue, 1. Main Street Bancorp, Inc., shares of Gateway Bank, Mendota Minneapolis, Minnesota 55480-0291: Northville, Michigan; to become a bank Heights, Minnesota (in organization). 1. Kent Evans Nyberg, Grand Rapids, holding company by acquiring 100 B. Federal Reserve Bank of Kansas Minnesota, as trustee of the Louise percent of the voting shares of Main City (James Hunter, Assistant Vice Cameron Family Trust; to acquire Street Bank, Northville, Michigan. President) 925 Grand Avenue, Kansas control of First National Agency Board of Governors of the Federal Reserve City, Missouri 64198-0001: Company of Deer River, Deer River, System, November 19, 2003. 1. Thunder Bancorp, Inc., Sylvan Minnesota, and thereby indirectly Robert deV. Frierson, Grove, Kansas; to become a bank acquire control of First National Bank of Deputy Secretary of the Board. holding company by acquiring 100 Deer River, Deer River, Minnesota. percent of the voting shares of Beverly [FR Doc. 03–29471 Filed 11–25–03; 8:45 am] State Bank, Kansas, which will become Board of Governors of the Federal Reserve BILLING CODE 6210–01–S System, November 20, 2003. Thunder Bank, Sylvan Grove, Kansas. Robert deV. Frierson, In connection with this application, Deputy Secretary of the Board. FEDERAL RESERVE SYSTEM applicant has also applied to acquire The Sylvan Agency, Inc., and thereby [FR Doc. 03–29587 Filed 11–25–03; 8:45 am] engage in insurance agency activities in BILLING CODE 6210–01–S Formations of, Acquisitions by, and Mergers of Bank Holding Companies a town of less than 5,000, pursuant to section 225.28(b)(11)(iii)(A) of The companies listed in this notice Regulation Y. FEDERAL RESERVE SYSTEM have applied to the Board for approval, pursuant to the Bank Holding Company Board of Governors of the Federal Reserve Formations of, Acquisitions by, and System, November 20, 2003. Act of 1956 (12 U.S.C. 1841 et seq.) Mergers of Bank Holding Companies Robert deV. Frierson, (BHC Act), Regulation Y (12 CFR part The companies listed in this notice 225), and all other applicable statutes Deputy Secretary of the Board. have applied to the Board for approval, and regulations to become a bank [FR Doc. 03–29588 Filed 11–25–03; 8:45 am] pursuant to the Bank Holding Company holding company and/or to acquire the BILLING CODE 6210–01–S Act of 1956 (12 U.S.C. 1841 et seq.) assets or the ownership of, control of, or (BHC Act), Regulation Y (12 CFR Part the power to vote shares of a bank or 225), and all other applicable statutes bank holding company and all of the FEDERAL RESERVE SYSTEM and regulations to become a bank banks and nonbanking companies Notice of Proposals to Engage in holding company and/or to acquire the owned by the bank holding company, Permissible Nonbanking Activities or assets or the ownership of, control of, or including the companies listed below. to Acquire Companies that are the power to vote shares of a bank or The applications listed below, as well Engaged in Permissible Nonbanking bank holding company and all of the as other related filings required by the Activities banks and nonbanking companies Board, are available for immediate owned by the bank holding company, inspection at the Federal Reserve Bank The companies listed in this notice including the companies listed below. indicated. The application also will be have given notice under section 4 of the The applications listed below, as well available for inspection at the offices of Bank Holding Company Act (12 U.S.C. as other related filings required by the the Board of Governors. Interested 1843) (BHC Act) and Regulation Y (12 Board, are available for immediate persons may express their views in CFR Part 225) to engage de novo, or to inspection at the Federal Reserve Bank writing on the standards enumerated in acquire or control voting securities or indicated. The application also will be the BHC Act (12 U.S.C. 1842(c)). If the assets of a company, including the available for inspection at the offices of proposal also involves the acquisition of companies listed below, that engages

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either directly or through a subsidiary or In compliance with the requirement Dated: November 18, 2003. other company, in a nonbanking activity of section 3506(c)(2)(A) of the John P. Burke, that is listed in § 225.28 of Regulation Y Paperwork Reduction Act of 1995, the Paperwork Reduction Act Reports Clearance (12 CFR 225.28) or that the Board has Office of the Secretary, Department of Officer, Office of the Secretary, Department determined by Order to be closely Health and Human Services, is of Health and Human Services. related to banking and permissible for publishing the following summary of [FR Doc. 03–29493 Filed 11–25–03; 8:45 am] bank holding companies. Unless proposed collections for public BILLING CODE 4150–04–P otherwise noted, these activities will be comment. Interested persons are invited conducted throughout the United States. to send comments regarding this burden Each notice is available for inspection estimate or any other aspect of this DEPARTMENT OF HEALTH AND at the Federal Reserve Bank indicated. collection of information, including any HUMAN SERVICES The notice also will be available for of the following subjects: (1) The inspection at the offices of the Board of necessity and utility of the proposed Office of the Secretary Governors. Interested persons may information collection for the proper Solicitation of the Nomination of express their views in writing on the performance of the agency’s functions; Candidates To Serve as Members of question whether the proposal complies (2) the accuracy of the estimated the National Vaccine Advisory with the standards of section 4 of the burden; (3) ways to enhance the quality, Committee BHC Act. Additional information on all utility, and clarity of the information to bank holding companies may be be collected; and (4) the use of AGENCY: Office of the Secretary HHS. obtained from the National Information automated collection techniques or ACTION: Notice. Center website at www.ffiec.gov/nic/. other forms of information technology to Unless otherwise noted, comments minimize the information collection SUMMARY: The National Vaccine regarding the applications must be burden. Program Office (NVPO), a program received at the Reserve Bank indicated office within the Office of Public Health or the offices of the Board of Governors Type of Information Collection and Science, Department of Health and not later than December 9, 2003. Request: New collection; Human Services (DHHS), is soliciting A. Federal Reserve Bank of New Title of Information Collection: nominations of qualified candidates to York (Jay Bernstein, Bank Supervision Evaluation of the Office of Minority be considered for appointment as Officer) 33 Liberty Street, New York, Health Resource Center; members to the National Vaccine New York 10045-0001: Form/OMB No.: OS–0990-NEW; Advisory Committee (NVAC). The 1. Bayerische Hypo– und Vereinsbank activities of this Committee are AG, and Munchener Ruckversicherungs- Use: The evaluation will assess the governed by the stipulations of the Gesellschaft AG, both of Munich, extent to which programmatic Federal Advisory Committee Act Germany; to acquire through Indentrus, improvements made after the previous (FACA). LLC, eFinance Corporation, San evaulation have improved service DATES: Francisco, California,and thereby engage delivery and the impacts that services All nominations must be in credit bureau services, including like HIV/AIDS technical assistance have received and/or postmarked no later maintaining customers’ credit history on minority communities. than December 18, 2003. ADDRESSES: and providing that information to credit Frequency: On occasion; All nominations should be sent to: Bruce G. Gellin, M.D., M.P.H., grantors, pursuant to section Affected Public: Individuals or 225.28(b)(2)(v) of Regulation Y; Director, National Vaccine Program households, business or other for-profit, Office, Office of Public Health and furnishing general economic State, local or tribal government; information and advice, general Science, Department of Health and economic statistical forecasting services Annual Number of Respondents: Human Services, 200 Independence or industry studies, pursuant to section 1352; Avenue, SW., Room 725H, Washington, 225.28(6)(ii) of Regulation Y; and in Total Annual Responses: 1352 DC 20201. FOR FURTHER INFORMATION, CONTACT: Ms. management consulting services, Average Burden Per Response: 10 Carolin Commodore, Staff Assistant, pursuant to section 225.28(b)(9) of minutes; Regulation Y. National Vaccine Program Office, Total Annual Hours: 286. Board of Governors of the Federal Reserve Department of Health and Human System, November 19, 2003. To obtain copies of the supporting Services, 200 Independence Avenue Robert deV. Frierson, statement and any related forms for the SW., Room 725H, Washington, DC Deputy Secretary of the Board. proposed paperwork collections 20201; (202) 690–1253. referenced above, access the HHS Web [FR Doc.03–29469 Filed 11–25–03; 8:45 am] SUPPLEMENTARY INFORMATION: site address at http://www.hhs.gov/ Committee Function: Consistent with BILLING CODE 6210–01–S oirm/infocollect/pending/ or e-mail your the National Vaccine Plan, the request, including your address, phone Committee advises and makes number, OS document identifier, to recommendations to the Assistant DEPARTMENT OF HEALTH AND [email protected], or call the Reports Secretary for Health in his/her capacity HUMAN SERVICES Clearance Office on (202) 690–8356. as the Director of the National Vaccine Office of the Secretary Written comments and Program (NVP) on matters related to the recommendations for the proposed Program’s responsibilities. Specifically, [Document Identifier: OS/OMH/CSS–0990– information collections must be mailed the Committee studies and recommends NEW] within 30 days of this notice directly to ways to encourage the availability of an Agency Information Collection the OMB desk officer: OMB Human adequate supply of safe and effective Activities: Submission for OMB Resources and Housing Branch, vaccination products in the United Review; Comment Request Attention: (OMB #0990–OMH/CSS), States; recommends research priorities New Executive Office Building, Room and other measures to enhance the AGENCY: Office of the Secretary, HHS. 10235, Washington, DC 20503. safety and efficacy of vaccines. The

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Committee also advises the Assistant Dated: November 19, 2003. potential radiation doses to the thyroid Secretary for Health in the Bruce G. Gellin, gland of American citizens resulting implementation of sections 2102, 2103, Director, National Vaccine Program Office from atmospheric nuclear weapons and 2104 of the PHS Act; and identifies and Executive Secretary, National Vaccine testing at the Nevada Test Site (NTS) in annually the most important areas of Advisory Committee. the 1950s and 1960s. The Institute of government and non-government [FR Doc. 03–29582 Filed 11–25–03; 8:45 am] Medicine (IOM) conducted a formal cooperation that should be considered BILLING CODE 4150–28–P peer review of the report at the request in implementing sections 2102, 2103, of the Department of Health and Human and 2104 of the PHS Act. Services. In the review, IOM noted that DEPARTMENT OF HEALTH AND the public might desire an assessment of Qualifications and Information HUMAN SERVICES the potential health impact of nuclear Required: Nominations are being sought weapons testing on American for individuals who are engaged in Centers for Disease Control and populations. The IOM also suggested vaccine research or the manufacture of Prevention that further studies of the Utah residents vaccines, as well as individuals who are [60Day–04–09] who have participated in previous physicians, members of parent studies of radiation exposure and organizations concerned with Proposed Data Collections Submitted thyroid disease might provide this immunizations, representatives of State for Public Comment and information. or local health agencies or public health Recommendations CDC, National Center for Environmental Health proposes to organizations. Individuals selected for In compliance with the requirement appointment to the Committee will conduct a study of the relation between of section 3506(c)(2)(A) of the exposure to radioactive fallout from serve as voting members. Individuals Paperwork Reduction Act of 1995 for selected for appointment to the atomic weapons testing and the opportunity for public comment on occurrence of thyroid disease on an Committee can be invited to serve terms proposed data collection projects, the extension of a cohort study previously with periods of up to four years. Centers for Disease Control and conducted by the University of Utah, Nominations should be typewritten. Prevention (CDC) will publish periodic Salt Lake City, Utah. This study is The following information should be summaries of proposed projects. To designed as a follow-up to a included in the package of material request more information on the retrospective cohort study begun in submitted for each individual being proposed projects or to obtain a copy of 1965. This is the third examination nominated for consideration: (1) A letter the data collection plans and (hence Phase III) of a cohort of of nomination that clearly states the instruments, call the CDC Reports individuals comprised of persons who name and affiliation of the nominee, the Clearance Officer on (404)498–1210. were children living in Washington basis for the nomination (i.e., specific Comments are invited on: (a) Whether County, Utah, and Lincoln County, the proposed collection of information attributes which qualify the nominee for Nevada, in 1965 (Phase I) and who were is necessary for the proper performance service in this capacity), and a statement presumably exposed to fallout from of the functions of the agency, including above-ground nuclear weapons testing that the nominee is willing to serve as whether the information shall have a member of the Committee; (2) the at the Nevada Test Site in the 1950s. practical utility; (b) the accuracy of the The cohort also includes a control group nominator’s name, address, and daytime agency’s estimate of the burden of the comprised of persons who were telephone number, and the home and/ proposed collection of information; (c) children living in Graham County, or work address, telephone number, and ways to enhance the quality, utility, and Arizona, in 1966 and presumably email address of the individual being clarity of the information to be unexposed to fallout. nominated; and (3) a current copy of the collected; and (d) ways to minimize the The study headquarters will be at the nominee’s curriculum vitae. burden of the collection of information University of Utah in Salt Lake City, Applications cannot be submitted by on respondents, including through the Utah. The field teams will spend the facsimile. The names of Federal use of automated collection techniques majority of their time in the urban areas employees should not be nominated for or other forms of information nearest the original counties if the same consideration of appointment to this technology. Send comments to Seleda pattern of migration holds that was Committee. Perryman, CDC Assistant Reports found in Phase II. These urban areas The Department makes every effort to Clearance Officer, 1600 Clifton Road, include St. George, Utah; the Wasatch ensure that the membership of DHHS MS–D24, Atlanta, GA 30333. Written Front in Utah; Las Vegas, Nevada; Phoenix/Tucson, Arizona; and Denver, Federal advisory committees is fairly comments should be received within 60 days of this notice. Colorado. In addition, some time will be balanced in terms of points of view Proposed Project: Thyroid Disease in spent in California as a number of represented and the committee’s Persons Exposed to Radioactive Fallout subjects had relocated there at the time function. Every effort is made to ensure from Atomic Weapons Testing at the of Phase II. The purposes of Phase III are that a broad representation of Nevada Test Site: Phase III (OMB No. three fold. First, the participants in geographic areas, females, ethnic and 0920–0504)—Extension—National Phase II will be reexamined for minority groups, and the disabled are Center for Environmental Health occurrence of thyroid neoplasia and given consideration for membership on (NCEH), Centers for Disease Control and other diseases since 1986, and residents DHHS Federal advisory committees. Prevention (CDC). of the three counties who moved before Appointment to this Committee shall be In 1997, the National Cancer Institute they could be included in the original made without discrimination on the (NCI) released a report entitled, cohort will be located and examined. basis of age, race, ethnicity, gender, Estimated Exposures and Thyroid Doses Second, disease incidence will be sexual orientation, disability, and Received by the American People from analyzed in addition to period cultural, religious, or socioeconomic I–131 in Fallout Following Nevada prevalence as used in the Phase II status. Nuclear Bomb Test. This report analysis, incidence analysis will allow provided county-level estimates of the for greater power to detect increased

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risk of disease in the exposed will be compared for people who lived is significantly greater than Cache population through the use of person- in these two counties during the time of County (the control group). CDC, NCEH time. Third, disease specific mortality above-ground testing. This comparison is requesting a three-year clearance. rates for Washington County, Utah, and will determine if the risk of mortality in There is no cost to respondents. a control county, Cache County, Utah, Washington County (the exposed group)

Average bur- Number of re- Number of re- den per re- Total burden Respondents spondents sponses/response hours spondent (in hrs.)

Telephone Location Script ...... 3700 1 5/60 308 Telephone Location Script (Return Letter) ...... 200 1 5/60 17 Refusal Telephone Script ...... 150 1 5/60 13 Recruitment Next of Kin Telephone Script ...... 225 1 5/60 19 Recruitment & Appointment Script ...... 3700 1 5/60 308 Broken Appointment Telephone Script ...... 120 1 5/60 10 Exposure Questionnaire ...... 500 1 90/60 750 Questionnaire Preparation Booklet ...... 3700 1 30/60 1850 Group Member Information ...... 3700 1 5/60 308 Consent Forms ...... 3700 1 10/60 617 Interview Booklet ...... 500 1 30/60 250 Medical History Questionnaire (male) ...... 1800 1 45/60 1350 Medical Records Release Telephone Script ...... 120 1 5/60 10 Medical History Questionnaire (female) ...... 1900 1 45/60 1425 Travel Form ...... 240 1 20/60 80 Residence History ...... 500 1 5/60 42 Refusal Questionnaire ...... 24 1 5/60 2

Total hours in burden ...... 24779 ...... 7359

Dated: November 18, 2003. proposed collection of information; (c) opportunities to explore the wide range Laura Yerdon Martin, ways to enhance the quality, utility, and of public health career options available Acting Director, Executive Secretariat, clarity of the information to be to them once their formal training is Centers for Disease Control and Prevention. collected; and (d) ways to minimize the completed. As of summer 2003, 311 [FR Doc. 03–29522 Filed 11–25–03; 8:45 am] burden of the collection of information Fellows have completed the program. BILLING CODE 4163–18–P on respondents, including through the The purpose of this study is to use of automated collection techniques conduct a multi-facet evaluation of the or other forms of information Ferguson Fellowship Program. The data DEPARTMENT OF HEALTH AND technology. Send comments to Seleda from this study will be used to develop HUMAN SERVICES Perryman, CDC Assistant Reports planning and decision making Clearance Officer, 1600 Clifton Road, initiatives regarding expansion and Centers for Disease Control and MS–D24, Atlanta, GA 30333. Written funding. The study aims to evaluate and Prevention comments should be received within 60 measure the success of the program for [60Day–04–08] days of this notice. the dual purposes of program expansion Proposed Project: Evaluation of James and encouraging other organizations to Proposed Data Collections Submitted A. Ferguson Emerging Infectious implement similar mechanisms to for Public Comment and Diseases Fellowship Program—New— increase the presence of racial and Recommendations National Center for Infectious Diseases ethnic minorities in public health. (NCID), Centers for Disease Control and Data for this study will be collected In compliance with the requirement Prevention (CDC). from relevant documents, telephone of Section 3506(c)(2)(A) of the CDC is particularly concerned with interviews with key stakeholders, and a Paperwork Reduction Act of 1995 for the racial, ethnic, and gender health mail survey of Ferguson Fellows. opportunity for public comment on disparities in the distribution of CDC proposes to conduct the study to proposed data collection projects, the infectious diseases in the U.S. To help (1) Examine the views and perspectives Centers for Disease Control and address the health and well-being of of the constituents and their experiences Prevention (CDC) will publish periodic minority and underserved populations, with the Ferguson Fellowship Program summaries of proposed projects. To CDC endeavors to train a racially and and (2) assess the impact of the program request more information on the ethnically diverse public health on strengthening and diversifying the proposed projects or to obtain a copy of workforce. Since 1989, the James A. workforce and addressing racial and the data collection plans and Ferguson Emerging Infectious Disease ethnic health disparities in the field of instruments, call the CDC Reports Summer Fellowship Program, which is Public Health. To minimize respondent Clearance Officer on (404) 498–1210. administered by the Minority Health burden, the mail survey questionnaire Comments are invited on: (a) Whether Professions Foundation (MHPF), has will be carefully developed with the proposed collection of information been providing an 8-week program of appropriate guidance from CDC to is necessary for the proper performance educational and experiential develop survey items that are relevant of the functions of the agency, including opportunities for racial and ethnic and succinct. whether the information shall have minority medical, dental, pharmacy, Prior to fielding the surveys, an practical utility; (b) the accuracy of the veterinary, and public health graduate evaluation contractor with guidance agency’s estimate of the burden of the students. The Fellows are given from CDC, will select nine Fellows from

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the universe of 311 Fellows to order to gain insight into the cognitive important decisions regarding the participate in pilot interviews by processes a respondent uses to answer program’s future expansion and telephone to determine the survey questions. These interviews help funding. Responses are voluntary. No comprehensibility, appropriateness, and minimize respondent burden by proprietary items or questions of general usability of the survey ensuring that each survey item is sensitive nature will be collected. There instrument. These interviews will be comprehensible and reliable. is no cost to respondents. conducted using verbal probing and The information obtained from this concurrent ‘‘think-aloud’’ techniques in project will enable CDC to make

Average bur- Number of re- Number of re- den per re- Total burden Form spondents sponses per sponse (in hours) respondent (in hours)

Survey ...... 311 1 30/60 156 Total ...... 156

Dated: November 19, 2003. comments should be received within 60 the hospitals perform a survey to assess Laura Yerdon Martin, days of this notice. the level of underreporting of Acting Director, Executive Secretariat, Proposed Project: National needlesticks (HCW Survey). Optionally, Centers for Disease and Prevention. Surveillance System for Hospital Health hospitals may collect information about [FR Doc. 03–29523 Filed 11–25–03; 8:45 am] Care Workers (NaSH) (0920–0417)— HCW noninfectious occupational BILLING CODE 4163–18–P Renewal—National Center for Infectious injuries such as acute musculoskeletal Diseases (NCID), Centers for Disease injuries. Data are entered into the Control and Prevention (CDC). software and transmitted on diskette to DEPARTMENT OF HEALTH AND CDC. No HCW identifiers are sent to Background HUMAN SERVICES CDC. This system is protected by the CDC has developed a surveillance Assurance of Confidentiality (308d). Centers for Disease Control and system now called the National Data collected in NaSH have assisted Prevention Surveillance System for Health Care hospitals, HCWs, health care Workers (NaSH) that focuses on organizations, and public health [60Day–04–07] surveillance of exposures and infections agencies. This system has allowed CDC Proposed Data Collections Submitted among hospital-based health care to monitor national trends, to identify for Public Comment and workers (HCWs). NaSH includes newly emerging hazards for HCWs, to Recommendations standardized methodology for various assess the risk of occupational infection, occupational health issues. It is a and to evaluate preventive measures, In compliance with the requirement collaborative effort of CDC, National including engineering controls, work of section 3506(c)(2)(A) of the Center for Infectious Diseases, Division practices, protective equipment, and Paperwork Reduction Act of 1995 for of Healthcare Quality and Promotion, post-exposure prophylaxis to prevent opportunity for public comment on Division of Viral Hepatitis, Division of occupationally acquired infections. proposed data collection projects, the Tuberculosis (TB) Elimination; CDC, Hospitals that volunteer to participate in Centers for Disease Control and National Center for HIV, STD, and TB this system benefit by receiving Prevention (CDC) will publish periodic Prevention, National Immunization technical support and standardized summaries of proposed projects. To Program (NIP), and National Institute for methodologies, including software, for request more information on the Occupational Safety and Health conducting surveillance activities on proposed projects or to obtain a copy of (NIOSH). NaSH consists of modules for occupational health. the data collection plans and collection of data about various This system was developed and instruments, call the CDC Reports occupational issues. Baseline piloted in large teaching hospitals (RFP– Clearance Officer on (404) 498–1210. information about each HCW such as 200–94–0834(P) and RFP–200–96– Comments are invited on: (a) Whether demographics and vaccination history is 0524(P)). The first pilot included four the proposed collection of information collected when the HCW is enrolled in hospitals and the second, five. After the is necessary for the proper performance the system. Results of routine tuberculin refinement pilot in an additional 13 of the functions of the agency, including skin test (TST) are collected and entered hospitals (PA–786 and interagency whether the information shall have in the system every time a TST is placed agreements), participation in NaSH practical utility; (b) the accuracy of the and read; follow-up information is became voluntary. The system is being agency’s estimate of the burden of the collected for HCWs with a positive TST. made available to all healthcare proposed collection of information; (c) When a HCW is exposed to blood/ facilities in the United States wishing to ways to enhance the quality, utility, and bloodborne pathogen, to a vaccine- participate voluntarily in the project. clarity of the information to be preventable disease (VPD), or to an We anticipate no more than 75 hospitals collected; and (d) ways to minimize the infectious TB patient/HCW, participating by the end of fiscal year burden of the collection of information epidemiologic data are collected about 2004 and potentially 85 by the end of on respondents, including through the the exposure. For HCWs exposed to a fiscal year 2005. The burden estimate use of automated collection techniques bloodborne pathogen (i.e., HIV, HCV, or has been reduced from that projected 3 or other forms of information HBC) and for susceptible HCWs exposed years ago because of a drop in the technology. Send comments to Seleda to VPDs, additional data are collected number of facilities actively Perryman, CDC Assistant Reports during follow-up visits. Once a year, participating in NaSH. To participate in Clearance Officer, 1600 Clifton Road, hospitals complete a survey to provide NaSH, hospitals are required to provide MS–D24, Atlanta, GA 30333. Written denominator data and every 2–5 years, information on all exposures to

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infectious agents, baseline information listed in the table. The number of medicine personnel in hospitals with on the exposed HCWs, as well as the respondents is the number of facilities. existing well established surveillance underreporting and hospital surveys. The number of responses per programs, the only additional burden A new component of NaSH will be respondent varies with the form. for some hospitals participating in the forms for collecting information on The maximum total burden hours NaSH system is the time needed for data exposures and injuries associated with may reach 86,720. (The total estimated entry and transmission of data to CDC. smallpox vaccination. It uses a reporting maximum cost to respondents may be Thus, the real burden hours and burden form based on the blood exposure form $1,300,800 [$15 an hour for hospital cost could be significantly less. The already approved for use in NaSH and personnel who will collect/input the only activity that may not be routinely a root-cause analysis form. This is a data]). Since all of the data collection performed by the hospitals is the survey paper-based reporting system that can activities except the HCW survey, to assess underreporting of needlesticks be used by NaSH and non-NaSH outlined in the modules are currently (HCW survey). facilities. routinely done by infection control This study is scheduled for A different number of facilities will be practitioners and employee health, implementation in late 2003 and 2004. completing each of the separate forms personnel health, and/or occupational There are no costs to respondents.

Number of Number of Avg. burden/ Form respondents responses/re- response Total burden (hospitals) spondent (in hours) (in hours)

Baseline Information ...... 75 250 10/60 3,125 TST: TST Result ...... 30 200 10/60 1,000 Positive TST ...... 20 100 30/60 1,000 Exposure to Blood: Exposure ...... 50 100 60/60 5,000 Exposure (NaSH ‘‘Lite/abbreviated form) ...... 10 20 30/60 100 Postexposure prophylaxis ...... 50 80 20/60 1,333 Follow-up ...... 50 60 15/60 750 Exposure during smallpox vaccination: Exposure event...... 20 1 10/60 3 Root cause analysis ...... 20 1 60/60 20 Exposure to VPD: Summary ...... 50 3 20/60 50 HCW ...... 50 10 20/60 167 Exposure to TB ...... 25 3 60/60 75 Noninfectious Injury ...... 25 20 20/60 167 HCW Survey ...... 25 500 10/60 2,083 Hospital Survey ...... 75 1 2 150

Total ...... 14,986

Dated: November 18, 2003. posted on the Centers for Disease with heading and text as follows: Laura Yerdon Martin, Control and Prevention (CDC) Web site Optional Funding In addition, special Acting Director, Executive Secretariat, at: http://www.cdc.gov. Click on interest projects related to chronic Centers for Disease Control and Prevention. ‘‘Funding’’ then ‘‘Grants and disease prevention and health [FR Doc. 03–29524 Filed 11–25–03; 8:45 am] Cooperative Agreements.’’ promotion will be announced and BILLING CODE 4163–18–P The notice is amended as follows: funded in fiscal year 2004. Award of Page 14984, third column, these projects, which are funded by ‘‘Application Deadline: June 16, 2003’’ centers, institutes, or offices within CDC DEPARTMENT OF HEALTH AND should be removed and replaced with: or by other federal agencies, can be HUMAN SERVICES ‘‘Application Deadline: March 1, 2004.’’ made to Prevention Research Centers Page 14985, first column, Section C. only. Thus, applicants selected to be Centers for Disease Control and Eligible Applicants, subsection First funded as a Prevention Research Center Prevention Round of Competition, delete this under this announcement will be subsection. Second column, subsection, [Program Announcement 04003] eligible to compete for this optional Second Round of Competition, delete funding of new special interest projects Health Promotion and Disease the subsection header and the first paragraph. whenever they are announced by CDC. Prevention Research Centers; Notice However, all applicants to this of Availability of Funds; Amendment Page 14985, second column, Section D. Funding, subsection Availability of announcement can simultaneously A notice announcing the availability Funds, line 1, delete the sentence, apply for special interest projects. Those of fiscal year 2004 funds for Cooperative ‘‘Approximately $14,000,000 will be applicants not selected as Prevention Agreements to support Health available in FY 2004 to fund Research Centers will then Promotion and Disease Prevention approximately 18 awards.’’ Replace it automatically be excluded from the Research Centers was published in the with ‘‘Approximately $9,000,000 is competition for special interest projects. Federal Register on March 27, 2003, available in FY 2004 to fund Specific guidance related to fiscal year Volume 68, Number 59, pages 14984– approximately 12 awards.’’ 2004 special interest projects will be 14990. A fully amended version of the Page 14985, second column, Section published in a separate Federal Register original program announcement is D. Funding, insert a second paragraph announcement in March, 2004.

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Page 14985, second column, Section Developing and Evaluation Framework: Page 14989, second column, Section D. Funding, insert the following heading Insuring National Excellence (Project H. Evaluation Criteria, subsection ‘‘Continuation of Funding’’ before the DEFINE).) To assure that applicants Application, sub-topic Evaluation, first paragraph that begins ‘‘Continuation have this capacity, applicants should, at paragraph (numbered ‘‘1.’’), first awards***’’ a minimum, address the following:’’ sentence, delete the word ‘‘center-level’’ Page 14985, third column, Section D. Page 14986, third column, Section F. and replace it with ‘‘center’’. Funding, subsection Funding Content, subsection Evaluation, second Page 14989, second column, Section Preferences, delete the paragraph and paragraph (numbered ‘‘1.’’) delete the H. Evaluation Criteria, subsection replace it with, ‘‘Funding preference first sentence, and replace with, ‘‘1. Application, sub-topic Evaluation, will be based on selecting applicants in Create a logic model for the center, second paragraph (numbered ‘‘2.’’), order to maintain an equitable specifying the center’s health priorities delete the paragraph and replace it with, geographic distribution of centers and and expected outcomes.’’ ‘‘2. To what extent does the applicant for the distribution of centers among Page 14986, third column, Section F. sufficiently describe and justify how the areas containing a wide range of Content, subsection Evaluation, third components of the center’s logic model population groups.’’ paragraph (numbered ‘‘2.’’) delete the relate to or differentiate from the Page 14985, third column, Section E. paragraph, and replace with, ‘‘2. national PRC Program conceptual Program Requirements, subsection Document experiences in conducting framework?’’ Recipient Activities, paragraph a., delete program evaluations in the past five Page 14989, second column, Section the word ‘‘center-level’’ and replace it years. Describe how the center will H. Evaluation Criteria, subsection with, ‘‘center’’. continue or enhance its evaluation Application, sub-topic Evaluation, Page 14985, third column, Section E. expertise as it relates to program fourth paragraph (numbered ‘‘4.’’), Program Requirements, subsection evaluation.’’ delete the paragraph and replace it with, Recipient Activities, paragraph b., Page 14986, third column, Section F. ‘‘4. To what extent does the applicant delete the paragraph and replace it with, Content, subsection Evaluation, last adequately lay out a five-year evaluation ‘‘Evaluate the center based on the paragraph (numbered ‘‘3.’’) delete the plan, focused on the critical center’s logic model, particularly paragraph, and replace with, ‘‘3. Create components of the center’s logic model? focusing on the critical components of and describe a five-year evaluation plan, To what extent does the plan include the center’s logic model. Describe how focusing on the critical components of the goals and objectives for the the center’s evaluation will contribute to the center’s logic model. The plan evaluation and describe past or future the CDC’s national program evaluation, should include the goals of the collaboration with the center’s including the core performance evaluation and evaluation questions to community committee in the indicators. (See Appendix D for a list of be addressed. The plan should also evaluation? the indicators.)’’ describe how the center has Page 14989, third column, Section H. Page 14986, second column, Section collaborated or will collaborate with the Evaluation Criteria, subsection F. Content, subsection Applications, center’s community committee for the Application, sub-topic Collaborations/ insert the following paragraph, ‘‘You are evaluation (see the glossary for Partnerships, fourth paragraph required to have a Dun and Bradstreet additional information regarding the (numbered ‘‘4.’’), delete the paragraph Data Universal Numbering System center community committee.)’’ and replace it with, ‘‘4. To what extent (DUNS) number to apply for a grant or Page 14987, second column, Section does the applicant adequately describe cooperative agreement from the Federal F. Content, subsection Collaborations/ their partnerships (past, current, and government. Your DUNS number must Partnerships, second paragraph proposed, as applicable), the roles of be entered in item 11 of the face page (numbered ‘‘3.’’), delete sub-item (a), these partners, and the methods for of the PHS 398 application form. The and replace it with, ‘‘(a) past, current, establishing and maintaining the DUNS number is a nine-digit and proposed partners, as applicable to partnerships?’’ identification number, which uniquely the center;’’ Page 14989, third column, Section H. identifies business entities. Obtaining a Page 14987, second column, Section Evaluation Criteria, subsection DUNS number is easy and there is no F. Content, subsection Research, fourth Application, sub-topic Research, third charge. To obtain a DUNS number, paragraph (numbered ‘‘3.’’), delete the paragraph (numbered ‘‘3.’’), second line, access http:// first sentence, and replace it with, ‘‘3. delete the words ‘‘and objectives’’. www.dunandbradstreet.com or call Describe the center’s five-year research Page 14990, second column, Section 1–866–705–5711. For more information, agenda, including the five-year goals.’’ H. Evaluation Criteria, subsection see the CDC Web site at: http:// Page 14988, second column, Section Application, sub-topic Training/ www.cdc.gov/od/pgo/funding/ F. Content, subsection Infrastructure, Education, second paragraph (numbered pubcommt.htm fifth paragraph (numbered ‘‘4.’’), delete ‘‘2.’’), insert the words, ‘‘goals and Page 14986, third column, Section F. the first sentence, and replace it with, objectives,’’ between the words Content, subsection Evaluation, delete ‘‘4. Describe the center’s proposed ‘‘including’’ and ‘‘how’’. the first paragraph, and replace with, strategies or activities to enhance its Page 14990, third column, Section J. ‘‘An infrastructure of resources and core capacity over the five-year period.’’ Where to Obtain Additional personnel is required to support Page 14989, first column, Section G. Information, after the paragraph that program evaluation at the center (see the Submission and Deadline, subsection starts, ‘‘For program technical assistance glossary for a definition of program Letter of Intent (LOI) Submission, delete ***’’ insert the following: evaluation). Applicants should have the the phrase ‘‘First Round of A forum for questions and answers capacity to (1) establish a five-year Competition.’’ Delete the date April 10, between CDC and applicants during the evaluation plan; (2) conduct program 2003, and replace with January 7, 2004. application process will be available as evaluations; and (3) collaborate with Subsection Submission Date, Time, and a LISTSERV, a system that allows for national partners in the planning and Address, delete the phrase ‘‘First Round creating, managing, and controlling implementation of national PRC of Competition.’’ Delete the date June mailing lists on a network or the Program evaluation strategies (see 16, 2003, and replace with March 1, Internet. The mailing list, which will be Appendix B for a description of 2004. titled PREV-CENTERS allows for

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questions and answers via electronic DEPARTMENT OF HEALTH AND performance goal for the National mail, which are simultaneously sent to HUMAN SERVICES Center for Injury Prevention and everyone on the list and delivered in Control: Conduct a targeted program of seconds or, occasionally, minutes. Centers for Disease Control and research to reduce injury-related death PREV-CENTERS is a closed list Prevention and disability. available only to persons and entities Research Objectives: Center funding is Grant for Injury Control Research to be designated for two types of associated with the application process Center for Announcement Number 04003. activities. One type of activity is considered core and includes To subscribe to the listserv, the Announcement Type: New. Funding Opportunity Number: 04057. administration, management, general applicant must send an E-mail message Catalog of Federal Domestic support services (e.g., statistical, library, to [email protected] Assistance Number: 93.136. media relations, and advocacy for injury with the following command in the Key Dates: prevention and control) as well as body of the message: SUBSCRIBE PREV- Letter of Intent Deadline: December activities associated with research CENTERS. There is no need to write a 26, 2003. development, technical assistance, and ‘‘Subject’’ or anything else in the Application Deadline: February 23, education (e.g., seed projects, training message. The subscriber will then 2004. activities, and collaborative and receive a welcome E-mail message and technical assistance activities with other I. Funding Opportunity Description instructions on how to use commands groups). Funds may be allocated for for the LISTSERV. After the applicant is Authority: This program is authorized trainee stipends, tuition remission, and subscribed, questions to the PREV- under sections 301(a) and 391(a)(1) of trainee travel in accordance with the CENTERS LISTSERV may be sent to the the Public Health Service Act, (42 current rates for the United States following E-mail address: PREV- U.S.C. 241(a)280b(a)(1)), as amended. Public Health Service agencies. Indirect Purpose: The Centers for Disease costs for these trainee-related activities [email protected]. Do not post Control and Prevention (CDC) are limited to eight percent. Defined confidential information on the announces the availability of fiscal year research projects constitute the second listSERV because every member of the (FY) 2004 funds for a grant for an Injury type of activity, and ICRCs are mailing list will receive the message and Control Research Center (ICRC). This encouraged to work toward addressing the reply. All confidential matters program addresses the ‘‘Healthy People the breadth of the field. Core activities should be conducted through direct E- 2010’’ focus area of Injury and Violence and defined research projects may each mail, paper correspondence, or Prevention. A copy of ‘‘Healthy People constitute between 25 percent and 75 telephone. 2010’’ is available at the following percent of the operating budget, and Please use the PREV-CENTERS Internet address: http://www.health.gov/ should be balanced in such a way that LISTSERV exclusively for posting healthypeople. the ICRC demonstrates productivity in questions about the application process The purposes of this program are: research as well as teaching and service. for Announcement Number 04003. 1. To support an ICRC in a state Applicants with less demonstrated Questions will be accepted until the predominately comprised of expertise in research are encouraged to economically depressed rural application deadline. All subscribers to devote a larger percentage of funds to communities where a relatively large the list will be deleted after the defined research projects in order to portion of the work force is engaged in application due date. Furthermore, a list establish their capability as research underground mining, family farming, of previously generated questions and centers of excellence. and other rural occupations. At least 80 percent of the costs (total answers regarding this Program 2. To support injury prevention and direct and indirect costs) of the Announcement can be found at the control research on priority issues as approved small and large research following Web site: http:// delineated in: ‘‘Healthy People 2010’’; projects must be in alignment with the apps.nccd.cdc.gov/RFAQA/rfaqa.asp ‘‘Reducing the Burden of Injury: ‘‘CDC Injury Research Agenda,’’ http:// In addition, a pre-applications Advancing Prevention and Treatment’’; www.cdc.gov/ncipc. workshop will be held in Atlanta for all and the research priorities published in Eligible applicants may enter into eligible applicants. The workshop will the CDC Injury Research Agenda, contracts, including consortia provide information on CDC’s located at http://www.cdc.gov/ncipc. agreements, as necessary to meet the Prevention Research Centers Program 3. To integrate, in the context of a requirements of the program and and the contents of this Program national program, the disciplines of strengthen the overall application. Announcement. Specific information epidemiology, medicine, biomechanics Activities: Awardee activities for this and other engineering, biostatistics, about the workshop can be found on the program are as follows: public health, law and criminal justice, 1. Applicants must demonstrate CDC Prevention Research Centers Web and behavioral and social sciences in expertise and experience in conducting site: http://www.cdc.gov/prc. order to prevent and control injuries and publishing injury research in at Dated: November 20, 2003. more effectively. least one of the three phases of injury Edward Schultz, 4. To define the injury problem; control (prevention, acute care, or Acting Director, Procurement and Grants identify risk and protective factors; rehabilitation) and are encouraged to be Office, Centers for Disease Control and develop and evaluate prevention and comprehensive. Prevention. control interventions and strategies; and 2. Applicants must document ongoing [FR Doc. 03–29525 Filed 11–25–03; 8:45 am] ensure widespread adoption of effective injury control-related research projects interventions and strategies. and activities currently supported by BILLING CODE 4163–18–P 5. To provide technical assistance to other sources of funding. injury prevention and control programs 3. Applicants must provide a director within a geographic region. (Principal Investigator) who has specific Measurable outcomes of the program authority and responsibility to carry out will be in alignment with the following the project. The director must report to

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an appropriate institutional official, e.g., III. Eligibility Information described in section 501(c)(4) of the Internal Revenue Code that engages in lobbying dean of a school, vice president of a 1. Eligible applicants: This university, or commissioner of health. activities is not eligible to receive Federal announcement will provide funding for funds constituting an award, grant, or loan. The director must have no less than applicants in regions that do not have thirty percent effort devoted solely to funded Injury Control Research Centers IV. Application and Submission this project with an anticipated range of (ICRCs) and for applicants in regions Information thirty percent to fifty percent. that have funded Centers that must re- 1. Address to Request Application 4. Applicants must provide evidence compete for funding. of working relationships, including Eligible applicants are limited to Package: To apply for this funding consultation and technical assistance, organizations in Department of Health opportunity, use application form PHS with outside agencies and other entities and Human Services (DHHS) Region II 398 (OMB number 0925–0001 rev. in the region in which the ICRC is (New Jersey, New York, Puerto Rico, 5/2004). Forms and instructions are located which will allow for and Virgin Islands), Region III available in an interactive format on the implementation and evaluation of any (Delaware, District of Columbia, CDC web site, at the following Internet proposed intervention activities. Maryland, Pennsylvania, Virginia, and address: http://www.cdc.gov/od/pgo/ 5. Applicants must provide evidence West Virginia), and Region VI forminfo.htm. of involvement of specialists or experts (Arkansas, Louisiana, New Mexico, Forms and instructions are also in medicine, biomechanics and other Oklahoma, and Texas). available in an interactive format on the engineering, epidemiology, law and National Institutes of Health (NIH) web criminal justice, behavioral and social Note: ICRC grant awards are made to the site at the following Internet address: sciences, biostatistics, and public health applicant institution/organization, not the http://grants.nih.gov/grants/funding/ Principal Investigator. as needed to complete the plans of the phs398/phs398.html. center. These are considered the Applications may be submitted by If you do not have access to the disciplines and fields for ICRCs. public and private nonprofit and for Internet, or if you have difficulty 6. Applicants must have established profit organizations and by governments accessing the forms on-line, you may curricula and graduate training and their agencies, such as: contact the CDC Procurement and programs in disciplines relevant to • Public nonprofit organizations Grants Office Technical Information injury control (see item 5.above.). • Private nonprofit organizations Management Section (PGO-TIM) staff at: 7. Applicants must disseminate injury • For profit organizations (770) 488–2700. Application forms can control research findings, translate them • Small, minority, women-owned be mailed to you. into interventions (i.e., programs or businesses 2. Content and Form of Application policies), and evaluate their • Universities • Submission: effectiveness. Colleges • Research institutions Letter of Intent (LOI): CDC requests • II. Award Information Hospitals that you send a LOI if you intend to • Community-based organizations Type of Award: Grant. • apply for this program. Although the Fiscal Year Funds: FY 2004. Faith-based organizations LOI is not required, not binding, and • Federally recognized Indian tribal Approximate Total Funding: $905,500 does not enter into the review of your governments (total of direct and indirect costs). • subsequent application, your LOI will Approximate Number of Awards: One Indian tribes • Indian tribal organizations be used to gauge the level of interest in award. • this program, and to allow CDC to plan Approximate Average Award: State and local governments or their Bona Fide Agents (this includes the the application review. Your LOI must $905,500. be written in the following format: Floor of Award Range: None. District of Columbia) • • Maximum number of pages: Two Ceiling of Award Range: Applicants Political subdivisions of States (in consultation with States) • Font size: 12-point unreduced will be allowed to apply for $1,055,500 • A Bona Fide Agent is an agency/ Single Spaced ($150,000 above the expected award • organization identified by the state as Paper size: 8.5 by 11 inches amount to allow for the inclusion of the • Page margin size: one inch description of an additional large eligible to submit an application under • the state eligibility in lieu of a state Printed only on one side of page project as described in Section IV. • Written in English, avoid jargon Application and Submission application. If you are applying as a Information, Application 4.b. (2), but bona fide agent of a state or local Your LOI must contain the following the award will be no more than government, you must provide a letter information: • $905,500 (total of direct and indirect from the state or local government as Descriptive title of the proposed costs). documentation of your status. Place this research • Anticipated Award Date: September documentation behind the first page of Name, address, email address, and 1, 2004. your application form. telephone number of the Principal Budget Period Length: Twelve 2. Cost Sharing or Matching: Matching Investigator months. funds are not required for this program. • Names of other key personnel Project Period Length: Three years. 3. Other Eligibility Requirements: If • Participating institutions Throughout the project period, CDC’s you request a funding amount greater • Number and title of this Program commitment to continuation of awards than the ceiling of the award range Announcement (PA) will be conditioned on the availability ($1,055,500), your application will be Application: Follow the PHS 398 of funds, evidence of satisfactory considered non-responsive and will not application instructions for content and progress by the recipient (as be entered into the review process. You formatting of your application. For documented in required reports), and will be notified that you did not meet further assistance with the PHS 398 the determination that continued the submission requirements. application form, contact GrantsInfo, funding is in the best interest of the Note: Title 2 of the United States Code Telephone (301) 435–0714, E-mail: Federal Government. section 1611 states that an organization [email protected].

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Your research plan should address publication in a peer-reviewed journal b. A detailed research plan (design activities to be conducted over the and/or a technical report for a legislative and methods), in accordance with entire project period. body, governmental agency, or injury NCIPC’s performance goal as stated in You are required to have a Dun and control program. the purpose section of this Bradstreet Data Universal Numbering (2) Larger scale studies with annual announcement, including hypothesis, System (DUNS) number to apply for a budgets exceeding $150,000/year (total expected outcome, value to the field, grant or cooperative agreement from the of direct and indirect costs) and lasting and measurable and time-framed Federal government. Your DUNS up to three years. These projects objectives consistent with the activities number must be entered in item 11 of typically will test hypotheses and for each project within the proposed the face page of the PHS 398 application employ more sophisticated grant. form. The DUNS number is a nine-digit methodologies and/or larger sample (1) Initial seed projects require a short identification number, which uniquely sizes than small studies. write-up describing the injury control identifies business entities. Obtaining a For seed projects, only modest budget context of the study, the objective, the DUNS number is easy and there is no descriptions are required within the design, the setting and participants, the charge. To obtain a DUNS number, application. More detailed budget intervention being addressed, main access http:// descriptions, commensurate with costs, outcome measurements, expected www.dunandbradstreet.com or call 1– are required for both small studies and results, time lines, cost (total of direct 866–705–5711. For more information, large research projects. and indirect costs), plans for see the CDC web site at: http:// An applicant organization has the translation/dissemination, and clear www.cdc.gov/od/pgo/funding/ option of having specific salary and definition of procedures used to select pubcommt.htm. fringe benefit amounts for individuals the projects. Clear definitions of The Program Announcement title and omitted from the copies of the procedures used to select future out- number must appear in the application. application that are made available to year seed projects are also required. Use the information in Section I. outside reviewing groups. To exercise (2) Small research projects require a Funding Opportunity Description, this option: On the original and two ten to fifteen page summary describing Activities; Section V. Application copies of the application, the applicant the accomplishment of all the steps, Review Information; and Section VI. must use asterisks to indicate those including a description of the Award Administration Information, individuals for whom salaries and fringe significance of the project, the Administration and National Policy benefits are not shown; the subtotals development and testing of methods Requirements to develop the application must still be shown. In addition, the and instruments, and the collection of content. Applications should include applicant must submit an additional preliminary data needed to take an the following information, detailing copy of page four of Form PHS–398, innovative approach and develop it to activities to be conducted for the first completed in full, with the asterisks the level of a larger investigation leading budget year, while briefly addressing replaced by the salaries and fringe to the submission of an RO1 level activities to be conducted over the benefits. This budget page will be proposal or a stand-alone investigation entire three-year project period. reserved for internal staff use only. sufficient to yield results worthy of 1. Face page. 5. Budget for entire proposed project publication in a peer-reviewed journal 2. Description (abstract) and period including budgets pertaining to and/or a technical report for a legislative personnel. body, governmental agency, or injury 3. Table of contents. consortium/contractual arrangements. 6. Biographical sketches of key control program. 4. Detailed budget for the initial (3) Large research projects require an budget period: The budget should personnel, consultants, and collaborators, beginning with the RO1 level summary as described in the reflect the composite figures for the PHS 398 (Revised 5/01 and updated grant. In addition, separate budgets Principal Investigator and core faculty. 7. Other support: This listing should 6/28/02) guidelines. The summary (direct and indirect costs) and should be included as an appendix of justifications should be provided for the include all other funds or resources pending or currently available. For each the application. following categories of activities: In the research plan section of the a. Core activities, including grant or contract include source of funds, amount of funding (indicate application include a description for management and administrative each small and large research project: functions, other non-research activities whether pending or current), date of funding (initiation and termination), a. Title of Project. (e.g., education/training, consultation, b. Project Director/Lead Investigator. technical assistance, translation/ and relationship to the proposed c. Institution(s). dissemination, program and policy program. d. Categorization as Prevention, Acute development and evaluation, advocacy, 8. Resources and environment. Care, Rehabilitation, or Biomechanics. and media activities, etc.), and small 9. Research plan: e. Categorization as to which NCIPC seed projects of less than $25,000 (total a. ICRCs are to develop a range of research agenda priority area the project of direct and indirect costs) for one year research and other non-research addresses. Also, a brief description on or less. activities that are designed to advance how it addresses that priority area. If a b. Research Studies: the field of injury control through priority area is not addressed, provide (1) Small studies of $25,000–150,000/ development of new scientific or an explanation of why it is important. year (total of direct and indirect costs) surveillance methods, creation of new f. Categorization as Seed Project, for one to three years duration. These knowledge, and translation of Small Project, or Large Project. projects might be expansions of seed knowledge into training, program and g. Categorization as New or Ongoing projects, either further developing policy development and evaluation Project methods or hypotheses in preparation activities or other applications that will h. Cost/Year (total of direct and for a larger investigation leading to the ultimately reduce injuries or their indirect costs). submission of an RO1 level proposal, or effects. ICRC applications should i. Research Training: Names, Degrees might be stand-alone investigations articulate how the activities of their of Persons Trained or in Training. sufficient to yield results worthy of program are integrated with each other. j. Key Words.

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k. Brief Summary of Project including did not meet the submission objective and quantitative, and must Intended Application of Finding requirements. measure the intended outcome. These (Abstract). CDC will not notify you upon receipt measures of effectiveness must be c. A description of the core faculty of your application. If you have a submitted with the application and will and their roles in implementing and question about the receipt of your be an element of evaluation. evaluating the proposed programs. The application, first contact your courier. If 2. Review and Selection Process: applicant should clearly specify how you still have a question, contact the Applications will be reviewed by CDC disciplines will be integrated to achieve PGO–TIM staff at: 770–488–2700. Before staff for completeness and the ICRC’s objectives. calling, please wait two to three days responsiveness as outlined under the d. Charts showing the proposed after the application deadline. This will previous heading Application and organizational structure of the ICRC and allow time for applications to be Submission Information. Incomplete its relationship to the broader processed and logged. applications and applications that are institution of which it is a part and, 4. Intergovernmental Review: not responsive will be returned to the where applicable, to affiliate institutions Executive Order 12372 does not apply applicant without further consideration. or collaborating organizations. These to this program. Applications which are complete and charts should clearly detail the lines of 5. Funding restrictions: Restrictions, responsive will be subjected to a authority as they relate to the center, which must be taken into account while preliminary evaluation (streamline both structurally and operationally. writing your budget are as follows: review) by the Initial Review Group ICRC directors should report to an Grant funds will not be made (IRG) to determine if the application is appropriate organizational level (e.g. available to support the provision of of sufficient technical and scientific dean of a school, vice president of a direct care. Studies may be supported merit to warrant further review by the university, or commissioner of health), which evaluate methods of acute care IRG. Applications that are determined demonstrating strong institution-wide and rehabilitation for potential noncompetitive will not be considered, support of ICRC activities and ensuring reductions in injury effects and costs. and NCIPC will promptly notify the oversight of the process of Studies may be supported which investigator/program director and the interdisciplinary activity. identify the effect on injury outcomes official signing for the applicant e. Documentation of the public health and cost of systems for pre-hospital, organization. Applications determined agencies and other public and private hospital, and rehabilitative care and to be competitive will be evaluated by sector entities to be involved in the independent living. a dual review process. proposed program, including letters that If you are requesting indirect costs in Awards will be made based on detail commitments of support and a your budget, you must include a copy priority scores assigned to applications clear statement of the role, activities, of your indirect cost rate agreement. If by the IRG, programmatic priorities and and participating personnel of each your indirect cost rate is a provisional needs determined by a secondary agency or entity. rate, the agreement must be less than 12 review committee (the Advisory 3. Submission Dates and Times: months of age. Committee for Injury Prevention and LOI Deadline Date: December 26, Awards will not allow reimbursement Control), and the availability of funds. 2003. of pre-award costs. Application Deadline Date: February 6. Other Submission Requirements: 1. Review by IRG 23, 2004. LOI Submission Address: Submit your An initial streamline peer-review of Explanation of Deadlines: LOI by express delivery service, fax, or ICRC grant applications will be Applications must be received in the e-mail to (only one submission is conducted by the IRG. The IRG may CDC Procurement and Grants Office by required): Robin Forbes, Center for recommend the application for a site 4 p.m. Eastern Time on the deadline Injury Prevention and Control, Centers visit review. For those applications date. If you send your application by the for Disease Control and Prevention recommended for a site visit review, a United States Postal Service or (CDC), 4770 Buford Hwy., NE, Mailstop team of peer reviewers, including commercial delivery service, you must K–62, Atlanta, GA 30341, Telephone: members of the IRG, will conduct on- ensure that the carrier will be able to 770–488–4037, Fax: 770–488–1662, site visits at each applicant institution, guarantee delivery of the application by Email: [email protected]. generate summary statements for the the closing date and time. If CDC Application Submission Address: visits, and report the assessment to the receives your application after closing Submit the original and five copies of IRG. due to: (1) Carrier error, when the your application by mail or express Factors to be considered by the IRG carrier accepted the package with a delivery service to: Technical include: guarantee for delivery by the closing Information Management-PA# 04057, a. The specific aims of the date and time, or (2) significant weather Procurement and Grants Office, Centers application, e.g., the long-term delays or natural disasters, you will be for Disease Control and Prevention objectives and intended given the opportunity to submit (CDC), 2920 Brandywine Road, Atlanta, accomplishments. Approval of small documentation of the carrier’s GA 30341. and large research projects (including guarantee. If the documentation verifies Applications may not be submitted new research projects proposed during a carrier problem, CDC will consider the electronically at this time. the three-year funding cycle), in application as having been received by accordance with NCIPC’s performance V. Application Review Information the deadline. goal as stated in section ‘‘B. Purpose’’, This announcement is the definitive 1. Review: You are required to provide is subject to peer review. guide on application submission measures of effectiveness that will (1) Seed projects will be evaluated address and deadline. It supersedes demonstrate the accomplishment of the collectively on the mechanism for information provided in the application various identified objectives of the solicitation of projects and on their instructions. If your application does grant. Measures of effectiveness must technical/scientific merit review. not meet the deadline above, it will not relate to the performance goals stated in Evaluation criteria have equal value. be eligible for review, and will be the ‘‘Purpose’’ section of this (2) Small projects will be evaluated discarded. You will be notified that you announcement. Measures must be individually on the significance of the

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project, the innovative approach, and projects; completion of high quality presented to the entire ACIPC in the the proposed methods for achieving an research projects; publication of form of a report by the Chairman of the investigation sufficient to support a findings in peer reviewed scientific and SPRS. The ACIPC will vote to approve, submission of an RO1 level proposal technical journals; number of disapprove, or modify these and/or worthy of publication in a peer- professionals trained; awards received; recommendations for funding reviewed journal and/or a technical ongoing provision of consultation and consideration. report for a legislative body, technical assistance; integration of Factors to be considered by the ACIPC governmental agency, or injury control disciplines; translation of research into include: program. implementation; and impact on injury a. The results of the peer-review. (3) Large projects will be evaluated control outcomes including legislation, b. The significance of the proposed individually according to existing RO1 regulation, treatment, and behavior activities as they relate to national level project standards as described in modification interventions. program priorities, geographic balance, the PHS 398 (Revised 5/01 and updated h. Does the application adequately and the achievement of national 6/28/02) guidelines. The application address the requirements of title 45 CFR objectives. must have a minimum of one large part 46 for the protection of human c. The overall balance of the ICRC research project approved in order to be subjects? program in addressing the three phases recommended for further consideration. i. Does the applicant meet the CDC of injury control (prevention, acute care, (4) At least 80 percent of the costs Policy requirements regarding the and rehabilitation); the control of injury (total direct and indirect costs) of the inclusion of women, ethnic, and racial among populations who are at increased approved small and large research groups in the proposed research? This risk, including racial/ethnic minority projects must be in alignment with the includes: groups, the elderly and children; the ‘‘CDC Injury Research Agenda,’’ http:// (1) The proposed plan for the major causes of intentional and www.cdc.gov/ncipc in order to be inclusion of both sexes, racial and unintentional injury; and the major recommended for further consideration. ethnic minority populations for disciplines of injury control. b. The scientific and technical merit appropriate representation. d. Budgetary considerations. The of the overall application, including the (2) The proposed justification when ACIPC will recommend annual funding significance and originality (e.g., new representation is limited or absent. levels as detailed in Section II. Award topic, new method, new approach in a (3) A statement as to whether the Information, Approximate Average new population, or advancing design of the study is adequate to Award of this announcement. understanding of the problem) of the measure differences when warranted. These recommendations, based on the proposed research. (4) A statement as to whether the results of the peer review by the IRG, c. The extent to which the evaluation plans for recruitment and outreach for the relevance and balance of the plan will allow for the measurement of study participants include the process proposed research relative to the NCIPC progress toward the achievement of of establishing partnerships with programs and priorities, and the stated objectives. Does the application community or communities and assurance of no duplication of federally- specify how the effectiveness of the recognition of mutual benefits. funded research, are presented to the program will be measured? j. Does the application adequately Director, NCIPC, for funding decisions. d. Qualifications, adequacy, and address the requirements of the ‘‘PHS At the discretion of the Director, appropriateness of personnel to Policy on Humane Care and Use of NCIPC, additional consideration may be accomplish the proposed activities. Laboratory Animals by Awardee given to re-competing ICRCs. These e. The soundness of the proposed Institutions?’ centers represent a long-term budget in terms of adequacy of k. Does the application include investment for NCIPC and an resources and their allocation. measures that are in accordance with established resource for injury control- f. In addition to conducting defined CDC’s performance plans? related issues for their States and research projects, ICRCs are expected to regions. devote substantial attention to 2. Review by the CDC Advisory advancing the field through other Committee for Injury Prevention and 3. Continued Funding Control (ACIPC) activities that are designed to improve Continuation awards for new awards research capabilities and translate Secondary review of ICRC grant to this announcement after federal fiscal research into practice. Examples of applications with a priority score of 350 year 2004 and within the project period activities include: consultation and or better from the initial peer-review by will be made on the basis of the technical assistance that are responsive the IRG will be conducted by the availability of funds and the following to regional, State, national, or Science and Program Review Section criteria: international priorities; professional (SPRS) of the ACIPC. The SPRS consists a. The accomplishments of the current training for researchers and of ACIPC members, Federal Ex Officio budget period show that the applicant’s practitioners; program development; participants, and organizational objectives as prescribed in the yearly and evaluation endeavors. The degree of liaisons. The Federal Ex Officio work plans are being met. effort devoted to these aspects of an participants will be responsible for b. The objectives for the new budget ICRC’s program should be clearly stated identifying proposals in overlapping period are realistic, specific, and in the justification and the budget. The areas of research interest so that measurable. degree of effort may be varied and unwarranted duplication in federally c. The methods described will clearly should reflect the specific focus and funded research can be avoided. The lead to achievement of these objectives. goals of the ICRC. NCIPC Division Associate Directors for d. The evaluation plan allows g. Details of progress in the most Science (ADS) or their designees will management to monitor whether the recent funding period should be address the SPRS to assure that research methods are effective by having clearly provided in the application if the priorities of the announcement are defined process, impact, and outcome applicant is submitting a re-competing understood and to provide background objectives, and the applicant application. Documented examples of regarding current research activities. demonstrates progress in implementing success include: Development of pilot The SPRS recommendations will be the evaluation plan.

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e. The budget request is clearly sharing/release plan will not count Scientific Review Administrator, Office explained, adequately justified, towards the application page limit and of the Associate Director for Science, reasonable, and consistent with the will not factor into the determination National Center for Injury Prevention intended use of grant funds. scientific merit or priority scores. and Control, Centers for Disease Control Investigators should seek guidance from and Prevention (CDC), 4770 Buford VI. Award Administration Information their institutions, on issues related to Highway, NE, (K02), Atlanta, GA 1. Award Notices: If your application institutional policies, local IRB rules, as 30341–3724, Telephone: (770) 488– is to be funded, you will receive a well as local, state and Federal laws and 1430, E-mail: [email protected]. Notice of Grant Award (NGA) from the regulations, including the Privacy Rule. For financial, grants management, or CDC Procurement and Grants Office. Further detail on the requirements for budget assistance, contact: Van King, The NGA shall be the only binding, addressing data sharing in applications Grants Management Specialist, authorizing document between the for NCIPC funding may be obtained by Procurement and Grants Office, Centers recipient and CDC. The NGA will be contacting NCIPC program staff or for Disease Control and Prevention signed by an authorized Grants visiting the NCIPC Internet Web site: at (CDC), 2920 Brandywine Road, Atlanta, Management Officer, and mailed to the http://www.cdc.gov/ncipc/osp/ GA 30341, Telephone: (770) 488–2751, recipient fiscal officer identified in the sharing_policy.htm. E-mail: [email protected]. application. Additional information on these Dated: November 20, 2003. 2. Administrative and National Policy requirements can be found on the CDC Edward Schultz, Requirements: 45 CFR parts 74 and 92. web site at the following Internet For more information on the Code of address: http://www.cdc.gov/od/pgo/ Acting Director, Procurement and Grants Office, Centers for Disease Control and Federal Regulations, see the National funding/ARs.htm. Prevention. Archives and Records Administration at 3. Reporting: [FR Doc. 03–29526 Filed 11–25–03; 8:45 am the following Internet address: http:// You must provide CDC with an www.access.gpo.gov/nara/cfr/cfr-table- original, plus two copies of the BILLING CODE 4163–18–P search.html. following reports: 1. Interim progress report, (PHS 2590, The following additional DEPARTMENT OF HEALTH AND OMB Number 0925–0001, rev. 5/2001) requirements apply to this project: HUMAN SERVICES • AR–1 Human Subjects no less than 90 days before the end of Requirements the budget period. The progress report Centers for Disease Control and • AR–2 Requirements for Inclusion of will serve as your non-competing Prevention Women and Racial and Ethnic continuation application, and must Minorities in Research contain the following elements: National Institute for Occupational • AR–3 Animal Subjects a. Current Budget Period Activities Safety and Health Meeting Requirements Objectives. • b. Current Budget Period Financial The National Institute for AR–10 Smoke-Free Workplace Occupational Safety and Health Requirements Progress. • c. New Budget Period Program (NIOSH) announces the following AR–11 Healthy People 2010 meeting: • AR–12 Lobbying Restrictions Proposed Activity Objectives. d. Detailed Line-Item Budget and Name: NIOSH B Reader Certification • AR–13 Prohibition on Use of CDC Justification. Program: Looking to the Future. Funds for Certain Gun Control e. Additional Requested Information. Date and Time: 1–5 p.m., March 4, Activities 2. Financial status report, no more 2004. • AR–20 Conference Support than 90 days after the end of the budget Place: Fairfax Ballroom, Courtyard • AR–21 Small, Minority, and period. Marriott, 1960–A Chain Bridge Road, Women-Owned Business 3. Final financial and performance McLean, Virginia. • AR–22 Research Integrity Status: This meeting is hosted by • reports, no more than 90 days after the AR–25 Release and Sharing of Data end of the project period. NIOSH and will be open to the public, Starting with the December 1, 2003 limited only by the space available. The receipt date, all NCIPC funded VII. Agency Contacts meeting room will accommodate investigators seeking more than For general questions about this approximately 100 people. An $250,000 in total costs in a single year announcement, contact: Technical opportunity to provide comments are expected to include a plan Information Management Section, PA regarding the NIOSH B Reader Program describing how the final research data #04057, Procurement and Grants Office, will be given. will be shared/released or explain why Centers for Disease Control and Requests to make comments at this data sharing is not possible. Details on Prevention (CDC), 2920 Brandywine public meeting must be made by data sharing/release, including the Road, Atlanta, GA 30341, Telephone: completing the online registration form timeliness and name of the project data 770–488–2700. or by sending the completed form by fax steward, should be included in a brief For scientific/research program to (304) 285–6058. The registration form paragraph immediately following the technical assistance, contact: may also be obtained on the NIOSH Research Plan Section of the PHS 398 Tom Voglesonger, Program Manager, homepage at http://www.cdc.gov/niosh form. References to data sharing/release Office of the Associate Director for by selecting Conferences and then the may also be appropriate in other Science, National Center for Injury event, or by calling (304) 285–5724. All sections of the application (e.g. Prevention and Control, Centers for requests to speak should include the background and significance, human Disease Control and Prevention (CDC), name, mailing and e-mail addresses, subjects requirements, etc.) The content 4770 Buford Highway, NE, (K02), telephone number, relevant business of the data sharing/release plan will Atlanta, GA 30341–3724, Telephone: affiliations of the speaker, and a brief vary, depending on the data being (770) 488–4823, Email: [email protected]. outline of the content of the comments. collected and how the investigator is For questions about peer review, No audio-visual aids (other than a planning to share the data. The data contact: Gwendolyn Cattledge, PhD, microphone) will be available, however,

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speakers may wish to provide printed Under the U.S. Code of Federal experienced considerable advances in copies of their presentations for Regulations [42 CFR part 37], since knowledge, techniques, and distribution. Presentations will be 1970, chest radiographic examinations methodology. The B Reader strictly limited to a maximum of 5 have been provided to underground coal Certification Program has not been minutes. After reviewing all requests, miners at approximate five year substantially revised since its first NIOSH will notify each speaker of the intervals. As part of this mandated Coal development, and would benefit from order and approximate timing of the Workers’ Health Surveillance Program critical evaluation and modification in presentations. Speakers who are not (CWHSP), NIOSH arranges for the order to assure optimal test validity, ready when the preceding speaker has determination of the presence and reliability, and efficiency, and overall finished will be skipped, and the degree of dust-related changes on those effectiveness of the Program. In order for remaining speakers will be heard in films by physicians who have NIOSH to maintain the B Reader order. At the conclusion of the meeting, demonstrated proficiency in the ILO Program as a contemporary, relevant, as time permits, an attempt will be system. NIOSH developed and currently and effective quality assurance program made to include presentations by administers the B Reader Certification for the classification of chest scheduled speakers who missed their Program, a unique quality assurance radiographs for occupational lung assigned slot. Attendees who wish to program for training and certifying disease research and prevention, and to speak but did not submit a prior request physicians who classify chest assure the Program is adherent to the also may be given this opportunity at radiographs of pneumoconiosis. Under ILO 2000 system, ongoing refinements the conclusion of the meeting, at the this Program, physicians who wish to and modifications are required to the B discretion of the presiding officer. obtain B Reader Certification must Reader examinations and related Interested parties may make hotel successfully complete an extensive training activities and materials. This reservations directly with the Courtyard initial examination. To demonstrate open meeting is intended to serve as an Marriott, 1960–A Chain Bridge Road, ongoing competence and maintain important additional step in the McLean, VA, 22102, telephone, (703) certification, every four years each continuing evolution and improvement 790–0207, before the cut-off date of individual who passed the initial of the NIOSH B Reader Program. February 1, 2004. A special rate has examination must complete a FOR FURTHER INFORMATION CONTACT: been negotiated for meeting guests of recertification examination. Because the CWHSP, 1095 Willowdale Road, $150.00 per night. The NIOSH B Reader B Reader Certification Program Morgantown, West Virginia 26505– Meeting must be referenced to receive objectively documents proficiency in 2888, Telephone: (304) 285–6263/5724, these special rates. the evaluation of lung images for Comments on the topics presented in Fax: (304) 285–6058, E-mail: occupational disease, it has attained [email protected]. this notice and at the meeting should be high visibility in the U.S. and mailed to the NIOSH Docket Office, The Director, Management Analysis throughout the world. The Program Robert A. Taft Laboratories, M/S C34, and Services Office, has been delegated continues to have important impacts on 4676 Columbia Parkway, Cincinnati, the authority to sign Federal Register occupational lung disease research, Ohio 45226, telephone: (513) 533–8303, notices pertaining to announcements of surveillance, clinical practice, fax: (513) 533–8285. Comments may meetings and other committee regulation, and litigation. Numerous also be submitted by e-mail to management activities, for both the research studies and hazard evaluations [email protected]. E-mail Centers for Disease Control and have relied upon the classification of attachments should be formatted as Prevention and the Agency for Toxic chest radiographs by certified B Readers WordPerfect 6/7/8/9 or Microsoft Word. Substances and Disease Registry. as a useful health outcome in the Comments should be submitted no later Dated: November 21, 2003. than April 5, 2004, and should reference investigation and assessment of occupational health risks. State-based Alvin Hall, Docket Number NIOSH–015, B Reader Director, Management Analysis and Services Program, in the subject heading. surveillance programs have utilized B Reader classifications as a criterion for Office, Centers for Disease Control and Purpose: Chest radiographic imaging Prevention. is a widely applied and important tool identifying silicosis cases. The Occupational Safety and Health [FR Doc. 03–29630 Filed 11–25–03; 8:45 am] for assessing lung health in clinical BILLING CODE 4163–19–P medicine, research investigations, Administration (OSHA) asbestos hazard evaluations, and medical standard (§ 1910.1001, App. E) requires that roentgenograms be interpreted and monitoring of workers exposed to silica, DEPARTMENT OF HEALTH AND classified only by a B Reader, a board asbestos, coal, beryllium, and other HUMAN SERVICES dusts capable of producing occupational eligible/certified radiologist, or an pneumoconiosis. Valid reproducible experienced physician with known Food and Drug Administration categorization of chest radiographic expertise in pneumoconioses. OSHA images requires close adherence to also specifies B Readers and the ILO [Docket No. 2003N–0513] classification in its safety and health standard methods of radiograph Electronic Submissions of Food classification and adoption of standards for general industry (§ 1910.1001, App. E), construction Contact Notifications; Notice of Pilot procedures for quality assurance. The Project International Labour Office (ILO) (§ 1926.1101, App. E), and shipyard (Geneva) has for many years provided a employment (§ 1915.1001, App. E). AGENCY: Food and Drug Administration, standardized system for classification of The ILO, with NIOSH involvement HHS. chest radiographs for pneumoconiosis, and support, has recently completed a ACTION: Notice. including specification of procedures revision of the classification system for obtaining images. The ILO system (ILO 2000). Additionally, in the years SUMMARY: The Food and Drug has been widely used by physicians and since the development of the B Reader Administration (FDA) is seeking epidemiologic researchers in the Certification process, the field of volunteers to participate in the Food investigation of work-related respiratory professional competency testing, as well Contact Notification (FCN) Electronic hazards. as the field of radiology, have Submissions Pilot Project developed by

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the Office of Food Additive Safety submitted. In the Federal Register of for pagination and providing definitive (OFAS) in the Center for Food Safety May 21, 2002 (67 FR 35724), the agency locations within a set file structure for and Applied Nutrition (CFSAN). The issued a final rule on premarket each type of information, so that the purpose of the project is to test the notification for food contact substances agency in turn can more efficiently efficiency and practicality of a prototype (21 CFR 170.100 through 170.106). review the submission. Pilot procedure for filing FCNs in electronic The FCN process has improved the participants will be asked to use the format as an alternative to the current efficiency of the FDA premarket procedure and software tool to submit paper-based process. FDA believes that approval of new food contact FCNs electronically, and to provide this pilot will assist the agency in substances. More than 200 FCNs have feedback on the process to FDA. developing a draft guidance under its become effective since the process Because the process of receiving good guidance practice (GGP) began. FDA FORM 3480 currently electronic submissions will be under procedures. provides the format by which development during the pilot, FDA will DATES: Submit written requests to information submitted in an FCN is require that participants submit a signed participate in the pilot project by organized to facilitate review by the paper copy of each submission along December 26, 2003. Comments on this agency. In order to further improve the with the electronic version. The paper pilot project may be submitted at any efficiency of the FDA premarket copy will serve as the official copy time. The pilot is anticipated to last 180 approval of new food contact under existing regulations during the days beginning January 26, 2004. substances, FDA is developing a pilot project. FDA will provide written procedure to allow for the submission of instructions to individual participants ADDRESSES: Submit written requests to FCNs in electronic format. This on using the software tool, on participate and comments regarding the procedure includes the use of a software assembling and submitting an electronic pilot project to the Division of Dockets tool to assist a notifier in assembling an FCN, and on how to provide feedback. Management (HFA–305), Food and Drug FCN. The present pilot project Feedback from pilot participants will Administration, 5630 Fishers Lane, rm. represents the final phase of the assist the agency in improving the 1061, Rockville, MD 20852. Submit agency’s development of the software software tool and completing electronic comments to http:// tool for FCN submissions prior to FDA’s development of the procedure. www.fda.gov/dockets/ecomments. announcing the availability of such a FOR FURTHER INFORMATION CONTACT: tool and accompanying guidance in III. Comments Kenneth McAdams, Center for Food accordance with the agency’s GGPs Interested persons may submit to the Safety and Applied Nutrition (HFS– under 21 CFR 10.115. FDA is initiating Division of Dockets Management (see 275), Food and Drug Administration, this pilot to obtain useful feedback ADDRESSES) written or electronic 5100 Paint Branch Pkwy., College Park, during this initial phase in order to comments regarding this document. MD 20740–3835, 202–418–3392, e-mail: maximize efficiency and practicality of Submit a single copy of electronic [email protected], or the electronic submission process before comments or two paper copies of any Kimberly Smeds, Center for Food making it available to the general public mailed comments, except that Safety and Applied Nutrition (HFS– for comment. individuals may submit one paper copy. 275), Food and Drug Administration, After completion of the pilot, FDA Comments are to be identified with the 5100 Paint Branch Pkwy., College Park, expects to issue guidance to the public docket number found in brackets in the MD 20740–3835, 202–418–3424, e-mail: for the electronic filing of FCNs in heading of this document. Received [email protected]. accordance with GGPs under 21 CFR comments may be seen in the Division SUPPLEMENTARY INFORMATION: 10.115. of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday. I. Background II. Pilot Project Description Dated: November 19, 2003. In 1997, the Food and Drug Due to the fact that a limited number Administration Modernization Act of of voluntary participants will be needed Jeffrey Shuren, 1997 (FDAMA) amended section 409 of for the pilot, FDA will use its discretion Assistant Commissioner for Policy. the Federal Food, Drug, and Cosmetic in selecting the volunteers based on [FR Doc. 03–29462 Filed 11–25–03; 8:45 am] Act (the act) (21 U.S.C. 348) to establish their previous experience in filing FCNs BILLING CODE 4160–01–S a premarket notification process as the and on the number of FCNs they expect primary method for authorizing new to file during the pilot. The sponsors uses of food additives that are ‘‘food who participate in the pilot will be DEPARTMENT OF HEALTH AND contact substances.’’ A food contact asked to submit at least four FCNs in an HUMAN SERVICES substance is defined in section 409(h)(6) electronic format during the pilot, using Food and Drug Administration of the act as ‘‘any substance intended for the procedure being tested. Existing use as a component of materials used in regulatory requirements for the [Docket No. 2003E–0150] manufacturing, packing, packaging, submission of FCNs will not be waived, transporting, or holding food if such use suspended, or modified for the purposes Determination of Regulatory Review is not intended to have any technical of this pilot project. Period for Purposes of Patent effect in such food.’’ The act further The procedure uses an electronic Extension; ABILIFY states that the notification process is to fillable portable document format (PDF) AGENCY: Food and Drug Administration, be utilized for authorizing the marketing version of FDA FORM 3480 that serves HHS. of food contact substances except in as an organizational backbone to which ACTION: Notice. instances where the Secretary of Health notifiers may attach studies, data, and and Human Services determines that the other information in electronic format SUMMARY: The Food and Drug submission and review of a food via a software package provided by the Administration (FDA) has determined additive petition would be necessary to agency. It is designed to enable the the regulatory review period for provide adequate assurance of safety, or notifier to submit all the items that ABILIFY and is publishing this notice of where FDA and any manufacturer or constitute a complete FCN in a that determination as required by law. supplier agree that a petition may be prescribed structure, removing the need FDA has made the determination

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because of the submission of an and the Patent and Trademark Office investigation. (See H. Rept. 857, part 1, application to the Director of Patents requested FDA’s assistance in 98th Cong., 2d sess., pp. 41–42, 1984.) and Trademarks, Department of determining this patent’s eligibility for Petitions should be in the format Commerce, for the extension of a patent patent term restoration. In a letter dated specified in 21 CFR 10.30. that claims that human drug product. July 16, 2003, FDA advised the Patent Comments and petitions should be ADDRESSES: Submit written comments and Trademark Office that this human submitted to the Division of Dockets and petitions to the Division of Dockets drug product had undergone a Management. Three copies of any Management (HFA–305), Food and Drug regulatory review period and that the mailed information are to be submitted, Administration, 5630 Fishers Lane, rm. approval of ABILIFY represented the except that individuals may submit one 1061, Rockville, MD 20852. Submit first permitted commercial marketing or copy. Comments are to be identified electronic comments to http:// use of the product. Shortly thereafter, with the docket number found in www.fda.gov/dockets/ecomments. the Patent and Trademark Office brackets in the heading of this FOR FURTHER INFORMATION CONTACT: requested that FDA determine the document. Comments and petitions may Claudia V. Grillo, Office of Regulatory product’s regulatory review period. be seen in the Division of Dockets FDA has determined that the Policy (HFD–013), Food and Drug Management between 9 a.m. and 4 p.m., applicable regulatory review period for Administration, 5600 Fishers Lane, Monday through Friday. ABILIFY is 3,416 days. Of this time, Rockville, MD 20857, 240–453–6699. 3,035 days occurred during the testing Dated: October 30, 2003. SUPPLEMENTARY INFORMATION: The Drug phase of the regulatory review period, Jane A. Axelrad, Price Competition and Patent Term while 381 days occurred during the Associate Director for Policy, Center for Drug Restoration Act of 1984 (Public Law 98– approval phase. These periods of time Evaluation and Research. 417) and the Generic Animal Drug and were derived from the following dates: [FR Doc. 03–29464 Filed 11–25–03; 8:45 am] Patent Term Restoration Act (Public 1. The date an exemption under BILLING CODE 4160–01–S Law 100–670) generally provide that a section 505 of the Federal Food, Drug, patent may be extended for a period of and Cosmetic Act (the act) (21 U.S.C. up to 5 years so long as the patented 355) became effective: July 11, 1993. DEPARTMENT OF HEALTH AND item (human drug product, animal drug The applicant claims July 10, 1993, as HUMAN SERVICES product, medical device, food additive, the date the investigational new drug or color additive) was subject to application (IND) became effective. Food and Drug Administration regulatory review by FDA before the However, FDA records indicate that the item was marketed. Under these acts, a IND effective date was July 11, 1993, [FDA 225–03–8001] product’s regulatory review period which was 30 days after FDA receipt of forms the basis for determining the the IND. Memorandum of Understanding amount of extension an applicant may 2. The date the application was Between the Food and Drug receive. initially submitted with respect to the Administration and the Centers for A regulatory review period consists of human drug product under section 505 Disease Control two periods of time: A testing phase and of the act: October 31, 2001. FDA has AGENCY: an approval phase. For human drug Food and Drug Administration, verified the applicant’s claim that the HHS. products, the testing phase begins when new drug application (NDA) for the exemption to permit the clinical ABILIFY (NDA 21–436) was initially ACTION: Notice. investigations of the drug becomes submitted on October 31, 2001. effective and runs until the approval 3. The date the application was SUMMARY: The Food and Drug phase begins. The approval phase starts approved: November 15, 2002. FDA has Administration (FDA) is providing with the initial submission of an verified the applicant’s claim that NDA notice of a memorandum of application to market the human drug 21–436 was approved on November 15, understanding (MOU) between the Food product and continues until FDA grants 2002. and Drug Administration (FDA) and the permission to market the drug product. This determination of the regulatory Centers for Disease Control. The Although only a portion of a regulatory review period establishes the maximum purpose of the MOU is to provide a review period may count toward the potential length of a patent extension. framework for coordination and actual amount of extension that the However, the U.S. Patent and cooperation between the two agencies Director of Patents and Trademarks may Trademark Office applies several and to provide the principles and award (for example, half the testing statutory limitations in its calculations procedures by which information phase must be subtracted, as well as any of the actual period for patent extension. exchanges shall take place. time that may have occurred before the In its application for patent extension, DATES: The agreement became effective patent was issued), FDA’s determination this applicant seeks 5 years of patent June 19, 2003. of the length of a regulatory review term extension. FOR FURTHER INFORMATION CONTACT: Anyone with knowledge that any of period for a human drug product will Ellen F. Morrison, Emergency the dates as published are incorrect may include all of the testing phase and Operations Center (HFC–160), Food and submit to the Division of Dockets approval phase as specified in 35 U.S.C. Drug Administration, 5600 Fishers Management (see ADDRESSES) written 156(g)(1)(B). Lane, Rockville, MD 20857, 301–827– FDA recently approved for marketing comments and ask for a redetermination 5660. the human drug product ABILIFY by January 26, 2004. Furthermore, any (aripiprazole). ABILIFY is indicated for interested person may petition FDA for SUPPLEMENTARY INFORMATION: In the treatment of schizophrenia. a determination regarding whether the accordance with 21 CFR 20.108(c), Subsequent to this approval, the Patent applicant for extension acted with due which states that all written agreements and Trademark Office received a patent diligence during the regulatory review and MOUs between FDA and others term restoration application for period by May 24, 2004. To meet its shall be published in the Federal ABILIFY (U.S. Patent No. 5,006,528) burden, the petition must contain Register, the agency is publishing notice from Otsuka Pharmaceutical Co., Ltd., sufficient facts to merit an FDA of this MOU.

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Dated: November 13, 2003. Jeffrey Shuren, Assistant Commissioner for Policy. BILLING CODE 4160–01–S

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[FR Doc. 03–29497 Filed 11–25–03; 8:45 am] DEPARTMENT OF HEALTH AND availability of the guidance entitled BILLING CODE 4160–01–C HUMAN SERVICES ‘‘Bundling Multiple Devices or Multiple Indications in a Single Submission.’’ Food and Drug Administration This guidance describes FDA’s policy [Docket No. 2003D–0504] on bundling multiple devices or multiple indications in a single Medical Devices; Guidance for premarket submission. Under the Industry and FDA Staff; Bundling Medical Device User Fee and Multiple Devices or Multiple Modernization Act of 2002 (MDUFMA), Indications in a Single Submission; the bundling policy takes on additional Availability importance because of the fees that are AGENCY: Food and Drug Administration, now associated with certain HHS. submissions as well as the performance ACTION: Notice. goals the agency has committed to meet. The guidance is being issued as final for SUMMARY: The Food and Drug immediate implementation with an Administration (FDA) is announcing the

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opportunity for public comment on the forth performance goals and policy and 800–899–0381 or 301–827–0111 from a guidance after issuance. procedural provisions. One of these touch-tone telephone. Press 1 to enter DATES: Submit written or electronic provisions is entitled ‘‘Bundling Policy’’ the system. At the second voice prompt, comments on this guidance at any time. and states that FDA will consider, in press 1 to order a document. Enter the ADDRESSES: Submit written requests for consultation with its stakeholders, when document number (1215) followed by single copies on a 3.5′′ diskette of the bundling multiple devices in a single the pound sign (#). Follow the guidance document entitled ‘‘Bundling submission may be appropriate. (http:/ remaining voice prompts to complete Multiple Devices or Multiple /www.fda.gov/cdrh/mdufma/ your request. Indications in a Single Submission’’ to pgoals.html). Persons interested in obtaining a copy the Division of Small Manufacturers, This guidance describes FDA’s policy of the guidance document may also do on bundling multiple devices or so by using the Internet. CDRH International, and Consumer Assistance multiple indications in a single maintains an entry on the Internet for (HFZ–220), Center for Devices and premarket submission and is intended easy access to information including Radiological Health, Food and Drug to help FDA staff and industry text, graphics, and files that may be Administration, 1350 Piccard Dr., determine when bundling is downloaded to a personal computer Rockville, MD 20850. Send two self- appropriate. In developing this with Internet access. Updated on a addressed adhesive labels to assist that guidance, the agency has considered regular basis, the CDRH home page office in processing your request, or fax comments on the topic that were includes device safety alerts, Federal your request to 301–443–8818. See the submitted to the public docket on Register reprints, information on SUPPLEMENTARY INFORMATION section for MDUFMA Implementation (Docket No. premarket submissions (including lists information on electronic access to the 02N–0534). FDA has also included in of approved applications and guidance. the guidance many of the examples manufacturers’ addresses), small Submit written comments concerning provided by stakeholders. manufacturer’s assistance, information this guidance to the Dockets on video conferencing and electronic Management Branch (HFA–305), Food II. Significance of Guidance submissions, Mammography Matters, and Drug Administration, 5630 Fishers This guidance document supersedes and other device-oriented information. Lane, rm. 1061, Rockville, MD 20852. Section V, ‘‘Bundling Multiple Devices The CDRH web site may be accessed at Submit electronic comments to http:// in a Single Application’’ of the February http://www.fda.gov/cdrh. A search www.fda.gov/dockets/ecomments. 2003 guidance entitled, ‘‘Assessing User capability for all CDRH guidance Identify comments with the docket Fees: PMA Supplement Definitions, documents is available at http:// number found in brackets in the Modular PMA Fees, BLA and Efficacy www.fda.gov/cdrh/guidance.html. heading of this document. Supplement Definitions, Bundling Guidance documents are also available FOR FURTHER INFORMATION CONTACT: Multiple Devices in a Single on the Dockets Management Branch For device evaluation issues: Bob Application, and Fees for Combination Internet site at http://www.fda.gov/ Gatling, Office of Device Products; Guidance for Industry and ohrms/dockets. Evaluation, Center for Devices and FDA.’’ FDA announced the availability Radiological Health (HFZ–404), of that guidance in the Federal Register IV. Paperwork Reduction Act of 1995 Food and Drug Administration, of February 25, 2003 (68 FR 8773). As This guidance document contains 9200 Corporate Blvd., Rockville, discussed above, FDA reviewed the information collection provisions that MD 20850, 301–594–1190, ext. 140. comments received on the issue of are subject to review by the Office of For in vitro diagnostic device issues: bundling. FDA also invites comments Management and Budget (OMB) under Sousan Altaie, Office of In Vitro on this guidance document (see section the Paperwork Reduction Act of 1995 Diagnostic Device Evaluation and V of this document). (44 USC 3501–3520) (the PRA). The Safety, Center for Devices and This guidance document is being collections of information addressed in Radiological Health (HFZ–440), issued consistent with FDA’s good the guidance document have been Food and Drug Administration, guidance practices regulation (21 CFR approved by OMB in accordance with 9200 Corporate Blvd., Rockville, 10.115). The guidance represents the the PRA under the regulations MD 20850, 301–594–3084, ext. 145. agency’s current thinking on bundling governing premarket notification For biologics issues: Sheryl Kochman, multiple devices or multiple indications submissions (21 CFR part 807, subpart Center for Biologics Evaluation and in a single premarket submission. It E), OMB No. 0910–0120 and premarket Research (HFM–390), Food and does not create or confer any rights for approval applications (21 CFR part 814), Drug Administration, 1401 or on any person and does not operate OMB No. 0910–0231. Rockville Pike, Rockville, MD to bind FDA or the public. You can use V. Comments 20852–1448, 301–827–6123 an alternative approach if the approach SUPPLEMENTARY INFORMATION: satisfies the requirements of the Interested persons may submit to the applicable statutes and regulations. If Dockets Management Branch (HFA– I. Background you want to discuss an alternative 305), Food and Drug Administration, MDUFMA amended the Federal Food, approach, contact the FDA staff 5630 Fishers Lane, rm. 1061, Rockville, Drug, and Cosmetic Act by authorizing responsible for implementing this MD 20852, written or electronic FDA to collect user fees for certain guidance. If you cannot identify the comments regarding this document. premarket submissions (premarket appropriate FDA staff, call one of the Submit a single copy of electronic approval applications, premarket numbers listed above or on the title page comments to http://www.fda.gov/ reports, supplements, premarket of the guidance document. dockets/ecomments. Submit two hard notifications, biologics license copies of any mailed comments, except applications, and efficacy supplements) III. Electronic Access that individuals may submit one copy. received on or after October 1, 2002. A To receive ‘‘Bundling Multiple Comments are to be identified with the letter from the Secretary of Health and Devices or Multiple Indications in a docket number found in brackets in the Human Services to Congress that Single Submission’’ by fax machine, call heading of this document. Comments accompanies the user fee legislation sets the CDRH Facts-On-Demand system at received may be seen in the Dockets

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Management Branch between 9 a.m. and Submit written comments concerning expedite the review of PDPs, 510(k)s, 4 p.m., Monday through Friday. FDA this guidance to the Division of Dockets and de novo classification actions. will review any comments we receive Management (HFA–305), Food and Drug Because the agency had to implement and revise the guidance document when Administration, 5630 Fishers Lane, rm. its program for meeting the expedited appropriate. 1061, Rockville, MD 20852. Submit review performance goals as soon as the Dated: November 19, 2003. electronic comments to http:// new law became effective. FDA has determined, under §10.115(g)(2) (21 Jeffrey Shuren, www.fda.gov/dockets/ecomments. Identify comments with the docket CFR 10.115(g)(2)), that it was not Assistant Commissioner for Policy. number found in brackets in the feasible to obtain comments before [FR Doc. 03–29461 Filed 11–25–03; 8:45 am] heading of this document. issuing this guidance. Therefore, in BILLING CODE 4160–01–S FOR FURTHER INFORMATION CONTACT: accordance with FDA’s GGP procedures, For questions regarding PMAs: Thinh FDA is issuing this as a level 1 guidance Nguyen, Center for Devices and that is immediately in effect and will DEPARTMENT OF HEALTH AND accept comments on the guidance at any HUMAN SERVICES Radiological Health (HFZ–402), 9200 Corporate Blvd., Rockville, time. Food and Drug Administration MD 20850, 301–594–2186. II. Significance of Guidance For questions regarding 510(k)s, This guidance is being issued [Docket No. 1998D–0173] including the evaluation of consistent with FDA’s good guidance automatic class III designation: practices regulation (§10.115). The Guidance for Industry and FDA Staff: Heather Rosecrans, Center for guidance represents the agency’s current Expedited Review of Premarket Devices and Radiological Health thinking on procedures for expedited Submissions for Devices; Availability (HFZ–402), 9200 Corporate Blvd., review of PMAs, given the enhanced Rockville, MD 20850, 301–594– PMA performance goals for expedited AGENCY: Food and Drug Administration, 1190. HHS. applications. The guidance also For questions regarding devices discusses the expedited review ACTION: Notice. regulated by the Center for Biologics procedures for 510(k)s, PDPs, and de Evaluation and Research: Sayah SUMMARY: The Food and Drug novo classification actions. It does not Nedjar, Center for Biologics create or confer any rights for or on any Administration (FDA) is announcing the Evaluation and Research (HFM– availability of the guidance entitled person and does not operate to bind 380), Food and Drug FDA or the public. An alternative ‘‘Expedited Review of Premarket Administration, 1401 Rockville Submissions for Devices.’’ This approach may be used if such approach Pike, Rockville, MD 20852, 301– satisfies the requirements of the guidance describes how the agency is 827–3524. applying the statutory criteria and the applicable statutes and regulations. SUPPLEMENTARY INFORMATION: additional criteria identified in a letter III. Electronic Access accompanying the user fee legislation to I. Background To receive ‘‘Expedited Review of meet the new performance goals for In the Federal Register of March 31, Premarket Submissions for Devices’’ by expedited premarket approval 1998 (63 FR 15427), FDA issued a fax machine, call the CDRH Facts-On- applications (PMAs). This guidance also guidance entitled ‘‘PMA/510(k) Demand system at 800–899–0381 or describes FDA’s expedited review Expedited Review Guidance for 301–827–0111 from a touch-tone procedures for premarket notification Industry and the Center for Devices and telephone. Press 1 to enter the system. submissions (510(k)s), product Radiological Health (CDRH) Staff’’ in At the second voice prompt, press 1 to development protocols (PDPs), and de which the agency outlined its order a document. Enter the document novo classification actions. This interpretation of the statutory criteria for number (108) followed by the pound guidance document is immediately in expedited review of PMAs. No sign (#). Follow the remaining voice effect, but it remains subject to comment comments were received on the prompts to complete your request. in accordance with the agency’s good guidance. Persons interested in obtaining a copy guidance practices (GGPs). The Medical Device User Fee and of the guidance may also do so by using DATES: Submit written or electronic Modernization Act of 2002 (MDUFMA) the Internet. CDRH maintains an entry comments on this guidance at any time. (Public Law 107–250), was signed into on the Internet for easy access to General comments on agency guidance law on October 26, 2002. Performance information including text, graphics, documents are welcome at any time. goals for expedited PMAs were and files that may be downloaded to a ADDRESSES: Submit written requests for referenced in the statute and apply to personal computer with Internet access. single copies on a 3.5’’ diskette of the such applications when newly Updated on a regular basis, the CDRH guidance document entitled ‘‘Expedited identified criteria are met by the home page includes device safety alerts, Review of Premarket Submissions for applicant (http://www.fda.gov/cdrh/ Federal Register reprints, information Devices’’ to the Division of Small mdufma/pgoals.html). The new on premarket submissions (including Manufacturers, International, and guidance entitled ‘‘Expedited Review of lists of approved applications and Consumer Assistance (HFZ–220), Center Premarket Submissions for Devices’’ manufacturers’ addresses), small for Devices and Radiological Health, supersedes and replaces the 1998 manufacturer’s assistance, information Food and Drug Administration, 1350 guidance document and explains the on video conferencing and electronic Piccard Dr., Rockville, MD 20850. Send procedures that FDA intends to use to submissions, Mammography Matters, two self-addressed adhesive labels to review and track expedited PMA and other device-oriented information. assist that office in processing your applications against the MDUFMA The CDRH web site may be accessed at request, or fax your request to 301–443– performance goals when the PMA http://www.fda.gov/cdrh. A search 8818. See the SUPPLEMENTARY applicant meets the additional criteria. capability for all CDRH guidance INFORMATION section for information on The new guidance also explains the documents is available at http:// electronic access to the guidance. procedures that FDA plans to use to www.fda.gov/cdrh/guidance.html.

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Guidance documents are also available DEPARTMENT OF HEALTH AND Secretary, by contract, provide for the on the Division of Dockets Management HUMAN SERVICES establishment and operation of an Organ Internet site at http://www.fda.gov/ Procurement and Transplantation ohrms/dockets. Health Resources and Services Network (OPTN). The OPTN, among Administration other responsibilities, operates and IV. Paperwork Reduction Act of 1995 maintains a national waiting list of Agency Information Collection This guidance contains information individuals requiring organ transplants, Activities: Proposed Collection: maintains a computerized system for collection provisions that are subject to Comment Request matching donor organs with transplant review by the Office of Management and candidates on the waiting list, and Budget (OMB) under the Paperwork In compliance with the requirement for opportunity for public comment on operates a 24-hour telephone service to Reduction Act of 1995 (44 U.S.C. 3501– proposed data collection projects facilitate matching organs with 3520) (the PRA). The collections of (section 3506(c)(2)(A) of Title 44, United individuals included in the list. information addressed in the guidance States Code, as amended by the document have been approved by OMB Data for the OPTN data system are Paperwork Reduction Act of 1995, Pub. collected from transplant hospitals, in accordance with the PRA under the L. 104–13), the Health Resources and organ procurement organizations, and regulations for premarket approval Services Administration (HRSA) tissue-typing laboratories. The applications (21 CFR part 814, OMB publishes periodic summaries of information is used to match donor control number 0910–0231) and the proposed projects being developed for organs with recipients, to monitor regulations for premarket notification submission to OMB under the compliance of member organizations submissions (21 CFR part 807, OMB Paperwork Reduction Act of 1995. To with OPTN rules and requirements, and control number 0910–0120). request more information on the to report periodically on the clinical and proposed project or to obtain a copy of V. Comments scientific status of organ donation and the data collection plans and draft transplantation in this country. Data are Interested persons may submit to the instruments, call the HRSA Reports used in the development and revision of Division of Dockets Management (see Clearance Officer on (301) 443–1129. OPTN rules and requirements, operating Comments are invited on: (a) Whether ADDRESSES) written or electronic procedures, and standards of quality for the proposed collection of information comments regarding this document. organ acquisition and preservation, is necessary for the proper performance some of which have provided the Submit a single copy of electronic of the functions of the agency, including comments to http://www.fda.gov/ foundation for development of Federal whether the information shall have regulations. The practical utility of the dockets/ecomments or two paper copies practical utility; (b) the accuracy of the of any mailed comments, except that data collection is further enhanced by agency’s estimate of the burden of the requirements that the OPTN data must individuals may submit one paper copy. proposed collection of information; (c) Comments are to be identified with the be made available without restriction for ways to enhance the quality, utility, and use by OPTN members, the Scientific docket number found in brackets in the clarity of the information to be Registry of Transplant Recipients, the heading of this document. Received collected; and (d) ways to minimize the Department of Health and Human comments may be seen in the Division burden of the collection of information Services, and others for evaluation, of Dockets Management between 9 a.m. on respondents, including through the research, patient information, and other use of automated collection techniques and 4 p.m., Monday through Friday. important purposes. or other forms of information Dated: November 19, 2003. technology. Revisions in the 28 data collection Jeffrey Shuren, forms and addition of 2 survey Assistant Commissioner for Policy. Proposed Project: Data System for instruments are intended to clarify Organ Procurement and [FR Doc. 03–29463 Filed 11–25–03; 8:45 am] existing questions, to provide additional Transplantation Network and BILLING CODE 4160–01–S detail and categories to avoid confusion Associated Forms (OMB No. 0915– and be more inclusive, to remove 0157): Revision obsolete data, and to comply with Section 372 of the Public Health requests for more complete and precise Service (PHS) Act requires that the data.

ESTIMATES OF ANNUALIZED HOUR BURDEN

Responses Form Number of re- per respond- Total re- Hours per re- Total burden spondents ents sponses sponse hours

Deceased Donor Registration ...... 59 173 10,207 0.3 3,062.10 Death referral data ...... 59 12 708 10 7,080.00 Living Donor Registration ...... 692 10 6,920 0.2 1,384.00 Living Donor Followup ...... 692 19 13,148 0.1 1,314.80 Donor Histocompatibility ...... 152 87 13,224 0.1 1,322.40 Recipient Histocompatibility ...... 152 163 24,776 0.1 2,477.60 Heart Candidate Registration ...... 139 23 3,197 0.3 959.10 Lung Candidate Registration ...... 70 28 1,960 0.3 588.00 Heart/Lung Candidate Registration ...... 72 1 72 0.3 21.60 Thoracic Registration ...... 139 24 3,336 0.3 1,000.80 Thoracic Followup ...... 139 174 24,186 0.2 4,837.20 Kidney Candidate Registration ...... 247 109 26,923 0.2 5,384.60 Kidney Registration ...... 247 65 16,055 0.3 4,816.50 Kidney Followup * ...... 247 493 121,771 0.2 24,354.20

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ESTIMATES OF ANNUALIZED HOUR BURDEN—Continued

Responses Form Number of re- per respond- Total re- Hours per re- Total burden spondents ents sponses sponse hours

Liver Candidate Registration ...... 123 82 10,086 0.2 2,017.20 Liver Registration ...... 123 46 5,658 0.4 2,263.20 Liver Follow-up ...... 123 299 36,777 0.3 11,033.10 Kidney/Pancreas Candidate Registration ...... 139 12 1,668 0.2 333.60 Kidney/Pancreas Registration ...... 139 7 973 0.4 389.20 Kidney/Pancreas Follow-up ...... 139 64 8,896 0.3 2,668.80 Pancreas Candidate Registration ...... 139 7 973 0.2 194.60 Pancreas Registration ...... 139 4 0.3 166.80 556 Pancreas Follow-up ...... 139 20 2,780 0.2 556.00 Intestine Candidate Registration ...... 44 5 220 0.2 44.00 Intestine Registration ...... 44 3 132 0.2 26.40 Intestine Follow-up ...... 44 8 352 0.2 70.40 Immunosuppression Treatment ...... 692 38 26,296 0.025 657.40 Immunosuppression Treatment Follow-up ...... 692 281 194,452 0.025 4,861.30 Post Transplant Malignancy ...... 692 5 3,460 0.05 173.00 Annual Unet Satisfaction Survey ...... 750 1 750 0.03 22.50 Annual Organ Center Satisfaction Survey ...... 750 1 750 0.03 22.50

Total ...... 903 ...... 561,262 ...... 84,102.90 Includes an estimated 6,000 kidney transplant patients transplanted prior to the initiation of the data system

Send comments to Susan G. Queen, Services Administration (HRSA) Proposed Project: The Organ Ph.D., HRSA Reports Clearance Officer, publishes periodic summaries of Procurement and Transplantation Room 1445, Parklawn Building, 5600 proposed projects being developed for Network—New Fishers Lane, Rockville, MD 20857. submission to OMB under the The operation of the Organ Written comments should be received Paperwork Reduction Act of 1995. To Procurement and Transplantation within 60 days of this notice. request more information on the Network (OPTN) necessitates certain Dated: November 19, 2003. proposed project or to obtain a copy of recordkeeping and reporting Tina M. Cheatham, the data collection plans and draft requirements in order to perform the Acting Director, Division of Policy Review instruments, call the HRSA Reports functions related to organ and Coordination. Clearance Officer at (301) 443–1129. transplantation under contract to HHS. [FR Doc. 03–29465 Filed 11–25–03; 8:45 am] Comments are invited on: (a) Whether OMB requires review and approval of BILLING CODE 4165–15–P the proposed collection of information certain information collection is necessary for the proper performance requirements associated with the Final of the functions of the agency, including Rule that were not included in previous DEPARTMENT OF HEALTH AND whether the information shall have clearance requests. This is a request for HUMAN SERVICES practical utility; (b) the accuracy of the approval of record keeping and reporting requirements associated with agency’s estimate of the burden of the Health Resources and Services the processes for filing appeals in the proposed collection of information; (c) Administration case where applicants are rejected for ways to enhance the quality, utility, and membership or designation. To date, no Agency Information Collection clarity of the information to be appeals have been filed, and any Activities: Proposed Collection; collected; and (d) ways to minimize the forthcoming burden requirements for Comment Request burden of the collection of information this process will be minimal. In the In compliance with the requirement on respondents, including through the event of an appeal, the estimate of for the opportunity for public comment use of automated collection techniques burden for this process consists of on proposed data collection projects or other forms of information preparing a letter requesting (section 3506(c)(2)(A) of Title 44, United technology. reconsideration and compiling States Code, as amended by the supporting documentation. Paperwork Reduction Act of 1995, Pub. The estimated annual response L. 104–13), the Health Resources and burden is as follows:

Responses Burden hour Section Number of re- per respond- Total re- per respond- Total burden spondents ent sponses ent hour

42 CFR 121.3(b)(4) Appeal for OPTN membership ...... 2 1 2 3 6 42 CFR 121.9(d) Appeal for designation ...... 2 1 2 6 12

Total ...... 4 ...... 4 ...... 18

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Send comments to Susan G. Queen, mutational studies inventors concluded DEPARTMENT OF HEALTH AND Ph.D., HRSA Reports Clearance Officer, that the active form of geldanamycin HUMAN SERVICES Room 14–45, Parklawn Building, 5600 interacting with heat shock protein 90 Fishers Lane, Rockville, MD 20857. (Hsp90) has the amid bond in cis- National Institutes of Health Written comments should be received configuration, which is energetically National Eye Institute; Notice of Closed within 60 days of this notice. less stable than in trans-configuration. Meeting Dated: November 19, 2003. Using computer-modeling investigators Tina M. Cheatham, have further demonstrated that methyl Pursuant to section 10(d) of the Acting Director, Division of Policy Review substitution at the N22 position of Federal Advisory Committee Act, as and Coordination. geldanamycin stabilizes the cis- amended (5 U.S.C. Appendix 2), notice [FR Doc. 03–29466 Filed 11–25–03; 8:45 am] derivatives of geldanamycin. These is hereby given of the following BILLING CODE 4165–15–P compounds are currently being meeting. synthesized at NCI. These compounds The meeting will be closed to the are expected to have an increased public in accordance with the DEPARTMENT OF HEALTH AND binding to and inhibition of Hsp90. discussions could disclose confidential HUMAN SERVICES Inhibition of Hsp90 is being investigated trade secrets or commercial property in the treatment of many cancers. such as patentable material, and National Institutes of Health personal information concerning Degradation and Transcriptional individuals associated with the grant Government-Owned Inventions; Inhibition of HIF-2alpha Protein by 17– applications, the disclosure of which Availability for Licensing AAG would constitute a clearly unwarranted AGENCY: National Institutes of Health, invasion of personal privacy. Jennifer Isaacs, Leonard Neckers Public Health Service, DHHS. Name of Committee: National Eye Institute (NCI). ACTION: Notice. Special Emphasis Panel. U.S. Provisional Patent Application Date: December 9, 2003. SUMMARY: The inventions listed below No. 60/508,795 filed 03 Oct 2003 (DHHS Time: 8:30 a.m. to 5 p.m. are owned by an agency of the U.S. Reference No. E–064–2003/0–US–01). Agenda: To review and evaluate grant applications. Government and are available for Licensing Contact: George Pipia; 301/ licensing in the U.S. in accordance with Place: Hilton Crystal City, 2399 Jefferson 435–5560; [email protected]. Davis Hwy., Arlington, VA 22202. 35 U.S.C. 207 to achieve expeditious The technology is directed to the use Contact Person: Jeanette M Hosseini, PhD, commercialization of results of Scientific Review Administrator, Division of federally-funded research and of 17-allylaminogeldanamycin (17– Extramural Research, National Eye Institute, development. Foreign patent AAG) and, by analogy, other Bethesda, MD 20892, (301) 451–2020. geldanamycin derivatives to inhibit the applications are filed on selected (Catalogue of Federal Domestic Assistance inventions to extend market coverage activity of hypoxia inducible factor-2a Program Nos. 93.867, Vision Research, for companies and may also be available (HIF–2a). HIF–2a is thought to play an National Institutes of Health, HHS) for licensing. important role in tumor growth in the Dated: November 19, 2003. ADDRESSES: Licensing information and lung and endothelium, and is LaVerne Y. Stringfield, copies of the U.S. patent applications overexpressed in a majority of renal Director, Office of Federal Advisory listed below may be obtained by writing carcinomas. Accordingly, the Committee Policy. to the indicated licensing contact at the technology suggests the use of 17–AAG [FR Doc. 03–29478 Filed 11–25–03; 8:45 am] Office of Technology Transfer, National and other geldanamycin derivatives to BILLING CODE 4140–01–M Institutes of Health, 6011 Executive reduce levels of HIF–2a in cells that Boulevard, Suite 325, Rockville, overexpress the protein, for example to Maryland 20852–3804; telephone: 301/ treat cancer. According to the lead DEPARTMENT OF HEALTH AND 496–7057; fax: 301/402–0220. A signed inventor, HIF–2a plays a central role HUMAN SERVICES Confidential Disclosure Agreement will behind the mechanism of action of be required to receive copies of the geldanamycin in renal cancer. The National Institutes of Health patent applications. inventors also predict that certain National Institute of Child Health and geldanamycin derivatives will have Geldanamycin Derivatives With Methyl Human Development; Notice of Substituted Hydrogen Atom at the N22 therapeutic benefit in tumors Meeting Position as Anti Cancer Agents overexpressing HIF–2a, and that those Yong-Sok Lee, Leonard Neckers, derivatives could also find therapeutic Pursuant to section 10(d) of the Monica Marcu (NCI). utility in clinical conditions involving Federal Advisory Committee Act, as U.S. Provisional Patent Application hypervascularization. amended (5 U.S.C. Appendix 2), notice is hereby given of the following No. 60/508,752 filed 03 Oct 2003 (DHHS Dated: November 13, 2003. meeting. Reference Nos. E–169–2003/0–US–01). Steven M. Ferguson, Licensing Contact: George Pipia; 301/ The meeting will be open to the 435–5560; [email protected]. Director, Division of Technology Development public, with attendance limited to space This invention is directed to an N22- and Transfer, Office of Technology Transfer, available. Individuals who plan to National Institutes of Health. methyl substituted derivatives of attend and need special assistance, such geldanamycin. Modeling studies have [FR Doc. 03–29492 Filed 11–25–03; 8:45 am] as sign language interpretation or other shown that providing a methyl BILLING CODE 4140–01–P reasonable accommodations, should substituent in the N22 position of notify the Contract Person listed below geldanamycin derivatives stabilizes the in advance of the meeting. cis-conformation of the compounds. Name of Committee: National Children’s From computer modeling and Study Advisory Committee.

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Date: December 15–16, 2003. Contact Person: Jon M. Ranhand, PhD., Dated: November 19, 2003. Time: 8:30 a.m. to 5 p.m. Scientific Review Administrator, Scientific LaVerne Y. Stringfield, Agenda: The goal of the meeting is to have Review Program, National Institute of Child Director, Office of Federal Advisory Advisory committee members work with co- Health and Human Development NIH, 6100 Committee Policy. chairs of working groups within thematic Executive Blvd., Room 5E03, Bethesda, MD [FR Doc. 03–29476 Filed 11–25–03; 8:45 am] areas to discuss concerns, answer questions, 20892, 301 435–6884, increase specificity about exposures and how BILLING CODE 4140–01–M (Catalogue of Federal Domestic Assistance measured, increase specificity about Program Nos. 93.8864, Population Research; outcomes and how measured, and to identify gaps in hypothesis. 93.865, Research for Mothers and Children; DEPARTMENT OF HEALTH AND Place: Sheraton Atlanta Hotel, 165 93.929, Center for Medical Rehabilitation HUMAN SERVICES Courtland Street, Atlanta, GA 30303. Research; 93.209, Contraception and Contact Person: Jan Leahey, Executive Infertility Loan Repayment Program, National National Institutes of Health Secretary, National Institute of Child Health Institutes of Health, HHS) and Human Development, NIH, 6100 Dated: November 19, 2003. National Institute on Aging; Notice of Executive Boulevard, Room 7A07, Bethesda, LaVerne Y. Stringfield, Closed Meetings MD 20892, (301) 435–8867, [email protected]. Director, Office of Federal Advisory Pursuant to section 10(d) of the Committee Policy. (Catalogue of Federal Domestic Assistance Federal Advisory Committee Act, as Program Nos. 93.864, Population Research; [FR Doc. 03–29474 Filed 11–25–03; 8:45 am] amended (5 U.S.C. Appendix 2), notice 93.865, Research for Mothers and Children; BILLING CODE 4140–01–M is hereby given of the following 92.929, Center for Medical Rehabilitation meetings. Research; 93.209, Contraception and The meetings will be closed to the Infertility Loan Repayment Program, National DEPARTMENT OF HEALTH AND public in accordance with the Institutes of Health, HHS) HUMAN SERVICES provisions set forth in sections Dated: November 19, 2003. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., National Institutes of Health LaVerne Y. Stringfield, as amended. The grant applications and the discussions could disclose Director, Office of Federal Advisory National Institute of Allergy and Committee Policy. confidential trade secrets or commercial Infectious Diseases; Notice of Closed property such as patentable material, [FR Doc. 03–29473 Filed 11–25–03; 8:45 am] Meeting and personal information concerning BILLING CODE 4140–01–M individuals associated with the grant Pursuant to section 10(d) of the applications, the disclosure of which Federal Advisory Committee Act, as DEPARTMENT OF HEALTH AND would constitute a clearly unwarranted amended (5 U.S.C. Appendix 2), notice invasion of personal privacy. HUMAN SERVICES is hereby given of the following meeting. Name of Committee: National Institute on National Institutes of Health Aging Special Emphasis Panel, Leptin The meeting will be closed to the Resistance in Age-Related Obesity. National Institute of Child Health and public in accordance with the Date: December 3–4, 2003. Human Development; Notice of Closed provisions set forth in sections 552(c)(4) Time: 6 p.m. to 5 p.m. Meeting and 552b(c)(6), Title 5 U.S.C. as Agenda: To review and evaluate grant amended. The grant applications and applications. Place: Holiday Inn Chevy Chase, 5520 Pursuant to section 10(d) of the the discussions could disclose Federal advisory Committee Act, as Wisconsin Avenue, Chevy Chase, MD 20815. confidential trade secrets or commercial Contact Person: Alessandra M. Bini, PhD, amended (5 U.S.C. Appendix 2), notice property such as patentable material, Health Scientist Administrator, Scientific is hereby given of the following and personal information concerning Review Office, National Institute on Aging, meeting. individuals associated with the grant National Institutes of Health, Room 2C212, The meeting will be closed to the applications, the disclosure of which 7201 Wisconsin Avenue, Bethesda, MD public in accordance with the would constitute a clearly unwarranted 20814, 301–402–7708. This notice is being published less than 15 provisions set forth in sections invasion of personal privacy. days prior to the meeting due to the timing 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Name of Committee: National Institute of limitations imposed by the review and as amended. The grant applications and Allergy and Infectious diseases Special funding cycle. the discussions could disclose Emphasis Panel, Biodefense and Emerging Name of Committee: National Institute on confidential trade secrets or commercial Infectious Diseases Research Opportunities— Aging Special Emphasis Panel, IGF–1 and property such as patentable material, SARS. Aging. and personal information concerning Date: December 17, 2003. Date: December 4–5, 2003. individuals associated with the grant Time: 8 a.m. to 7 p.m. Time: 6 p.m. to 5 p.m. applications, the disclosure of which Agenda: To review and evaluate grant Agenda: To review and evaluate grant applications. applications. would constitute a clearly unwarranted Place: The Penn Stater Conference Center Place: Latham Hotel, 3000 M Street, NW., invasion of personal privacy. Hotel, 215 Innovation Boulevard, State Washington, DC 20007. Name of Committee: National Institute of College, PA 16803. Contact Person: Eleazar Cohen, PhD, Child Health and Human Development Contact Person: William Cruce, PhD, Scientific Review Administrator, Scientific Special Emphasis Panel, DR. DON P. WOLF Health Scientist Administrator, Scientific review program, NIAID/NIH, 6700B P01—CHARACTERIZATION OF PRIMATE Review Office, National Institute on Aging, PILURIPOTENT CELLS. Rockledge Drive, Rm 2220, Bethesda, MD National Institutes of Health, Room 2C212, Date: December 15, 2003. 20892, 301–496–2550, [email protected]. 7201 Wisconsin Avenue, Bethesda, MD Time: 8:30 a.m. to 5 p.m. (Catalogue of Federal Domestic Assistance 20814, 301–402–7704, [email protected]. Agenda: To review and evaluate grant Program Nos. 93.855, Allergy, Immunology, This notice is being published less than 15 applications. and Transplantation Research; 93.856, days prior to the meeting due to the timing Place: Holiday Inn Select Bethesda, 8120 Microbiology and Infectious Diseases limitations imposed by the review and Wisconsin Ave., Bethesda, MD 20814. Research, National Institutes of Health, HHS) funding cycle.

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Name of Committee: National Institute on amended (5 U.S.C. Appendix 2), notice applications, the disclosure of which Aging Special Emphasis Panel, Survival. is hereby given of the following would constitute a clearly unwarranted Date: December 15–16, 2003. meeting. invasion of personal privacy. Time: 5 p.m. to 5 p.m. The meeting will be closed to the Agenda: To review and evaluate grant Name of Committee: National Institute of applications. public in accordance with the Environmental Health Sciences Special Place: Hyatt Regency Bethesda, One provisions set forth in sections Emphasis Panel, Review of Institutional Bethesda Metro Center, 7400 Wisconsin 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Training Applications (T32s). Avenue, Bethesda, MD 20814. as amended. The grant applications and Date: December 17, 2003. Contact Person: Alicja L. Markowska, PhD, the discussions could disclose Time: 1 p.m. to 2 p.m. DSC, Health Scientist Administrator, confidential trade secrets or commercial Agenda: To review and evaluate grant Scientific Review Office, National Institute property such as patentable material, applications. on Aging, National Institutes of Health, Room and personal information concerning Place: NIEHS/National Institutes of Health, 2C212, 7201 Wisconsin Avenue, Bethesda, Building 4401, East Campus, 79 T.W. MD 20814, 301–402–7703, individuals associated with the grant Alexander Drive, Research Triangle Park, NC [email protected]. applications, the disclosure of which 27709, (Telephone Conference Call). This notice is being published less than 15 would constitute a clearly unwarranted Contact Person: Leroy Worth, PhD, days prior to the meeting due to the timing invasion of personal privacy. Scientific Review Administrator, Scientific limitations imposed by the review and Name of Committee: National Institute of Review Branch, Division of Extramural funding cycle. Allergy and Infectious Diseases Special Research and Training, Nat. Institute of (Catalogue of Federal Domestic Assistance Emphasis Panel, Vaccine Development and Environmental Health Sciences, P.O. Box Program Nos. 93.866, Aging Research, Immunity: Adjuvants and TLR. 12233, MD EC–30/Room 3171, Research National Institutes of Health, HHS) Date: December 16, 2003. Triangle Park, NC 27709, 919/541–0670, Dated: November 19, 2003. Time: 1:30 p.m. to 4:30 p.m. [email protected]. LaVerne Y. Stringfield, Agenda: To review and evaluate grant (Catalogue of Federal Domestic Assistance applications. Director, Office of Federal Advisory Program Nos. 93.115, Biometry and Risk Place: 6700–B Rockledge Drive, 3134, Committee Policy. Estimation—Health Risks from Bethesda, MD 20892, (Telephone Conference Environmental Exposures; 93.142, NIEHS [FR Doc. 03–29477 Filed 11–25–03; 8:45 am] Call). Hazardous Waste Worker Health and Safety BILLING CODE 4140–01–M Contact Person: Nancy B. Saunders, PhD, Training; 93.143, NIEHS Superfund Scientific Review Administrator, Scientific Hazardous Substances—Basic Research and Review Program, Division of Extramural Education; 93.894, Resources and Manpower DEPARTMENT OF HEALTH AND Activities, NIAID/NIH/DHHS, Room 3134, Development in the Environmental Health HUMAN SERVICES 6700–B Rockledge Drive, MSC 7616, Sciences; 93.113, Biological Response to Bethesda, MD 20892–7616, (301) 435–3559, Environmental Health Hazards; 93.114, National Institutes of Health [email protected]. Applied Toxicological Research and Testing, (Catalogue of Federal Domestic Assistant National Institutes of Health, HHS) National Institute of Nursing Research; Program Nos. 93.855, Allergy, Immunology, Amended Notice of Meeting and Transplantation Research; 93.856, Dated: November 19, 2003. Microbiology and Infectious Diseases LaVerne Y. Stringfield, Notice is hereby given of a change in Research, National Institutes of Health, HHS) Director, Office of Federal Advisory the meeting of the National Institute of Dated: November 19, 2003. Committee Policy. Nursing Research Special Emphasis LaVerne Y. Stringfield, [FR Doc. 03–29482 Filed 11–25–03; 8:45 am] Panel, November 12, 2003, 8 a.m. to Director, Office of Federal Advisory BILLING CODE 4140–01–M November 13, 2003, 5 p.m., Bethesda Committee Policy. Marriott, 5151 Pooks Hill Road, [FR Doc. 03–29481 Filed 11–25–03; 8:45 am] Bethesda, MD, 20814 which was DEPARTMENT OF HEALTH AND BILLING CODE 4140–01–M published in the Federal Register on HUMAN SERVICES October 3, 2003, FR67; 192;57473– 57474. DEPARTMENT OF HEALTH AND National Institutes of Health The meeting will be held at the HUMAN SERVICES Bethesda Marriott Suites at 6711 National Institute of Allergy and Democracy Blvd., Bethesda, Maryland. National Institutes of Health Infectious Diseases; Notice of Closed The meeting is closed to the public. Meeting National Institutes of Environmental Dated: November 20, 2003. Pursuant to section 10(d) of the Health Sciences; Notice of Closed LaVerne Y. Stringfield, Federal Advisory Committee Act, as Meeting Director, Office of Federal Advisory amended (5 U.S.C. Appendix 2), notice Committee Policy. Pursuant to section 10(d) of the is hereby given of the following [FR Doc. 03–29479 Filed 11–25–03; 8:45 am] Federal advisory Committee Act, as meeting. BILLING CODE 4140–01–M amended (5 U.S.C. Appendix 2), notice The meeting will be closed to the is hereby given of the following public in accordance with the meeting. provisions set forth in sections DEPARTMENT OF HEALTH AND The meeting will be closed to the 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., HUMAN SERVICES public in accordance with the as amended. The contract proposals and provisions set forth in sections the discussions could disclose National Institutes of Health 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., confidential trade secrets or commercial National Institutes of Allergy and as amended. The grant applications and property such as patentable material, Infectious Diseases; Notice of Closed the discussions could disclose and personal information concerning Meeting confidential trade secrets or commercial individuals associated with the contract property such as patentable material, proposals, the disclosure of which Pursuant to section 10(d) of the and personal information concerning would constitute a clearly unwarranted Federal Advisory Committee Act, as individuals associated with the grant invasion of personal privacy.

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Name of Committee: National Institute of Activities, National Institutes of Health/ Bethesda, MD 20817, (Telephone Conference Allergy and Infectious Diseases Special NIAID, 6700B Rockledge Drive, MSC 7616, Call). Emphasis Panel, Malaria Vaccines: Clinical Bethesda, MD 20892–7616, 301–402–4596, Contact Person: Cheryl K. Lapham, PhD., Research & Trial Sites in Endemic Areas. [email protected]. Scientific Review Administrator, Scientific Date: December 18, 2003. Name of Committee: National Institute of Review Program, National Institute of Allergy Time: 8 a.m. to 5 p.m. Allergy and Infectious Diseases Special and Infectious Diseases, DEA/NIH/DHHS, Agenda: To review and evaluate contract Emphasis Panel Biodefense and Emerging 6700–B Rockledge Drive, MSC 7616, Room proposals. Infectious Disease Research Opportunities 3127, Bethesda, MD 20892–7616, 301–402– Place: Marriott Wardman Park Washington Date: December 15, 2003. 4598, [email protected]. DC Hotel, 2660 Woodley Road, NW., Time: 2 p.m. to 5 p.m. (Catalogue of Federal Domestic Assistance Washington, DC 20008. Agenda: To review and evaluate grant Program Nos. 93.855, Allergy, Immunology, Contact Person: Lynn Rust, PHD, Scientific applications. and Transplantation Research; 93.856, Review Administrator, Scientific Review Place: National Institutes of Health, Microbiology and Infectious Diseases Program, Division of Extramural Activities, Rockledge 6700, 6700B Rockledge Drive, Research, National Institutes of Health, HHS) National Institutes of Health/NIAID, 6700B Bethesda, MD 20817, (Telephone Conference Dated: November 19, 2003. Rockledge Drive, MSC 7616, Bethesda, MD Call). 20892–7616, 301–496–2550, [email protected]. Contact Person: Hagit S. David, PHD, LaVerne Y. Stringfield, (Catalogue of Federal Domestic Assistance Scientific Review Administrator, Scientific Director, Office of Federal Advisory Program Nos. 93.855, Allergy, Immunology, Review Program, Division of Extramural Committee Policy. and Transplantation Research; 93.856, Activities, National Institutes of Health/ [FR Doc. 03–29485 Filed 11–25–03; 8:45 am] Microbiology and Infectious Diseases NIAID, 6700B Rockledge Drive, MSC 7616, BILLING CODE 4140–01–M Research, National Institutes of Health, HHS) Bethesda, MD 20892–7616, 301–402–4596, [email protected]. Dated: November 19, 2003. (Catalogue of Federal Domestic Assistance LaVerne Y. Stringfield, DEPARTMENT OF HEALTH AND Program Nos. 93.855, Allergy, Immunology, HUMAN SERVICES Director, Office of Federal Advisory and Transplantation Research; 93.856, Committee Policy. Microbiology and Infectious Diseases National Institutes of Health [FR Doc. 03–29483 Filed 11–25–03; 8:45 am] Research, National Institutes of Health, HHS) BILLING CODE 4140–01–M Dated: November 19, 2003. National Institute of Allergy and LaVerne Y. Stringfield, Infectious Diseases; Notice of Closed Meeting DEPARTMENT OF HEALTH AND Director, Office of Federal Advisory Committee Policy. HUMAN SERVICES Pursuant to section 10(d) of the [FR Doc. 03–29484 Filed 11–25–03; 8:45 am] Federal Advisory Committee Act, as National Institutes of Health BILLING CODE 4140–01–M amended (5 U.S.C. appendix 2), notice is hereby given of the following National Institute of Allergy and meeting. Infectious Diseases; Notice of Closed DEPARTMENT OF HEALTH AND The meeting will be closed to the Meetings HUMAN SERVICES public in accordance with the Pursuant to section 10(d) of the National Institutes of Health provisions set forth in sections Federal Advisory Committee Act, as 552b(c)(4) and 552b(c)(6), title 5 U.S.C., amended (5 U.S.C. Appendix 2), notice National Institute of Allergy and as amended. The grant applications and is hereby given of the following Infectious Diseases; Notice of Closed the discussions could disclose meetings. Meeting confidential trade secrets or commercial The meetings will be closed to the property such as patentable material, Pursuant to section 10(d) of the public in accordance with the and personal information concerning Federal Advisory Committee Act, as provisions set forth in sections individuals associated with the grant amended (5 U.S.C. Appendix 2), notice 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., applications, the disclosure of which is hereby given of the following as amended. The grant applications and would constitute a clearly unwarranted meeting. invasion of personal privacy. the discussions could disclose The meeting will be closed to the confidential trade secrets or commercial public in accordance with the Name of Committee: National Institute of Allergy and Infectious Diseases Special property such as patentable material, provisions set forth in sections and personal information concerning Emphasis Panel, Tropical Disease Research 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Units. individuals associated with the grant as amended. The grant applications and applications, the disclosure of which Date: December 15–17, 2003. the discussions could disclose Time: 8 a.m. to 5 p.m. would constitute a clearly unwarranted confidential trade secrets or commercial Agenda: To review and evaluate grant invasion of personal privacy. property such as patentable material, applications. Name of Committee: National Institute of and personal information concerning Place: Marriott Wardman Park Washington Allergy and Infectious Diseases Special individuals associated with the grant DC Hotel, 2660 Woodley Road, NW., Emphasis Panel, Biodefense and Emerging Washington, DC 20008. applications, the disclosure of which Contact Person: Adriana Costero, PhD., Infectious Disease Research Opportunities. would constitute a clearly unwarranted Date: December 15, 2003. Scientific Review Administrator, Scientific Time: 10 a.m. to 1:30 p.m. invasion of personal privacy. Review Program, National Institute of Allergy Agenda: To review and evaluate grant Name of Committee: National Institute of and Infectious Diseases/NIH/DHHS, 6700–B applications. Allergy and Infectious Diseases Special Rockledge Drive, MSC 7616, Bethesda, MD Place: National Institutes of Health, Emphasis Panel, Unsolicited P01. 20892–2761, 301–451–4573, Rockledge 6700, 6700B Rockledge Drive, Date: December 12, 2003. [email protected]. Bethesda, MD 20817, (Telephone Conference Time: 1:30 p.m. to 4:30 p.m. Name of Committee: National Institute of Call). Agenda: To review and evaluate grant Allergy and Infectious Diseases Special Contact Person: Hagit S. David, PHD, applications. Emphasis Panel, Unsolicited Renewal. Scientific Review Administrator, Scientific Place: National Institutes of Health, Date: December 15, 2003. Review Program, Division of Extramural Rockledge 6700, 6700B Rockledge Drive, Time: 12 p.m. to 2 p.m.

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Agenda: To review and evaluate grant Agenda: To review and evaluate personal (Catalogue of Federal Domestic Assistance applications. qualifications and performance, and Program Nos. 93.855, Allergy, Immunology, Place: Marriott Wardman Park Washington competence of individual investigators. and Transplantation Research; 93.856, DC Hotel, 2660 Woodley Road, NW., Place: 12441 Parklawn Drive, Twinbrook II Microbiology and Infectious Diseases Washington, DC 20008. Conference Room, Rockville, MD 20852. Research, National Institutes of Health, HHS) Contact Person: Adriana Costero, PhD., Contact Person: Thomas J. Kindt, Phd, Dated: November 19, 2003. Scientific Review Administrator, Scientific Director, Division of Intramural Research, Review Program, National Institute of Allergy National Inst. of Allergy & Infectious LaVerne Y. Stringfield, and Infectious Diseases/NIH/DHHS, 6700–B Diseases, Building 10, Room 4A31, Bethesda, Director, Office of Federal Advisory Rockledge Drive, MSC 7616, Bethesda, MD MD 20892, 301 496–3006, [email protected]. Committee Policy. 20892–2761, 301–451–4573, This notice is being published less than 15 [FR Doc. 03–29488 Filed 11–25–03; 8:45 am] days prior to the meeting due to the timing [email protected]. BILLING CODE 4140–01–M (Catalogue of Federal Domestic Assistance limitations imposed by the review and Program Nos. 93.855, Allergy, Immunology, funding cycle. and Transplantation Research; 93.856, (Catalogue of Federal Domestic Assistance DEPARTMENT OF HEALTH AND Microbiology and Infectious Diseases Program Nos. 93.855, Allergy, Immunology, HUMAN SERVICES Research, National Institutes of Health, HHS) and Transplantation Research; 93.856, Microbiology and Infectious Diseases Dated: November 19, 2003. Research, National Institutes of Health, HHS) National Institutes of Health LaVerne Y. Stringfield, National Institute of Allergy and Director, Office of Federal Advisory LaVerne Y. Stringfield, Committee Policy. Director, Office of Federal Advisory Infectious Diseases; Notice of Closed Meeting [FR Doc. 03–29486 Filed 11–25–03; 8:45 am] Committee Policy. [FR Doc. 03–29487 Filed 11–25–03; 8:45 am] BILLING CODE 4140–01–M BILLING CODE 4140–01–M Pursuant to section 10(d) of the Federal Advisory Committee Act, as DEPARTMENT OF HEALTH AND amended (5 U.S.C. appendix 2), notice HUMAN SERVICES DEPARTMENT OF HEALTH AND is hereby given of the following HUMAN SERVICES meeting. National Institutes of Health The meeting will be closed to the National Institutes of Health public in accordance with the National Institute of Allergy and National Institute of Allergy and provisions set forth in sections Infectious Diseases; Notice of Closed 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Meeting Infectious Diseases; Notice of Closed Meeting as amended. The grant applications and the discussions could disclose Pursuant to section 10(d) of the Pursuant to section 10(d) of the confidential trade secrets or commercial Federal Advisory Committee Act, as property such as patentable material, amended (5 U.S.C. appendix 2), notice Federal Advisory Committee Act, as amended (5 U.S.C. appendix 2), notice and personal information concerning is hereby given of a meeting of the individuals associated with the grant Board of Scientific Counselors, NIAID. is hereby given of the following meeting. applications, the disclosure of which The meeting will be closed to the would constitute a clearly unwarranted public as indicated below in accordance The meeting will be closed to the invasion of personal privacy. with the provisions set forth in section public in accordance with the provisions set forth in sections Name of Committee: National Institute of 552b(c)(6), title 5 U.S.C., as amended for Allergy and Infectious Diseases Special the review, discussion, and evaluation 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and Emphasis Panel, Pathogenesis of of individual intramural programs and Polyomavirus-Associated Nephropathy. projects conducted by the National the discussions could disclose Date: December 10, 2003. Institute of Allergy and Infectious confidential trade secrets or commercial Time: 8:30 a.m. to 5 p.m. Diseases, including consideration of property such as patentable material, Agenda: To review and evaluate grant personnel qualifications and and personal information concerning applications. performance, and the competence of individuals associated with the grant Place: Four Points by Sheraton Bethesda, individual investigators, the disclosure applications, the disclosure of which 8400 Wisconsin Avenue, Ambassador II, Bethesda, MD 20814. of which would constitute a clearly would constitute a clearly unwarranted invasion of personal privacy. Contact Person: Brenda Lange-Gustafson, unwarranted invasion of personal PhD, Scientific Review Administrator, privacy. Name of Committee: National Institute of Scientific Review Program, Division of Allergy and Infectious Diseases Special Name of Committee: Board of Scientific Extramural Activities, National Institutes of Emphasis Panel, AIDS Clinical Database. Counselors, NIAID. Health, 6700B Rockledge Drive, MSC 7616, Date: December 11, 2003. Date: December 8–10, 2003. Bethesda, MD 20892, Time: 1 p.m. to 5 p.m. Time: December 8, 2003, 8 a.m. to 5 p.m. [email protected]. Agenda: To review and evaluate grant Agenda: To review and evaluate personal applications. (Catalogue of Federal Domestic Assistant qualifications and performance, and Place: National Institutes of Health, Program Nos. 93.855, Allergy, Immunology, competence of individual investigators. Rockledge 6700, 6700B Rockledge Drive, and Transplantation Research; 93.856, Place: 12441 Parklawn Drive, Twinbrook II Bethesda, MD 20817 (Telephone Conference Microbiology and Infectious Diseases Conference Room, Rockville, MD 20852. Call). Research, National Institutes of Health, HHS) Time: December 9, 2003, 8 a.m. to 5 p.m. Contact Person: Marc L. Lesnick, PhD, Dated: November 19, 2003. Agenda: To review and evaluate personal Scientific Review Administrator, Scientific LaVerne Y. Stringfield, qualifications and performance, and Review Program, Division of Extramural Director, Office of Federal Advisory competence of individual investigators. Activities, National Institutes of Health/ Committee Policy. Place: 12441 Parklawn Drive, Twinbrook II NIAID, 6700B Rockledge Drive, MSC 7616, Conference Room, Rockville, MD 20852, Bethesda, MD 20892–7616 (301) 496–6636, [FR Doc. 03–29489 Filed 11–25–03; 8:45 am] Time: December 10, 2003, 8 a.m. to 12 p.m. [email protected]. BILLING CODE 4140–01–M

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DEPARTMENT OF HEALTH AND 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Date: December 5, 2003. HUMAN SERVICES as amended. The grant applications and Time: 1:30 p.m. to 2:30 p.m. the discussions could disclose Agenda: To review and evaluate grant National Institutes of Health applications. confidential trade secrets or commercial Place: National Institutes of Health, 6701 property such as patentable material, Rockledge Drive, Room 3144, Bethesda, MD Center for Scientific Review; Notice of and personal information concerning Meeting 20892, (Telephone Conference Call). individuals associated with the grant Contact Person: Lee S. Mann, MA, JD, PhD, Pursuant to section 10(a) of the applications, the disclosure of which Scientific Review Administrator, Center for Federal Advisory Committee Act, as would constitute a clearly unwarranted Scientific Review, National Institutes of invasion of personal privacy. Health, 6701 Rockledge Drive, Room 3186, amended (5 U.S.C. Appendix 2), notice MSC 7848, Bethesda, MD 20892, (301) 435– is hereby given of a meeting of the Name of Committee: Center for Scientific 0677, [email protected]. Center for Scientific Review Advisory Review Special Emphasis Panel; This notice is being published less than 15 Committee. Developmental Factors Associated with days prior to the meeting due to the timing The meeting will be open to the Cognition and Attention. limitations imposed by the review and public, with attendance limited to space Date: November 20, 2003. funding cycle. available. Individuals who plan to Time: 1:30 p.m. to 3 p.m. Name of Committee: Center for Scientific Agenda: To review and evaluate grant attend and need special assistance, such Review Special Emphasis Panel, Perception, applications. Memory and Cognitive Processes. as sign language interpretation or other Place: National Institutes of Health, 6701 reasonable accommodations, should Date: December 8, 2003. Rockledge Drive, Bethesda, MD 20891, Time: 1 p.m. to 2:30 p.m. notify the Contact Person listed below (Telephone Conference Call). Agenda: To review and evaluate grant in advance of the meeting. Contact Person: Luci Roberts, PhD, applications. Scientific Review Administrator, Center for Place: National Institutes of Health, 6701 Name of Committee: Center for Scientific Scientific Review, National Institutes of Review Advisory Committee Workgroup. Rockledge Drive, Bethesda, MD 20892, Health, 6701 Rockledge Drive, Room 3188, (Telephone Conference Call). Date: January 26–27, 2004. MSC 7848, Bethesda, MD 20891, (301) 435– Contact Person: Dana Plude, PhD, Time: 8:30 a.m. to 1 p.m. 0692, [email protected]. Scientific Review Administrator, Center for Agenda: Discussion of activities to evaluate This notice is being published less than 15 Scientific Review, National Institutes of organization and function of the Center for days prior to the meeting due to the timing Health, 6701 Rockledge Drive, Room 3192, Scientific Review process. limitations imposed by the review and MSC 7848, Bethesda, MD 20892, 301–435– Place: Bethesda Marriott, 5151 Pooks Hill funding cycle. Road, Bethesda, MD 20814. 2309, [email protected]. Contact Person: Karl Malik, PhD., Name of Committee: Center for Scientific This notice is being published less than 15 Executive Secretary, Center for Scientific Review Special Emphasis Panel, days prior to the meeting due to the timing Review, National Institute of Health, 6701 Neurobiology, Learning and Behavior. limitations imposed by the review and Rockledge Drive, Room 3110, MSC 7776, Date: December 4, 2003. funding cycle. Time: 11 a.m. to 12 p.m. Bethesda, MD 20892, (301) 594–6806, Name of Committee: Center for Scientific [email protected]. Agenda: To review and evaluate grant applications. Review Special Emphasis Panel, NAED Information is also available on the Place: National Institutes of Health, 6701 Reviewer Conflicts. Institute’s/Center’s home page: http:// Rockledge Drive, Bethesda, MD 20892, Date: December 10, 2003. www.csr.nih.gov/drgac/drgac.htm, where an (Telephone Conference Call). Time: 11:45 a.m. to 1:45 p.m. agenda and any additional information for Contact Person: Dana Plude, PhD, Agenda: To review and evaluate grant the meeting will be posted when available. Scientific Review Administrator, Center for applications. (Catalogue of Federal Domestic Assistance Scientific Review, National Institutes of Place: National Institutes of Health, 6701 Program Nos. 93.306, Comparative Medicine; Health, 6701 Rockledge Drive, Room 3192, Rockledge Drive, Bethesda, MD 20892, 93.333, Clinical Research, 93.306, 93.333, MSC 7848, Bethesda, MD 20892, 031–435– (Telephone Conference Call). 93.337, 93.393–93.396, 93.837–93.844, 2309, [email protected]. Contact Person: Eduardo A. Montalvo, 93.846–93.878, 93.892, 93.893, National This notice is being published less than 15 PhD, Scientific Review Administrator, Center Institutes of Health, HHS) days prior to the meeting due to the timing for Scientific Review, National Institutes of Health, 6701 Rockledge Drive, Room 5212, Dated: November 19, 2003. limitations imposed by the review and funding cycle. MSC 7852, Bethesda, MD 20892, (301) 435– LaVerne Y. Stringfield, 1168, [email protected]. Name of Committee: Center for Scientific Director, Office of Federal Advisory Review Special Emphasis Panel, ZRG1 CNNT Name of Committee: Center for Scientific Committee Policy. 02M: Member Conflict: Brain Disorders and Review Special Emphasis Panel, ADDT [FR Doc. 03–29475 Filed 11–25–03; 8:45 am] Clinical Neurosciences IRG. Special Emphasis Panel. BILLING CODE 4140–01–M Date: December 5, 2003. Date: December 12, 2003. Time: 8 a.m. to 5 p.m. Time: 10 a.m. to 11 a.m. Agenda: To review and evaluate grant Agenda: To review and evaluate grant DEPARTMENT OF HEALTH AND applications. applications. Place: National Institutes of Health, 6701 HUMAN SERVICES Place: Melrose Hotel, 2430 Pennsylvania Ave., NW., Washington, DC 20037. Rockledge Drive, Bethesda, MD 20892, (Telephone Conference Call). National Institutes of Health Contact Person: William C. Benzing, PhD, Scientific Review Administrator, Center for Contact Person: Eduardo A. Montalvo, PhD, Scientific Review Administrator, Center Center for Scientific Review; Notice of Scientific Review, National Institutes of Health, 6701 Rockledge Drive, Room 5190, for Scientific Review, National Institutes of Closed Meetings MSC 7846, Bethesda, MD 20891, (301) 435– Health, 6701 Rockledge Drive, Room 5212, Pursuant to section 10(d) of the 1254, [email protected]. MSC 7852, Bethesda, MD 20892, (301) 435– 1168, [email protected]. Federal Advisory Committee Act, as This notice is being published less than 15 days prior to the meeting due to the timing amended (5 U.S.C. Appendix 2), notice Name of Committee: Center for Scientific limitations imposed by the review and Review Special Emphasis Panel, Member is hereby given of the following funding cycle. SEP Applications. meetings. Name of Committee: Center for Scientific Date: December 15, 2003. The meetings will be closed to the Review Special Emphasis Panel, Postpartum Time: 1 p.m. to 3 p.m. public in accordance with the Smoking Relapse Prevention and ETS Agenda: To review and evaluate grant provisions set forth in sections Control. applications.

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Place: National Institutes of Health, 6701 93.333, Clinical Research, 93.306, 93.333, Rockville, MD 20852–3804; E-mail: Rockledge Drive, Bethesda, MD 20892, 93.337, 93.393–93.396, 93.837–93.844, [email protected]; Telephone: (301) 435– (Telephone Conference Call). 93.846–93.878, 93.892, 93.893, National 5515; Facsimile: (301) 402–0220. Contact Person: Michael A. Lang, PhD, Institutes of Health, HHS) SUPPLEMENTARY INFORMATION: Scientific Review Administrator, Center for Dated: November 20, 2003. The Scientific Review, National Institutes of prospective exclusive license will be LaVerne Y. Stringfield, Health, 6701 Rockledge Drive, Room 5210, royalty bearing and will comply with MSC 7850, Bethesda, MD 20892, (301) 435– Director, Office of Federal Advisory the terms and conditions of 35 U.S.C. Committee Policy. 1265, [email protected]. 209 and 37 CFR 404.7. The prospective Name of Committee: Center for Scientific [FR Doc. 03–29480 Filed 11–25–03; 8:45 am] exclusive license may be granted unless, Review Special Emphasis Panel, Clinical BILLING CODE 4140–01–M within 60 days from the date of this Cancer Immunotherapy. published Notice, NIH receives written Date: December 18, 2003. evidence and argument that establishes Time: 1 p.m. to 3 p.m. DEPARTMENT OF HEALTH AND that the grant of the license would not Agenda: To review and evaluate grant HUMAN SERVICES applications. be consistent with the requirements of Place: National Institutes of Health, 6701 National Institutes of Health 35 U.S.C. 209 and 37 CFR 404.7. Rockledge Drive, Bethesda, MD 20892, The above referenced technologies (Telephone Conference Call). Prospective Grant of Exclusive describe development of vaccines for Contact Person: Sharon K. Gubanich, PhD, License: Adenovirus-based Vaccines Ebola, Marburg, and/or Lassa viruses Scientific Review Administrator, Center for Scientific Review, National Institutes of Against Ebola, Marburg, and/or Lassa using naked DNA constructs, DNA prime/adenovirus boost regimens, and Health, 6701 Rockledge Drive, Room 6204, AGENCY: National Institutes of Health, one-dose administration of adenovirus MSC 7804, Bethesda, MD 20892, (301) 435– Public Health Service, DHHS. 1767, [email protected]. vectors encoding the Ebola glycoprotein ACTION: Name of Committee: Center for Scientific Notice. or nucleoprotein. Also described are Review Special Emphasis Panel, SEP to assays for identification of compounds SUMMARY: This is notice, in accordance Review AIDS Applications. with 35 U.S.C. 209(c)(1) and 37 CFR that inhibit the assembly of the Date: December 19, 2003. nucleoprotein (NP) and virion Time: 11 a.m. to 1 p.m. 404.7(a)(1)(i), that the National Institutes of Health (NIH), Department associated proteins (VP) 35 and 24, all Agenda: To review and evaluate grant of which are required for Ebola applications. of Health and Human Services, is Place: National Institutes of Health, 6701 contemplating the grant of world-wide nucleocapsid (or virion-like particle Rockledge Drive, Bethesda, MD 20892, exclusive license to practice the (VLP)) formation, or which inhibit (Telephone Conference Call). invention embodied in: (1) U.S. Serial glycosylation of NP, which is also Contact Person: Kenneth A Roebuck, PhD, Number 60/326,476, filed October 1, necessary for nucleocapsid formation. Scientific Review Administrator, Center for The field of use may be limited to Scientific Review, National Institutes of 2001, entitled ‘‘Development of a Preventive Vaccine for Filovirus development of Ebola, Marburg, and/or Health, 6701 Rockledge Drive, Room 5214, Lassa vaccines comprising at least an MSC 7852, Bethesda, MD 20892, (301) 435– Infection in Primate’’; PCT filed (PCT/ 1166, [email protected]. US02/30251) on September 24, 2002; (2) adenovirus-based component. Name of Committee: Center for Scientific U.S. Serial Number 60/068,655, filed Properly filed competing applications Review Special Emphasis Panel, SEP to December 23, 1997, entitled for a license filed in response to this Review AIDS Applications. ‘‘Immunization For Ebola Virus notice will be treated as objections to Date: December 19, 2003. Infection’’, PCT filed (PCT/US98/27364) the contemplated license. Comments Time: 1 p.m. to 3 p.m. on December 23, 1998, and U.S. Serial and objections submitted in response to Agenda: To review and evaluate grant Number 09/913,909, filed August 17, this notice will not be made available applications. 2001; (3) U.S. Serial Number 60/ for public inspection, and, to the extent Place: National Institutes of Health, 6701 permitted by law, will not be released Rockledge Drive, Bethesda, MD 20892, 395,876, filed July 12, 2002, entitled (Telephone Conference Call). ‘‘Assays for Assembly of Ebola Virus under the Freedom of Information Act, Contact Person: Kenneth A Roebuck, PhD, Nucleocapsids Inhibitors of Viral 5 U.S.C. 552. Scientific Review Administrator, Center for Infection’’, PCT filed on July 12, 2003 Dated: November 19, 2003. Scientific Review, National Institutes of (PCT/US03/21757); and (4) U.S. Serial Steven M. Ferguson, Health, 6701 Rockledge Drive, Room 5214, Number 60/491,933, filed August 1, Director, Division of Technology Development MSC 7852, Bethesda, MD 20892, (301) 435– 2003, entitled ‘‘Accelerated 1166, [email protected]. and Transfer, Office of Technology Transfer. Vaccination’’, to Crucell Holland B.V., [FR Doc. 03–29491 Filed 11–25–03; 8:45 am] Name of Committee: Center for Scientific having a place of business in Leiden, Review Special Emphasis Panel, SEP to BILLING CODE 4140–01–P Review AIDS Applications. The Netherlands. The patent rights in Date: December 19, 2003. these inventions have been assigned to Time: 3 p.m. to 5 p.m. the United States of America. DEPARTMENT OF HEALTH AND Agenda: To review and evaluate grant DATES: Only written comments and/or HUMAN SERVICES applications. application for a license which are Place: National Institutes of Health, 6701 received by the NIH Office of National Institutes of Health Rockledge Drive, Bethesda, MD 20892, (Telephone Conference Call). Technology Transfer on or before January 26, 2004, will be considered. Prospective Grant of Exclusive Contact Person: Kenneth A Roebuck, PhD, License: Methods and Devices for ADDRESSES: Scientific Review Administrator, Center for Requests for a copy of the Intramuscular Stimulation of Upper Scientific Review, National Institutes of patent application, inquiries, comments Airway and Swallowing Muscle Groups Health, 6701 Rockledge Drive, Room 5214, and other materials relating to the MSC 7852, Bethesda, MD 20892, (301) 435– contemplated license should be directed AGENCY: National Institutes of Health, 1166, [email protected]. to: Susan Ano, Office of Technology Public Health Service, DHHS. Transfer, National Institutes of Health, (Catalogue of Federal Domestic Assistance ACTION: Notice. Program Nos. 93.306, Comparative Medicine; 6011 Executive Boulevard, Suite 325,

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SUMMARY: This is notice, in accordance appropriate musculature of the neck and SUPPLEMENTARY INFORMATION: In with 35 U.S.C. 209(c)(1) and 37 CFR an electrode stimulator or subcutaneous accordance with the Paperwork 404.7(a)(1)(i), that the National signal generator modulates electrostatic Reduction Act of 1995, (44 U.S.C. 3501, Institutes of Health (NIH), Department pulses through the electrodes that cause et seq.), an agency may not conduct or of Health and Human Services, is the attached muscles to contract thus sponsor, and a person is not required to contemplating the grant of an exclusive simulating natural swallowing or respond to a collection of information, worldwide license to practice the vocalization depending on placement. unless it displays a valid OMB control invention embodied in: E–181–2002; The prospective exclusive license will number. Therefore, in preparation for U.S. Provisional Patent Application 60/ be royalty bearing and will comply with submission of clearance of the following 413,773 entitled ‘‘Methods and Devices the terms and conditions of 35 U.S.C. information collection, TSA solicits for Intramuscular Stimulation of Upper 209 and 37 CFR 404.7. The prospective comments in order to— Airway and Swallowing Muscle exclusive license may be granted unless, (1) Evaluate whether the proposed Groups,’’ to Medtronic, Inc., a within 60 days from the date of this information requirement is necessary for corporation incorporated under the laws published Notice, NIH receives written the proper performance of the functions of the state of Minnesota and having a evidence and argument that establishes of the agency, including whether the place of business at 710 Medtronic that the grant of the license would not information will have practical utility; Parkway, Minneapolis, MN 55432 and be consistent with the requirements of (2) Evaluate the accuracy of the its wholly owned affiliate Medtronic 35 U.S.C. 209 and 37 CFR 404.7. agency’s estimate of the burden; Xomed, Inc., a corporation incorporated Properly filed competing applications (3) Enhance the quality, utility, and under the laws of the state of Delaware for a license filed in response to this clarity of the information to be and having a place of business at 6743 notice will be treated as objections to collected; and Southpoint Drive North, Jacksonville, the contemplated license. Comments (4) Minimize the burden of the FL 32216. The United States of America and objections submitted in response to collection of information on those who is an assignee to the patent rights of this notice will not be made available are to respond, including through the these inventions. for public inspection, and, to the extent use of appropriate automated, The contemplated exclusive license permitted by law, will not be released electronic, mechanical, or other may be limited to the treatment of under the Freedom of Information Act, technological collection techniques or dysphagia using the Medtronic 5 U.S.C. 552. other forms of information technology. Implantable Pulse Generator (IPG) Dated: November 19, 2003. TSA is seeking to renew information System but excluding the use of devices Steven M. Ferguson, collection request number 1652–0003, and systems described and claimed in which was originally obtained by the U.S. Patent Nos. 6,185,452; 5,193,540; Director, Division of Technology Development and Transfer, Office of Technology Transfer. Federal Aviation Administration (FAA) 5,193,539; 5,324,316; 5,358,514. to ensure compliance with the standards [FR Doc. 03–29490 Filed 11–25–03; 8:45 am] DATES: Only written comments and/or that were developed and implemented applications for a license which are BILLING CODE 4140–01–P at 14 CFR part 108. The Aviation and received by the NIH Office of Transportation Security Act of 2001 Technology Transfer on or before (ATSA), Pub. L. 107–71, transferred the January 26, 2004, will be considered. DEPARTMENT OF HOMELAND responsibility for civil aviation security SECURITY ADDRESSES: Requests for a copy of the from the FAA to TSA. In February 2002, patent application, inquiries, comments Transportation Security Administration TSA implemented aircraft operator and other materials relating to the security standards at 49 CFR part 1544, contemplated license should be directed Notice of Intent To Request Approval while 14 CFR part 108 was repealed. to: Michael A. Shmilovich, J.D., From the Office of Management and This regulation requires aircraft Technology Licensing Specialist, Office Budget (OMB) for the Renewal of a operators to maintain and update their of Technology Transfer, National Public Collection of Information; security programs for inspection by TSA Institutes of Health, 6011 Executive Aircraft Operator Security to ensure security, safety, and regulatory Boulevard, Suite 325, Rockville, MD compliance. TSA estimates the 83 20852–3804; Telephone: (301) 435– AGENCY: Transportation Security respondent air carriers will carry a 5019; Facsimile: (301) 402–0220; E-mail: Administration (TSA), DHS. burden of 43,160 hours per year and [email protected]. A signed ACTION: Notice. encourages all interested parties to Confidential Disclosure Agreement will comment on this burden estimate. SUMMARY: TSA invites public comment be required to receive copies of the Issued in Arlington, Virginia, on November patent application. on the information collection requirement abstracted below that will 21, 2003. SUPPLEMENTARY INFORMATION: The patent be submitted to OMB for renewal in Susan T. Tracey, application covers devices and methods compliance with the Paperwork Deputy Chief Administrative Officer. for intramuscular stimulation Reduction Act of 1995. [FR Doc. 03–29578 Filed 11–25–03; 8:45 am] (stimulation of the geniohyoid, BILLING CODE 4910–62–P mylohyoid, and thyrohyoid muscles) in DATES: Send your comments by January patients with neuromuscular disorders. 26, 2004. The invention provides autonomous ADDRESSES: Conrad Huygen, Privacy Act control of both hyolaryngeal elevations, Officer, Information Management DEPARTMENT OF THE INTERIOR anterior hyoid motion and opening of Programs, TSA Headquarters, West the upper esophageal sphincter for Tower 412–S, TSA–17, 601 S. 12th Office of the Secretary Street, Arlington, VA 22202–4220; swallowing, vocalization and speech. Statement of Findings: Shivwits Band telephone (571) 227–1954; facsimile Primarily, the technology allows self- of the Paiute Indian Tribe of Utah (571) 227–2912. stimulation of swallowing and can Water Rights Settlement Act return oral feeding to dysphagia FOR FURTHER INFORMATION CONTACT: See patients. Electrodes are attached to the ADDRESSES, above. AGENCY: Office of the Secretary, Interior

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ACTION: Notice of statement of findings have been appropriated and deposited Conservation Plan (Plan) and an in accordance with Public Law 106–263. into the Shivwits Band Trust Fund; associated Environmental Impact 2. The funds authorized by section Statement, pursuant to the National SUMMARY: The Secretary of the Interior 10(f) of the Settlement Act have been Environmental Policy Act and its is causing this notice of Statement of appropriated; implementing regulations, for the Findings to be published as required by 3. The St. George Water Reuse Project Izembek National Wildlife Refuge, section 14 of the Shivwits Band of the Agreement has been modified, to the which includes the Unimak Island unit Paiute Indian Tribe of Utah Water extent it was in conflict with the of the Alaska Maritime National Rights Settlement Act (Settlement Act), Settlement Act, and is effective and Wildlife Refuge and the North Creek Pub. L. 106–263, 114 Stat. 737, 746–47. enforceable according to its terms; and Pavlof units of Alaska Peninsula The publication of this notice causes the 4. The Santa Clara Project Agreement National Wildlife Refuge, headquartered waiver and release of certain claims to has been modified, to the extent it was in Cold Bay, Alaska. The Service is become effective as required to in conflict with the Settlement Act, and furnishing this notice in compliance implement the Settlement. is effective and enforceable according to with the National Wildlife Refuge DATES: In accordance with section 14 of its terms; System Administration Act of 1966, as the Settlement Act, the waiver and 5. The Settlement Agreement has been amended, and with Service planning release of claims described in section modified, to the extent it was in conflict policy to advise other agencies and the 9(b) of the Settlement Act are effective with the Settlement Act, and is effective public of our intentions and to obtain on November 26, 2003. and enforceable according to its terms; suggestions and information on the ADDRESSES: Address all comments 6. The State Engineer of Utah has scope of issues to be addressed in the concerning this notice to Ms. Catherine taken all actions and approved all environmental documents. Wilson, Shivwits Band of the Paiute applications necessary to implement the Special mailings, newspaper articles, Indian Tribe of Utah Water Rights provisions of the St. George Water Reuse and other media announcements will Settlement Act Implementation Team Agreement, the Santa Clara Project inform people of opportunities to Chairperson, Bureau of Indian Affairs, Agreement, and the Settlement provide written input throughout the Western Regional Office, 400 North 5th Agreement, from which no further planning process. Public meetings will Street, MS–420, Phoenix, Arizona, appeals may be taken; and be held in communities near the Refuge 85004. 7. The District Court of the Fifth (e.g., Cold Bay, King Cove, False Pass, FOR FURTHER INFORMATION CONTACT: Ms. Judicial District in Washington County, Sand Point, and Nelson Lagoon) and in Catherine Wilson, 602–379–6789. Utah, has entered a judgment and the city of Anchorage. The Draft and Final Plans and associated SUPPLEMENTARY INFORMATION: The decree confirming the Shivwits Water purposes of the Settlement Act are: Right in the Virgin River Adjudication Environmental Impact Statement will be (1) To achieve a fair, equitable, and pursuant to Utah Rule of Civil available for viewing and downloading final settlement of all claims to water Procedure 54(b), that confirms the at www.r7.fws.gov/planning. rights in the Santa Clara River for the Shivwits Water Right and is final as to ADDRESSES: Address comments, Shivwits Band, and the United States all parties to the Santa Clara Division of questions, and requests to Maggi Arend, for the benefit of the Shivwits Band; the Virgin River Adjudication and from Planning Team Leader, U.S. Fish and (2) To promote the self-determination which no further appeals may be taken, Wildlife Service, 1011 East Tudor Rd. and economic self-sufficiency of the which the United States and Utah find MS–231, Anchorage, AK 99503 or Shivwits Band, in part by providing is consistent in all material aspects with [email protected]. funds to the Shivwits Band for its use the Settlement Agreement and with the FOR FURTHER INFORMATION, CONTACT: in developing a viable reservation proposed judgment and decree agreed to Maggi Arend, Planning Team Leader, economy; by the parties to the Settlement US Fish and Wildlife Service, 1011 East (3) To approve, ratify, and confirm the Agreement. Tudor Rd., MS–231, Anchorage, AK St. George Water Reuse Project Dated: November 21, 2003. 99503 or Agreement, the Santa Clara Project Gale A. Norton, [email protected]. Agreement, and the Settlement Secretary. Additional information concerning the Agreement, and the Shivwits Water [FR Doc. 03–29583 Filed 11–25–03; 8:45 am] Plan can be found at http:// Right described therein; www.r7.fws.gov/planning and BILLING CODE 4310–01–M (4) To authorize the Secretary of the concerning the Refuge at http:// Interior to execute the St. George Water refuges.fws.gov. Reuse Project Agreement, the Santa Clara Project Agreement, and the DEPARTMENT OF THE INTERIOR SUPPLEMENTARY INFORMATION: By Federal law (National Wildlife Refuge System Settlement Agreement, and to take such Fish and Wildlife Service actions as are necessary to implement Administration Act of 1966, as amended by the National Wildlife Refuge System these agreements in a manner consistent Notice of Intent To Revise a with the Settlement Act; and Improvement Act of 1997 Comprehensive Conservation Plan and (Administration Act) [16 U.S.C. 668dd— (5) To authorize the appropriation of Associated Environmental Impact funds necessary for implementation of 668ee]), all lands within the National Statement for the Izembek National Wildlife Refuge System are to be the St. George Water Reuse Project Wildlife Refuge, Cold Bay, AK Agreement, the Santa Clara Project managed in accordance with an Agreement, and the Settlement AGENCY: Fish and Wildlife Service, approved Comprehensive Conservation Agreement. Department of the Interior. Plan. Section 304(g) of the Alaska ACTION: Notice of intent. National Interest Lands Conservation Statement of Findings Act (Pub. L. 96–487, 94 Stat. 2371) also As required by section 14 of the SUMMARY: This notice advises the public directs that these plans be prepared. The Settlement Act, I find as follows: that the U.S. Fish and Wildlife Service Plan guides management decisions and 1. The funds authorized by sections (Service) intends to gather information identifies Refuge goals, long-range 11(b) and 11(c) of the Settlement Act necessary to revise the Comprehensive objectives, and strategies for achieving

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Refuge purposes. During the planning world’s Pacific black brant use Izembek Dated: November 7, 2003. process, the planning team reviews a Lagoon as a staging area for their fall Rowan Gould, wide range of Refuge administrative migration to Mexico. Other birds that Regional Director, U.S. Fish and Wildlife requirements, including conservation of use the Refuge include golden plovers, Service, Anchorage, Alaska. the Refuge’s fish and wildlife ruddy turnstones, western sandpipers, [FR Doc. 03–29304 Filed 11–25–03; 8:45 am] populations and habitats in their natural tundra swans, Steller’s eiders and BILLING CODE 4510–55–P diversity; facilitation of subsistence use emperor geese. The Refuge also is home by local residents and access for to large concentrations of brown bears traditional recreational activities; and and other large mammals such as DEPARTMENT OF THE INTERIOR conservation of resource values, caribou and wolves. The red, pink, including cultural resources, chum, and silver salmon that use the Fish and Wildlife Service wilderness, and wild rivers. The final waters within the refuge enrich the Notice of Intent To Revise a revised Plan will detail the programs, entire ecosystem with the nutrients they activities, and measures necessary to Comprehensive Conservation Plan and bring from the sea. The Refuge also has Associated Environmental Impact best administer the Refuge to protect a rich human history, from ancient these values and to fulfill Refuge Statement for the Kanuti National settlements of Alaska Natives, through Wildlife Refuge, Fairbanks, AK purposes. The Comprehensive the 18th and 19th century Russian fur Conservation Plan and associated traders, to a World War II outpost. AGENCY: Fish and Wildlife Service, Environmental Impact Statement will The Alaska National Interests Land Department of the Interior. describe and evaluate a range of Conservation Act of 1980, Section ACTION: Notice of intent. reasonable alternatives and the 302(1) and 303(1 and 3) sets forth the anticipated impacts of each. Public SUMMARY: This notice advises the public following major purposes for which the input into the planning process is that the U.S. Fish and Wildlife Service Izembek Refuge was established and is essential. (Service) intends to gather information The Plan will provide other agencies to be managed: necessary to revise the Comprehensive and the public with information to [Izembek] To conserve fish and wildlife Conservation Plan (Plan) and to develop facilitate understanding of the desired populations and habitats in their natural an Environmental Impact Statement, conditions for the Refuge and how the diversity including, but not limited to, pursuant to the National Environmental Service will implement management waterfowl, shorebirds and other migratory Policy Act and its implementing strategies. birds, brown bears and salmonoids; regulations, for the Kanuti National [Alaska Peninsula] To conserve fish and The Service will prepare an Wildlife Refuge. The Service is wildlife populations and habitats in their Environmental Impact Statement in furnishing this notice in compliance accordance with procedures for natural diversity including, but not limited to, brown bears, the Alaska Peninsula caribou with the National Wildlife Refuge implementing the National herd, moose, sea otters and other marine System Administration Act of 1966, as Environmental Policy Act of 1969 (42 mammals, shorebirds and other migratory amended, and with Service planning U.S.C. 4321–4370d). birds, raptors, including bald eagles and policy to advise other agencies and the The Izembek National Wildlife Refuge peregrine falcons, and salmonoid and other public of our intentions and to obtain (417,533 acres) and the North Creek fish; suggestions and information on the (8,452 acres) and Pavlof (1,447,264 [Alaska Maritime] To conserve fish and scope of issues to be addressed in the acres) units of the Alaska Peninsula wildlife populations and habitats in their environmental documents. National Wildlife Refuge are located at natural diversity, including, but not limited Special mailings, newspaper articles, the westernmost tip of the Alaska to, marine mammals, marine birds and other and other media announcements will Peninsula. The 1,008,697-acre Unimak migratory birds, the marine resources upon which they rely, bears, caribou, and other inform people of opportunities to Island (the easternmost Aleutian Island provide written input throughout the of the Alaska Maritime National mammals; To fulfill the international treaty planning process. Public meetings will Wildlife Refuge) lies across the Isanotski obligations of the United States with respect be held in communities near the refuge Strait. to fish and wildlife and their habitats; (e.g., Bettles, Evansville, Allakaket, To the north of the Izembek Refuge is To provide, in a manner consistent with Alatna, Coldfoot, Hughes, and the Bering Sea; to the south is the the purposes set forth above, the opportunity Fairbanks). Pacific Ocean. The Alaska Peninsula is for continued subsistence uses by local The draft and final Plans and dominated by the rugged Aleutian residents; and associated Environmental Impact Range, part of the Aleutian arc chain of To ensure, to the maximum extent Statement will be available for viewing volcanoes. Landforms include practicable and in a manner consistent with and downloading at www.r7.fws.gov/ the purposes set forth above, water quality mountains, active volcanoes, U-shaped planning. valleys, glacial moraines, low tundra and necessary water quantity within the wetlands, lakes, sand dunes, and Refuge; and ADDRESSES: Address comments, lagoons. Elevations range from sea level [Alaska Maritime] To provide, in a manner questions, and requests for further consistent with the purposes set forth above, to the 9,372-foot Shishaldin Volcano. information to Peter Wikoff, Planning a program of national and international Team Leader, U.S. Fish and Wildlife Several major lagoons are within the scientific research on marine resources. Refuge boundary. These lagoons contain Service, 1011 East Tudor Rd. MS–231, some of the world’s largest eelgrass The Comprehensive Conservation Anchorage, AK 99503 or _ _ beds. The lagoons are under the Plan for Izembek National Wildlife fw7 kanuti [email protected]. jurisdiction of the State of Alaska. Refuge was completed in 1985. It is FOR FURTHER INFORMATION, CONTACT: Izembek Lagoon is designated the being revised consistent with Section Peter Wikoff, Planning Team Leader, Izembek State Game Refuge. Birds from 304(g) of the Alaska National Interest U.S. Fish and Wildlife Service, 1011 all over the Arctic funnel through Lands Conservation Act, the National East Tudor Rd. MS–231, Anchorage, AK Izembek Refuge each fall on their way Wildlife Refuge System Improvement 99503 or [email protected]. to wintering grounds throughout the Act of 1997, and U.S. Fish and Wildlife Additional information concerning the world. More than 98 percent of the Service planning policy. plan can be found at http://

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www.r7.fws.gov/planning and The Alaska National Interests Land National Wildlife Refuge, Soldotna, concerning the refuge at http:// Conservation Act (ANILCA) of 1980 Alaska. The Service is furnishing this refuges.fws.gov. (Section 302[4][B]) established the notice in compliance with the National SUPPLEMENTARY INFORMATION: By Federal Refuge and stated that the purposes for Wildlife Refuge System Administration law (National Wildlife Refuge System which the Kanuti Refuge was Act of 1966, as amended, and with Administration Act of 1966, as amended established and would be managed Service planning policy to advise other by the National Wildlife Refuge System include: agencies and the public of our Improvement Act of 1997 (i) To conserve fish and wildlife intentions and to obtain suggestions and (Administration Act) [16 U.S.C. 668dd- populations and habitats in their natural information on the scope of issues to be 668ee]), the Service is to manage all diversity including, but not limited to, addressed in the environmental documents. lands within the National Wildlife white-fronted geese and other waterfowl Special mailings, newspaper articles, Refuge System in accordance with an and migratory birds, moose, caribou (including participation in coordinated and other media announcements will approved Comprehensive Conservation inform people of opportunities to Plan. Section 304(g) of the Alaska ecological studies and management of the Western Arctic caribou herd), and provide written input throughout the National Interest Lands Conservation planning process. Public meetings will Act (Pub. L. 96–487, 94 Stat. 2371) also furbearers; (ii) To fulfill the international treaty be held in communities near the Refuge directs that these plans be prepared. The obligation of the United Sates with (e.g., Cooper Landing, Soldotna, Plan guides management decisions and respect to fish and wildlife and their Seward, and Homer) and in the city of identifies Refuge goals, long-range habitats; Anchorage. The Draft and Final Plans objectives, and strategies for achieving (iii) To provide, in a manner and associated Environmental Impact Refuge purposes. During the planning consistent with the purposes set forth in Statement will be available for viewing process, the planning team reviews a subparagraphs (i) and (ii), the and downloading at http:// wide range of Refuge administrative opportunity for continued subsistence www.r7.fws.gov/planning. requirements, including conservation of uses by local residents; and ADDRESSES: Address comments, the refuge’s fish and wildlife (iv) To ensure, to the maximum extent questions, and requests to Rob populations and habitats in their natural practicable and in a manner consistent Campellone, Planning Team Leader, diversity; facilitation of subsistence use with the purposes set forth in paragraph U.S. Fish and Wildlife Service, 1011 by local residents and access for (i), water quality and necessary water East Tudor Rd., MS–231, Anchorage, traditional recreational activities; and quantity within the refuge. AK 99503, or conservation of resource values, The Comprehensive Conservation [email protected]. including cultural resources, Plan for Kanuti was completed in 1987. FOR FURTHER INFORMATION, CONTACT: Rob wilderness, and wild rivers. The final It is being revised consistent with revised Plan will detail the programs, Campellone, Planning Team Leader, Section 304(g) of the Alaska National U.S. Fish and Wildlife Service, 1011 activities, and measures necessary to Interest Lands Conservation Act, the best administer the Refuge to protect East Tudor Rd. MS–231, Anchorage, AK National Wildlife Refuge System _ _ these values and to fulfill Refuge 99503 or fw7 kenai [email protected]. Improvement Act of 1997, and Service Additional information concerning the purposes. In this Comprehensive planning policy. Conservation Plan and associated Plan can be found at http:// Environmental Impact Statement, the Dated: November 7, 2003. www.r7.fws.gov/planning and Service will describe and evaluate a Rowan Gould, concerning the Refuge at http:// range of reasonable alternatives and the Regional Director, U.S. Fish and Wildlife refuges.fws.gov. anticipated impacts of each. Public Service, Anchorage, Alaska. SUPPLEMENTARY INFORMATION: By Federal input into the planning process is [FR Doc. 03–29302 Filed 11–25–03; 8:45 am] law (National Wildlife Refuge System essential. BILLING CODE 4310–55–P Administration Act of 1966, as amended The Plan will provide other agencies by the National Wildlife Refuge System and the public with information to Improvement Act of 1997 facilitate understanding of the desired DEPARTMENT OF THE INTERIOR (Administration Act) [16 U.S.C. 668dd– conditions for the Refuge and how the 668ee]), all lands within the National Service will implement management Fish and Wildlife Service Wildlife Refuge System are to be managed in accordance with an strategies. Notice of Intent To Revise a The Service will prepare an approved Comprehensive Conservation Comprehensive Conservation Plan and Environmental Impact Statement in Plan. Section 304(g) of the Alaska Associated Environmental Impact accordance with procedures for National Interest Lands Conservation Statement for the Kenai National implementing the National Act (Pub. L. 96–487, 94 Stat. 2371) also Wildlife Refuge, Soldotna, AK Environmental Policy Act of 1969 (42 directs that these plans be prepared. U.S.C. 4321–4370d). AGENCY: Fish and Wildlife Service, During the planning process, the The Kanuti National Wildlife Refuge Department of the Interior. planning team reviews a wide range of lies on the Arctic Circle about 100 miles ACTION: Notice of intent. Refuge administrative requirements, south of the Brooks Range and 150 miles including conservation of the Refuge’s northwest of Fairbanks, Alaska. The SUMMARY: This notice advises the public fish and wildlife populations and Refuge lies in a basin formed by the that the U.S. Fish and Wildlife Service habitats in their natural diversity; Koyukuk and Kanuti rivers and (Service) intends to gather information facilitation of subsistence use by local encompasses approximately 1.6 million necessary to revise the Comprehensive residents and access for traditional acres. The Refuge landscape consists of Conservation Plan (Plan) and an recreational activities; and conservation rolling hills, wetlands, ponds, and associated Environmental Impact of resource values, including cultural streams. It supports waterfowl, Statement, pursuant to the National resources, wilderness, and wild rivers. furbearers, wolves, moose, caribou, and Environmental Policy Act and its The final revised Plan will detail the bears. implementing regulations, for the Kenai programs, activities, and measures

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necessary to best administer the Refuge moose, bear, mountain goats, Dall Recovery Plan, relates recovery actions to protect these values and to fulfill sheep, wolves and other furbearers, to the five listing factors of the Refuge purposes. The Comprehensive salmonoids and other fish, waterfowl Endangered Species Act of 1973, and Conservation Plan and associated and other migratory and nonmigratory assigns a timeline to recovery actions. Environmental Impact Statement will birds; ADDRESSES: Persons wishing to obtain a describe and evaluate a range of (ii) To fulfill the international treaty copy of the Final Supplement and reasonable alternatives and the obligations of the United States with Amendment may do so by accessing the anticipated impacts of each. Public respect to fish and wildlife and their Service’s Arizona Ecological Service input into the planning process is habitats; Field Office internet web page at essential. (iii) To ensure, to the maximum Arizonaes.fws.gov or contacting John The Plan will provide other agencies extent practicable and in a manner Morgart, Cabeza Prieta National Wildlife and the public with information to consistent with the purposes set forth in Refuge, U.S. Fish and Wildlife Service, facilitate understanding of the desired paragraph (i), water quality and 1611 North Second Avenue, Ajo, conditions for the Refuge and how the necessary water quantity within the Arizona 85321 (520/387–4989 Direct; Service will implement management Refuge; 520/387–6483 Refuge Office; 520/387– strategies. (iv) To provide in a manner consistent 5359 Fax; [email protected] e- The Service will prepare an with subparagraphs (i) and (ii), mail). Environmental Impact Statement in opportunities for scientific research, FOR FURTHER INFORMATION CONTACT: John accordance with procedures for interpretation, environmental Morgart (see ADDRESSES). implementing the National education, and land management SUPPLEMENTARY INFORMATION: Environmental Policy Act of 1969 (42 training; and U.S.C. 4321–4370d). (v) To provide, in a manner Background The Kenai National Wildlife Refuge compatible with these purposes, opportunities for fish and wildlife- Restoring an endangered or covers approximately two million acres, threatened animal or plant species to roughly equivalent to the states of oriented recreation. The Comprehensive Conservation the point where it is again a secure, self- Delaware and Rhode Island combined. It sustaining member of its ecosystem is a occupies much of the Kenai Peninsula Plan for Kenai National Wildlife Refuge was completed in 1985. It is being primary goal of the Service’s and is readily accessible from the city of endangered species program. To help Anchorage, which contains 41.5 percent revised consistent with Section 304(g) of the Alaska National Interest Lands guide the recovery effort, the Service of the state’s population. The Kenai prepares recovery plans for most of the Refuge consists of the western slopes of Conservation Act, the National Wildlife Refuge System Improvement Act of listed species native to the United the Kenai Mountains and forested States. Recovery plans describe actions lowlands bordering Cook Inlet. The 1997, and U.S. Fish and Wildlife Service planning policy. considered necessary for conservation of Kenai Mountains, with their glaciers, species, including criteria for rise to more than 6,500 feet. Treeless Dated: November 7, 2003. downlisting or delisting, and time and alpine and subalpine habitats are the Rowan Gould, cost estimates for implementing the home of mountain goats, Dall sheep, Regional Director, U.S. Fish and Wildlife recommended recovery measures. caribou, wolverine, marmots, and Service, Anchorage, Alaska. In a recent court decision (Civil ptarmigan. Boreal forests extend to [FR Doc. 03–29303 Filed 11–25–03; 8:45 am] Action No. 99–927 (ESH)), the judge 1,800 feet above sea level and are BILLING CODE 4310–55–P ruled that the 1998 Final Revised composed of spruce and birch forests Sonoran Pronghorn Recovery Plan intermingled with hundreds of lakes. ‘‘* * * fails to establish (1) objective Boreal forests are home to moose, DEPARTMENT OF THE INTERIOR measurable criteria which, when met, wolves, black and brown bears, lynx, would result in a determination that the snowshoe hares, and numerous species Fish and Wildlife Service pronghorn may be removed from the list of neotropical birds such as olive-sided of endangered species or, if such criteria Notice of Availability of a Final flycatchers, myrtle warblers, and ruby- are not practicable, an explanation of Supplement and Amendment to the crowned kinglets. At sea level, the that conclusion and (2) estimates of the 1998 Final Revised Sonoran Pronghorn Refuge encompasses the last remaining time required to carry out those Recovery Plan—Recovery Criteria and pristine major salt water estuary on the measures needed to achieve the plan’s Estimates of Time for Recovery Kenai Peninsula: the Chickaloon River goal and to achieve intermediate steps Actions for the Sonoran Pronghorn Flats. The flats provide a major toward that goal where practicable, or, migratory staging area and nesting AGENCY: Fish and Wildlife Service, if such estimates are not practicable, an habitat for thousands of shorebirds and Interior. explanation of that conclusion.’’ The waterfowl throughout the spring, ACTION: Notice of document availability. Court ordered the Service to reconsider summer, and fall. The flats are also used these portions of the Recovery Plan. The as a haul-out area by harbor seals, and SUMMARY: The U.S. Fish and Wildlife deadline for completion of this task was thousands of salmon migrate up the Service (Service) announces the extended three times, with a final Chickaloon River system each year to availability of a Final Supplement and deadline of January 15, 2002. spawn. Amendment to the 1998 Final Revised The Endangered Species Act of 1973 The Alaska National Interests Land Sonoran Pronghorn (Antilocapra (Act), as amended (16 U.S.C. 1531 et Conservation Act of 1980 (Section americana sonoriensis) Recovery Plan seq.), requires the development of 303[4]) sets forth the following major (Recovery Plan). In the U.S., the species recovery plans for listed species unless purposes for which the Kenai Refuge is currently known to occur on Federal such a plan would not promote the was established and is to be managed: lands in Maricopa, Pima, and Yuma conservation of a particular species. (i) To conserve fish and wildlife counties in southwestern Arizona. The section 4(f) of the Act, as amended in populations and habitats in their natural Final Supplement and Amendment 1988, requires that public notice and an diversity including, but not limited to, reassesses recovery criteria from the opportunity for public review and

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comment be provided during recovery ACTION: Notice of intent. ADDRESSES: The meeting will be held at plan development. On September 25, the San Diego County Water Authority 2001, a 60-day public review and SUMMARY: Pursuant to the National Board Room, 4677 Overland Avenue, comment period for the Draft Environmental Policy Act (NEPA) of San Diego, California 92123. Comments Supplement and Amendment to the 1969, as amended, we, the U.S. Fish and should be sent to Mr. James Bartel, Field 1998 Final Revised Sonoran Pronghorn Wildlife Service (Service) are advising Supervisor, U.S. Fish and Wildlife Recovery Plan was initiated. The Final the public that we intend to gather Service, Carlsbad Fish and Wildlife Supplement and Amendment considers information necessary to prepare, in Office, 6010 Hidden Valley Road, all information received during the coordination with the San Diego County Carlsbad, California 92009; facsimile public comment period. In addition, the Water Authority (Authority), a joint (760) 431–9624. Service and other Federal agencies will programmatic Environmental Impact FOR FURTHER INFORMATION CONTACT: take these comments into account in the Report/Environmental Impact Statement Sandra Marquez, Fish and Wildlife course of implementing recovery (EIR/EIS) on the San Diego County Biologist, U.S. Fish and Wildlife Service activities. Water Authority Subregional Natural (see ADDRESSES), telephone (760) 431– The Final Supplement and Community Conservation Plan/Habitat 9440 for general information; or if you Amendment to the 1998 Final Revised Conservation Plan (NCCP/HCP) have questions about the meeting, Sonoran Pronghorn Recovery Plan proposed by the Authority for portions contact Tim Cass, Senior Water updates selected biological sections of of San Diego and Riverside County, Resources Specialist, San Diego County the Recovery Plan, addresses the five California. The HCP is being prepared Water Authority, telephone (858) 522– listing factors mandated by section under section 10(a)(1)(B) of the Federal 6758. 4(a)(1) of the Endangered Species Act of Endangered Species Act of 1973, as 1973, reassesses recovery criteria amended, (ESA); whereas the NCCP is SUPPLEMENTARY INFORMATION: presented in the Recovery Plan, and being prepared under the State of Availability of Documents where practicable, provides estimates of California’s Natural Community time necessary to carry out measures Conservation Planning Act. Background material may be obtained by contacting Tim Cass by phone (see needed to effect recovery of Sonoran The purpose of the EIR/EIS is to FOR FURTHER INFORMATION CONTACT) or pronghorn as articulated in the analyze the impacts of an incidental by letter sent to the San Diego County Recovery Plan. The Final Supplement take permit which the Authority will Water Authority, 4677 Overland and Amendment to the 1998 Final request from the Service for 29 federally Avenue, San Diego, California 92123. Revised Recovery Plan was developed listed threatened or endangered species by the Service in coordination with an and 55 unlisted species, should they Background appointed Recovery Team that includes become listed under the ESA during the Federal agencies are required to a group of scientists and agency term of the permit. This analysis is biologists with expertise in Sonoran conduct NEPA analyses of their needed under NEPA because the proposed actions to determine if the pronghorn ecology. The Final proposed Federal action of issuing an Supplement and Amendment to the actions may affect the human ESA permit may affect the human environment. The Service expects to Recovery Plan has undergone peer environment by authorizing take of review by scientists, conservation make a decision on issuance of an ESA listed species that could occur from section 10(a)(1)(B) permit application biologists, range experts, and others development, operations, and experienced in reviewing recovery expected to be submitted by the maintenance activities over an Authority. Therefore, the Service is plans, and incorporates their comments approximately 2,034,787-acre planning where applicable. seeking public input on the scope of the area in roughly the coastal half of San required NEPA analysis, including the Authority: The authority for this action is Diego County and the extreme range of reasonable alternatives and Section 4(f) of the Endangered Species Act, southwestern portion of Riverside associated impacts of any alternatives. 16 U.S.C. 1533(f). County. The proposed NCCP/HCP Section 9 of the ESA and Federal Dated: February 26, 2003. would identify those actions necessary regulations prohibit the ‘‘take’’ of David Yazzie, to maintain the viability of coastal sage animal species listed as endangered or Acting Regional Director. scrub and other habitat types in the threatened. Take is defined under the planning area. ESA as follows: to harass, harm, pursue, Editorial Note: This document was We provide this notice to: (1) Advise hunt, shoot, wound, kill, capture or received in the Office of the Federal Register other Federal and State agencies, on November 21, 2003. collect listed wildlife, or to attempt to affected Tribes, and the public of our engage in such conduct (16 U.S.C. [FR Doc. 03–29527 Filed 11–25–03; 8:45 am] intentions; (2) announce a public 1538). Harm includes habitat BILLING CODE 4310–55–P meeting and the initiation of a 30-day modification that kills or injures scoping period; and (3) obtain wildlife by significantly impairing suggestions and information on the essential behavioral patterns, including DEPARTMENT OF THE INTERIOR scope of issues to be included in the breeding, feeding, or sheltering. Under EIR/EIS. We invite written comments limited circumstances, the Service may Fish and Wildlife Service from interested parties to ensure that the issue permits for take of listed species full range of issues related to the permit that is incidental to, and not the Preparation of an Environmental request are identified. Impact Statement for Issuance of an purpose of, otherwise lawful activities. DATES: Incidental Take Permit Associated With The Service and the Authority Regulations governing permits for a Habitat Conservation Plan for the will hold a joint public scoping meeting threatened and endangered species are San Diego County Water Authority, on December 11, 2003, from 10 a.m. found in 50 CFR 17.32 and 50 CFR California until 12 noon. The Service will accept 17.22. written comments at the meeting and for If the Service decides to approve the AGENCY: Fish and Wildlife Service, 30 days after the date of publication of NCCP/HCP, we would authorize Interior. this notice. incidental take of the California

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gnatcatcher and 11other identified the Service and the CDFG increased Service Scoping federally listed animal species through certainty that lands will be conserved to We invite comments from all issuance of an ESA incidental take provide regional habitat resource interested parties to ensure that the full permit. The NCCP/HCP, coupled with protection. The Authority proposes to range of issues related to the permit an Implementation Agreement, could approach project design, request are addressed and that all also form the basis for issuing an implementation, and maintenance in a significant issues are identified. We will incidental take permit for identified systematic, ecologically sensitive conduct environmental review of the non-listed animal species, should these manner which focuses on the avoidance permit application in accordance with identified species be listed during the and minimization of impacts to the requirements of the NEPA of 1969 term of the permit. Although take of sensitive species and habitats that may as amended (42 U.S.C. 4321 et seq.), its plant species is not prohibited under the be affected by Authority activities. implementing regulations (40 CFR parts ESA, section 9, identified plant species, Authority activities subject to the 1500 through 1508), and with other both listed and unlisted, would be NCCP/HCP are anticipated to include appropriate Federal laws and included on the permit in recognition of certain specific development projects regulations, policies, and procedures of the conservation benefit provided for the Service for compliance with those the species if the Service finds these (such as expansion of existing regulations. We expect a draft EIR/EIS species are adequately covered under reservoirs, relocation of pipelines, and for the San Diego County Water the NCCP/HCP. construction of new pipelines and On March 25, 1993, the Service issued support facilities) and operation and Authority NCCP/HCP to be available for a Final Rule declaring the California maintenance activities necessary to public review during Summer 2004. gnatcatcher to be a threatened species ensure the proper functioning of Dated: November 20, 2003. (50 FR 16742). The Final Rule was existing and future Authority facilities. D. Kenneth McDermond, followed by a Special Rule on December Preliminary Alternatives Deputy Manager, California/Nevada 10, 1993 (50 FR 65088) to allow take of Operations Office, Sacramento, California. the California gnatcatcher pursuant to The EIR/EIS for the San Diego County [FR Doc. 03–29605 Filed 11–25–03; 8:45 am] section 4(d) of the ESA. The Special Water Authority Subregional NCCP/ BILLING CODE 4310–55–P Rule defined the conditions under HCP will assist the Service during its which take of the coastal California decision making process by enabling us gnatcatcher resulting from specified to analyze the environmental DEPARTMENT OF THE INTERIOR land use activities regulated by state and consequences of the proposed action Bureau of Land Management local government, would not violate and a full array of alternatives identified section 9 of the ESA. In the Special Rule during preparation of the NCCP/HCP. [WO–320–1990–FA–24 1A] the Service recognized the significant Although specific programmatic efforts undertaken by the State of alternatives for the proposed action OMB Approval Number 1004–0114; California through the Natural have not been prepared for public Information Collection Submitted to Community Conservation Planning Act discussion, the range of alternatives the Office of Management and Budget of 1991 and encouraged holistic Under the Paperwork Reduction Act management of listed species, like the preliminarily identified for coastal California gnatcatcher, and other consideration include: The Bureau of Land Management sensitive species. The Service declared Alternative 1, No Action/Project-by- (BLM) has sent a request to extend the current information collection to the its intent to permit incidental take of the Project Authorization California gnatcatcher associated with Office of Management and Budget land use activities covered by an The Authority would continue to seek (OMB) under the provisions of the approved subregional NCCP prepared permits for activities that could affect Paperwork Reduction Act (44 U.S.C.. under the NCCP Program, provided the listed species through continuing 3501 et seq.). On January 15, 2003, the Service determines that the subregional project-by-project review and permitting BLM published a notice in the Federal NCCP meets the issuance criteria of an pursuant to the National Environmental Register (68 FR 2071) requesting incidental take permit pursuant to Policy Act and sections 7 and 10 of the comment on this information collection. section 10(a)(1)(B) of the ESA and 50 ESA and in accordance with existing The comment period ended on March CFR 17.32(b)(2). The Authority habitat management efforts. The 17, 2003. BLM received no comments. currently intends to obtain the Service’s Authority would not participate in an You may obtain copies of the collection approval of the NCCP/HCP through a existing NCCP/HCP nor prepare their of information and related forms and section 10(a)(1)(B) permit. own plan. explanatory material by contacting the BLM Information Collection Clearance Proposed Action Alternative 2, Participation in an Officer at the telephone number listed The Service will prepare a joint EIR/ Existing NCCP/HCP below. EIS with the Authority, lead agency for The OMB must respond to this the NCCP/HCP. The Authority will The Authority would participate in request within 60 days but may respond prepare an EIR in accordance with the one or more of the existing land-use- after 30 days. For maximum California Environmental Quality Act. based subregional NCCP/HCPs in the consideration your comments and The Authority will publish a separate region, such as the Multiple Species suggestions on the requirement should Notice of Preparation for the EIR. Conservation Program in the southern be directed within 30 days to the Office The purpose of this subregional and central portions of San Diego of Management and Budget, Interior NCCP/HCP is to establish a long-term County, the draft Multiple Species Department Desk Officer (1004–0114), at plan for the conservation of covered Habitat Conservation Program in the OMB–OIRA via facsimile to (202) 395– species and the habitats associated with northwestern portion of San Diego 6566 or e-mail to Oira Authority activities. The proposed County, and/or the draft Multiple [email protected]. Please provide a NCCP/HCP will give the Authority Species Habitat Conservation Plan in copy of your comments to the Bureau increased regulatory certainty, and give southwestern Riverside County. Information Collection Clearance Officer

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(WO–630), Bureau of Land locate mining claims and petitions for associated cultural and natural Management, Eastern States Office, 7450 deferment of assessment work. resources and creating interpretive and Boston Blvd., Springfield, Virginia Annual Burden Hours: 31,585. educational programs. The alternatives 22153. Bureau Clearance Officer: Michael were presented at community forums in Nature of Comments: We specifically Schwartz, (202) 452–5033. October and November 2002. Responses request your comments on the Dated: September 5, 2003. from the meetings were incorporated following: Michael H. Schwartz, into the four alternatives described in 1. Whether the collection of Bureau of Land Management, Information the study. Under Alternative A, three information is necessary for the proper Collection Clearance Officer. coastal centers would be established functioning of the BLM including [FR Doc. 03–29580 Filed 11–25–03; 8:45 am] through partnerships with government whether the information will have agencies and nonprofit organizations. BILLING CODE 4310–84–M practical utility; The centers would be dispersed along 2. The accuracy of our estimates of the the southeastern U.S. coast where host information collection burden, DEPARTMENT OF THE INTERIOR and neighboring communities could including the validity of the provide support. The centers would methodology and assumptions we use; Notice of Availability interpret the history and evolving 3. Ways to enhance the quality, utility culture of the Gullah people from and clarity of the information we AGENCY: National Park Service, Interior. colonial times to the 21st Century and collect; and ACTION: Notice of availability of a Draft would provide learning opportunities 4. Ways to minimize the information Environmental Impact Statement for the for the casual visitor as well as residents collection burden on those who are to Low Country Gullah Culture Special of communities. Under Alternative B, respond, including the use of Resource Study. existing national park units would appropriate automated, electronic, collaborate with state and local park SUMMARY: Pursuant to section 102(2)(c) mechanical, or other forms of sites located in the project area to information technology. of the National Environmental Policy Act of 1969 (42 U.S.C. 4332; 40 CFR administer multi-partner interpretive Title: Recreation of Location Notices 1503.1) the National Park Service and educational programs. Cooperative and Annual Filings for Mining Claims, announces the availability of a Draft agreements among agencies would Mill Sites, and Tunnel Sites; Payment of Environmental Impact Statement (DEIS) identify and delegate administrative, Location and Maintenance Fees and for the Low Country Gullah Culture operational, and program functions for Service Charges. (43 CFR parts 3730, Special Resource Study. The document each partner. Under Alternative C, a 3810, 3820, 3830, and 3850). describes ways that the National Park National Heritage Area would be OMB Approval Number: 1004–0114. Service can assist in preserving Gullah established to connect and associate Bureau Form Number: 3830–2 and culture (more commonly known as Gullah resources. The National Park 3830–3. Geechee in Georgia and Florida) by Service would provide startup and Abstract: The Bureau of Land outlining four management alternatives related administrative assistance for the Management (BLM) collects an dudes for consideration by Congress, including heritage area. Overall management of the information to determine whether or a no-action alternative. The DEIS the heritage partnership would not mining claimants have met statutory analyzes the environmental impacts of eventually be administered by one or requirements. Mining claimants must those alternatives considered for the more local entities that would guide and record location notices of certificates of future protection, interpretation, and oversee the goals and objectives of the mining claims, mill sites, and tunnel management of Gullah cultural heritage area. Under Alternative D, sites with BLM within 90 days of their resources. The study area stretches Alternatives A and C would be location. Claimants who do not pay the along the southeastern United States combined into a single alternative. maintenance fee must make an annual coast roughly from the Cape Fear River It is the practice of the National Park filing by December 30. The mining in North Carolina to the St. John’s River Service to make comments, including claim or site is forfeited by operation of in Florida and approximately 30 miles names and home addresses of law if claimants fail to record the inland. respondents, available for public review mining claim or site or to submit an during regular business hours. annual filing when required. DATES: There will be a 60-day comment Anonymous comments will not be Frequency: Once for notices and period beginning with the considered. We will make all certificates of location, notice of intent Environmental Protection Agency’s submissions from organizations or to locate mining claims, and payment of publication of its notice of availability businesses, and from individuals location fees. Once each year for annual in the Federal Register. identifying themselves as filing, payment of maintenance fees, or ADDRESSES: Copies of the DEIS are representatives or officials of filing of waivers. As needed for available by contacting Cynthia Porcher, organizations or businesses, available recording of amendments to a Charles Pinckney National Historic Site, for public inspection in their entirety. previously recorded notice or certificate 1214 Middle Street, Sullivan’s Island, However, individual respondents may of location or transfer of interest. South Carolina, 29482. An electronic request that we withhold their names Description of Respondents: copy of the DEIS is available on the and addresses from the public record, Individuals, groups, or corporations. Internet at http://www.nps.gov/sero/ and we will honor such requests to the Estimated Completion Time: Eight ggsrs/gg_res.htm. extent allowed by law. If you wish to minutes for each document or payment SUPPLEMENTARY INFORMATION: The withhold your name and/or address, (one hour for a Deferment Petition) National Park Service held community you must state that request prominently Annual Responses: 236,852. and stakeholder meetings to gather at the beginning of your comment. Application Fee Per Response: We advice and feedback on desired charge $10 for each new claims, $5 each outcomes of the study. The meetings FOR FURTHER INFORMATION CONTACT: for all other mining claims documents, assisted the National Park Service in Cynthia Porcher, (803) 881–5516 or John and $25 for each notice of intent to developing alternatives for managing Barrett, 404–562–3124, extension 637.

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The responsible official for this draft Dated: April 30, 2003. developed in the late Woodland period. Environmental Impact Statement is George E. Price, Jr., The Plum Bayou Culture is Patricia A. Hooks, Acting Regional Superintendent, Boston Harbor Islands NRA. characterized by common vessel shapes Director, Southeast Region, National [FR Doc. 03–29499 Filed 11–25–03; 8:45 am] and a predominance of plainware; Park Service, 100 Alabama Street SW., BILLING CODE 4510–86–M minor amounts of Larto Red, Officer 1924 Building, Atlanta, Georgia 30303. Punctated, Coles Creek Incised (Keo Dated: October 22, 2003. variety), and French Fork Incised Wally Hibbard, DEPARTMENT OF THE INTERIOR vessels; particular styles of lithic tools; and use of some lithic raw materials Acting Deputy Regional Director, Southeast National Park Service Region. from central Arkansas sources. The Plum Bayou Culture has been [FR Doc. 03–29501 Filed 11–25–03; 8:45 am] Notice of Inventory Completion: extensively studied by Martha BILLING CODE 4310–66–P Arkansas Department of Parks and Rolingson, the archeologist at Toltec Tourism, Arkansas State Parks, Little Mounds Archeological State Park since Rock, AR, and Arkansas Archeological DEPARTMENT OF THE INTERIOR its establishment in 1976. Survey, Fayetteville, AR The remains of one individual and the National Park Service AGENCY: National Park Service. two associated funerary objects have been dated to the Menard Complex ACTION: Notice. Boston Harbor Islands Advisory (A.D. 1450 to 1700), a local tradition Council; Notice of Meeting Notice is here given in accordance that developed along the lower Arkansas River during the Mississippian Notice is hereby given in accordance with the Native American Graves Protection and Repatriation Act period. The Menard Complex is with the Federal Advisory Committee characterized by an increased Act (Pub. L. 92–463) that the Boston (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human prevalence of painted ware, and Harbor Islands Advisory Council will common vessel shapes including meet on Wednesday, December 3, 2003. remains and associated funerary objects in the control of Arkansas Department globular neck bottles and helmet bowls. The meeting will convene at 4 p.m. at The remains of nine individuals the New England Aquarium Conference of Parks and Tourism, Arkansas State Parks, Little Rock, AR, and in the cannot be precisely dated, but are Center, Central Wharf, Boston, MA. believed to have been interred at some The Advisory Council was appointed possession of the Arkansas Archeological Survey, Fayetteville, AR. point during the late Woodland, by the Director of National Park Service Mississippian, or historic period. pursuant to Public Law 104–333. The 28 The human remains and associated Toltec Mounds Archeological State members represent business, funerary objects were removed from Park is located along an oxbow of the educational/cultural, community and Toltec Mounds Archeological State lower Arkansas River. Archeological environmental entities; municipalities Park, Lonoke County, AR. evidence from the park indicates a surrounding Boston Harbor; Boston This notice is published as part of the continuity of human occupation from Harbor advocates; and Native American National Park Service’s administrative A.D. 750 into the historic period. French interests. The purpose of the Council is responsibilities under NAGPRA, 25 explorers documented Quapaw villages to advise and make recommendations to U.S.C. 3003 (d)(3). The determinations at the mouth of the Arkansas River the Boston Harbor Islands Partnership within this notice are the sole around 1700. The Quapaw are known to with respect to the development and responsibility of the museum, have hunted and traveled along the implementation of a management plan institution, or Federal agency that has central Arkansas River in the vicinity of and the operations of the Boston Harbor control of the Native American human Toltec Mounds Archeological State Park Islands national park area. remains and associated funerary objects. during the historic period. In 1818, the The Agenda for this meeting is as The National Park Service is not Quapaw ceded this portion of the follows: responsible for the determinations central Arkansas River valley, including 1. Call to Order, Introductions of within this notice. the land that became Toltec Mounds Advisory Council members present. A detailed assessment of the human Archeological State Park, to the United 2. Review and approval of minutes of remains was made by Arkansas States. The continuity of archeological the September meeting. Archeological Survey professional staff and historical evidence supports a 3. Outreach program. in consultation with representatives of relationship of shared group identity 4. Prepare for the March Elections. the Quapaw Tribe of Indians, Oklahoma between the prehistoric occupants of 5. Report from the NPS. and Arkansas Department of Parks and Toltec Mounds Archeological State Park 6. Public Comment. Tourism, Arkansas State Parks, Little and the Quapaw Tribe of Indians, 7. Next Meetings. Rock, AR. Oklahoma. 8. Adjourn. In 1979, 1989, 1998, and 1999, human The Quapaw Tribe of Indians, The meeting is open to the public. remains representing 15 individuals Oklahoma maintains a strong link to Further information concerning Council were removed by the Arkansas Toltec Mounds Archeological State meetings may be obtained from the Archeological Survey from site 3LN42 at Park, and has negotiated an agreement Superintendent, Boston Harbor Islands. Toltec Mounds Archeological State with the Arkansas State Parks to Interested persons may make oral/ Park. No known individuals were establish a Keepsafe Cemetery at the written presentations to the Council or identified. The two associated funerary park for the reburial of Native American file written statements. Such requests objects are one plain shell-tempered human remains and associated funerary should be made at least seven days prior ceramic bottle and one red-filmed shell- objects recovered from the Arkansas to the meeting to: Superintendent, tempered ceramic bowl. River valley. Quapaw traditional Boston Harbor Islands NRA, 408 The remains of five individuals have religious leaders have sanctified an area Atlantic Avenue, Boston, MA 02110, been dated to the Plum Bayou Culture of the site for reburial of human telephone (617) 223–8667. (A.D. 750 to 950), a local tradition that remains.

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Officials of Arkansas State Parks and historic Ute territory in El Paso, Rio identified. No associated funerary the Arkansas Archeological Survey have Grande, and Costilla Counties, CO. objects are present. Historic beads determined that, pursuant to 25 U.S.C. This notice is published as part of the associated with the human remains 3001 (9–10), the human remains National Park Service’s administrative were retained by the landowner. described above represent the physical responsibilities under NAGPRA, 25 Cranial morphology indicates that the remains of 15 individuals of Native U.S.C. 3003 (d)(3). The determinations human remains are Native American. American ancestry. Officials of within this notice are the sole The presence of historic beads and the Arkansas State Parks and the Arkansas responsibility of the museum, location of the burial in historic Ute Archeological Survey also have institution, or Federal agency that has territory indicate that this individual is determined that, pursuant to 25 U.S.C. control of the Native American human Ute. Mr. Eddie Box, Jr., Ute Mountain 3001 (3)(A), the two objects listed above remains. The National Park Service is Tribal Council representative, are reasonably believed to have been not responsible for the determinations confirmed this determination at the time placed with or near individual human within this notice. of discovery. remains at the time of death or later as A detailed assessment of the human In July 1984, human remains part of the death rite or ceremony. remains was made by The Colorado representing one individual were Lastly, officials of Arkansas State Parks College professional staff in discovered at site 5CT121, along a and the Arkansas Archeological Survey consultation with representatives of the cutbank of Ojito Creek, Costilla County, have determined that, pursuant to 25 Southern Ute Indian Tribe of the CO. On August 10, 1984, Mr. Van U.S.C. 3001 (2), there is a relationship Southern Ute Reservation, Colorado; Ute Button of the U.S. Department of the of shared group identity that can be Indian Tribe of the Uintah & Ouray Interior, Bureau of Reclamation, and Mr. reasonably traced between the Native Reservation, Utah; and Ute Mountain James Martinez of the local chapter of American human remains and Tribe of the Ute Mountain Reservation, the Colorado Archaeological Society associated funerary objects and the Colorado, New Mexico & Utah. removed the human remains after the Quapaw Tribe of Indians, Oklahoma. On November 13, 1969, human Costilla County Coroner determined that Representatives of any other Indian remains representing one individual there was no forensic significance. The tribe that believes itself to be culturally were found along a tributary of Beaver human remains were transferred to the affiliated with the human remains and Creek on the Bill Brown Ranch about 3 The Colorado College Anthropology associated funerary objects should miles southwest of Monument, El Paso Department for study and curation contact Patricia Murphy, Director, County, CO. Professor Michael Nowak (Accession no. Costilla Cty 081084). No Historical Resources and Museum of The Colorado College removed the known individuals were identified. No Services, Arkansas State Parks, One human remains from the site in associated funerary objects are present. Capitol Mall, Little Rock, AR 72201, November 1969 and placed them in the Cranial morphology indicates that the remains are Native American.The telephone (501) 682–3603, before Anthropology Department Archaeology Laboratory in Palmer Hall (Accession Southern Ute Indian Tribe map December 26, 2003. Repatriation of the no. 1980.2.6). The human remains were ‘‘Original Ute Domain’’ identifies El human remains and associated funerary moved in 1989 to the Biological Paso, Rio Grande, and Costilla Counties objects to the Quapaw Tribe of Indians, Anthropology Research Laboratory of as a part of the original domain of the Oklahoma may proceed after that date if Barnes Science Center. No known Ute. Mr. Neil Cloud, NAGPRA no additional claimants come forward. The Arkansas Archeological Survey in individuals were identified. No Representative, Southern Ute Indian conjunction with Arkansas State Parks associated funerary objects are present. Tribe of the Southern Ute Reservation, Colorado, provided folklore, oral is responsible for notifying the Quapaw A brass U.S. Army button was found with the human remains but cannot be tradition, geographical, and historical Tribe of Indians, Oklahoma, that this located at this time. evidence that the three individuals are notice has been published. Cranial morphology indicates that the most likely Ute. Dated: October 28, 2003. remains are Native American. The Officials of The Colorado College have John Robbins, burial site and context support this determined that, pursuant to 25 U.S.C. Assistant Director, Cultural Resources. determination. The human remains are 3001 (9–10), the human remains [FR Doc. 03–29503 Filed 11–25–03; 8:45 am] believed to have been interred between described above represent the physical BILLING CODE 4310–50–S 1869 and 1919 based on the presence of remains of three individuals of Native the brass U.S. Army button found with American ancestry. Officials of The the human remains. The Cheyenne and Colorado College also have determined DEPARTMENT OF THE INTERIOR Arapahoe tribes had left Colorado by that, pursuant to 25 U.S.C. 3001 (2), 1865, and only the Ute tribes remained there is a relationship of shared group National Park Service after that date. identity that can be reasonably traced On June 10, 1981, human remains between the Native American human Notice of Inventory Completion: The representing one individual were remains and the Southern Ute Indian Colorado College, Colorado Springs, discovered at the Graeser Petroglyph Tribe of the Southern Ute Reservation, CO site (5RN11) near Monte Vista, Rio Colorado; Ute Indian Tribe of the Uintah AGENCY: National Park Service, Interior. Grande County, CO. State Archaeologist & Ouray Reservation, Utah; and Ute ACTION: Notice. Emerson Pearson and two assistants Mountain Tribe of the Ute Mountain removed the human remains on June 11, Reservation, Colorado, New Mexico & Notice is here given in accordance 1981, after the Rio Grande County Utah. with the Native American Graves Coroner determined that the remains Representatives of any other Indian Protection and Repatriation Act were of historic, not forensic, interest. tribe that believes itself to be culturally (NAGPRA), 25 U.S.C. 3003, of the Mr. Pearson transferred the human affiliated with the human remains completion of an inventory of human remains to The Colorado College should contact Joyce Eastburg, Legal remains in the possession of The Anthropology Department for curation Assistant, The Colorado College, 14 East Colorado College, Colorado Springs, CO. (Accession no. Rio Grande CCO Cache La Poudre Street, Colorado The human remains were removed from 061181). No known individuals were Springs, CO 80903, telephone (719)

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389–6703, before December 26, 2003. Northern Cheyenne Indian Reservation, County, CO. The discovery resulted Repatriation of the human remains to Montana; Southern Ute Indian Tribe of from a construction project. After the the Southern Ute Indian Tribe of the the Southern Ute Reservation, Colorado; county coroner and local police Southern Ute Reservation, Colorado Ute Indian Tribe of the Uintah & Ouray determined that the human remains may proceed after that date if no Reservation, Utah; and Ute Mountain were not of forensic significance, Ms. additional claimants come forward. Tribe of the Ute Mountain Reservation, Kim Spurr of The Colorado College The Colorado College is responsible Colorado, New Mexico & Utah. Anthropology Department took the for notifying the Southern Ute Indian In April 1960, human remains human remains back to the college for Tribe of the Southern Ute Reservation, representing one individual were study and curation (Accession no. El Colorado; Ute Indian Tribe of the Uintah removed from Pueblo County, CO, by Paso Cty 050389). No known individual & Ouray Reservation, Utah; and Ute the Kenneth Englert family and donated was identified. No associated funerary Mountain Tribe of the Ute Mountain to The Colorado College soon after objects are present. Cranial morphology Reservation, Colorado, New Mexico & (Accession no. 1980.2.3). In the summer and the flexed position of the burial Utah that this notice has been of 1960, the human remains were sent indicate that the human remains are published. to the University of Kansas for Native American. description and analysis and were then Dated: October 24, 2003. In 1985, human remains representing returned to The Colorado College. No one individual were discovered on John Robbins, known individual was identified. No Assistant Director, Cultural Resources. private land during operations at a associated funerary objects are present. gravel pit near Pikes Peak Meadows, [FR Doc. 03–29507 Filed 11–25–03; 8:45 am] Cranial morphology and burial context south of Colorado Springs, El Paso BILLING CODE 4310–50–S indicate that the human remains are County, CO. After investigation by the Native American. El Paso County Coroner’s Office On April 14, 1966, human remains DEPARTMENT OF THE INTERIOR determined that there was no forensic representing two individuals were significance, the human remains were discovered on Kelly Ranch along Horse transferred to the The Colorado College National Park Service Creek, approximately 60 miles east of Anthropology Department in Palmer Colorado Springs. It is not known Notice of Inventory Completion: The Hall for curation and educational whether Kelly Ranch was in southern Colorado College, Colorado Springs, purposes (Accession no. El Paso CCO Elbert County or in Lincoln County, CO. CO ι85A–235). In 1989, the human remains Horse Creek runs through both counties. were moved to the Biological AGENCY: National Park Service, Interior. Paul Kutsche of The Colorado College Anthropology Research Laboratory in Anthropology Department retrieved the ACTION: Notice. Barnes Science Center. No known human remains and brought them back individual was identified. No associated Notice is here given in accordance to the college. The human remains were funerary objects are present. Cranial with the Native American Graves curated in the Anthropology Protection and Repatriation Act Department Archaeology Laboratory in morphology indicates that the human (NAGPRA), 25 U.S.C. 3003, of the Palmer Hall until 1989 and were then remains are Native American. completion of an inventory of human transferred to the Biological In 1989, human remains representing remains in the possession of The Anthropology Research Laboratory of one individual were discovered eroding Colorado College, Colorado Springs, CO. Barnes Science Center (Accession no. out of a cutbank along State Highway The human remains were removed from 1980.2.4). No known individuals were 115, Fremont County, CO. After Pueblo, El Paso, Fremont, Las Animas, identified. No associated funerary investigation by the Fremont County and either Lincoln or Elbert Counties in objects are present. Cranial morphology Coroner’s Office determined that there eastern Colorado. indicates that the human remains are was no forensic significance, the human This notice is published as part of the Native American. remains were transferred to the National Park Service’s administrative In spring of 1968, a young boy found Biological Anthropology Research responsibilities under NAGPRA, 25 human remains representing a Laboratory, Barnes Science Center at U.S.C. 3003 (d)(3). The determinations minimum of one individual on a The Colorado College for curation and within this notice are the sole hillside south of Stratmoor Hills Golf educational purposes (Accession no. El responsibility of the museum, Club, near the ‘‘B’’ Street entrance gate Paso CCO 082989). No known institution, or Federal agency that has of Fort Carson, El Paso County, CO. The individual was identified. No associated control of the Native American human human remains were removed in July funerary objects are present. Cranial remains. The National Park Service is 1968 by Professor Michael Nowak of morphology indicates that the human not responsible for the determinations The Colorado College. The human remains are Native American. within this notice. remains were curated in the In 1990, human remains representing A detailed assessment of the human Anthropology Department Archaeology one individual were discovered eroding remains was made by The Colorado Laboratory in Palmer Hall until 1989 from an embankment on private land in College professional staff in and then transferred to the Biological Las Animas County, CO. After consultation with representatives of the Anthropology Research Laboratory of investigation by the Las Animas County Apache Tribe of Oklahoma; Arapahoe Barnes Science Center (Accession no. Coroner’s Office determined that there Tribe of the Wind River Reservation, 1980.2.5). No known individual was was no forensic significance, the human Wyoming; Cheyenne-Arapaho Tribes of identified. No associated funerary remains were transferred to the Oklahoma; Comanche Nation, objects are present. The burial site and Biological Anthropology Research Oklahoma; Fort Sill Apache Tribe of context indicate that the human remains Laboratory in Barnes Science Center at Oklahoma; Jicarilla Apache Nation, New are Native American. The Colorado College for curation and Mexico; Kiowa Indian Tribe of On May 3, 1989, human remains educational purposes (Accession no. Oklahoma; Mescalero Apache Tribe of representing one individual were CCO 071190). No known individual was the Mescalero Reservation, New Mexico; removed from site 5EP1175 on private identified. No associated funerary Northern Cheyenne Tribe of the land in Colorado Springs, El Paso objects are present. Cranial morphology

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indicates that the human remains are River Reservation, Wyoming; Cheyenne- Northern Cheyenne Indian Reservation, Native American. Arapaho Tribes of Oklahoma; Comanche Montana; Southern Ute Indian Tribe of The map ‘‘Indian Land Areas Nation, Oklahoma; Fort Sill Apache the Southern Ute Reservation, Colorado; Judicially Established 1978’’ includes Tribe of Oklahoma; Jicarilla Apache Ute Indian Tribe of the Uintah & Ouray the eastern Colorado counties of Pueblo, Nation, New Mexico; Kiowa Indian Reservation, Utah; and Ute Mountain El Paso, Fremont, Lincoln, and Elbert in Tribe of Oklahoma; Mescalero Apache Tribe of the Ute Mountain Reservation, the land aboriginally occupied by the Tribe of the Mescalero Reservation, New Colorado, New Mexico & Utah. Cheyenne and Arapaho tribes. The Mexico; Northern Cheyenne Tribe of the In October 1973, human remains Colorado Office of Archaeology and Northern Cheyenne Indian Reservation, representing one individual were Historic Preservation map ‘‘Estimated Montana; Southern Ute Indian Tribe of removed from site 34CI267, feature Tribal Territories in Colorado During the Southern Ute Reservation, Colorado; NCE3 RS2, Cimarron County, OK, by the Late Nineteenth Century’’ shows the Ute Indian Tribe of the Uintah & Ouray archeology field school students under presence of the Apache, Arapaho, Reservation, Utah; and Ute Mountain the direction of Professor Michael Cheyenne, Comanche, and Kiowa in all Tribe of the Ute Mountain Reservation, Nowak of The Colorado College of eastern Colorado. The Southern Ute Colorado, New Mexico & Utah that this Anthropology Department. The burial Indian Tribe map ‘‘Original Ute notice has been published. had been disturbed prior to discovery. Domain’’ includes El Paso, Pueblo, The human remains were curated in the Fremont, Las Animas, Lincoln, and Dated: October 28, 2003. Anthropology Department Archaeology Elbert Counties as a part of the original John Robbins, Laboratory in Palmer Hall and domain of the Ute. Official tribal Assistant Director, Cultural Resources. transferred in 1989 to the Biological representatives provided folklore, oral [FR Doc. 03–29508 Filed 11–25–03; 8:45 am] Anthropology Research Laboratory of tradition, geographical, and historical BILLING CODE 4310–50–S Barnes Science Center (Accession no. evidence of cultural affiliation, all of 1980.2.1). No known individuals were which indicated that eastern Colorado is identified. No associated funerary a part of their traditional territory. DEPARTMENT OF THE INTERIOR objects are present. Cranial morphology Officials of The Colorado College have indicates that the human remains are determined that, pursuant to 25 U.S.C. National Park Service Native American. 3001 (9–10), the human remains listed Notice of Inventory Completion: The In October 1979, human remains above represent the physical remains of Colorado College, Colorado Springs, representing one individual were eight individuals of Native American removed from site 5BA317, Baca CO ancestry. Officials of The Colorado County, CO, by archeology field school College also have determined that, AGENCY: National Park Service, Interior. students under the direction of pursuant to 25 U.S.C. 3001 (2), there is ACTION: Notice. Professor Michael Nowak. The human a relationship of shared group identity remains were curated in The Colorado that can be reasonably traced between Notice is here given in accordance College Anthropology Department the Native American human remains with the Native American Graves Archaeology Laboratory in Palmer Hall and the Apache Tribe of Oklahoma; Protection and Repatriation Act and were transferred in 1989 to the Arapahoe Tribe of the Wind River (NAGPRA), 25 U.S.C. 3003, of the Biological Anthropology Research Reservation, Wyoming; Cheyenne- completion of an inventory of human Laboratory of Barnes Science Center Arapaho Tribes of Oklahoma; Comanche remains in the possession of The (Accession no. 1980.2.2). No known Nation, Oklahoma; Fort Sill Apache Colorado College, Colorado Springs, CO. individuals were identified. No Tribe of Oklahoma; Jicarilla Apache The human remains were removed from associated funerary objects are present. Nation, New Mexico; Kiowa Indian Cimarron County, OK, and Baca County, Cranial morphology indicates that the Tribe of Oklahoma; Mescalero Apache CO. human remains are Native American. Tribe of the Mescalero Reservation, New This notice is published as part of the The map ‘‘Indian Land Areas Mexico; Northern Cheyenne Tribe of the National Park Service’s administrative Judicially Established 1978’’ indicates Northern Cheyenne Indian Reservation, responsibilities under NAGPRA, 25 that Cimarron County, OK, and Baca Montana; Southern Ute Indian Tribe of U.S.C. 3003 (d)(3). The determinations County, CO, were aboriginally occupied the Southern Ute Reservation, Colorado; within this notice are the sole by the Apache, Comanche, and Kiowa Ute Indian Tribe of the Uintah & Ouray responsibility of the museum, tribes. The map ‘‘Early Indian Tribes, Reservation, Utah; and Ute Mountain institution, or Federal agency that has Culture Areas, and Linguistic Stocks’’ Tribe of the Ute Mountain Reservation, control of the Native American human establishes the presence of the Kiowa in Colorado, New Mexico & Utah. remains. The National Park Service is Cimarron and Baca Counties at the time Representatives of any other Indian not responsible for the determinations of contact. The Southern Ute Indian tribe that believes itself to be culturally within this notice. Tribe map ‘‘Original Ute Domain’’ affiliated with the human remains A detailed assessment of the human includes Cimarron and Baca Counties as should contact Joyce Eastburg, Legal remains was made by The Colorado a part of the hunting ground of the Ute, Assistant, The Colorado College, 14 East College professional staff in but Mr. Neil Cloud, NAGPRA Cache La Poudre Street, Colorado consultation with representatives of the representative, Southern Ute Indian Springs, CO 80903, telephone (719) Apache Tribe of Oklahoma; Arapahoe Tribe of the Southern Ute Reservation, 389–6703, before December 26, 2003. Tribe of the Wind River Reservation, Colorado stated that the area is too far Repatriation of the human remains to Wyoming; Cheyenne-Arapaho Tribes of east. Official tribal representatives from the Southern Ute Indian Tribe of the Oklahoma; Comanche Nation, the Cheyenne-Arapaho Tribes of Southern Ute Reservation, Colorado Oklahoma; Fort Sill Apache Tribe of Oklahoma; Comanche Nation, may proceed after that date if no Oklahoma; Jicarilla Apache Nation, New Oklahoma; and Mescalero Apache Tribe additional claimants come forward. Mexico; Kiowa Indian Tribe of of the Mescalero Reservation, New The Colorado College is responsible Oklahoma; Mescalero Apache Tribe of Mexico provided folklore, oral tradition, for notifying the Apache Tribe of the Mescalero Reservation, New Mexico; geographical, and historical evidence of Oklahoma; Arapahoe Tribe of the Wind Northern Cheyenne Tribe of the cultural affiliation, all of which

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indicated that Cimarron County, OK, Dated: October 28, 2003. shows that the human remains were and Baca County, CO, are part of their John Robbins, ever accessioned by the Denver Art traditional territory. Assistant Director, Cultural Resources. Museum. A rattlesnake rattle found Officials of The Colorado College have [FR Doc. 03–29509 Filed 11–25–03; 8:45 am] inside the jar is thought to have been determined that, pursuant to 25 U.S.C. BILLING CODE 4310–50–S added after the jar was acquired by the 3001 (9–10), the human remains Denver Art Museum. described above represent the physical Archeological evidence has remains of two individuals of Native DEPARTMENT OF THE INTERIOR demonstrated that pit or urn cremations American ancestry. Officials of The were the predominant Hohokam burial Colorado College also have determined National Park Service practice prior to A.D. 1100. Extended that, pursuant to 25 U.S.C. 3001 (2), supine inhumations then became more there is a relationship of shared group Notice of Inventory Completion: prevalent, completely replacing identity that can be reasonably traced Denver Art Museum, Denver, CO cremations by A.D. 1300. Officials of the Denver Art Museum recognize that between the Native American human AGENCY: National Park Service, Interior. remains and the Apache Tribe of while ceramic jars and shells had other ACTION: Notice. Oklahoma; Arapahoe Tribe of the Wind uses within Hohokam culture, the assembly of this particular ceramic jar River Reservation, Wyoming; Cheyenne- Notice is here given in accordance and shell fragments was made Arapaho Tribes of Oklahoma; Comanche with the Native American Graves exclusively for burial purposes. Nation, Oklahoma; Fort Sill Apache Protection and Repatriation Act Tribe of Oklahoma; Jicarilla Apache Archeological evidence has (NAGPRA), 25 U.S.C. 3003, of the demonstrated a strong relationship of Nation, New Mexico; Kiowa Indian completion of an inventory of Native Tribe of Oklahoma; Mescalero Apache shared group identity between the American associated funerary objects in Hohokam and the present-day O’odham Tribe of the Mescalero Reservation, New the possession of the Denver Art Mexico; and Northern Cheyenne Tribe (Pima and Papago) and Hopi. The Museum, Denver, CO. The associated O’odham people are currently of the Northern Cheyenne Indian funerary objects were removed from an represented by the Ak Chin Indian Reservation, Montana. unidentified location in Arizona. Community of the Maricopa (Ak Chin) Representatives of any other Indian This notice is published as part of the Indian Reservation, Arizona; Gila River tribe that believes itself to be culturally National Park Service’s administrative Indian Community of the Gila River affiliated with the human remains responsibilities under NAGPRA, 25 Indian Reservation, Arizona; Salt River should contact Joyce Eastburg, Legal U.S.C. 3003 (d)(3). The determinations Pima-Maricopa Indian Community of Assistant, The Colorado College, 14 East within this notice are the sole the Salt River Reservation, Arizona; and Cache La Poudre Street, Colorado responsibility of the museum, Tohono O’odham Nation of Arizona. In Springs, CO 80903, telephone (719) institution, or Federal agency that has 1990, representatives of the Ak Chin 389–6703, before December 26, 2003. control of the associated funerary Indian Community of the Maricopa (Ak Repatriation of the human remains to objects. The National Park Service is not Chin) Indian Reservation, Arizona; Gila the Apache Tribe of Oklahoma; responsible for the determinations River Indian Community of the Gila Arapahoe Tribe of the Wind River within this notice. River Indian Reservation, Arizona; Salt Reservation, Wyoming; Cheyenne- A detailed assessment of the River Pima-Maricopa Indian Arapaho Tribes of Oklahoma; Comanche associated funerary objects was made by Community of the Salt River Nation, Oklahoma; Fort Sill Apache Denver Art Museum professional staff in Reservation, Arizona; and Tohono Tribe of Oklahoma; Jicarilla Apache consultation with representatives of the O’odham Nation of Arizona issued a Nation, New Mexico; Kiowa Indian Ak Chin Indian Community of the joint policy statement claiming ancestral Tribe of Oklahoma; Mescalero Apache Maricopa (Ak Chin) Indian Reservation, ties to the Hohokam cultural traditions. Tribe of the Mescalero Reservation, New Arizona; Gila River Indian Community Hopi oral tradition places the origins Mexico; and Northern Cheyenne Tribe of the Gila River Indian Reservation, of their Patki, Sun, Sand, Corn, and of the Northern Cheyenne Indian Arizona; Hopi Tribe of Arizona; Salt Tobacco Clans south of the Colorado Reservation, Montana may proceed after River Pima-Maricopa Indian plateau. While the Hopi oral traditions that date if no additional claimants Community of the Salt River do not identify specific locations, some come forward. Reservation, Arizona; Tohono O’odham of the descriptions are consistent with The Colorado College is responsible Nation of Arizona; and Zuni Tribe of the Hohokam settlements in central Arizona for notifying the Apache Tribe of Zuni Reservation, New Mexico. during the Classic period. O’odham oral Oklahoma; Arapahoe Tribe of the Wind At an unknown date prior to 1972, traditions indicate that some of the River Reservation, Wyoming; Cheyenne- one ceramic jar and six shell fragments Hohokam people migrated north and Arapaho Tribes of Oklahoma; Comanche were acquired by Ralph Ray of joined the Hopi. In 1994, representatives Nation, Oklahoma; Fort Sill Apache Wheatridge, CO. The ceramic jar is buff of the Hopi Tribe of Arizona issued a Tribe of Oklahoma; Jicarilla Apache in color and made of micaceous clay. It statement claiming cultural affiliation Nation, New Mexico; Kiowa Indian measures 16.4 cm high and 17.3 cm in with Hohokam cultural traditions. Tribe of Oklahoma; Mescalero Apache diameter and features one loop handle Zuni oral traditions mention Tribe of the Mescalero Reservation, New on the rim. The ceramic jar is similar to Hawikuh, a Zuni community, as a Mexico; Northern Cheyenne Tribe of the plainware types typically found at destination of settlers from the Northern Cheyenne Indian Reservation, Hohokam sites in Arizona. The shell Hohokam area. Zuni language, prayers, Montana; Southern Ute Indian Tribe of fragments represent as many as three and rituals used by the Zuni Shu the Southern Ute Reservation, Colorado; different types of Glycymeris. The maakwe medicine society have Ute Indian Tribe of the Uintah & Ouray ceramic jar and shell fragments were descended from the Hohokam. In 1995, Reservation, Utah; and Ute Mountain donated to the Denver Art Museum in representatives of the Zuni Tribe of the Tribe of the Ute Mountain Reservation, 1972. According to Denver Art Museum Zuni Reservation, New Mexico issued a Colorado, New Mexico & Utah that this documentation, the jar originally held statement claiming cultural affiliation notice has been published. cremated human remains. No evidence with the Hohokam cultural traditions.

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Officials of the Denver Art Museum DEPARTMENT OF THE INTERIOR Reservation, Montana; Cheyenne River have determined that, pursuant to 25 Sioux Tribe of the Cheyenne River U.S.C. 3001 (9–10), the seven cultural National Park Service Reservation, South Dakota; Lower Brule items are reasonably believed to have Sioux Tribe of the Lower Brule Notice of Inventory Completion: Illinois been made exclusively for burial Reservation, South Dakota; Oglala Sioux State Museum, Springfield, IL purposes or to contain human remains. Tribe of the Pine Ridge Reservation, Officials of the Denver Art Museum also AGENCY: National Park Service, Interior. South Dakota; Rosebud Sioux Tribe of the Rosebud Indian Reservation, South have determined that, pursuant to 25 ACTION: Notice. U.S.C. 3001 (3)(A), there is a Dakota; and Standing Rock Sioux Tribe of North & South Dakota. relationship of shared group identity Notice is here given in accordance Officials of the Illinois State Museum that can be reasonably traced between with the Native American Graves Protection and Repatriation Act have determined that, pursuant to 25 the associated funerary objects and the U.S.C. 3001 (9–10), the human remains Ak Chin Indian Community of the (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human described above represent the physical Maricopa (Ak Chin) Indian Reservation, remains of one individual of Native Arizona; Gila River Indian Community remains in the possession of Illinois State Museum, Springfield, IL. The American ancestry. Officials of the of the Gila River Indian Reservation, Illinois State Museum also have Arizona; Hopi Tribe of Arizona; Salt human remains were removed from Fort Robinson, Dawes County, NE. determined that, pursuant to 25 U.S.C. River Pima-Maricopa Indian 3001 (2), there is a relationship of This notice is published as part of the Community of the Salt River shared group identity that can be National Park Service’s administrative reasonably traced between the Native Reservation, Arizona; Tohono O’odham responsibilities under NAGPRA, 25 American human remains and the Nation of Arizona; and Zuni Tribe of the U.S.C. 3003 (d)(3). The determinations Assiniboine and Sioux Tribes of the Fort Zuni Reservation, New Mexico. within this notice are the sole Peck Indian Reservation, Montana; Representatives of any other Indian responsibility of the museum, Cheyenne River Sioux Tribe of the tribe that believes itself to be culturally institution, or Federal agency that has Cheyenne River Reservation, South control of the Native American human affiliated with the associated funerary Dakota; Lower Brule Sioux Tribe of the remains. The National Park Service is objects should contact Nancy J. Lower Brule Reservation, South Dakota; Blomberg, Curator of Native Arts, not responsible for the determinations Oglala Sioux Tribe of the Pine Ridge Denver Art Museum, 100 West 14th within this notice. Reservation, South Dakota; Rosebud Avenue Parkway, Denver, CO 80204, A detailed assessment of the human Sioux Tribe of the Rosebud Indian telephone (720) 913–0161 before remains was made by Illinois State Reservation, South Dakota; and December 26, 2003. Repatriation of the Museum professional staff in Standing Rock Sioux Tribe of North & associated funerary objects to the Ak consultation with representatives of the South Dakota. Chin Indian Community of the Assiniboine and Sioux Tribes of the Fort Representatives of any other Indian Maricopa (Ak Chin) Indian Reservation, Peck Indian Reservation, Montana; tribe that believes itself to be culturally Arizona; Gila River Indian Community Cheyenne River Sioux Tribe of the affiliated with the human remains Cheyenne River Reservation, South of the Gila River Indian Reservation, should contact Dr. Robert E. Warren, Dakota; Lower Brule Sioux Tribe of the Arizona; Hopi Tribe of Arizona; Salt Curator of Anthropology, Illinois State Lower Brule Reservation, South Dakota; Museum, 1011 East Ash Street, River Pima-Maricopa Indian Oglala Sioux Tribe of the Pine Ridge Community of the Salt River Springfield, IL, telephone (217) 524– Reservation, South Dakota; Rosebud 7903, before December 26, 2003. Reservation, Arizona; Tohono O’odham Sioux Tribe of the Rosebud Indian Nation of Arizona; and Zuni Tribe of the Repatriation of the human remains to Reservation, South Dakota; and the Assiniboine and Sioux Tribes of the Zuni Reservation, New Mexico may Standing Rock Sioux Tribe of North & Fort Peck Indian Reservation, Montana; proceed after that date if no additional South Dakota. Cheyenne River Sioux Tribe of the claimants come forward. Prior to 1962, human remains Cheyenne River Reservation, South The Denver Art Museum is representing one individual were Dakota; Lower Brule Sioux Tribe of the responsible for notifying the Ak Chin removed from Fort Robinson, Nebraska, Lower Brule Reservation, South Dakota; Indian Community of the Maricopa (Ak by an unidentified person or persons. Oglala Sioux Tribe of the Pine Ridge Chin) Indian Reservation, Arizona; Gila The remains were later donated to the Reservation, South Dakota; Rosebud River Indian Community of the Gila Quincy Museum of Natural History and Sioux Tribe of the Rosebud Indian River Indian Reservation, Arizona; Hopi Art, Quincy, IL. In 1991, the Quincy Reservation, South Dakota; and Tribe of Arizona; Salt River Pima- Museum of Natural History and Art Standing Rock Sioux Tribe of North & Maricopa Indian Community of the Salt transferred possession and control of the South Dakota may proceed after that River Reservation, Arizona; Tohono human remains to the Illinois State date if no additional claimants come Museum. The transfer inventory O’odham Nation of Arizona; and Zuni forward. identifies the remains as ‘‘Sioux female. The Illinois State Museum is Tribe of the Zuni Reservation, New Fort Robinson, Neb.’’ No known responsible for notifying the Mexico that this notice has been individual was identified. No associated Assiniboine and Sioux Tribes of the Fort published. funerary objects are present. Peck Indian Reservation, Montana; Dated: October 28, 2003. The cranial morphology of the human Cheyenne River Sioux Tribe of the John Robbins, remains indicates that the individual is Cheyenne River Reservation, South Assistant Director, Cultural Resources. likely to be Native American. Fort Dakota; Lower Brule Sioux Tribe of the Robinson was an important military Lower Brule Reservation, South Dakota; [FR Doc. 03–29506 Filed 11–25–03; 8:45 am] post in the Sioux territory. The Sioux Oglala Sioux Tribe of the Pine Ridge BILLING CODE 4310–50–S Indians are represented by six present- Reservation, South Dakota; Rosebud day Indian tribes, the Assiniboine and Sioux Tribe of the Rosebud Indian Sioux Tribes of the Fort Peck Indian Reservation, South Dakota; and

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Standing Rock Sioux Tribe of North & University of Idaho, Alfred W. Bowers 1111, telephone (208) 885–3733, before South Dakota that this notice has been Laboratory of Anthropology. No known December 26, 2003. Repatriation of the published. individuals were identified. The five human remains and associated funerary Dated: September 10, 2003. associated funerary objects in which the objects to the Ak Chin Indian cremated human remains were buried John Robbins, Community of the Maricopa (Ak Chin) are one Gila Red ceramic vessel, two Indian Reservation, Arizona; Gila River Assistant Director, Cultural Resources. Tanque Verde Red-on-Brown ceramic Indian Community of the Gila River [FR Doc. 03–29510 Filed 11–25–03; 8:45 am] vessels, and two Hohokam Plain Indian Reservation, Arizona; Salt River BILLING CODE ????–??–S ceramic vessels. Pima-Maricopa Indian Community of Archeological evidence indicates that the Salt River Reservation, Arizona; and the Gila Red, Tanque Verde Red-on- Tohono O’odham Nation of Arizona DEPARTMENT OF THE INTERIOR Brown, and Hohokam Plain pottery may proceed after that date if no types are clearly associated with the National Park Service additional claimants come forward. Classic period (A.D. 1250–1350) of the The University of Idaho, Alfred W. Notice of Inventory Completion: Hohokam culture of central and Bowers Laboratory of Anthropology is University of Idaho, Alfred W. Bowers southern Arizona. Archeological responsible for notifying Ak Chin Indian Laboratory of Anthropology, Moscow, evidence indicates that pit or urn Community of the Maricopa (Ak Chin) ID cremations were a common Hohokam Indian Reservation, Arizona; Gila River burial practice. Archeological evidence Indian Community of the Gila River AGENCY: National Park Service, Interior. and oral traditions demonstrate a strong Indian Reservation, Arizona; Salt River ACTION: Notice. relationship of shared group identity Pima-Maricopa Indian Community of between the Hohokam and the present- the Salt River Reservation, Arizona; and Notice is here given in accordance day Ak Chin Indian Community of the Tohono O’odham Nation of Arizona that with the Native American Graves Maricopa (Ak Chin) Indian Reservation, this notice has been published. Protection and Repatriation Act Arizona; Gila River Indian Community (NAGPRA), 25 U.S.C. 3003, of the of the Gila River Indian Reservation, Dated: October 21, 2003. completion of an inventory of human Arizona; Salt River Pima-Maricopa John Robbins, remains and associated funerary objects Indian Community of the Salt River Assistant Director, Cultural Resources. in the possession of the University of Reservation, Arizona; and Tohono [FR Doc. 03–29504 Filed 11–25–03; 8:45 am] Idaho, Alfred W. Bowers Laboratory of O’odham Nation of Arizona. BILLING CODE 4310–50–S Anthropology, Moscow, ID. The human Officials of the University of Idaho, remains and associated funerary objects Alfred W. Bowers Laboratory of were removed from unknown locations Anthropology have determined that, DEPARTMENT OF THE INTERIOR in central and southern Arizona. pursuant to 25 U.S.C. 3001 (9–10), the This notice is published as part of the human remains described above National Park Service National Park Service’s administrative represent the physical remains of five responsibilities under NAGPRA, 25 Notice of Inventory Completion: individuals of Native American University of Idaho, Alfred W. Bowers U.S.C. 3003 (d)(3). The determinations ancestry. Officials of the University of Laboratory of Anthropology, Moscow, within this notice are the sole Idaho, Alfred W. Bowers Laboratory of ID, and the U.S. Department of responsibility of the museum, Anthropology also have determined Agriculture, Forest Service, Wallowa- institution, or Federal agency that has that, pursuant to 25 U.S.C. 3001 (3)(A), Whitman National Forest, Baker City, control of the Native American human the five objects described above are OR remains and associated funerary objects. reasonably believed to have been placed The National Park Service is not with or near individual human remains AGENCY: National Park Service, Interior. responsible for the determinations at the time of death or later as part of ACTION: Notice. within this notice. the death rite or ceremony. Lastly, A detailed assessment of the human officials of the University of Idaho, Notice is here given in accordance remains was made by the University of Alfred W. Bowers Laboratory of with the Native American Graves Idaho, Alfred W. Bowers Laboratory of Anthropology have determined that, Protection and Repatriation Act Anthropology professional staff in pursuant to 25 U.S.C. 3001 (2), there is (NAGPRA), 25 U.S.C. 3003, of the consultation with representatives of the a relationship of shared group identity completion of an inventory of human Ak Chin Indian Community of the that can be reasonably traced between remains and associated funerary objects Maricopa (Ak Chin) Indian Reservation, the Native American human remains in the possession of the University of Arizona; Gila River Indian Community and associated funerary objects and the Idaho, Alfred W. Bowers Laboratory of of the Gila River Indian Reservation, Ak Chin Indian Community of the Anthropology, Moscow, ID, and in the Arizona; Salt River Pima-Maricopa Maricopa (Ak Chin) Indian Reservation, control of the U.S. Department of Indian Community of the Salt River Arizona; Gila River Indian Community Agriculture, Forest Service, Wallowa- Reservation, Arizona; and Tohono of the Gila River Indian Reservation, Whitman National Forest, Baker City, O’odham Nation of Arizona. Arizona; Salt River Pima-Maricopa OR. The human remains and associated At an unknown date, human remains Indian Community of the Salt River funerary objects were removed from representing a minimum of five Reservation, Arizona; and Tohono burial sites in Nez Perce County, ID. individuals were removed from O’odham Nation of Arizona. This notice is published as part of the unknown locations in central and Representatives of any other Indian National Park Service’s administrative southern Arizona by unidentified tribe that believes itself to be culturally responsibilities under NAGPRA, 25 persons. The human remains were affiliated with the human remains and U.S.C. 3003 (d)(3). The determinations gifted to the Museum of the Rockies in associated funerary objects should within this notice are the sole Bozeman, MT, by an unknown person at contact Leah K. Evans-Janke, University responsibility of the museum, an unknown date. In 1988, the human of Idaho, Alfred W. Bowers Laboratory institution, or Federal agency that has remains were transferred to the of Anthropology, Moscow, ID 83844– control of the Native American human

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remains and associated funerary objects. the Native American human remains now inside the recreation area. Land The National Park Service is not and associated funerary objects and the added to the recreation area shall be responsible for the determinations Nez Perce Tribe of Idaho. administered as part of the park in within this notice. Representatives of any other Indian accordance with the laws and A detailed assessment of the human tribe that believes itself to be culturally regulations applicable thereto. The remains was made by the University of affiliated with the human remains and lands to be exchanged are generally Idaho, Alfred W. Bowers Laboratory of associated funerary objects should described as follows: Anthropology professional staff in contact Leah K. Evans-Janke, University consultation with representatives of the of Idaho, Alfred W. Bowers Laboratory Federally Owned Parcel Nez Perce Tribe of Idaho. of Anthropology, Moscow, ID 83844– Tract No. 06–128, a parcel of land in On September 27–28, 1986, human 1111, telephone (208) 885–3733, before Section 5, Township 44 South, Range 3 remains representing a minimum of two December 26, 2003. Repatriation of the East, Salt Lake Base and Meridian, individuals were removed from the human remains and associated funerary containing 312.50 acres, more or less. Cottonwood Creek site (10NP182), Nez objects to the Nez Perce Tribe of Idaho Privately Owned Parcel Perce County, ID, by Dr. Frank may proceed after that date if no Leonardy. Dr. Leonardy’s excavation additional claimants come forward. Tract No. 06–127, a parcel of land in was part of a criminal investigation of The University of Idaho, Alfred W. Section 32, Township 43 South, Range an illegal excavation of archeological Bowers Laboratory of Anthropology is 3 East, Salt Lake Base and Meridian, resources on public land without a responsible for notifying the Nez Perce containing 122.93 acres, more or less. permit pursuant to the Archaeological Tribe of Idaho that this notice has been The value of the properties exchanged Resources Protection Act, 16 U.S.C. published. shall be determined by a current fair 470cc (a). No known individuals were market value appraisal. If they are not Dated: October 22, 2003. identified. The 29 associated funerary approximately equal, the following objects are 5 dentalia beads, 2 bags of John Robbins, applies: In the event the federally dentalia fragments, 8 bags of ochre, 12 Assistant Director, Cultural Resources. owned property is higher in value than bags of unidentifiable bone fragments, [FR Doc. 03–29505 Filed 11–25–03; 8:45 am] the privately owned property, the values and 2 bags of mixed dentalia and bone. BILLING CODE 4310–50–S shall be equalized by cash payment in Archeological evidence indicates that order to complete the exchange. If the the burials at the Cottonwood Creek site privately owned property is higher in predate A.D. 1805. During consultation, DEPARTMENT OF THE INTERIOR value than the federally owned a representative of the Nez Perce Tribe National Park Service property, no cash payment to equalize of Idaho indicated that the Nez Perce values shall be made. Tribe of Idaho is directly related to the Notice of Realty Action—Proposed For a period of 45 calendar days from people who were buried at the Exchange of Federally Owned Land for the date of this notice, interested parties Cottonwood Creek site. The Cottonwood Privately Owned Land, Both Within may submit comments to the above Creek site is located within the area Kane County, UT, Glen Canyon address. Adverse comments will be ceded by the Nez Perce to the United National Recreation Area evaluated, and this action may be States pursuant to the Nez Perce Treaty modified or vacated accordingly. In the of June 9, 1863 (14 Stat. 647), and is SUMMARY: Pursuant to the authority absence of any action to modify or located within the area recognized by a contained in the Act of July 1, 2003, vacate, this realty action will become final judgment of the Indian Claims (Pub. L. 108–43, 117 Stat. 841), the the final determination of the Commission as the aboriginal land of Secretary of the Interior has been Department of the Interior. the Nez Perce Tribe of Idaho (18 Ind. Cl. authorized to acquire certain lands by Dated: October 7, 2003. Comm. 1, 1967). exchange and is authorized, upon Stephen P. Martin, Officials of the University of Idaho, completion of said exchange, to revise Alfred W. Bowers Laboratory of the boundaries of Glen Canyon National Regional Director, Intermountain Region, National Park Service. Anthropology and Wallowa-Whitman Recreation Area accordingly. National Forest have determined that, [FR Doc. 03–29500 Filed 11–25–03; 8:45 am] DATES: The effective date for this notice pursuant to 25 U.S.C. 3001 (9–10), the BILLING CODE 4312–ED–M shall be the date of the Federal Register human remains described above publication in which this notice represent the physical remains of two appears. individuals of Native American DEPARTMENT OF THE INTERIOR ancestry. Officials of the University of FOR FURTHER INFORMATION CONTACT: National Park Service Idaho, Alfred W. Bowers Laboratory of Realty Officer, Land Resources Program Center, Intermountain Region, P.O. Box Anthropology and Wallowa-Whitman Notice of Availability of the Draft Site 728, Santa Fe, New Mexico, 87504– National Forest also have determined Progress Report to the World Heritage 9728, 505–988–6810. that, pursuant to 25 U.S.C. 3001 (3)(A), Committee, Yellowstone National Park the 29 objects described above are SUPPLEMENTARY INFORMATION: The reasonably believed to have been placed above-cited Act authorizes the Secretary AGENCY: National Park Service, Interior. with or near individual human remains of the Interior to exchange certain SUMMARY: Pursuant to the Decision at the time of death or later as part of privately owned lands adjacent to Glen adopted by the 27th Session of the the death rite or ceremony. Lastly, Canyon National Recreation Area for World Heritage Committee (Document: officials of the University of Idaho, federally owned lands within the WHC–03/27.COM/7A.12) accepted by Alfred W. Bowers Laboratory of recreation area boundary. Upon the United States Government, the Anthropology and Wallowa-Whitman completion of this exchange, the National Park Service (NPS) announces National Forest have determined that, boundaries of Glen Canyon National the publication for comment of a Draft pursuant to 25 U.S.C. 3001 (2), there is Recreation Area will be revised to add Site Progress Report to the World a relationship of shared group identity the parcel now adjacent to the Heritage Committee for Yellowstone that can be reasonably traced between recreation area and to exclude the parcel National Park, Wyoming and Montana.

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DATES: There will be a 30-day public (a) to continue its commitment to address Park and was perceived to be a major threat review period for comments on this the issues that have concerned the to the resources of both areas. document. Comments must be received Committee in the past; Outcome: The U.S. Government and Crown on or before December 26, 2003. (b) to provide to the World Heritage Centre Butte Mines, Inc. signed an agreement in by 1 February 2004, existing recovery plans 1996 to refrain from mining these lands, and ADDRESSES: The Draft Site Report is setting out targets and indicators for the 6 the Congress appropriated $65 million for the included in the supplementary remaining long-term management issues acquisition of lands and interests, including information section of this notice. (mining activities outside the park, threats to cleanup of toxic overburden and tailings left bison, threats to cutthroat trout, water quality over from a century of previous mining Copies are also available by writing to activity. Suzanne Lewis, Superintendent, issues, road impacts, visitor use impacts); (c) to continue to report to the Committee Status: The new mining proposal was Yellowstone National Park, P.O. Box on the condition of the original threats and shelved and most of the property was 168, Yellowstone National Park, WY the progress made towards resolving these transferred to public domain. Cleanup of 82190–0168; by telephoning 307–344– issues until such time that the Committee toxic materials from past mining started in 2002; by sending an e-mail message to decides that the reports are no longer needed. 2000 and is expected to take seven years, but [email protected]; or by These reports shall include public input, post-project maintenance will be funded in picking up a copy in person at the including—but not limited to—independent perpetuity. The McLaren tailings were left experts, NGOs, and other key stakeholders. out of the clean up agreement and while the park’s headquarters in Mammoth Hot tailings (which are outside Yellowstone) have Springs, Wyoming, 82190. The B. The NPS’s Draft Site Report stabilized and water quality inside the park document is also posted on the park’s In accordance with the Committee’s has improved, the park continues to work Web site at http://www.nps.gov/yell/ with its state and federal neighbors to have publications/worldheritage/. request included in its decision to the tailings removed and the site restored. remove the park from the Danger List, FOR FURTHER INFORMATION CONTACT: the NPS has prepared a Site Report to Threats to Bison Suzanne Lewis, Superintendent, continue to provide information to the Threat in 1995: Some of Yellowstone’s Yellowstone National Park, P.O. Box World Heritage Committee on the bison are infected with Brucella abortus, the 168, Yellowstone National Park, WY original threats and the progress made agent that causes the disease Brucellosis, and 82190–0168, or by calling 307–344– towards resolving these issues. The Site bison occasionally roam outside park 2002. boundaries. These bison may potentially Report provides a synopsis of the transmit brucella to livestock grazing outside SUPPLEMENTARY INFORMATION: current status of the six specific threats the park, which could, in turn, jeopardize the outlined in 7(b) of the Committee’s ‘‘Brucellosis Free’’ status of bordering states. A. The World Heritage Committee decision. The full text of the draft Site Accordingly, the states view the presence of Decision Report is as follows. brucella in park wildlife as a significant economic threat to the livestock industry. In 1995, the World Heritage Yellowstone National Park Site Progress Sometimes when animals migrate out of the Committee, with the agreement of the Report to the World Heritage Committee, park they are lethally removed, especially United States, placed Yellowstone October 2003 when wildlife population numbers are high National Park, a designated World Introduction and the winters are severe. Outcome: In 2000, Yellowstone National Heritage site, on its List of World The World Heritage Committee (WHC) Heritage in Danger in response to Park, State of Montana, U.S. Forest Service, named Yellowstone National Park as a World and USDA Plant and Animal Health specific threats it identified to the Heritage Site in Danger on December 5, 1995. Inspection Service cosigned a joint bison outstanding universal value of the park. In its report, the committee cited specific management plan that agreed to maintain At its 27th Session in July 2003, the threats and dangers that were already wildlife populations and manage the risk of Committee decided to remove the park affecting, were beginning to affect, or had transmission from bison to cattle within the from the Danger List. The decision (27 potential to seriously derogate the State of Montana. It is a long-term plan that COM 7A.12) is conveyed below: outstanding universal value for which should manage risks currently, and set the Yellowstone National Park was established as stage for future discussions about eradication The World Heritage Committee, the nation’s first national park. At the Paris of the disease. It is also an incremental plan 1. Notes the detailed report by the State meeting in June 2003, the WHC recognized that becomes more wildlife-friendly and Party provided on April 17, 2003; that significant progress at Yellowstone had lowers transmission risk to cattle with each 2. Urges the State Party to continue to been made to effectively address the issues incremental success. report on Yellowstone’s snowmobile phase- that caused the park to be listed, and Status: This carefully crafted consensus- out and other efforts to ensure that winter removed the park from the list. based plan has been serially and successfully travel facilities respect the protection of the In removing the park from the list of implemented for three years, and while not Park, its visitors, and its wildlife; troubled sites, the WHC recognized this universally supported, many believe it 3. Recommends that the State Party progress, but also acknowledged that more addresses the major issues regarding the risk continue its efforts in ensuring the McLaren work needed to be done on each of these of brucellosis transmission from wildlife to Mine tailings are not contaminating the issues. They also acknowledged the park’s livestock. While those actions are being property; problems were complex and had developed implemented, discussions and research are 4. Recognizes the progress made in over a long period of time, and they were not currently underway to consider ways to addressing all the key issues that led to going to be resolved easily or quickly. eventually eliminate brucellosis from Danger Listing of the property in 1995 and This report is an additional status report on wildlife in the Greater Yellowstone Area considers that the reasons for retaining the the progress Yellowstone National Park has while maintaining wild and free-ranging property on this List no longer exist; made on the 1995 threats and dangers topics wildlife herds. For example, planning for 5. Congratulates the State Party for the listed by the World Heritage Committee. bison vaccination and the development of a considerable efforts and suggests to use this remote delivery system is underway, and the Mining Activities as a model case for promoting success stories agencies are actively discussing a quarantine of the World Heritage Convention and for Threat in 1995: The New World Mine was system external to the park to make bison international co-operation with other States a major Crown Butte Mines, Inc. proposal to available for other suitable western areas, and Parties facing similar problems in World reopen an older mining area on patented and to help reduce bison deaths at the boundary. Heritage properties; U.S. Forest Service lands to new gold and 6. Decides to remove the property from the silver harvest. The site was adjacent to the Threats to Cutthroat Trout List of World Heritage in Danger. Absaroka-Beartooth Wilderness area (Gallatin Threats in 1995: In 1994, voracious, 7. Invites the State Party: National Forest) and Yellowstone National predatory, non-native lake trout and exotic

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trout whirling disease were discovered in and believes that scheduled programs are in use under strict limitations, establishing Yellowstone Lake threatening the existence place and will continue to resolve the smaller daily use limits, requiring the use of the of the rare, endemic Yellowstone cutthroat scale projects remaining to be upgraded. cleaner and quieter, 4-stroke engines, and trout, plus 42 other native birds and Road Impacts requiring snowmobile parties to be guided. mammals that depend on cutthroats for their Status: The NPS believes the decision own survival. It could also potentially Threats in 1995: Yellowstone’s road system addresses winter use related issues and the destroy a sport fishery that had a $36 million was never designed for the volume, size, and annual value. weight of vehicles that travel through the park’s goals of protecting park resources, Outcome: Experts on both fish species park today. The park maintains 466 miles of protecting employee and visitor health and concluded that the risk of functional roads of which 310 are paved and considered safety, and improving the quality of the extinction of the native trout was real and primary roads for the public. The remaining visitor experience. Litigation has been substantial, but that no technology exists to 156 miles are paved or gravel secondary initiated regarding the Record of Decision eradicate lake trout from the lake nor treat or roads for service and/or light public use. The and new management plan but the park control the trout disease. In the near future, condition of the road system in 1995 was intends to implement the plan in December the best that could be hoped for was long- considered deplorable. 2003. Summer, fall and spring visitation has term suppression of lake trout, through the Outcome: Yellowstone has an integrated, been consistently below the high level deployment of ‘‘industrial strength gillnets,’’ methodical and long-term program to experienced in 1995. The park has focused to restore the declining cutthroat trout improve the condition of the park’s roads and on development of partnerships that have population. This was implemented by NPS lessen unsafe conditions and unsatisfactory beginning in 1995 targeting the estimated experiences for visitors and prevention of encouraged use of alternate fuels for 7,000 reproducing adult lake trout extant that resource degradation. An annual funded transportation and facilities. These year. In addition, a no-limit, no-live-release program of complete road bed and/or surface partnerships will help the park and regulation for lake trout with sport anglers replacement is expected to continue through communities foster a region-wide approach was also put into effect and continues to 2017. to providing visitors and voluntary date. Considerable research and monitoring Status: Much has been accomplished alternative modes of transportation. continues on the whirling disease dilemma. upgrading the existing road system since Status: Gillnet fishing effort has increased 1995, but it is a slow process because of the C. Public Comment Solicitation each year and has resulted in the destruction short construction season and the reality that of approximately 56,000 adult and juvenile reconstruction must be reasonably Persons wishing to comment may do lake trout. Catch-per-unit-effort declined in compatible with summer visitors. As noted so by any one of several methods. They 2002, and again in 2003, and for the first time above, the current program will be carried may mail comments to Suzanne Lewis, gave biologists hope exploitation was out annually through the year 2017, which Superintendent, Yellowstone National beginning to affect the population. Sport should largely correct the structural Park, P.O. Box 168, Yellowstone angling for lake trout has been actively deficiencies. In 2003, Yellowstone issued its National Park, WY 82190–0168. They promoted and the angler catch has Business Plan; its statement of operational represented a helpful 20 percent of the total needs for the next five years. In that plan, also may comment via e-mail to harvest. Research continues to seek tools for deficiencies in road cyclical maintenance are [email protected] (include combating whirling disease. articulated and would keep those new roads name and return address in the e-mail in top, non-deteriorating condition. All Water Quality Issues message). Finally, they may hand- federal programs, such as road maintenance, deliver comments to park headquarters Threats in 1995: Yellowstone National are subject to federal appropriations. Park hosts almost five million visitor use in Mammoth Hot Springs, Wyoming, days annually. Old, outdated waste treatment Visitor Use Impacts 82190. plants, lift stations, and underground lines, Threats in 1995: Increasing visitor The NPS practice is to make and older single wall fuel tanks were causing pressures on the natural and cultural comments, including names and home an unacceptable level of accidental resources of the park have been of concern addresses of respondents, available for overflows, ruptures, and spills affecting soils, to managers for many years. More recently, ground and surface waters degrading the quality of a visitor’s Yellowstone public review during regular business localized wild lands. In 1995, the failing experience in terms of sights, sounds and hours. Individual respondents may Norris wastewater treatment plant was closed smells has also been extensively debated. request we withhold their home address after recommendations of the U.S. Public Concerns have been raised most strongly from the record, which we will honor to Health Service. regarding winter use in the park, but the the extent allowable by law. There also Outcome: All of the park’s fuel storage crowds of summer are also a concern to many may be circumstances in which we tanks have been replaced with new double- people. The numbers of visitors in the park, walled liquid tanks or replaced with more whether summer or winter, is a contentious would withhold from the record a environmentally friendly propane gas tanks. subject with the U.S. public. respondent’s identify, as allowable by Congress appropriated monies to replace the Outcome: The completion of an EIS on a law. If you wish us to withhold your Old Faithful, Madison, and Norris sewage new winter use management plan and a name and/or address, you must state treatment plants and those projects are Record of Decision in 2000, called for this prominently at the beginning of underway or completed. Older or protecting visitor safety and enjoyment, air your comment. However, we will not problematic lift stations, lines, grease traps quality, wildlife, and the natural quiet of consider anonymous comments. We have been replaced at many locations in the Yellowstone by phasing out snowmobile use park. Yellowstone is a leader in sustainability over a three year period, and replacing them will make all submissions from through its ‘‘Greening of Yellowstone’’ with non-polluting, mass transit snow organizations or businesses, and from program, which is identifying ways to coaches. The decision was challenged in individuals identifying themselves as accomplish its work at less cost and with federal court. A subsequent lawsuit representatives or officials of fewer environmental impacts. A regional settlement stipulated the NPS would prepare organizations or businesses, available compost facility was opened in 2003, for a supplemental EIS (SEIS) analyzing the for public inspection in their entirety. example, and is tangible evidence of the snowmobile ban and various alternatives to effectiveness of the ‘‘Greening’’ initiative. In the ban. The draft SEIS was released to the A. Durand Jones, addition, the use of biodiesel and ethanol has public in 2002 and generated over 350,000 Deputy Director. been an increasing part of park public comments. The final SEIS was transportation, which has a positive benefit released in February 2003, and a Record of [FR Doc. 03–29502 Filed 11–25–03; 8:45 am] on both air and water. Decision signed on March 25, 2003, which BILLING CODE 4312–FR–P Status: Yellowstone has made excellent approved the new winter use plan. The NPS progress addressing threats to water quality decision allows for continued snowmobile

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DEPARTMENT OF THE INTERIOR meeting is open to the public. Oral business hours (8:45 a.m. to 5:15 p.m.) comments will be accepted from in the Office of the Secretary, U.S. Bureau of Reclamation members of the public at the meeting International Trade Commission, 500 E and will be limited to 3–5 minutes. Street, SW., Room 112, Washington, DC California Bay-Delta Public Advisory 20436, telephone 202–205–2000. Committee Public Meeting (Authority: The Committee was established pursuant to the Department of the Interior’s Hearing impaired individuals are AGENCY: Bureau of Reclamation, authority to implement the Fish and Wildlife advised that information on this matter Interior. Coordination Act, 16 U.S.C. 661 et seq., the can be obtained by contacting the Endangered Species Act, 16 U.S.C. 1531 et Commission’s TDD terminal on 202– ACTION: Notice of meeting. seq., and the Reclamation Act of 1902, 43 205–1810. Persons with mobility U.S.C. 371 et seq., and the acts amendatory SUMMARY: In accordance with the impairments who will need special thereof or supplementary thereto, all assistance in gaining access to the Federal Advisory Committee Act, the collectively referred to as the Federal California Bay-Delta Public Advisory Reclamation laws, and in particular, the Commission should contact the Office Committee will meet jointly with the Central Valley Project Improvement Act, Pub. of the Secretary at 202–205–2000. California Bay-Delta Authority on L. 102–575.) General information concerning the Commission may be obtained by December 11, 2003. The agenda for the Dated: November 7, 2003. joint meeting will include accessing its Internet server (http:// Allan Oto, recommendations on a Delta www.usitc.gov). The public record for Improvements Package, CALFED Bay- Special Projects Officer, Mid-Pacific Region. this investigation may be viewed on the Delta Program implementation and [FR Doc. 03–29528 Filed 11–25–03; 8:45 am] Commission’s electronic docket at future priorities, the 2003 Annual BILLING CODE 4310–MN–M http://edis.usitc.gov. Report, and grant programs, and a FOR FURTHER INFORMATION CONTACT: presentation on Southern California Thomas Fusco, Esq., Office of Unfair Regional Highlights. INTERNATIONAL TRADE Import Investigations, U.S. International DATES: The meeting will be held COMMISSION Trade Commission, telephone 202–205– 2571. Thursday, December 11, 2003, from 9 [Inv. No. 337–TA–500] a.m. to 5 p.m. If reasonable Authority: The authority for institution of accommodation is needed due to a In the Matter of Certain Purple this investigation is contained in section 337 disability, please contact Pauline Nevins Protective Gloves; Notice of of the Tariff Act of 1930, as amended, and at (916) 445–5511 or TDD (800) 735– Investigation in § 210.10 of the Commission’s rules of 2929 at least 1 week prior to the practice and procedure, 19 CFR 210.10 meeting. AGENCY: International Trade (2003). Commission. Scope of Investigation: Having ADDRESSES: The meeting will be held at ACTION: considered the complaint, the U.S. the Sheraton Hotel in the Grand Institution of investigation International Trade Commission, on Ballroom, 1230 J Street, Sacramento, pursuant to 19 U.S.C. 1337. November 19, 2003, Ordered That— California. SUMMARY: Notice is hereby given that a (1) Pursuant to subsection (b) of FOR FURTHER INFORMATION CONTACT: complaint was filed with the U.S. section 337 of the Tariff Act of 1930, as Eugenia Laychak, California Bay-Delta International Trade Commission on amended, an investigation be instituted Authority, at (916) 445–5511, or Diane October 23, 2003, under section 337 of to determine whether there is a Buzzard, U.S. Bureau of Reclamation, at the Tariff Act of 1930, as amended, 19 violation of subsection (a)(1)(C) of (916) 978–5022. U.S.C. 1337, on behalf of Kimberly- section 337 in the importation into the SUPPLEMENTARY INFORMATION: The Clark Corporation of Irving, Texas and United States, the sale for importation, Committee was established to provide Safeskin Corporation of Roswell, or the sale within the United States after recommendations to the Secretary of the Georgia. A letter supplementing the importation of certain purple protective Interior, other participating Federal complaint was filed on November 17, gloves by reason of infringement of U.S. agencies, the Governor of the State of 2003. The complaint alleges violations Registered Trademark No. 2,596,539, California, and the California Bay-Delta of section 337 in the importation into 2,533,260, or 2,593,382, and whether an Authority on implementation of the the United States, the sale for industry in the United States exists as CALFED Bay-Delta Program. The importation, and the sale within the required by subsection (a)(2) of section Committee makes recommendations on United States after importation of 337. annual priorities, integration of the certain purple protective gloves by (2) For the purpose of the eleven Program elements, and overall reason of infringement of U.S. investigation so instituted, the following balancing of the four Program objectives Registered Trademark Nos. 2,596,539, are hereby named as parties upon which of ecosystem restoration, water quality, 2,533,260, and 2,593,382. The this notice of investigation shall be levee system integrity, and water supply complaint further alleges that an served: reliability. The Program is a consortium industry in the United States exists as (a) The complainants are— of State and Federal agencies with the required by subsection (a)(2) of section Kimberly-Clark Corporation, 351 Phelps mission to develop and implement a 337. Drive, Irving, Texas 75038. long-term comprehensive plan that will The complainants request that the Safeskin Corporation, 1400 Holcomb restore ecological health and improve Commission institute an investigation Bridge Road, Roswell, Georgia 30076. water management for beneficial uses of and, after the investigation, issue a (b) The respondents are the following the San Francisco/Sacramento and San permanent exclusion order and companies alleged to be in violation of Joaquin Bay Delta. permanent cease and desist orders. section 337, and are the parties upon Committee and meeting materials will ADDRESSES: The complaint and which the complaint is to be served: be available on the California Bay-Delta supplement, except for any confidential The Delta Group, 4250 River Green Authority website at http:// information contained therein, are Parkway, NW., Duluth, Georgia calwater.ca.gov and at the meeting. This available for inspection during official 30136.

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Delta Hospital Supply, Inc., 31 Astor INTERNATIONAL TRADE the United States will receive comments Avenue, Norwood, Massachusetts COMMISSION regarding the proposed Consent 02062. Judgment for an additional fifteen (15) [USITC SE–03–038] Delta Medical Systems, Inc., 6865 days, until December 2, 2003. Shiloh Road E., Suite 400, Alpharetta, Sunshine Act Meeting Reference should be made to the Georgia 30005. Notice for a description of the proposed Delta Medical Supply Group, Inc., 436 AGENCY HOLDING THE MEETING: United Consent Judgment and for the procedure W. Gay Street, West Chester, States International Trade Commission. to be followed in order to comment Pennsylvania 19380. TIME AND DATE: December 2, 2003, at thereon. Medtexx Partners, 216 Charles Street, 9:30 a.m. Ronald Gluck, Hackensack, New Jersey 07601. PLACE: Room 101, 500 E Street, SW., Assistant Chief, Environmental Enforcement Latexx Partners Berhad, 62–3, Jalan 5/ Washington, DC 20436, Telephone: Section, Environment and Natural Resources 101C, Cheras Business Centre, Off (202) 205–2000. Division. Jalan Kaskas, 56100 Kuala Lumpur, STATUS: Open to the public. [FR Doc. 03–29606 Filed 11–25–03; 8:45 am] Malaysia. BILLING CODE 4410–15–M Dash Medical Gloves, Inc., 10180 South MATTERS TO BE CONSIDERED: 54th Street, Franklin, Wisconsin 1. Agenda for future meetings: none. 53132. 2. Minutes. 3. Ratification List. DEPARTMENT OF LABOR (c) Thomas S. Fusco, Esq., Office of 4. Inv. No. 731–TA–1023 (Final) Unfair Import Investigations, U.S. (Certain Ceramic Station Post Insulators International Trade Commission, 500 E Employment and Training from Japan)—briefing and vote. (The Administration Street, SW., Suite 401, Washington, DC Commission is currently scheduled to 20436, who shall be the Commission transmit its determination and [TA–W–52,732] investigative attorney, party to this Commissioners’ opinions to the investigation; and Secretary of Commerce on or before Agere Systems, Inc., Reading, PA; (3) For the investigation so instituted, December 12, 2003.) Amended Certification Regarding the Honorable Delbert R. Terrill, Jr. is 5. Outstanding action jackets: none. Eligibility To Apply for Worker designated as the presiding In accordance with Commission Adjustment Assistance administrative law judge. policy, subject matter listed above, not Responses to the complaint and the disposed of at the scheduled meeting, In accordance with section 223 of the notice of investigation must be may be carried over to the agenda of the Trade Act of 1974 (19 U.S.C. 2273) the submitted by the named respondents in following meeting. Department of Labor issued a accordance with § 210.13 of the Certification of Eligibility to Apply for Commission’s rules of practice and Issued: November 24, 2003. Worker Adjustment Assistance on procedure, 19 CFR 210.13. Pursuant to By order of the Commission: October 20, 2003, applicable to workers 19 CFR 201.16(d) and 210.13(a), such Marilyn R. Abbott, of Agere Systems, Inc., Reading, responses will be considered by the Secretary to the Commission. Pennsylvania. The notice will be Commission if received no later than 20 [FR Doc. 03–29645 Filed 11–24–03; 11:13 am] published soon in the Federal Register. days after the date of service by the BILLING CODE 7020–02–P At the request of the State agency, the Commission of the complaint and the Department reviewed the certification notice of investigation. Extensions of for workers of the subject firm. The time for submitting responses to the DEPARTMENT OF JUSTICE workers produce integrated circuits and complaint will not be granted unless are not separately identifiable by good cause therefor is shown. Notice of Extension of Comment product line. Failure of a respondent to file a timely Period Regarding Consent Judgment New findings show that there was a response to each allegation in the Lodged Pursuant to Comprehensive previous certification, TA–W–39,437, complaint and in this notice may be Environmental Response, issued on August 29, 2001, for workers deemed to constitute a waiver of the Compensation, and Liability Act of Agere Systems, Integrated Circuits right to appear and contest the Div., Reading, Pennsylvania who were allegations of the complaint and to On October 17, 2003, Notice was engaged in employment related to the authorize the administrative law judge published in the Federal Register that production of integrated circuits. That and the Commission, without further on September 30, 2003, a proposed certification expired August 29, 2003. notice to that respondent, to find the Consent Judgment in United States v. To avoid an overlap in worker group facts to be as alleged in the complaint City of Glen Cove, et al, Civil Action No. coverage, this certification is being and this notice and to enter both an CV–03–4975, was lodged with the amended to change the impact date initial determination and a final United States Court for the Eastern from August 15, 2002 to August 30, determination containing such findings, District of New York. 68 FR 59819 2003, for workers of the subject firm. and may result in the issuance of a (‘‘Notice’’). The Notice described the The amended notice applicable to limited exclusion order or a cease and proposed Consent Judgment and set TA–W–52,732 is hereby issued as desist order or both directed against that forth the intention of the United States follows: respondent. Department of Justice to receive any comments concerning the proposed Workers of Agere Systems, Inc., Reading, Issued: November 20, 2003. Consent Judgment for a period of thirty Pennsylvania, engaged in employment related to the production of integrated By order of the Commission. (30) days from the date of the Marilyn R. Abbott, circuits, who became totally or partially publication of the Notice. separated from employment on or after Secretary to the Commission. Notice is hereby given that, consistent August 30, 2003, through October 20, 2005, [FR Doc. 03–29562 Filed 11–25–03; 8:45 am] with 42 U.S.C. 9622(d) and 28 CFR 50.7, are eligible to apply for adjustment assistance BILLING CODE 7020–02–P and in response to a request received, under section 223 of the Trade Act of 1974.

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Signed at Washington, DC this 3rd day of DEPARTMENT OF LABOR DEPARTMENT OF LABOR November, 2003. Linda G. Poole, Employment and Training Employment and Training Certifying Officer, Division of Trade Administration Administration Adjustment Assistance. [FR Doc. 03–29537 Filed 11–25–03; 8:45 am] [TA–W–52,946] [TA–W–50,315] BILLING CODE 4510–30–P Arkansas Metal Castings, Inc., Fort Capital City Press, Inc., Publication Smith, AR; Notice of Termination of Services Division, Barre, VT; Amended DEPARTMENT OF LABOR Investigation Certification Regarding Eligibility to Apply for Worker Adjustment Employment and Training Pursuant to section 221 of the Trade Assistance Administration Act of 1974, as amended, an investigation was initiated on In accordance with section 223 of the [TA–W–52,656] September 24, 2003 in response to a Trade Act of 1974 (19 U.S.C. 2273) the petition filed on behalf of workers of Department of Labor issued a Agere Systems, Inc., Allentown, PA; Arkansas Metal Castings, Forth Smith, Certification of Eligibility to Apply for Amended Certification Regarding Arkansas. Worker Adjustment Assistance on Eligibility To Apply for Worker The Department has been unable to January 29, 2003, applicable to workers Adjustment Assistance locate company officials of the subject of Capital City Press, Inc., Barre, firm or to obtain the information Vermont. The notice was published in In accordance with section 223 of the necessary to reach a determination on the Federal Register on Februrary 24, Trade Act of 1974 (19 U.S.C. 2273) the worker group eligibility. Consequently, 2003 (68 FR 8620). Department of Labor issued a further investigation in this case would Certification of Eligibility to Apply for At the request of the company, the serve no purpose, and the investigation Worker Adjustment Assistance on Department reviewed the certification has been terminated. October 7, 2003, applicable to workers for workers of the subject firm. Findings of Agere Systems, Inc., Allentown, Signed at Washington, DC, this 3rd day of show that the Department limited its Pennsylvania. The notice will be November, 2003. certification coverage to workers of the published soon in the Federal Register. Linda G. Poole, subject firm engaged in typesetting printing production. At the request of the State agency, the Certifying Officer, Division of Trade Department reviewed the certification Adjustment Assistance. New company information shows that for workers of the subject firm. The [FR Doc. 03–29539 Filed 11–25–03; 8:45 am] worker separations involving the workers produce integrated circuits and BILLING CODE 4510–30–P remaining worker groups will occur at are not separately identifiable by the Barre, Vermont location of the product line. subject firm. The Publication Services DEPARTMENT OF LABOR Division of the subject firm New findings show that there was a encompasses all production processes at previous certification, TA–W–39,449, Employment and Training the Barre, Vermont location. The issued on August 29, 2001, for workers Administration Publication Services Division provides of Agere Systems, Integrated Circuits typesetting, proofreading and digital Div., Allentown, Pennsylvania who [TA–W–53,400] imaging (scanning) necessary to prepare were engaged in employment related to pages for the typesetting printing the production of integrated circuits. CapitaL City Press, Publication production. That certification expired August 29, Services Division, Barre, VT; Notice of 2003. To avoid an overlap in worker It is the intent of the Department to Termination of Investigation group coverage, this certification is include all workers of Capital City being amended to change the impact Press, Publication Services Division, Pursuant to section 221 of the Trade date from August 15, 2002 to August 30, who were adversely affected by Act of 1974, an investigation was 2003, for workers of the subject firm. increased imports. initiated on October 31, 2003 in The amended notice applicable to response to a worker petition which was The amended notice applicable to TA- TA–W–52,656 is hereby issued as filed on behalf of workers at Capital City W–50,315 is hereby issued as follows: follows: Press, Publication Services Division, All workers of Capital City Press, Inc., Workers of Agere Systems, Inc., Allentown, Barre, Vermont. Publication Services Division, Barre, Pennsylvania, engaged in employment An active certification covering the Vermont, who became totally or partially related to the production of integrated petitioning group of workers is already separated from employment on or after circuits, who became totally or partially in effect (TA–W–50,315, as amended). December 10, 2001, through January 29, separated from employment on or after 2005, are eligible to apply for adjustment August 30, 2003, through October 7, 2005, Consequently, further investigation in this case would serve no purpose, and assistance under section 223 of the Trade Act are eligible to apply for adjustment assistance of 1974. under section 223 of the Trade Act of 1974. the investigation has been terminated. Signed at Washington, DC, this 3rd day of Signed in Washington, DC this 6th day of Signed at Washington, DC this 6th day of November, 2003. November, 2003. November 2003. Linda G. Poole, Linda G. Poole, Linda G. Poole, Certifying Officer, Division of Trade Certifying Officer, Division of Trade Certifying Officer, Division of Trade Adjustment Assistance. Adjustment Assistance. Adjustment Assistance. [FR Doc. 03–29538 Filed 11–25–03; 8:45 am] [FR Doc. 03–29535 Filed 11–25–03; 8:45 am] [FR Doc. 03–29550 Filed 11–25–03; 8:45 am] BILLING CODE 4510–30–P BILLING CODE 4510–30–P BILLING CODE 4510–30–P

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DEPARTMENT OF LABOR Signed in Washington, DC, this 17th day of employed a group of workers who October, 2003. received a certification of eligibility to Employment and Training Elliott S. Kushner, apply for trade adjustment assistance Administration Certifying Officer, Division of Trade benefits and such supply or production Adjustment Assistance. is related to the article that was the basis [TA–W–51,403] [FR Doc. 03–29543 Filed 11–25–03; 8:45 am] for such certification. The workers of BILLING CODE 4510–30–P the subject firm did not act as an Clariant Corporation, Oak Creek, WI; upstream supplier to a trade certified Notice of Revised Determination on firm. DEPARTMENT OF LABOR Reconsideration The petitioner notes that other Employment and Training contractors have been certified for trade By application of June 12, 2003, a Administration adjustment assistance and thus appears company official requested to imply that the petitioning workers administrative reconsideration [TA–W–52,676, et al.] should be eligible for trade adjustment regarding the Department’s Negative assistance as import impacted Determination Regarding Eligibility to Defender Services, Inc., Working at secondary workers. Apply for Worker Adjustment Pillowtex Plant #1, Kannapolis, NC, et al.; Notice of Negative Determination When addressing the issue of import Assistance, applicable to the workers of Regarding Application for impact in a case of secondary impact, the subject firm. Reconsideration the Department considers whether the The initial investigation resulted in a subject firm supplied a component in a negative determination issued on April By application of September 17, 2003, product produced by a trade certified 30, 2003, based on the finding that a petitioner requested administrative firm. As the subject firm did not criterion 3(A) (the workers’ firm is a reconsideration of the Department’s produce a component used in the supplier and the component parts it negative determination regarding product of Pillowtex Corporation, the supplied for the primary firm accounted eligibility for workers and former allegation of secondary import impact is workers of Pillowtex Plant #1, for at least 20 percent of the production invalid. Kannapolis, North Carolina (TA–W– or sales of the workers’ firm) and 3(B)(a Further, the subject firm does not 52,676), Pillowtex Plant #16, Salisbury, produce an article within the meaning loss of business by the workers’ firm North Carolina (TA–W–52,676A), of Section 222 of the Trade Act. Only in with the primary firm contributed Pillowtex Plant #6, Concord, North very limited instances are service importantly to the workers’ separation Carolina (TA–W–52,676B) and workers certified for trade adjustment or threat of separation) have not been Pillowtex Plant, Eden, North Carolina assistance, namely the worker met. The denial notice was published in (TA–W–52,676C) to apply for Trade separations must be caused by a the Federal Register on May 9, 2003 (68 Adjustment Assistance (TAA). The reduced demand for their services from FR 25060). decision notice was signed on a parent or controlling firm or September 9, 2003 and published in the Pursuant to the receipt of the request subdivision whose workers produce an Federal Register on October 10, 2003 for reconsideration, which included article and who are currently under (68 FR 58719). subject firm customers not provided in certification for trade adjustment Pursuant to 29 CFR 90.18(c) the initial investigation, it has become assistance. A further investigation reconsideration may be granted under apparent that Clariant Corporation, Oak revealed that the workers of Pillowtex Creek, Wisconsin supplies component the following circumstances: (1) If it appears on the basis of facts Plant #1, Kannapolis, North Carolina parts for leather and a loss of business not previously considered that the (TA–W–52,676), Pillowtex Plant #16, with a manufacturers (whose workers determination complained of was Salisbury, North Carolina (TA–W– were certified eligible to apply for erroneous; 52,676A), Pillowtex Plant #6, Concord, adjustment assistance) contributed (2) if it appears that the determination North Carolina (TA–W–52,676B) and importantly to the workers separation or complained of was based on a mistake Pillowtex Plant, Eden, North Carolina threat of separation. in the determination of facts not (TA–W–52,676C) do not meet the criteria to be certified for trade Conclusion previously considered; or (3) if in the opinion of the Certifying adjustment assistance. After careful review of the facts Officer, a misinterpretation of facts or of Conclusion obtained in the investigation, I the law justified reconsideration of the determine that workers of Clariant decision. After review of the application and Corporation, Oak Creek, Wisconsin The petition for the workers of investigative findings, I conclude that qualify as adversely affected secondary Pillowtex Plant #1, Kannapolis, North there has been no error or workers under Section 222 of the Trade Carolina (TA–W–52,676), Pillowtex misinterpretation of the law or of the Act of 1974. In accordance with the Plant #16, Salisbury, North Carolina facts which would justify provisions of the Act, I make the (TA–W–52,676A), Pillowtex Plant #6, reconsideration of the Department of following certification: Concord, North Carolina (TA–W– Labor’s prior decision. Accordingly, the 52,676B) and Pillowtex Plant, Eden, application is denied. All workers of Clariant Corporation, Oak North Carolina (TA–W–52,676C) was Creek, Wisconsin, who became totally or Signed at Washington, DC, this 3rd day of denied because the ‘‘upstream supplier’’ November, 2003. partially separated from employment on or group eligibility requirement of Section after April 1, 2002 through two years from 222(b) of the Trade Act of 1974, as Elliott S. Kushner, the date of this certification, are eligible to amended, was not met. Certifying Officer, Division of Trade apply for adjustment assistance under The ‘‘upstream supplier’’ requirement Adjustment Assistance. Section 223 of the Trade Act of 1974. is fulfilled when the workers’’ firm (or [FR Doc. 03–29546 Filed 11–25–03; 8:45 am] subdivision) is a supplier to a firm that BILLING CODE 4510–30–P

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DEPARTMENT OF LABOR Signed at Washington, DC, this 6th day of employment on or after August 6, 2002, November, 2003. through September 5, 2005, are eligible to Employment and Training Linda G. Poole, apply for adjustment assistance under Section 223 of the Trade Act of 1974. Administration Certifying Officer, Division of Trade Adjustment Assistance. Signed at Washington, DC, this 6th day of [TA–W–52,136] [FR Doc. 03–29549 Filed 11–25–03; 8:45 am] November, 2003. BILLING CODE 4510–30–P Elliott S. Kushner, Fairchild Semiconductor Corp., a Certifying Officer, Division of Trade Subsidiary of Fairchild Semiconductor Adjustment Assistance. International, Inc., Including DEPARTMENT OF LABOR [FR Doc. 03–29547 Filed 11–25–03; 8:45 am] Temporary Workers of Manpower, BILLING CODE 4510–30–P South Portland, ME; Amended Employment and Training Certification Regarding Eligibility To Administration Apply for Worker Adjustment [TA–W–52,475] DEPARTMENT OF LABOR Assistance Fieldcrest Cannon, Inc., a Subsidiary Employment and Training In accordance with section 223 of the of Pillowtex Corporation, Including Administration Trade Act of 1974 (19 U.S.C. 2273) the Leased Workers of Corestaff Agency, [TA–W–52,284] Department of Labor issued a and Manpower, Scottsboro, AL; Certification of Eligibility to Apply for Amended Certification Regarding Fisher Pierce, Weymouth, MA; Notice Worker Adjustment Assistance on Eligibility To Apply for Worker of Revised Determination on August 6, 2003, applicable to workers of Adjustment Assistance Reconsideration Fairchild Semiconductor Corporation, a subsidiary of Fairchild Semiconductor In accordance with Section 223 of the By application of August 26, 2003, a International, Inc., South Portland, Trade Act of 1974 (19 U.S.C. 2273) the company official requested Maine. The notice was published in the Department of Labor issued a administrative reconsideration Federal Register on August 18, 2003 (68 Certification of Eligibility to Apply for regarding the Department’s Negative FR 49523). Worker Adjustment Assistance on Determination Regarding Eligibility to September 5, 2003, applicable to Apply for Worker Adjustment At the request of the State agency, the workers of Fieldcrest Cannon, Inc., a Assistance, applicable to the workers of Department reviewed the certification subsidiary of Pillowtex Corp., Bath the subject firm. for workers of the subject firm. Division, including leased workers of The initial investigation resulted in a Information provided by the company Corestaff Agency, Scottsboro, Alabama. negative determination issued on July shows that temporary workers of The notice was published in the Federal 31, 2003, based on the finding that Manpower were employed at Fairchild Register on October 10, 2003 (68 FR imports of outdoor lighting controls and Semiconductor Corporation to produce 58720). printed circuit boards (PCBs)did not semiconductor devices at the South At the request of the State agency, the contribute importantly to worker Portland, Maine location of the subject Department reviewed the certification separations at the subject plant and no firm. for workers of the subject firm. shift of production to a foreign source Based on these findings, the Information provided by the company occurred. The denial notice was Department is amending this shows that leased workers of Manpower published in the Federal Register on certification to include temporary were employed at Fieldcrest Cannon, August 18, 2003 (68 FR 49523). workers of Manpower working at Inc., a subsidiary of Pillowtex Corp., To support the request for Fairchild Semiconductor Corporation, a Bath Division to produce bath rugs at reconsideration, the company official subsidiary of Fairchild Semiconductor the Scottsboro, Alabama location of the supplied additional information not International, Inc., South Portland, subject firm. made available in the initial Maine. Based on these findings, the investigation. A review of this additional information revealed that the The intent of the Department’s Department is amending this company shifted a significant portion of certification is to include all workers of certification to include leased workers its production to Mexico, which is party Fairchild Semiconductor Corporation, a of Manpower working at Fieldcrest to a free trade agreement with the subsidiary of Fairchild Semiconductor Cannon, Inc., a subsidiary of Pillowtex United States. International, Inc., who were adversely Corp., Bath Div., Scottsboro, Alabama. affected by increased imports. The intent of the Department’s Conclusion certification is to include all workers The amended notice applicable to After careful review of the additional employed at Fieldcrest Cannon, Inc., TA–W–52,136 is hereby issued as facts obtained on reconsideration, I Bath Division who were adversely follows: conclude that increased imports of affected by increased imports of bath articles like or directly competitive with All workers of Fairchild Semiconductor rugs. those produced at Fisher Pierce, Corporation, a subsidiary of Fairchild The amended notice applicable to Weymouth, Massachusetts, contributed Semiconductor International, Inc., South TA–W–52,475 is hereby issued as Portland, Maine, including temporary importantly to the declines in sales or follows: workers of Manpower, producing production and to the total or partial semiconductor devices at Fairchild All workers of Fieldcrest Cannon, Inc., a separation of workers at the subject Semiconductor Corporation, a subsidiary of subsidiary of Pillowtex Corporation, Bath firm. In accordance with the provisions Fairchild Semiconductor International, Inc., Division, Scottsboro, Alabama and leased of the Act, I make the following South Portland, Maine, who became totally workers of Corestaff Agency and Manpower or partially separated from employment on or producing bath rugs at Fieldcrest Cannon, certification: after June 9, 2002, through August 6, 2005, Inc., a subsidiary of Pillowtex Corporation, All workers of Fisher Pierce, Weymouth, are eligible to apply for adjustment assistance Bath Division, Scottsboro, Alabama, who Massachusetts, who became totally or under section 223 of the Trade Act of 1974. became totally or partially separated from partially separated from employment on or

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after July 31, 2002, through two years from 11, 2003, based on the finding that 8, 2002, applicable to workers of the date of this certification, are eligible to imports of vertical diffusion furnaces Levolor Kirsch Window Fashions, Wood apply for adjustment assistance under section (200mm and 300mm wafers) did not and Faux Wood Custom Window 223 of the Trade Act of 1974. contribute importantly to worker Coverings Department, Westminster, Signed in Washington, DC, this 20th day of separations at the subject plant and no California. The notice was published in November, 2003. shift of production to a foreign source the Federal Register on April 24, 2002 Linda G. Poole, occurred. The denial notice was (67 FR 20166). The certification was Certifying Officer, Division of Trade published in the Federal Register on amended on July 15, 2003 to show that Adjustment Assistance. March 26, 2003 (68 FR 14706). workers wages were paid under the [FR Doc. 03–29548 Filed 11–25–03; 8:45 am] Upon further review of the initial unemployment insurance (U.I.) tax BILLING CODE 4510–30–P investigation, in the reconsideration account for Levolor Home Fashions. The process, it was revealed that subject firm notice was published in the Federal customer(s) increased their import Register on July 24, 2002 (67 FR 48486). DEPARTMENT OF LABOR purchases of semiconductor testing At the request of the State agency, the equipment during the relevant period. It Department reviewed the certification Employment and Training was further revealed that U.S. aggregate for workers of the subject firm. Findings Administration imports of electric furnaces and ovens show that the Department limited its [TA–W–53,154] for diffusion, oxidation or annealing of certification coverage to the Wood and semiconductor wafers increased Faux Wood Customer Window International Stone Products, Inc., significantly during the relevant period. Coverings Department who were Barre, VT; Notice of Termination of Conclusion engaged in the production of wood and Investigation faux wood window coverings at the After careful review of the additional subject firm. Pursuant to section 221 of the Trade facts obtained on reconsideration, I Company information shows that the Act of 1974, as amended, an conclude that increased imports of Westminster, California plant has closed investigation was initiated on October 6, articles like or directly competitive with down completely and has shifted 2003, in response to a petition filed by those produced at Kokusai production of wood and faux wood the United Steelworkers of America, Semiconductor Equipment Corporation, window coverings to Mexico. Local 4 on behalf of workers of Billerica Facility, Billerica, It is the intent of the Department to International Stone Products, Inc., Massachusetts, contributed importantly include ‘‘all workers’’ of Levolor Kirsch Barre, Vermont. The workers produced to the declines in sales or production Window Fashions, Levolor Home granite memorials. and to the total or partial separation of Fashions who were adversely affected The petitioning group of workers is workers at the subject firm. In by increased imports. covered by an active certification issued accordance with the provisions of the The amended notice applicable to on October 24, 2003 and which remains Act, I make the following certification: TA–W–40,834 is hereby issued as in effect (TA–W–53,261). Consequently, All workers of Kokusai Semiconductor follows: further investigation in this case would Equipment Corporation, Billerica Facility, serve no purpose, and the investigation All workers of Levolor Kirsch Window Billerica, Massachusetts, who became totally Fashions, Levolor Home Fashions, has been terminated. or partially separated from employment on or Westminster, California, who became totally Signed in Washington, DC, this 31st day of after November 16, 2001 through two years or partially separated from employment on or October, 2003. from the date of this certification, are eligible after January 28, 2001 through April 8, 2004, to apply for adjustment assistance under Linda G. Poole, are eligible to apply for adjustment assistance Section 223 of the Trade Act of 1974. under section 223 of the Trade Act of 1974. Certifying Officer, Division of Trade Adjustment Assistance. Signed in Washington, DC, this 27th day of Signed at Washington, DC, this 4th day of [FR Doc. 03–29540 Filed 11–25–03; 8:45 am] October, 2003. November, 2003. BILLING CODE 4510–30–P Elliott S. Kushner, Linda G. Poole, Certifying Officer, Division of Trade Certifying Officer, Division of Trade Adjustment Assistance. Adjustment Assistance. DEPARTMENT OF LABOR [FR Doc. 03–29544 Filed 11–25–03; 8:45 am] [FR Doc. 03–29536 Filed 11–25–03; 8:45 am] BILLING CODE 4510–30–P BILLING CODE 4510–30–P Employment and Training Administration [TA–W–50,204] DEPARTMENT OF LABOR DEPARTMENT OF LABOR

Kokusai Semiconductor Equipment Employment and Training Employment and Training Corporation, Billerica Facility, Billerica, Administration Administration MA; Notice of Revised Determination [TA–W–40,834] [TA–W–52,959] on Reconsideration Levolor Kirsch Window Fashions, Maxxim Medical, Inc., Honea Path, SC; By application of April 8, 2003, a Levolor Home Fashions, Westminster, Amended Certification Regarding petitioner requested administrative CA; Amended Certification Regarding Eligibility To Apply for Worker reconsideration regarding the Eligibility To Apply for Worker Adjustment Assistance and Alternative Department’s Negative Determination Adjustment Assistance Trade Adjustment Assistance Regarding Eligibility to Apply for Worker Adjustment Assistance, In accordance with section 223 of the In accordance with Section 223 of the applicable to the workers of the subject Trade Act of 1974 (19 U.S.C. 2273) the Trade Act of 1974 (19 U.S.C. 2273) the firm. Department of Labor issued a Department of Labor issued a The initial investigation resulted in a Certification of Eligibility to Apply for Certification of Eligibility to Apply for negative determination issued on March Worker Adjustment Assistance on April Worker Adjustment Assistance, and

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under Section 246 of the Trade Act of applicable to workers of Ocello, Inc., Independence, Ohio who became totally or 1974 (26 U.S.C. 2813), a Negative Richland, Pennsylvania. The notice was partially separated from employment on or Determination Regarding Eligibility to published in the Federal Register on after February 23, 2001, through two years Apply for Alternative Trade Adjustment October 11, 2001 (68 FR 25060). from date of certification, are eligible to At the request of the State agency, the apply for adjustment assistance under section Assistance on October 14, 2003, 223 of the Trade Act of 1974. applicable to workers of Maxxim Department reviewed the certification Medical, Inc., Honea Path, South for workers of the subject firm. The Signed at Washington, DC, this 30th day of Carolina. The notice will be published workers were engaged in the production October, 2003. soon in the Federal Register. of knit garments until the company Elliott S. Kushner, At the request of a company official, closed at the end of June, 2001. Certifying Officer, Division of Trade the Department reviewed the New information shows that Ocello, Adjustment Assistance. certification for workers of the subject Inc. became known as H.H. Fessler [FR Doc. 03–29542 Filed 11–25–03; 8:45 am] firm. The workers are engaged in the Knitting Co., Inc. in June 2002 due to a BILLING CODE 4510–30–P production of surgical gloves. change in ownership. Workers separated Company information received during from employment as the subject firm the Department’s investigation stated had their wages reported under a DEPARTMENT OF LABOR that workers engaged in the production separated unemployment insurance (UI) of surgical gloves at the plant possess tax account for H.H. Fessler Knitting Employment and Training skills that are easily transferable. New Co., Inc. Administration information provided by the company Accordingly, the Department is states that workers at the subject firm amending this certification to properly [TA–W–41,874A and TA–W–41,874B] require skills that are unique to the reflect this matter. surgeon glove manufacturing process. The intent of the Department’s Sebago, Inc., Now Known as Sebago Therefore, workers’ skills are not easily certification is to include all workers of USA, LLC, a Wholly Owned Subsidiary transferable. Ocello, Inc. who were adversely affected of Wolverine Worldwide, Westbrook, Review of this information shows that by increased imports. ME, and Gorham, ME; Amended all eligibility criteria under Section 246 The amended notice applicable to Certification Regarding Eligibility To of the Trade Act of 1974 (26 U.S.C. TA–W–39,376 is hereby issued as Apply for Worker Adjustment 2813), as amended have been met. follows: Assistance The amended notice applicable to All workers of Ocello, Inc., now known as In accordance with section 223 of the TA–W–52,959 is hereby issued as H.H. Fessler Knitting Co., Inc., Richland, Trade Act of 1974 (19 U.S.C. 2273) the follows: Pennsylvania, who became totally or partially separated from employment on or Department of Labor issued a All workers of Maxxim Medical, Inc., after May 17, 2000, through September 21, Certification of Eligibility to Apply for Honea Path, South Carolina, who became 2003, are eligible to apply for adjustment Worker Adjustment Assistance on totally or partially separated from assistance under section 223 of the Trade Act September 30, 2002, applicable to employment on or after September 19, 2002 of 1974. workers of Sebago, Inc., Westbrook, through October 14, 2005, are eligible to Maine and Gorham, Maine. The notice apply for adjustment assistance under Signed at Washington, DC this 3rd day of Section 223 of the Trade Act of 1974 and are November 2003. was published in the Federal Register also eligible to apply for alternative trade Linda G. Poole, on October 22, 2002 (67 FR 64923). adjustment assistance under Section 246 of Certifying Officer, Division of Trade At the request of the State agency, the the Trade Act of 1974. Adjustment Assistance. Department reviewed the certification Signed at Washington, DC, this 6th day of [FR Doc. 03–29553 Filed 11–25–03; 8:45 am] for workers of the subject firm. The workers are engaged in the production November, 2003. BILLING CODE 4510–30–P Linda G. Poole, of men’s and women’s footwear. New information shows that Certifying Officer, Division of Trade Adjustment Assistance. DEPARTMENT OF LABOR Wolverine Worldwide purchased the Westbrook, Maine and Gorham, Maine [FR Doc. 03–29545 Filed 11–25–03; 8:45 am] Employment and Training locations of Sebago, Inc. and is now BILLING CODE 4510–30–P Administration known as Sebago USA, LLC, a wholly owned subsidiary of Wolverine [TA–W–41,185] DEPARTMENT OF LABOR Worldwide. Workers separated from Pittsburgh Logistics Systems, Inc., a employment at the Westbrook, Maine Employment and Training Subsidiary of Quadrivius, Inc., on and Gorham, Maine locations of the Administration Location at LTV Steel Corp., subject firm had their wages reported under a separate unemployment [TA–W–39,376] Independence, OH; Notice of Revised Determination insurance (UI) tax account for Sebago Ocello, Inc., Now Known as H.H. USA, LLC, a wholly owned subsidiary In accordance with the August 28, Fessler Knitting Co., Inc., Bedford, PA; of Wolverine Worldwide. 2003 order of the United States Court of Amended Certification Regarding Accordingly, the Department is International Trade (USCIT) in Former Eligibility To Apply for Worker amending the certification to properly Employees of Pittsburgh Logistics Adjustment Assistance reflect this matter. Systems, Inc., Plaintiff v. United States The intent of the Department’s In accordance with section 223 of the Secretary of Labor, Defendant (Court certification is to include all workers of Trade Act of 1974 (19 U.S.C. 2273) the No. 02–00387), I make the following Sebago, Inc., now known as Sebago Department of Labor issued Amended certification: USA, LLC, a wholly owned subsidiary Certification Regarding Eligibility to All workers of Pittsburgh Logistics of Wolverine Worldwide, Westbrook, Apply for Worker Adjustment Systems, Inc., A Subsidiary of Quadrivius, Maine, and Gorham, Maine, who were Assistance on September 21, 2001, Inc., on location at LTV Steel Corp., adversely affected by increased imports.

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The amended notice applicable to The amended notice applicable to Avenue, NW., Washington, DC 20210. TA–W–41,874A and TA–W–41,874B are TA–W–41,469 is hereby issued as Telephone: (202) 693–3730 (VOICE), hereby issued as follows: follows: (202) 693–3818 (FAX) (these are not All workers of Sebago, Inc., now known as ‘‘All workers of Telect, Liberty Lake, toll-free numbers) or e-mail: Sebago USA, LLC, a wholly owned Washington (TA–W–41,469), including [email protected]. subsidiary of Wolverine Worldwide, employees of Telect, Liberty Lake, SUPPLEMENTARY INFORMATION: Westbrook, Maine (TA–W–41,874A) and Washington, located in Colorado (TA–W– Gorham, Maine (TA–W–41,874B), who 41,469C), Georgia (TA–W–41,469D) and I. Background became totally or partially separated from Texas (TA–W–41,469E), who became totally employment on or after September 19, 2002, or partially separated from employment on or The Employment and Training through September 30, 2004, are eligible to after April 16, 2001, through August 19, Administration of the Department of apply for adjustment assistance under 2004, are eligible to apply for adjustment Labor is considering revising the Section 223 of the Trade Act of 1974. assistance under section 223 of the Trade Act reporting forms that correspond to OMB Signed at Washington, DC, this 6th day of of 1974. NO.: 1205–0416 which implements November, 2003. Signed at Washington, DC, this 1st day of reporting requirements for the Disability Linda G. Poole, October, 2003. Employment Grant Program for the Certifying Officer, Division of Trade Richard Church, fiscal years 1999 and 2000. Reporting Adjustment Assistance. Certifying Officer, Division of Trade impacts 15 grants for the last two years [FR Doc. 03–29551 Filed 11–25–03; 8:45 am] Adjustment Assistance. of a three year grant cycle which began BILLING CODE 4510–30–P [FR Doc. 03–29552 Filed 11–25–03; 8:45 am] July 1, 1998. The grants are awarded for one year plus two option years. These BILLING CODE 4510–30–P reports will also be used for similar DEPARTMENT OF LABOR disability related grants administered by DEPARTMENT OF LABOR ETA. Employment and Training II. Review Focus Administration Employment and Training [TA–W–41,469, TA–W–41,469C, TA–W–41– Administration The Department of Labor is 469D, and TA–W–41–469E] particularly interested in comments Proposed Collection; Comment which: Telect, Liberty Lake, WA and Including Request • Evaluate whether the proposed Employees of Telect, Located in collection of information is necessary Colorado, Georgia, and Texas; ACTION: Notice. for the proper performance of the Amended Certification Regarding functions of the agency, including SUMMARY: The Department of Labor, as Eligibility To Apply for Worker part of its continuing effort to reduce whether the information will have Adjustment Assistance paperwork and respondent burden, practical utility; • Evaluate the accuracy of the In accordance with section 223 of the conducts a pre-clearance consultation agency’s burden estimate for the Trade Act of 1974 (19 U.S.C. 2273) the process to provide the general public Department of Labor issued a and Federal agencies with an proposed collection of information, Certification of Eligibility to Apply for opportunity to comment on proposed including the validity of the methodology and assumptions used; Worker Adjustment Assistance on and/or continuing collections of • August 19, 2002, applicable to workers information in accordance with the Enhance the quality, utility, and of Telect, Liberty Lake, Washington. The Paperwork Reduction Act of 1995 clarity of the information to be collected; and notice was published in the Federal (PRA95) (44 U.S.C. 3506(c)(2)(A)). This • Register on September 10, 2002 (67 FR process helps to ensure that requested Minimize the burden of the 57453). data can be provided in the desired collection of information on those who At the request of a company official, format, reporting burdens are are to respond, including the use of the Department reviewed the minimized, collection instruments are appropriate automated, electronic, certification for workers of the subject clearly understood, and the impact of mechanical, or other technological firm. New information shows that collection requirements on respondents collection techniques or other forms of worker separations have occurred can be properly assessed. Currently, the information technology, e.g., permitting involving employees of the Liberty Employment and Training electronic submissions of responses. Lake, Washington facility of Telect Administration (ETA) is soliciting III. Current Actions located in Colorado, Georgia and Texas. comments concerning the reporting The proposed Information Collection These employees provided sales requirements for the Disability Request establishes reporting function services and customer services Employment Grant and the Disability requirements for this discretionary grant for the production of fiber optic Information Technology Grant Programs program which is funded under the patchcords and pigtails at the Liberty for the FY 04–07 funding periods. The Workforce Investment Act (WIA) Title I. Lake, Washington location of the subject reports submitted for comment include The Activity and Placement Report firm. the quarterly Activity and Placement (APR) includes information on the Based on these findings, the Report (APR) and annual Participant number of participants being served, Department is amending this Characteristics Report (PCR). certification to include employees of the activities and services provided, and DATES: Written comments must be Liberty Lake, Washington facility of planned outcomes. The Participant submitted to the office listed in the Telect located in Colorado, Georgia and Characteristics Report (PCR) covers Texas. ADDRESSES section below on or before information on age, race, educational The intent of the Department’s January 26, 2004. level and types of disability. certification is to include all workers of ADDRESSES: Alexandra K. Kielty, Chief, In addition to these reports, grantees Telect who were adversely affected by Division of Disability and Workforce are required to provide a quarterly increased imports. Programs, Rm. S–5206, 200 Constitution Financial Status Report (FSR), SF 269

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which is approved under OMB Title: Disability Employment Grant Frequency: Quarterly for Activity and Clearance #0348–0039. Program and Disability Information Placement Report (APR) ETA Form No. Type of Review: Revision. Technology Grant Program. 9077 and Annually for participant OMB Number: 1205–0416. Characteristic Report (PCR) ETA Form Agency: Employment and Training No. 9078. Administration. Catalog of Federal Domestic Affected Public: National not-for- Assistance Number: 17.248. profit organizations.

Avg. time per Form Total Frequency Total re- responses Estimated total respondents sponses (hours) burden hours

ETA 9077 ...... 16 Quarterly ..... 64 20 1,280 ETA 9078 ...... 16 Annually ...... 16 20 320 ETA SF–269 ...... 16 Quarterly ..... 64 20 1,280

Totals ...... 144 ...... 2,880

Number of Respondents: 16. Signed in Washington, DC this 11th day of The intent of the Department’s November, 2003. Total Responses: 144; (16 respondents certification is to include all workers of Emily Stover DeRocco, × 4 Quarterly Reports) = 64 + (16 Great Western International who were respondents × 1 annual report) = 16 + Assistant Secretary for Employment and adversely affected by a shift of Training. (16 respondents × 4 Quarterly Reports) production of sulfuric acid and caustic [FR Doc. 03–29534 Filed 11–25–03; 8:45 am] soda to Canada. = 16 Total = 144 Annual Responses. BILLING CODE 4510–30–P The amended notice applicable to Estimated Time Per Respondent: 180 NAFTA—05080 is hereby issued as Hours; 20 Hours × 4 APRs +(20 hrs. SF– follows: × DEPARTMENT OF LABOR 269 4) + (20 hrs.PCR) = 180 hrs.per All workers of Great Western International, respondent. Employment and Training Portland, Oregon who became totally or partially separated from employment on or Total Burden Hours: 2,880hrs. (Note: Administration Estimate is based on having 20 after July 3, 2000, through December 31, respondents). [NAFTA—05080] 2003, are eligible to apply for NAFTA–TAA under section 250 of the Trade Act of 1974. Total Burden Cost (capital/startup): Great Western International, Portland, $0.00. OR; Amended Certification Regarding Signed at Washington, DC this 8th day of October, 2003. Total Burden Cost (operating/ Eligibility To Apply for NAFTA— Richard Church, maintaining): $1,200.00. Transitional Adjustment Assistance Certifying Officer, Division of Trade Description: The disAbility In accordance with section 250(A), Adjustment Assistance. Employment Initiative Grant Programs subchapter D, chapter 2, Title II, of the [FR Doc. 03–29554 Filed 11–25–03; 8:45 am] give partial funds to National Trade Act of 1974 (19 U.S.C. 2273), the BILLING CODE 4510–30–P organizations that engage in Department of Labor issued a employment training and services for Certification for NAFTA Transitional people with disabilities to obtain Adjustment Assistance on October 16, DEPARTMENT OF LABOR competitive employment. The Activity 2001, applicable to workers of Great and Placement Report (APR) gives the Western International, Portland, Oregon. Employment and Training number of participants being served, The notice was published in the Federal Administration activities and services provided, and Register on October 30, 2001 (66 FR [NAFTA–4357] placement outcomes. The Participant 54784). At the request of a petitioner, the Characteristics Report (PCR) gives Oxford Automotive, Inc., Argos, IN; Department reviewed the certification participant information in age, race, Notice of Revised Determination On for workers of the subject firm. The Remand type of disAbility, etc. These funds are workers were engaged in the production taken from the WIA Title I (29 U.S.C. of industrial use chemicals such as The United States Court of 2916(c)(1)). There is a requirement to caustic soda and sulfuric acid until the International Trade (USCIT) remanded have grantees complete quarterly an company shifted production to Canada to the Department of Labor for further Activity Placement Report (APR) [29 in July 2001. consideration and investigation of the U.S.C. 2917(a)(1)] and a Standard Form New information shows that a worker negative determination on 269 (SF–269). A Participant will be retained at the subject firm reconsideration on remand in Former Characteristic Report (PCR) is submitted beyond the October 16, 2003 expiration Employees of Oxford Automotive annually to provide an overview of date of the certification. This employee U.A.W. Local 2088 v. U.S. Secretary of participants that were served during the is currently performing the closing Labor (Court No. 01–00453). program year) (29 U.S.C. 2917(a)(1))]. down functions until her termination no The Department’s denial of NAFTA- Respondents submit a narrative as part later than December 31, 2003. Transitional Adjustment Assistance for of the quarterly report package. The Based on these findings, the the workers of Oxford Automotive, Inc., narrative states activities of the Department is amending the Argos, Indiana (NAFTA–4357) was participants in the organization during certification to extend the October 16, issued on January 24, 2001 and the previous three months. 2003 expiration date for NAFTA–05080 published in the Federal Register on to read December 31, 2003. February 20, 2001 (66 FR 10916). The

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initial investigation concluded that conclude that there was a shift of MERIT SYSTEMS PROTECTION there was no shift of production to production to Mexico of articles like or BOARD Canada or Mexico and that imports from indirectly competitive with those Canada or Mexico did not contribute produced at the subject facility. In Membership of the Merit Systems importantly to workers’ separations. accordance with the provisions of the Protection Board’s Senior Executive On April 30, 2001, the Department Trade Act, I make the following Service Performance Review Board issued a Notice of Negative certification: Determination Regarding Application AGENCY: Merit Systems Protection All workers of Oxford Automotive, Inc., Board. for Reconsideration for NAFTA–4357 Argos, Indiana who became totally or ACTION: Notice. and published the determination in the partially separated from employment on or Federal Register on May 9, 2001 (66 FR after December 4, 1999, through two years SUMMARY: Notice is hereby given of the 23732). from the issuance of this revised members of the Performance Review The petitioners alleged in the request determination, are eligible to apply for for reconsideration that production NAFTA–TAA under section 250 of the Trade Board. equipment (180″ press line and two Act of 1974. FOR FURTHER INFORMATION CONTACT: single pot spot welders) was sent to an Signed at Washington, DC, this 10th day of Steve Nelson, Director of Policy and affiliated plant located in Mexico. November, 2003. Evaluation, Merit Systems Protection Information provided by the company at Linda G. Poole, Board, 1615 M Street, NW., Washington, that time indicated that while Director, Division of Trade Adjustment DC 20419. equipment, absent its use, was sent to Assistance. SUPPLEMENTARY INFORMATION: The Merit Mexico, the equipment was not used [FR Doc. 03–29541 Filed 11–25–03; 8:45 am] Systems Protection Board is publishing and there was no production shift. The BILLING CODE 4510–30–P the names of the new and current Department determined that the shift of members of the Performance Review production equipment, absent its use, Board (PRB) as required by 5 U.S.C. was an insufficient basis for 4314(c)(4). Rosemarie Straight and Steve certification. MEDICARE PAYMENT ADVISORY Nelson have been appointed as new The petitioners appealed to the U.S. COMMISSION members. P.J.Winzer will continue to Court of International Trade, and on serve as Chair of the PRB; Barbara Wade voluntary remand, the Department Commission Meeting will continue to serve as member. requested more information from the Dated: November 18, 2003. company. AGENCY: Medicare Payment Advisory In the remand investigation, the Commission. Bentley M. Roberts, Jr., Department requested information Clerk of the Board. ACTION: Notice of meeting. regarding company imports of side [FR Doc. 03–29446 Filed 11–25–03; 8:45 am] panels. The Department determined that BILLING CODE 7400–01–P SUMMARY: The Commission will hold its there was no basis to reverse the next public meeting on Thursday, negative reconsideration determination. December 4, 2003, and Friday, In a second voluntary remand NATIONAL MEDIATION BOARD investigation, the Department December 5, 2003, at the Ronald Reagan conducted a survey of the subject Building, International Trade Center, Administration of National Railroad company’s major customer and asked 1300 Pennsylvania Avenue, NW, Adjustment Board Functions and the company to clarify the situation Washington, DC. The meeting is Activities regarding the shift of equipment to tentatively scheduled to begin at 10 a.m. AGENCY: National Mediation Board. Mexico and alleged shift of production on December 4, and at 8 a.m. on to Mexico. The Department determined December 5. ACTION: Notice. Topics for discussion include: quality that there was no increased customer SUMMARY: of care; payment adequacy analyses for The National Mediation reliance upon import purchases and no Board (NMB) extends an invitation to shift of production to Mexico. hospitals, physicians, outpatient dialysis, ambulatory surgical centers, interested parties to attend an open Therefore, the Department did not meeting with the Board and its staff on reverse the negative remand home health, and skilled nursing facility; and Medicare+Choice. Friday, December 19, 2003. The Board determination. meeting will be held from 1 p.m. until On the current remand, the Agendas will be e-mailed 5 p.m. The meeting will be held in the Department followed the Court’s approximately one week prior to the Margaret A. Browning Hearing Room guidance in conducting its meeting. The final agenda will be (Room 11000), National Labor Relations investigation, obtaining new and available on the Commission’s web site Board, 1099 14th St. NW, Washington, additional information, as well as (http://www.MedPAC.gov). DC 20570. During the public meeting, clarification, from the company ADDRESSES: the NMB invites interested persons to regarding the alleged production shifts MedPAC’s address is: 601 New Jersey Avenue, NW, Suite 9000, share their views on the issues raised in to Mexico. Upon careful review of the the Board’s Advance Notice of Proposed new information, it has been Washington, DC 20001. The telephone number is (202) 220–3700. Rulemaking (ANPRM) concerning the determined that a significant portion of administration of National Railroad FOR FURTHER INFORMATION CONTACT: production of like and directly Adjustment Board (NRAB) functions competitive products was shifted from Diane Ellison, Office Manager, (202) and activities (68 FR 46983, Aug. 7, the subject facility to Mexico during the 220–3700. 2003). relevant period. Mark E. Miller, DATES: The meeting will be held on Conclusion Executive Director. December 19, 2003, from 1 p.m. to 5 After careful review of the additional [FR Doc. 03–29517 Filed 11–25–03; 8:45 am] p.m. Due to time and seating facts obtained on the current remand, I BILLING CODE 6820–BW–M considerations, individuals desiring to

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attend the meeting, or to make a Individuals should be prepared to other recommendations or suggestions presentation before the Board, must summarize their written statements at that you would make to the NMB with notify the NMB staff, in writing, no later the meeting. regard to its statutory responsibilities for than 4 pm on Thursday, December 11, Agenda: The NMB, in particular, the administration of the NRAB? 2003. solicits presentations on the following Roland Watkins, ADDRESSES: The public meeting will be questions that were posed in the held in the Margaret A. Browning ANPRM: National Railroad Adjustment Board Administrator. Hearing Room, (Room 11000), National Question One: If the NMB Labor Relations Board, 1099 14th St. promulgates procedures for the [FR Doc. 03–29496 Filed 11–25–03; 8:45 am] NW, Washington, DC 20570. Requests to administrative processing of NRAB BILLING CODE 7550–01–P attend the meetings must be in writing, cases in which the parties request that and must be addressed to Mr. Roland the Government compensate the neutral Watkins, Director of Arbitration/NRAB (‘‘referee’’), what should be the criteria NUCLEAR REGULATORY Administrator, National Mediation or guidelines for these procedures? COMMISSION Board, 1301 K Street, NW, Suite 250— It has been suggested to the NMB, that East, Washington, DC 20005. Attn: NMB a desirable goal is to have minor Draft Criteria for Determining Docket No. 2003–01. Written requests disputes resolved within one year of the Feasibility of Manual Actions To may be sent electronically to the filing of a Notice of Intent to File a Achieve Post-Fire Safe Shutdown Submission. At present, it is not following e-mail address: [email protected]. AGENCY: Nuclear Regulatory uncommon for cases to remain FOR FURTHER INFORMATION CONTACT: Mr. Commission. Roland Watkins, Director of Arbitration/ unresolved for two years. Question Two: If a stated goal of any ACTION: Notice of opportunity for public NRAB Administrator, National comment. Mediation Board (telephone 202–692– new procedures to be adopted by the 5057). NMB is to have the cases decided by an SUMMARY: The U. S. Nuclear Regulatory arbitrator within one year from the date Commission (NRC) is considering a SUPPLEMENTARY INFORMATION: The of the filing of the Notice of Intent, what National Mediation Board will hold an revision to the fire protection steps do you recommend comprise this regulations in 10 CFR part 50, appendix open public meeting on Friday, procedure? Do you believe that a one December 19, 2003 from 1 p.m. until 5 R, paragraph III.G.2 to allow the use of year goal is reasonable? If not, why not? manual actions by nuclear power plant p.m. The purpose of the public meeting Question Three: If the parties do not will be to solicit the views of interested operators to achieve hot shutdown agree to follow the procedures adopted conditions in the event of fires in persons concerning the various topics by the NMB, should there be any and questions posed by the NMB in its certain areas provided the actions are adverse consequences? Should the evaluated against specific criteria and ANPRM concerning the administration parties have options with respects to of National Railroad Adjustment Board determined to be acceptable. Currently, these procedures? What would you licensees who rely on operator manual (NRAB) functions and activities (68 FR recommend be the steps that comprise 46983, Aug. 7, 2003). actions which have not been reviewed an efficient case resolution procedure? and approved by the NRC are generally Individuals desiring to attend the Question Four: What should happen considered to be in non-compliance meeting must notify the NMB staff, in to those cases that are still pending after with NRC regulations. However, the writing, at the above listed physical or one year in which the parties have not NRC believes that manual actions relied e-mail address, by the deadline noted. If placed the cases before a Public Law upon by licensees are safe and effective an individual desires to make a Board, pursuant to 45 U.S.C. 153, when performed under appropriate presentation to the Board at the meeting, Second? If the cases are placed before a conditions. Accordingly, until the fire he or she is required to submit a brief Public Law Board, should a time limit protection regulations are revised, the outline of the presentation when making be imposed for the resolution of those NRC is planning to issue an interim the request. In addition, a full written cases? statement must be submitted one week At present, the NRAB has enforcement policy to exercise prior to the meeting (the deadline for approximately 2,000 cases pending enforcement discretion if licensees’ this submission is Thursday, December before it. Many of these cases arise out manual actions meet the NRC’s interim 11, 2003 at 4 p.m.). In lieu of making an of the filing of multiple grievances by acceptance criteria. The NRC is seeking oral presentation, individuals may different parties for the same underlying comments from interested parties on the submit a written statement for the set of facts. adequacy and clarity of draft interim record. Question Five: In order to ensure the acceptance criteria which will be To attend the meeting, all potential most efficient use of limited utilized by the interim enforcement attendees must include in their request: Government resources, should the NMB, discretion policy. (1) their full name and (2) organizational in agreeing to pay for the appointment DATES: Comment period expires affiliation (if any). Attendees are also of an arbitrator (‘‘referee’’) require the December 26, 2003. reminded to bring photo identification consolidation of similar cases dealing ADDRESSES: Submit written comments card with them to the public meeting in with similar issues? If, in your view, to the Chief, Rules and Directives oreder to gain admittence to the case consolidation is a viable option for Branch, Division of Administrative building. Due to time and potential improving the resolution of cases, what Services, Office of Administration, U.S. space limitations in the meeting room, should be the standards adopted for Nuclear Regulatory Commission, Mail the NMB will notify individuals of their consolidation? What should the NMB Stop T6–D59, Washington, DC 20555– attendance and/or speaking status (i.e., do if the parties refuse to consolidate 0001. Comments may be submitted by e- preliminary time for their presentation) cases, when in the NMB’s view, it mail to [email protected]. Comments may prior to the meeting. Time allocations would be appropriate to do otherwise? be delivered to the NRC’s headquarters for oral presentations will depend upon Question Six: As the goal of this at Two White Flint North, 11545 the number of individuals who desire to initiative is to improve the processing of Rockville Pike, Rockville, Maryland make presentations to the Board. disputes before the NRAB, are there any 20852.

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FOR FURTHER INFORMATION CONTACT: (for both pre- and post-1979 plants) is detectors and an automatic fire Richard Dudley, Office of Nuclear typically a compliance issue and is not suppression system installed in the fire Reactor Regulation, Washington DC a significant safety issue. area and if the manual actions relied 20555–0001, telephone (301) 415–1116, The Commission has decided to upon are consistent with all of the e-mail [email protected] or Ray Gallucci, resolve this issue generically through following acceptance criteria 1: telephone (301) 415–1255, e-mail rulemaking because rulemaking [email protected]. provides the most efficient and effective 1. Available Indications SUPPLEMENTARY INFORMATION: Nuclear process to align regulatory requirements Diagnostic indication, if credited to power plant fire protection regulations and safety objectives. In SECY–03–0100, support operator manual actions, shall dated June 17, 2003, the staff proposed be capable of: and associated guidelines prescribe fire • protection features to ensure that at least and on September 12, 2003, the Confirming that the action is Commission approved developing an necessary; one means of achieving and maintaining • safe shutdown conditions will remain interim enforcement policy which Being unaffected by the postulated would be in effect while the rulemaking fire; available during or after any postulated • fire. The NRC has concluded that a fire was being undertaken to codify final Providing a means for the operator protection regulatory compliance issue acceptance criteria for operator manual to detect whether spurious operation of exists at many nuclear power plants. actions. This policy would exercise safety-related equipment has occurred; This situation involves fire protection of discretion in that the NRC would refrain and from taking enforcement action for those • redundant safe shutdown trains when Verifying that the operator manual licensees who rely on operator manual these trains are located within the same action accomplished the intended actions, provided these licensees have fire area. Regional inspections indicate objective. demonstrated and documented the that rather than using fire barriers or acceptability of their operator manual 2. Environmental Considerations physical separation to maintain safe actions in accordance with interim Environmental conditions shutdown capability, many licensees acceptance criteria developed by the encountered while accessing and rely on operator manual actions that staff. The Commission approved the performing operator manual actions have not been approved by the NRC. staff’s recommendation to engage shall be demonstrated to be consistent Operator manual actions refer to those stakeholders in at least one public with the following human factor actions taken by operators to manipulate meeting to discuss the interim manual considerations for visibility and components and equipment from action acceptability criteria and how habitability: outside the main control room to they would be used in interim • Emergency lighting shall be achieve and maintain post-fire safe enforcement policy. (See Commission provided as required in Appendix R, shutdown. Operator manual actions are Memorandum dated September 12, Section III.J, or by the licensee’s not permitted in 10 CFR part 50, 2003, ADAMS Accession No. approved fire protection program, [e.g., appendix R, paragraph III.G.2, for plants ML032550222). lit with 8-hr battery-backed emergency licensed to operate before 1979 unless a The NRC staff has developed draft lighting], and sufficient lighting shall be specific exemption has been granted. interim acceptance criteria for manual provided for paths to and from locations For plants licensed to operate after actions. These draft criteria are provided requiring any actions. 1979, there is uncertainty as to whether below. They are an extension of the • Radiation shall not exceed 10 CFR operator manual actions can be used ‘‘Inspection Criteria for Fire Protection Part 20, Section 20.1201, limits. without NRC approval as Appendix R is Manual Actions’’ issued by the NRC in • Temperature and humidity not required by regulation for those March 2003 in Inspection Procedure conditions shall be evaluated to ensure plants (although most plants committed 71111.05. This inspection procedure is that temperature and humidity do not to Appendix R-equivalent guidance in available on the NRC public Web site adversely affect the capability to their fire protection programs). It is the (http://www.nrc.gov.) The NRC held a perform the operator manual action NRC’s understanding that most of the public meeting on November 12, 2003, (See, e.g., NUREG/CR–5680, Vol. 2, licensees who rely on unapproved at NRC headquarters in Rockville, ‘‘The Impact of Environmental operator manual actions have done so Maryland to allow members of the Conditions on Human Performance’’) or under the belief that the use of operator public to comment on the preliminary the licensee shall provide an acceptable manual actions to achieve safe draft criteria below. Additional written rationale for why temperature/humidity shutdown is acceptable, without NRC comments on these criteria may be do not adversely affect performing the prior approval, as long as the reliance submitted to the NRC during the 30 day manual actions. on operator manual actions does not comment period. • Fire effects shall be evaluated to adversely affect the ability of a plant to During the rulemaking process to ensure that smoke and toxic gases from achieve and maintain safe shutdown. codify the final acceptance criteria for the fire do not adversely affect the The industry also believes that most manual actions, additional public capability to access the required operator manual actions used by notices will be issued and additional equipment or to perform the operator licensees for operation of a safe public comments will be solicited to manual action. shutdown train during a fire do not further ensure that public stakeholder involve any safety significant feasibility input is considered. 3. Staffing and Training concerns and would likely be approved Draft Interim Criteria for Determining There shall be a sufficient number of by the NRC if processed as an plant operators, under all staffing levels, exemption or deviation request. The the Acceptability of Manual Actions To Achieve Post-Fire Safe Shutdown to perform all of the required actions in results from NRC fire protection the times required for a given fire inspections to date indicate that there is Licensees who have relied on operator scenario. The use of operators to insufficient evidence that the generic manual actions to comply with perform actions shall be independent use of these manual actions poses a Paragraph III.G.2 of Appendix R may be safety concern. Thus the staff believes allowed enforcement discretion if the 1 The criteria are not listed in any particular that use of unapproved manual actions area where the fire occurs has fire order.

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from any collateral fire brigade or shall demonstrate that there is sufficient improvements in all published guides control room duties they may need to time to travel to each action location are encouraged at any time. Written perform as a result of the fire. Operators and perform the action required to comments may be submitted to the required to perform the manual actions support the associated shutdown Rules and Directives Branch, Division of shall be qualified and continuously function(s) such that an unrecoverable Administrative Services, Office of available to perform the actions required condition does not occur. Administration, U.S. Nuclear Regulatory to achieve and maintain safe shutdown. Commission, Washington DC 20555. 10. Equipment Pre-Conditions A training program on the use of Questions on the content of this guide operator manual actions and associated Possible failure modes and damage may be directed to Mr. S.K. Aggarwal, procedures during a postulated fire shall that may occur to equipment used (301) 415–6005; e-mail [email protected]. demonstrate that operators can during a fire shall be considered to the Regulatory guides are available for successfully achieve these objectives. extent that the equipment’s subsequent inspection or downloading at the NRC’s use could be prevented, or at least made Web site at 4. Communications difficult. Credit for using equipment under Regulatory Guides and in NRC’s To achieve and maintain safe whose operability may have been Electronic Reading Room (ADAMS shutdown, adequate communications adversely affected by the fire due to System) at the same site. Single copies capability shall be demonstrated for smoke, heat, water, combustion of regulatory guides may be obtained operator manual actions that must be products or spurious actuation effects free of charge by writing the coordinated with other plant operations, shall account for such possibilities (e.g., Reproduction and Distribution Services with this communications capability over-torquing an MOV due to a spurious Section, U.S. Nuclear Regulatory continuously available. signal, as discussed in Information Commission, Washington, DC 20555– Notice 92–18). 0001, or by fax to (301) 415–2289, or by 5. Special Equipment Dated at Rockville, Maryland, this 20th day e-mail to . Issued Any special equipment required to of November, 2003. guides may also be purchased from the support operator manual actions, For The Nuclear Regulatory Commission. National Technical Information Service including keys, self-contained breathing Catherine Haney, (NTIS) on a standing order basis. Details apparatus (SCBA), and personnel on this service may be obtained by protective equipment, shall be readily Program Director, Policy and Rulemaking Program, Division of Regulatory Improvement writing NTIS at 5285 Port Royal Road, available, easily accessible and Programs, Office of Nuclear Reactor Springfield, VA 22161; telephone 1– demonstrated to be effective. Regulation. 800–553–6847; . 6. Procedures [FR Doc. 03–29560 Filed 11–25–03; 8:45 am] Regulatory guides are not copyrighted, BILLING CODE 7590–01–P and Commission approval is not Procedural guidance on the use of required to reproduce them. (5 U.S.C. required operator manual actions shall 552(a)) be readily available, easily accessible NUCLEAR REGULATORY and demonstrated to be effective. Dated at Rockville, MD, this 17th day of COMMISSION November, 2003. 7. Local Accessibility For The Nuclear Regulatory Commission. Regulatory Guide; Issuance, Ashok C. Thadani, All locations where operator manual Availability actions are performed shall be assessed Director, Office of Nuclear Regulatory as accessible without hazards to The Nuclear Regulatory Commission Research. personnel, with controls needed to (NRC) has issued a revision of a guide [FR Doc. 03–29558 Filed 11–25–03; 8:45 am] assure availability of any special in its Regulatory Guide Series. This BILLING CODE 7590–01–P equipment, such as keys or ladders, series has been developed to describe being demonstrated. and make available to the public such information as methods acceptable to NUCLEAR REGULATORY 8. Demonstration the NRC staff for implementing specific COMMISSION The capability to successfully parts of the NRC’s regulations, Availability and Solicitation of Public accomplish required operator manual techniques used by the staff in its Comments on Interagency Steering actions within the time allowable using review of applications for permits and Committee on Radiation Standards’ the required procedures and equipment licenses, and data needed by the NRC Reports on Radioactivity in Sewage shall be demonstrated using the same staff in its review of applications for Sludge and Ash personnel/crews who will be required to permits and licenses. perform the actions during the fire; Revision 2 of Regulatory Guide 1.53, AGENCIES: U.S. Nuclear Regulatory documentation of the demonstration ‘‘Application of the Single-Failure Commission and U.S. Environmental shall be provided. Criterion to Safety Systems,’’ provides Protection Agency. guidance on methods acceptable to the 9. Complexity and Number ACTION: Announce the issuance of three NRC staff for satisfying the NRC’s reports concerning radioactivity in The degree of complexity and total regulations with respect to the sewage sludge and ash, and request number of operator manual actions application of the single-failure criterion public comments. required to effect safe shutdown shall be to the electrical power, instrumentation, limited such that their successful and control portions of nuclear power SUMMARY: This Federal Register notice accomplishment under realistically plant safety systems. This Revision 2 announces the availability of three severe conditions is assured for a given supersedes the recently issued Revision reports, prepared by the Sewage Sludge fire scenario. The need to perform 1, as an incorrect version of the guide Subcommittee of the Interagency operator manual actions in different was inadvertently issued as Revision 1. Steering Committee on Radiation locations shall be considered when Comments and suggestions in Standards (ISCORS), addressing sequential actions are required. connection with items for inclusion in radioactivity in sewage sludge and ash. Analyses of the postulated fire time line guides currently being developed or The first report, ‘‘ISCORS Assessment of

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Radioactivity in Sewage Sludge: potential threat posed to human health Comments on either, ‘‘ISCORS Radiological Survey Results and and the environment by various levels Assessment of Radioactivity in Sewage Analysis,’’ summarizes the information of such materials. Sludge: Modeling to Assess Radiation on radioactivity found in samples of In response to this need, ISCORS Doses,’’ or ‘‘ISCORS Assessment of sewage sludge and ash from 313 formed a Sewage Sludge Subcommittee Radioactivity in Sewage Sludge: publicly owned treatment works (SSS) to coordinate, evaluate, and Recommendations on Management of (POTWs). This report is being issued as resolve issues regarding radioactive Radioactive Materials in Sewage Sludge a final document, since it only presents materials in sewage sludge and ash. To and Ash at Publicly Owned Treatment data that has already been collected. estimate the amounts of radionuclides Works,’’ should be sent to the EPA The second report, ‘‘ISCORS that actually occur in sewage sludge and contact listed below by February 6, Assessment of Radioactivity in Sewage ash, ISCORS’ SSS performed a survey of 2004. Sludge: Modeling to Assess Radiation radioactivity in sludge and ash across Robert Bastian, U.S. Environmental Doses,’’ assesses the potential levels of the United States. The final report is Protection Agency—4204M, 1200 radiation doses to people by modeling entitled, ‘‘ISCORS Assessment of Pennsylvania Avenue, NW., the transport of radioactivity from Radioactivity in Sewage Sludge: Washington, DC 20460, Telephone: sludge into the local environment. The Radiological Survey Results and 202–564–0653, e-mail: report also provides a complete Analysis,’’ and is available on the [email protected]. description and justification of the dose ISCORS Web site at http:// Hard copies can also be obtained by assessment methodology. The third www.iscors.org. calling or writing to Carol Walls, U.S. report, ‘‘ISCORS Assessment of Concurrently, the Dose Modeling Nuclear Regulatory Commission, Radioactivity in Sewage Sludge: Workgroup of the SSS undertook a dose NMSS/DWM/EPAB, M.S. T–7J8, Recommendations on Management of assessment to help assess the potential Washington, DC 20555–0001, 301–415– Radioactive Materials in Sewage Sludge threat that these materials may pose to 8028, or [email protected]. and Ash at Publicly Owned Treatment human health. The draft report that we FOR FURTHER INFORMATION CONTACT: Works,’’ recommends further actions are making available for public James Kennedy, U.S. Nuclear Regulatory that may be taken by a POTW operator comment today, ‘‘ISCORS Assessment Commission, NMSS/DWM, M.S. T–7J8, when elevated levels of radionuclides of Radioactivity in Sewage Sludge: Washington, DC 20555, telephone 301– are detected. Modeling to Assess Radiation Doses,’’ 415–6668, fax 301–415–5397, e-mail The purpose of ISCORS is to foster describes the methodology and results [email protected]. early resolution and coordination of of the dose modeling effort. The general regulatory issues associated with approach used in the report is a Dated at Rockville, Maryland, this 20th day of November, 2003. radiation standards. Agencies standard one that consists essentially of two steps. First, seven general, fairly For The U.S. Nuclear Regulatory represented on ISCORS include the U.S. Commission. Nuclear Regulatory Commission (NRC), generic scenarios (and some sub- John T. Greeves, the U.S. Environmental Protection scenarios) are constructed to represent Agency (EPA), the U.S. Department of typical situations in which members of Director, Division of Waste Management, the public of POTW workers are likely Office of Nuclear Material Safety and Energy, the U.S. Department of Defense, Safeguards. the U.S. Department of Transportation, to be exposed to sludge. The selection the Occupational Safety and Health of radionuclides for consideration was [FR Doc. 03–29559 Filed 11–25–03; 8:45 am] Administration of the U.S. Department based on the results of the ISCORS BILLING CODE 7590–01–P of Labor, and the U.S. Department of survey of sewage sludge and ash at Health and Human Services. The Office various POTWs, and includes manmade of Science and Technology Policy, the and naturally-occurring isotopes. PRESIDIO TRUST Office of Management and Budget, and Second, assuming a unit specific Notice of Public Meeting State representatives may be observers activity of a radionuclide in dry sludge, at meetings. The objectives of ISCORS a widely accepted multi-pathway AGENCY: The Presidio Trust. are to: (1) Facilitate a consensus on environmental transport model (the ACTION: Notice of public meeting. allowable levels of radiation risk to the RESRAD family of codes) is employed public and workers; (2) promote to obtain sludge concentration-to-dose SUMMARY: In accordance with section consistent and scientifically sound risk conversion factors. 103(c)(6) of the Presidio Trust Act, 16 assessment and risk management A third and final document, ‘‘ISCORS U.S.C. 460bb note, Title I of Pub. L. approaches in setting and implementing Assessment of Radioactivity in Sewage 104–333, 110 Stat. 4097, and in standards for occupational and public Sludge: Recommendations on accordance with the Presidio Trust’s protection from ionizing radiation; (3) Management of Radioactive Materials in bylaws, notice is hereby given that a promote completeness and coherence of Sewage Sludge and Ash at Publicly public meeting of the Presidio Trust Federal standards for radiation Owned Treatment Works,’’ is also being Board of Directors will be held protection; and (4) identify interagency issued for public comment today. This commencing 6:30 p.m. on Wednesday, radiation protection issues and document is for use by POTW operators December 10, 2003, at the Officers’ coordinate their resolution. in evaluating whether the presence of Club, 50 Moraga Avenue, Presidio of There have been a number of well- radioactive materials in sewage sludge San Francisco, California. The Presidio publicized cases of radionuclides could pose a threat to the health and Trust was created by Congress in 1996 discovered in sewage sludge and ash, safety of POTW workers or the general to manage approximately eighty percent and some of these have led to expensive public. ISCORS concludes that the of the former U.S. Army base know as cleanup projects. These incidents made levels of radioactive materials detected the Presidio, in San Francisco, clear the need for a comprehensive in sewage sludge and ash in the ISCORS California. determination of the prevalence of survey indicate that, at most POTWs, The purposes of this meeting are to: radionuclides at publicly owned radiation exposure to workers or to the (1) Take action on the minutes of treatment works sewage sludge and ash general public is not likely to be a previous Board meetings; (2) provide around the country, and the level of concern. the Executive Director’s general status

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report; (3) receive oral scoping should be received by the Commission if the Applicant implemented the comments under the National by 5:30 p.m. on December 15, 2003 and Distribution Plan. Environmental Policy Act on the Trust’s should be accompanied by proof of 3. Applicant requests relief to permit proposed environmental review for the service on Applicant, in the form of an it, so long as it maintains in effect a Public Health Service Hospital project; affidavit or, for lawyers, a certificate of Distribution Plan, to make periodic and (4) receive public comment in service. Hearing requests should state long-term capital gains distributions, as accordance with the Trust’s Public the nature of the writer’s interest, the often as monthly, on its outstanding Outreach Policy. reason for the request, and the issues common stock. Accommodation: Individuals contested. Persons who wish to be Applicant’s Legal Analysis requiring special accommodation at this notified of a hearing may request meeting, such as needing a sign notification by writing to the 1. Section 19(b) of the Act provides language interpreter, should contact Commission’s Secretary. that a registered investment company may not, in contravention of such rules, Mollie Matull at (415) 561–5300 prior to ADDRESSES: Secretary, Commission, 450 November 28, 2003. regulations, or orders as the Fifth Street, NW., Washington, DC Commission may prescribe, distribute FOR FURTHER INFORMATION CONTACT: 20549–0609. Applicant, c/o Susan S. long-term capital gains more often than Karen Cook, General Counsel, the Newton, John Hancock Advisers, LLC, once every twelve months. Rule 19b– Presidio Trust, 34 Graham Street, PO 101 Huntington Avenue, Boston, MA 1(a) under the Act permits a registered Box 29052, San Francisco, California 02199–7603. investment company, with respect to 94129–0052, Telephone: (415) 561– FOR FURTHER INFORMATION CONTACT: any one taxable year, to make one 5300. Christine Y. Greenlees, Senior Counsel, capital gains distribution, as defined in Dated: November 20, 2003. at (202) 942–0581, or Mary Kay Frech, section 852(b)(3)(C) of the Internal Karen A. Cook, Branch Chief, at (202) 942–0564 (Office Revenue Code of 1986, as amended (the General Counsel. of Investment Company Regulation, ‘‘Code’’). Rule 19b–1(a) also permits a [FR Doc. 03–29529 Filed 11–25–03; 8:45 am] Division of Investment Management). supplemental distribution to be made pursuant to section 855 of the Code not BILLING CODE 4310–4R–M SUPPLEMENTARY INFORMATION: The exceeding 10% of the total amount following is a summary of the distributed for the year. Rule 19b–1(f) application. The complete application permits one additional long-term capital SECURITIES AND EXCHANGE may be obtained for a fee at the COMMISSION gains distribution to be made to avoid Commission’s Public Reference Branch, the excise tax under section 4982 of the [Release No. IC–26258; 812–12920] 450 Fifth Street NW., Washington, DC Code. 20549–0102 (tel. 202–942–8090). 2. Applicant asserts that rule 19b–1 John Hancock Bank and Thrift Applicant’s Representations under the Act, by limiting the number Opportunity Fund; Notice of of net long-term capital gains Application 1. Applicant is organized as a distributions that it may make with Massachusetts business trust and is November 20, 2003. respect to any one year, would prevent registered under the Act as a closed-end the normal and efficient operation of the AGENCY: Securities and Exchange diversified management investment Distribution Plan whenever the Commission (‘‘Commission’’). company. Applicant’s investment Applicant’s realized net long-term ACTION: Notice of application for an objective is long-term capital capital gains in any year exceed the total order under section 6(c) of the appreciation through investment of at of the fixed regular periodic Investment Company Act of 1940 (the least 80% of its net assets in securities distributions that may include such ‘‘Act’’) for an exemption from section of U.S. regional banks and thrifts and capital gains under the rule. Applicant 19(b) of the Act and rule 19b–1 under holding companies that primarily own states that rule 19b-1 thus may force the the Act. or receive a substantial portion of their fixed regular periodic distributions to be income from regional banks or thrifts. funded with returns of capital (to the SUMMARY OF APPLICATION: John Hancock Applicant’s shares are listed and traded extent net investment income and Bank and Thrift Opportunity Fund (the on the New York Stock Exchange. John realized short-term capital gains are ‘‘Applicant’’) requests an order to Hancock Advisers, LLC, an investment insufficient to fund the distribution), permit it to make periodic distributions adviser registered under the Investment even though realized net long-term of long-term capital gains, as often as Advisers Act of 1940, serves as capital gains otherwise would be monthly, so long as it maintains in investment adviser to the Applicant. available. Applicant further asserts that, effect a distribution policy calling for 2. On May 20, 2003, the Applicant’s to distribute all of its long-term capital periodic distributions of a fixed board of trustees (the ‘‘Board’’), gains within the limits in rule 19b-1, the percentage of net asset value or a fixed including a majority of the trustees who Applicant may be required to make total dollar amount each taxable year are not ‘‘interested persons,’’ as defined distributions in excess of the annual (‘‘Distribution Plan’’). in section 2(a)(19) of the Act amount called for by the Distribution FILING DATES: The application was filed (‘‘Independent Trustees’’), of the Plan or retain and pay taxes on the on January 17, 2003, and amended on Applicant, adopted a Distribution Plan, excess amount. Applicant asserts that November 10, 2003. pursuant to which the Applicant would the application of rule 19b-1 to the HEARING OR NOTIFICATION OF HEARING: An make quarterly distributions of an Applicant’s Distribution Plan may order granting the requested relief will amount equal to at least 2.5% of the create pressure to limit the realization of be issued unless the Commission orders Applicant’s net asset value determined long-term capital gains based on a hearing. Interested persons may as of December 31st of the prior considerations unrelated to investment request a hearing by writing to the calendar year, for a total distribution of goals. Commission’s Secretary and serving at least 10% annually. Applicant 3. The Applicant submits that one of Applicant with a copy of the request, believes that the discount at which the the concerns leading to the enactment of personally or by mail. Hearing requests Applicant’s shares trade may be reduced section 19(b) and the adoption of the

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rule was that shareholders might be commissions that would be paid in SECURITIES AND EXCHANGE unable to distinguish between frequent connection with the offering. Any COMMISSION distributions of capital gains and offering by the Applicant of transferable [Release No. 35–27766] dividends from investment income. The rights will comply with any applicable Applicant states that the proposed National Association of Securities Filings Under the Public Utility Holding Distribution Plan, including the fact that Dealers, Inc. rules regarding the fairness Company Act of 1935, as Amended the distributions called for by the of compensation. (‘‘Act’’) Distribution Plan will include returns of capital to the extent that the Applicant’s 5. Section 6(c) of the Act provides that November 20, 2003. net investment income and net realized the Commission may exempt any Notice is hereby given that the capital gains are insufficient to meet the person, security or transaction or class following filing(s) has/have been made minimum percentage dividend, will be or classes of any persons, securities or with the Commission pursuant to fully described in each of the transactions from any provision of the provisions of the Act and rules Applicant’s periodic reports to Act, or from any rule thereunder, if such promulgated under the Act. All shareholders. The Applicant states that, exemption is necessary or appropriate interested persons are referred to the in accordance with rule 19a–1 under the in the public interest and consistent application(s) and/or declaration(s) for Act, a statement showing the source of with the protection of investors and the complete statements of the proposed the distribution would accompany each purposes fairly intended by the policy transaction(s) summarized below. The distribution (or the confirmation of the and provisions of the Act. For the application(s) and/or declaration(s) and reinvestment thereof under the reasons stated above, the Applicant any amendment(s) is/are available for Applicant’s dividend reinvestment believes that the requested relief public inspection through the plan). The Applicant states that the satisfies this standard. Commission’s Branch of Public amount and source of each distribution Reference. received during the calendar year will Applicant’s Condition Interested persons wishing to be included with the Applicant’s IRS comment or request a hearing on the The Applicant agrees that any order application(s) and/or declaration(s) Form 1099–DIV reports of distributions granting the requested relief shall during the year, which will be sent to should submit their views in writing by terminate upon the effective date of a each shareholder who received December 15, 2003, to the Secretary, registration statement under the distributions (including shareholders Securities and Exchange Commission, Securities Act of 1933 for any future who have sold shares during the year). Washington, DC 20549–0609, and serve The Applicant states that this public offering by the Applicant of its a copy on the relevant applicant(s) and/ information also will be included in the shares other than: or declarant(s) at the address(es) Applicant’s annual report to (i) a rights offering to holders of the specified below. Proof of service (by shareholders. Applicant’s common stock, in which (a) affidavit or, in the case of an attorney at law, by certificate) should be filed with shares are issued only within the 15-day 4. Another concern underlying the request. Any request for hearing period immediately following the record section 19(b) and rule 19b–1 is that should identify specifically the issues of frequent capital gains distributions date of a monthly dividend, or within facts or law that are disputed. A person could facilitate improper distribution the six-week period following the record who so requests will be notified of any practices, including, in particular, the date of a quarterly dividend, (b) the hearing, if ordered, and will receive a practice of urging an investor to prospectus for such rights offering copy of any notice or order issued in the purchase fund shares on the basis of an makes it clear that shareholders matter. After December 15, 2003, the upcoming distribution (‘‘selling the exercising rights will not be entitled to application(s) and/or declaration(s), as dividend’’), where the dividend results receive such dividend, and (c) the filed or as amended, may be granted in an immediate corresponding Applicant has not engaged in more than and/or permitted to become effective. reduction in NAV and would be, in one rights offering during any given KeySpan Corporation, et al. (70–10129) effect, a return of the investor’s capital. calendar year; or Applicant submits that this concern KeySpan Corporation (‘‘KeySpan’’), a (ii) an offering in connection with a does not apply to closed-end investment registered holding company and companies, such as the Applicant, merger, consolidation, acquisition, spin- KeySpan’s directly owned public utility which do not continuously distribute off or reorganization of the Applicant; subsidiaries The Brooklyn Union Gas their shares. In addition, the Applicant unless the Applicant has received from Company d/b/a KeySpan Energy states that any rights offering will be the staff of the Commission written Delivery New York (‘‘KEDNY’’); timed so that shares issuable upon assurance that the order will remain in KeySpan Gas East Corporation d/b/a exercise of the rights will be issued only effect. KeySpan Energy Delivery Long Island in the 15-day period immediately For the Commission, by the Division of (‘‘KEDLI’’); KeySpan Generation LLC following the record date for the Investment Management, under delegated (‘‘KeySpan Generation’’); and KeySpan’s declaration of a monthly dividend, or in authority. public utility subsidiaries indirectly the six-week period immediately owned through KeySpan New England following the record date of a quarterly Margaret H. McFarland, LLC (‘‘KeySpan New England’’), Boston dividend. Thus, the Applicant states Deputy Secretary. Gas Company d/b/a KeySpan Energy that, in a rights offering, the abuse of [FR Doc. 03–29574 Filed 11–25–03; 8:45 am] Delivery New England (‘‘Boston Gas’’), selling the dividend could not occur as BILLING CODE 8010–01–P Essex Gas Company d/b/a KeySpan a matter of timing. Any rights offering Energy Delivery New England (‘‘Essex also will comply with all relevant Gas’’), Colonial Gas Company d/b/a Commission and staff guidelines. In KeySpan Energy Delivery New England determining compliance with these (‘‘Colonial Gas’’), and EnergyNorth guidelines, the Board will consider, Natural Gas, Inc. d/b/a KeySpan Energy among other things, the brokerage Delivery New England (‘‘ENGI’’ and the

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direct and indirect utility subsidiaries, to the Long Island Power Authority securities of one or more corporations, together, ‘‘Utility Subsidiaries’’); (‘‘LIPA’’) for resale by LIPA to its trust, partnerships, limited liability KeySpan’s nonutility subsidiaries approximately 1.1 million customers; companies or other entities (‘‘Nonutility Subsidiaries’’): KeySpan (iv) Boston Gas, which distributes (‘‘Intermediate Subsidiaries’’) in order Energy Corporation (‘‘KEC’’) and its natural gas to customers located in to, among other things, facilitate the subsidiaries; KeySpan Insurance Boston and other cities and towns in acquisition, holding and/or financing of Company; KeySpan Electric Services eastern and central Massachusetts; (v) KeySpan’s nonutility investments; LLC; KeySpan Engineering and Survey, Essex Gas, which distributes natural gas (xi) The authority for KeySpan to Inc.; KeySpan Exploration & Production to customers in eastern Massachusetts to engage, directly or through Subsidiaries, LLC; KeySpan Corporate Services LLC customers; (vi) Colonial Gas, which in preliminary development activities (‘‘KCS’’); KeySpan Utility Services LLC; distributes natural gas to customers (‘‘Development Activities’’) and KSNE LLC; KeySpan-Ravenswood LLC located in northeastern Massachusetts administrative and management (‘‘Ravenswood’’); KeySpan Services, Inc. and on Cape Cod; and (vii) ENGI, which activities (‘‘Administrative Activities’’) and its nonutility subsidiaries; KeySpan distributes natural gas to customers in each case related to KeySpan’s Energy Trading Services LLC, and located in southern and central New permitted nonutility investments; KeySpan Energy Development Hampshire, and the City of Berlin (xii) The authority for KeySpan and Corporation and its nonutility located in northern New Hampshire. its Nonutility Subsidiaries to undertake subsidiaries, all located at One Together, KEDNY and KEDLI serve internal reorganizations of then existing MetroTech Center, Brooklyn, New York approximately 1.66 million customers. and permitted Nonutility Subsidiaries 11201, except for KeySpan New Together, Boston Gas, Colonial Gas and and businesses; England, Boston Gas, Essex Gas, Essex Gas serve approximately 768,000 (xiii) The authority for KeySpan and Colonial Gas and ENGI, which are customers. ENGI serves approximately its Nonutility Subsidiaries to undertake located at 52 Second Avenue, Waltham, 75,000 customers. internal reorganizations of then existing MA 02451, (KeySpan, the Utility and permitted Nonutility Subsidiaries Subsidiaries and the Nonutility II. General Request and businesses; Subsidiaries are collectively referred to Applicants request authorization to (xiv) The authority for KeySpan and as ‘‘Applicants’’) have filed with the engage in the financing transactions set the Subsidiaries to make investments in Commission an application-declaration forth below through December 31, 2006 EWGs and FUCOs up to an aggregate (‘‘Application’’) under sections 6(a), 7, (‘‘Authorization Period’’). amount not to exceed $3.0 billion; 9(a), 10, 11, 12(b), 12(f), and 13(b) of the (i) Issuance by KeySpan of common (xv) The authority for KeySpan and Act, and rules 42, 43, 44, 45, 46, 52, 53, stock, long-term debt; Preferred Stock, the Subsidiaries to organize and/or 54, 58, 62, 90, and 91 under the Act. Preferred or equity-linked securities acquire the equity securities of one or more additional corporations, trusts, I. Introduction (including units with incorporated options, warrants and/or forward equity partnerships or other entities organized By order dated November 7, 2000 purchase contracts or provisions that are to serve the purpose of facilitating (HCAR No. 27269), as corrected by order exercisable or exchangeable for or financings (‘‘Financing Subsidiaries’’); issued on December 1, 2000 (HCAR No. convertible into common stock); (xvi) The authority for the Nonutility 27281) (together, ‘‘Merger Order’’), (ii) Issuance by KeySpan of short-term Subsidiaries to provide services and sell KeySpan was authorized to acquire all debt; goods to each other at fair market prices of the issued and outstanding common (iii) Issuance of up to 13 million determined without regard to cost in stock of Eastern Enterprises (‘‘Eastern’’ shares of KeySpan common stock under exemption from section 13(b) and rules now known as KeySpan New England)1 KeySpan’s direct stock purchase and 90 and 91; and and EnergyNorth Inc. (‘‘Mergers’’). dividend reinvestment plan, certain (xvii) Issuances by KeySpan and its KeySpan now directly or indirectly incentive compensation plans and Subsidiaries of common stock, preferred owns the following seven public utility certain other employee benefit plans; stock, preferred and equity-linked companies: (i) KEDNY, which (iv) The entering into by KeySpan and securities, long-term debt and short- distributes natural gas at retail to its Subsidiaries of hedging transactions; term debt to refund, replace, repurchase residential, commercial and industrial (v) The issuance of intra-system or refinance existing securities, to the customers in the New York City advances and guarantees extent not exempt under rule 52. boroughs of Brooklyn, Staten Island and (‘‘Guarantees’’), and performance III. Financing Parameters Queens; (ii) KEDLI, which distributes guarantees (‘‘Performance Guarantees’’) natural gas at retail to customers in New by KeySpan to or on behalf of Applicants request authorization to York State located in the counties of Subsidiaries of KeySpan; engage in a variety of financing Nassau and Suffolk on Long Island and (vi) The issuance of intra-system transactions, credit support the Rockaway Peninsula in Queens advances, Guarantees, Performance arrangements and other related County; (iii) KeySpan Generation, Guarantees and, to the extent not transactions, as more fully discussed which owns and operates electric exempt under rule 52, by the Nonutility below, during the Authorization Period generation capacity located on Long Subsidiaries to or on behalf of other for which the specific terms and Island all of which is sold at wholesale Nonutility Subsidiaries; conditions are not at this time known. (vii) Issuances of short-term debt Applicants state that the following 1 KeySpan New England has succeeded to securities by the Utility Subsidiaries, to general terms (‘‘Financing Parameters’’) Eastern’s ownership interests in Boston Gas, Essex the extent not exempt under rule 52; would be applicable, where appropriate, Gas, Colonial Gas and ENGI and the nonutility subsidiaries owned by Eastern, (i) is successor of (viii) Issuances of debt securities in to the financing transactions requested: Eastern with respect to its commitments and foreign jurisdictions; authorizations set forth by order dated November 8, (ix) The ability of the Nonutility A. Effective Cost of Money on 2000 (HCAR No. 27272) as corrected by order dated Subsidiaries to pay dividends out of Financings December 1, 2000 (HCAR No. 27286) (together, ‘‘2000 Financing Order’’) and (ii) is an exempt capital or unearned surplus; Applicants state that the effective cost holding company under section 3(a)(1) of the Act (x) The right of KeySpan to acquire of capital on debt and preferred or as stated in the Merger Order. directly or through Subsidiaries the equity-linked financings will not exceed

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competitive market rates available at the maintain common equity (as reflected in deemed to be rated ‘‘investment grade’’ time of issuance for securities having the most recent annual or quarterly if it is rated investment grade by at least the same or reasonably similar terms financial statement of each entity, as the one nationally recognized statistical and conditions issued by similar case may be, adjusted to reflect changes rating organization, as that term is used companies of reasonably comparable in capitalization since the included in paragraphs (c)(2)(vi)(E), (F) and (H) of credit quality; provided that in no event balance sheet date) of at least 30% of its rule 15c3–1 under the Securities will the effective cost of capital on (i) consolidated capitalization by Exchange Act of 1934. The ratings are as long-term debt borrowings exceed 500 considering common equity, preferred follows: basis points over the comparable term stock, long-term debt and short-term U.S. Treasury securities and on (ii) debt (‘‘30% Test’’) at all times during short-term debt borrowings exceed 500 the Authorization Period. basis points over the comparable term As of June 30, 2003, the common Moody’s Standard London Interbank Offered Rate equity of each Utility Subsidiary and of and Poor’s (‘‘LIBOR’’). KeySpan on a consolidated basis is as follows: KeySpan ...... A3 A B. Maturity KEDLI ...... A2 A+ KEDNY ...... A2 A+ Applicants state that the maturity of KeySpan Genera- A3 A indebtedness will not exceed 50 years tion. and that preferred stock or preferred or Percent Boston Gas ...... A2 A equity-linked securities (other than Colonial Gas ...... A2 A Essex Gas Company ...... 37.44 perpetual preferred stock) will be Colonial Gas Company ...... 42.85 redeemed no later than 50 years after its Boston Gas Company ...... 35.58 V. Description of Specific Financings issuance, unless converted into common KeySpan Generation LLC ...... 42.15 A. KeySpan External Financing stock. EnergyNorth Natural Gas, Inc ...... 65.00 The Brooklyn Union Gas Com- Applicants request that KeySpan C. Issuance Expenses pany ...... 58.61 increase its total consolidated Applicants state that the underwriting KeySpan Gas East Corporation ... 46.89 capitalization through sales of common fees, commissions or other similar Consolidated ...... 39.78 stock, preferred stock, preferred and remuneration paid in connection with equity-linked securities, long-term debt the non-competitive issue, sale or F. Investment Grade Ratings and short-term debt securities. distribution of securities would not Applicants state that apart from Applicants also request that KeySpan be exceed the greater of (i) 7% of the securities issued for the purpose of authorized to issue common stock to principal or total amount of the security funding money pool operations, third parties in consideration for the being issued or (ii) issuance expenses KeySpan and the Utility Subsidiaries acquisition by KeySpan or a Nonutility that are generally paid at the time of the will not issue any other securities in Subsidiary of equity or debt securities of pricing for sales of the particular reliance upon this Order, unless (i) the a company being acquired through a issuance, having the same or reasonably security to be issued, if rated, is rated Commission order, applicable rule, or similar terms and conditions issued by investment grade; (ii) all outstanding exemption under the Act. Applicants similar companies of reasonably securities of the issuer, that are rated,2 request that the aggregate amount of comparable credit quality. are rated investment grade; and (iii) all common stock, preferred stock, D. Use of Proceeds outstanding securities of KeySpan, the preferred and equity-linked securities, top-level registered holding company, and/or long-term debt to be issued by Applicants state that the proceeds that are rated, are rated investment KeySpan during the Authorization from the sale of securities in external grade (‘‘Investment Grade Condition’’). Period, other than for refinancing, financing transactions will be used for For purposes of this provision, a refunding or replacement of outstanding general corporate purposes including (i) security will be deemed to be rated securities, shall not exceed $3.0 billion the financing of the capital expenditures ‘‘investment grade’’ if it is rated (‘‘Long-Term Financing Limit’’). of the KeySpan system; (ii) the financing investment grade by at least one In addition to the $3.0 billion of working capital requirements of the nationally recognized statistical rating authorization under the Long-Term KeySpan system; (iii) the acquisition, organization, as that term is used in Financing Limit, Applicants propose retirement or redemption under rule 42 paragraphs (c)(2)(vi)(E), (F) and (H) of that KeySpan issue up to $1.3 billion of of securities previously issued by rule 15c3–1 under the Securities short-term debt during the KeySpan or its Subsidiaries or as Exchange Act of 1934. Applicants Authorization Period (‘‘Short-Term otherwise authorized by Commission; request that the Commission reserve Financing Limit’’). (iv) direct or indirect investment in jurisdiction over the issuance by 1. Common Stock companies authorized under the Act or KeySpan and the Utility Subsidiaries of Commission rule, or by Commission any securities that are not able to meet (a) General order (including EWGs or FUCOs) or in the Investment Grade Condition. a separate proceeding; and (v) other Applicants request that KeySpan sell 3 lawful purposes. Applicants represent IV. Current Financial Condition or otherwise issue common stock in that no financing proceeds will be used Applicants state that all outstanding any one of the following ways: (i) to acquire a new subsidiary unless the long-term debt securities of KeySpan Through underwriters or dealers; (ii) financing is consummated in and each of the Utility Subsidiaries that through agents; (iii) directly to a limited accordance with a Commission order or are rated, are rated investment grade. number of purchasers or a single an available exemption under the Act. For purposes of this provision, 3 Applicants state that a security will be Applicants request that the authority to issue E. Common Equity Ratio common stock also includes authorization to contribute common stock to current or future Applicants state that KeySpan and 2 Applicants state that ENGI and Essex Gas are not employee benefit plans to satisfy current or future each Utility Subsidiary will each rated. capital funding obligations.

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purchaser; or (iv) directly to employees acquisition by KeySpan or a Nonutility specified periods. Applicants state that (or to trusts established for their Subsidiary of equity or debt securities of preferred or equity-linked securities benefit), and shareholders. Applicants a company being acquired through a may be convertible or exchangeable into request that issuances of common stock Commission order, applicable rule, or shares of common stock or other under KeySpan’s employee benefit exemption under the Act. Applicants indebtedness and may be issued in the plans and stock purchase and dividend state that the KeySpan common stock to form of shares or units. Applicants reinvestment plans not count towards be exchanged in this type of transaction request that the conversion of equity- the Long-Term Financing Limit, but that may be purchased on the open market linked securities and the subsequent these securities be limited to 13 million under rule 42, or may be original issue.4 issuance of other securities as a direct shares as described below in V.A.1.(c). result of the conversion (or the (c) Direct Stock Purchase and Other Applicants state that if underwriters performance of forward purchase Employee Benefit Plans are used in the sale of the securities, the contracts), to the extent that no securities would be acquired by the Applicants propose, from time to time additional financing proceeds are underwriters for their own account and during the Authorization Period, for realized, would not be counted against may be resold from time to time in one KeySpan to issue and/or acquire in open the Long-Term Financing Limit.5 or more transactions, including market transactions, or by some other Applicants state that preferred stock and negotiated transactions, at a fixed public method which complies with applicable preferred or equity linked securities offering price or at varying prices law and Commission interpretations may be sold directly or indirectly determined at the time of sale. The then in effect, up to 13 million shares through underwriters or dealers in securities may be offered to the public of KeySpan common stock (‘‘Benefit connection with an acquisition similar either through underwriting syndicates Plan Limit’’) under KeySpan’s current or to that described for common stock, (which may be represented by a any future direct stock purchase and above. managing underwriter or underwriters dividend reinvestment plan, certain designated by KeySpan) or directly by incentive compensation plans, and 3. Long-Term Debt one or more underwriters acting alone. certain other employee benefit plans. Applicants request that KeySpan Applicants state that the securities may Applicants propose that any shares of issue unsecured, long-term debt be sold directly by KeySpan or through common stock acquired by KeySpan on securities subject to the Long-Term agents designated by KeySpan from time the open market during the Financing Limit through the to time and that if dealers are utilized Authorization Period under a rule 42 Authorization Period. At June 30, 2003, in the sale of any of the securities, exemption, that were originally issued KeySpan had approximately $4.9 billion KeySpan would sell the securities to the under the Benefit Plan Limit shall no of long-term debt obligations dealers as principals. Any dealer may longer count against the Benefit Plan outstanding. Long-term debt securities then resell these securities to the public Limit until the shares are reissued. may be comprised of bonds, notes, at varying prices to be determined by 2. Preferred Stock and Preferred and medium-term notes, debentures, or the dealer at the time of resale. The Equity-Linked Securities similar unsecured securities under one aggregate price of the common stock or more indentures (‘‘KeySpan being sold through any underwriter or Applicants request that KeySpan Indenture’’) or long-term indebtedness dealer shall be calculated based on issue preferred stock in addition to under agreements with banks or other either the specified selling price to the preferred securities and or equity-linked institutional lenders. Any long-term securities up to the Long-Term Security public or the closing price of the debt security would have such Limit. Applicants request authority for common stock on the day the offering is designation, aggregate principal amount, KeySpan to issue preferred stock, announced. Applicants state that if maturity, interest rate(s) or methods of preferred securities including trust common stock is being sold in an determining the same, terms of payment preferred securities, convertible underwritten offering, KeySpan may of interest, redemption provisions, preferred securities, such as, debt or grant the underwriters an over-allotment sinking fund terms, terms for conversion preferred securities that are convertible option permitting the purchase from into any other security of KeySpan or or exchangeable, either mandatorily or KeySpan of additional shares at the the Subsidiaries and other terms and at the option of the holder, into common same price then being offered solely for conditions as KeySpan may determine the purpose of covering over-allotments. stock of KeySpan, common stock of the Subsidiaries, KeySpan indebtedness, or at the time of issuance. Applicants state that public Applicants state that the maturity forward purchase contracts for common distributions may be through private dates, interest rates, redemption and negotiation with underwriters, dealers stock. Applicants state that preferred or sinking fund provisions, tender or or agents as discussed above or effected repurchase and conversion features, if through competitive bidding among equity-linked securities may be issued in one or more series with rights, underwriters. In addition, Applicants 5 Applicants state, for example, that in May 2002, request that sales be made through preferences, and priorities as may be KeySpan completed an offering of 9.2 million private placements or other non-public designated in the instrument creating publicly traded equity-linked securities units. The offerings to one or more persons. each series. Dividends or distributions aggregate offering price was $460 million. Each unit on preferred or equity-linked securities consists of a 6-year term, 8.75% senior unsecured Applicants state that these common note with a principal amount of $50, and a forward stock sales would be with terms and will be made periodically and to the stock purchase contract to purchase $460 million of conditions, at rates or prices and under extent funds are legally available for this KeySpan common stock (based on a range of prices conditions negotiated or based upon, or purpose, but may be made subject to between $35.30 and $42.36) in May 2005. terms that allow the issuer to defer Applicants state that both the issuance of the note otherwise determined by, competitive and the forward stock purchase contract portion capital markets. dividend payments or distributions for (including the execution thereof) of the equity- linked units were issued and accounted for under (b) Acquisitions 4 Applicants state that this common stock may be KeySpan’s Prior Financing Orders. Applicants state registered under the Securities Act of 1933, as that because of the above, the conversion of the Applicants also request that KeySpan amended (‘‘1933 Act’’), or if the common stock is forward stock purchase contracts into KeySpan be authorized to issue common stock to not registered, then it would be subject to resale common stock in May 2005 shall not be counted third parties in consideration for the restrictions under Rule 144 under the 1933 Act. against the $3.0 billion Long-Term Financing Limit.

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any, with respect to the long-term B. Utility Subsidiary and Nonutility against the limits set forth above, further securities of a particular series, as well Subsidiary Financing maintain back up lines of credit in an aggregate amount not to exceed the as any associated placement, 1. Utility Subsidiaries underwriting or selling agent fees, amount of authorized Commercial commissions and discounts, if any, will Applicants request authority for the Paper. Applicants request authority for be established by negotiation or Utility Subsidiaries to issue short-term the Utility Subsidiaries to set up credit competitive bidding, subject to the debt, including Commercial Paper and lines for general corporate purposes in Financing Parameters. Applicants credit lines, and to loan and borrow addition to credit lines to support 6 further state that borrowings from banks funds from the utility money pool Commercial Paper. The Utility and other financial institutions will be during the Authorization Period, in the Subsidiaries would borrow and repay 7 pari passu with debt securities issued following aggregate principal amounts under these lines of credit, from time to under the KeySpan Indenture and the (‘‘Utility Financing Limit’’): time, as it is deemed appropriate or short-term credit facilities. Specific necessary. Subject to the Financing terms of any borrowings will continue Parameters, Applicants propose that to be determined by KeySpan at the each Utility Subsidiary may engage in Aggregate other types of unsecured short-term time of issuance and will comply in all principal regards with the Financing Parameters. Utility subsidiary amount financing as it may deem appropriate in ($ million) 7 light of its needs and market conditions 4. Short-Term Debt at the time of issuance. KEDNY ...... 350 Applicants request authority for KEDLI ...... 450 2. Nonutility Subsidiaries KeySpan to have outstanding, at any KeySpan Generation ...... 100 Applicants request authority for one time during the Authorization Boston Gas ...... 500 Nonutility Subsidiaries to borrow and Period, up to $1.3 billion of short-term Colonial Gas ...... 225 lend funds through the operation of the Essex Gas ...... 50 debt (‘‘Short-Term Financing Limit’’), ENGI 125 KeySpan nonutility money pool, which may include institutional approved by order dated August 7, 2003 borrowings, commercial paper ...... 1,800 (HCAR No. 27709). Applicants state that (‘‘Commercial Paper’’) or bid notes and short-term financings undertaken by short-term debt issued under the Applicants state that the Utility Nonutility Subsidiaries that are not KeySpan Indenture or otherwise. Financing Limit is in addition to the exempt under rule 52, but are otherwise Applicants state that the authorization Long-Term Financing Limit and the authorized, will be included in the for short-term debt is in addition to the Short-Term Financing Limit. Applicants aggregate Short-Term Financing Limit. also request authority for the Utility Long-Term Financing Limit. C. Guarantees and Intra-System Subsidiaries to refund, refinance or Short-term debt shall include any Advances debt securities with a maturity term of replace outstanding securities; provided that in no event will the aggregate KeySpan requests authorization to one year or less. KeySpan may sell enter into Guarantees, Performance Commercial Paper, from time to time, in principal amount of outstanding securities for each Utility Subsidiary Guarantees, obtain letters of credit, enter established domestic Commercial Paper into expense agreements or otherwise markets. Applicants state that exceed the amounts requested above. Applicants request authority for the provide credit support with respect to Commercial Paper would be sold to the obligations of its Subsidiaries as dealers at the discount rate or the Utility Subsidiaries to sell Commercial Paper, from time to time, in established may be appropriate or necessary to coupon rate per annum prevailing at the enable the Subsidiaries to carry on in date of issuance for Commercial Paper domestic commercial paper markets. Commercial Paper would be sold to the ordinary course of their respective of comparable quality and maturities businesses in an aggregate principal sold to Commercial Paper dealers dealers at the discount rate or the coupon rate per annum prevailing at the amount not to exceed $4.0 billion generally. Applicants expect that the outstanding at any one time (excluding dealers acquiring Commercial Paper date of issuance for Commercial Paper of comparable quality and maturities obligations exempt under rule 45) from KeySpan will re-offer it at a (‘‘Guarantee Financing Limit’’). For discount to corporate and institutional sold to Commercial Paper dealers generally. Applicants expect that the example, Applicants contemplate that investors. Applicants expect during the Authorization Period, Institutional investors to include dealers acquiring commercial paper from Utility Subsidiaries will re-offer it KeySpan will enter into Guarantees, commercial banks, insurance performance Guarantees, obtain letters companies, pension funds, investment at a discount to corporate and institutional investors. Applicants of credit, enter into expense agreements trusts, foundations, colleges and or otherwise provide credit support universities, and finance companies. expect Institutional investors to include commercial banks, insurance with respect to the obligations of its KeySpan may, without counting companies, pension funds, investment Subsidiaries in connection with against the Short-Term Financing Limit trusts, foundations, colleges and transactions that are anticipated to set forth above, maintain back-up lines universities and finance companies. involve generation expansion projects. of credit (regardless of the maturation Applicants request that the Utility Applicants state that the Guarantee term for such back-up credit) in Subsidiaries may, without counting Limit is in addition to the Long-Term connection with a Commercial Paper Financing Limit, the Short-Term program in an aggregate amount not to 6 The Commission authorized the Utility Money Financing Limit and the Utility exceed the amount of authorized short Pool in the 2000 Financing Order. Financing Limit. Included in this term debt. In no event will the amount 7 Applicants state that the dollar limitations set amount are existing intra-system of borrowings under such lines of credit forth do not include certain presently outstanding Guarantees and support provided by push-down debt resulting from the Merger in the plus the amount of Commercial Paper following amounts: $700 million to Boston Gas, KeySpan as of June 30, 2003, which are outstanding exceed $1.3 billion in the $100 million to Colonial Gas, $100 million to Essex expected to remain in place. Applicants aggregate. Gas, and $150 million to ENGI. request authority for KeySpan to charge

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each Subsidiary a fee for each Guarantee authorized in this Application. F. Financing Risk Management Devices provided on its behalf that is not greater Applicants state that in no case, will 1. Interest Rate Risk than the cost, if any, of obtaining the Refinancing cause any applicable liquidity necessary to perform the financing limit to be exceeded. Applicants request authority to enter Guarantee for the period of time the into, perform, purchase, and sell Applicants request that the amount of Guarantee remains outstanding. Any financial instruments intended to a Refinancing that is equal to the then Guarantees or other credit support reduce or manage the volatility of arrangements outstanding at the end of existing outstanding aggregate principal interest rates, including but not limited the Authorization Period will continue amount of securities to be refinanced to interest rate swaps, caps, floors, until expiration or termination in not be counted against the securities’ collars and forward agreements. accordance with their terms. applicable financing limit. Only Applicants state that hedges may also Applicants request that KeySpan’s securities issued to finance the include issuance of structured notes guarantee authority include the ability additional costs associated with the (i.e., a debt instrument in which the to guarantee debt. Applicants state that Refinancing will be counted against the principal and/or interest payments are the debt guaranteed will comply with applicable financing limit. The indirectly linked to the value of an the Financing Parameters or be exempt. securities issued in the Refinancing may underlying asset or index), or To the extent that a Guarantee issued is be issued to finance costs incurred due transactions involving the purchase or of a security issued under the authority to redemption premiums, costs of sale, including short sales, of U.S. granted in this Application, Applicants acquisition or retirement of the Treasury or U.S. governmental agency request that the issuance will count only securities, costs of issuance, or other obligations or LIBOR based swap against the applicable limitation related similar costs including the costs instruments (‘‘Hedge Instruments’’). Applicants state that the transactions to the underlying obligation in order to expended to acquire securities on the would be for fixed periods and stated avoid a double count. open market under rule 42 and the Applicants also request authorization notional amounts. Applicants state that subsequent costs to reissue the for the Nonutility Subsidiaries to enter they would employ interest rate into Guarantees, Performance securities. Applicants state that any derivatives as a means of prudently Guarantees, obtain letters of credit, enter Refinancing of securities outstanding managing the risk associated with any of into expense agreements and otherwise during the Authorization Period will be its outstanding debt issued under this provide credit support with respect to undertaken through the issuance of authorization or an applicable other Nonutility Subsidiaries, in an similar or any other securities of the exemption by, in effect, synthetically (i) aggregate principal amount not to types authorized in this Application and converting variable rate debt to fixed exceed the Guarantee Financing Limit. will be subject to the Financing rate debt, (ii) converting fixed rate debt The Nonutility Subsidiary providing Parameters. to variable rate debt, and (iii) limiting any credit support may charge its the impact of changes in interest rates E. Issuing Debt Securities in Foreign associate company a fee for each resulting from variable rate debt. Guarantee provided on its behalf that is Jurisdictions Applicants assert that in no case will not greater than the cost, if any, of Applicants state that KeySpan the notional principal amount of any obtaining the liquidity necessary to engages in business operations outside interest rate swap exceed the face value perform the Guarantee for the period of of the United States, including Canada of the underlying debt instrument and time the Guarantee remains outstanding. related interest rate exposure. and Ireland. In connection with this Applicants state that certain of the Applicants state that transactions will Guarantees referred to above may be in business, and potential expansion be entered into for a fixed or support of the obligations of outside of the United States, Applicants determinable period and that they will Subsidiaries which are not capable of request authorization to make sales of not engage in speculative transactions. exact quantification because they are KeySpan’s long-term and short-term Applicants state that they will only subject to varying quantification. In debt securities, of the type authorized in enter into agreements with these cases, KeySpan will determine the this Application, in foreign countries. counterparties (‘‘Approved exposure under these Guarantee for Applicants state that opportunities in Counterparties’’) whose senior debt purposes of measuring compliance with foreign jurisdictions may arise that ratings, as published by a national the Guarantee Financing Limit by allow KeySpan to enter into financing recognized rating agency, are greater appropriate means including estimation transactions at costs lower than that than or equal to ‘‘BBB-,’’ or an of exposure based on loss experience or otherwise may be available within the equivalent rating. projected potential payment amounts. United States. Applicants state that 2. Anticipatory Hedges Applicants state that estimates will be these issuances will not exceed an made in accordance with GAAP and aggregate of $500 million at any time In addition, Applicants request that these estimations will be outstanding during the Authorization authorization to enter into interest rate reevaluated periodically. Period (‘‘Foreign Issue Limit’’). hedging transactions with respect to Applicants state that consideration for anticipated debt offerings D. Refunding, Replacing, Repurchasing (‘‘Anticipatory Hedges’’), subject to foreign securities sales may be in foreign or Refinancing Outstanding Securities certain limitations and restrictions. currency. In addition, foreign securities Applicants request authorization to Applicants state that Anticipatory sales shall be subject to the Financing refund, repurchase (through open Hedges would only be entered into with market purchases, tender offers, or Parameters, the Long-Term Financing Approved Counterparties, and would be private transactions), replace or Limit and Short-Term Financing Limit, utilized to fix and/or limit the interest refinance (together, ‘‘Refinancing’’) their as the case may be, based on its value rate risk associated with any new respective debt or equity securities in U.S. Dollars as calculated in issuance through (i) a forward sale of outstanding during the Authorization accordance with the currency exchange exchange-traded Hedge Instruments Period through the issuance of similar rate for the currency used as reported at (‘‘Forward Sale’’), (ii) the purchase of or any other types of securities the time of the sale. put options on Hedge Instruments (‘‘Put

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Options Purchase’’), (iii) a Put Options the open market during the organized for the sole purpose of Purchase in combination with the sale Authorization Period under rule 42 that engaging in Development Activities. of call options Hedge Instruments were originally issued under this 13 Development Activities will be designed (‘‘Zero Cost Collar’’), (iv) transactions million issuable shares limitation shall to eventually result in a permitted involving the purchase or sale, no longer count against the 13 million nonutility investment. including short sales, of Hedge issuable shares limitation until the Applicants propose that to the extent Instruments, or (v) some combination of shares are reissued. a Subsidiary for which amounts were a Forward Sale, Put Options Purchase, expended for Development Activities H. Payment of Dividends out of Capital Zero Cost Collar and/or other derivative and Administrative Activities becomes or Unearned Surplus by Nonutility or cash transactions, including, but not an EWG, FUCO, or Rule 58 Subsidiary, Subsidiaries limited to, structured notes, caps and the amount expended will cease to be collars, appropriate for the Anticipatory Applicants request authority for the Development Activities or Hedges. Anticipatory Hedges may be Nonutility Subsidiaries to pay Administrative Activities and then be executed on-exchange (‘‘On-Exchange dividends from time to time, out of considered as part of the ‘‘aggregate Trades’’) with brokers through the capital and unearned surplus (including investment’’ allowed by Commission opening of futures and/or options revaluation reserve), to the extent order and/or the applicable provisions positions traded on the Chicago Board permitted under applicable corporate under the Act. In the case of Rule 58 of Trade (‘‘CBOT’’), the opening of over- law. Applicants state that, without Subsidiaries, the aggregate investment the-counter positions with one or more further approval of the Commission, no will then count against the limitation on counterparties (‘‘Off-Exchange Trades’’), Nonutility Subsidiary will declare or such aggregate investment under rule or a combination of On-Exchange pay any dividend out of capital or 58. In the case of EWGs and FUCOs, the Trades and Off-Exchange Trades. unearned surplus if that Nonutility aggregate investment will then be Applicants state that they will Subsidiary derives any material part of transferred from the investment determine the optimal structure of each its revenues from sales of goods, limitation for Development Activities or Anticipatory Hedge transaction at the services, electricity or natural gas to any Administrative Activities and instead time of execution and that they may of the Utility Subsidiaries or if at the count against the limitation on EWG decide to lock in interest rates and/or time of the declaration or payment such and FUCO aggregate investment limit its exposure to interest rate Nonutility Subsidiary has negative requested below. Applicants propose increases. retained earnings. that, should the Development Activities or Administrative Activities fail to lead 3. Accounting Standards I. Development and Administrative Activities to a permitted nonutility investment, Applicants state they will comply the expenditures will not be counted with Statement of Financial Accounting Applicants request authority for against the ‘‘aggregate investment’’ Standards (‘‘SFAS’’) 133 (‘‘Accounting KeySpan and the Subsidiaries to engage allowed by Commission order and/or for Derivative Instruments and Hedging in preliminary development activities the applicable provisions under the Act Activities’’), SFAS 138 (‘‘Accounting for (‘‘Development Activities’’) and with respect to EWG, FUCO, or Rule 58 Certain Derivative Instruments and administrative and management Subsidiaries. Additionally, in the event Certain Hedging Activities’’) or any activities (‘‘Administrative Activities’’) that the Development Activities or other standards relating to accounting in connection with future investments Administrative Activities fail to lead to for derivative transactions as are in exempt wholesale generators a permitted nonutility investment, any adopted and implemented by the (‘‘EWGs’’), foreign utility companies new subsidiaries formed for the Financial Accounting Standards Board (‘‘FUCOs’’), as those terms are defined purposes of engaging in Development (‘‘FASB’’). The Hedge Instruments and in sections 32 and 33 of the Act, and in Activities or Administrative Activities Anticipatory Hedges will qualify for subsidiaries permitted under rule 58 shall be dissolved as soon as reasonably hedge accounting treatment under the (‘‘Rule 58 Subsidiaries’’). Applicants practicable. current FASB standards in effect and as state that Development Activities will determined at the date the Hedge be limited to due diligence and design J. Financing Subsidiaries Instruments or Anticipatory Hedges are review; market studies; preliminary KeySpan and the Subsidiaries request entered into. engineering; site inspection; preparation authorization to organize and/or acquire of bid proposals, including in the equity securities of one or more G. Direct Stock Purchase and Dividend connection, posting of bid bonds; additional corporations, trusts, Reinvestment Plan, Incentive application for required permits and/or partnerships or other entities organized Compensation Plans and Other regulatory approvals; acquisition of site to serve the purpose of facilitating Employee Benefit Plans options and options on other necessary financings (‘‘Financing Subsidiaries’’). Applicants propose that KeySpan, rights; negotiation and execution of Applicants state that the formation and from time to time during the contractual commitments with owners acquisition of a limited use subsidiary Authorization Period, issue and/or of existing facilities, equipment may allow KeySpan and the acquire in open market transactions, or vendors, construction firms, power Subsidiaries to secure more favorable by some other method which complies purchasers, thermal ‘‘hosts,’’ fuel financing terms, at lower costs than may with applicable law and Commission suppliers and other project contractors; otherwise be available. In addition, interpretations then in effect, up to negotiation of financing commitments Applicants state that the interposition of thirteen million shares of KeySpan with lenders and other third-party a Financing Subsidiary can serve to common stock under KeySpan’s current investors; and any other preliminary isolate the risks associated with debt or any future direct stock purchase and activities as may be required in securities issuances thereby providing dividend reinvestment plan, certain connection with the purchase, further benefit to the KeySpan system. incentive compensation plans and acquisition or construction of facilities Specifically, Financing Subsidiaries certain other employee benefit plans. or the securities of other companies. may be organized to issue to third Applicants request that any shares of Applicants further request authority parties, long-term debt, short-term debt, common stock acquired by KeySpan on to form new subsidiary companies preferred securities (including but not

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limited to trust preferred securities), that the EWG/FUCO Limit represents other things,: (i) To facilitate the making equity-linked securities, and/or other approximately 528% of KeySpan’s of bids or proposals to develop or securities that are authorized or exempt average consolidated retained earnings acquire an interest in any EWG, FUCO, and then transfer the proceeds to for the four quarters ended June 30, exempt telecommunications company KeySpan or the Subsidiaries. Applicants 2003. (‘‘ETC’’), or other Nonutility which, request authorization for KeySpan and, At March 31, 2003, applicants state upon acquisition, would qualify as a to the extent not exempt under rule 52, that the consolidated amount of Rule 58 Subsidiary; (ii) to facilitate Subsidiaries to issue debentures and KeySpan’s current aggregate investment closing on the purchase or financing of in existing EWGs and FUCOs was as other evidence of indebtedness an acquired company; (iii) to effect an follows: (‘‘Financing Debt’’) to any Financing adjustment in the respective ownership Subsidiary to evidence the transfer of interests in a business held by the financing proceeds by a Financing Subsidiary to its parent company. The KeySpan system and non-affiliated investors; (iv) to facilitate the sale of principal amount, maturity and interest Entity≤ Investment rate on any Financing Debt will be ($ millions) ownership interests in one or more designed to parallel the amount, acquired Rule 58 Subsidiary, ETC, EWG KeySpan-Ravenswood LLC or FUCO; (v) to comply with applicable maturity and interest or distribution rate (EWG) ...... 8 $776.6 on the securities issued by a Financing Phoenix Natural Gas Limited laws of foreign jurisdictions limiting or Subsidiary in respect of which the and Finsa Energeticos otherwise relating to the ownership of Financing Debt is issued. Each of the (FUCOs) ...... 58.9 domestic companies by foreign Subsidiaries also requests authorization KeySpan-Glenwood Energy nationals; (vi) to limit KeySpan’s to enter into an expense agreement with Center LLC (EWG) ...... 95.3 exposure to U.S. and foreign taxes; (vii) its respective Financing Subsidiary, KeySpan-Port Jefferson En- to further insulate KeySpan and the ergy Center LLC (EWG) ... 104.1 under which it would agree to pay all Utility Subsidiaries from operational or expenses of the Financing Subsidiary. Total ...... $1,034 other business risks that may be Applicants state that any affiliate associated with investments in transactions entered into by a Financing Applicants state that this total nonutility companies; or (viii) for other Subsidiary in connection with an amount, represents approximately 182% lawful business purposes. expense agreement, or otherwise, would of KeySpan’s average consolidated Applicants state that investments in be conducted at fair market value retained earnings, as defined in rule 53, Intermediate Subsidiaries may take the without regard to cost, and therefore, of $586.38 million for the four quarters Applicants request an exemption under ending at June 30, 2003. form of any combination of the section 13(b) from the at cost standards By order dated December 6, 2002, following: (i) Purchases of capital of rules 90 and 91 for KeySpan and the (HCAR No. 27612), Applicants were shares, partnership interests, member Subsidiaries to enter into these authorized to make investments in an interests in limited liability companies, transactions. aggregate amount of up to $2.2 billion trust certificates or other forms of voting The amount of securities issued by in EWGs and FUCOs. Applicants state or non-voting equity interests; (ii) any Financing Subsidiary to third that $2.2 billion represented capital contributions; (iii) open account parties will be included in the approximately 440% of KeySpan’s advances without interest; (iv) loans; applicable overall external financing average consolidated retained earnings and (v) Guarantees issued, provided or limitation, authorized for the immediate for the four quarters ended September arranged in respect of, the securities or parent company of such Financing 30, 2002. Applicants now request other obligations of any Intermediate Subsidiary. However, to avoid double authority for KeySpan and the Subsidiaries. counting, the amount of Financing Debt Subsidiaries, directly or indirectly, to Applicants state that funds for any issued by a parent company to its invest up to $3.0 billion in EWGs and Financing Subsidiary will not be FUCOs during the Authorization Period. direct or indirect investment in any counted against the applicable external Intermediate Subsidiary will be derived financing limitation. Applicants request VII. Intermediate Subsidiaries from KeySpan’s available funds. No that securities issued by any Financing Applicants propose that KeySpan additional financing authority is sought Subsidiary to third parties be exempt create and/or acquire, directly or under this heading. Applicants request under rule 52 (and therefore reportable indirectly, the securities of one or more that to the extent that KeySpan provides on Form U–6B–2) only if the securities, Intermediate Subsidiaries including funds directly or indirectly to an if issued directly by the parent company corporations, trusts, partnerships, Intermediate Subsidiary which are used of such the Financing Subsidiary, would limited liability companies or other for the purpose of making an investment be exempt under rule 52. Applicants entities. Applicants state that in any EWG, FUCO, or a Rule 58 propose that KeySpan or a Subsidiary Intermediate Subsidiaries will be Subsidiary, and to the extent these may, if required, guarantee or enter into organized exclusively for the purpose of funds are not expenditures in support or expense agreements in acquiring and holding the securities of, Development Activities, the amount of respect of the obligations of Financing or financing or facilitating KeySpan’s the funds will be included in KeySpan’s Subsidiaries. investments in, other direct or indirect ‘‘aggregate investment’’ in EWGs, VI. EWG/FUCO Investment Authority nonutility investments. Applicants also FUCOs and Rule 58 Subsidiaries.9 request authority for Intermediate Applicants request authorization for Subsidiaries to engage in Development KeySpan to increase its ‘‘aggregate Activities and Administrative Activities. 9 investment’’, as that term is defined in Applicants request that if the Intermediate Applicants state that an Intermediate Subsidiary is merely a conduit, the aggregate rule 53, in EWG and FUCOs to $3.0 Subsidiary may be organized, among investment will not ‘‘double count’’ both the billion (‘‘EWG/FUCO Limit’’) conduit investment and the investment in the EWG, outstanding at any one time during the 8 Applicants state that this amount represents FUCO, Rule 58 subsidiary or other approved Authorization Period. Applicants state existing investment in KeySpan Ravenswood. investment.

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VIII. Internal Reorganization of Existing processing services, and intellectual derive, directly or indirectly, any Investments property development, marketing and material part of its income from sources other support services. within the United States and is not a A. Nonutility Subsidiaries Applicants state that Consulting public utility company operating within Applicants request authority for Services would include, for example, the United States. KeySpan to engage in internal corporate providing the Nonutility Subsidiary reorganizations to better organize with technical capabilities and expertise Cinergy Corp. et al. (70–10172) Nonutility Subsidiaries and primarily in the areas of electric power Cinergy Corp. (‘‘Cinergy’’), a investments. Applicants request generation, transmission and registered holding company, Cinergy’s authority to sell or to cause any distribution and ancillary operations. direct nonutility subsidiaries, Cinergy Subsidiary to sell or otherwise transfer Applicants state that Affiliate Services Investments, Inc. (‘‘Cinergy (i) Nonutility Subsidiaries businesses, would generally be performed by Investments’’) and Cinergy Global (ii) the securities of Nonutility Nonutility Subsidiaries for associate Resources, Inc. (‘‘Global Resources’’), Subsidiaries engaged in some or all of Nonutility Subsidiaries at cost. CinTec LLC (‘‘CinTec’’), Cinergy these businesses or (iii) nonutility However, the Nonutility Subsidiaries Technologies, Inc. (‘‘Cinergy investments which do not involve a request an exemption pursuant to Technologies’’), and Cinergy Wholesale Nonutility Subsidiary (i.e. less than section 13(b) from the at-cost standards Energy, Inc. (‘‘Cinergy Wholesale 10% voting interest) to a different of rules 90 and 91, for the Affiliate Energy’’ and together, ‘‘Applicants’’) Subsidiary. Applicants also request Services in any case in which the have filed an application-declaration authority to acquire the assets of Nonutility Subsidiary purchasing with the Commission under sections nonutility businesses, Nonutility services is: 6(a), 7, 9(a), 10, 12(c), 12(f), 13, 32, 33 Subsidiaries or other then existing (i) A FUCO or foreign EWG that and 34 of the Act and rules 43, 45, 46, investment interests. Alternatively, derives no part of its income, directly or 54, 83, 87, 90 and 91. transfers of these securities or assets indirectly, from the generation, may be effected by share exchanges, transmission, or distribution of electric I. Background share distributions or dividends energy for sale within the United States; By order dated March 1, 1999 (HCAR followed by contribution of these (ii) An EWG that sells electricity at No. 26984) (‘‘1999 Order’’), Cinergy 10 securities or assets to the receiving market-based rates that have been and its nonutility subsidiaries, Cinergy entity. approved by the Federal Energy Investments and Cinergy Global Regulatory Commission (‘‘FERC’’), IX. Exemption From Section 13(b) Resources were authorized to establish provided that the purchaser is not one one or more special-purpose Applicants request authority for of the Utility Subsidiaries; subsidiaries (‘‘Intermediate Parents’’) 11 Nonutility Subsidiaries to provide other (iii) A ‘‘qualifying facility’’ (‘‘QF’’) through December 31, 2003, to hold Nonutility Subsidiaries with (i) within the meaning of the Public Utility Cinergy’s direct or indirect interests in operations and management services Regulatory Policies Act of 1978, as existing and future nonutility (‘‘O&M Services’’); (ii) administrative amended (‘‘PURPA’’) that sells subsidiaries (‘‘Nonutilty services (‘‘Administrative Services’’); electricity exclusively (a) at rates Subsidiaries’’).12 and (iii) consulting services negotiated at arms-length to one or more Cinergy states that it now owns (‘‘Consulting Services’’). These services industrial or commercial customers numerous Nonutility Subsidiaries, are referred to collectively as ‘‘Affiliate purchasing the electricity for their own which it holds through, Cinergy Services.’’ use and not for resale, and/or (b) to an Applicants state that O&M Services electric utility company (other than a 10 Applicants state that Cinergy also directly or would include, for example, Utility Subsidiary) at the purchaser’s indirectly owns all the outstanding common stock development, engineering, design, ‘‘avoided cost’’ as determined in of five public utility companies, PSI Energy, Inc. construction and construction accordance with the regulations under (‘‘PSI’’), The Cincinnati Gas & Electric Company (‘‘CG&E’’), The Union Light, Heat and Power management, pre-operational start-up, PURPA; Company, Lawrenceburg Gas Company, and Miami testing and commissioning, long-term (iv) A domestic EWG or QF that sells Power Corporation (‘‘Utility Subsidiaries’’). operations and maintenance, fuel electricity at rates based upon its cost of 11 Applicants state that certain of these procurement, management and service, as approved by FERC or any ‘‘Intermediate Parents’’ were formed prior to the supervision, technical and training, state public utility commission having 1999 Order under express authorization of the Commission as noted in the 1999 Order. administrative support, market analysis, jurisdiction, provided that the purchaser 12 Applicants state that PSI and CG&E hold three consulting, coordination and any other thereof is not one of the Utility businesses under a reservation of jurisdiction which managerial, technical, administrative or Subsidiaries; or are not included in the definition of ‘‘Nonutility consulting required in connection with (v) A Rule 58 Subsidiary or any other Subsidiaries’’: KO Transmission Company (‘‘KO’’), South Construction Company, Inc. (‘‘South the business of owning or operating Nonutility Subsidiary that (a) is Construction’’) and Tri-State Company (‘‘Tri- facilities used for the generation, partially or wholly-owned, directly or State’’). Applicants state that the retainability of transmission or distribution of electric indirectly, by KeySpan, provided that these companies is subject to a Commission energy and/or natural gas (including the ultimate purchaser of such goods or reservation of jurisdiction, originally by order dated October 21, 1994 (HCAR No. 26146) (‘‘Merger related facilities for the production, services is not a Utility Subsidiary (or Order’’), the order authorizing the merger that conversion, sale or distribution of any other entity within the KeySpan created the Cinergy. The Commission extended this thermal energy) or coordinating their system whose activities and operations reservation of jurisdiction by order dated November operations in the power market. are primarily related to the provision of 2, 1998 (HCAR No. 26934). Applicants assert that KO is an energy-related company under rule 58, Applicants state that Administrative goods and services to the Utility which was enacted after the Merger Order. Services would include, for example, Subsidiaries), (b) is engaged solely in Applicants state that South Construction and Tri- corporate and project development and the business of developing, owning, State acquire and hold real estate in connection planning, management, administrative, operating and/or providing services or with the utility businesses of PSI and CG&E, respectively. South Construction and Tri-State are employment, tax, legal, accounting, goods to Nonutility Subsidiaries excluded from the scope of the proposed engineering, consulting, marketing, described in clauses (i) through (iv) transactions in this application, except with respect utility performance and electric data immediately above; or (c) does not to dividend authority as described fully below.

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Investments, Cinergy Global Resources, through March 31, 2007 (‘‘Authorization in one or more acquired Authorized CinTec, Cinergy Technologies and Period): Nonutility Business; (v) to comply with Cinergy Wholesale Energy, each of (i) Acquire the securities of applicable laws of foreign jurisdictions which is a direct, wholly owned corporations, limited liability limiting or otherwise relating to the Nonutility Subsidiary of Cinergy formed companies, partnerships, trusts or other ownership of domestic companies by to act as an Intermediate Parent. entities that would be formed foreign nationals; (vi) as a part of tax Applicants state that through authority exclusively to acquire, hold, finance or planning in order to limit Cinergy’s granted in previous orders,13 applicable facilitate the acquisition of, and/or sell exposure to U.S. and foreign taxes; (vii) provisions of the Act and rules under goods, services or construction to to insulate Cinergy and its utility the Act, Applicants have authority to Nonutility Subsidiaries and/or subsidiaries from operational or other invest in a variety of nonutility Nonutility Investments, whether business risks that may be associated businesses, including: directly or indirectly through one or with investments in Authorized (1) Exempt wholesale generator more subsidiaries thereof formed Nonutility Business; or (viii) for other (‘‘EWG’’), as that term is defined in exclusively for the same purpose lawful business purposes. section 32 of the Act; (‘‘Intermediate Subsidiaries’’);14 Applicants state that investments in (2) Foreign utility company (ii) Undertake internal corporate Intermediate Subsidiaries may take the (‘‘FUCO’’), as that term is defined in reorganizations or restructurings of form of (i) purchases of capital shares, section 33 of the Act; Nonutility Subsidiaries and Nonutility partnership interests, membership (3) Exempt telecommunications Investments; interests in limited liability companies, (iii) Declaration and payment by company (‘‘ETC’’), as that term is trust certificates or other forms of voting Nonutility Subsidiaries and KO, South defined in section 34 of the Act; or non-voting equity interests; (ii) Construction, and Tri-State dividends (4) Nonutility company, which, upon capital contributions; (iii) loans; or (iv) out of capital or unearned surplus, acquisition, would qualify for guarantees issued, provided or arranged subject to certain conditions; and in respect of the securities or other exemption from the Act under rule 58 (iv) Enter into agreements to perform (‘‘Rule 58 Company’’); obligations of any Intermediate certain services for certain specified Subsidiaries. Applicants state that (5) Companies providing certain categories of Nonutility Subsidiaries at Cinergy will obtain funds for initial and infrastructure services (‘‘IS Company’’); other than cost under an exemption subsequent investments in Intermediate (6) Companies providing energy from section 13(b) under the cost Subsidiaries from available internal management services and energy-related standards of rules 90 and 91. sources or external sources involving consulting services outside the United issuances of its securities under the June States; B. Acquisition of Intermediate Subsidiaries 2000 Order (or any future order (7) Companies brokering and supplementing or superseding that marketing energy commodities in Applicants request authority to order in whole or in part). The other Canada and Mexico; and acquire Intermediate Subsidiaries. Applicants will obtain funds for initial (8) Certain nonutility energy-related Applicants propose that an Intermediate and subsequent investments in assets (‘‘Energy-Related Asset’’). Subsidiary may be organized, among Intermediate Subsidiaries from available Applicants state that, (i) an other things: (i) In order to facilitate the cash, capital contributions or loans from ‘‘Authorized Nonutility Business’’ making of bids or proposals to develop Cinergy, or external borrowings or sales means any nonutility business in which or acquire an interest in any exempt of capital stock under the exemption Cinergy is currently authorized or may wholesale generator (‘‘EWG’’), as that afforded by rule 52(b). To the extent that hereafter become authorized under the term is defined in section 32 of the Act, Cinergy provides funds directly or Act to invest, and includes, without foreign utility company (‘‘FUCO’’), as indirectly to an Intermediate Subsidiary limitation, the types of nonutility that term is defined in section 33 of the that are used for an investment in an businesses enumerated in (1) through Act, exempt telecommunications EWG or FUCO, a Rule 58 Company, an (8) above; (ii) a ‘‘Nonutility Subsidiary’’ company (‘‘ETC’’), as that term is IS Company or an Energy-Related Asset, means any existing or future associate defined in section 34 of the Act, or other the amount of the funds will be company of Cinergy (including any nonutility company which, upon included in Cinergy’s ‘‘aggregate Intermediate Subsidiary) formed for the acquisition, would qualify for investment’’ in the appropriate entity, as purpose of engaging in an Authorized exemption from the Act under rule 58 calculated in accordance with rule 53 or Nonutility Business; and (iii) a (‘‘Rule 58 Company’’) or other rule 58, as applicable, or the terms of ‘‘Nonutility Investment’’ means any Authorized Nonutility Business; (ii) the Commission order authorizing existing or future Authorized Nonutility after the award of a bid proposal, in Cinergy’s investment in an IS Company Business in which Cinergy invests, but order to facilitate closing on the or Energy-Related Asset, as applicable. which investment does not cause such purchase or financing of the acquired Authorized Nonutility Business to company; (iii) at any time subsequent to C. Nonutility Reorganizations become an associate company of the consummation of an acquisition of Applicants seek authority to effect Cinergy. an interest in any of these companies in corporate reorganizations or order, among other things, to effect an restructurings of Nonutility Subsidiaries II. Current Request adjustment in the respective ownership and Nonutility Investments. Specifically A. Overview interests in the business held by Cinergy Applicants request authority (i) for each Nonutility Subsidiary to sell or Applicants request authorization for and non-affiliated investors; (iv) to otherwise transfer the securities or Authorized Nonutility Businesses to facilitate the sale of ownership interests assets (in whole or in part) of any engage in the following activities 14 Applicants state that the term Intermediate Nonutility Subsidiary or Nonutility Subsidiary also includes any Intermediate Parents Investment to any other Nonutility 13 See HCAR No. 27400 (May 18, 2001), HCAR formed under authority from the 1999 Order and No. 27581 (October 23, 2002), HCAR No. 27393 any other Nonutility Subsidiaries performing a Subsidiary or Nonutility Investment, (May 4, 2001), HCAR No. 27506 (May 21, 2002), corresponding function formed by Cinergy under and (ii) for each Nonutility Subsidiary HCAR No. 27717 (August 29, 2003). prior Commission orders. to acquire these securities or assets.

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Alternatively, transfers of these support services) 15 for any Nonutility through (iv) above or (c) does not derive, securities or assets may be effected by Subsidiary within any of the five directly or indirectly, any part of its share exchanges, share distributions or categories enumerated immediately income from sources within the United dividends followed by contribution of below at fair market prices determined States and is not a public utility these securities or assets to the receiving without regard to cost, and therefore company operating within the United entity, or by mergers or liquidations, or request an exemption from section 13(b) States. otherwise, and Applicants request and the cost standards of rules 90 and For the Commission by the Division of approval for these forms of restructuring 91. Investment Management, pursuant to transactions as well. (i) A FUCO or an EWG that derives no delegated authority. Applicants state that the corporate part of its income, directly or indirectly, Margaret H. McFarland, reorganizations or restructurings of from the generation, transmission, or Deputy Secretary. Nonutility Subsidiaries and Nonutility distribution of electric energy for sale [FR Doc. 03–29511 Filed 11–25–03; 8:45 am] Investments would be undertaken in within the United States; BILLING CODE 8010–01–P order to eliminate corporate (ii) An EWG that sells electricity at complexities, to combine related market-based rates which have been business segments for staffing and approved by the Federal Energy SECURITIES AND EXCHANGE management purposes, to eliminate Regulatory Commission (‘‘FERC’’) or an COMMISSION administrative costs, to achieve tax appropriate state public utility commission, provided that the [Release No. 34–48807; File No. SR–CBOE– savings, or for other ordinary and 2003–40] necessary business purposes. purchaser of the EWG’s electricity is not Applicants state that none of these an affiliated public utility or an affiliate Self-Regulatory Organizations; Notice reorganizations or restructurings will that re-sells such power to an affiliated of Filing of Proposed Rule Change and involve the sale or other disposition of public utility; Amendment No. 1 Thereto by the any utility assets of the Utility (iii) A ‘‘qualifying facility’’ (‘‘QF’’), as Chicago Board Options Exchange, Inc. Subsidiaries or any corporate defined under the Public Utility Relating to Options on Certain CBOE reorganization involving the Utility Regulatory Policies Act of 1978, as Volatility Indices Subsidiaries, nor does the approval amended (‘‘PURPA’’), that sells sought in this subsection extend to the electricity exclusively at rates November 19, 2003. acquisitions of any new businesses or negotiated at arm’s length to one or Pursuant to Section 19(b)(1) of the activities not constituting an Authorized more industrial or commercial Securities Exchange Act of 1934 1 2 Nonutility Business. customers purchasing such electricity (‘‘Act’’), and Rule 19b–4 thereunder, for their own use and not for resale, or notice is hereby given that on D. Payment of Dividends by Nonutility to an electric utility company other than September 12, 2003, the Chicago Board Subsidiaries an affiliated electric utility at the Options Exchange, Inc. (‘‘CBOE’’ or To the extent not otherwise exempt purchaser’s ‘‘avoided cost’’ determined ‘‘Exchange’’) filed with the Securities under the Act, Applicants request under PURPA; and Exchange Commission authority for each Nonutility Subsidiary (iv) An EWG or a QF that sells (‘‘Commission’’) the proposed rule and KO, South Construction, and Tri- electricity at rates based upon its costs change as described in Items I, II and III State to declare and pay dividends out of service, as approved by FERC or any below, which Items have been prepared of capital or unearned surplus to its state public utility commission having by the CBOE. On November 18, 2003, respective parent company, where jurisdiction, provided that the purchaser the CBOE filed Amendment No. 1 to the 3 permitted under applicable corporate of the electricity is not an affiliated proposed rule change. The Commission law, and where the dividend will not be public utility; or is publishing this notice to solicit detrimental to the financial integrity or (v) A Nonutility Subsidiary that is a comments on the proposed rule change, working capital of any company in the Rule 58 Company or any other as amended, from interested persons. Nonutility Subsidiary that (a) is Cinergy holding company system. I. Self-Regulatory Organization’s Additionally, Applicants state that, partially owned, provided that the Statement of the Terms of Substance of without further approval of the ultimate purchaser of goods or services the Proposed Rule Change is not an affiliated public utility, (b) is Commission, no Nonutility Subsidiary The Exchange hereby proposes to will declare or pay any dividend out of engaged solely in the business of developing, owning, operating and/or amend certain of its rules to provide for capital or unearned surplus if that the listing and trading of options on Nonutility Subsidiary derives any providing services or goods to Nonutility Subsidiaries described in (i) several volatility indexes; specifically: material part of its revenues from sales the CBOE Volatility Index (‘‘VIX’’); the of goods, services, electricity or natural 15 Applicants state that project developmental CBOE Nasdaq 100’’ Volatility Index gas to any of the Utility Subsidiaries or services are anticipated to include such services as (‘‘VXN’’); and the CBOE Dow Jones if at the time of the declaration or research and due diligence with respect to potential Industrial Average’’ Volatility Index payment such Nonutility Subsidiary has projects and transactions, preparation of bid (‘‘VXD’’). Options on each index would negative retained earnings. documents, investment proposals, customer proposals and the like, preliminary engineering, E. Exemptions from Section 13(b) construction, licensing and operational studies and 1 U.S.C. 78s(b)(1). analyses, acquisitions of options, and other legal, 2 17 CFR 240.19b–4. Applicants request authority for accounting, marketing, engineering, financial and 3 See letter from Jim Flynn, Attorney, CBOE, to Nonutility Subsidiaries to enter into similar services relating to acquisitions of project Florence Harmond, Senior Special Counsel, agreements to perform services investments and consummating transactions with Division of Market Regulation (‘‘Division’’), customers. Applicants state that administrative and Commission, dated November 18, 2003 Applicants request authority for other support services include without limitation (‘‘Amendment No. 1’’). Amendment No. 1 revises Nonutility Subsidiaries to perform overall strategic planning, operations and the original rule filing by defining the reporting certain services (namely, project maintenance, environmental, information systems, authority and terms of these index option contracts, engineering and construction, risk management, including that the interval between strike prices development services and marketing, finance, legal, accounting, employment shall be no less than $2.50, and accordingly administrative services and other and tax. replaces CBOE’s original Exhibit A.

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be cash-settled and will have European- option series are the series for the PM (Chicago Time) CST. CBOE has style expiration. The text of the subsequent expiration month. Thus, calculated historical index values for proposed rule change is available at the with eight days left to expiration, an the new VIX back to January 2, 1990. As Office of the Secretary, CBOE, and at the index will ‘‘roll’’ to the second and third of December 31, 2002, the closing values Commission. contract months. for each respective index were as For each contract month, CBOE will follows: (1) VIX: 30.34; (2) VXN: 46.94; II. Self-Regulatory Organization’s determine the at-the-money strike price. and (3) VXD: 31.81. Volatility index Statement of the Purpose of, and It will then select the at-the-money and levels will be calculated by CBOE and Statutory Basis for, the Proposed Rule out-of-the money series with non-zero disseminated at 15-second intervals to Change bid prices and determine the midpoint market information vendors via the In its filing with the Commission, the of the bid-ask quote for each of these Options Price Reporting Authority CBOE included statements concerning series. The midpoint quote of each (‘‘OPRA’’). the purpose of and basis for the series is then weighted so that the proposed rule change and discussed any further away that series is from the at- Index Option Trading comments it received on the proposed the-money strike, the less weight that is Strike prices will be set to bracket the accorded to the quote. Then, to compute 1 rule change. The text of these statements index in 2 ⁄2 point increments; thus, the may be examined at the places specified the index level, CBOE will calculate a interval between strike prices will be no in Item IV below. The CBOE has volatility measure for the nearby options less than $2.50.6 The minimum tick size prepared summaries, set forth in and then for the second nearby options. for series trading below $3 will be 0.05 Sections A, B, and C below, of the most This is done using the weighted mid- and for series trading above $3 the significant aspects of such statements. point of the prevailing bid-ask quotes minimum tick will be 0.10. The trading for all included option series with the hours for options on the volatility A. Self-Regulatory Organization’s same expiration date. These volatility Statement of the Purpose of, and indexes will be from 8:30 a.m. to 3:15 measures are then interpolated to arrive p.m. (Chicago Time) CST.7 Statutory Basis for, the Proposed Rule at a single, constant 30-day measure of Change volatility. Exercise and Settlement 1. Purpose As described above, each volatility index option will be structured as an The proposed options on each index The purpose of the proposed rule option on a group of securities, namely will expire 30 days prior to the change is to permit the Exchange to list options on the SPX, NDX, or DJX expiration date of the options used in and trade cash-settled, European-style indexes and by extension the stocks the calculation of that index. For options on the VIX, VXN, and VXD. The underlying each respective index. The example, September 2003 VIX options calculation of each index is based on a CBOE will use the actual quotes of would expire on Wednesday, September recently developed methodology that specific index options to derive each 17, 2003, exactly 30 days prior to the builds upon the calculation of the corresponding volatility index. The expiration of the October 2003 SPX original CBOE Market Volatility Index, underlying index options themselves options, which would be the only which is based on S&P 100’’ Index are securities and are based on an index options used in the VIX calculation on option (‘‘OEX’’) quotes. Introduced by of the broader number of underlying that date. Trading in the expiring CBOE in September 2003, the revised securities.4 Thus, the pricing contract month will normally cease at VIX is an index that uses the quotes of components underlying the Index 3:15 PM (Chicago Time) (CST) on the certain S&P 500 Index (‘‘SPX’’) options will include the SPX, NDX, or last day of trading. Exercise will result option series to derive a measure of the DJX options and, by extension, the in delivery of cash on the business day volatility of the U.S. equity market. It component stocks of each index. These following expiration. VIX, VXN and provides investors with up-to-the- pricing components will provide a VXD options will be A.M.-settled. The minute market estimates of expected measure of the volatility of price exercise settlement value will be volatility by extracting implied movements of the SPX, NDX, or DJX determined by a Special Opening volatilities from real-time index option stock indexes. This structure is similar Quotation (‘‘SOQ’’) of each respective bid/ask quotes. The VIX is quoted in to the approach used by CBOE for its volatility index calculated from the percentage points per annum. For interest rate options.5 Those products sequence of opening prices of the example, an index level of 30.34 (the use the quotes of debt securities to options that comprise that index. The closing value from December 31, 2002) derive an interest rate yield, which is opening price for any series in which represents an annualized volatility of converted into a measure that serves as there is no trade shall be the average of 30.34%. This new methodology will the underlying for options. In the case that option’s bid price and ask price as also be used to calculate VXN and VXD of Index options, quotes from index determined at the opening of trading. values. option securities, which reflect a The exercise-settlement amount is measure of stock price movements of Index Design and Calculation equal to the difference between the the SPX, NDX and DJX stocks, will be exercise-settlement value and the Each index—VIX, VXN, and VXD— used to derive a measure of volatility exercise price of the option, multiplied will be calculated using real-quotes of that will be the underlying for the by $100. When the last trading day is the nearby and second nearby index respective volatility index options. moved because of Exchange holidays, puts and calls of the SPX, the Nasdaq The CBOE will compute each index the last trading day for expiring options 100 Index (‘‘NDX’’’), and the Dow Jones on a real-time basis throughout each Industrial Index (‘‘DJX’’’), respectively. trading day, from 8:30 AM until 3:15 6 See supra note 3. For options on each respective volatility 7 See Exhibit B to the proposed rule change filed index, the nearby index option series 4 500 securities in the SPX, 100 securities in the by CBOE, presents proposed contract specifications are defined as the series with the NDX, etc. for VIX options, Exhibit C presents proposed 5 See Securities Exchange Act Release Nos. 26938 contract specifications for VXN options; and, shortest time to expiration, but with at (June 15, 1989), 54 FR 26285 (June 22, 1989); and Exhibit D presents proposed contract specifications least eight (8) calendar days to 33106 (October 26, 1993), 54 FR 58358 (November for VXD options, of the proposed rule filing, which expiration. The second nearby index 1, 1993). set out the contract specifications for each product.

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will be the day immediately preceding equitable principles of trade, and For the Commission, by the Division of the last regularly-scheduled trading day. thereby will provide investors with the Market Regulation, pursuant to delegated ability to invest in options based on an authority.12 Surveillance additional index. Margaret H. McFarland, The Exchange states that it will use Deputy Secretary. B. Self-Regulatory Organization’s the same surveillance procedures [FR Doc. 03–29577 Filed 11–25–03; 8:45 am] Statement on Burden on Competition currently utilized for each of the BILLING CODE 8010–01–P Exchange’s other index options to CBOE does not believe that the monitor trading in options on each proposed rule change will impose any volatility index. The Exchange burden on competition. SECURITIES AND EXCHANGE represents that these surveillance COMMISSION procedures are adequate to monitor the C. Self-Regulatory Organization’s trading of options on these volatility Statement on Comments on the [Release No. 34–48810: File No. SR–NASD– 2003–161] index. For surveillance purposes, the Proposed Rule Change Received From Exchange will have complete access to Members, Participants or Others Self-Regulatory Organizations; Notice information regarding trading activity in No written comments were solicited of Filing of Proposed Rule Change by the pertinent underlying securities. or received with respect to the proposed the National Association of Securities Position Limits rule change. Dealers, Inc. To Establish a Nasdaq Official Opening Price The Exchange proposes to establish III. Date of Effectiveness of the position limits for options on each Proposed Rule Change and Timing for November 19, 2003. volatility index—VIX, VXN and VXD— Commission Action Pursuant to section 19(b)(1) of the at 25,000 contracts on either side of the Securities Exchange Act of 1934 (the market and no more than 15,000 of such Within 35 days of the date of ‘‘Act’’),1 and Rule 19b–4 thereunder,2 contracts may be in series in the nearest publication of this notice in the Federal notice is hereby given that on October expiration month.8 The Exchange states Register or within such longer period (i) 28, 2003, the National Association of that this is consistent with Exchange as the Commission may designate up to Securities Dealers, Inc. (‘‘NASD’’), Rule 24.4 (Position Limits for Broad- 90 days of such date if it finds such through its subsidiary, The Nasdaq Based Index Options). longer period to be appropriate and Stock Market, Inc. (‘‘Nasdaq’’), filed publishes its reasons for so finding or Exchange Rules Applicable with the Securities and Exchange (ii) as to which the CBOE consents, the Commission (‘‘Commission’’) the Except as modified herein, the Commission will: proposed rule change as described in Exchange Rules in Chapter XXIV will be A. By order approve the proposed rule Items I, II, and III below, which Items applicable to the VIX, VXN, and VXD change, or have been prepared by Nasdaq. The options. Each volatility index will be B. Institute proceedings to determine Commission is publishing this notice to classified as a ‘‘broad-based index’’ and, whether the proposed rule change solicit comments on the proposed rule under CBOE margin rules, specifically, should be disapproved. change from interested persons. Exchange Rule 12.3(c)(5)(A), the margin requirement for a short put or call on IV. Solicitation of Comments I. Self-Regulatory Organization’s the respective volatility indexes shall be Statement of the Terms of Substance of 100% of the current market value of the Interested persons are invited to the Proposed Rule Change contract plus up to 15% of the submit written data, views, and arguments concerning the foregoing, Nasdaq is filing a proposed rule respective underlying index value. change to establish a Nasdaq Official Additionally, CBOE affirms that it including whether the proposed rule change, as amended, is consistent with Opening Price that would be made possesses the necessary systems available for wholly voluntary use by capacity to support new series that the Act. Persons making written submissions should file six copies NASD members and the public. Nasdaq would result from the introduction of represents that it would calculate and VIX, VXN and VXD options. CBOE also thereof with the Secretary, Securities and Exchange Commission, 450 Fifth disseminate the Nasdaq Official has been informed that OPRA has the Opening Price using its proprietary capacity to support such new series.9 Street, NW, Washington, DC 20549– 0609. Copies of the submission, all systems, and that the Nasdaq Official 2. Statutory Basis subsequent amendments, all written Opening Price would not affect the dissemination of last sale information CBOE believes that the proposed rule statements with respect to the proposed rule change that are filed with the pursuant to the national market system change, as amended, is consistent with plan governing trading of Nasdaq 10 Commission, and all written Section 6(b) of the Act in general and securities, the Nasdaq UTP Plan. furthers the objectives of Section communications relating to the 6(b)(5),11 in particular, in that it will proposed rule change between the II. Self-Regulatory Organization’s permit trading in options based VIX, Commission and any person, other than Statement of the Purpose of, and VXN, and VXD on the volatility indices those that may be withheld from the Statutory Basis for, the Proposed Rule pursuant to rules designed to prevent public in accordance with the Change provisions of 5 U.S.C. 552, will be fraudulent and manipulative acts and In its filing with the Commission, available for inspection and copying at practices and to promote just and Nasdaq included statements concerning the Commission’s Public Reference the purpose of and basis for the 8 Room. Copies of such filing will also be This is consistent with Exchange 24.4 (Position proposed rule change and discussed any Limits for Broad-Based Index Options). available for inspection and copying at comments it received on the proposed 9 See Exhibit E to the proposed rule change filed the principal office of the Exchange. All by CBOE, which set out the contract specifications for each product. submissions should refer to File No. 12 17 CFR 200.30–3(a)(12). 10 15 U.S.C. 78f(b). SR–CBOE–2003–40 and should be 1 15 U.S.C. 78s(b)(1). 11 15 U.S.C. 78f(b)(5). submitted by December 17, 2003. 1 17 CFR 240.19b–4.

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rule change. The text of these statements reported to ACT or a SuperMontage Price would be equal to the Nasdaq may be examined at the places specified execution resulting from an order inside bid, in this case 20.00. If the first, in Item IV below. Nasdaq has prepared entered into the system after 9:30, and last sale eligible ACT trade price were summaries, set forth in Sections A, B, also reported to ACT. The Predicate 20.04 instead of 19.98, the Nasdaq and C below, of the most significant Trade could also be a SuperMontage Official Opening Price would equal the aspects of such statements. execution based on an order that was in Nasdaq inside ask at the time of the queue in SuperMontage at 9:30 but not trade report, in this case 20.02. A. Self-Regulatory Organization’s executed until after 9:30:05 as a result The Nasdaq Official Opening Price Statement of the Purpose of, and of being sent to an order delivery value would be disseminated as soon as Statutory Basis for, the Proposed Rule participant. it is calculated, and changes to the Change If the Nasdaq Official Opening Price underlying trade report would not affect 1. Purpose were to be based upon a Predicate Trade the Nasdaq Official Opening Price. 6 Nasdaq proposes to calculate and rather than a SuperMontage Opening 2. Statutory Basis Match, Nasdaq would be able to use the disseminate a Nasdaq Official Opening Nasdaq believes that the proposed Price for Nasdaq-listed securities. same normalization process that currently applies to the Nasdaq Official rule change is consistent with the Nasdaq would disseminate the Nasdaq 7 4 provisions of Section 15A of the Act, in Official Opening Price over the Nasdaq Closing Price. Specifically, if the price of the Predicate Trade were to be within general, and with section 15A(b)(6) of Index Dissemination Service data feed the Act,8 in particular, which requires (‘‘NIDS’’), a proprietary data feed of the best bid and offer quote entered in the SuperMontage system at the time the NASD’s rules to be designed, among Nasdaq. Because the Nasdaq Official other things, to protect investors and the Opening Price would be neither a the trade is reported, the Nasdaq Official Opening Price would equal the reported public interest. Nasdaq believes that its quotation nor a last sale report, it would current proposal is consistent with the price of the Predicate Trade. If the price not be disseminated over either the UTP NASD’s obligations under these of the Predicate Trade were to be lower Quote data feed or the UTP Trade data provisions of the Act because Nasdaq than the Nasdaq inside bid, the Nasdaq feed. The Nasdaq Official Opening Price believes the proposal would result in Official Opening Price would equal the message would contain the prevailing the public dissemination of information Nasdaq inside bid. Likewise, if the price inside quote and the Nasdaq Official that more accurately reflects the trading of the Predicate Trade were to be higher Opening Price value. Nasdaq states that in a particular security at the open. than the Nasdaq inside ask, the Nasdaq the fees for the NIDS feed have Furthermore, to the extent a security is Official Opening Price would be the previously been filed with the a component of an index, Nasdaq Nasdaq inside ask. Commission, and that it is not believes the index would more proposing to change those fees. Nasdaq believes that bounding the accurately reflect the value of the The Nasdaq Official Opening Price first ACT trade report by the Nasdaq market, or segment of the market, the would be equal to the reported price of inside would reduce the extent to which index is designed to measure. Nasdaq the first trade executed in the Nasdaq market participants could deliberately believes that the corresponding result National Market Execution System affect the Nasdaq Official Opening should be trades, or other actions, (‘‘SuperMontage’’), which would be Price, since firms would need to affect executed at prices more reflective of the based upon orders that are in queue not only the inside quotes but also the current market when the price of an when SuperMontage begins trading at Predicate Trade. On the other hand, execution, or other action, is based on 9:30 a.m. ET (‘‘SuperMontage Opening SuperMontage executions occur only at the last sale, the high price or low price Match’’). SuperMontage executions that the prevailing inside bid or ask; of a security, or the value of an index. are in queue when SuperMontage begins therefore, such executions would not B. Self-Regulatory Organization’s trading at 9:30 a.m. but that are not need to be bound by a SuperMontage Statement on Burden on Competition executed until after 9:30:05 (as a result quotation. To be consistent in the of being delivered to an order delivery delivery of the opening message to Nasdaq does not believe that the participant that has not responded) market data vendors, the prevailing proposed rule change will result in any would not be eligible to be the Nasdaq inside bid and ask would be burden on competition that is not SuperMontage Opening Match. disseminated with the Nasdaq Official necessary or appropriate in furtherance SuperMontage executions that result Opening Price whether a SuperMontage of the purposes of the Act. 5 from orders entered into the system after trade or an ACT trade sets it. To illustrate the bounding of an ACT C. Self-Regulatory Organization’s 9:30 also would not be eligible to be the Statement on Comments on the SuperMontage Opening Match. trade report, consider the following example. There is no SuperMontage Proposed Rule Change Received From If there were to be no SuperMontage Members, Participants or Others Opening Match within five seconds Opening Match. However, at 9:30:10 after the system opens at 9:30, the a.m., the first, last sale eligible ACT Written comments were neither Nasdaq Official Opening Price for that trade is reported with a price of 19.98. solicited nor received. security would be based upon the first, The Nasdaq inside bid and ask at 9:30:10 is 20.00 to 20.02. Under the 6 Nasdaq represents that it will make an effort to last sale eligible trade (‘‘Predicate inform users of Nasdaq of when the Nasdaq Official Trade’’)3 that is reported to Nasdaq’s proposal, the Nasdaq Official Opening Opening Price is based upon a trade executed in Automated Confirmation Transaction SuperMontage or a Predicate Trade that may have System (‘‘ACT’’). The Predicate Trade 4 See Securities Exchange Act Release No. 47517 been normalized. Telephone conversation among (March 18, 2003), 68 FR 14446 (March 25, 2003) Jeffrey S. Davis, Associate Vice President and could be an internalized execution (SR–NASD–2002–158). Associate General Counsel, Nasdaq, Alton S. 5 In the event that a security is in a trading halt Harvey, Office Head, Office of Market Watch, 3 Four types of trade reports are not last sale prior to market open and that halt continues past Division of Market Regulation (‘‘Division’’), elibible and, thus, would not be eligible to affect the 9:30, the Nasdaq Official Opening Price for that Commission, and Cyndi Rodriguez, Special Nasdaq Official Opening Price: cash sales (which security would equal the reported trade price of the Counsel, Division, Commission on November 13, include the ‘‘C’’ trade report modifier), next day first last sale eligible trade reported after the trading 2003. sales (.ND), seller trades (.S), and after hours trades halt is lifted and the inside market for the security 7 15 U.S.C. 78o–3. (.T). is uncrossed. 8 15 U.S.C. 78o–3(b)(6).

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III. Date of Effectiveness of the SECURITIES AND EXCHANGE the most significant aspects of such Proposed Rule Change and Timing for COMMISSION statements. Commission Action A. Self-Regulatory Organization’s [Release No. 34–48808; File No. SR–NYSE– Statement of the Purpose of, and Within 35 days of the date of 2003–35] publication of this notice in the Federal Statutory Basis for, the Proposed Rule Register or within such longer period (i) Self-Regulatory Organizations; Notice Change as the Commission may designate up to of Filing and Immediate Effectiveness 1. Purpose 90 days of such date if it finds such of Proposed Rule Change by the New By order dated June 13, 2003, the longer period to be appropriate and York Stock Exchange, Inc. to Extend Commission approved a proposed rule publishes its reasons for so finding or the 30-Day Free Trial Period for Broker change (the ‘‘Web Service Fee Filing’’) (ii) as to which the self-regulatory Volume by which the NYSE established a organization consents, the Commission November 19, 2003. monthly $300 fee for a subscriber’s will: Pursuant to Section 19(b)(1) of the receipt of access to NYSE Broker A. By order approve such proposed Securities Exchange Act of 1934 Volume information that the NYSE rule change, or (‘‘Act’’),1 and Rule 19b–4 thereunder,2 makes available via a web-based service notice is hereby given that on November (the ‘‘NYSE Broker Volume Web B. Institute proceedings to determine Service’’).5 14, 2003, the New York Stock Exchange, That service enables whether the proposed rule change subscribers to log-on to the NYSE Web Inc. (‘‘NYSE’’ or ‘‘Exchange’’) filed with should be disapproved. site (http://www.nysedata.com) and to the Securities and Exchange receive formatted displays containing IV. Solicitation of Comments Commission (‘‘Commission’’) the aggregate broker-dealer volume rankings proposed rule change as described in in NYSE-traded securities. Interested persons are invited to Items I, II and III below, which Items submit written data, views and In the Web Service Fee Filing, NYSE have been prepared by the Exchange. agreed to waive the NYSE Broker arguments concerning the foregoing, The Exchange filed the proposal including whether the proposed rule Volume Web Service fee for 30 days (the pursuant to Section 19(b)(3)(A)(ii) of the ‘‘Free Trial Period’’) for any individual change is consistent with the Act. Act,3 and Rule 19b–4(f)(2) thereunder 4 Persons making written submissions that first subscribed to the NYSE Broker as one establishing or changing a due, Volume Web Service on or prior to should file six copies thereof with the fee or other charge imposed by the self- October 1, 2003. Secretary, Securities and Exchange regulatory organization, which renders The NYSE has found the Free Trial Commission, 450 Fifth Street NW., the proposal effective upon filing with Period to constitute a successful Washington, DC 20549–0609. Copies of the Commission. The Commission is marketing tool. More than half of all the submission, all subsequent publishing this notice to solicit subscribers that subscribe to the NYSE amendments, all written statements comments on the proposed rule change Broker Volume Web Service for the 30- with respect to the proposed rule from interested persons. day Free Trial Period continue to change that are filed with the I. Self-Regulatory Organization’s subscribe after the Free Trial Period Commission, and all written Statement of the Terms of Substance of ends. For that reason, the NYSE communications relating to the the Proposed Rule Change proposes to extend the application of proposed rule change between the the 30-day Free Trial Period to Commission and any person, other than The Exchange proposes to extend the subscribers that first subscribe to the those that may be withheld from the free 30-day trial period for its NYSE NYSE Free Trial Period on or prior to Broker Volume Report service, a service public in accordance with the April 1, 2004. To avoid a lapse in the that permits subscribers to view Broker provisions of 5 U.S.C. 552, will be application of the Free Trial Period, the Volume Reports of broker share volume Exchange is making the proposed rule available for inspection and copying in information that the NYSE produces the Commission’s Public Reference change effective retroactively to October from the NYSE Broker Volume 6 Room. Copies of the filing will also be 1, 2003. Database. The text of the proposed rule The NYSE proposes to continue to available for inspection and copying at change is available at the NYSE and at apply the Free Trial Period on a rolling the principal office of the NASD. All the Commission. basis, determined by the date on which submissions should refer to File No. II. Self-Regulatory Organization’s the NYSE first entitles a new individual SR–NASD–2003–161 and should be subscriber or potential individual submitted by December 17, 2003. Statement of the Purpose of, and Statutory Basis for, the Proposed Rule subscriber to receive the NYSE Broker For the Commission, by the Division of Change Market Regulation, pursuant to delegated 5 See Securities Exchange Act Release No. 48060 authority.9 In its filing with the Commission, the (June 19, 2003), 68 FR 37889 (June 25, 2003)(SR– NYSE included statements concerning NYSE–2003–11)(approval order). Margaret H. McFarland, 6 the purpose of and basis for its proposal The Commission notes that the NYSE should Deputy Secretary. have filed the instant proposed rule change before and discussed any comments it received the expiration of the original period approved for [FR Doc. 03–29512 Filed 11–25–03; 8:45 am] regarding the proposal. The text of these the 30-day free trial period in SR–NYSE–2003–11. BILLING CODE 8010–01–P statements may be examined at the To ensure uniformity in the fees paid by subscribers to the NYSE’s Broker Volume Report service, the places specified in Item IV below. The Commission has, in this isolated case, allowed the Exchange has prepared summaries, set NYSE to file the instant proposed rule change forth in Sections A, B and C below, of pursuant to Section 19(b)(3)(A)(ii) and Rule 19b– 4(f)(2) thereunder, and to apply it retroactively to October 1, 2003. The Commission expects that, in 1 15 U.S.C. 78s(b)(1). the future, the NYSE will monitor its proposed rule 2 17 CFR 240.19b–4. changes to ensure that there are no lapses that 3 15 U.S.C. 78s(b)(3)(A)(ii). would require the application of a proposed rule 9 17 CFR 200.30–3(a)(12). 4 17 CFR 240.19b–4(f)(2). change retroactively.

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Volume Web Service. As before, a all subsequent amendments, all written solicit comments on the proposed rule specific individual subscriber may only statements with respect to the proposed change, as amended, from interested receive the fee waiver one time. rule change that are filed with the persons. Exhibit A to the proposed rule change Commission, and all written I. Self-Regulatory Organization’s reflects the NYSE Broker Volume fee communications relating to the Statement of the Terms of Substance of schedule as modified by the proposed proposed rule change between the the Proposed Rule Change rule change. Commission and any person, other than those that may be withheld from the The Exchange and its wholly owned 2. Statutory Basis public in accordance with the subsidiary PCX Equities, Inc. (‘‘PCXE’’) The Exchange believes that the provisions of 5 U.S.C. 552, will be are proposing to extend the pilot rule in proposed rule is consistent with the available for inspection and copying in PCX Rule 12.1, Commentary .02 and provisions of Section 6(b)(4) of the Act,7 the Commission’s Public Reference PCXE Rule 12.2(h), which requires in that it provides for the equitable Room. Copies of such filing will also be industry parties in arbitration to waive allocation of reasonable dues, fees and available for inspection and copying at application of contested California other charges among members and other the principal office of the NYSE. All arbitrator disclosure standards, upon the persons using its facilities. submissions should refer to file number request of customers (and, in industry SR–NYSE–2003–35 and should be cases, upon the request of associated B. Self-Regulatory Organization’s submitted by December 17, 2003. persons with claims of statutory Statement on Burden on Competition For the Commission, by the Division of employment discrimination), for an The Exchange believes that the Market Regulation, pursuant to delegated additional six-month pilot period. proposed rule change will not impose authority.10 any burden on competition that is not II. Self-Regulatory Organization’s Margaret H. McFarland, Statement of the Purpose of, and necessary or appropriate in furtherance Deputy Secretary. of the purposes of the Act. Statutory Basis for, the Proposed Rule [FR Doc. 03–29575 Filed 11–25–03; 8:45 am] Change C. Self-Regulatory Organization’s BILLING CODE 8010–01–P In its filing with the Commission, the Statement on Comments on the Exchange included statements Proposed Rule Change Received from concerning the purpose of and basis for Members, Participants or Others SECURITIES AND EXCHANGE COMMISSION the proposed rule change and discussed The Exchange has not solicited, and any comments it received on the does not intend to solicit, comments [Release No. 34–48806; File No. SR–PCX– proposed rule change. The text of these regarding the proposed rule change. The 2003–61] statements may be examined at the Exchange has not received any Self-Regulatory Organizations; Notice places specified in Item IV below. The unsolicited written comments from of Filing and Immediate Effectiveness PCX has prepared summaries, set forth members or other interested parties. of Proposed Rule Change by the in sections A, B and C below, of the III. Date of Effectiveness of the Pacific Exchange, Inc. Relating to most significant aspects of such Proposed Rule Change and Timing for Arbitration statements. Commission Action A. Self-Regulatory Organization’s November 19, 2003. Statement of the Purpose of, and The proposed rule change has become Pursuant to Section 19(b)(1) of the Statutory Basis for, the Proposed Rule effective pursuant to Section Securities Exchange Act of 1934 8 Change 19(b)(3)(A)(ii) of the Act and (‘‘Act’’),1 and Rule 19b–4 thereunder,2 subparagraph (f)(2) of Rule 19b–4 notice is hereby given that on October 1. Purpose thereunder,9 because it involves a due, 30, 2003, the Pacific Exchange, Inc. fee, or other charge. At any time within On November 21, 2002, the (‘‘PCX’’ or ‘‘Exchange’’) filed with the Commission approved, for a six-month 60 days of the filing of the proposed rule Securities and Exchange Commission change, the Commission may summarily pilot period, the Exchange’s proposal to (‘‘Commission’’ or ‘‘SEC’’) the proposed amend PCX and PCXE arbitration rules abrogate such rule change if it appears rule change as described in Items I, II to the Commission that such action is to require industry parties in arbitration and III below, which Items have been to waive application of contested necessary or appropriate in the public prepared by PCX. PCX filed the interest, for the protection of investors, California arbitrator disclosure proposed rule change pursuant to standards, upon the request of or otherwise in furtherance of the 3 Section 19(b)(3)(A) of the Act and Rule customers or, in employment purposes of the Act. 4 19b–4(f)(6) thereunder, which renders discrimination cases, upon the request the proposal effective upon filing with IV. Solicitation of Comments of associated persons.6 The Commission the Commission. On November 12, approved an extension of the pilot Interested persons are invited to 2003, the Exchange filed Amendment period on May 15, 2003.7 The pilot submit written data, views, and No. 1 to the proposed rule change.5 The period is currently set to expire on arguments concerning the foregoing, Commission is publishing this notice to including whether the proposal is November 22, 2003. On July 1, 2002, the Judicial Council consistent with the Act. Persons making 10 17 CFR 200.30–3(a)(12). written submissions should file six 1 15 U.S.C. 78s(b)(1). of the State of California adopted new copies thereof with the Secretary, 2 217 CFR 240.19b–4. rules that mandated extensive Securities and Exchange Commission, 3 15 U.S.C. 78s(b)(3)(A). disclosure requirements for arbitrators 450 Fifth Street, NW, Washington, DC 4 17 CFR 240.19b–4(f)(6). 6 20549–0609. Copies of the submission, 5 See letter from Tanya Cho, Staff Attorney, See Exchange Act Release No. 46881 (November Regulatory Policy, Exchange, to Nancy Sanow, 21, 2002), 67 FR 71224 (November 29, 2002) (Order Assistant Director, Division of Market Regulation, approving SR–PCX–2002–71). 7 15 U.S.C. 78f(b)(4). Commission, dated November 12, 2003. 7 See Exchange Act Release No. 47872 (May 15, 8 15 U.S.C. 78s(b)(3)(A)(ii). Amendment No. 1 made non-substantive 2003), 68 FR 28869 (May 27, 2003) (Order 9 17 CFR 240.19b–4(f)(2). corrections to PCX’s original Form 19b–4 filing. approving SR–PCX–2003–22).

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in California (the ‘‘California apply to SROs).12 PCX requests that the interest, for the protection of investors, Standards’’). The California Standards pilot be extended for six months or would otherwise further the purposes are intended to address perceived beginning on November 23, 2003. The of the Act. conflicts of interest in certain extension of time permits the Exchange Pursuant to Rule 19b–4(f)(6)(iii) under commercial arbitration proceedings. As to continue the arbitration process using the Act,16 the proposal may not become a result of the imposition of the PCX rules regarding arbitration operative for 30 days after the date of its California Standards on arbitrations disclosures and not the California filing, or such shorter time as the conducted under the auspices of self- Standards. No substantive changes are Commission may designate if consistent regulatory organizations (‘‘SROs’’), the being made to the pilot program, other with the protection of investors and the National Association of Securities than extending the operation of pilot public interest, and the self-regulatory Dealers, Inc. (‘‘NASD’’) and the New program. organization must file notice of its intent to file the proposed rule change York Stock Exchange (‘‘NYSE’’) 2. Statutory Basis suspended the appointment of at least five business days beforehand. arbitrators for cases pending in The Exchange believes that the The Exchange has requested that the California, and filed a joint complaint in proposed rule change is consistent with Commission waive the five-day pre- the objectives of Section 6(b)(5) of the federal court for declaratory relief in filing requirement and the 30-day Act,13 in that it is designed to promote which they contend that the California operative delay so that the proposed just and equitable principles of trade by Standards cannot lawfully be applied to rule change will become immediately ensuring that members and member NASD and NYSE because the California effective upon filing. organizations and the public have a fair The Commission believes that Standards are preempted by federal law and impartial forum for the resolution of waiving the five-day pre-filing provision and are inapplicable to SROs under 8 their disputes. and the 30-day operative delay is state law. Subsequently, in the interest consistent with the protection of B. Self-Regulatory Organization’s of continuing to provide investors with investors and the public interest.17 Statement on Burden on Competition an arbitral forum in California pending Waiving the pre-filing requirement and the resolution of the applicability of the The Exchange does not believe that accelerating the operative date will California Standards, the NASD and the proposed rule change will impose merely extend a pilot program that is NYSE filed separate rule proposals with any burden on competition that is not designed to provide investors with a the Commission that would temporarily necessary or appropriate in furtherance mechanism to resolve disputes with require their members to waive the of the purposes of the Act. broker-dealers. During the period of this California Standards if all non-member C. Self-Regulatory Organization’s extension, the Commission and the parties to arbitration have done so. The Exchange will continue to monitor the Commission approved the NASD’s rule Statement on Comments on the Proposed Rule Change Received From status of the previously discussed proposal on September 26, 20029 and Members, Participants, or Others litigation. For these reasons, the the NYSE’s rule proposal on November Commission designates the proposed 12, 2002.10 Both the NASD and the Written comments on the proposed rule change as effective and operative NYSE recently filed rule proposals to rule change were neither solicited nor immediately. further extend the pilot period for an received. 11 IV. Solicitation of Comments additional six months. III. Date of Effectiveness of the Since the NASD’s and NYSE’s lawsuit Proposed Rule Change and Timing for Interested persons are invited to relating to the application of the Commission Action submit written data, views and arguments concerning the foregoing, California Standards has not been PCX has designated the proposed rule resolved, PCX is now requesting an including whether the proposal is change as one that: (i) Does not consistent with the Act. Persons making extension of the pilot for an additional significantly affect the protection of six months (or until the pending written submissions should file six investors or the public interest; (ii) does copies thereof with the Secretary, litigation has resolved the question of not impose any significant burden on whether or not the California Standards Securities and Exchange Commission, competition; and (iii) does not become 450 Fifth Street, NW., Washington, DC operative for 30 days from the date on 20549–0609. Copies of the submission, 8 See NASD Dispute Resolution, Inc. v. Judicial which it was filed, or such shorter time all subsequent amendments, all written Council of California, 232 F. Supp. 2d 1055 (N.D. as the Commission may designate. Cal. 2002), Notice of Appeal filed December 12, statements with respect to the proposed 2002, available on the NASD Web site at: http:// Therefore, the foregoing rule change has rule change that are filed with the www.nasdadr.com/pdf-text/ca_appeal_notice.pdf. become effective pursuant to Section Commission, and all written 14 9 See Exchange Act Release No. 46562 (September 19(b)(3)(A) of the Act and Rule 19b– communications relating to the 26, 2002), 67 FR 62085 (October 3, 2002) (Order 15 4(f)(6) thereunder. At any time within proposed rule change between the approving SR–NASD–2002–126). Thereafter, the 60 days of the filing of the proposed rule pilot period was extended to September 30, 2003. Commission and any person, other than See Exchange Act Release No. 48187 (July 16, change, the Commission may summarily those that may be withheld from the 2003), 68 FR 43553 (July 23, 2003) (Order approving abrogate the rule change if it appears to public in accordance with the SR–NASD–2003–106). the Commission that the action is provisions of 5 U.S.C. 552, will be 10 See Exchange Act Release No. 46816 necessary or appropriate in the public (November 12, 2002), 67 FR 69793 (November 19, available for inspection and copying in 2002) (Order approving SR–NYSE–2002–56). the Commission’s Public Reference 12 Thereafter, the pilot period was extended to See also Mayo v. Dean Witter Reynolds, Inc. et. Room. Copies of such filing will also be al., 258 F. Supp. 2d 1097 (N.D. Cal. 2003) in which September 30, 2003. See Exchange Act Release No. available for inspection and copying at 47836 (May 12, 2003), 68 FR 27608 (May 20, 2003) the District Court for the Northern District of (Order approving SR–NYSE–2003–16). California held that the California Standards, at the principal office of the Exchange. All 11 See Exchange Act Release No. 48553 least as applied to SROs, are preempted by federal (September 26, 2003), 68 FR 57494 (October 3, law. As this decision was rendered on April 22, 16 17 CFR 240.19b–4(f)(6)(iii). 2003, it is still subject to appeal. 2003) (Order approving SR–NASD–2003–144) and 17 For purposes of accelerating the operative date 13 Exchange Act Release No. 48552 (September 26, 15 U.S.C. 78f(b)(5). of this proposal, the Commission has considered 2003), 68 FR 57496 (October 3, 2003) (Order 14 15 U.S.C. 78s(b)(3)(A). the proposed rule’s impact on efficiency, approving SR–NYSE–2003–28). 15 17 CFR 240.19b–4(f)(6). competition, and capital formation. 15 U.S.C. 78c(f).

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submissions should refer to File No. Diamond Control Regulations’’) (68 FR Republic of the Congo—Ministry of SR–PCX–2003–61 and should be 45777, August 4, 2003). Mines and Geology. submitted by December 17 2003. Section 6(b) of the Act requires the Croatia—Ministry of Economy. For the Commission, by the Division of President to publish in the Federal European Community—DG/External Market Regulation, pursuant to delegated Register a list of all Participants, and all Relations/A.2. authority.18 Importing and Exporting Authorities of Ghana—Precious Minerals and Participants, and to update the list as Margaret H. McFarland, Marketing Company Ltd. necessary. Section 2 of Executive Order Deputy Secretary. Guinea—Ministry of Mines and 13312 of July 29, 2003 delegates this Geology. [FR Doc. 03–29576 Filed 11–25–03; 8:45 am] function to the Secretary of State. BILLING CODE 8010–01–P Section 3(7) of the Act defines Guyana—Geology and Mines ‘‘Participant’’ as a state, customs Commission. territory, or regional economic Hungary—Ministry of Economy and DEPARTMENT OF STATE integration organization identified by Transport. the Secretary of State. Section 3(3) of the India—The Gem and Jewellery Export [Public Notice 4539] Act defines ‘‘Exporting Authority’’ as Promotion Council. Bureau of Economic and Business one or more entities designated by a Israel—The Diamond Controller. Affairs; List of November 17, 2003, of Participant from whose territory a Ivory Coast—Ministry of Mines and Participating Countries and Entities shipment of rough diamonds is being Energy. (Hereinafter Known as ‘‘Participants’’) exported as having the authority to Japan—Ministry of Economy, Trade and Under the Clean Diamond Trade Act of validate a Kimberley Process Certificate. Industry. 2003 (Pub. L. 108–19) and Section 2 of Section 3(4) of the Act defines Republic of Korea—Ministry of Executive Order 13312 of July 29, 2003 ‘‘Importing Authority’’ as one or more Commerce, Industry and Energy. entities designated by a Participant into Laos—Ministry of Finance. AGENCY: Department of State. whose territory a shipment of rough Lebanon—Ministry of Economy and ACTION: Notice. diamonds is imported as having the authority to enforce the laws and Trade. SUMMARY: In accordance with sections 3 regulations of the Participant regarding Lesotho—Commissioner of Mines and and 6 of the Clean Diamond Trade Act imports, including the verification of Geology. of 2003 (Pub. L. 108–19) and Section 2 the Kimberley Process Certificate Malaysia—Ministry of International of Executive Order 13312 of July 29, accompanying the shipment. Trade and Industry. 2003, the Department of State is Mauritius—Ministry of Commerce. List of Participants identifying all the Participants eligible Namibia—Ministry of Mines and for trade in rough diamonds under the Pursuant to section 3 of the Clean Energy. Act, and their respective Importing and Diamond Trade Act (the Act), Section 2 Poland—Ministry of Economy, Labour Exporting Authorities, and revising the of Executive Order 13312 of July 29, and Social Policy. 2003, and Delegation of Authority No. previously published list of September Romania—National Authority for 245 (April 23, 2001), I hereby identify 1, 2003 (68 FR 53419–53420). Consumer Protection. the following entities as of November FOR FURTHER INFORMATION CONTACT: Jay Russia—Gokhran, Ministry of Finance. L. Bruns, Special Negotiator for Conflict 17, 2003, as Participants under section 6(b) of the Act. Included in this List are Sierra Leone—Government Gold and Diamonds, Bureau of Economic and Diamond Office. Business Affairs, Department of State, the Importing and Exporting Authorities (202) 647–2857. for Participants, as required by section Slovenia—Ministry of Finance. 6(b) of the Act. This list revises the South Africa—South African Diamond SUPPLEMENTARY INFORMATION: Section 4 previously published list of September Board. of the Clean Diamond Trade Act (the 1, 2003 (68 FR 53419–53420). ‘‘Act’’) requires the President to prohibit Sri Lanka—National Gem and Jewellery the importation into, or the exportation Angola—Ministry of Geology and Authority. from, the United States of any rough Mines. Switzerland—State Secretariat for Armenia—Ministry of Trade and diamond, from whatever source, that Economic Affairs. Economic Development. has not been controlled through the Taiwan—Bureau of Foreign Trade. Australia—Exporting Authority— Kimberley Process Certification Scheme Tanzania—Commissioner for Minerals. Department of Industry, Tourism (KPCS). Under section 3(2) of the Act, and Resources; Importing Thailand—Ministry of Commerce. ‘‘controlled through the Kimberley Authority—Australian Customs Togo—Ministry of Mines and Geology. Process Certification Scheme’’ means an Service. Ukraine—State Gemological Centre of importation from the territory of a Belarus—Department of Finance. Ukraine. Participant or exportation to the Botswana—Ministry of Minerals, Energy United Arab Emirates—Dubai Metals territory of a Participant of rough and Water Resources. and Commodities Center. diamonds that is either (i) carried out in Brazil—Ministry of Mines and Energy. United States of America—Importing accordance with the KPCS, as set forth Bulgaria—Ministry of Finance. in regulations promulgated by the Authority—United States Bureau of Canada—Natural Resources Canada. Customs and Border Protection; President, or (ii) controlled under a Central African Republic—Ministry of Exporting Authority—Bureau of the system determined by the President to Energy and Mining. meet substantially the standards, China—General Administration of Census. practices, and procedures of the KPCS. Quality Supervision, Inspection and Venezuela—Ministry of Energy and The referenced regulations are Quarantine. Mines. contained at 31 CFR part 592 (‘‘Rough Democratic Republic of the Congo— Vietnam—Ministry of Trade. Ministry of Mines and Zimbabwe—Ministry of Mines and 18 17 CFR 200.30–3(a)(12). Hydrocarbons. Mining Development.

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This notice shall be published in the Airports District Office, 600 Old requirements, airplane operating Federal Register. Country Road, Suite 446, Garden City, performance and limitations, and New York 11530; telephone (516) 227– equipment requirements. Richard L. Armitage, 3803; FAX (516) 227–3813; e-mail The Task Deputy Secretary of State, Department of [email protected]. State. This notice is to tell the public the SUPPLEMENTARY INFORMATION: On April [FR Doc. 03–29735 Filed 11–25–03; 8:45 am] FAA has asked ARAC to provide advice 5, 2000, new authorizing legislation BILLING CODE 4710–07–P and recommendation on the following became effective. That bill, the Wendell harmonization task: H. Ford Aviation Investment and Harmonize positions on issues related Reform Act for the 21st Century, Pub. L. DEPARTMENT OF TRANSPORTATION to low-visibility operations. The ARAC 10–181 (Apr. 5, 2000; 114 Stat. 61) (AIR Working Group will work on Federal Aviation Administration 21) requires that a 30 day public notice operational and airworthiness issues must be provided before the Secretary that apply to air carrier operations in Notice Before Waiver With Respect to may waive any condition imposed on an low visibility conditions. The ARAC Land at Hamilton Municipal Airport, interest in surplus property. Working Group will identify Hamilton, NY Issued in Garden City, New York, on harmonization issues in the following November 14, 2003. AGENCY: Federal Aviation areas and will work to reach and Philip Brito, Administration (FAA), DOT. document consensus on those issues: Manager, New York Airports District Office, Maintenance of harmonization of all ACTION: Notice of intent of waiver with Eastern Region. weather operations criteria based on respect to land. [FR Doc. 03–29457 Filed 11–25–03; 8:45 am] experience gained from recent SUMMARY: The FAA is publishing notice BILLING CODE 4910–13–M certification programs and operations; of the proposed release of evolution of criteria to support Global approximately 3.966 acres of land Navigation Satellite System Landing located at Hamilton Municipal Airport, DEPARTMENT OF TRANSPORTATION Systems (GLS); new technologies that are being applied to low visibility to allow its sale for non-aviation Federal Aviation Administration development. The parcel was part of the operations, and complete harmonization airport property acquired with federal Aviation Rulemaking Advisory of operating minima criteria and funding support under the Airport Committee; Air Carrier Operations implementation processes. The Group Improvement Program. The Village of Issues—New Task will coordinate information with the Hamilton proposes to sell the land to a FAA/Industry Terminal Area developer who will develop it as a 63- AGENCY: Federal Aviation Operations Aviation Rulemaking room motel. Administration (FAA), DOT. Committee (TAOARC), JAA All Weather FAA’s action is to release the land ACTION: Notice of a new task for the Operations Steering Group (AWOSG), from a deed provision requiring Aviation Rulemaking Advisory and European Aviation Safety Agency aeronautical use of the property. The Committee (ARAC). (EASA) for consideration during its Village of Hamilton has stated that it has activities. This coordination will occur SUMMARY: Notice is given of new tasks no aeronautical use for the parcel now before the All Weather Operations assigned to and accepted by the or in the near future according to the Harmonization Working Group (AWO Aviation Rulemaking Advisory Hamilton Municipal Airport Layout HWG) presents recommendations to Committee (ARAC). This notice tells the Plan. ARAC. By March 2004, the Group will The Fair Market Value of the land will public of the activities of ARAC. complete and document in a technical be paid to the Village of Hamilton to be FOR FURTHER INFORMATION CONTACT: report the activity underway to used for the capital development of Kathy Abbott, Federal Aviation harmonize low visibility operating Hamilton Municipal Airport. Administration, Regulation and minima between Europe and the United Any comments the agency receives Certification, 800 Independence Ave., States. will be considered as a part of the SW., Washington, DC 20591; telephone: ARAC Acceptance of Task decision. 202–267–7192. SUPPLEMENTARY INFORMATION: ARAC has accepted the task and has DATES: Comments must be received on chosen to assign the task to the All or before December 26, 2003. Background Weather Operations Harmonization ADDRESSES: Comments on this The FAA established the Aviation Working Group. Because a new task is application may be mailed or delivered Rulemaking Advisory Committee to being assigned to the working group, in triplicate to the FAA at the following provide advice and recommendations to membership will be reopened. The address: Philip Brito, Manager, FAA the FAA Administrator, through the working group will serve as staff to New York Airports District Office, 600 Associate Administrator for Regulation ARAC to aid ARAC in the analysis of Old Country Road, Suite 446, Garden and Certification, on the full range of the assigned task. Working group City, New York 11530. the FAA’s rulemaking activities about recommendations must be reviewed and In addition, one copy of any aviation-related issues. This includes approved by ARAC. If ARAC accepts the comments submitted to the FAA must getting advice and recommendations on working group’s recommendations, it be mailed or delivered to Mr. Charles the FAA’s commitment to harmonize its forwards them to the FAA as ARAC Getchonis, Mayor, Hamilton, New York, Federal Aviation Regulations (FAR) and recommendations. at the following address: Mr. Charles practices with its trading partners in Getchonis, Mayor, Village of Hamilton, Europe and Canada. Working Group Activity P.O. Box 119, 3 Broad Street, Hamilton, One area ARAC deals with is air The All Weather Operations New York 13346. carrier operations issues. These issues Harmonization Working Group is FOR FURTHER INFORMATION CONTACT: Mr. involve the operational requirements for expected to comply with the procedures Philip Brito, Manager, New York air carriers, including crewmember adopted by ARAC. As part of the

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procedures, the working group is assistant executive director, and the Issued in Washington, DC, on November expected to: working group chair. 20, 2003. 1. Recommend a work plan for The Secretary of Transportation has Robert Zoldos, completion of the tasks, including the determined the formation and use of FAA System Engineer, RTCA Advisory reason supporting such a plan. The Committee. ARAC is necessary and in the public work plan should be presented for interest in connection with the [FR Doc. 03–29595 Filed 11–25–03; 8:45 am] consideration at the first meeting of the performance of duties imposed on the BILLING CODE 4910–13–M ARAC on air carrier operations issues FAA by law. held following publication of this notice. Meetings of ARAC will be open to the DEPARTMENT OF TRANSPORTATION 2. Give a detailed presentation of the public. Meetings of the All Weather proposed recommendations, before Operations Harmonization Working Federal Aviation Administration continuing with the work stated in item Group will not be open to the public, 3 below. except to the extent those individuals Change Notice for RTCA Program 3. For each task, draft suitable with an interest and expertise are Management Committee documents with supporting analyses. selected to participate. No public AGENCY: Federal Aviation Draft any other related material or announcement of working group Administration (FAA), DOT. collateral documents the working group meetings will be made. ACTION: determines to be suitable. Notice of RTCA Program Issued in Washington, DC, on November 4. Provide a status report at each Management Committee meeting. 17, 2003. meeting of ARAC held to consider air Anthony F. Fazio, SUMMARY: The FAA is issuing this notice carrier operations issues. to advise the public of a meeting of the Executive Director, Aviation Rulemaking Participation in the Working Group Advisory Committee. RTCA Program Management Committee. The All Weather Operations [FR Doc. 03–29450 Filed 11–25–03; 8:45 am] DATES: The meeting will be held December 9, 2003 starting at 9 a.m. Harmonization Working Group will be BILLING CODE 4910–13–P composed of technical experts having ADDRESSES: The meeting will be held at an interest in the assigned task. A RTCA, Inc., 1828 L Street, NW., Suite working group member need not be a DEPARTMENT OF TRANSPORTATION 805, Washington, DC 20036. representative of a member of the full FOR FURTHER INFORMATION CONTACT: committee. Federal Aviation Administration RTCA Secretariat, 1828 L. Street, NW., An individual who has expertise in Suite 850, Washington, DC 20036; the subject matter and wishes to become RTCA Government/Industry Free Flight telephone (202) 833–9339; fax (202) a member of the working group should Steering Committee Meeting 833–9434; Web site http://www.rtca.org. write to the person listed under the SUPPLEMENTARY INFORMATION: Pursuant FOR FURTHER INFORMATION AGENCY: Federal Aviation caption to section 10(a)(2) of the Federal CONTACT Administration (FAA), DOT. expressing that desire, Advisory Committee Act (Pub. L. 92– describing his or her interest in the ACTION: Notice of RTCA/Industry Free 463, 5 U.S.C., Appendix 2), notice is tasks, and stating the expertise he or she Flight Steering Committee meeting. hereby given for a Program Management would bring to the working group. All Committee meeting. The revised agenda requests to participate must be received will include: by December 10, 2003. The assistant SUMMARY: The FAA is issuing this notice to advise the public of a meeting of the • December 9: chair, the assistant executive director, • and the working group chair will review RTCA Government/Industry Free Flight Opening Session (Welcome and the requests, and the individuals will be Steering Committee. Introductory Remarks, Review/ Approve Summary of Previous advised whether the request can be DATES: The meeting will be held Meeting) granted. December 4, 2003, 1–3 p.m. • Individuals chosen for membership Publication Consideration/ on the working group will be expected ADDRESSES: The meeting will be held at Approval: • to represent their aviation community FAA Headquarters, 800 Independence Final Draft, Aircraft Surveillance segment and participate actively in the Avenue, SW., Bessie Coleman Applications (ASA) MASPS, RTCA working group (for example, attend all Conference Center (Rm. 2AB), Paper No. 208–03/PMC–303, meetings, provide written comments Washington, DC, 20591. prepared by SC–186. • when asked to do so, etc.). They also Discussion: FOR FURTHER INFORMATION CONTACT: (1) • will be expected to devote the resources Special Committee 147, TCAS RTCA Secretariat, 1828 L Street, NW., • Discuss/Approve Revised Terms of necessary to ensure the ability of the Suite 805, Washington, DC 20036; working group to meet any assigned Reference telephone (202) 833–9339; fax (202) • deadline(s). Members are expected to Special Committee 181 833–9434; Web site http://www.rtca.org. • keep their management chain advised of Final Report • working group activities and decisions SUPPLEMENTARY INFORMATION: Pursuant Special Committee Chairman’s to ensure the agreed technical solutions to section 10(a)(2) of the Federal Report • do not conflict with their sponsoring Advisory Committee Act (Pub. L. 92– Action Item Review: • organization’s position when the subject 463, 5 U.S.C., appendix 2), notice is Review/Status—All open action being negotiated is presented to ARAC hereby given for Free Flight Steering items • for a vote. Committee meeting. Note: Non- Closing Session (Other Business, Once the working group has begun Government attendees to the meeting Document Production, Date and deliberations, members will not be must go through security and be Place of Next Meeting, Adjourn) added or substituted without the escorted to and from the conference Attendance is open to the interested approval of the assistant chair, the room. public but limited to space availability.

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With the approval of the chairmen, • December 9: 463, 5 U.S.C., Appendix 2), notice is members of the public may present oral • Presentations hereby given for a Special Committee statements at the meeting. Persons • Subgroup 4 (Continue previous day 186 meeting. Note: Specific working wishing to present statements or obtain activities) group sessions will be held on December information should contact the person • December 10: 1, 2, 3, 4, & 5. The plenary agenda will • listed in the FOR FURTHER INFORMATION Subgroup 4 (Continue previous day include: CONTACT section. Members of the public activities) • December 5; may present a written statement to the • Metadata Review committee at any time. • December 11: • Opening Plenary Session • Issued in Washington, DC, on November 6, Subgroup 4 (Continue previous day (Chairman’s Introductory Remarks, 2003. activities) Review of Meeting Agenda, Review/ • Robert Zoldos, December 12: Approval of Previous Meeting • Closing Plenary Session (Summary FAA System Engineer, RTCA Advisory Summary) Committee. of Subgroup 4, Assign Tasks, Other • SC–186 Activity Reports Business, Date and Place of Next [FR Doc. 03–29456 Filed 11–25–03; 8:45 am] • Meeting, Adjourn) WG–1, Operations & BILLING CODE 4910–13–M Attendance is open to the interested Implementation public but limited to space availability. • WG–2, Traffic Information DEPARTMENT OF TRANSPORTATION With the approval of the chairmen, Service—Broadcast (TIS–B) members of the public may present oral • WG–3, 1090 MHz Minimum statements at the meeting. Persons Federal Aviation Administration Operational Performance Standard wishing to present statements or obtain (MOPS) RTCA Special Committee 193/ information should contact the person EUROCAE Working Group 44: Terrain listed in the FOR FURTHER INFORMATION • WG–4, Application Technical and Airport Databases CONTACT section. Members of the public Requirements may present a written statement to the • AGENCY: WG–5, Universal Access Federal Aviation committee at any time. Administration (FAA), DOT. Transceiver (UAT) MOPS Issued in Washington, DC on November 10, • ACTION: Notice of RTCA Special WG–6, Automatic Dependent 2003. Committee 193/EUROCAE Working Surveillance-Broadcast (ADS–B) Group 44 meeting. Robert Zoldos, Minimum Aviation System FAA System Engineer, RTCA Advisory Performance Standards (MASPS) SUMMARY: The FAA is issuing this notice Committee. • Review Status-Requirements Focus to advise the public of a meeting of [FR Doc. 03–29454 Filed 11–25–03; 8:45 am] Group RTCA Special Committee 193/ BILLING CODE 4910–13–M EUROCAE Working Group 44: Terrain • EUROCAE WG–51 Activity Report and Airport Databases. • Briefing-Australian ADS–B air- DATES: The meeting will be held DEPARTMENT OF TRANSPORTATION ground December 8–12, 2003 from 9 a.m.–5 Federal Aviation Administration • Review SC–186 Terms of Reference- p.m. Revision 9 RTCA Special Committee 186: ADDRESSES: The meeting will be held at • Closing Plenary Session (Date, Place Automatic Dependent Surveillance— RTCA Inc., 1828 L Street, NW., Suite and Time of Next Meeting, Other Broadcast (ADS–B) 805, Washington, DC 20036. Business, Review Actions Items/ FOR FURTHER INFORMATION CONTACT: (1) AGENCY: Federal Aviation Work Program, Adjourn) RTCA Secretariat, 1828 L Street, NW., Administration (FAA), DOT. Suite 805, Washington, DC 20036; Attendance is open to the interested ACTION: Notice of RTCA Special telephone (202) 833–9339; fax (202) public but limited to space availability. Committee 186 meeting. 833–9434; Web site http://www.rtca.org. With the approval of the chairmen, members of the public may present oral SUPPLEMENTARY INFORMATION: Pursuant SUMMARY: The FAA is issuing this notice statements at the meeting. Persons to section 10(a)(2) of the Federal to advise the public of a meeting of Advisory Committee Act (Pub. L. 92– RTCA Special Committee 186: wishing to present statements or obtain 463, 5 U.S.C., Appendix 2), notice is Automatic Dependent Surveillance— information should contact the person hereby given for a Special Committee Broadcast (ADS–B) listed in the FOR FURTHER INFORMATION CONTACT section. Members of the public 193/EUROCAE Working Group 44 DATES: The meeting will be held may present a written statement to the meeting. The agenda will include: December 1–5, 2003 starting at 9 a.m. • December 8: (unless stated otherwise). committee at any time. • Opening Plenary Session (Welcome ADDRESSES: The meeting will be held at Issued in Washington, DC, on November 6, and Introductory Remarks, Review/ RTCA, Inc., 1828 L Street, NW., Suite 2003. Approval of Meeting Agenda, 805, Washington, DC 20036. Robert Zoldos, Review Summary of Previous Meeting) FOR FURTHER INFORMATION CONTACT: FAA System Engineer, RTCA Advisory • Subgroup 4 (Database Exchange RTCA Secretariat, 1828 L Street, NW., Committee. Format) Suite 805, Washington, DC 20036; [FR Doc. 03–29455 Filed 11–25–03; 8:45 am] • Resolution of Action Items telephone (202) 833–9339; fax (202) BILLING CODE 4910–13–M • Feature catalogue review 833–9434; Web site http://www.rtca.org. —Aerodrome database SUPPLEMENTARY INFORMATION: Pursuant —Terrain database to section 10(a)(2) of the Federal —Obstacle database Advisory Committee Act (Pub. L. 92–

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DEPARTMENT OF TRANSPORTATION impose and use a PFC submitted by the DEPARTMENT OF TRANSPORTATION County of Mercer was substantially Federal Aviation Administration completed within the requirements of Research and Special Programs § 158.25 of part 158. The FAA will Administration Notice to Intend to Rule on Application approve or disapprove the application, 04–02–C–00–TTN to Impose and Use in whole or in part, no later than March Office of Hazardous Materials Safety; the revenue from a Passenger Facility 12, 2004. Notice of Applications for Exemptions Charge (PFC) at Trenton Mercer The following is a brief overview of Airport, West Trenton, NJ the application: AGENCY: Research and Special Programs AGENCY: Federal Aviation Application Number: 04–02–C–00– Administration, DOT. Administration (FAA), DOT. TTN. Level of Proposed PFC: $4.50. ACTION: List of applicants for ACTION: Notice to intend to rule on Proposed Charge Effective Date: exemptions. application. January 1, 2004. SUMMARY: The FAA proposes to rule an Proposed Charge Expiration Date: SUMMARY: In accordance with the invites public comment on the September 1, 2013. procedures governing the application application to impose and use a PFC at Total Estimated PFC Revenue: for, and the processing of, exemptions Trenton Mercer Airport under the $1,061,436. from the Department of Transportation’s provisions of the Aviation Safety and Brief Description of Proposed Projects Hazardous Materials Regulations (49 Capacity Act of 1990 (Title IX of the CFR Part 107, Subpart B), notice is Omnibus Budget Reconciliation Act of —Construct Taxiway ‘‘E’’— hereby given that the Office of 1990) (Pub. L. 101–508) and part 158 of Construction Only Hazardous Materials Safety has received —Airport Planning Studies the Federal Aviation Regulations (14 the applications described herein. Each —Acquire ARFF Safety Equipment CFR part 158). mode of transportation for which a —Install Airport Lighting DATES: Comments must be received on —Acquire Airport Snow Sweeper particular exemption is requested is or before December 26, 2003. —Install Airfield Guidance Signage indicated by a number in the ‘‘Nature of ADDRESSES: Comments on this —Construct Taxiway ‘‘G’’ Application’’ portion of the table below Application may be mailed or delivered —Remove Obstructions—Runway 24 as follows: 1—Motor vehicle, 2—Rail in triplicate to the FAA at the following RPZ— freight, 3—Cargo vessel, 4—Cargo address: Mr. Dan Vornea, Project —Improve Terminal Building aircraft only, 5—Passenger-carrying Manager, New York District Office, 600 —Improve Runway 6–24 aircraft. Old Country Road, Suite 446, Garden —Rehabilitate Taxiways ‘‘A’’, ‘‘C’’ and City, NY 11530. Partial ‘‘D’’—State Funding Only DATES: Comments must be received on In addition, one copy of any —Rehabilitate Runway 16–34 or before December 25, 2003. comments submitted to the FAA must —Conduct Environmental ADDRESSES: Records Center, Research be mailed or delivered to Mr. Justin P. Assessment—Terminal Building and Special Programs Administration, Edwards, Airport Manager, of the and Other Miscellaneous Projects U.S. Department of Transportation, Trenton Mercer Airport at the following —Acquire ARFF Vehicles Washington, DC 20590. addresses: Trenton Mercer Airport, —Improve Runway Safety Areas— Terminal Building, Sam Weinroth Road, Phase I Comments should refer to the West Trenton, NJ 08628. —Security Enhancements application number and be submitted in Air carriers and foreign air carriers —Construct Snow Removal triplicate. If confirmation of receipt of may submit copies of their written Building—Phase I—Design Only comments is desired, include a self- comments previously provided to —PFC Application Services addressed stamped postcard showing Trenton Mercer Airport under § 158.23 Class or classes of air carriers which the exemption application number. of part 158. the public agency has requested not to FOR FURTHER INFORMATION CONTACT: FOR FURTHER INFORMATION CONTACT: Dan be required to collect PFS’s are : Non- Copies of the applications (See Docket Vornea, Project Manager, New York Scheduled/On Demand Air Carriers Airports District office, 600 Old Country filing FAA Form 1800–31. Number) are available for inspection at Road, Suite 446, Garden City, NY 11530, Any person may inspect the the New Docket Management Facility, Telephone No. (516) 227–3812. The Application in person at the FAA office PL–401, at the U.S. Department of application may be reviewed in person listed above under FOR FURTHER Transportation, Nassif Building, 400 7th at this same location. INFORMATION CONTACT and at the FAA Street, SW., Washington, DC 20590 or at Regional Office: 1 Aviation Plaza, SUPPLEMENTARY INFORMATION: http://dms.dot.gov. The FAA Jamaica, NY 11434–4809. proposes to rule and invites public In addition, any person may, upon This notice of receipt of applications comment on the application to impose request, inspect the application notice for new exemptions is published in and use a PFC at Trenton Mercer and other documents germane to the accordance with Part 107 of the Federal Airport under the provisions of the application in person at the Trenton hazardous materials transportation law Aviation Safety and Capacity Expansion Mercer Airport. (49 U.S.C. 5117(b); 49 CFR 1.53(b)). Act of 1990 (Title IX of the Omnibus Issued in Washington, DC, on November Budget Reconciliation Act of 1990) Issued in Garden City, New York, on 20, 2003. (Pub. L. 101–508) and part 158 of the November 13, 2003. Federal Aviation Regulations (14 CFR Philip Brito, R. Ryan Posten, part 158). Manager, NYADO, Eastern Region. Exemptions Program Officer, Office of On November 13, 2003 the FAA [FR Doc. 03–29453 Filed 11–25–03; 8:45 am] Hazardous Materials Exemptions and determined that the application to BILLING CODE 4910–13–M Approvals.

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NEW EXEMPTIONS

No. No. Applicant Regulation(s) Affected Nature of Exemption Thereof

13302–N ...... FIBA Technologies, Inc., 49 CFR 180.211 ...... To authorize the rethreading of the outside neck of Westboro, MA. DOT–3AX and DOT–3AAX cylinders for continued use on motor vehicles. (mode 1) 13314–N ...... Sunoco Inc., Philadelphia, 49 CFR 177.834(h) ...... To authorize the discharge of Division 6.1 liquids PA. from a DOT 51 portable tanks without removing the tanks from the vehicle on which it is trans- ported. (mode 1) 13319–N ...... Dow AgroSciences L.L.C., 49 CFR 173.301 (f)(1) ..... To authorize the transportation in commerce of sul- Indianapolis, IN. furyl fluoride, a Division 2.3, Hazardous Zone D liquefied gas, in DOT specification and certain non-DOT specification cylinders that are not fitted with a pressure relief device. (modes 1, 2, 3) 13320–N ...... Bowgen Fuel Systems, 49 CFR 173.302, To authorize the manufacture, mark, sale and use of Inc., Springfield, MO. 173.302a. certain non-DOT specification fiber reinforced plastic hoop wrapped cylinders horizontally mount- ed and secured to a motor vehicle for use in transporting compressed natural gas. (mode 1) 13321–N ...... Quest Diagnostics, Inc., 49 CFR 173.28(b)(3) ...... To authorize the transportation in commerce of in- Collegeville, PA. fectious substances, Division 6.2, in reused specification UN 5L3 textile bags. (mode 1, 4) 13322–N ...... UXB International Inc., 49 CFR 172.320, To authorize the transportation in commerce for dis- Ashburn, VA. 173.54(a), 173.56(b), posal purposes of certain waste hazardous mate- 173.58. rials, in non-bulk packaging, by private vehicle for short distances in a specially designed bomb-disposal trailer as the outer packaging. (mode 1) 13324–N ...... Kidde Aerospace, Wilson, 49 CFR 173.301 (f)(3) ..... To authorize the transportation in commerce of cer- NC. tain fire extinguishers with a lower relief pressure than presently authorized. (modes 1, 3, 4, 5) 13325–N ...... Air Products and Chemi- 49 CFR 173.301 (f)(3), To authorize the transportation in commerce of cer- cals, Inc., Allenton, PA. 180.250(c)(4). tain hazardous materials in certain DOT specification seamless steel cylinders equipped with CG–4 style pressure relief devices with rupture disk at 3360 psig. (modes 1, 2, 3) 13326–N ...... Precision Technik, Inc., 49 CFR 173, 202, To authorize the manufacture, marking, sale and use Atlanta, GA. 173.201, 173.203, of a non-DOT specification, full opening head sal- 173.30(f)(1), 173.302, vage cylinder for overpacking damaged or leaking 173.304. cylinders. (mode 1) 13327–N ...... Hawk Corp., Ardmore, OK 49 CFR 172.101, B15 ...... To authorize the manufacture, mark, sale and use of non-DOT specification cargo tank motor vehicles constructed from glass fiber reinforced plastics for use in transporting certain hazardous materials. (mode 1) 13328–N ...... USDA Forest Service Mis- 49 CFR 173.203(c) ...... To authorize the transportation in commerce of non- soula, MT. specification packaging for use in transporting Class 3 hazardous materials. (mode 1) 13330–N ...... Oilphase Division, 49 CFR 173.201(c), To authorize the transportation in commerce of cer- Schlumberger Eval. & 173.202(c), 173.203(c), tain flammable gases in a non-DOT specification Production Dyce, Aber- 173.301(d), 173.304(a) cylinder used for oil well sampling. (modes 1, 2, 3, deen, Scotland, UK. & (d), 175.3. 4)

[FR Doc. 03–29458 Filed 11–25–03; 8:45 am] SUMMARY: In accordance with the materials, packaging design changes, BILLING CODE 4910–60–M procedures governing the application additional mode of transportation, etc.) for, and the processing of, exemptions are described in footnotes to the from the Department of Transportation’s application number. Application DEPARTMENT OF TRANSPORTATION Hazardous Materials Regulations (49 numbers with the suffix ‘‘M’’ denote a CFR Part 107, Subpart B), notice is modification request. These Research and Special Programs hereby given that the Office of applications have been separated from Administration Hazardous Materials Safety has received the new applications for exemptions to the applications described herein. This facilitate processing. Office of Hazardous Materials Safety; notice is abbreviated to expedite DATES: Notice of Applications for Modification Comments must be received on docketing and public notice. Because or before December 11, 2003. of Exemption the sections affected, modes of transportation, and the nature of ADDRESS COMMENTS TO: Records Center, AGENCY: Research and Special Programs application have been shown in earlier Research and Special Programs Administration of Exemption, DOT. Federal Register publications, they are Administration, U.S. Department of Transportation, Washington, DC 20590. ACTION: List of applications for not repeated here. Requests for modification of exemptions. modifications of exemptions (e.g. to Comments should refer to the provide for additional hazardous application number and be submitted in

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triplicate. If confirmation of receipt of Washington, DC or at http:// Issued in Washington, DC, on November comments is desired, include a self- dms.dot.gov. 20, 2003. addressed stamped postcard showing This notice of receipt of applications R. Ryan Posten, the exemption number. for modification of exemptions is Exemptions Program Officer, Office of FOR FURTHER INFORMATION CONTACT: published in accordance with Part 107 Hazardous Materials, Exemptions and Copies of the applications are available of the Federal hazardous materials Approvals. for inspection in the Records Center, transportation law (49 U.S.C. 5117(B); Nassif Building, 400 7th Street SW., 49 CFR 1.53B(b)).

Application Modification No. Docket No. Applicant of exemption

7073–M ...... Ethyl Corporation, Richmond, VA (See Footnote 1) ...... 7073 8650–M ...... Ethyl Corporation, Richmond, VA (See Footnote 2) ...... 8650 9149–M ...... Ethyl Corporation, Richmond, VA (See Footnote 3) ...... 9149 9548–M ...... Ethyl Corporation, Richmond, VA (See Footnote 4) ...... 9548 10798–M ...... Albemare Corporation, Baton Rouge, LA (See Footnote 5) ...... 10798 11993–M ...... RSPA–97–3100 ...... Key Safety Systems, Inc., Lakeland, FL (See Footnote 6) ...... 11993 12124–M ...... RSPA–98–4309 ...... Albemarle Corporation, Baton Rouge, LA (See Footnote 7) ...... 12124 12706–M ...... RSPA–01–9731 ...... Raufoss Composites AS, Raufoss, NO (See Footnote 8) ...... 12706 13135–M ...... RSPA–02–13521 ...... Space Systems/LORAL Palo Alto, CA (See Footnote 9) ...... 13135 1 To modify the exemption to authorize an ultrasonic thickness test/visual inspection in place of the periodic internal inspection of the non-DOT specification portable tanks. 2 To modify the exemption to authorize an ultrasonic thickness test/visual inspection in place of the periodic internal inspection of the non-DOT specification portable tanks. 3 To modify the exemption to authorize an ultrasonic thickness test/visual inspection in place of the periodic internal inspection of the non-DOT specification portable tanks. 4 To modify the exemption to authorize an ultrasonic thickness test/visual inspection in place of the periodic internal inspection of the non-DOT specification portable tanks. 5 To modify the exemption to authorize the transportation of an additional Class 3 material in DOT Specification tank cars allowed to remain standing with unloading connections attached. 6 To modify the exemption to authorize additional marking, welding and brazing requirements of the non-DOT specification cylinders for use as components of auto vehicle safety systems and an increased service pressure from 6,000 psig to 9,000 psig. 7 To modify the exemption to authorize the transportation of an additional Division 4.3 material in non-DOT specification stainless steel portable tanks. 8 To modify the exemption to authorize the use of tapered threads and update design sizes, drawings, cycle testing of the non-DOT specification fully-wrapped fiberglass composite cylinders with thermoplastic liners. 9 To modify the exemption to authorize an increased tank pressure from 275 psig to 2,000 psig for the satellite assembly containing a non- DOT specification pressure vessel.

[FR Doc. 03–29459 Filed 11–25–03; 8:45 am] Contact: Mac Frampton, (202) 565– approximately 13.2 miles of CSXT’s BILLING CODE 4910–60–M 1541. P&W Subdivision in Allegheny County—(a) from milepost BG–1.0 at Vernon A. Williams, Field to milepost BG–10.4 at Glenshaw, Secretary. DEPARTMENT OF TRANSPORTATION (b) the No. 2 Main from milepost BF– [FR Doc. 03–29564 Filed 11–25–03; 8:45 am] 322.8 at Glenwood Junction to Surface Transportation Board BILLING CODE 4915–00–P approximately milepost BF–326 at East Schenley, (c) a portion of the Glenwood Release of Waybill Data DEPARTMENT OF TRANSPORTATION Yard to be agreed upon jointly, and (d) from milepost 0.75 1 of the River Branch The Surface Transportation Board has Surface Transportation Board near 33rd Street in Pittsburgh, extending received a request from Covington & southwesterly to its end at milepost Burling on behalf of Union Pacific [STB Finance Docket No. 34431] 1.35. AVR will also acquire Corporation (WB468–5—11/18/03), for approximately 1.9 miles of local permission to use certain data from the Allegheny Valley Railroad Company- trackage rights over CSXT’s No. 1 Main Board’s Carload Waybill Samples. A Lease, Operation and Trackage Rights from East Schenley to Field to provide copy of the request may be obtained Exemption—Lines of CSX freight service to customers on the line from the Office of Economics, Transportation, Inc. and connect the leased segment that Environmental Analysis, and ends at East Schenley and the segment Administration. Allegheny Valley Railroad Company (AVR) a Class III rail carrier, has filed a that begins at Field. The waybill sample contains verified notice of exemption under 49 AVR certifies that its projected confidential railroad and shipper data; CFR 1150.41 to lease and operate certain revenues as a result of this transaction therefore, if any parties object to these rail line segments and acquire related will not result in the creation of a Class requests, they should file their trackage rights, pursuant to an II or Class I rail carrier. objections with the Director of the agreement with CSX Transportation, Board’s Office of Economics, Inc. (CSXT), as follows: (1) 1 AVR currently leases and operates a portion of Environmental Analysis, and Approximately 33.1 miles of CSXT’s the River Branch extending from milepost 0.0 near Administration within 14 calendar days W&P Subdivision from milepost BO–5.0 43rd Street to milepost 0.75 near 33rd Street. See of the date of this notice. The rules for Allegheny Valley Railroad Company-Lease and at Glenwood Junction to milepost BO– Operation Exemption-Line of CSX Transportation, release of waybill data are codified at 49 38.1 at Washington, in Allegheny and Inc., STB Finance Docket No. 34095 (STB served CFR 1244.9. Washington Counties, PA; and (2) Sept. 27, 2001).

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Consummation of the transaction was carrier, and that such revenues will not Certificates of Authority expire on scheduled to take place on or soon after exceed $5 million annually. June 30 each year, unless revoked prior November 7, 2003, the effective date of The transaction was scheduled to be to that date. The Certificates are subject the exemption. consummated on or after November 5, to subsequent annual renewal as long as The notice is filed under 49 CFR 2003 (7 days after the exemption was the companies remain qualified (31 CFR 1150.41. If the notice contains false or filed). part 223). A list of qualified companies misleading information, the exemption If the verified notice contains false or is published annually as of July 1 in is void ab initio. Petitions to revoke the misleading information, the exemption Treasury Department Circular 570, with exemption under 49 U.S.C. 10502(d) is void ab initio. Petitions to revoke the details as to underwriting limitations, may be filed at any time. The filing of exemption under 49 U.S.C. 10502(d) areas in which licensed to transact a petition to revoke will not may be filed at any time. The filing of business and other information. automatically stay the transaction. a petition to revoke will not The Circular may be viewed and An original and 10 copies of all automatically stay the transaction. downloaded through the Internet at pleadings, referring to STB Finance An original and 10 copies of all http://www.fms.treas.gov/c570. A hard Docket No. 34431, must be filed with pleadings, referring to STB Finance copy may be purchased from the the Surface Transportation Board, 1925 Docket No. 34349, must be filed with Government Printing Office (GPO) K Street, NW., Washington, DC 20423– the Surface Transportation Board, 1925 Subscription Service, Washington, DC, 0001. In addition, a copy of each K Street, NW., Washington, DC 20423– Telephone (202) 512–1800. When pleading must be served on Keith G. 0001. In addition, a copy of each ordering the Circular from GPO, use the O’Brien, 1707 L Street, NW., Suite 570, pleading must be served on Thomas F. following stock number: 769–004– Washington, DC 20036. McFarland, P.C., 208 South LaSalle 04643–2. Board decisions and notices are Street, Suite 1890, Chicago, IL 60604– Questions concerning this Notice may available on our Web site at http:// 1112. be directed to the U.S. Department of www.stb.dot.gov. Board decisions and notices are the Treasury, Financial Management available on our Web site at Service, Financial Accounting and Decided: November 19, 2003. www.stb.dot.gov. By the Board, David M. Konschnik, Services Division, Surety Bond Branch, Director, Office of Proceedings. Decided: November 19, 2003. 3700 East-West Highway, Room 6F07, Vernon A. Williams, By the Board, David M. Konschnik, Hyattsville, MD 20782. Director, Office of Proceedings. Secretary. Dated: November 14, 2003. Vernon A. Williams, [FR Doc. 03–29407 Filed 11–25–03; 8:45 am] Wanda J. Rogers, Secretary. BILLING CODE 4915–00–P Director, Financial Division, Financial [FR Doc. 03–29565 Filed 11–25–03; 8:45 am] Management Service. BILLING CODE 4915–00–P [FR Doc. 03–29494 Filed 11–25–03; 8:45 am] DEPARTMENT OF TRANSPORTATION BILLING CODE 4810–35–M Surface Transportation Board DEPARTMENT OF THE TREASURY DEPARTMENT OF THE TREASURY [STB Finance Docket No. 34349] Fiscal Service Internal Revenue Service Wallowa-Union Railroad Authority- Surety Companies Acceptable on Acquisition and Operation Exemption- Federal Bonds: Continental Heritage [IA–57–94] Wallowa County, OR, and Idaho Insurance Company Northern & Pacific Railroad Company Proposed Collection: Comment AGENCY: Financial Management Service, Request for Regulation Project; Wallowa-Union Railroad Authority Fiscal Service, Department of the Correction (Authority), a noncarrier, has filed a Treasury. AGENCY: notice of exemption, as supplemented ACTION: Notice. Internal Revenue Service (IRS), by letter dated October 29, 2003, under Treasury. 49 CFR 1150.31 to acquire and operate SUMMARY: This is Supplement No. 4 to ACTION: Correction to notice and request a 62.58-mile line of railroad extending the Treasury Department Circular 570; for comments. between milepost 21.0 at or near Elgin 2003 Revision, published July 1, 2003, and milepost 83.58 at or near Joseph, in at 68 FR 39186. SUMMARY: This document contains a Wallowa and Union Counties, OR. The SUPPLEMENTARY INFORMATION: A correction to a notice and request for subject line of railroad is owned by Certificate of Authority as an acceptable comments, which was published in the Wallowa County, OR (County), and surety on Federal bonds is hereby Federal Register on Monday September operated by Idaho Northern & Pacific issued to the following Company under 22, 2003 (68 FR 55101). This notice Railroad Company (INPR). Under the 31 U.S.C. 9304 to 9308. Federal bond- relates to a comment request on proposed transaction, Authority would approving officers should annotate their proposed and/or continuing information acquire INPR’s right to operate over the reference copies of the Treasury Circular collections, as required by the line and County’s ownership interest in 570, 2003 Revision, on page 39196 to Paperwork Reduction Act of 1995, Pub. the line.1 Authority certifies that its reflect this addition: L. 104–13 (44 U.S.C. 3506 (c)(2)(A)). projected annual revenues as a result of Company Name: Continental Heritage FOR FURTHER INFORMATION CONTACT: this transaction do not exceed those that Insurance Company. Allan Hopkins, (202) 622–6665 (not a would qualify it as a Class III rail Business Address: PO Box 163340, toll free number). Columbus Ohio 43216–3340. Phone: SUPPLEMENTARY INFORMATION: 1 See Wallowa County, Oregon-Acquisition and (614) 895–2000. Underwriting Operation Exemption-Rail Line of Idaho Northern & Background Pacific Railroad Company Between Elgin and Limitation b/: $564,000. Surety Licenses Joseph, OR, STB Finance Docket No. 34214 (STB c/: CA, FL, ID, IL, MD, NV, ND, OH, TN, This notice and request for comments served June 17, 2002). TX, UT. Incorporated in: Ohio. that is the subject of the correction is

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required by the Paperwork Reduction December 17, 2003, in Room 4200E SUMMARY: The Department of Veterans Act of 1995, Pub. L. 104–13 (44 U.S.C. beginning at 10:30 a.m., Franklin Court Affairs (VA) hereby gives notice of the 3506(c)(2)(A)). Building, 1099 14th Street, NW., weighted average poverty threshold Washington, DC 20005. established for 2002 for one person Need for Correction FOR FURTHER INFORMATION CONTACT: (unrelated individual) as established by As published, the comment request Karen Carolan, C:AP:AS, 1099 14th the Bureau of the Census. The amount for Regulation Project (IA–57–94) Street, NW., Washington, DC 20005. is $9,183. contains an error which may prove to be Telephone (202) 694–1861 (not a toll DATES: For VA determinations, the 2002 misleading and is in need of free number). clarification. poverty threshold is effective October SUPPLEMENTARY INFORMATION: Notice is 14, 2003, the date on which it was Correction of Publication hereby given pursuant to section established by the Bureau of the Census. 10(a)(2) of the Federal Advisory Accordingly, the publication of the Committee Act, 5 U.S.C. App. (1988), FOR FURTHER INFORMATION CONTACT: Paul comment request for Regulation Project, that a closed meeting of the Art Trowbridge, Consultant, Compensation (IA–57–94), which was the subject of FR Advisory Panel will be held on and Pension Service, Veterans Benefits Doc. 03–24137, is corrected as follows: December 17, 2003, in Room 4200E Administration, Department of Veterans On page 55101, column 2, under the beginning at 10:30 a.m., Franklin Court Affairs, 810 Vermont Avenue, NW., caption SUPPLEMENTARY INFORMATION:, Building, 1099 14th Street, NW., Washington, DC 20420, (202) 273–7218. line 2, the language ‘‘OMB Number: Washington, DC 20005. SUPPLEMENTARY INFORMATION: We 1545–14499’’ is corrected to read ‘‘OMB The agenda will consist of the review published a final rule amending 38 CFR Number: 1545–1449’’. and evaluation of the acceptability of 4.16(a) in the Federal Register of August fair market value appraisals of works of Cynthia E. Grigsby, 3, 1990, 55 FR 31579. The amendment art involved in Federal income, estate, Acting Chief, Publications and Regulations provided that marginal employment or gift tax returns. This will involve the Branch, Legal Processing Division, Associate generally shall be deemed to exist when discussion of material in individual tax Chief Counsel (Procedure and a veteran’s earned annual income does Administration). returns made confidential by the not exceed the amount established by provisions of 26 U.S.C. 6103. [FR Doc. 03–29603 Filed 11–25–03; 8:45 am] the Bureau of the Census as the poverty BILLING CODE 4830–01–P A determination as required by section 10(d) of the Federal Advisory threshold for one person. The Committee Act has been made that this provisions of 38 CFR 4.16(a) use the poverty threshold as a standard in DEPARTMENT OF THE TREASURY meeting is concerned with matters listed in section 552b(c)(3), (4), (6), and (7), defining marginal employment when Internal Revenue Service and that the meeting will not be open considering total disability ratings for to the public. compensation based on unemployability Art Advisory Panel—Notice of Closed of an individual. We stated we would Meeting Dated: publish subsequent poverty threshold David B. Robison, figures as notices in the Federal AGENCY: Internal Revenue Service, Chief, Appeals. Register. Treasury. [FR Doc. 03–29604 Filed 11–25–03; 8:45 am] The Bureau of the Census recently ACTION: Notice of closed meeting of Art BILLING CODE 4830–01–P published the weighted average poverty Advisory Panel. thresholds for 2002. The threshold for SUMMARY: Closed meeting of the Art one person (unrelated individual) is DEPARTMENT OF VETERANS $9,183. Advisory Panel will be held in AFFAIRS Washington, DC. Dated: November 19, 2003. DATES: The meeting will be held Poverty Threshold Anthony J. Principi, December 17, 2003. Secretary of Veterans Affairs. AGENCY: Department of Veterans Affairs. ADDRESSES: The closed meeting of the [FR Doc. 03–29460 Filed 11–25–03; 8:45 am] ACTION: Notice. Art Advisory Panel will be held on BILLING CODE 8320–01–P

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Part II

Governmentwide Debarment and Suspension (Nonprocurement), and Requirements for Drug-Free Workplace (Grants); Rules (Final and Interim Final)

Office of Personnel Management Department of Agriculture Department of Energy Export-Import Bank Small Business Administration National Aeronautics and Space Administration Department of Commerce Social Security Administration Office of National Drug Control Policy Department of State Agency for International Development Peace Corps Inter-American Foundation African Development Foundation Department of Housing and Urban Development Department of Justice Department of Labor Federal Mediation and Conciliation Service Department of the Treasury Department of Defense Department of Education National Archives and Records Administration Department of Veterans Affairs Environmental Protection Agency General Services Administration Department of the Interior Department of Health and Human Services National Science Foundation National Foundation on the Arts and the Humanities National Endowment for the Arts National Endowment for the Humanities Institute of Museum and Library Services Corporation for National and Community Service Department of Transportation

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OFFICE OF PERSONNEL DEPARTMENT OF JUSTICE National Endowment for the MANAGEMENT Humanities 28 CFR Parts 67 and 83 5 CFR Part 970 45 CFR Parts 1169 and 1173 DEPARTMENT OF LABOR DEPARTMENT OF AGRICULTURE Institute of Museum and Library 29 CFR Parts 94 and 98 7 CFR Parts 3017 and 3021 Services FEDERAL MEDIATION AND DEPARTMENT OF ENERGY 45 CFR Parts 1185 and 1186 CONCILIATION SERVICE 10 CFR Parts 606, 607, and 1036 CORPORATION FOR NATIONAL AND 29 CFR Parts 1471 and 1472 COMMUNITY SERVICE THE EXPORT-IMPORT BANK OF THE UNITED STATES DEPARTMENT OF THE TREASURY 45 CFR Parts 2542 and 2545

12 CFR Part 413 31 CFR Parts 19 and 20 DEPARTMENT OF TRANSPORTATION

SMALL BUSINESS ADMINISTRATION DEPARTMENT OF DEFENSE 49 CFR Parts 29 and 32

13 CFR Parts 145 and 147 32 CFR Parts 25 and 26 Governmentwide Debarment and Suspension (Nonprocurement) and NATIONAL AERONAUTICS AND DEPARTMENT OF EDUCATION Governmentwide Requirements for SPACE ADMINISTRATION Drug-Free Workplace (Grants) 34 CFR Parts 84, 85, 668 and 682 14 CFR Parts 1265 and 1267 AGENCIES: Office of Personnel NATIONAL ARCHIVES AND RECORDS Management; Department of DEPARTMENT OF COMMERCE ADMINISTRATION Agriculture; Department of Energy; The Export-Import Bank of the United 15 CFR Parts 26 and 29 36 CFR Parts 1209 and 1212 States; Small Business Administration; National Aeronautics and Space SOCIAL SECURITY ADMINISTRATION DEPARTMENT OF VETERANS Administration; Department of AFFAIRS Commerce; Social Security 20 CFR Parts 436 and 439 Administration; Office of National Drug 38 CFR Parts 44 and 48 OFFICE OF NATIONAL DRUG Control Policy; Department of State; CONTROL POLICY Agency for International Development; ENVIRONMENTAL PROTECTION Peace Corps; Inter-American AGENCY 21 CFR Parts 1404 and 1405 Foundation; African Development Foundation; Department of Housing and 40 CFR Parts 32 and 36 DEPARTMENT OF STATE Urban Development; Department of Justice; Department of Labor; Federal GENERAL SERVICES Mediation and Conciliation Service; 22 CFR Parts 133 and 137 ADMINISTRATION Department of the Treasury; Department AGENCY FOR INTERNATIONAL 41 CFR Parts 105–68 and 105–74 of Defense; Department of Education; DEVELOPMENT National Archives and Records DEPARTMENT OF THE INTERIOR Administration; Department of Veterans 22 CFR Parts 208 and 210 Affairs; Environmental Protection 43 CFR Parts 12, 42 and 43 Agency; General Services PEACE CORPS Administration; Department of the Interior; Department of Health and 22 CFR Parts 310 and 312 DEPARTMENT OF HEALTH AND HUMAN SERVICES Human Services; National Science Foundation; National Foundation on the INTER-AMERICAN FOUNDATION 45 CFR Parts 76 and 82 Arts and the Humanities, National 22 CFR Parts 1006 and 1008 Endowment for the Arts, National NATIONAL SCIENCE FOUNDATION Endowment for the Humanities, AFRICAN DEVELOPMENT Institute of Museum and Library FOUNDATION 45 CFR Parts 620 and 630 Services; Corporation for National and Community Service, and Department of 22 CFR Parts 1508 and 1509 NATIONAL FOUNDATION ON THE Transportation. ARTS AND THE HUMANITIES ACTION: Final rules and interim final DEPARTMENT OF HOUSING AND rules. URBAN DEVELOPMENT National Endowment for the Arts

24 CFR Parts 21 and 24 45 CFR Parts 1154 and 1155

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SUMMARY: These rules implement under the heading ‘‘Grants the procurement and nonprocurement changes to the governmentwide Management.’’ debarment programs. On April 12, 1999, OMB asked the nonprocurement debarment and SUPPLEMENTARY INFORMATION: suspension common rule (NCR) and the ISDC to review the common rule and associated rule on drug-free workplace A. Background propose amendments that would: (a) requirements. The final and interim On February 18, 1986, President Resolve remaining unnecessary final rules reflect changes made to the Reagan issued Executive Order 12549 (3 technical differences between the proposed rules in response to the CFR 1986 Comp., p. 189), ‘‘Debarment procurement and nonprocurement comments received during the comment and Suspension,’’ to establish a systems; (b) revise the current rule in a period. The NCR sets forth the common governmentwide debarment and plain language style and format; and (c) policies and procedures that Federal suspension system covering the full make other improvements to the Executive branch agencies must use in range of Federal procurement and common rule consistent with the purpose of the suspension and taking suspension or debarment actions. nonprocurement activities, and to debarment system. On October 29, 1999, It also establishes procedures for establish procedures for debarment and the ISDC issued a final report to OMB participants and Federal agencies in suspension from participation in with recommended changes to the NCR. entering covered transactions. While Federal nonprocurement programs. these procedures are mandatory for all On January 23, 2002, thirty agencies Section 4 of that Order established the jointly proposed amendments to the agencies of the Executive branch under Interagency Suspension and Debarment Executive Order 12549, any Federal NCR and for the removal and relocation Committee (ISDC) to monitor of the governmentwide provisions agency with procurement or implementation of that system, nonprocurement responsibilities may implementing the Drug-Free Workplace coordinate actions among the Federal elect to join the governmentwide system Act of 1988 (67 FR 3265). One agencies, and make recommendations to by adopting these procedures through additional agency, Department of the Office of Management and Budget the rulemaking process. Certain small Housing and Urban Development, (OMB) concerning regulatory and other Executive branch agencies that are proposed its amendments to those rules changes needed to address the needs of exempt from having to issue separate on July 22, 2002 (67 FR 48006). both the procurement and regulations with the approval of the Since publication of the above nonprocurement suspension and Office of Management and Budget, may proposed rules, the Federal Emergency debarment programs under a initiate suspension and debarment Management Agency (FEMA), along comprehensive debarment and actions in their inherent authority. with parts of many other Federal Following the procedures set forth in suspension system encompassing the agencies, has been transferred into the the NCR will help ensure that the full range of Federal activities. new Department of Homeland Security agencies’ actions comply with due The OMB published initial guidelines (DHS). Therefore, this final rulemaking process standards and provide the for nonprocurement debarment and does not include a final rule for FEMA public with uniform procedures. As an suspension to all Executive branch or DHS. Three agencies, Department of alternative, smaller Executive branch agencies on May 29, 1987 (52 FR Treasury, Department of Justice and The agencies may refer matters of contractor 20360), followed by final guidelines Export-Import Bank of the United and participant responsibility to another along with the NCR on May 26, 1988 (53 States, did not propose changes along Executive branch agency for action. For FR 19160). The OMB guidelines and with other agencies on January 23, 2002, a detailed explanation of the changes to NCR provide uniform requirements for but are adopting these rules on an these rules, see the comments section debarment and suspension by Executive interim final basis. The Department of under SUPPLEMENTARY INFORMATION branch agencies to protect assistance, Agriculture, although it proposed rules below. loans, benefits and other on January 23, has decided to issue an nonprocurement activities from waste, interim final rule for the reasons cited DATES: The effective date for this rule is fraud, abuse, poor performance or in its agency-specific preamble. Persons November 26, 2003. The comment date noncompliance similar to the system wishing to submit comments to the for those agencies issuing this rule as an used for Federal procurement activities Department of Agriculture, Department interim rule (i.e., the Department of under Subpart 9.4 of the Federal of Treasury, Department of Justice or Agriculture, the Export-Import Bank, the Acquisition Regulation (FAR) and its The Export-Import Bank of the United Department of Justice, and the supplements. States may do so within sixty (60) days Department of Treasury) is January 26, On January 31, 1989, the agencies of the date of this publication by 2004. amended the NCR by adding a new sending comments as described in the ADDRESSES: Comments on the interim subpart F to implement the Drug-Free preambles to those rules. The remaining rules should be submitted to the Workplace Act of 1988 (54 FR 4946). twenty-nine agencies are jointly issuing individual agency contacts. On August 16, 1989, President George this rule as a final rule. FOR FURTHER INFORMATION CONTACT: H. W. Bush issued Executive Order Furthermore, since publication of the Robert F. Meunier, Chair of the 12689, ‘‘Debarment and Suspension,’’ (3 proposed rule, the General Services Interagency Suspension and Debarment CFR 1989 Comp., p. 235), directing Administration (GSA) has changed the Committee, Office of Grants and agencies to reconcile technical name of the List of Parties Excluded Debarment (3901–R), Environmental differences existing between the from Federal Procurement and Protection Agency, 1200 Pennsylvania procurement and nonprocurement Nonprocurement Programs (List). It is Avenue NW., Washington, DC 20460, by debarment programs, and to give now called the Excluded Parties List phone at (202) 564–5399 or by e-mail exclusions under either program System (EPLS). Corresponding changes ([email protected]). A chart reciprocal effect across procurement and have been made throughout this rule. showing where each agency has nonprocurement activities. In 1994, codified the common rule may be Congress passed the Federal Acquisition Comments on the Proposed Rules obtained by accessing the Office of Streamlining Act of 1994 (Pub. L. 103– We received comments on the Management and Budget’s home page 355, 108 Stat. 3327), mandating proposed amendments to the NCR from (http://www.whitehouse.gov/omb), reciprocity for exclusions issued under sixteen commenters. Of those, eight are

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from employees of Federal agencies; two Native American Tribes. Issues related Subpart B are from state employees; and six are to the status of recognized Native Covered transactions. One commenter from professional or public American Tribes can be complex. suggested that Subpart B of the final organizations. We received no However, tribes, like states, are expected rule include specific language currently comments addressing the provisions to be responsible recipients of, and contained in the existing NCR in section related to the drug-free workplace participants in, Federal nonprocurement 110(a)(1), which notes that a requirements. transactions. Under this rule, Native nonprocurement transaction need not General Comments American Tribes are accorded the same involve the transfer of Federal funds. treatment as state governments with We included that language in the Plain language format. Generally, regard to the coverage and applicability. most comments were supportive of the proposed rule in the definition of Therefore, no special distinction with nonprocurement transaction in section plain language style and format of the respect to Native American Tribes is proposed rule, including the American 970(b). Accordingly, no further required. amendment to Subpart B for that Bar Association’s Section on Public Debarring Official Responsibilities. Contracts Law (ABA–PCL), which found purpose is necessary. One commenter requested that the final the format of the proposed rule to be in Commodity Debarment. One agency rule specifically state that suspending a ‘‘* * * user friendly style that is well raised concern about the regulation’s and debarring officials may use the suited for non-lawyers. * * * without lack of guidance with regard to services of other officials in carrying out losing any of the precision in the ‘‘commodity’’ suspension and their duties. The numerous references to standard regulation format.’’ debarment referenced in sections 110(c) However, one commenter expressed the suspending or debarring official and 945. The ISDC notes that any concern that the question and answer within this rule do not imply that the resolution of the issues surrounding format will make it more difficult for suspending or debarring official must debarment of commodities requires Government officials familiar with perform all those duties without the thorough agency-wide consultation and standard rules to find information assistance of staff or others. The drafting possible changes to Parts 8, 9, 13, 47, 51 quickly by scanning the table of committee acknowledges that it is and 52 of the FAR. Because the contents for short titles. common practice for suspending and comment was received after the While we acknowledge that the longer debarring officials to use the services of comment period had closed and just sentences associated with the question assistants in carrying out their duties. prior to publication of this final rule, and answer format will make scanning Such administrative matters are more there was insufficient opportunity for the table of contents more difficult, we appropriately addressed through the ISDC to address this issue before believe that the benefits to the regulated agency-specific internal guidance rather this rulemaking. Therefore the issues community far exceed any small burden than in this rule. surrounding commodity suspension and that might be placed on Government Subpart A debarment will be addressed at a later officials when using the rule. We time. However, any agency considering prepared the proposed rule so that ‘‘Participant’’ and ‘‘participate’’. Two a commodity debarment should fully information pertaining to Government commenters raised concerns that the coordinate the action in accordance officials with various responsibilities definition of ‘‘participant’’ in section with section 620. under the rule, and information 980 may be confused with the term Optional lower tier coverage. We pertaining to individuals and businesses ‘‘participant’’ as used in section 105(a) received two comments about the subject to the rule, are grouped together and ‘‘participate’’ as used in section language in section 220 of the proposed under separate subparts. We believe that 135. These terms in sections 105(a) and rule that mandates coverage of this will enhance everyone’s ability to 135 are, in fact, broader in scope than subcontracts of $25,000 or more at the locate information of particular interest the definition in section 980. We agree first tier below a covered to them. that section 105(a) should be clarified to nonprocurement transaction. The One commenter noted that in some identify the entire universe of potential language gives agencies an option to places within the proposed rule the participants, rather than only those who extend coverage to subcontracts at lower sentences are still complex. In preparing may presently have the status of a tiers. the proposed rule, there were several current ‘‘participant’’ as defined in The two comments recommended provisions, such as those reciting the section 980. Accordingly, section 105 in diametrically opposed changes to the causes for debarment and provisions the final rule is amended to state that proposed rule. One commenter related to affiliation and imputed portions of the rule apply to you if you suggested revising the rule to require conduct, which we did not revise or did are ‘‘* * * a person who has been, is, agencies to cover subcontracts at all so insubstantially. As a result, in a few or may be expected to be, a * * * ’’ tiers and said that making lower tier places the style of the language was not participant or principal in a covered coverage optional would be inconsistent fully in line with the style used in other transaction. Similarly, section 135 of the with the rule’s purpose as stated in parts of the proposed rule. Accordingly, proposed rule has been amended by section 110. The other suggested we revised the final rule so that those substituting the concept of involvement revising the rule to either: (1) Eliminate provisions are less complex and more in for participation to make it clear that coverage of subcontracts entirely, keeping with the plain language format Federal agencies may take suspension or relying on reciprocity with Federal used elsewhere in the rule. Section 630 debarment actions against any persons procurement debarment and suspension of the final rule, regarding imputation of who may be involved in covered actions; or (2) establish a common conduct, is reorganized entirely in transactions regardless of whether they approach for all Federal agencies by response to this and other comments are currently a ‘‘participant’’ as defined limiting coverage to first tier regarding its lack of clarity. under section 980. We also made subcontracts of $25,000 or more (the Native American Tribes. One changes to the imputed conduct proposed rule’s mandatory coverage). commenter noted that neither the provisions by substituting the word The two comments reflect the widely existing NCR, nor the proposed rule ‘‘person’’ for ‘‘participant’’ in section varying nature of Federal programs specifically addresses the treatment of 630 for the same reason. subject to this rule. Some programs,

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especially programs with awards to clearly state that obligation. We that proposed section 320 (now section states as pass-through entities, have renumbered the remaining sections 325 in the final rule), be modified by substantial program performance by within that series to maintain the replacing the phrase ‘‘If as a participant subcontractors at lower tiers below sequence of the final rule. you knowingly do business with an covered nonprocurement transactions. Participant termination of suspended excluded person’’ with ‘‘If you as a Other programs, including many or debarred principal in existing participant do business with a person research programs, are performed by covered transactions. One agency when you knew or had reason to know participants in the covered commenter noted that the cautionary that the person was excluded. * * * .’’ nonprocurement transactions. At least language contained in the final sentence The commenter believes it would make some programs of the first type may be of section 305(a) of the proposed rule the standard consistent with that found particularly vulnerable to subcontractor (now section 310(a) of the final rule), be elsewhere in the rule. However, the only malfeasance; agencies in those cases modified appropriately and included at place in the rule that the ‘‘reason to need the flexibility to extend coverage the end of proposed section 310(a) (now know’’ standard applies is when an to lower tier subcontracts to adequately section 315(a) of the final rule). The agency is imputing conduct from an protect the Federal Government’s language under proposed rule section entity to an individual for the purpose interest. Many programs of the second 305(a) emphasized that a participant of suspension or debarment. That type, however, do not share that exercise caution in deciding whether to standard is different from the ‘‘should vulnerability. Revising the rule to terminate covered transactions, such as have known’’ standard, but less than the mandate extended coverage in all cases subcontracts or subgrants, with persons actual knowledge standard required would increase administrative burdens that were already in existence at the under proposed section 320 (now and costs for those programs without time the person was excluded. The section 325). When the NCR was commensurate benefits to the taxpayer. commenting agency noted that a published as a final rule in 1988, the For this reason, the final rule includes participant may face the same issue standard of actual knowledge was the optional lower tier coverage in with regard to one of its own employees adopted to support a cause for section 220 as the best way to afford who may be subject to an exclusion debarment under section 305(c)(2). That adequate protection for the wide while already acting as a principal final rule changed the language from universe of Federal agency programs under another covered transaction. what had been proposed as a ‘‘known or without imposing undue administrative Since an agency exclusion imposed reasonably should have known’’ burdens on agencies or participants. under this rule does not apply to standard. That was done to conform the existing awards, termination options in nonprocurement rule to a FAR Subpart C such situations can be legally and certification proposed amendments at Scope of action. One commenter practically complex. Before such an 52 FR 28642–46 (July 31, 1987). See also recommended that proposed sections action is taken, the option must be discussion at 53 FR 19167 (May 26, 300, 400, 420 and 445 be clarified to carefully analyzed and weighed. We 1988). It was determined then, and we state that persons checking the believe the same or similar concerns agree now, that actual knowledge of Excluded Parties List System (EPLS), apply to decisions about employees who ineligibility should be required before formerly known as the List of Parties serve as principals. Accordingly, section an agency debars a person for doing Excluded or Disqualified from Federal 315(a) of this final rule has been business with an excluded or Procurement and Nonprocurement amended to include similar cautionary disqualified person. Therefore, the Programs, should look at the cause and language. standard under this section in the final treatment code to see if the listed person Participant verification of its rule remains unchanged. is ineligible under a statute or executive principals’ eligibility. One commenter Certification. Three of the six order as opposed to suspended or suggested that proposed section 315 be comments we received on this subject, debarred under this rule. The cause and clarified so that the reader understands including one from the ABA–PCL, treatment code will reveal a scope of that a participant need only verify that supported the proposed rule’s disqualification which may differ from its own principals, and not those of elimination of a current requirement for a discretionary suspension or lower tier participants, are eligible to certifications. The ABA–PCL also noted debarment. The EPLS includes cause participate in the covered transaction. that the problems caused by and treatment codes with each listing, Since a participant may have a certifications could be aggravated, rather as well as instructions for their use, so transaction both above it and below it, than solved, if some agencies elected to that the user will know the nature and it is possible to misconstrue this section continue using certifications, and scope of a person’s ineligibility. This is to obligate the participant to verify the instructions were not issued to preclude the same system as that currently in principals of those participants above each agency from separately crafting place and has worked without and below its own organization. The certification language that differed from problems. We believe that sections language in proposed sections 315 and the language used by the others. We 75(b), 145(b)(1) and 515 of the proposed 325 (now sections 320 and 330 in the agree and note that this comment rule already adequately address this final rule), was intended to require should be addressed by the joint efforts matter. Therefore, no additional participants only to verify eligibility of of 26 Federal grant-making agencies to language in this regard is added to the its own principals in its own implement the streamlining and final rule. transactions. Participants at lower tiers simplification requirements of the Participant verification of eligibility of will verify the principals’ eligibility in Federal Financial Assistance lower tier participant. One commenter their transactions. Accordingly, we Management Improvement Act of 1999 recommended that we clarify that a amended proposed section 315 (now (Pub. Law 106–107). A stated goal of participant planning to enter into a section 320 in the final rule), to replace those interagency efforts is to eliminate covered transaction with another entity the phrase ‘‘any principal’’ in the first certifications or assurances that are at the next lower tier must verify that sentence, with the phrase ‘‘any of your found to be unnecessary and establish the entity is not excluded or principals.’’ common language for others. disqualified. We agree. We included a Doing business with an excluded One of the three commenters new section 300 in the final rule to more person. The same commenter suggested supporting continued use of

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certifications said that certifications potential data entry into the EPLS to Therefore, we did not change this in the provide the best means of obtaining confirm the identity of individuals. The final rule. accurate and updated information about collection, use, and dissemination of Scope of action with regard to a person’s eligibility. That commenter personal identifier information, such as subsidiaries. The ABA–PCL requested noted that the Office of Federal social security numbers and birth dates, that proposed section 625 be amended Procurement Policy retained the is widely practiced in private and to address uncertainty about whether an suspension/debarment certification commercial settings. However, when organization’s suspension or debarment when the Clinger-Cohen amendments Federal agencies desire to do so, the automatically covers wholly owned were implemented for Federal issue is more complex. Certain statutes subsidiaries. The 1988 preamble to the procurement contracts.1 Another designed to protect privacy must be NCR contained a detailed explanation of comment in support of retaining considered. We believe that this the treatment to be accorded all certifications suggested that a suggestion has merit and should be subsidiaries of a corporation with regard certification is the best way for a considered as an enhancement to the to the scope of a debarment or participant to provide information about current system at a later date. suspension. See 53 FR 19169 (May 26, itself and its principals, as required by 1988). The 1988 NCR, when proposed, proposed rule section 330 (now section Subpart F would have included subsidiaries 335 in the final rule), to the Federal Confirmation of receipt of notice by e- automatically within the scope of a agency with which it is about to engage mail. The ABA–PCL expressed general suspension or debarment action taken in a covered transaction. support for expanding the options for against the parent company. As a result We understand and appreciate these delivery of action notices under sections of comments received in 1988, the final views. However, Federal award officials 615, 725, 820 and 975. It noted that e- NCR removed the term ‘‘subsidiaries’’ can now rely on the electronic EPLS mail notification, unlike notification by from the automatic scope of a which is available worldwide on the facsimile, is still in an evolutionary suspension or debarment against a Internet, as opposed to the printed stage and may lack the level of certainty parent company. This was, in part, version that could be six weeks out of that the notice reaches the intended because separately incorporated entities date by the time some awarding officials recipient in a timely manner. It may have different shareholder interests receive them. New technology has suggested that the regulation should involved that may not be notified of the eliminated any need to require Federal require that e-mails be followed up by action. Also, a subsidiary corporation agencies to obtain suspension/ notice via regular mail, or that the may receive an award in its own name. debarment certifications, although the respondent provide the sender with a Procurement and nonprocurement rule still makes certifications available confirmation of e-mail receipt. award officials must rely on the EPLS to as an option for any agency with determine the eligibility status of a circumstances that justify their While still an evolving technology, e- potential contractor or participant. continued use. In their agency-specific mail is not inferior to traditional mail or There is nothing in the award process preambles accompanying the Federal facsimile as a means to deliver notice. that will inform the award official that Register notice of proposed rulemaking, Even current mail with return receipt any potential contractor or participant only a few agencies proposed to use options does not guarantee that the mail is, or may be, a subsidiary of another certifications in their covered reaches the intended recipient. Many excluded entity—even if all the transactions. This suggests that many return receipts are returned to the subsidiary’s stock is owned by the agencies see alternative methods as an sender as undeliverable or unclaimed. excluded entity. Apart from cases where opportunity to reduce burdens on Some are signed by a person whose a subsidiary’s name may include part of participants without reducing signature is not legible. The legal system the parent’s name, there may be nothing compliance with the rule’s accepts, as legally sufficient, in the EPLS that will cause an award requirements. Therefore, the final rule constructive notice to bring a matter to official to associate the potential does not require Federal agencies to conclusion—knowing that actual receipt subsidiary contractor or participant with obtain certifications. by the intended recipient is not an excluded parent. For these reasons, guaranteed. This has been equally true the original nonprocurement suspension Subpart E in the world of suspension and and debarment final rule elected to treat Identity confirmation by date of birth. debarment. Agencies are occasionally all subsidiaries as ‘‘affiliates.’’ This The Federation of American Hospitals faced with claims by respondents who means that all entities with a distinct suggested that section 515 of the rule have been debarred that they did not see legal identity, including wholly-owned include a field for birth date entries on the notice or decision, or that the subsidiaries, must be provided with a the GSA List (now called the EPLS). The facsimile notice was mis-delivered. The notice of action, an opportunity to Federation observed that birth dates are current NCR and FAR debarment rules contest, and written determinations. currently available in company assume receipt if the notice is sent to The subsidiary will appear with its own employee databases and are used in the last known address. Because the listing to assure that the Government other Federal programs to assist in rules allow any debarred person to may effectively enforce the EPLS. Parts matching identities. The ISDC has been petition for reinstatement at any time, a of a business entity that do not enjoy a studying the use of birth dates as a person who makes a case for non receipt separate legal standing, such as of notice is not deprived of an unincorporated divisions and branches, 1 Section 4301(b)(2)(iii) of the Federal Acquisition opportunity to contest an action or have are included within the scope of the Reform Act of 1996 (Pub. L. 104–106), prohibits its status changed. Requiring duplicate action against the entity. Federal agencies from imposing non-statutory certifications on contractors or offerors unless the mailings or other cumbersome Imputing conduct. One commenter Federal Acquisition Regulatory Council provides procedures will not significantly observed that a technical reading of written justification to the Administrator for increase the chance of actual receipt. It section 630 of the proposed rule does Federal Procurement Policy, and the Administrator would only lengthen the notification not adequately describe imputing approves the certification requirement in writing. This justification must include a determination that process and deprive the agencies of the conduct from a subsidiary to its parent there is no less burdensome means for ability to take prompt protective action company or between separate corporate administering and enforcing the agency regulation. and to conduct business efficiently. or other business entities other than

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those engaged in joint ventures. imputation under the reason to know official conducting fact-finding in a Paragraph (a) of that section refers to standard of section 630(b) is suspension or debarment action, may imputing conduct from individuals to appropriate. If a person in authority weigh the fact of receipt of benefits organizations. Paragraph (b) addresses over a business activity can be shown to derived from the conduct against other imputing conduct from organizations to have deliberately avoided acquiring information available in the record to individuals. Paragraph (c) addresses information about misconduct that determine whether a person knew or imputing conduct between businesses would otherwise reasonably be expected approved of, or acquiesced in, the linked by some form of limited joint to come to their attention in the conduct in question. Therefore, the venture or agreement. ordinary course of performing their language in the proposed rule is Many agencies have operated with the duties, they may be deemed to have accurate and remains in the final rule. understanding that the phrase ‘‘or reason to know of the misconduct under Subparts G and H similar arrangement’’ contained in section 630(b). section 325(b)(3) of the current NCR The reason to know standard of One Federal debarring official noted allows agencies to impute conduct section 630(b) applies to all situations that the language of section 700(a) of the between a subsidiary and its parent where conduct is to be imputed to an proposed rule generally requires company. The proposed rule did not individual. It applies the same standard adequate evidence to suspect that a alter the current language of the NCR. for imputing conduct between spouses cause for debarment exists as the first However, after reviewing the proposed or relatives as it does between an part of a two-part test to support a language, and comments requesting that organization and an individual or suspension. He observed that the we redraft this section using plain between unrelated individuals. This adequate evidence test makes sense so language (see General comments on section does not authorize imputing long as the reader applies it to any plain language format above), we conduct from one individual to another ground under section 800 other than revised section 630 of this final rule to in a business activity solely upon the section 800(a). A cause for debarment make clear that, for the purpose of existence of a family or marital under section 800(a) requires the matter suspension or debarment, Federal relationship between two individuals. to have already progressed to a agencies may impute misconduct from Other factors, such as age, experience in conviction or judgment. While the individuals to organizations, from the business, education, financial language in the proposed rule has organizations to individuals, from capacity, and organizational or existed under the NCR for years without individuals to other individuals, and operational independence should be apparent confusion, we agree that either from organizations to organizations, considered along with the relationship section 800(a) should be stated more where appropriate. Section 630(c) of the before determining that one individual generally such as ‘‘commission of final rule covers imputing misconduct had reason to know of the misconduct criminal offense or liability for a civil from any linked organizations, of the other. Where no other factors are matter’’ or section 700 should including those linked by a parent- present to support imputing conduct to distinguish between suspensions based subsidiary relationship. This revised a related individual, that individual on causes under section 800(a) and format and style of section 630 will help may still be subject to action as an those based on causes under sections eliminate ambiguity existing under the affiliate, if the appropriate degree of 800(b) through (d). To keep the causes current NCR language and make it more control can be established. for debarment under the FAR and this understandable to the general public. Another commenter suggested that we rule consistent, we elected not to alter We also note that this rule retains the delete from section 630 the word the language of section 800(a) in this reason to know standard as the ‘‘scope’’ to describe application of the final rule. But to improve the clarity appropriate standard for imputing imputed conduct provisions and we use with respect to suspensions for actions misconduct to individuals under section the term only with regard to the subject that have not yet progressed to a 630(b). The Circuit Court of Appeals for matter addressed in section 625. We judgment or conviction, we divided the DC Circuit, in Novicki v. Cook, 946 agree with that clarification and have proposed section 700(a) into two F.2d 938 (D.C. Cir. 1991), noted that the revised the initial sentence in section paragraphs (a) and (b). Section 700(a) of reason to know standard was not 630 accordingly. the final rule relates to suspensions defined in the FAR. Using an analysis That commenter also suggested that based upon indictment, complaint or of that standard at common law, the the final rule substitute the words ‘‘may other adequate evidence to support Court reasoned that this standard is not be’’ for the word ‘‘is’’ in the final criminal or civil matters that may one of strict liability or a should have sentence of paragraphs (a) and (c) of ultimately fall under section 800(a). known standard that can be met merely section 630 of the proposed rule. The Section 700(b) of the final rule relates to because of an individual’s position as commenter believed such a change adequate evidence of any other cause for president of a corporation. We agree would clarify that acceptance of benefits debarment. Proposed section 700(b) with that interpretation. We also note, derived from the conduct in question becomes section 700(c) in this final rule. as did the Court, that the debarring alone does not create a conclusive Fact-finding proceedings versus official in that case had other presumption upon which to impute presenting matters in opposition. A few information in the record, the nature of conduct. We agree that the mere commenters found proposed rule which could have reasonably supported acceptance of benefits alone would be sections 740 and 835 confusing because imputation under the reason to know an insufficient basis upon which to while these sections address meetings standard under the right circumstances. conclude that a person had knowledge held with the suspending or debarring Under this rule, if a person in a position of, approved of, or acquiesced in the official to present matters in opposition, of control, influence or authority over a conduct where evidence suggests the final sentence of each section relates business activity acquires information otherwise. However, agencies under the to taking witness testimony and that suggests misconduct and fails to Governmentwide debarment and conducting cross-examination. These take action to prevent the misconduct suspension system have always used matters apply to fact-finding from occurring, or to mitigate the acceptance of benefits as one indicator proceedings, not presentation of matters injurious consequences of the of knowledge, approval or acquiescence. in opposition. Fact-finding proceedings misconduct once it has occurred, A suspending or debarring official, or an are addressed in sections 745 and 840.

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Therefore, we moved the language Time limits for decision. One Subpart I relating to witness testimony and cross- commenter suggested that we amend Define ‘‘procurement’’. One examination from sections 740 and 835 sections 755 and 870 to require that the commenter recommended adding a of the proposed rule to sections 745 and suspending or debarring official make a definition of the term ‘‘procurement’’ in 840, respectively, in this final rule. In final decision within 45 days of closing Subpart I to clarify which lower tier addition, in response to another agency the official record, even in cases where transactions are covered transactions. comment, we clarified the provisions fact-finding is conducted. Currently The commenter suggested defining under those sections so that it is clear under the NCR, the 45-day time limit for ‘‘procurement’’ as the acquisition of that fact-finding privileges of presenting the suspending or debarring official’s supplies and services by contract with witnesses, evidence and other decision only applies to cases in which a commercial entity, to help distinguish information, or cross-examination of no fact-finding is required. The lower tier procurement transactions any witnesses, or confrontation of proposed rule did not alter that from subawards made by research evidence and information presented, is requirement. However, since the institutions to collaborating research equally available to respondents and the suspending or debarring official does organizations. government representatives at those not close the record in any case until We understand the importance of proceedings. after he or she receives the needed distinguishing procurement One commenter requested that we information, including the fact-finder’s transactions, which are covered revise sections 740(b) and 845(c) to findings, there is no reason for the transactions at lower tiers only if they permit the suspending or debarring suspending or debarring official to treat meet the criteria under section 220 of official to refer both disputed facts and these cases differently. Accordingly, the rule, from nonprocurement issues of law to another official for sections 755 and 870(a) have been transactions that are more broadly resolution. The Governmentwide revised to set a 45-day period for final covered under section 210. Adding a suspension and debarment provisions definition of the term ‘‘procurement’’ to under the FAR and the NCR provide decision in all cases, subject to extension for good cause. this rule would be warranted if only for submitting material facts confusion was prevalent among Federal genuinely in dispute to another official Petitions for reconsideration. One agencies or participant communities for resolution. In some agencies, the commenter recommended that either about the distinction between debarring official is in the Office of section 875 or 880 incorporate a procurement and nonprocurement. General Counsel, in other cases, the minimum six month waiting period However, we do not believe this is the General Counsel’s Office may review the before a debarred person may petition case. The definition of ‘‘subgrant’’ and decision before issuance or may advise the debarring official for reconsideration ‘‘subaward’’ in Federal agencies’ the debarring official on legal matters of its period or scope of debarment. We implementation of OMB Circulars A– while the matter is pending. Each believe there are many reasons that may 102 and A–110, respectively, provide an agency has the discretion to decide, and justify an adjustment of the period or adequate basis for most agencies and must determine for itself, how it will scope of a debarment within six months participant communities to make the handle legal issues in the context of of issuance of the initial decision. For distinction. Specifically, a lower tier debarment or suspension actions. We example, the debarring official may transaction is a nonprocurement believe it is in the best interest of the have overlooked important information transaction subject to section 210 if the Government to continue that practice. in the record, or the debarred person transaction’s purpose is to have the Furthermore, changing the proposed may be able to establish present lower tier participant perform any part language in accordance with this responsibility shortly after a debarment of the substantive program from the request would place the NCR at odds is issued. Unlike the 45-day time limit Federal agency’s primary tier with the requirements for suspension imposed upon the debarring official in transaction. If it meets this criterion, the and debarment under the FAR. rendering the initial determination, no lower tier transaction is a Accordingly, we made no change. such time limit is imposed in handling nonprocurement transaction even if the One commenter suggested that the requests for reconsideration under these higher tier participant calls the final rule clarify whether disputes over sections. The debarring official has transaction a ‘‘contract.’’ In contrast, the mitigating or aggravating factors would significant discretion in, and control lower tier transaction is procurement entitle a respondent to a fact-finding over, handling requests for subject to section 220 if its purpose is proceeding. The current interpretation the acquisition of goods or services reconsideration. Debarring officials can and practice of the agencies in needed by a performer, at any tier, of the use that discretion in dealing with suspension and debarment actions substantive program. While we do not reconsideration requests, including under both the FAR and NCR is that a believe that adding a definition of respondent is entitled to a fact-finding frivolous requests, without minimum ‘‘procurement’’ is necessary in this proceeding on material facts in genuine waiting periods. In a close case, a Governmentwide rule, any Federal dispute only with regard to establishing minimum waiting period could agency may add clarifying language in a cause for debarment or suspension. As discourage a debarring official from its own rule if it judges that doing so is a practical matter, the regulation does imposing a debarment if a company has warranted for its programs. Also, a not preclude a suspending or debarring made an incomplete demonstration of participant may seek guidance from the official from using a fact-finding present responsibility. In addition, it awarding Federal agency if necessary. proceeding to address aggravating or can have a harsh result on the company Conviction. One commenter requested mitigating factors in dispute if he or she that addresses Government concerns clarification of the term ‘‘entry’’ of finds it helpful in reaching a final promptly. Most agencies do not appear judgment as it relates to the definition decision. We left the final rule to have experienced significant of ‘‘conviction’’ in section 925. Under unchanged to avoid creating an problems handling reconsideration Rule 32 of the Federal Rules of Criminal appearance of differing standards for requests. Accordingly, the final rule Procedure, a conviction is not final until fact-finding between the NCR and the does not include a mandatory minimum the entry of a final order. Therefore, a FAR. waiting period for reconsideration. criminal conviction does not exist to

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support a cause for debarment under continue until the criminal matter is Government rejects the direct/indirect section 800(a) until the court signs the concluded under NCR section 760(a). cost analysis as being a valid basis upon Judgment, Commitment or Probation Person. The ABA–PCL also which to apply the exclusion. In Order (or its equivalent). The proposed questioned whether it is practical to addition, the ABA–PCL’s suggested rule sought to address this definition so continue including a ‘‘unit of phrase ‘‘required under a covered that agencies would be free to conclude government’’ within the definition of transaction’’ could be read to require debarment proceedings where a person for the purpose of taking that the product or service must be defendant enters a guilty plea or a guilty suspension or debarment actions. The specifically mentioned in the award, verdict is returned but judgment is commenter notes that units of agreement or transaction. It is the intent withheld, delayed, or diverted pursuant government often have a unique status of this rule to cover any important to an alternative sentence or disposition. in Federal agency programs that make service or product that is required to Accordingly, the proposed rule their suspension or debarment perform the award, whether or not it is expanded the definition to focus on the impractical. We acknowledge that there directly specified in it. Accordingly, we practical reality of the criminal is often a unique relationship between altered the definition of ‘‘principal’’ in proceeding’s conclusion, rather than the the governmental organizations that section 995(b)(3) of the final rule to technical requirement that a judgment might dissuade a Federal agency from apply to any person who ‘‘*** be ‘‘entered.’’ choosing to debar a governmental body Occupies a technical or professional While acknowledging the legitimacy from Federal nonprocurement position capable of substantially transactions. However, that is not true of the Government’s desire to finalize influencing the development or for all Federal transactions, or for all debarment proceedings in criminal outcome of an activity required to units of government. Federal matters concluded under special terms perform the covered transaction.’’ suspending and debarring officials have without the benefit of a formal entry of (Emphasis added.) sufficient discretion and options Fundamental concepts that still apply judgment, the ABA–PCL expressed available when dealing with units of under this rule. In addition to concern that the proposed definition, as government or their employees that addressing the comments raised during written, is so broad that it would allow the official to consider all relevant the comment period in this rulemaking, capture dispositions that are not the factors. We do not believe that the we identified important concepts that functional equivalent of a finding or Federal Government’s interest in were addressed in the preamble to the pronouncement of guilt. It observed that protecting its nonprocurement programs original NCR, or that evolved since its the contexts for such alternate would be enhanced by eliminating all publication, that still apply under this dispositions vary from case to case, and units of government from the definition final rule. They are being restated here from jurisdiction to jurisdiction, and of ‘‘person.’’ Such an approach would, to preserve them and to provide useful that failure to add some boundaries to in effect, create an exemption from guidance on the interpretation and the expanded definition might coverage and create a void of oversight application of this rule. discourage resolution of some cases in and accountability for many special Protection not punishment. a way that is beneficial to the bodies of government that receive Suspension and debarment are Government and the affected person. Federal funds and benefits. Therefore, administrative actions taken to protect The ABA–PCL suggested that the phrase the definition of ‘‘person’’ remains the Government’s business interests. It ‘‘or any other resolution’’ in the unchanged in the final rule. should not be used to punish persons proposed definition be subject to some Principal. The ABA–PCL also for past misconduct or to coerce a limitation reflective of an admission or expressed concern that the definition of respondent to resolve other criminal, finding of guilt before being treated as the term ‘‘principal’’ in proposed civil or administrative matters. While a ground for debarment. We believe the section 995(b)(3) is so broad as to suspension and debarment will ABA–PCL’s concern is appropriate. potentially result in making it frequently occur as a result of, or at the Accordingly, the definition of impossible for an individual to find same time as other proceedings, and ‘‘conviction’’ in the final rule is revised employment in their given field. may even be highly dependent upon the to provide that an alternative Proposed section 995(b)(3) includes any resolution of those other proceedings, disposition to a criminal entry of a person who ‘‘occupies a technical or suspension and debarment are not judgment will be treated as the professional position capable of alternatives for using traditional means functional equivalent of a judgment if it influencing the development or of resolving matters in the appropriate occurs with the participation of the outcome of an activity that affects a forum. Notwithstanding this precaution, court; or in a case that involves only an covered transaction.’’ The ABA–PCL the suspending and debarring official agreement with the prosecutor, if it suggests that this should be narrowed to may resolve any matter otherwise occurs in the context of an admission of cover an employee who ‘‘occupies a appropriate for suspension or guilt. In making this assessment, the technical or professional position debarment under the terms of a debarring official should consider the capable of directly and substantially comprehensive or global agreement that entire context of the disposition or influencing the development or addresses criminal, civil, enforcement, resolution, including the nature of the outcome of an activity required under a audit, contract dispute, or other obligations imposed on or accepted by covered transaction.’’ We agree that the proceeding collateral to it when in the the person, and any official statements definition of ‘‘principal’’ in proposed best interest of the Government to do so. made regarding the alternate section 995(b)(3) should be narrowed in It is important for suspending and disposition. Where a person is an effort to cover critical non- debarring officials to use balance and suspended upon commencement of supervisory/managerial positions. sound business judgment in criminal proceedings which are later However, use of the term ‘‘directly’’ may ascertaining whether to use suspension held in abeyance to satisfy the terms of confuse the reader to believe that the and debarment to address a matter. an alternative disposition, and the exclusion will apply only to positions Where other administrative remedies alternative disposition does not qualify that are charged as a direct cost to the are available, such as disallowing costs as the functional equivalent of a covered transaction. As noted in the or recovery of sums by set-off, filing of conviction, the suspension may 1988 preamble to the NCR, the civil claims, or various contractual or

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audit options exist, the suspending or suspend or debar any individual or (d)). Any violation of law, regulation or debarring official should consider entity that may reasonably be expected agreement; or any conduct, failure to whether those remedies may be more to be involved in a covered transaction. perform or other event that seriously appropriate under the circumstances, or The authority to take action against any threatens a Federal nonprocurement or whether to await the outcome of those person that may be ‘‘ * * * reasonably procurement activity, is subject to procedures before using the suspension expected to be involved in a covered potential suspension and debarment or debarment option. transaction,’’ is not intended to operate under this rule. On December 27, 2001, Covered transactions and principals. as a limitation on an agency’s ability to the Federal Acquisition Regulatory While much of the NCR is drafted in protect itself. On the contrary, this rule Council issued a final rule (see 66 FR terms of an ‘‘award’’ being made by the gives agencies broad authority to take 66986–66990), revoking the December Government or a participant, it is action to protect public programs 20, 2000 amendments to the FAR that important to note that the concept of against any individual or entity that included, among other things, a covered transactions is much broader presents a rational business risk to the contractor’s health, safety and than relationships or benefits that are Government’s nonprocurement environmental record in the contract conferred through traditional vehicles programs. The answer to the second officer’s pre-award responsibility such as grants, cooperative agreements, question is that the suspended or review. In so doing, the FAR Council direct loans, or contracts and debarred person is excluded from being acknowledged that the Governmentwide subcontracts under them. Loan a principal or participant in any suspension and debarment system is the guarantees, technical assistance, nonprocurement covered transaction most effective and appropriate forum to approvals, some licenses and other that is not exempt from coverage under address serious concerns about a privileges or events, not necessarily the NCR (see section 215). Federal contractor’s or participant’s involving an award of money, are agencies can freely enter into exempt responsibility for violations of this covered transactions. Where money is transactions without checking the EPLS, nature. part of the equation, the direct or collecting certifications or assurances, Transactions in foreign countries. The indirect nature of a participant’s cost or conditioning the award upon non- prohibitions against using suspended or does not govern whether the transaction debarment or suspension. Transactions debarred persons in covered is a ‘‘covered transaction.’’ This is that are exempt from coverage include transactions applies equally to because many critical services, such as entitlements such as certain social transactions entered into by Federal professional fees for legal, accounting, security, disability, or welfare benefits, agencies or participants in foreign engineering and other services may be etc. Exempt transactions also include countries. So long as the transaction is charged as an indirect cost to the benefits a person receives that are one involving U.S. Executive branch nonprocurement transaction, but the incidental in nature, such as benefits resources or benefits, the protection services of that individual or entity are flowing to sellers of a primary residence afforded by the exclusion applies no still critical to performance. For when the sale is financed by an FHA matter where the covered transaction example, an accountant or accounting loan, or benefits that occur as a result occurs. The state or country of firm that is debarred for misconduct of normal government operations, such incorporation, registration, or principal may be ineligible to perform audit as insurance on deposits in Federal place of business of an excluded entity services for a grantee under a covered banks, use of the postal services, and is irrelevant to its coverage. The transaction even though the accounting public use of national parks and prohibition would not apply, however, services are to be charged by the recreation areas. It is important for if the transaction is exempt because it is participant as an indirect cost to its agencies to distinguish when a an award to a foreign government entity grant. beneficiary of a transaction is an as described in section 215(a). Even where a participant provides intended beneficiary (not necessarily Lead agency. Lead agency is not a services under a covered transaction the principal or primary beneficiary) jurisdictional concept. It is an that is being serviced by a volunteer and when a person is an incidental administrative procedure employed by who has been suspended or debarred, beneficiary. the Federal agencies to bring efficiency, the prohibition on the participant’s use An agency is not precluded from focus and coordination of resources to of that volunteer in the capacity of a suspending or debarring any person just bear on any matter which may touch the principal will apply to the covered because that person happens to be a interests and expertise of several transaction. participant in one of these non-covered agencies. A respondent has no right to Where the NCR is otherwise silent, transactions. Indeed, an agency may have any particular agency act as lead each agency may describe in its own even suspend or debar that person for agency in a suspension or debarment rule those special transactions it regards misconduct that occurs during action. While section 620 of this rule as ‘‘covered transactions,’’ and the performance of one of those exempt or allows for agencies to coordinate their services that when performed on behalf non-covered transactions, e.g., engaging interests and select a lead agency, of a participant are those of a in mail fraud, or violating an failure to do so does not invalidate the ‘‘principal.’’ Failure to do so may limit environmental permit. actions of the agency that handles the the agency’s ability to apply the Serious violations of health, safety matter. The ISDC, under its authority in person’s exclusion to or within the and environmental laws and sections 4 and 5 of E.O. 12549, uses transaction. regulations. Although the causes for flexible and informal procedures to Jurisdiction to debar versus the effect debarment do not specifically identify coordinate actions and assist in of debarment. It is important to separate by name various violations that threaten selecting a lead agency. the questions: ‘‘Who may an agency the health and safety of workers or Submission of applications, bids and suspend or debar?’’ and ‘‘What is the threaten the environment, serious proposals versus award. Questions often excluded person suspended or debarred violations of these laws and regulations arise as to an excluded person’s from?’’ The definition of ‘‘person’’ in have always been subject to suspension eligibility to submit a bid, application or section 985 and the authority stated or debarment under several provisions, proposal for or under a covered under section 135 of this rule answer including section 305(a)(4) and/or (d) of transaction where the bidder, applicant the first question. An agency may the NCR (now section 800(a)(4) and/or or offeror expects its suspension or

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debarment to end prior to the award debarment) require that the suspending deemed prudent. In this regard the term date. The NCR, like the FAR, precludes or debarring official base his or her ‘‘immediate’’ does not connote that awards to excluded persons. Since decision on an appropriate quality of future misconduct, loss, or injury is eligibility for award is determined at information, according to the probable. A suspending official may that time, in most procurement and circumstances at hand, so as to preclude conclude that immediate action is nonprocurement transactions, agencies suspending or debarring a person on the needed based on what a reasonably often accept bids, applications or basis of empty speculation or on mere prudent business person would be proposals subject to an eligibility suspicion of wrongdoing. expected to do given the risk potential determination on the date of award. Suspension, adequate evidence and under the circumstances. However, this rule does not require that immediate need. The standard for It is also important to note that the agencies do so. Each agency must suspension is a two part test. First, the standard of evidence for issuing a determine for itself whether to accept or suspending official must have adequate suspension does not change merely consider bids, applications or offers evidence that a cause for debarment because the respondent contests the submitted by an excluded person when exists. Second, the suspending official action and is able to marshal some there is a possibility that an exclusion must conclude that immediate action is information that conflicts with may end or be removed before the date necessary to protect Federal interests. In information the Government has of award. There may be little danger in a criminal case, the adequate evidence provided to the suspending official. In considering these submissions where it test is met by the presence of an cases where an investigation is still is clear from the EPLS that a debarment indictment or information. Suspensions underway, particularly when fact- will end on a date certain. However, based upon evidence other than an finding is not to be conducted at the where a suspension is in place, or the indictment are common during the request of the prosecuting officials, the debarred person is anticipating a course of an investigation when the suspending official must be careful not favorable ruling on a petition for early information available to the suspending to apply the debarment standard of reinstatement prior to award, caution is official is sufficient to support a preponderance of the evidence when advised. In any event, it is the reasonable belief that an act or omission deciding whether to continue the prerogative of the awarding agency to has occurred. In some cases, evidence suspension. To do so would place the decide whether and under what may be made available to the Government at a disadvantage and bring conditions it will accept or consider suspending official that is sensitive to the suspension decision out of context bids, applications or proposals under an ongoing investigation. The with its goal of temporary protection these circumstances. suspending official may have to review pending the outcome of an investigation What constitutes a new ‘‘award?’’ the evidence in camera and be unable or legal proceedings. Unless the Once a person is excluded under this to disclose the evidence to a suspended respondent is able to nullify the rule, it is important to note that the respondent. In such cases, it is evidentiary basis for the suspension exclusion applies to awards or important that the suspension notice without regard to resolving disputed transactions entered into on or after the contain enough information so that the material facts, the Government’s date of the exclusion. Because of the respondent can make a meaningful evidence may remain adequate to varying types of agreements and presentation of matters in opposition, support the action. However, a contracts that may exist, it is not always since a fact-finding proceeding is likely respondent may still attempt to have a easy to determine whether a transaction to be denied to resolve material facts in suspension removed by addressing the is part of an existing award or if it is a dispute. In any event, the record must Government’s immediate interests that new award subject to the exclusion. As contain the evidence that was are at risk. If the respondent can a rule of thumb, if the transaction in considered in issuing the suspension. demonstrate that the respondent has question requires the approval of the Even in cases where an indictment is taken protective action to eliminate, or party awarding the transaction or present, the suspending official must reduce to an acceptable level, the conferring the benefit, the transaction is determine that immediate action is Government’s risk pending completion a new award, and subject to the necessary to protect Federal interests of the investigation or legal proceedings, prohibition on using excluded persons. before imposing a suspension. As noted the suspending official may terminate a If the transaction is part of a larger in the preamble to the proposed changes suspension even though there is agreement and the legal obligation and to this rule, the determination of adequate evidence to support a authority to provide goods or services ‘‘immediate need’’ does not require that suspension. are already in place, the transaction may the suspending official issue a separate Impact Analysis—Executive Order be regarded as a preexisting transaction. finding. As stated by the court in 12866 No-cost time extensions under existing Coleman American Moving Services, awards can be treated as part of the Inc. v. Weinberger, 716 F. Supp. 1405 The participating agencies have existing award at the option of the (M.D. Ala. 1989), immediate need is a examined the economic implications of agency granting it. conclusion that a suspending official this final rule as required by Executive Evidence of misconduct versus mere may draw from inferences made from Order 12866, ‘‘Regulatory Planning and suspicion. Suspension or debarment the facts and circumstances present. In Review.’’ Executive Order 12866 directs may not be imposed upon mere cases of serious crimes such as fraud agencies to assess all costs and benefits suspicion of misconduct. While the against the Government, or criminal of available regulatory alternatives and, procedures under this rule do not activity that threatens the health and when regulation is necessary, to select require suspending or debarring officials safety of individuals, immediate need regulatory approaches that maximize to follow formal rules of evidence in may be obvious. In other cases, net benefits (including potential making decisions, they require that however, a suspending official’s economic, environmental, public health certain standards of proof of misconduct determination of immediate need may and safety, and other advantages; be met in order to suspend or debar a not be as clear. It is, therefore, important distributive impacts; and equity). person. These standards (adequate that the suspending official’s record be Executive Order 12866 classifies a rule evidence for suspension and sufficient for a reviewing court to as significant if it meets any one of a preponderance of the evidence for ascertain why immediate action was number of specified conditions,

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including: Having an annual effect on effect on the economy of $100 million l.205 Why is it important to know if a the economy of $100 million, adversely or more; result in an increase in cost or particular transaction is a covered affecting a sector of the economy in a prices; or have significant adverse transaction? l effects on competition, employment, .210 Which nonprocurement transactions material way, adversely affecting are covered transactions? competition, or adversely affecting jobs. investment, productivity, innovation, or l.215 Which nonprocurement transactions A regulation is also considered a on the ability of United States-based are not covered transactions? significant regulatory action if it raises companies to compete with foreign- l.220 Are any procurement contracts novel legal or policy issues. based companies in domestic and included as covered transactions? Although the participating agencies export markets. l.225 How do I know if a transaction in have determined that this final rule does which I may participate is a covered F. Executive Order 13132: Federalism not meet the economic significance transaction? threshold of $100 million effect on the This rule will not have substantial Subpart C—Responsibilities of Participants economy in any one year under Section direct effects on the States, on the Regarding Transactions relationship between the national 3(f)(1), the Office of Management and Doing Business With Other Persons Budget has reviewed this final rule as a government and the States, or on the l.300 What must I do before I enter into a significant regulatory action under the distribution of power and responsibilities among the various covered transaction with another person Executive Order. at the next lower tier? levels of government. Therefore, in B. Regulatory Flexibility Act l.305 May I enter into a covered accordance with section 6 of Executive transaction with an excluded or The Regulatory Flexibility Act (5 Order 13132, the participating agencies disqualified person? U.S.C. 605(b)) requires that, for each have determined that this rule does not l.310 What must I do if a Federal agency rule with a ‘‘significant economic have sufficient federalism implications excludes a person with whom I am impact on a substantial number of small to warrant the preparation of a already doing business in a covered entities,’’ an analysis must be prepared federalism summary impact statement. transaction? l.315 May I use the services of an describing the rule’s impact on small Text of the Final Common Rules excluded person as a principal under a entities and identifying any significant covered transaction? alternatives to the rule that would The text of the final common rules l.320 Must I verify that principals of my minimize the economic impact on small appear below: covered transactions are eligible to entities. 1. [Part/Subpart]lis revised to read as participate? The participating agencies certify that follows: l.325 What happens if I do business with this rule will not have a significant an excluded person in a covered [PART/ impact on a substantial number of small transaction? SUBPART]lGOVERNMENTWIDE l.330 What requirements must I pass entities. This rule addresses Federal DEBARMENT AND SUSPENSION down to persons at lower tiers with agency procedures for suspension and (NONPROCUREMENT) whom I intend to do business? debarment. It clarifies current requirements under the Disclosing Information—Primary Tier Sec. Participants Nonprocurement Common Rule for l.25 How is this part organized? Debarment and Suspension by l.50 How is this part written? l.335 What information must I provide reorganizing information and presenting l.75 Do terms in this part have special before entering into a covered meanings? transaction with the [Agency noun]? that information in a plain language, l.340 If I disclose unfavorable information question-and-answer format. Subpart A—General required under § l.335, will I be C. Unfunded Mandates Act of 1995 l.100 What does this part do? prevented from participating in the l.105 Does this part apply to me? transaction? The Unfunded Mandates Act of 1995 l.110 What is the purpose of the l.345 What happens if I fail to disclose the (Pub. L. 104–4) requires agencies to nonprocurement debarment and information required under § l.335? prepare several analytic statements suspension system? l.350 What must I do if I learn of the before proposing any rule that may l.115 How does an exclusion restrict a information required under § l.335 after entering into a covered transaction with result in annual expenditures of $100 person’s involvement in covered transactions? the [Agency noun]? million by State, local, Indian Tribal l .120 May we grant an exception to let an Disclosing Information—Lower Tier governments or the private sector. Since excluded person participate in a covered Participants this rule does not result in expenditures transaction? of this magnitude, the participating l.125 Does an exclusion under the l.355 What information must I provide to agencies certify that such statements are nonprocurement system affect a person’s a higher tier participant before entering not necessary. eligibility for Federal procurement into a covered transaction with that contracts? participant? D. Paperwork Reduction Act l.130 Does exclusion under the Federal l.360 What happens if I fail to disclose the information required under § l.355? The participating agencies certify that procurement system affect a person’s eligibility to participate in l.365 What must I do if I learn of this rule does not impose additional nonprocurement transactions? information required under § l.355 after reporting or recordkeeping requirements l.135 May the [Agency noun] exclude a entering into a covered transaction with under the Paperwork Reduction Act of person who is not currently participating a higher tier participant? 1995 (44 U.S.C. chapter 35). in a nonprocurement transaction? Subpart D—Responsibilities of [Agency l .140 How do I know if a person is adjective] Officials Regarding Transactions E. Small Business Regulatory excluded? Enforcement Fairness Act of 1996 l.145 Does this part address persons who l.400 May I enter into a transaction with This rule is not a major rule as are disqualified, as well as those who are an excluded or disqualified person? l.405 May I enter into a covered defined by section 251 of the Small excluded from nonprocurement transactions? transaction with a participant if a Business Regulatory Enforcement principal of the transaction is excluded? Fairness Act of 1996, (5 U.S.C. 804). Subpart B—Covered Transactions l.410 May I approve a participant’s use of This rule will not: Result in an annual l.200 What is a covered transaction? the services of an excluded person?

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l.415 What must I do if a Federal agency l.640 May a settlement include a l.860 What factors may influence the excludes the participant or a principal voluntary exclusion? debarring official’s decision? after I enter into a covered transaction? l.645 Do other Federal agencies know if l.865 How long may my debarment last? l.420 May I approve a transaction with an the [Agency noun] agrees to a voluntary l.870 When do I know if the debarring excluded or disqualified person at a exclusion? official debars me? lower tier? Subpart G—Suspension l.875 May I ask the debarring official to l.425 When do I check to see if a person reconsider a decision to debar me? is excluded or disqualified? l.700 When may the suspending official l.880 What factors may influence the l.430 How do I check to see if a person is issue a suspension? debarring official during l excluded or disqualified? .705 What does the suspending official reconsideration? l.435 What must I require of a primary tier consider in issuing a suspension? l.885 May the debarring official extend a l.710 When does a suspension take effect? participant? debarment? l.715 What notice does the suspending l.440 [Reserved] official give me if I am suspended? l Subpart I—Definitions .445 What action may I take if a primary l .720 How may I contest a suspension? l.900 Adequate evidence. tier participant knowingly does business l.725 How much time do I have to contest l.905 Affiliate. with an excluded or disqualified person? a suspension? l.910 Agency. l.450 What action may I take if a primary l.730 What information must I provide to l.915 Agent or representative. tier participant fails to disclose the the suspending official if I contest a l information required under § l.335? suspension? .920 Civil judgment. l l.455 What may I do if a lower tier l.735 Under what conditions do I get an .925 Conviction. l participant fails to disclose the additional opportunity to challenge the .930 Debarment. l information required under § l.355 to facts on which the suspension is based? .935 Debarring official. l the next higher tier? l.740 Are suspension proceedings formal? .940 Disqualified. l.945 Excluded or exclusion. Subpart E—Excluded Parties List System l.745 How is fact-finding conducted? l.750 What does the suspending official l.950 Excluded Parties List System. l.500 What is the purpose of the Excluded consider in deciding whether to continue l.955 Indictment. Parties List System (EPLS)? or terminate my suspension? l.960 Ineligible or ineligibility. l.505 Who uses the EPLS? l.755 When will I know whether the l.965 Legal proceedings. l.510 Who maintains the EPLS? suspension is continued or terminated? l.970 Nonprocurement transaction. l.515 What specific information is in the l.760 How long may my suspension last? l.975 Notice. EPLS? l.980 Participant. l.520 Who places the information into the Subpart H—Debarment l.985 Person. EPLS? l.800 What are the causes for debarment? l.990 Preponderance of the evidence. l.525 Whom do I ask if I have questions l.805 What notice does the debarring l.995 Principal. about a person in the EPLS? official give me if I am proposed for l.1000 Respondent. l.530 Where can I find the EPLS? debarment? l.1005 State. l l.1010 Suspending official. Subpart F—General Principles Relating to .810 When does a debarment take effect? l l.1015 Suspension. Suspension and Debarment Actions .815 How may I contest a proposed debarment? l.1020 Voluntary exclusion or voluntarily l.600 How do suspension and debarment l.820 How much time do I have to contest excluded. actions start? a proposed debarment? Subpart J—[Reserved] l.605 How does suspension differ from l.825 What information must I provide to debarment? the debarring official if I contest a Appendix to Part—Covered Transactions l.610 What procedures does the [Agency proposed debarment? noun] use in suspension and debarment l.830 Under what conditions do I get an Authority: Sec. 2455, Pub. L. 103–355, 108 actions? additional opportunity to challenge the Stat. 3327; E.O. 12549, 3 CFR, 1986 Comp., l.615 How does the [Agency noun] notify facts on which a proposed debarment is p.189; E.O. 12689, 3 CFR, 1989 Comp., p a person of a suspension or debarment based? .235. action? l .835 Are debarment proceedings formal? _ l.620 Do Federal agencies coordinate l.840 How is fact-finding conducted? § .25 How is this part organized? suspension and debarment actions? l.845 What does the debarring official (a) This part is subdivided into ten l.625 What is the scope of a suspension or consider in deciding whether to debar subparts. Each subpart contains debarment? me? l.630 May the [Agency noun] impute l.850 What is the standard of proof in a information related to a broad topic or conduct of one person to another? debarment action? specific audience with special l.635 May the [Agency noun] settle a l.855 Who has the burden of proof in a responsibilities, as shown in the debarment or suspension action? debarment action? following table:

In subpart . . . You will find provisions related to . . .

A ...... general information about this rule. B ...... the types of [Agency adjective] transactions that are covered by the Governmentwide nonprocurement suspension and debarment system. C ...... the responsibilities of persons who participate in covered transactions. D ...... the responsibilities of [Agency adjective] officials who are authorized to enter into covered transactions. E ...... the responsibilities of Federal agencies for the Excluded Parties List System (Disseminated by the General Serv- ices Administration). F ...... the general principles governing suspension, debarment, voluntary exclusion and settlement. G ...... suspension actions. H ...... debarment actions. I ...... definitions of terms used in this part. J ...... [Reserved]

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(b) The following table shows which Subpart A—General covered transaction under that agency’s subparts may be of special interest to regulation for debarment and you, depending on who you are: § l.100 What does this part do? suspension; or This part adopts a governmentwide (c) Act as a principal of a person If you are . . . See sub- system of debarment and suspension for participating in one of those covered part(s) . . . [Agency adjective] nonprocurement transactions. activities. It also provides for reciprocal (1) a participant or principal A, B, C, and I. exclusion of persons who have been § l.120 May we grant an exception to let in a nonprocurement trans- an excluded person participate in a covered action. excluded under the Federal Acquisition transaction? Regulation, and provides for the (2) a respondent in a suspen- A, B, F, G and (a) The [Agency head or designee] consolidated listing of all persons who sion action. I. may grant an exception permitting an (3) a respondent in a debar- A, B, F, H and are excluded, or disqualified by statute, excluded person to participate in a ment action. I. executive order, or other legal authority. particular covered transaction. If the (4) a suspending official ...... A, B, D, E, F, This part satisfies the requirements in [Agency head or designee] grants an G and I. section 3 of Executive Order 12549, exception, the exception must be in (5) a debarring official ...... A, B, D, E, F, ‘‘Debarment and Suspension’’ (3 CFR H and I. writing and state the reason(s) for 1986 Comp., p. 189), Executive Order (6) a (n) [Agency adjective] A, B, D, E and deviating from the governmentwide 12689, ‘‘Debarment and Suspension’’ (3 official authorized to enter I. policy in Executive Order 12549. CFR 1989 Comp., p. 235) and 31 U.S.C. into a covered transaction. (b) An exception granted by one 6101 note (Section 2455, Public Law (7) Reserved ...... J. agency for an excluded person does not 103–355, 108 Stat. 3327). extend to the covered transactions of _ § .50 How is this part written? § l.105 Does this part apply to me? another agency. (a) This part uses a ‘‘plain language’’ Portions of this part (see table at § l.125 Does an exclusion under the format to make it easier for the general § l.25(b)) apply to you if you are a(n)— nonprocurement system affect a person’s public and business community to use. (a) Person who has been, is, or may eligibility for Federal procurement The section headings and text, often in reasonably be expected to be, a contracts? the form of questions and answers, must participant or principal in a covered If any Federal agency excludes a be read together. transaction; person under its nonprocurement (b) Respondent (a person against (b) Pronouns used within this part, common rule on or after August 25, whom the [Agency noun] has initiated such as ‘‘I’’ and ‘‘you,’’ change from 1995, the excluded person is also a debarment or suspension action); subpart to subpart depending on the ineligible to participate in Federal (c) [Agency adjective] debarring or procurement transactions under the audience being addressed. The pronoun suspending official; or ‘‘we’’ always is the [Agency noun]. FAR. Therefore, an exclusion under this (d) [Agency adjective] official who is part has reciprocal effect in Federal (c) The ‘‘Covered Transactions’’ authorized to enter into covered procurement transactions. diagram in the appendix to this part transactions with non-Federal parties. shows the levels or ‘‘tiers’’ at which the § l.130 Does exclusion under the Federal [Agency noun] enforces an exclusion § l.110 What is the purpose of the procurement system affect a person’s nonprocurement debarment and under this part. eligibility to participate in nonprocurement suspension system? transactions? § l.75 Do terms in this part have special (a) To protect the public interest, the If any Federal agency excludes a meanings? Federal Government ensures the person under the FAR on or after This part uses terms throughout the integrity of Federal programs by August 25, 1995, the excluded person is text that have special meaning. Those conducting business only with also ineligible to participate in terms are defined in Subpart I of this responsible persons. nonprocurement covered transactions (b) A Federal agency uses the part. For example, three important terms under this part. Therefore, an exclusion nonprocurement debarment and are— under the FAR has reciprocal effect in suspension system to exclude from Federal nonprocurement transactions. (a) Exclusion or excluded, which Federal programs persons who are not refers only to discretionary actions presently responsible. § l.135 May the [Agency noun] exclude a taken by a suspending or debarring (c) An exclusion is a serious action person who is not currently participating in official under this part or the Federal that a Federal agency may take only to a nonprocurement transaction? Acquisition Regulation (48 CFR part 9, protect the public interest. A Federal Given a cause that justifies an subpart 9.4); agency may not exclude a person or exclusion under this part, we may (b) Disqualification or disqualified, commodity for the purposes of exclude any person who has been which refers to prohibitions under punishment. involved, is currently involved, or may specific statutes, executive orders (other reasonably be expected to be involved § l.115 How does an exclusion restrict a in a covered transaction. than Executive Order 12549 and person’s involvement in covered Executive Order 12689), or other transactions? § l.140 How do I know if a person is authorities. Disqualifications frequently With the exceptions stated in excluded? are not subject to the discretion of an §§ l.120, l.315, and l.420, a person Check the Excluded Parties List agency official, may have a different who is excluded by the [Agency noun] System (EPLS) to determine whether a scope than exclusions, or have special or any other Federal agency may not: person is excluded. The General conditions that apply to the (a) Be a participant in a(n) [Agency Services Administration (GSA) disqualification; and adjective] transaction that is a covered maintains the EPLS and makes it (c) Ineligibility or ineligible, which transaction under subpart B of this part; available, as detailed in subpart E of this generally refers to a person who is either (b) Be a participant in a transaction of part. When a Federal agency takes an excluded or disqualified. any other Federal agency that is a action to exclude a person under the

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nonprocurement or procurement (1) The person who entered into the (1) Do not include any procurement debarment and suspension system, the transaction with you allows you to contracts awarded directly by a Federal agency enters the information about the continue your involvement in a agency; but excluded person into the EPLS. transaction that predates your (2) Do include some procurement exclusion, as permitted under § l.310 contracts awarded by non-Federal § l.145 Does this part address persons l who are disqualified, as well as those who or § .415; or participants in nonprocurement covered are excluded from nonprocurement (2) A(n) [Agency adjective] official transactions (see appendix to this part). transactions? obtains an exception from the [Agency (b) Specifically, a contract for goods Except if provided for in Subpart J of head or designee] to allow you to be or services is a covered transaction if this part, this part— involved in the transaction, as permitted any of the following applies: (a) Addresses disqualified persons under § l.120. (1) The contract is awarded by a participant in a nonprocurement only to— § l.210 Which nonprocurement (1) Provide for their inclusion in the transactions are covered transactions? transaction that is covered under § l.210, and the amount of the contract EPLS; and All nonprocurement transactions, as (2) State responsibilities of Federal is expected to equal or exceed $25,000. defined in § l.970, are covered agencies and participants to check for (2) The contract requires the consent transactions unless listed in § l.215. disqualified persons before entering into of a(n) [Agency adjective] official. In (See appendix to this part.) covered transactions. that case, the contract, regardless of the (b) Does not specify the— § l.215 Which nonprocurement amount, always is a covered transaction, (1) [Agency adjective] transactions for transactions are not covered transactions? and it does not matter who awarded it. which a disqualified person is The following types of For example, it could be a subcontract ineligible. Those transactions vary on a nonprocurement transactions are not awarded by a contractor at a tier below case-by-case basis, because they depend covered transactions: a nonprocurement transaction, as shown on the language of the specific statute, (a) A direct award to— in the appendix to this part. Executive order, or regulation that (1) A foreign government or foreign (3) The contract is for federally- caused the disqualification; governmental entity; required audit services. (2) Entities to which the (2) A public international § l.225 How do I know if a transaction in disqualification applies; or organization; (3) Process that the agency uses to which I may participate is a covered (3) An entity owned (in whole or in transaction? disqualify a person. Unlike exclusion, part) or controlled by a foreign disqualification is frequently not a government; or As a participant in a transaction, you discretionary action that a Federal (4) Any other entity consisting wholly will know that it is a covered agency takes. or partially of one or more foreign transaction because the agency regulations governing the transaction, Subpart B—Covered Transactions governments or foreign governmental entities. the appropriate agency official, or § l.200 What is a covered transaction? (b) A benefit to an individual as a participant at the next higher tier who enters into the transaction with you, A covered transaction is a personal entitlement without regard to will tell you that you must comply with nonprocurement or procurement the individual’s present responsibility applicable portions of this part. transaction that is subject to the (but benefits received in an individual’s business capacity are not excepted). For prohibitions of this part. It may be a Subpart C—Responsibilities of example, if a person receives social transaction at— Participants Regarding Transactions (a) The primary tier, between a security benefits under the Federal agency and a person (see Supplemental Security Income Doing Business With Other Persons appendix to this part); or provisions of the Social Security Act, 42 (b) A lower tier, between a participant U.S.C. 1301 et seq., those benefits are § l.300 What must I do before I enter into in a covered transaction and another not covered transactions and, therefore, a covered transaction with another person at the next lower tier? person. are not affected if the person is excluded. When you enter into a covered § l.205 Why is it important if a particular (c) Federal employment. transaction with another person at the transaction is a covered transaction? (d) A transaction that the [Agency next lower tier, you must verify that the The importance of a covered noun] needs to respond to a national or person with whom you intend to do transaction depends upon who you are. agency-recognized emergency or business is not excluded or disqualified. (a) As a participant in the transaction, disaster. You do this by: you have the responsibilities laid out in (e) A permit, license, certificate, or (a) Checking the EPLS; or Subpart C of this part. Those include similar instrument issued as a means to (b) Collecting a certification from that responsibilities to the person or Federal regulate public health, safety, or the person if allowed by this rule; or agency at the next higher tier from environment, unless the [Agency noun] (c) Adding a clause or condition to the whom you received the transaction, if specifically designates it to be a covered covered transaction with that person. any. They also include responsibilities transaction. if you subsequently enter into other (f) An incidental benefit that results § l.305 May I enter into a covered covered transactions with persons at the transaction with an excluded or disqualified from ordinary governmental operations. person? next lower tier. (g) Any other transaction if the (b) As a Federal official who enters application of an exclusion to the (a) You as a participant may not enter into a primary tier transaction, you have transaction is prohibited by law. into a covered transaction with an the responsibilities laid out in subpart D excluded person, unless the [Agency of this part. § l.220 Are any procurement contracts noun] grants an exception under § _.120. (c) As an excluded person, you may included as covered transactions? (b) You may not enter into any not be a participant or principal in the (a) Covered transactions under this transaction with a person who is transaction unless— part— disqualified from that transaction,

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unless you have obtained an exception § l.330 What requirements must I pass that you knew at the time you entered under the disqualifying statute, down to persons at lower tiers with whom into the covered transaction, we may— I intend to do business? Executive order, or regulation. (a) Terminate the transaction for Before entering into a covered § l.310 What must I do if a Federal material failure to comply with the transaction with a participant at the terms and conditions of the transaction; agency excludes a person with whom I am next lower tier, you must require that already doing business in a covered or transaction? participant to— (a) Comply with this subpart as a (b) Pursue any other available (a) You as a participant may continue condition of participation in the remedies, including suspension and covered transactions with an excluded transaction. You may do so using any debarment. person if the transactions were in method(s), unless § l.440 requires you existence when the agency excluded the § l.350 What must I do if I learn of to use specific methods. information required under § l.335 after person. However, you are not required (b) Pass the requirement to comply to continue the transactions, and you entering into a covered transaction with the with this subpart to each person with [Agency noun]? may consider termination. You should whom the participant enters into a make a decision about whether to covered transaction at the next lower At any time after you enter into a terminate and the type of termination tier. covered transaction, you must give action, if any, only after a thorough immediate written notice to the [Agency review to ensure that the action is Disclosing Information—Primary Tier adjective] office with which you entered proper and appropriate. Participants into the transaction if you learn either (b) You may not renew or extend that— § l.335 What information must I provide covered transactions (other than no-cost before entering into a covered transaction (a) You failed to disclose information time extensions) with any excluded with the [Agency noun]? earlier, as required by § l.335; or person, unless the [Agency noun] grants Before you enter into a covered an exception under § l.120. (b) Due to changed circumstances, transaction at the primary tier, you as you or any of the principals for the § l.315 May I use the services of an the participant must notify the [Agency transaction now meet any of the criteria excluded person as a principal under a adjective] office that is entering into the in § l.335. covered transaction? transaction with you, if you know that (a) You as a participant may continue you or any of the principals for that Disclosing Information—Lower Tier to use the services of an excluded covered transaction: Participants person as a principal under a covered (a) Are presently excluded or § l.355 What information must I provide transaction if you were using the disqualified; to a higher tier participant before entering services of that person in the transaction (b) Have been convicted within the into a covered transaction with that before the person was excluded. preceding three years of any of the participant? However, you are not required to offenses listed in § l.800(a) or had a continue using that person’s services as civil judgment rendered against you for Before you enter into a covered a principal. You should make a decision one of those offenses within that time transaction with a person at the next about whether to discontinue that period; higher tier, you as a lower tier person’s services only after a thorough (c) Are presently indicted for or participant must notify that person if review to ensure that the action is otherwise criminally or civilly charged you know that you or any of the proper and appropriate. by a governmental entity (Federal, State principals are presently excluded or (b) You may not begin to use the or local) with commission of any of the disqualified. services of an excluded person as a offenses listed in § l.800(a); or § l.360 What happens if I fail to disclose principal under a covered transaction (d) Have had one or more public the information required under § l.355? unless the [Agency noun] grants an transactions (Federal, State, or local) exception under § l.120. terminated within the preceding three If we later determine that you failed years for cause or default. to tell the person at the higher tier that § l.320 Must I verify that principals of my you were excluded or disqualified at the covered transactions are eligible to § l.340 If I disclose unfavorable time you entered into the covered participate? information required under § l.335, will I be transaction with that person, we may Yes, you as a participant are prevented from participating in the pursue any available remedies, responsible for determining whether transaction? including suspension and debarment. any of your principals of your covered As a primary tier participant, your transactions is excluded or disqualified disclosure of unfavorable information § l.365 What must I do if I learn of from participating in the transaction. about yourself or a principal under information required under § l.355 after § l.335 will not necessarily cause us to entering into a covered transaction with a You may decide the method and higher tier participant? frequency by which you do so. You deny your participation in the covered may, but you are not required to, check transaction. We will consider the At any time after you enter into a the EPLS. information when we determine lower tier covered transaction with a whether to enter into the covered person at a higher tier, you must § l.325 What happens if I do business transaction. We also will consider any provide immediate written notice to that with an excluded person in a covered additional information or explanation transaction? person if you learn either that— that you elect to submit with the (a) You failed to disclose information If as a participant you knowingly do disclosed information. business with an excluded person, we earlier, as required by § l.355; or may disallow costs, annul or terminate § l.345 What happens if I fail to disclose (b) Due to changed circumstances, the transaction, issue a stop work order, information required under § l.335? you or any of the principals for the debar or suspend you, or take other If we later determine that you failed transaction now meet any of the criteria remedies as appropriate. to disclose information under § l.335 in § l.355.

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Subpart D—Responsibilities of (b) A transaction with a person who the time it entered into a covered [Agency adjective] Officials Regarding is disqualified from that transaction, transaction with you, you may— Transactions unless you obtain a waiver or exception (a) Terminate the transaction for under the statute, Executive order, or material failure to comply with the § l.400 May I enter into a transaction with regulation that is the basis for the terms and conditions of the transaction; an excluded or disqualified person? person’s disqualification. or (a) You as an agency official may not (b) Pursue any other available enter into a covered transaction with an § l.425 When do I check to see if a remedies, including suspension and person is excluded or disqualified? excluded person unless you obtain an debarment. exception under § l.120. As an agency official, you must check (b) You may not enter into any to see if a person is excluded or § l.455 What may I do if a lower tier transaction with a person who is disqualified before you— participant fails to disclose the information disqualified from that transaction, (a) Enter into a primary tier covered required under § l.355 to the next higher unless you obtain a waiver or exception transaction; tier? under the statute, Executive order, or (b) Approve a principal in a primary If you as an agency official determine regulation that is the basis for the tier covered transaction; that a lower tier participant failed to person’s disqualification. (c) Approve a lower tier participant if disclose information, as required by agency approval of the lower tier § l.355, at the time it entered into a l § .405 May I enter into a covered participant is required; or covered transaction with a participant at transaction with a participant if a principal of the transaction is excluded? (d) Approve a principal in connection the next higher tier, you may pursue any with a lower tier transaction if agency remedies available to you, including the As an agency official, you may not approval of the principal is required. initiation of a suspension or debarment enter into a covered transaction with a action. participant if you know that a principal § l.430 How do I check to see if a person of the transaction is excluded, unless is excluded or disqualified? Subpart E—Excluded Parties List you obtain an exception under § l.120. You check to see if a person is System excluded or disqualified in two ways: § l.410 May I approve a participant’s use § l.500 What is the purpose of the of the services of an excluded person? (a) You as an agency official must check the EPLS when you take any Excluded Parties List System (EPLS)? After entering into a covered action listed in § l.425. The EPLS is a widely available source transaction with a participant, you as an (b) You must review information that of the most current information about agency official may not approve a a participant gives you, as required by persons who are excluded or participant’s use of an excluded person § l.335, about its status or the status of disqualified from covered transactions. as a principal under that transaction, the principals of a transaction. unless you obtain an exception under § l.505 Who uses the EPLS? § l.120. § l.435 What must I require of a primary (a) Federal agency officials use the tier participant? § l.415 What must I do if a Federal EPLS to determine whether to enter into agency excludes the participant or a You as an agency official must require a transaction with a person, as required principal after I enter into a covered each participant in a primary tier under § l.430. transaction? covered transaction to— (b) Participants also may, but are not (a) You as an agency official may (a) Comply with subpart C of this part required to, use the EPLS to determine continue covered transactions with an as a condition of participation in the if— excluded person, or under which an transaction; and (1) Principals of their transactions are excluded person is a principal, if the (b) Communicate the requirement to excluded or disqualified, as required transactions were in existence when the comply with Subpart C of this part to under § l.320; or person was excluded. You are not persons at the next lower tier with (2) Persons with whom they are required to continue the transactions, whom the primary tier participant entering into covered transactions at the however, and you may consider enters into covered transactions. next lower tier are excluded or termination. You should make a § l.440 [Reserved] disqualified. decision about whether to terminate and (c) The EPLS is available to the the type of termination action, if any, § l.445 What action may I take if a general public. primary tier participant knowingly does only after a thorough review to ensure § l.510 Who maintains the EPLS? that the action is proper. business with an excluded or disqualified (b) You may not renew or extend person? In accordance with the OMB covered transactions (other than no-cost If a participant knowingly does guidelines, the General Services time extensions) with any excluded business with an excluded or Administration (GSA) maintains the person, or under which an excluded disqualified person, you as an agency EPLS. When a Federal agency takes an person is a principal, unless you obtain official may refer the matter for action to exclude a person under the an exception under § l.120. suspension and debarment nonprocurement or procurement consideration. You may also disallow debarment and suspension system, the § l.420 May I approve a transaction with costs, annul or terminate the agency enters the information about the an excluded or disqualified person at a transaction, issue a stop work order, or excluded person into the EPLS. lower tier? take any other appropriate remedy. If a transaction at a lower tier is § l.515 What specific information is in the subject to your approval, you as an § l.450 What action may I take if a EPLS? agency official may not approve— primary tier participant fails to disclose the (a) At a minimum, the EPLS (a) A covered transaction with a information required under § l.335? indicates— person who is currently excluded, If you as an agency official determine (1) The full name (where available) unless you obtain an exception under that a participant failed to disclose and address of each excluded or § l.120; or information, as required by § l.335, at disqualified person, in alphabetical

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order, with cross references if more than enter the following information about (b) As of November 26, 2003, you may one name is involved in a single action; those persons into the EPLS: also subscribe to a printed version. (2) The type of action; (a) Information required by However, we anticipate discontinuing (3) The cause for the action; § l.515(a); the printed version. Until it is (4) The scope of the action; (b) The Taxpayer Identification discontinued, you may obtain the (5) Any termination date for the Number (TIN) of the excluded or printed version by purchasing a yearly action; disqualified person, including the social subscription from the Superintendent of security number (SSN) for an (6) The agency and name and Documents, U.S. Government Printing individual, if the number is available telephone number of the agency point of Office, Washington, DC 20402, or by contact for the action; and and may be disclosed under law; calling the Government Printing Office (7) The Dun and Bradstreet Number (c) Information about an excluded or Inquiry and Order Desk at (202) 783– (DUNS), or other similar code approved disqualified person, generally within by the GSA, of the excluded or five working days, after— 3238. (1) Taking an exclusion action; disqualified person, if available. Subpart F—General Principles Relating (b)(1) The database for the EPLS (2) Modifying or rescinding an to Suspension and Debarment Actions includes a field for the Taxpayer exclusion action; Identification Number (TIN) (the social (3) Finding that a person is disqualified; or § l.600 How do suspension and security number (SSN) for an (4) Finding that there has been a debarment actions start? individual) of an excluded or change in the status of a person who is When we receive information from disqualified person. listed as disqualified. (2) Agencies disclose the SSN of an any source concerning a cause for individual to verify the identity of an § l.525 Whom do I ask if I have questions suspension or debarment, we will individual, only if permitted under the about a person in the EPLS? promptly report and investigate it. We Privacy Act of 1974 and, if appropriate, If you have questions about a person refer the question of whether to suspend the Computer Matching and Privacy in the EPLS, ask the point of contact for or debar you to our suspending or Protection Act of 1988, as codified in 5 the Federal agency that placed the debarring official for consideration, if U.S.C. 552(a). person’s name into the EPLS. You may appropriate. find the agency point of contact from § l.520 Who places the information into the EPLS. § l.605 How does suspension differ from the EPLS? debarment? § l.530 Where can I find the EPLS? Federal officials who take actions to Suspension differs from debarment in exclude persons under this part or (a) You may access the EPLS through that— officials who are responsible for the Internet, currently at http:// identifying disqualified persons must epls.arnet.gov.

A suspending official . . . A debarring official . . .

(a) Imposes suspension as a temporary status of ineligibility for pro- Imposes debarment for a specified period as a final determination that curement and nonprocurement transactions, pending completion of a person is not presently responsible. an investigation or legal proceedings. (b) Must— ...... Must conclude, based on a preponderance of the evidence, that the (1) Have adequate evidence that there may be a cause for debarment person has engaged in conduct that warrants debarment. of a person; and. (2) Conclude that immediate action is necessary to protect the Federal interest. (c) Usually imposes the suspension first, and then promptly notifies the Imposes debarment after giving the respondent notice of the action suspended person, giving the person an opportunity to contest the and an opportunity to contest the proposed debarment. suspension and have it lifted.

§ l.610 What procedures does the known street address, facsimile number, § l.625 What is the scope of a [Agency noun] use in suspension and or e-mail address of— suspension or debarment? debarment actions? (1) You or your identified counsel; or If you are suspended or debarred, the In deciding whether to suspend or (2) Your agent for service of process, suspension or debarment is effective as debar you, we handle the actions as or any of your partners, officers, follows: informally as practicable, consistent directors, owners, or joint venturers. (a) Your suspension or debarment with principles of fundamental fairness. (b) The notice is effective if sent to constitutes suspension or debarment of any of these persons. (a) For suspension actions, we use the all of your divisions and other procedures in this subpart and subpart § l.620 Do Federal agencies coordinate organizational elements from all G of this part. suspension and debarment actions? covered transactions, unless the suspension or debarment decision is (b) For debarment actions, we use the Yes, when more than one Federal limited— procedures in this subpart and subpart agency has an interest in a suspension H of this part. or debarment, the agencies may (1) By its terms to one or more consider designating one agency as the specifically identified individuals, § l.615 How does the [Agency noun] lead agency for making the decision. divisions, or other organizational notify a person of a suspension or Agencies are encouraged to establish elements; or debarment action? methods and procedures for (2) To specific types of transactions. (a) The suspending or debarring coordinating their suspension and (b) Any affiliate of a participant may official sends a written notice to the last debarment actions. be included in a suspension or

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debarment action if the suspending or § l.645 Do other Federal agencies know if § l.715 What notice does the suspending debarring official— the [Agency noun] agrees to a voluntary official give me if I am suspended? (1) Officially names the affiliate in the exclusion? After deciding to suspend you, the notice; and (a) Yes, we enter information suspending official promptly sends you (2) Gives the affiliate an opportunity regarding a voluntary exclusion into the a Notice of Suspension advising you— to contest the action. EPLS. (a) That you have been suspended; § l.630 May the [Agency noun] impute (b) Also, any agency or person may (b) That your suspension is based conduct of one person to another? contact us to find out the details of a on— For purposes of actions taken under voluntary exclusion. (1) An indictment; this rule, we may impute conduct as (2) A conviction; follows: Subpart G—Suspension (3) Other adequate evidence that you (a) Conduct imputed from an § l.700 When may the suspending official have committed irregularities which individual to an organization. We may issue a suspension? seriously reflect on the propriety of impute the fraudulent, criminal, or further Federal Government dealings other improper conduct of any officer, Suspension is a serious action. Using with you; or the procedures of this subpart and director, shareholder, partner, (4) Conduct of another person that has subpart F of this part, the suspending employee, or other individual been imputed to you, or your affiliation official may impose suspension only associated with an organization, to that with a suspended or debarred person; when that official determines that— organization when the improper (c) Of any other irregularities in terms conduct occurred in connection with (a) There exists an indictment for, or sufficient to put you on notice without the individual’s performance of duties other adequate evidence to suspect, an disclosing the Federal Government’s for or on behalf of that organization, or offense listed under § l.800(a), or evidence; with the organization’s knowledge, (b) There exists adequate evidence to (d) Of the cause(s) upon which we approval or acquiescence. The suspect any other cause for debarment relied under § l.700 for imposing _ organization’s acceptance of the benefits listed under § .800(b) through (d); and suspension; derived from the conduct is evidence of (c) Immediate action is necessary to (e) That your suspension is for a knowledge, approval or acquiescence. protect the public interest. temporary period pending the (b) Conduct imputed from an completion of an investigation or organization to an individual, or § l.705 What does the suspending official consider in issuing a suspension? resulting legal or debarment between individuals. We may impute proceedings; the fraudulent, criminal, or other (a) In determining the adequacy of the (f) Of the applicable provisions of this improper conduct of any organization to evidence to support the suspension, the subpart, Subpart F of this part, and any an individual, or from one individual to suspending official considers how much other [Agency adjective] procedures another individual, if the individual to information is available, how credible it governing suspension decision making; whom the improper conduct is imputed is given the circumstances, whether or and either participated in, had knowledge not important allegations are (g) Of the governmentwide effect of of, or reason to know of the improper corroborated, and what inferences can your suspension from procurement and conduct. reasonably be drawn as a result. During nonprocurement programs and (c) Conduct imputed from one this assessment, the suspending official activities. organization to another organization. may examine the basic documents, We may impute the fraudulent, including grants, cooperative § l.720 How may I contest a suspension? criminal, or other improper conduct of agreements, loan authorizations, If you as a respondent wish to contest one organization to another organization contracts, and other relevant a suspension, you or your representative when the improper conduct occurred in documents. must provide the suspending official connection with a partnership, joint (b) An indictment, conviction, civil with information in opposition to the venture, joint application, association or judgment, or other official findings by suspension. You may do this orally or similar arrangement, or when the Federal, State, or local bodies that in writing, but any information organization to whom the improper determine factual and/or legal matters, provided orally that you consider conduct is imputed has the power to constitutes adequate evidence for important must also be submitted in direct, manage, control or influence the purposes of suspension actions. writing for the official record. activities of the organization responsible (c) In deciding whether immediate l for the improper conduct. Acceptance of action is needed to protect the public § .725 How much time do I have to contest a suspension? the benefits derived from the conduct is interest, the suspending official has evidence of knowledge, approval or wide discretion. For example, the (a) As a respondent you or your acquiescence. suspending official may infer the representative must either send, or make rrangements to appear and present, the § l.635 May the [Agency noun] settle a necessity for immediate action to debarment or suspension action? protect the public interest either from information and argument to the suspending official within 30 days after Yes, we may settle a debarment or the nature of the circumstances giving you receive the Notice of Suspension. suspension action at any time if it is in rise to a cause for suspension or from (b) We consider the notice to be the best interest of the Federal potential business relationships or received by you— Government. involvement with a program of the Federal Government. (1) When delivered, if we mail the § l.640 May a settlement include a notice to the last known street address, voluntary exclusion? § l.710 When does a suspension take or five days after we send it if the letter Yes, if we enter into a settlement with effect? is undeliverable; you in which you agree to be excluded, A suspension is effective when the (2) When sent, if we send the notice it is called a voluntary exclusion and suspending official signs the decision to by facsimile or five days after we send has governmentwide effect. suspend. it if the facsimile is undeliverable; or

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(3) When delivered, if we send the (b) You will have an opportunity to § l.755 When will I know whether the notice by e-mail or five days after we challenge the facts if the suspending suspension is continued or terminated? send it if the e-mail is undeliverable. official determines that— The suspending official must make a (1) The conditions in paragraph (a) of written decision whether to continue, § l.730 What information must I provide this section do not exist; and modify, or terminate your suspension to the suspending official if I contest a within 45 days of closing the official suspension? (2) Your presentation in opposition record. The official record closes upon (a) In addition to any information and raises a genuine dispute over facts material to the suspension. the suspending official’s receipt of final argument in opposition, as a respondent submissions, information and findings your submission to the suspending (c) If you have an opportunity to challenge disputed material facts under of fact, if any. The suspending official official must identify— may extend that period for good cause. (1) Specific facts that contradict the this section, the suspending official or statements contained in the Notice of designee must conduct additional § l.760 How long may my suspension Suspension. A general denial is proceedings to resolve those facts. last? insufficient to raise a genuine dispute § l.740 Are suspension proceedings (a) If legal or debarment proceedings over facts material to the suspension; formal? are initiated at the time of, or during (2) All existing, proposed, or prior your suspension, the suspension may (a) Suspension proceedings are continue until the conclusion of those exclusions under regulations conducted in a fair and informal implementing E.O. 12549 and all similar proceedings. However, if proceedings manner. The suspending official may are not initiated, a suspension may not actions taken by Federal, state, or local use flexible procedures to allow you to agencies, including administrative exceed 12 months. present matters in opposition. In so (b) The suspending official may agreements that affect only those doing, the suspending official is not agencies; extend the 12 month limit under required to follow formal rules of paragraph (a) of this section for an (3) All criminal and civil proceedings evidence or procedure in creating an not included in the Notice of additional 6 months if an office of a U.S. official record upon which the official Assistant Attorney General, U.S. Suspension that grew out of facts will base a final suspension decision. relevant to the cause(s) stated in the Attorney, or other responsible (b) You as a respondent or your notice; and prosecuting official requests an representative must submit any (4) All of your affiliates. extension in writing. In no event may a documentary evidence you want the (b) If you fail to disclose this suspension exceed 18 months without suspending official to consider. information, or provide false initiating proceedings under paragraph information, the [Agency noun] may § l.745 How is fact-finding conducted? (a) of this section. (c) The suspending official must seek further criminal, civil or (a) If fact-finding is conducted— administrative action against you, as notify the appropriate officials under (1) You may present witnesses and appropriate. paragraph (b) of this section of an other evidence, and confront any impending termination of a suspension § l.735 Under what conditions do I get an witness presented; and at least 30 days before the 12 month additional opportunity to challenge the (2) The fact-finder must prepare period expires to allow the officials an facts on which the suspension is based? written findings of fact for the record. opportunity to request an extension. (a) You as a respondent will not have (b) A transcribed record of fact- an additional opportunity to challenge finding proceedings must be made, Subpart H—Debarment the facts if the suspending official unless you as a respondent and the § l.800 What are the causes for determines that— [Agency noun] agree to waive it in debarment? (1) Your suspension is based upon an advance. If you want a copy of the We may debar a person for— indictment, conviction, civil judgment, transcribed record, you may purchase it. (a) Conviction of or civil judgment or other finding by a Federal, State, or for— local body for which an opportunity to § l.750 What does the suspending official consider in deciding whether to continue or (1) Commission of fraud or a criminal contest the facts was provided; terminate my suspension? offense in connection with obtaining, (2) Your presentation in opposition (a) The suspending official bases the attempting to obtain, or performing a contains only general denials to public or private agreement or information contained in the Notice of decision on all information contained in the official record. The record transaction; Suspension; (2) Violation of Federal or State includes— (3) The issues raised in your antitrust statutes, including those (1) All information in support of the presentation in opposition to the proscribing price fixing between suspending official’s initial decision to suspension are not factual in nature, or competitors, allocation of customers suspend you; are not material to the suspending between competitors, and bid rigging; official’s initial decision to suspend, or (2) Any further information and (3) Commission of embezzlement, the official’s decision whether to argument presented in support of, or theft, forgery, bribery, falsification or continue the suspension; or opposition to, the suspension; and destruction of records, making false (4) On the basis of advice from the (3) Any transcribed record of fact- statements, tax evasion, receiving stolen Department of Justice, an office of the finding proceedings. property, making false claims, or United States Attorney, a State attorney (b) The suspending official may refer obstruction of justice; or general’s office, or a State or local disputed material facts to another (4) Commission of any other offense prosecutor’s office, that substantial official for findings of fact. The indicating a lack of business integrity or interests of the government in pending suspending official may reject any business honesty that seriously and or contemplated legal proceedings based resulting findings, in whole or in part, directly affects your present on the same facts as the suspension only after specifically determining them responsibility; would be prejudiced by conducting fact- to be arbitrary, capricious, or clearly (b) Violation of the terms of a public finding. erroneous. agreement or transaction so serious as to

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affect the integrity of an agency nonprocurement programs and (3) All criminal and civil proceedings program, such as— activities. not included in the Notice of Proposed (1) A willful failure to perform in Debarment that grew out of facts accordance with the terms of one or § l.810 When does a debarment take relevant to the cause(s) stated in the effect? more public agreements or transactions; notice; and (2) A history of failure to perform or A debarment is not effective until the (4) All of your affiliates. of unsatisfactory performance of one or debarring official issues a decision. The (b) If you fail to disclose this more public agreements or transactions; debarring official does not issue a information, or provide false or decision until the respondent has had information, the [Agency noun] may (3) A willful violation of a statutory or an opportunity to contest the proposed seek further criminal, civil or regulatory provision or requirement debarment. administrative action against you, as applicable to a public agreement or appropriate. transaction; § l.815 How may I contest a proposed (c) Any of the following causes: debarment? § l.830 Under what conditions do I get an (1) A nonprocurement debarment by If you as a respondent wish to contest additional opportunity to challenge the any Federal agency taken before October a proposed debarment, you or your facts on which a proposed debarment is 1, 1988, or a procurement debarment by representative must provide the based? any Federal agency taken pursuant to 48 debarring official with information in (a) You as a respondent will not have CFR part 9, subpart 9.4, before August opposition to the proposed debarment. an additional opportunity to challenge 25, 1995; You may do this orally or in writing, but the facts if the debarring official (2) Knowingly doing business with an any information provided orally that determines that— ineligible person, except as permitted you consider important must also be (1) Your debarment is based upon a under § l.120; submitted in writing for the official conviction or civil judgment; (3) Failure to pay a single substantial record. (2) Your presentation in opposition debt, or a number of outstanding debts contains only general denials to (including disallowed costs and § l.820 How much time do I have to contest a proposed debarment? information contained in the Notice of overpayments, but not including sums Proposed Debarment; or owed the Federal Government under the (a) As a respondent you or your (3) The issues raised in your Internal Revenue Code) owed to any representative must either send, or make presentation in opposition to the Federal agency or instrumentality, arrangements to appear and present, the proposed debarment are not factual in provided the debt is uncontested by the information and argument to the nature, or are not material to the debtor or, if contested, provided that the debarring official within 30 days after debarring official’s decision whether to debtor’s legal and administrative you receive the Notice of Proposed debar. remedies have been exhausted; Debarment. (b) You will have an additional (4) Violation of a material provision of (b) We consider the Notice of opportunity to challenge the facts if the a voluntary exclusion agreement entered Proposed Debarment to be received by debarring official determines that— into under § l.640 or of any settlement you— (1) The conditions in paragraph (a) of of a debarment or suspension action; or (1) When delivered, if we mail the this section do not exist; and (5) Violation of the provisions of the notice to the last known street address, (2) Your presentation in opposition Drug-Free Workplace Act of 1988 (41 or five days after we send it if the letter raises a genuine dispute over facts U.S.C. 701); or is undeliverable; (d) Any other cause of so serious or material to the proposed debarment. (2) When sent, if we send the notice (c) If you have an opportunity to compelling a nature that it affects your by facsimile or five days after we send present responsibility. challenge disputed material facts under it if the facsimile is undeliverable; or this section, the debarring official or § l.805 What notice does the debarring (3) When delivered, if we send the designee must conduct additional official give me if I am proposed for notice by e-mail or five days after we proceedings to resolve those facts. debarment? send it if the e-mail is undeliverable. After consideration of the causes in § l.835 Are debarment proceedings § l.825 What information must I provide formal? § l.800 of this subpart, if the debarring to the debarring official if I contest a (a) Debarment proceedings are official proposes to debar you, the proposed debarment? official sends you a Notice of Proposed conducted in a fair and informal (a) In addition to any information and Debarment, pursuant to § l.615, manner. The debarring official may use argument in opposition, as a respondent advising you— flexible procedures to allow you as a (a) That the debarring official is your submission to the debarring official respondent to present matters in considering debarring you; must identify— opposition. In so doing, the debarring (b) Of the reasons for proposing to (1) Specific facts that contradict the official is not required to follow formal debar you in terms sufficient to put you statements contained in the Notice of rules of evidence or procedure in on notice of the conduct or transactions Proposed Debarment. Include any creating an official record upon which upon which the proposed debarment is information about any of the factors the official will base the decision based; listed in § l.860. A general denial is whether to debar. (c) Of the cause(s) under § l.800 insufficient to raise a genuine dispute (b) You or your representative must upon which the debarring official relied over facts material to the debarment; submit any documentary evidence you for proposing your debarment; (2) All existing, proposed, or prior want the debarring official to consider. (d) Of the applicable provisions of exclusions under regulations this subpart, Subpart F of this part, and implementing E.O. 12549 and all similar § l.840 How is fact-finding conducted? any other [Agency adjective] procedures actions taken by Federal, State, or local (a) If fact-finding is conducted— governing debarment; and agencies, including administrative (1) You may present witnesses and (e) Of the governmentwide effect of a agreements that affect only those other evidence, and confront any debarment from procurement and agencies; witness presented; and

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(2) The fact-finder must prepare nonexistence of any factor, such as one ethics training and implementing written findings of fact for the record. of those set forth in this section, is not programs to prevent recurrence. (b) A transcribed record of fact- necessarily determinative of your (m) Whether your principals tolerated finding proceedings must be made, present responsibility. In making a the offense. unless you as a respondent and the debarment decision, the debarring (n) Whether you brought the activity [Agency noun] agree to waive it in official may consider the following cited as a basis for the debarment to the advance. If you want a copy of the factors: attention of the appropriate government transcribed record, you may purchase it. (a) The actual or potential harm or agency in a timely manner. impact that results or may result from (o) Whether you have fully § l.845 What does the debarring official investigated the circumstances consider in deciding whether to debar me? the wrongdoing. (b) The frequency of incidents and/or surrounding the cause for debarment (a) The debarring official may debar duration of the wrongdoing. and, if so, made the result of the you for any of the causes in § l.800. (c) Whether there is a pattern or prior investigation available to the debarring However, the official need not debar history of wrongdoing. For example, if official. you even if a cause for debarment exists. you have been found by another Federal (p) Whether you had effective The official may consider the agency or a State agency to have standards of conduct and internal seriousness of your acts or omissions engaged in wrongdoing similar to that control systems in place at the time the and the mitigating or aggravating factors found in the debarment action, the questioned conduct occurred. set forth at § l.860. (q) Whether you have taken existence of this fact may be used by the (b) The debarring official bases the appropriate disciplinary action against debarring official in determining that decision on all information contained in the individuals responsible for the you have a pattern or prior history of the official record. The record activity which constitutes the cause for wrongdoing. includes— debarment. (1) All information in support of the (d) Whether you are or have been (r) Whether you have had adequate debarring official’s proposed debarment; excluded or disqualified by an agency of time to eliminate the circumstances (2) Any further information and the Federal Government or have not within your organization that led to the argument presented in support of, or in been allowed to participate in State or cause for the debarment. opposition to, the proposed debarment; local contracts or assistance agreements (s) Other factors that are appropriate and on a basis of conduct similar to one or to the circumstances of a particular case. (3) Any transcribed record of fact- more of the causes for debarment finding proceedings. specified in this part. § l.865 How long may my debarment (c) The debarring official may refer (e) Whether you have entered into an last? disputed material facts to another administrative agreement with a Federal (a) If the debarring official decides to official for findings of fact. The agency or a State or local government debar you, your period of debarment debarring official may reject any that is not governmentwide but is based will be based on the seriousness of the resultant findings, in whole or in part, on conduct similar to one or more of the cause(s) upon which your debarment is only after specifically determining them causes for debarment specified in this based. Generally, debarment should not to be arbitrary, capricious, or clearly part. exceed three years. However, if erroneous. (f) Whether and to what extent you circumstances warrant, the debarring planned, initiated, or carried out the official may impose a longer period of § l.850 What is the standard of proof in wrongdoing. debarment. a debarment action? (g) Whether you have accepted (b) In determining the period of (a) In any debarment action, we must responsibility for the wrongdoing and debarment, the debarring official may establish the cause for debarment by a recognize the seriousness of the consider the factors in § l.860. If a preponderance of the evidence. misconduct that led to the cause for suspension has preceded your (b) If the proposed debarment is based debarment. debarment, the debarring official must upon a conviction or civil judgment, the (h) Whether you have paid or agreed consider the time you were suspended. standard of proof is met. to pay all criminal, civil and (c) If the debarment is for a violation administrative liabilities for the of the provisions of the Drug-Free § l.855 Who has the burden of proof in a Workplace Act of 1988, your period of debarment action? improper activity, including any debarment may not exceed five years. (a) We have the burden to prove that investigative or administrative costs a cause for debarment exists. incurred by the government, and have § l.870 When do I know if the debarring (b) Once a cause for debarment is made or agreed to make full restitution. official debars me? established, you as a respondent have (i) Whether you have cooperated fully (a) The debarring official must make the burden of demonstrating to the with the government agencies during a written decision whether to debar satisfaction of the debarring official that the investigation and any court or within 45 days of closing the official you are presently responsible and that administrative action. In determining record. The official record closes upon debarment is not necessary. the extent of cooperation, the debarring the debarring official’s receipt of final official may consider when the submissions, information and findings § l.860 What factors may influence the cooperation began and whether you of fact, if any. The debarring official debarring official’s decision? disclosed all pertinent information may extend that period for good cause. This section lists the mitigating and known to you. (b) The debarring official sends you aggravating factors that the debarring (j) Whether the wrongdoing was written notice, pursuant to § l.615 that official may consider in determining pervasive within your organization. the official decided, either— whether to debar you and the length of (k) The kind of positions held by the (1) Not to debar you; or your debarment period. The debarring individuals involved in the wrongdoing. (2) To debar you. In this event, the official may consider other factors if (l) Whether your organization took notice: appropriate in light of the circumstances appropriate corrective action or (i) Refers to the Notice of Proposed of a particular case. The existence or remedial measures, such as establishing Debarment;

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(ii) Specifies the reasons for your controls or has the power to control the Federal Acquisition Regulation (48 CFR debarment; other or a third person controls or has chapter 1). A person so excluded is (iii) States the period of your the power to control both. The ways we debarred. debarment, including the effective use to determine control include, but § l.935 Debarring official. dates; and are not limited to— (iv) Advises you that your debarment (a) Interlocking management or (a) Debarring official means an agency is effective for covered transactions and ownership; official who is authorized to impose contracts that are subject to the Federal (b) Identity of interests among family debarment. A debarring official is Acquisition Regulation (48 CFR chapter members; either— 1), throughout the executive branch of (c) Shared facilities and equipment; (1) The agency head; or (2) An official designated by the the Federal Government unless an (d) Common use of employees; or agency head. agency head or an authorized designee (e) A business entity which has been (b) [Reserved] grants an exception. organized following the exclusion of a person which has the same or similar § l.940 Disqualified. § l.875 May I ask the debarring official to management, ownership, or principal reconsider a decision to debar me? Disqualified means that a person is employees as the excluded person. prohibited from participating in Yes, as a debarred person you may ask specified Federal procurement or the debarring official to reconsider the § l.910 Agency. nonprocurement transactions as debarment decision or to reduce the Agency means any United States executive department, military required under a statute, Executive time period or scope of the debarment. order (other than Executive Orders However, you must put your request in department, defense agency, or any other agency of the executive branch. 12549 and 12689) or other authority. writing and support it with Examples of disqualifications include documentation. Other agencies of the Federal government are not considered persons prohibited under— § l.880 What factors may influence the ‘‘agencies’’ for the purposes of this part (a) The Davis-Bacon Act (40 U.S.C. debarring official during reconsideration? unless they issue regulations adopting 276(a)); (b) The equal employment The debarring official may reduce or the governmentwide Debarment and opportunity acts and Executive orders; terminate your debarment based on— Suspension system under Executive or (a) Newly discovered material orders 12549 and 12689. (c) The Clean Air Act (42 U.S.C. evidence; 7606), Clean Water Act (33 U.S.C. 1368) (b) A reversal of the conviction or § l.915 Agent or representative. and Executive Order 11738 (3 CFR, 1973 civil judgment upon which your Agent or representative means any Comp., p. 799). debarment was based; person who acts on behalf of, or who is (c) A bona fide change in ownership authorized to commit, a participant in a § l.945 Excluded or exclusion. or management; covered transaction. Excluded or exclusion means— (d) Elimination of other causes for § l.920 Civil judgment. (a) That a person or commodity is which the debarment was imposed; or prohibited from being a participant in Civil judgment means the disposition (e) Other reasons the debarring official covered transactions, whether the of a civil action by any court of finds appropriate. person has been suspended; debarred; competent jurisdiction, whether by proposed for debarment under 48 CFR § l.885 May the debarring official extend verdict, decision, settlement, a debarment? part 9, subpart 9.4; voluntarily stipulation, other disposition which excluded; or (a) Yes, the debarring official may creates a civil liability for the (b) The act of excluding a person. extend a debarment for an additional complained of wrongful acts, or a final period, if that official determines that an determination of liability under the § l.950 Excluded Parties List System extension is necessary to protect the Program Fraud Civil Remedies Act of Excluded Parties List System (EPLS) public interest. 1988 (31 U.S.C. 3801–3812). means the list maintained and (b) However, the debarring official disseminated by the General Services l may not extend a debarment solely on § .925 Conviction. Administration (GSA) containing the the basis of the facts and circumstances Conviction means— names and other information about upon which the initial debarment action (a) A judgment or any other persons who are ineligible. The EPLS was based. determination of guilt of a criminal system includes the printed version (c) If the debarring official decides offense by any court of competent entitled, ‘‘List of Parties Excluded or that a debarment for an additional jurisdiction, whether entered upon a Disqualified from Federal Procurement period is necessary, the debarring verdict or plea, including a plea of nolo and Nonprocurement Programs,’’ so official must follow the applicable contendere; or long as published. procedures in this subpart, and subpart (b) Any other resolution that is the § l.955 Indictment. F of this part, to extend the debarment. functional equivalent of a judgment, including probation before judgment Indictment means an indictment for a Subpart I—Definitions and deferred prosecution. A disposition criminal offense. A presentment, without the participation of the court is information, or other filing by a § l.900 Adequate evidence. the functional equivalent of a judgment competent authority charging a criminal Adequate evidence means only if it includes an admission of guilt. offense shall be given the same effect as information sufficient to support the an indictment. reasonable belief that a particular act or § l.930 Debarment. omission has occurred. Debarment means an action taken by § l.960 Ineligible or ineligibility. a debarring official under subpart H of Ineligible or ineligibility means that a § l.905 Affiliate. this part to exclude a person from person or commodity is prohibited from Persons are affiliates of each other if, participating in covered transactions covered transactions because of an directly or indirectly, either one and transactions covered under the exclusion or disqualification.

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§ l.965 Legal proceedings. unit of government, or legal entity, (b) For purposes of this part, State Legal proceedings means any criminal however organized. does not include institutions of higher proceeding or any civil judicial education, hospitals, or units of local l proceeding, including a proceeding § .990 Preponderance of the evidence. government. under the Program Fraud Civil Preponderance of the evidence means l Remedies Act (31 U.S.C. 3801–3812), to proof by information that, compared § .1010 Suspending official. which the Federal Government or a with information opposing it, leads to (a) Suspending official means an State or local government or quasi- the conclusion that the fact at issue is agency official who is authorized to governmental authority is a party. The more probably true than not. impose suspension. The suspending term also includes appeals from those § l.995 Principal. official is either: proceedings. Principal means— (1) The agency head; or § l.970 Nonprocurement transaction. (a) An officer, director, owner, (2) An official designated by the (a) Nonprocurement transaction partner, principal investigator, or other agency head. person within a participant with means any transaction, regardless of (b) [Reserved] type (except procurement contracts), management or supervisory including, but not limited to the responsibilities related to a covered § l.1015 Suspension. following: transaction; or (b) A consultant or other person, Suspension is an action taken by a (1) Grants. suspending official under subpart G of (2) Cooperative agreements. whether or not employed by the (3) Scholarships. participant or paid with Federal funds, this part that immediately prohibits a (4) Fellowships. who— person from participating in covered (5) Contracts of assistance. (1) Is in a position to handle Federal transactions and transactions covered (6) Loans. funds; under the Federal Acquisition (7) Loan guarantees. (2) Is in a position to influence or Regulation (48 CFR chapter 1) for a (8) Subsidies. control the use of those funds; or, temporary period, pending completion (9) Insurances. (3) Occupies a technical or of an agency investigation and any (10) Payments for specified uses. professional position capable of judicial or administrative proceedings (11) Donation agreements. substantially influencing the that may ensue. A person so excluded (b) A nonprocurement transaction at development or outcome of an activity is suspended. any tier does not require the transfer of required to perform the covered Federal funds. transaction. § l.1020 Voluntary exclusion or voluntarily excluded. § l.975 Notice. l § .1000 Respondent. (a) Voluntary exclusion means a Notice means a written Respondent means a person against person’s agreement to be excluded communication served in person, sent whom an agency has initiated a under the terms of a settlement between by certified mail or its equivalent, or debarment or suspension action. the person and one or more agencies. sent electronically by e-mail or Voluntary exclusion must have facsimile. (See § l. 615.) § l.1005 State. (a) State means— governmentwide effect. § l.980 Participant. (1) Any of the states of the United (b) Voluntarily excluded means the Participant means any person who States; status of a person who has agreed to a submits a proposal for or who enters (2) The District of Columbia; voluntary exclusion. into a covered transaction, including an (3) The Commonwealth of Puerto agent or representative of a participant. Rico; Subpart J—[Reserved] (4) Any territory or possession of the Appendix to [Part/Subpart] ll— § l.985 Person. United States; or Person means any individual, (5) Any agency or instrumentality of Covered Transactions corporation, partnership, association, a state. BILLING CODE 6325–01–P et. al.

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2. [Part/Subpart] is added to read as l.220 By when must I publish my drug- l.510 What actions will the Federal follows: free workplace statement and establish Government take against a recipient my drug-free awareness program? determined to have violated this part? [PART/SUBPART]— l.225 What actions must I take concerning l.515 Are there any exceptions to those GOVERNMENTWIDE REQUIREMENTS employees who are convicted of drug actions? FOR DRUG-FREE WORKPLACE violations in the workplace? Subpart F—Definitions l (FINANCIAL ASSISTANCE) .230 How and when must I identify l.605 Award. workplaces? l.610 Controlled substance. Subpart A—Purpose and Coverage Subpart C—Requirements for Recipients l.615 Conviction. Sec. Who Are Individuals l.620 Cooperative agreement. l.100 What does this part do? l.625 Criminal drug statute. l.300 What must I do to comply with this l.105 Does this part apply to me? l.630 Debarment. part if I am an individual recipient? l.635 Drug-free workplace. l.110 Are any of my Federal assistance l.301 [Reserved] l.640 Employee. awards exempt from this part? l.645 Federal agency or agency. Subpart D—Responsibilities of [Agency l.115 Does this part affect the Federal l.650 Grant. adjective] Awarding Officials contracts that I receive? l.655 Individual. l Subpart B—Requirements for Recipients .400 What are my responsibilities as l.660 Recipient. Other Than Individuals a(n)[Agency adjective] awarding official? l.665 State. l.670 Suspension l.200 What must I do to comply with this Subpart E—Violations of this Part and part? Consequences Subpart A—Purpose and Coverage l.205 What must I include in my drug-free l.500 How are violations of this part workplace statement? determined for recipients other than § l.100 What does this part do? l.210 To whom must I distribute my drug- individuals? This part carries out the portion of the free workplace statement? l.505 How are violations of this part Drug-Free Workplace Act of 1988 (41 l.215 What must I include in my drug-free determined for recipients who are U.S.C. 701 et seq., as amended) that awareness program? individuals? applies to grants. It also applies the

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provisions of the Act to cooperative § l.105 Does this part apply to me? (2) A(n) [Agency adjective] awarding agreements and other financial (a) Portions of this part apply to you official. (See definitions of award and recipient in §§ l.605 and l.660, assistance awards, as a matter of Federal if you are either— Government policy. respectively.) (1) A recipient of an assistance award (b) The following table shows the from the [Agency noun]; or subparts that apply to you:

If you are . . . see subparts . . .

(1) A recipient who is not an individual ...... A, B and E. (2) A recipient who is an individual ...... A, C and E. (3) A(n) [Agency adjective] awarding official ...... A, D and E.

§ l.110 Are any of my Federal assistance to do so as a condition for receiving any workplace and must do so no more than awards exempt from this part? award covered by this part. The specific five calendar days after the conviction. This part does not apply to any award measures that you must take in this that the [Agency head or designee] regard are described in more detail in § l.210 To whom must I distribute my drug-free workplace statement? determines that the application of this subsequent sections of this subpart. part would be inconsistent with the Briefly, those measures are to— You must require that a copy of the international obligations of the United (1) Publish a drug-free workplace statement described in § l.205 be given States or the laws or regulations of a statement and establish a drug-free to each employee who will be engaged foreign government. awareness program for your employees in the performance of any Federal (see §§ l.205 through l.220); and award. § l.115 Does this part affect the Federal (2) Take actions concerning contracts that I receive? employees who are convicted of § l.215 What must I include in my drug- It will affect future contract awards violating drug statutes in the workplace free awareness program? indirectly if you are debarred or (see § l.225). You must establish an ongoing drug- suspended for a violation of the (b) Second, you must identify all free awareness program to inform requirements of this part, as described known workplaces under your Federal employees about— in § l. 510(c). However, this part does awards (see § l.230). (a) The dangers of drug abuse in the not apply directly to procurement workplace; contracts. The portion of the Drug-Free § l.205 What must I include in my drug- free workplace statement? (b) Your policy of maintaining a drug- Workplace Act of 1988 that applies to free workplace; Federal procurement contracts is carried You must publish a statement that— (c) Any available drug counseling, out through the Federal Acquisition (a) Tells your employees that the rehabilitation, and employee assistance Regulation in chapter 1 of Title 48 of the unlawful manufacture, distribution, programs; and Code of Federal Regulations (the drug- dispensing, possession, or use of a free workplace coverage currently is in controlled substance is prohibited in (d) The penalties that you may impose 48 CFR part 23, subpart 23.5). your workplace; upon them for drug abuse violations (b) Specifies the actions that you will occurring in the workplace. take against employees for violating that Subpart B—Requirements for § l.220 By when must I publish my drug- Recipients Other Than Individuals prohibition; and (c) Lets each employee know that, as free workplace statement and establish my drug-free awareness program? § l.200 What must I do to comply with a condition of employment under any this part? award, he or she: If you are a new recipient that does There are two general requirements if (1) Will abide by the terms of the not already have a policy statement as you are a recipient other than an statement; and described in § l.205 and an ongoing individual. (2) Must notify you in writing if he or awareness program as described in (a) First, you must make a good faith she is convicted for a violation of a § l.215, you must publish the effort, on a continuing basis, to maintain criminal drug statute occurring in the statement and establish the program by a drug-free workplace. You must agree the time given in the following table:

If . . . then you . . .

(a) The performance period of the award is less than 30 days ...... must have the policy statement and program in place as soon as possible, but before the date on which performance is expected to be completed. (b) The performance period of the award is 30 days or more ...... must have the policy statement and program in place within 30 days after award. (c) You believe there are extraordinary circumstances that will require may ask the [Agency adjective] awarding official to give you more time more than 30 days for you to publish the policy statement and estab- to do so. The amount of additional time, if any, to be given is at the lish the awareness program. discretion of the awarding official.

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§ l.225 What actions must I take State highway department while in this part if the [Agency head or concerning employees who are convicted operation, State employees in each local designee] determines, in writing, that— of drug violations in the workplace? unemployment office, performers in (a) The recipient has violated the There are two actions you must take concert halls or radio studios). requirements of subpart B of this part; if an employee is convicted of a drug (c) If you identified workplaces to the or violation in the workplace: [Agency adjective] awarding official at (b) The number of convictions of the (a) First, you must notify Federal the time of application or award, as recipient’s employees for violating agencies if an employee who is engaged described in paragraph (a)(1) of this criminal drug statutes in the workplace in the performance of an award informs section, and any workplace that you is large enough to indicate that the you about a conviction, as required by identified changes during the recipient has failed to make a good faith § l.205(c)(2), or you otherwise learn of performance of the award, you must effort to provide a drug-free workplace. the conviction. Your notification to the inform the [Agency adjective] awarding l l § .505 How are violations of this part Federal agencies must official. determined for recipients who are (1) Be in writing; individuals? (2) Include the employee’s position Subpart C—Requirements for An individual recipient is in violation title; Recipients Who Are Individuals of the requirements of this part if the (3) Include the identification § l.300 What must I do to comply with [Agency head or designee] determines, number(s) of each affected award; this part if I am an individual recipient? in writing, that— (4) Be sent within ten calendar days (a) The recipient has violated the after you learn of the conviction; and As a condition of receiving a(n) requirements of subpart C of this part; (5) Be sent to every Federal agency on [Agency adjective] award, if you are an or whose award the convicted employee individual recipient, you must agree that— (b) The recipient is convicted of a was working. It must be sent to every criminal drug offense resulting from a awarding official or his or her official (a) You will not engage in the unlawful manufacture, distribution, violation occurring during the conduct designee, unless the Federal agency has of any award activity. specified a central point for the receipt dispensing, possession, or use of a of the notices. controlled substance in conducting any § l.510 What actions will the Federal (b) Second, within 30 calendar days of activity related to the award; and Government take against a recipient (b) If you are convicted of a criminal learning about an employee’s determined to have violated this part? drug offense resulting from a violation conviction, you must eitherl If a recipient is determined to have (1) Take appropriate personnel action occurring during the conduct of any violated this part, as described in against the employee, up to and award activity, you will report the § l.500 or § l.505, the [Agency noun] including termination, consistent with conviction: may take one or more of the following (1) In writing. the requirements of the Rehabilitation (2) Within 10 calendar days of the actions— (a) Suspension of payments under the Act of 1973 (29 U.S.C. 794), as conviction. award; amended; or (3) To the [Agency adjective] (b) Suspension or termination of the (2) Require the employee to awarding official or other designee for award; and participate satisfactorily in a drug abuse each award that you currently have, assistance or rehabilitation program (c) Suspension or debarment of the unless § l.301 or the award document recipient under [CFR citation for the approved for these purposes by a designates a central point for the receipt Federal, State or local health, law Federal agency’s regulations of the notices. When notice is made to implementing Executive Order 12549 enforcement, or other appropriate a central point, it must include the agency. and Executive Order 12689], for a identification number(s) of each affected period not to exceed five years. § l.230 How and when must I identify award. workplaces? § l.515 Are there any exceptions to those § l.301 [Reserved] (a) You must identify all known actions? workplaces under each [Agency Subpart D—Responsibilities of The [Agency head] may waive with adjective] award. A failure to do so is a [Agency adjective] Awarding Officials respect to a particular award, in writing, violation of your drug-free workplace a suspension of payments under an requirements. You may identify the § l.400 What are my responsibilities as award, suspension or termination of an workplacesl a(n) [Agency adjective] awarding official? award, or suspension or debarment of a (1) To the [Agency adjective] official As a(n) [Agency adjective] awarding recipient if the [Agency head] that is making the award, either at the official, you must obtain each determines that such a waiver would be time of application or upon award; or recipient’s agreement, as a condition of in the public interest. This exception (2) In documents that you keep on file the award, to comply with the authority cannot be delegated to any in your offices during the performance requirements in— other official. of the award, in which case you must (a) Subpart B of this part, if the Subpart F—Definitions make the information available for recipient is not an individual; or inspection upon request by [Agency (b) Subpart C of this part, if the § l.605 Award. recipient is an individual. adjective] officials or their designated Award means an award of financial representatives. Subpart E—Violations of this Part and assistance by the [Agency noun] or other (b) Your workplace identification for Consequences Federal agency directly to a recipient. an award must include the actual (a) The term award includes: address of buildings (or parts of § l.500 How are violations of this part (1) A Federal grant or cooperative buildings) or other sites where work determined for recipients other than agreement, in the form of money or under the award takes place. Categorical individuals? property in lieu of money. descriptions may be used (e.g., all A recipient other than an individual (2) A block grant or a grant in an vehicles of a mass transit authority or is in violation of the requirements of entitlement program, whether or not the

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grant is exempted from coverage under Debarment and Suspension § l.655 Individual. the Governmentwide rule [Agency- (Nonprocurement), that implements Individual means a natural person. specific CFR citation] that implements Executive Order 12549 and Executive OMB Circular A–102 (for availability, Order 12689. § l.660 Recipient. see 5 CFR 1310.3) and specifies uniform Recipient means any individual, administrative requirements. § l.635 Drug-free workplace. corporation, partnership, association, (b) The term award does not include: Drug-free workplace means a site for unit of government (except a Federal (1) Technical assistance that provides the performance of work done in agency) or legal entity, however services instead of money. connection with a specific award at organized, that receives an award (2) Loans. which employees of the recipient are directly from a Federal agency. (3) Loan guarantees. prohibited from engaging in the § l.665 State. (4) Interest subsidies. unlawful manufacture, distribution, (5) Insurance. dispensing, possession, or use of a State means any of the States of the (6) Direct appropriations. controlled substance. United States, the District of Columbia, (7) Veterans’ benefits to individuals the Commonwealth of Puerto Rico, or (i.e., any benefit to veterans, their § l.640 Employee. any territory or possession of the United families, or survivors by virtue of the (a) Employee means the employee of States. service of a veteran in the Armed Forces a recipient directly engaged in the l of the United States). § .670 Suspension. performance of work under the award, Suspension means an action taken by § l.610 Controlled substance. including— a Federal agency that immediately Controlled substance means a (1) All direct charge employees; prohibits a recipient from participating controlled substance in schedules I (2) All indirect charge employees, in Federal Government procurement through V of the Controlled Substances unless their impact or involvement in contracts and covered nonprocurement Act (21 U.S.C. 812), and as further the performance of work under the transactions for a temporary period, defined by regulation at 21 CFR 1308.11 award is insignificant to the pending completion of an investigation through 1308.15. performance of the award; and and any judicial or administrative (3) Temporary personnel and proceedings that may ensue. A recipient § l.615 Conviction. consultants who are directly engaged in so prohibited is suspended, in Conviction means a finding of guilt the performance of work under the accordance with the Federal Acquisition (including a plea of nolo contendere) or award and who are on the recipient’s Regulation for procurement contracts imposition of sentence, or both, by any payroll. (48 CFR part 9, subpart 9.4) and the judicial body charged with the (b) This definition does not include common rule, Government-wide responsibility to determine violations of workers not on the payroll of the Debarment and Suspension the Federal or State criminal drug recipient (e.g., volunteers, even if used (Nonprocurement), that implements statutes. to meet a matching requirement; Executive Order 12549 and Executive § l.620 Cooperative agreement. consultants or independent contractors Order 12689. Suspension of a recipient not on the payroll; or employees of is a distinct and separate action from Cooperative agreement means an subrecipients or subcontractors in suspension of an award or suspension of award of financial assistance that, covered workplaces). payments under an award. consistent with 31 U.S.C. 6305, is used to enter into the same kind of § l.645 Federal agency or agency. Adoption of Common Rules relationship as a grant (see definition of Federal agency or agency means any The adoption of the common rules by grant in § l.650), except that United States executive department, the participating agencies, as modified substantial involvement is expected military department, government by agency-specific text, is set forth between the Federal agency and the corporation, government controlled below. recipient when carrying out the activity corporation, any other establishment in lllllllllllllllllll contemplated by the award. The term the executive branch (including the does not include cooperative research Executive Office of the President), or OFFICE OF PERSONNEL and development agreements as defined any independent regulatory agency. MANAGEMENT in 15 U.S.C. 3710a. § l.650 Grant. 5 CFR Part 970 § l.625 Criminal drug statute. Grant means an award of financial RIN 3206–AJ31 Criminal drug statute means a Federal assistance that, consistent with 31 FOR FURTHER INFORMATION CONTACT or non-Federal criminal statute : J. U.S.C. 6304, is used to enter into a involving the manufacture, distribution, David Cope, Debarring Official, Office of relationship— dispensing, use, or possession of any the Inspector General, U.S. Office of controlled substance. (a) The principal purpose of which is Personnel Management, 1900 E Street, to transfer a thing of value to the NW., Washington, DC 20415, e-mail § l.630 Debarment. recipient to carry out a public purpose [email protected], fax (202) 606–2153. Debarment means an action taken by of support or stimulation authorized by SUPPLEMENTARY INFORMATION: The Office a Federal agency to prohibit a recipient a law of the United States, rather than of Personnel Management adopted the from participating in Federal to acquire property or services for the Nonprocurement Debarment and Government procurement contracts and Federal Government’s direct benefit or Suspension Common Rule on May 17, covered nonprocurement transactions. use; and 1993, following the text of the A recipient so prohibited is debarred, in (b) In which substantial involvement governmentwide rule as published on accordance with the Federal Acquisition is not expected between the Federal May 26, 1988 [53 FR 19160]. OPM did Regulation for procurement contracts agency and the recipient when carrying not adopt subpart F of the common rule, (48 CFR part 9, subpart 9.4) and the out the activity contemplated by the pertaining to requirements for drug-free common rule, Government-wide award. workplace (grants), because the agency

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did not issue assistance awards, grants, 970.210 Which nonprocurement 970.415 What must I do if a Federal agency or other forms of financial or transactions are covered transactions? excludes the participant or a principal nonfinancial assistance that would be 970.215 Which nonprocurement after I enter into a covered transaction? transactions are not covered 970.420 May I approve a transaction with covered by those provisions. For the transactions? an excluded or disqualified person at a same reasons, OPM is not adopting the 970.220 Are any procurement contracts lower tier? separate regulatory part on drug-free included as covered transactions? 970.425 When do I check to see if a person workplace requirements that has been 970.225 How do I know if a transaction in is excluded or disqualified? developed as part of this which I may participate is a covered 970.430 How do I check to see if a person governmentwide regulatory package. transaction? is excluded or disqualified? 970.435 What must I require of a primary Subpart C—Responsibilities of Participants List of Subjects in 5 CFR Part 970 tier participant? Regarding Transactions Administrative practice and 970.440 What method do I use to procedure, Debarment and suspension, Doing Business With Other Persons communicate those requirements to participants? Government employees, Health 970.300 What must I do before I enter into a covered transaction with another 970.445 What action may I take if a primary facilities, Health insurance, and Health tier participant knowingly does business professions. person at the next lower tier? 970.305 May I enter into a covered with an excluded or disqualified person? Dated: August 28, 2003. transaction with an excluded or 970.450 What action may I take if a primary U.S. Office of Personnel Management. disqualified person? tier participant fails to disclose the information required under § 970.335? Kay Cole James, 970.310 What must I do if a Federal agency 970.455 What may I do if a lower tier Director. excludes a person with whom I am already doing business in a covered participant fails to disclose the ■ For the reasons stated in the common transaction? information required under § 970.355 to preamble, the Office of Personnel 970.315 May I use the services of an the next higher tier? Management amends 5 CFR, Code of excluded person as a principal under a Subpart E—Excluded Parties List System covered transaction? Federal Regulations as follows: 970.500 What is the purpose of the ■ 1. Part 970 is revised as set forth in 970.320 Must I verify that principals of my covered transactions are eligible to Excluded Parties List System (EPLS)? instruction 1 at the end of the common 970.505 Who uses the EPLS? preamble. participate? 970.325 What happens if I do business with 970.510 Who maintains the EPLS? 970.515 What specific information is in the PART 970—GOVERNMENTWIDE an excluded person in a covered transaction? EPLS? DEBARMENT AND SUSPENSION 970.330 What requirements must I pass 970.520 Who places the information into (NONPROCUREMENT) down to persons at lower tiers with the EPLS? whom I intend to do business? 970.525 Whom do I ask if I have questions Sec. about a person in the EPLS? 970.25 How is this part organized? Disclosing Information—Primary Tier 970.530 Where can I find the EPLS? 970.50 How is this part written? Participants 970.75 Do terms in this part have special Subpart F—General Principles Relating to 970.335 What information must I provide Suspension and Debarment Actions meanings? before entering into a covered 970.600 How do suspension and debarment Subpart A—General transaction with the OPM? 970.340 If I disclose unfavorable actions start? 970.100 What does this part do? information required under § 970.335, 970.605 How does suspension differ from 970.105 Does this part apply to me? will I be prevented from participating in debarment? 970.110 What is the purpose of the the transaction? 970.610 What procedures does the OPM use nonprocurement debarment and 970.345 What happens if I fail to disclose in suspension and debarment actions? suspension system? the information required under 970.615 How does the OPM notify a person 970.115 How does an exclusion restrict a § 970.335? of a suspension and debarment action? person’s involvement in covered 970.350 What must I do if I learn of the 970.620 Do Federal agencies coordinate transactions? information required under § 970.335 suspension and debarment actions? 970.120 May we grant an exception to let an after entering into a covered transaction 970.625 What is the scope of a suspension excluded person participate in a covered with the OPM? or debarment action? transaction? 970.630 May the OPM impute the conduct 970.125 Does an exclusion under the Disclosing information—Lower Tier of one person to another? nonprocurement system affect a person’s Participants 970.635 May the OPM settle a debarment or eligibility for Federal procurement 970.355 What information must I provide to suspension action? contracts? a higher tier participant before entering 970.640 May a settlement include a 970.130 Does exclusion under the Federal into a covered transaction with that voluntary exclusion? procurement system affect a person’s participant? 970.645 Do other Federal agencies know if eligibility to participate in 970.360 What happens if I fail to disclose the OPM agrees to a voluntary exclusion? nonprocurement transactions? the information required under Subpart G—Suspension 970.135 May the OPM exclude a person § 970.355? who is not currently participating in a 970.365 What must I do if I learn of 970.700 When may the suspending official nonprocurement transaction? information required under § 970.355 issue a suspension? 970.140 How do I know if a person is after entering into a covered transaction 970.705 What does the suspending official excluded? with a higher tier participant? consider in issuing a suspension? 970.145 Does this part address persons who 970.710 When does a suspension take are disqualified, as well as those who are Subpart D—Responsibilities of OPM effect? excluded from nonprocurement Officials Regarding Transactions 970.715 What notice does the suspending transactions? 970.400 May I enter into a transaction with official give me if I am suspended? an excluded or disqualified person? 970.720 How may I contest a suspension? Subpart B—Covered Transactions 970.405 May I enter into a covered 970.725 How much time do I have to 970.200 What is a covered transaction? transaction with a participant if a contest a suspension? 970.205 Why is it important to know if a principal of the transaction is excluded? 970.730 What information must I provide to particular transaction is a covered 970.410 May I approve a participant’s use the suspending official if I contest a transaction? of the services of an excluded person? suspension?

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970.735 Under what conditions do I get an 970.1010 Suspending official. SUPPLEMENTARY INFORMATION: additional opportunity to challenge the 970.1015 Suspension. Sections 3017.765 and 3017.890 facts on which the suspension is based? 970.1020 Voluntary exclusion or 970.740 Are suspension proceedings voluntarily excluded. supplement the procedures in the common rule for contesting the decision formal? Subpart J—[Reserved] 970.745 How is fact-finding conducted? of the suspending or debarring official 970.750 What does the suspending official Appendix to Part 970—Covered by allowing for a further appeal of the consider in deciding whether to continue Transactions decision of the suspending or debarring or terminate my suspension? official, made in response to a contested 970.755 When will I know whether the Authority: Sec. 2455, Pub.L. 103–355, 108 suspension or debarment, to an suspension is continued or terminated? Stat. 3327; E.O. 12549, 3 CFR, 1986 Comp., p.189; E.O. 12689, 3 CFR, 1989 Comp., p.235. administrative law judge (‘‘ALJ’’) of the 970.760 How long may my suspension last? Department of Agriculture (‘‘USDA’’). Subpart H—Debarment ■ 2. Part 970 is further amended as set While at present adopting those 970.800 What are the causes for debarment? forth below. provisions as they were proposed on ■ 970.805 What notice does the debarring a. ‘‘[Agency noun]’’ is removed and January 23, 2002, USDA seeks further official give me if I am proposed for ‘‘OPM’’ is added in its place wherever it comment on whether these provisions debarment? occurs. are necessary or add substantive value ■ 970.810 When does a debarment take b. ‘‘[Agency adjective]’’ is removed and to the suspension and debarment effect? ‘‘OPM’’ is added in its place wherever it process. 970.815 How may I contest a proposed occurs. These provisions originally were debarment? ■ c. ‘‘[Agency head or designee]’’ is 970.820 How much time do I have to included in the current USDA removed and ‘‘Debarring Official’’ is nonprocurement suspension and contest a proposed debarment? added in its place wherever it occurs. debarment regulation (7 CFR 3017.515) 970.825 What information must I provide to ■ 3. Section 970.440 is added to read as the debarring official if I contest a because it was thought that the courts proposed debarment? follows: would give more deference to the 970.830 Under what conditions do I get an § 970.440 What method do I use to findings of an ALJ than to those of an additional opportunity to challenge the communicate those requirements to executive branch agency’s suspending facts on which a proposed debarment is participants? or debarring official. That has not been based? the experience of USDA, and in fact the 970.835 Are debarment proceedings formal? To communicate the requirement, you 970.840 How is fact-finding conducted? must include a term or condition in the decisions of other executive agencies 970.845 What does the debarring official transaction requiring the participants’ without appeal from decisions made by consider in deciding whether to debar compliance with subpart C of this part the suspending or debarring official me? and requiring them to include a similar under the contest provision in the 970.850 What is the standard of proof in a term or condition in lower-tier covered common rule have withstood judicial debarment action? transactions. scrutiny. Accordingly, since the 970.855 Who has the burden of proof in a lllllllllllllllllll common rule does not require appeal to debarment action? an ALJ, USDA is considering removing 970.860 What factors may influence the DEPARTMENT OF AGRICULTURE sections 3017.765 and 3017.890 in the debarring official’s decision? 970.865 How long may my debarment last? 7 CFR Parts 3017 and 3021 final rule in order to eliminate an unnecessary, time-consuming, and 970.870 When do I know if the debarring RIN 0505–AA11 official debars me? costly stage of litigation. 970.875 May I ask the debarring official to SUMMARY: The United States Department Section 3017.935(b) and 3017.1010(b) reconsider a decision to debar me? of Agriculture (USDA) adopts the of the proposed rule would have 970.880 What factors may influence the common rule on nonprocurement authorized the Secretary of Agriculture debarring official during debarment and suspension and drug- to delegate the authority to be the reconsideration? free workplace on an interim final basis debarring or suspending official, 970.885 May the debarring official extend a solely in order to request further respectively, to the Administrators of debarment? comment on §§ 3017.765 and 3017.890. USDA program agencies, who further Subpart I—Definitions DATES: Comments should be submitted would have been authorized to 970.900 Adequate evidence. on or before January 26, 2004 in order redelegate that authority except for the 970.905 Affiliate. to be ensured of consideration. authority to make a final debarment or 970.910 Agency. Comments received after this date may suspension decision. The proposed rule, 970.915 Agent or representative. be considered to the extent practicable. if adopted as final, would have had the 970.920 Civil judgment. ADDRESSES: Comments should be sent to effect of repealing the authority in the 970.925 Conviction. Tyson Whitney, OCFO–PAD Room current rule in 7 CFR 3017.105 970.930 Debarment. 3448A, Mail Stop 9020, 1400 970.935 Debarring official. authorizing the Chief of the Forest 970.940 Disqualified. Independence Avenue, SW., Service to redelegate the authority to 970.945 Excluded or exclusion. Washington, DC 20250–9020, (202) 720– make final debarment or suspension 970.950 Excluded Parties List System. 8978. Comments may also be submitted decisions to the Deputy Chief or an 970.955 Indictment. via electronic mail to Associate Deputy Chief for the National 970.960 Ineligible or ineligibility. [email protected]. All comments, Forest System. In the interim final rule, 970.965 Legal proceedings. including names and addresses, will USDA is revising the text of sections 970.970 Nonprocurement transaction. become a matter of public record. 3017.935(b) and 3017.1010(b) to 970.975 Notice. FOR FURTHER INFORMATION CONTACT: preserve the authority of the Chief of the 970.980 Participant. 970.985 Person. Tyson Whitney, OCFO–PAD Room Forest Service to redelegate his 970.990 Preponderance of the evidence. 3448A, Mail Stop 9020, 1400 authority to the Deputy Chief or an 970.995 Principal. Independence Avenue, SW., Associate Deputy Chief. Since this is a 970.1000 Respondent. Washington, DC 20250–9020, (202) 720– rule of internal agency management, 970.1005 State. 8978. notice and comment for this change is

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not required. The text is also revised to 3017.140 How do I know if a person is 3017.365 What must I do if I learn of reflect the delegation to the head of an excluded? information required under § 3017.355 organizational unit of the Department, 3017.145 Does this part address persons after entering into a covered transaction instead of an administrator, because not who are disqualified, as well as those with a higher tier participant? who are excluded from nonprocurement all organizational units of the Subpart D—Responsibilities of Department transactions? Department are headed by an of Agriculture Officials Regarding administrator. Some additional changes Subpart B—Covered Transactions Transactions to the proposed rule language are made 3017.200 What is a covered transaction? 3017.400 May I enter into a transaction in this interim final rule to improve 3017.205 Why is it important to know if a with an excluded or disqualified person? grammar and conform to the plain particular transaction is a covered 3017.405 May I enter into a covered English model of regulatory drafting. transaction? transaction with a participant if a 3017.210 Which nonprocurement principal of the transaction is excluded? List of Subjects transactions are covered transactions? 3017.410 May I approve a participant’s use of the services of an excluded person? 7 CFR Part 3017 3017.215 Which nonprocurement transactions are not covered 3017.415 What must I do if a Federal Administrative practice and transactions? agency excludes the participant or a procedure, Debarment and suspension, 3017.220 Are any procurement contracts principal after I enter into a covered Grant programs-agriculture, Loan included as covered transactions? transaction? programs-agriculture, Reporting and 3017.225 How do I know if a transaction in 3017.420 May I approve a transaction with recordkeeping requirements. which I may participate is a covered an excluded or disqualified person at a transaction? lower tier? 7 CFR Part 3021 3017.425 When do I check to see if a person Subpart C—Responsibilities of Participants is excluded or disqualified? Administrative practice and Regarding Transactions Doing Business 3017.430 How do I check to see if a person procedure, Drug abuse, Grant programs- With Other Persons is excluded or disqualified? agriculture, Loan programs-agriculture, 3017.300 What must I do before I enter into 3017.435 What must I require of a primary Reporting and recordkeeping a covered transaction with another tier participant? requirements. person at the next lower tier? 3017.440 What method do I use to 3017.305 May I enter into a covered communicate those requirements to Dated: August 6, 2003. transaction with an excluded or participants? Ann M. Veneman, disqualified person? 3017.445 What action may I take if a Secretary of Agriculture. 3017.310 What must I do if a Federal primary tier participant knowingly does ■ For the reasons stated in the common agency excludes a person with whom I business with an excluded or preamble, the United States Department am already doing business in a covered disqualified person? of Agriculture amends 7 CFR chapter transaction? 3017.450 What action may I take if a 3017.315 May I use the services of an primary tier participant fails to disclose XXX, as follows: excluded person as a principal under a the information required under ■ 1. Part 3017 is revised to read as set covered transaction? § 3017.335? forth in instruction 1 at the end of the 3017.320 Must I verify that principals of my 3017.455 What may I do if a lower tier common preamble. covered transactions are eligible to participant fails to disclose the participate? information required under § 3017.355 to PART 3017—GOVERNMENTWIDE 3017.325 What happens if I do business the next higher tier? DEBARMENT AND SUSPENSION with an excluded person in a covered Subpart E—Excluded Parties List System (NONPROCUREMENT) transaction? 3017.330 What requirements must I pass 3017.500 What is the purpose of the Sec. down to persons at lower tiers with Excluded Parties List System (EPLS)? 3017.25 How is this part organized? whom I intend to do business? 3017.505 Who uses the EPLS? 3017.50 How is this part written? 3017.510 Who maintains the EPLS? 3017.75 Do terms in this part have special Disclosing Information—Primary Tier 3017.515 What specific information is in meanings? Participants the EPLS? 3017.335 What information must I provide 3017.520 Who places the information into Subpart A—General before entering into a covered the EPLS? 3017.100 What does this part do? transaction with the Department of 3017.525 Whom do I ask if I have questions 3017.105 Does this part apply to me? Agriculture? about a person in the EPLS? 3017.110 What is the purpose of the 3017.340 If I disclose unfavorable 3017.530 Where can I find the EPLS? nonprocurement debarment and information required under § 3017.335, Subpart F—General Principles Relating to suspension system? will I be prevented from participating in Suspension and Debarment Actions 3017.115 How does an exclusion restrict a the transaction? person’s involvement in covered 3017.345 What happens if I fail to disclose 3017.600 How do suspension and transactions? the information required under debarment actions start? 3017.120 May we grant an exception to let § 3017.335? 3017.605 How does suspension differ from an excluded person participate in a 3017.350 What must I do if I learn of the debarment? covered transaction? information required under § 3017.335 3017.610 What procedures does the 3017.125 Does an exclusion under the after entering into a covered transaction Department of Agriculture use in nonprocurement system affect a person’s with the Department of Agriculture? suspension or debarment actions? eligibility for Federal procurement 3017.615 How does the Department of contracts? Disclosing Information—Lower Tier Agriculture notify a person of a 3017.130 Does exclusion under the Federal Participants suspension and debarment action? procurement system affect a person’s 3017.355 What information must I provide 3017.620 Do Federal agencies coordinate eligibility to participate in to a higher tier participant before suspension and debarment actions? nonprocurement transactions? entering into a covered transaction with 3017.625 What is the scope of a suspension 3017.135 May the Department of that participant? or debarment action? Agriculture exclude a person who is not 3017.360 What happens if I fail to disclose 3017.630 May the Department of currently participating in a the information required under Agriculture impute the conduct of one nonprocurement transaction? § 3017.355? person to another?

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3017.635 May the Department of 3017.880 What factors may influence the ■ 4. Section 3017.215 is further amended Agriculture settle a debarment or debarring official during by adding paragraphs (h) through (p) to suspension action? reconsideration? read as follows: 3017.640 May a settlement include a 3017.885 May the debarring official extend voluntary exclusion? a debarment? § 3017.215 Which nonprocurement 3017.645 Do other Federal agencies know if 3017.890 How may I appeal my debarment? transactions are not covered transactions? the Department of Agriculture agrees to a voluntary exclusion? Subpart I—Definitions * * * * * 3017.900 Adequate evidence. (h) An entitlement or mandatory Subpart G—Suspension 3017.905 Affiliate. award required by a statute, including a 3017.700 When may the suspending official 3017.910 Agency. lower tier entitlement or mandatory issue a suspension? 3017.915 Agent or representative. award that is required by a statute. 3017.705 What does the suspending official 3017.920 Civil judgment. (i) With respect to the Department of consider in issuing a suspension? 3017.925 Conviction. Agriculture’s export and foreign 3017.710 When does a suspension take 3017.930 Debarment. assistance programs, any transaction effect? 3017.935 Debarring official. 3017.715 What notice does the suspending below the primary tier covered 3017.940 Disqualified. transaction other than a official give me if I am suspended? 3017.945 Excluded or exclusion. 3017.720 How may I contest a suspension? 3017.950 Excluded Parties List System. nonprocurement transaction under the 3017.725 How much time do I have to 3017.955 Indictment. Market Access Program between a contest a suspension? 3017.960 Ineligible or ineligibility. nonprofit trade association or state 3017.730 What information must I provide 3017.965 Legal proceedings. regional group and a U.S. entity, as to the suspending official if I contest a 3017.970 Nonprocurement transaction. defined in part 1485 of this title. suspension? 3017.975 Notice. (j) Any transaction under the 3017.735 Under what conditions do I get an 3017.980 Participant. Department of Agriculture’s additional opportunity to challenge the 3017.985 Person. facts on which the suspension is based? conservation programs, warehouse 3017.990 Preponderance of the evidence. 3017.740 Are suspension proceedings licensing programs, or programs that 3017.995 Principal. formal? 3017.1000 Respondent. provide statutory entitlements and make 3017.745 How is fact-finding conducted? 3017.1005 State. available loans to individuals and 3017.750 What does the suspending official 3017.1010 Suspending official. entities in their capacity as producers of consider in deciding whether to continue 3017.1015 Suspension. agricultural commodities. or terminate my suspension? 3017.1020 Voluntary exclusion or (k) The export or substitution of 3017.755 When will I know whether the voluntarily excluded. suspension is continued or terminated? Federal timber governed by the Forest 3017.760 How long may my suspension Subpart J—[Reserved] Resources Conservation and Shortage last? Relief Act of 1990, 16 U.S.C. 620 et seq. 3017.765 How may I appeal my Appendix to Part 3017—Covered (The ‘‘Export Act’’), which provides suspension? Transactions separate statutory authority to debar. Subpart H—Debarment Authority: 5 U.S.C. 301; Pub. L. 101–576, (l) The receipt of licenses, permits, 104 Stat. 2838; Sec. 2455, Pub. L. 103–355, certificates, and indemnification under 3017.800 What are the causes for regulatory programs conducted in the debarment? 108 Stat. 3327 (31 U.S.C. 6101 note); E.O. 3017.805 What notice does the debarring 12549 (3 CFR, 1986 Comp., p. 189); E.O. interest of public health and safety, and official give me if I am proposed for 12698 (3 CFR, 1989 Comp., p. 235); 7 CFR animal and plant health and safety. debarment? 2.28. (m) The receipt of official grading and inspection services, animal damage 3017.810 When does a debarment take ■ 2. Part 3017 is further amended as set effect? control services, public health and forth below: 3017.815 How may I contest a proposed safety inspection services, and animal ■ a. ‘‘[Agency noun]’’ is removed and debarment? and plant health and safety inspection ‘‘Department of Agriculture’’ is added in 3017.820 How much time do I have to services. contest a proposed debarment? its place wherever it occurs. (n) If the person is a State or local 3017.825 What information must I provide ■ b. ‘‘[Agency adjective]’’ is removed and to the debarring official if I contest a government, the provision of official ‘‘Department of Agriculture’’ is added in grading and inspection services, animal proposed debarment? its place wherever it occurs. 3017.830 Under what conditions do I get an damage control services, animal and ■ additional opportunity to challenge the c. ‘‘[Agency head or designee]’’ is plant health and safety inspection facts on which the proposed debarment removed and ‘‘the Secretary of services. is based? Agriculture or designee’’ is added in its (o) The receipt of licenses, permit, or 3017.835 Are debarment proceedings place wherever it occurs. certificates under regulatory programs formal? ■ 3. Section 3017.50 is further amended conducted in the interest of ensuring 3017.840 How is fact-finding conducted? 3017.845 What does the debarring official by adding a sentence at the end of fair trade practices. consider in deciding whether to debar paragraph (c) to read as follows: (p) Permits, licenses, exchanges and other acquisitions of real property, me? § 3017.50 How is this part written? 3017.850 What is the standard of proof in rights of way, and easements under a debarment action? * * * * * natural resource management programs. 3017.855 Who has the burden of proof in a (c) * * * However, this diagram ■ 5. Section 3017.220 is amended by debarment action? shows only the general model for the adding paragraph (c) to read as follows: 3017.860 What factors may influence the levels or ‘‘tiers’’ at which the debarring official’s decision? Department of Agriculture enforces an § 3017.220 Are any procurement contracts 3017.865 How long may my debarment exclusion under this part, and the included as covered transactions? last? 3017.870 When do I know if the debarring model will vary for certain categories of * * * * * official debars me? transactions in accordance with the (c) A contract for the procurement of 3017.875 May I ask the debarring official to exclusions from covered transactions in ocean transportation in connection with reconsider a decision to debar me? § 3017.215 and § 3017.220. the Department of Agriculture’s foreign

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assistance programs is a covered (d) The appeals officer’s decision is § 3017.935 Debarring official. transaction. With respect to the final and is not appealable within * * * * * Department of Agriculture’s export and USDA. (b) The head of an organizational unit foreign assistance programs, such ■ 9. Section 3017.800 is further amended within the Department of Agriculture contracts are the only procurement by adding paragraph (e) to read as (e.g., Administrator, Food and Nutrition contracts included as covered follows: Service), who has been delegated transactions, notwithstanding the authority in part 2 of this title to carry provisions in paragraphs (a) and (b) of § 3017.800 What are the causes of debarment? out a covered transaction, is delegated this section. authority to act as the debarring official * * * * * ■ 6. Section 3017.440 is added to read as in connection with such transaction. (e) Notwithstanding paragraph (c) (1) follows: This authority to act as a debarring of this section, within the Department of official may not be redelegated below § 3017.440 What method do I use to Agriculture a nonprocurement the head of the organizational unit, communicate those requirements to debarment by any Federal agency taken except that, in the case of the Forest participants? before March 1, 1989. Service, the Chief may redelegate the To communicate the requirement, you ■ 10. Section 3017.870 is further authority to act as a debarring official to must include a term or condition in the amended by adding a sentence at the end the Deputy Chief or an Associate Deputy transaction requiring the participants’ of paragraph (a) to read as follows: Chief for the National Forest System. compliance with subpart C of this part and requiring them to include a similar § 3017.870 When do I know if the ■ 13. Section 3017.1010 is further term or condition in their lower-tier debarring official debars me? amended by adding paragraph (b) to read covered transactions. (a) * * * However, the record will as follows: remain open for the full 30 days, as ■ 7. Section 3017.755 is further amended § 3017.1010 Suspending official. by adding a sentence at the end to read called for in § 3017.820, even when you * * * * * as follows: make a submission before the 30 days expire. (b) The head of an organizational unit § 3017.755 When will I know whether the * * * * * within the Department of Agriculture suspension is continued or terminated? ■ 11. Section 3017.890 is added to (e.g., Administrator, Food and Nutrition * * * However, the record will subpart H to read as follows: Service), who has been delegated remain open for the full 30 days, as authority in part 2 of this title to carry called for in § 3017.725, even when you § 3017.890 How may I appeal my out a covered transaction, is delegated make a submission before the 30 days debarment? authority to act as the suspending expire. (a) You may file an appeal only after official in connection with such ■ 8. Section 3017.765 is added to subpart you have exhausted the option provided transaction. This authority to act as a G to read as follows: for in § 3017.815 to contest the suspending official may not be debarment. You must file your appeal redelegated below the head of the § 3017.765 How may I appeal my within 30 days of receiving the decision organizational unit, except that, in the suspension? required by § 3017.870 and your filing case of the Forest Service, the Chief may (a) You may file an appeal only after must specify the basis of the appeal. redelegate the authority to act as a you have exhausted the option provided You must submit your appeal in writing suspending official to the Deputy Chief for in § 3017.720 to contest the to the Hearing Clerk in the Office of or an Associate Deputy Chief for the suspension. You must file your appeal Administrative Law Judges (OALJ), National Forest System. within 30 days of receiving the decision United States Department of Agriculture ■ 14. Part 3021 is added to read as set required by § 3017.755 and your filing (USDA), Washington, DC 20250. The forth in instruction 2 at the end of the must specify the basis of the appeal. assigned appeals officer may vacate the common preamble. You must submit your appeal in writing decision of the debarring official only if to the Hearing Clerk in the Office of the officer determines that the decision PART 3021—GOVERNMENTWIDE Administrative Law Judges (OALJ), is: REQUIREMENTS FOR DRUG-FREE United States Department of Agriculture (1) Not in accordance with law; WORKPLACE (FINANCIAL (USDA), Washington, DC 20250. The (2) Not based on the applicable ASSISTANCE) assigned appeals officer may vacate the standard of evidence; or decision of the suspending official only (3) Arbitrary and capricious and an Subpart A—Purpose and Coverage if the officer determines that the abuse of discretion. Sec. decision is: (b) The appeals officer will base the 3021.100 What does this part do? (1) Not in accordance with law; decision solely on the administrative 3021.105 Does this part apply to me? (2) Not based on the applicable record. 3021.110 Are any of my Federal assistance standard of evidence; or (c) Within 90 days of the date that you awards exempt from this part? 3021.115 Does this part affect the Federal (3) Arbitrary and capricious and an file your appeal with USDA’s OALJ contracts that I receive? abuse of discretion. Hearing Clerk, the appeals officer will (b) The appeals officer will base the give written notification of the decision Subpart B—Requirements for Recipients Other Than Individuals decision solely on the administrative to you and to the debarring official who record. took the action being appealed. 3021.200 What must I do to comply with (c) Within 90 days of the date that you (d) The appeals officer’s decision is this part? 3021.205 What must I include in my drug- file your appeal with USDA’s OALJ final and is not appealable within USDA. free workplace statement? Hearing Clerk, the appeals officer will 3021.210 To whom must I distribute my give written notification of the decision ■ 12. Section 3017.935 is further drug-free workplace statement? to you and to the suspending official amended by adding paragraph (b) to read 3021.215 What must I include in my drug- who took the action being appealed. as follows: free awareness program?

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3021.220 By when must I publish my drug- ■ 17. Section 3021.605(a)(2) is further 606.125 Does an exclusion under the free workplace statement and establish amended by removing ‘‘[Agency-specific nonprocurement system affect a person’s my drug-free awareness program? CFR citation]’’ and adding ‘‘7 CFR part eligibility for Federal procurement 3021.225 What actions must I take 3016’’ in its place. contracts? concerning employees who are convicted 606.130 Does exclusion under the Federal of drug violations in the workplace? DEPARTMENT OF ENERGY procurement system affect a person’s 3021.230 How and when must I identify eligibility to participate in workplaces? 10 CFR Parts 606, 607 and 1036 nonprocurement transactions? 606.135 May the Department of Energy Subpart C—Requirements for Recipients RIN 1991–AB56 exclude a person who is not currently Who Are Individuals FOR FURTHER INFORMATION CONTACT: participating in a nonprocurement 3021.300 What must I do to comply with Cynthia G. Yee, 202–586–1140; transaction? this part if I am an individual recipient? [email protected]. 606.140 How do I know if a person is 3021.301 [Reserved] List of Subjects excluded? Subpart D—Responsibilities of Department 606.145 Does this part address persons who of Agriculture Awarding Officials 10 CFR Part 606 are disqualified, as well as those who are excluded from nonprocurement 3021.400 What are my responsibilities as a Administrative practice and transactions? Department of Agriculture awarding procedure, Debarment and suspension, official? Government contracts, Grant programs, Subpart B—Covered Transactions Subpart E—Violations of This Part and Loan programs, Reporting and 606.200 What is a covered transaction? 606.205 Why is it important to know if a Consequences recordkeeping requirements. particular transaction is a covered 3021.500 How are violations of this part 10 CFR Parts 607 and 1036 transaction? determined for recipients other than Administrative practice and 606.210 Which nonprocurement individuals? transactions are covered transactions? 3021.505 How are violations of this part procedure, Drug abuse, Grant programs, 606.215 Which nonprocurement determined for recipients who are Reporting and recordkeeping transactions are not covered individuals? requirements. transactions? 3021.510 What actions will the Federal Issuance of this final rule has been 606.220 Are any procurement contracts Government take against a recipient approved by the Office of the Secretary of included as covered transactions? determined to have violated this part? Energy. 606.225 How do I know if a transaction in 3021.515 Are there any exceptions to those Dated: August 22, 2003. which I may participate is a covered actions? transaction? Richard H. Hopf, Subpart F—Definitions Director, Office of Procurement and Subpart C—Responsibilities of Participants 3021.605 Award. Assistance Management, Office of Regarding Transactions 3021.610 Controlled substance. Management, Budget and Evaluation, Doing Business With Other Persons 3021.615 Conviction. Department of Energy. 606.300 What must I do before I enter into 3021.620 Cooperative agreement. Dated: August 22, 2003. 3021.625 Criminal drug statute. a covered transaction with another 3021.630 Debarment. Robert C. Braden, Jr., person at the next lower tier? 3021.635 Drug-free workplace. Director, Office of Procurement and 606.305 May I enter into a covered 3021.640 Employee. Assistance Management, National Nuclear transaction with an excluded or 3021.645 Federal agency or agency. Security Administration. disqualified person? 3021.650 Grant. ■ For the reason stated in the common 606.310 What must I do if a Federal agency 3021.655 Individual. preamble, and under the authority of 42 excludes a person with whom I am 3021.660 Recipient. U.S.C. 7101 et seq. and 50 U.S.C. 2401 already doing business in a covered transaction? 3021.665 State. et seq., the Department of Energy amends 3021.670 Suspension. 606.315 May I use the services of an 10 CFR Chapters II and X, as follows. excluded person as a principal under a Authority: 5 U.S.C. 301; 41 U.S.C. 701 et ■ 1. Part 606 is added to subchapter H to covered transaction? seq.; Pub. L. 101–576, 104 Stat. 2838; 7 CFR read as set forth in instruction 1 at the 606.320 Must I verify that principals of my § 2.28. end of the common preamble. covered transactions are eligible to ■ 15. Part 3021 is further amended as set participate? forth below: PART 606—GOVERNMENTWIDE 606.325 What happens if I do business with ■ a. ‘‘[Agency noun]’’ is removed and DEBARMENT AND SUSPENSION an excluded person in a covered ‘‘Department of Agriculture’’ is added in (NONPROCUREMENT) transaction? its place wherever it occurs. 606.330 What requirements must I pass ■ b. ‘‘[Agency adjective]’’ is removed and Sec. down to persons at lower tiers with ‘‘Department of Agriculture’’ is added in 606.25 How is this part organized? whom I intend to do business? 606.50 How is this part written? its place wherever it occurs. Disclosing Information—Primary Tier 606.75 Do terms in this part have special ■ c. ‘‘[Agency head or designee]’’ is Participants meanings? removed and ‘‘the Secretary of 606.335 What information must I provide Agriculture or designee’’ is added in its Subpart A—General before entering into a covered place wherever it occurs. 606.100 What does this part do? transaction with the Department of ■ d. ‘‘[Agency head]’’ is removed and 606.105 Does this part apply to me? Energy? ‘‘the Secretary of Agriculture’’ is added 606.110 What is the purpose of the 606.340 If I disclose unfavorable in its place wherever it occurs. nonprocurement debarment and information required under § 606.335, ■ 16. Section 3021.510(c) is further suspension system? will I be prevented from participating in 606.115 How does an exclusion restrict a the transaction? amended by removing ‘‘[CFR citation for person’s involvement in covered 606.345 What happens if I fail to disclose the Federal Agency’s regulations transactions? the information required under implementing Executive Order 12549 606.120 May we grant an exception to let an § 606.335? and Executive Order 12689]’’ and adding excluded person participate in a covered 606.350 What must I do if I learn of the ‘‘7 CFR part 3017’’ in its place. transaction? information required under § 606.335

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after entering into a covered transaction 606.620 Do Federal agencies coordinate 606.865 How long may my debarment last? with the Department of Energy? suspension and debarment actions? 606.870 When do I know if the debarring 606.625 What is the scope of a suspension official debars me? Disclosing Information—Lower Tier or debarment action? 606.875 May I ask the debarring official to Participants 606.630 May the Department of Energy reconsider a decision to debar me? 606.355 What information must I provide to impute the conduct of one person to 606.880 What factors may influence the a higher tier participant before entering another? debarring official during into a covered transaction with that 606.635 May the Department of Energy reconsideration? participant? settle a debarment or suspension action? 606.885 May the debarring official extend a 606.360 What happens if I fail to disclose 606.640 May a settlement include a debarment? the information required under voluntary exclusion? Subpart I—Definitions § 606.355? 606.645 Do other Federal agencies know if 606.365 What must I do if I learn of the Department of Energy agrees to a 606.900 Adequate evidence. information required under § 606.355 voluntary exclusion? 606.905 Affiliate. after entering into a covered transaction 606.910 Agency. with a higher tier participant? Subpart G—Suspension 606.915 Agent or representative. Subpart D—Responsibilities of DOE 606.700 When may the suspending official 606.920 Civil judgment. Officials Regarding Transactions issue a suspension? 606.925 Conviction. 606.705 What does the suspending official 606.930 Debarment. 606.400 May I enter into a transaction with consider in issuing a suspension? 606.935 Debarring official. an excluded or disqualified person? 606.710 When does a suspension take 606.940 Disqualified. 606.405 May I enter into a covered effect? 606.945 Excluded or exclusion. transaction with a participant if a 606.715 What notice does the suspending 606.950 Excluded Parties List System. principal of the transaction is excluded? official give me if I am suspended? 606.955 Indictment. 606.410 May I approve a participant’s use 606.720 How may I contest a suspension? 606.960 Ineligible or ineligibility. of the services of an excluded person? 606.725 How much time do I have to 606.965 Legal proceedings. 606.415 What must I do if a Federal agency contest a suspension? 606.970 Nonprocurement transaction. excludes the participant or a principal 606.730 What information must I provide to 606.975 Notice. after I enter into a covered transaction? the suspending official if I contest a 606.980 Participant. 606.420 May I approve a transaction with suspension? 606.985 Person. an excluded or disqualified person at a 606.735 Under what conditions do I get an 606.990 Preponderance of the evidence. lower tier? additional opportunity to challenge the 606.995 Principal. 606.425 When do I check to see if a person facts on which the suspension is based? 606.1000 Respondent. is excluded or disqualified? 606.740 Are suspension proceedings 606.1005 State. 606.430 How do I check to see if a person formal? 606.1010 Suspending official. is excluded or disqualified? 606.745 How is fact-finding conducted? 606.1015 Suspension. 606.435 What must I require of a primary 606.746 Who conducts fact-finding 606.1020 Voluntary exclusion or tier participant? conferences for DOE? voluntarily excluded. 606.440 What method do I use to 606.750 What does the suspending official communicate those requirement to Subpart J—[Reserved] consider in deciding whether to continue participants? or terminate my suspension? 606.445 What action may I take if a primary Appendix to Part 606—Covered 606.755 When will I know whether the tier participant knowingly does business Transactions suspension is continued or terminated? with an excluded or disqualified person? Authority: E.O. 12549 (3 CFR, 1986 Comp., 606.450 What action may I take if a primary 606.760 How long may my suspension last? p.189); E.O. 12689 (3 CFR, 1989 Comp., tier participant fails to disclose the Subpart H—Debarment p.235); sec. 2455, Pub. L. 103–355, 108 Stat. information required under § 606.335? 606.800 What are the causes for debarment? 3327 (31 U.S.C. 6101 note); 42 U.S.C. 7101 606.455 What may I do if a lower tier 606.805 What notice does the debarring et seq.; 50 U.S.C. 2401 et seq. participant fails to disclose the official give me if I am proposed for information required under § 606.355 to debarment? ■ 2. Part 606 is further amended as set the next higher tier? 606.810 When does a debarment take forth below. Subpart E—Excluded Parties List System effect? ■ a. ‘‘[Agency noun]’’ is removed and 606.500 What is the purpose of the 606.815 How may I contest a proposed ‘‘Department of Energy’’ is added in its Excluded Parties List System (EPLS)? debarment? place wherever it occurs. 606.505 Who uses the EPLS? 606.820 How much time do I have to ■ b. ‘‘[Agency adjective]’’ is removed and 606.510 Who maintains the EPLS? contest a proposed debarment? ‘‘DOE’’ is added in its place wherever it 606.515 What specific information is in the 606.825 What information must I provide to occurs. EPLS? the debarring official if I contest a ■ c. ‘‘[Agency head or designee]’’ is 606.520 Who places the information into proposed debarment? 606.830 Under what conditions do I get an removed and ‘‘Director, Office of the EPLS? Procurement and Assistance 606.525 Whom do I ask if I have questions additional opportunity to challenge the about a person in the EPLS? facts on which the proposed debarment Management, DOE, for DOE actions, and 606.530 Where can I find the EPLS? is based? Director, Office of Procurement and 606.835 Are debarment proceedings formal? Assistance Management, NNSA, for Subpart F—General Principles Relating to 606.836 Who conducts fact-finding NNSA actions’’ are added in its place Suspension and Debarment Actions conferences for DOE? wherever it occurs. 606.840 How is fact-finding conducted? 606.600 How do suspension and debarment ■ 3. Section 606.440 is added to read as actions start? 606.845 What does the debarring official 606.605 How does suspension differ from consider in deciding whether to debar follows: debarment? me? § 606.440 What method do I use to 606.610 What procedures does the 606.850 What is the standard of proof in a communicate those requirements to Department of Energy use in suspension debarment action? participants? and debarment actions? 606.855 Who has the burden of proof in a 606.615 How does the Department of debarment action? To communicate the requirements, Energy notify a person of a suspension 606.860 What factors may influence the you must include a term or condition in and debarment action? debarring official’s decision? the transaction requiring the

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participants’ compliance with subpart C PART 607—GOVERNMENTWIDE ■ 10. Part 607 is further amended as set of this part and requiring them to REQUIREMENTS FOR DRUG-FREE forth below. include a similar term or condition in WORKPLACE (FINANCIAL ■ a. ‘‘[Agency noun]’’ is removed and lower-tier covered transactions. ASSISTANCE) ‘‘Department of Energy’’ is added in its ■ 4. Section 606.746 is added to read as place wherever it occurs. Subpart A—Purpose and Coverage ■ b. ‘‘[Agency adjective]’’ is removed and follows: Sec. ‘‘DOE’’ is added in its place wherever it § 606.746 Who conducts fact-finding 607.100 What does this part do? occurs. conferences for DOE? 607.105 Does this part apply to me? ■ c. ‘‘[Agency head or designee]’’ is 607.110 Are any of my Federal assistance removed and ‘‘Director, Office of The Energy Board of Contract Appeals awards exempt from this part? conducts fact-finding conferences for Procurement and Assistance 607.115 Does this part affect the Federal Management, DOE, for DOE actions, and DOE, in accordance with the rules contracts that I receive? promulgated by the Energy Board of Director, Office of Procurement and Subpart B—Requirements for Recipients Contract Appeals. Assistance Management, NNSA, for Other Than Individuals NNSA actions’’ are added in its place ■ 5. Section 606.836 is added to read as 607.200 What must I do to comply with this wherever it occurs. follows: part? ■ d. ‘‘[Agency head]’’ is removed and 607.205 What must I include in my drug- ‘‘Secretary of Energy’’ is added in its § 606.836 Who conducts fact-finding free workplace statement? conferences for DOE? place wherever it occurs. 607.210 To whom must I distribute my ■ drug-free workplace statement? 11. Section 607.510(c) is further The Energy Board of Contract Appeals amended by removing ‘‘[CFR citation for conducts fact-finding conferences for 607.215 What must I include in my drug- free awareness program? the Federal agency’s regulations DOE, in accordance with the rules implementing Executive order 12549 promulgated by the Energy Board of 607.220 By when must I publish my drug- free workplace statement and establish and Executive Order 12689]’’ and adding Contract Appeals. my drug-free awareness program? ‘‘10 CFR Part 606’’ in its place. ■ 6. Section 606.910 is further amended 607.225 What actions must I take ■ 12. Section 607.605(a)(2) is further by adding a definition for Department of concerning employees who are convicted amended by removing ‘‘[Agency-specific of drug violations in the workplace? Energy in alphabetical order to read as CFR citation]’’ and adding ‘‘10 CFR Part follows: 607.230 How and when must I identify workplaces? 600’’ in its place. ■ 13. Section 607.645 is further amended § 606.910 Agency. Subpart C—Requirements for Recipients * * * * * Who Are Individuals by adding the definition for Department of Energy in alphabetical order to read as Department of Energy means the U.S. 607.300 What must I do to comply with this follows: Department of Energy, including the part if I am an individual recipient? National Nuclear Security 607.301 [Reserved] § 607.645 Federal Agency or agency. Administration (NNSA). Subpart D—Responsibilities of DOE Department of Energy means the U.S. ■ 7. Section 606.935 is further amended Awarding Officials Department of Energy, including the by adding paragraph (b) to read as 607.400 What are my responsibilities as a National Nuclear Security follows: DOE awarding official? Administration (NNSA). * * * * * § 606.935 Debarring official. Subpart E—Violations of This Part and Consequences * * * * * PART 1036—[Removed] 607.500 How are violations of this part (b) The debarring official for the determined for recipients other than ■ 14. Part 1036 is removed. Department of Energy, exclusive of individuals? lllllllllllllllllll NNSA, is the Director, Office of 607.505 How are violations of this part Procurement and Assistance determined for recipients who are EXPORT-IMPORT BANK OF THE Management, DOE. The debarring individuals? UNITED STATES official for NNSA is the Director, Office 607.510 What actions will the Federal of Procurement and Assistance Government take against a recipient 12 CFR Part 413 determined to have violated this part? Management, NNSA. 607.515 Are there any exceptions to those RIN 3048–ZA03 ■ 8. Section 606.1010 is further amended actions? ADDRESSES: Comments should be sent to by adding paragraph (b) to read as Subpart F—Definitions Howard Schweitzer, Assistant General follows: Counsel for Administration, Export- 607.605 Award. Import Bank of the United States, 811 § 606.1010 Suspending official. 607.610 Controlled substance. Vermont Ave., NW., Washington, DC 607.615 Conviction. * * * * * 607.620 Cooperative agreement. 20571, or to (b) The suspending official for the 607.625 Criminal drug statute. [email protected]. Department of Energy, exclusive of 607.630 Debarment. FOR FURTHER INFORMATION CONTACT: NNSA, is the Director, Office of 607.635 Drug-free workplace. Howard Schweitzer, Assistant General Procurement and Assistance 607.640 Employee. Counsel for Administration, Export- 607.645 Federal agency or agency. Management, DOE. The suspending Import Bank of the United States, (202) official for NNSA is the Director, Office 607.650 Grant. 607.655 Individual. 565–3229, or at of Procurement and Assistance 607.660 Recipient. [email protected]. Management, NNSA. 607.665 State. SUPPLEMENTARY INFORMATION: Ex-Im ■ 9. Part 607 is added to subchapter H to 607.670 Suspension. Bank publishes this interim final rule in read as set forth in instruction 2 at the Authority: 41 U.S.C. 701, et seq.; 42 U.S.C. order to join the publication of end of the common preamble. 7101 et seq.; 50 U.S.C. 2401 et seq. regulations amending the common rule

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on nonprocurement suspension and 413.130 Does exclusion under the Federal into a covered transaction with that debarment. As discussed in detail in the procurement system affect a person’s participant? common preamble to this rule, the eligibility to participate in 413.360 What happens if I fail to disclose nonprocurement transactions? the information required under substantive provisions of the common 413.135 May the Ex-Im Bank exclude a rule have previously been the subject of § 413.355? person who is not currently participating 413.365 What must I do if I learn of a notice and comment period. Ex-Im in a nonprocurement transaction? information required under § 413.355 Bank is not at this time adopting any 413.140 How do I know if a person is after entering into a covered transaction optional provisions contained in the excluded? with a higher tier participant? common rule that depart from the 413.145 Does this part address persons who substance of the base text of the are disqualified, as well as those who are Subpart D—Responsibilities of Ex-Im Bank Officials Regarding Transactions common rule. For these reasons, Ex-Im excluded from nonprocurement transactions? Bank finds, pursuant to 5 U.S.C. 553 413.400 May I enter into a transaction with (b)(B), that a notice and comment period Subpart B—Covered Transactions an excluded or disqualified person? 413.405 May I enter into a covered is unnecessary with respect to its 413.200 What is a covered transaction? transaction with a participant if a 413.205 Why is it important to know if a adoption of the base text of the common principal of the transaction is excluded? particular transaction is a covered rule. 413.410 May I approve a participant’s use transaction? It should also be noted that Ex-Im of the services of an excluded person? 413.210 Which nonprocurement 413.415 What must I do if a Federal agency Bank will not be adopting those transactions are covered transactions? provisions of the common preamble 413.215 Which nonprocurement excludes the participant or a principal concerning the Government-wide transactions are not covered after I enter into a covered transaction? Requirements for Drug-Free Workplace transactions? 413.420 May I approve a transaction with an excluded or disqualified person at a (Grants). Ex-Im Bank does not issue 413.220 Are any procurement contracts included as covered transactions? lower tier? cooperative agreements, awards, grants 413.425 When do I check to see if a person or other financial assistance covered by 413.225 How do I know if a transaction in which I may participate is a covered is excluded or disqualified? these provisions. transaction? 413.430 How do I check to see if a person is excluded or disqualified? List of Subjects in 12 CFR Part 413 Subpart C—Responsibilities of Participants 413.435 What must I require of a primary Administrative practice and Regarding Transactions tier participant? procedure, Debarment and suspension, Doing Business With Other Persons 413.440 What method do I use to Government contracts, Loan programs, communicate those requirements to 413.300 What must I do before I enter into participants? Reporting and recordkeeping a covered transaction with another 413.445 What action may I take if a primary requirements. person at the next lower tier? tier participant knowingly does business 413.305 May I enter into a covered Dated: August 4, 2003. with an excluded or disqualified person? transaction with an excluded or Peter B. Saba, 413.450 What action may I take if a primary disqualified person? tier participant fails to disclose the 413.310 What must I do if a Federal agency General Counsel, The Export-Import Bank of information required under § 413.335? excludes a person with whom I am the United States. 413.455 What may I do if a lower tier already doing business in a covered ■ participant fails to disclose the For the reasons stated in the preamble, transaction? information required under § 413.355 to the Export-Import Bank of the United 413.315 May I use the services of an States amends 12 CFR chapter IV as excluded person as a principal under a the next higher tier? follows: covered transaction? Subpart E—Excluded Parties List System 413.320 Must I verify that principals of my ■ 1. Part 413 is added to read as set forth 413.500 What is the purpose of the covered transactions are eligible to in instruction 1 at the end of the common Excluded Parties List System (EPLS)? participate? preamble. 413.325 What happens if I do business with 413.505 Who uses the EPLS? an excluded person in a covered 413.510 Who maintains the EPLS? PART 413—GOVERNMENTWIDE transaction? 413.515 What specific information is in the DEBARMENT AND SUSPENSION 413.330 What requirements must I pass EPLS? (NONPROCUREMENT) down to persons at lower tiers with 413.520 Who places the information into whom I intend to do business? the EPLS? Sec. 413.525 Whom do I ask if I have questions 413.25 How is this part organized? Disclosing Information—Primary Tier about a person in the EPLS? 413.50 How is this part written? Participants 413.530 Where can I find the EPLS? 413.75 Do terms in this part have special 413.335 What information must I provide Subpart F—General Principles Relating to meanings? before entering into a covered Suspension and Debarment Actions Subpart A—General transaction with the Ex-Im Bank? 413.340 If I disclose unfavorable 413.600 How do suspension and debarment 413.100 What does this part do? information required under § 413.335, actions start? 413.105 Does this part apply to me? will I be prevented from participating in 413.605 How does suspension differ from 413.110 What is the purpose of the the transaction? debarment? nonprocurement debarment and 413.345 What happens if I fail to disclose 413.610 What procedures does the Ex-Im suspension system? the information required under Bank use in suspension and debarment 413.115 How does an exclusion restrict a § 413.335? actions? person’s involvement in covered 413.350 What must I do if I learn of the 413.615 How does the Ex-Im Bank notify a transactions? information required under § 413.335 person of a suspension and debarment 413.120 May we grant an exception to let an after entering into a covered transaction action? excluded person participate in a covered with the Ex-Im Bank? 413.620 Do Federal agencies coordinate transaction? suspension and debarment actions? 413.125 Does an exclusion under the Disclosing Information—Lower Tier 413.625 What is the scope of a suspension nonprocurement system affect a person’s Participants or debarment action? eligibility for Federal procurement 413.355 What information must I provide to 413.630 May the Ex-Im Bank impute the contracts? a higher tier participant before entering conduct of one person to another?

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413.635 May the Ex-Im Bank settle a Subpart I—Definitions Business Administration, 409 Third debarment or suspension action? 413.900 Adequate evidence. Street, SW., Washington, DC 20416, 413.640 May a settlement include a 413.905 Affiliate. (202) 205–6630, e-mail: voluntary exclusion? 413.910 Agency. [email protected]. 413.645 Do other Federal agencies know if 413.915 Agent or representative. the Ex-Im Bank agrees to a voluntary 413.920 Civil judgment. List of Subjects exclusion? 413.925 Conviction. 13 CFR Part 145 Subpart G—Suspension 413.930 Debarment. 413.935 Debarring official. Administrative practice and 413.700 When may the suspending official 413.940 Disqualified. procedure, Government contracts, Grant issue a suspension? 413.945 Excluded or exclusion. programs, Loan programs, Reporting 413.705 What does the suspending official 413.950 Excluded Parties List System. and recordkeeping requirements, Small consider in issuing a suspension? 413.955 Indictment. businesses. 413.710 When does a suspension take 413.960 Ineligible or ineligibility. effect? 413.965 Legal proceedings. 13 CFR Part 147 413.715 What notice does the suspending 413.970 Nonprocurement transaction. Administrative practice and official give me if I am suspended? 413.975 Notice. 413.720 How may I contest a suspension? 413.980 Participant. procedure, Drug abuse, Grant programs, 413.725 How much time do I have to 413.985 Person. Reporting and recordkeeping contest a suspension? 413.990 Preponderance of the evidence. requirements. 413.730 What information must I provide to 413.995 Principal. Dated: September 12, 2003. the suspending official if I contest a 413.1000 Respondent. Hector V. Barreto, suspension? 413.1005 State. 413.735 Under what conditions do I get an 413.1010 Suspending official. Administrator, U.S. Small Business additional opportunity to challenge the 413.1015 Suspension. Administration. facts on which the suspension is based? 413.1020 Voluntary exclusion or ■ For the reasons stated in the common 413.740 Are suspension proceedings voluntarily excluded. preamble, the U.S. Small Business formal? Subpart J—[Reserved] Administration proposes to amend 13 413.745 How is fact-finding conducted? CFR Chapter I as follows: 413.750 What does the suspending official Appendix to Part 413—Covered ■ 1. Part 145 is revised to read as set forth consider in deciding whether to continue Transactions in instruction 1 at the end of the common or terminate my suspension? 413.755 When will I know whether the Authority: Sec. 2455, Pub. L. 103–355, 108 preamble. Stat. 3327 (31 U.S.C. 6101 note); E.O. 11738 suspension is continued or terminated? PART 145—GOVERNMENTWIDE 413.760 How long may my suspension last? (3 CFR, 1973 Comp., p. 799); E.O. 12549 (3 CFR, 1986 Comp., p. 189); E.O. 12689 (3 CFR, DEBARMENT AND SUSPENSION Subpart H—Debarment 1989 Comp., p. 235). (NONPROCUREMENT) 413.800 What are the causes for debarment? ■ 2. Part 413 is further amended as set 413.805 What notice does the debarring Sec. forth below. 145.25 How is this part organized? official give me if I am proposed for ■ a. ‘‘[Agency noun]’’ is removed and 145.50 How is this part written? debarment? ‘‘Ex-Im Bank’’ is added in its place 413.810 When does a debarment take 145.75 Do terms in this part have special wherever it occurs. meanings? effect? ■ b. ‘‘[Agency adjective]’’ is removed and 413.815 How may I contest a proposed ‘‘Ex-Im Bank’’ is added in its place Subpart A—General debarment? 145.100 What does this part do? 413.820 How much time do I have to wherever it occurs. ■ c. ’[Agency head or designee]’’ is 145.105 Does this part apply to me? contest a proposed debarment? 145.110 What is the purpose of the 413.825 What information must I provide to removed and ‘‘Ex-Im Bank agency head or designee’’ is added in its place nonprocurement debarment and the debarring official if I contest a suspension system? proposed debarment? wherever it occurs. 145.115 How does an exclusion restrict a 413.830 Under what conditions do I get an ■ 3. Section 413.440 is added to read as person’s involvement in covered additional opportunity to challenge the follows: transactions? facts on which the proposed debarment 145.120 May we grant an exception to let an is based? § 413.440 What method do I use to excluded person participate in a covered 413.835 Are debarment proceedings formal? communicate those requirements to transaction? 413.840 How is fact-finding conducted? participants? 145.125 Does an exclusion under the 413.845 What does the debarring official To communicate the requirements, nonprocurement system affect a person’s consider in deciding whether to debar you must include a term or condition in eligibility for Federal procurement me? the transaction requiring the contracts? 413.850 What is the standard of proof in a 145.130 Does exclusion under the Federal debarment action? participants’ compliance with subpart C of this part and requiring them to procurement system affect a person’s 413.855 Who has the burden of proof in a eligibility to participate in debarment action? include a similar term or condition in nonprocurement transactions? 413.860 What factors may influence the lower-tier covered transactions. 145.135 May the SBA exclude a person who debarring official’s decision? lllllllllllllllllll is not currently participating in a 413.865 How long may my debarment last? nonprocurement transaction? 413.870 When do I know if the debarring SMALL BUSINESS ADMINISTRATION 145.140 How do I know if a person is official debars me? excluded? 13 CFR Parts 145 and 147 413.875 May I ask the debarring official to 145.145 Does this part address persons who reconsider a decision to debar me? RIN 3245–AE61 are disqualified, as well as those who are 413.880 What factors may influence the excluded from nonprocurement FOR FURTHER INFORMATION CONTACT: debarring official during transactions? reconsideration? Darryl K. Hairston, SBA Debarring 413.885 May the debarring official extend a Official, Assistant Administrator for Subpart B—Covered Transactions debarment? Administration (5331), U.S. Small 145.200 What is a covered transaction?

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145.205 Why is it important to know if a 145.405 May I enter into a covered 145.725 How much time do I have to particular transaction is a covered transaction with a participant if a contest a suspension? transaction? principal of the transaction is excluded? 145.730 What information must I provide to 145.210 Which nonprocurement 145.410 May I approve a participant’s use the suspending official if I contest a transactions are covered transactions? of the services of an excluded person? suspension? 145.215 Which nonprocurement 145.415 What must I do if a Federal agency 145.735 Under what conditions do I get an transactions are not covered excludes the participant or a principal additional opportunity to challenge the transactions? after I enter into a covered transaction? facts on which the suspension is based? 145.220 Are any procurement contracts 145.420 May I approve a transaction with 145.740 Are suspension proceedings included as covered transactions? an excluded or disqualified person at a formal? 145.225 How do I know if a transaction in lower tier? 145.745 How is fact-finding conducted? which I may participate in is a covered 145.425 When do I check to see if a person 145.750 What does the suspending official transaction? is excluded or disqualified? consider in deciding whether to continue 145.430 How do I check to see if a person or terminate my suspension? Subpart C—Responsibilities of Participants is excluded or disqualified? 145.755 When will I know whether the Regarding Transactions 145.435 What must I require of a primary suspension is continued or terminated? tier participant? Doing Business With Other Persons 145.760 How long may my suspension last? 145.440 What method do I use to 145.765 How may I appeal my suspension? 145.300 What must I do before I enter into communicate those requirements to a covered transaction with another participants? Subpart H—Debarment person at the next lower tier? 145.445 What action may I take if a primary 145.800 What are the causes for debarment? 145.305 May I enter into a covered tier participant knowingly does business 145.805 What notice does the debarring transaction with an excluded or with an excluded or disqualified person? official give me if I am proposed for disqualified person? 145.450 What action may I take if a primary debarment? 145.310 What must I do if a Federal agency tier participant fails to disclose the 145.810 When does a debarment take excludes a person with whom I am information required under § 145.335? effect? already doing business in a covered 145.455 What may I do if a lower tier 145.815 How may I contest a proposed transaction? participant fails to disclose the debarment? 145.315 May I use the services of an information required under § 145.355 to 145.820 How much time do I have to excluded person as a principal under a the next higher tier? contest a proposed debarment? covered transaction? Subpart E—Excluded Parties List System 145.825 What information must I provide to 145.320 Must I verify that principals of my the debarring official if I contest a covered transactions are eligible to 145.500 What is the purpose of the proposed debarment? Excluded Parties List System (EPLS)? participate? 145.830 Under what conditions do I get an 145.505 Who uses the EPLS? 145.325 What happens if I do business with additional opportunity to challenge the 145.510 Who maintains the EPLS? an excluded person in a covered facts on which the proposed debarment 145.515 What specific information is in the transaction? is based? EPLS? 145.330 What requirements must I pass 145.835 Are debarment proceedings formal? 145.520 Who places the information into down to persons at lower tiers with 145.840 How is fact-finding conducted? the EPLS? whom I intend to do business? 145.845 What does the debarring official 145.525 Whom do I ask if I have questions consider in deciding whether to debar Disclosing Information—Primary Tier about a person in the EPLS? me? Participants 145.530 Where can I find the EPLS? 145.850 What is the standard of proof in a 145.335 What information must I provide Subpart F—General Principles Relating to debarment action? before entering into a covered Suspension and Debarment Actions 145.855 Who has the burden of proof in a transaction with the SBA? 145.600 How do suspension and debarment debarment action? 145.340 If I disclose unfavorable actions start? 145.860 What factors may influence the information required under § 145.335, 145.605 How does suspension differ from debarring official’s decision? will I be prevented from participating in debarment? 145.865 How long may my debarment last? the transaction? 145.610 What procedures does the SBA use 145.870 When do I know if the debarring 145.345 What happens if I fail to disclose in suspension and debarment actions? official debars me? the information required under 145.615 How does the SBA notify a person 145.875 May I ask the debarring official to § 145.335? of a suspension and debarment action? reconsider a decision to debar me? 145.350 What must I do if I learn of the 145.620 Do Federal agencies coordinate 145.880 What factors may influence the information required under § 145.335 suspension and debarment actions? debarring official during after entering into a covered transaction 145.625 What is the scope of a suspension reconsideration? with the SBA? or debarment action? 145.885 May the debarring official extend a 145.630 May the SBA impute the conduct debarment? Disclosing Information—Lower Tier 145.890 How may I appeal my debarment? Participants of one person to another? 145.635 May the SBA settle a debarment or Subpart I—Definitions 145.355 What information must I provide to suspension action? a higher tier participant before entering 145.640 May a settlement include a 145.900 Adequate evidence. into a covered transaction with that voluntary exclusion? 145.905 Affiliate. participant? 145.645 Do other Federal agencies know if 145.910 Agency. 145.360 What happens if I fail to disclose the SBA agrees to a voluntary exclusion? 145.915 Agent or representative. the information required under 145.920 Civil judgment. § 145.355? Subpart G—Suspension 145.925 Conviction. 145.365 What must I do if I learn of 145.700 When may the suspending official 145.930 Debarment. information required under § 145.355 issue a suspension? 145.935 Debarring official. after entering into a covered transaction 145.705 What does the suspending official 145.940 Disqualified. with a higher tier participant? consider in issuing a suspension? 145.945 Excluded or exclusion. 145.710 When does a suspension take 145.950 Excluded Parties List System. Subpart D—Responsibilities of SBA effect? 145.955 Indictment. Officials Regarding Transactions 145.715 What notice does the suspending 145.960 Ineligible or ineligibility. 145.400 May I enter into a transaction with official give me if I am suspended? 145.965 Legal proceedings. an excluded or disqualified person? 145.720 How may I contest a suspension? 145.970 Nonprocurement transaction.

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145.975 Notice. continue your suspension after you (b) A request for review under this 145.980 Participant. present information in opposition to section must be in writing; state the 144.985 Person. that suspension under § 145.720, you specific findings you believe to be in 145.990 Preponderance of the evidence. 145.995 Principal. can ask for review of the suspending error; and include the reasons or legal 145.1000 Respondent. official’s decision in two ways: bases for your position. 145.1005 State. (1) You may ask the suspending (c) OHA may, in its discretion, stay 145.1010 Suspending official. official to reconsider the decision for the debarment pending review of the 145.1015 Suspension. material errors of fact or law that you debarring official’s decision. 145.1020 Voluntary exclusion or believe will change the outcome of the (d) The SBA debarring official and voluntarily excluded. matter; and/or OHA must notify you of their decisions Subpart J—[Reserved] (2) You may request that the SBA under this section, in writing, using the Office of Hearings and Appeals (OHA), notice procedures at §§ 145.615 and Appendix to Part 145—Covered review the suspending official’s 145.975. Transactions decision to continue your suspension ■ 7. Section 145.935 is further amended Authority: 5 U.S.C. 301 et seq.; 15 U.S.C. within 30 days of your receipt of the by adding a paragraph (b) to read as 631 et seq.; Sec. 2455, Pub. L. 103–355, 108 suspending official’s decision under follows: Stat. 3327 (31 U.S.C. 6101 note); E.O. 11738, § 145.755 or paragraph (a)(1) of this 3 CFR, 1973 Comp., p. 799; E.O. 12549, 3 section. However, OHA can reverse the § 145.935 Debarring official. CFR, 1986 Comp., p. 189; E.O. 12689, 3 CFR, suspending official’s decision only * * * * * 1989 Comp., p. 235. where OHA finds that the decision is (b) For SBA, the debarring official for ■ 2. Part 145 is further amended as set based on a clear error of material fact or financial assistance programs means the forth below. law, or where OHA finds that the Assistant Administrator for Lender ■ a. ‘‘[Agency noun]’’ is removed and the suspending official’s decision was Oversight; for all other programs, the ‘‘SBA’’ is added in its place wherever it arbitrary, capricious, or an abuse of debarring official means the Assistant occurs. Administrator for Administration. ■ b. ‘‘[Agency adjective]’’ is removed and discretion. (b) A request for review under this ■ 8. Section 145.995 is further amended the ‘‘SBA’’ is added in its place wherever section must be in writing; state the by adding a paragraph (c) to read as it occurs. follows: ■ c. ‘‘[Agency head or designee]’’ is specific findings you believe to be in error; and include the reasons or legal removed and the ‘‘SBA Debarring § 145.995 Principal. Official’’ is added in its place wherever bases for your position. (c) OHA, in its discretion, may stay * * * * * it occurs. the suspension pending review of the (c) Other examples of individuals who ■ 3. Section 145.220 is further amended suspending official’s decision. are principals in SBA covered by adding a paragraph (c) to read as (d) The SBA suspending official and transactions include: follows: OHA must notify you of their decisions (1) Principal investigators. (2) Securities brokers and dealers § 145.220 Are any procurement contracts under this section, in writing, using the included as covered transactions? notice procedures at §§ 145.615 and under the section 7(a) Loan, Certified 145.975. Development Company (CDC) and * * * * * Small Business Investment Company (c) The contract is awarded by any ■ 6. Section 145.890 is added to subpart H to read as follows: (SBIC) programs. contractor, subcontractor, supplier, (3) Applicant representatives under consultant or its agent or representative § 145.890 How may I appeal my the section 7(a) Loan, Certified in any transaction, regardless of tier, to debarment? Development Company (CDC), Small be funded or provided by the SBA (a) If the SBA debarring official issues Business Investment Company (SBIC), under a nonprocurement transaction a decision under § 145.870 to debar you Small Business Development Center that is expected to equal or exceed after you present information in (SBDC), and section 7(j) programs. $25,000. (See optional lower tier opposition to a proposed debarment (4) Providers of professional services coverage shown in the diagram in the under § 145.815, you can ask for review under section 7(a) Loan, Certified appendix to this part.) of the debarring official’s decision in Development Company (CDC), Small ■ 4. Section 145.440 is added to read as two ways: Business Investment Company (SBIC), follows: (1) You may ask the debarring official Small Business Development Center § 145.440 What method do I use to to reconsider the decision for material (SBDC), and section 7(j) programs. communicate those requirements to errors of fact or law that you believe will (5) Individuals that certify, participants? change the outcome of the matter; and/ authenticate or authorize billings. To communicate the requirements to or ■ 9. Section 145.1010 is further amended participants, you must include a term or (2) You may request that the SBA by adding a paragraph (b) to read as condition in the transaction requiring Office of Hearings and Appeals (OHA), follows: review the debarring official’s decision the participant’s compliance with § 145.1010 Suspending official. subpart C of this part and requiring to debar you within 30 days of your them to include a similar term or receipt of the debarring official’s * * * * * condition in lower tier covered decision under § 145.870 or paragraph (b) For SBA, the suspending official transactions. (a)(1) of this section. However, OHA can for financial assistance programs means ■ reverse the debarring official’s decision the Assistant Administrator for Lender 5. Section 145.765 is added to subpart Oversight; for all other programs, the G to read as follows: only where OHA finds that the decision is based on a clear error of material fact suspending official means the Assistant § 145.765 How may I appeal my or law, or where OHA finds that the Administrator for Administration. suspension? debarring official’s decision was ■ 10. Part 147 is added to read as set forth (a) If the SBA suspending official arbitrary, capricious, or an abuse of in instruction 2 at the end of the common issues a decision under § 145.755 to discretion. preamble.

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PART 147—GOVERNMENTWIDE ■ a. ‘‘[Agency noun]’’ is removed and the Subpart A—General REQUIREMENTS FOR DRUG-FREE ‘‘SBA’’ is added in its place wherever it 1265.100 What does this part do? WORKPLACE (NONPROCUREMENT) occurs. 1265.105 Does this part apply to me? ■ b. ‘‘[Agency adjective]’’ is removed and 1265.110 What is the purpose of the Subpart A—Purpose and Coverage the ‘‘SBA’’ is added in its place wherever nonprocurement debarment and Sec. it occurs. suspension system? 147.100 What does this part do? ■ c. ‘‘[Agency head or designee]’’ is 1265.115 How does an exclusion restrict a 147.105 Does this part apply to me? removed and the ‘‘SBA Administrator or person’s involvement in covered 147.110 Are any of my Federal assistance designee’’ is added in its place wherever transactions? awards exempt from this part? 1265.120 May we grant an exception to let 147.115 Does this part affect the Federal it occurs. ■ an excluded person participate in a contracts that I receive? d. ‘‘[Agency head]’’ is removed and the ‘‘SBA Administrator’’ is added in its covered transaction? Subpart B—Requirements for Recipients place wherever it occurs. 1265.125 Does an exclusion under the Other Than Individuals ■ 12. Section 147.510(c) is further nonprocurement system affect a person’s eligibility for Federal procurement 147.200 What must I do to comply with this amended by removing ‘‘[CFR citation for part? contracts? the Federal Agency’s regulations 147.205 What must I include in my drug- 1265.130 Does exclusion under the Federal free workplace statement? implementing Executive Order 12549 procurement system affect a person’s 147.210 To whom must I distribute my and Executive Order 12689]’’ and adding eligibility to participate in drug-free workplace statement? ‘‘13 CFR Part 145’’ in its place. nonprocurement transactions? ■ 147.215 What must I include in my drug- 13. Section 147.605(a)(2) is amended 1265.135 May NASA exclude a person who free awareness program? by removing ‘‘[Agency specific CFR is not currently participating in a 147.220 By when must I publish my drug- citation]’’ and adding ‘‘13 CFR Part 147’’ nonprocurement transaction? free workplace statement and establish in its place. my drug-free awareness program? 1265.140 How do I know if a person is 147.225 What actions must I take lllllllllllllllllll excluded? concerning employees who are convicted 1265.145 Does this part address persons of drug violations in the workplace? NATIONAL AERONAUTICS AND who are disqualified, as well as those 147.230 How and when must I identify SPACE ADMINISTRATION who are excluded from nonprocurement workplaces? 14 CFR Parts 1265 and 1267 transactions? Subpart C—Requirements for Recipients RIN 2700–AC76 Subpart B—Covered Transactions Who Are Individuals FOR FURTHER INFORMATION CONTACT: Paul 1265.200 What is a covered transaction? 147.300 What must I do to comply with this 1265.205 Why is it important to know if a part if I am an individual recipient? Brundage, NASA Headquarters, 300 E Street, SW, Washington, DC 20546– particular transaction is a covered 147.301 [Reserved] transaction? 0001, (202) 358–0481, e-mail: 1265.210 Which nonprocurement Subpart D—Responsibilities of SBA [email protected]. Awarding Officials transactions are covered transactions? 147.400 What are my responsibilities as an List of Subjects 1265.215 Which nonprocurement SBA awarding official? transactions are not covered 14 CFR Part 1265 transactions? Subpart E—Violations of This Part and Administrative practice and 1265.220 Are any procurement contracts Consequences procedure, Debarment and suspension, included as covered transactions? 147.500 How are violations of this part Grant programs, Reporting and 1265.225 How do I know if a transaction in determined for recipients other than recordkeeping requirements. which I may participate is a covered individuals? transaction? 147.505 How are violations of this part 14 CFR Part 1267 determined for recipients who are Subpart C—Responsibilities of Participants individuals? Administrative practice and Regarding Transactions procedure, Drug abuse, Grant programs, 147.510 What actions will the Federal Doing Business With Other Persons Government take against a recipient Reporting and recordkeeping determined to have violated this part? requirements. 1265.300 What must I do before I enter into a covered transaction with another 147.515 Are there any exceptions to those Dated: July 8, 2003. actions? person at the next lower tier? Tom Luedtke, 1265.305 May I enter into a covered Subpart F—Definitions Assistant Administrator for Procurement. transaction with an excluded or 147.605 Award. ■ For the reasons stated in the common disqualified person? 147.610 Controlled substance. preamble, the National Aeronautics and 1265.310 What must I do if a Federal 147.615 Conviction. Space Administration amends 14 CFR agency excludes a person with whom I 147.620 Cooperative agreement. am already doing business in a covered 147.625 Criminal drug statute. chapter V as follows: ■ 1. Part 1265 is revised to read as set transaction? 147.630 Debarment. 1265.315 May I use the services of an 147.635 Drug-free workplace. forth in instruction 1 at the end of the excluded person as a principal under a 147.640 Employee. common preamble. covered transaction? 147.645 Federal agency or agency. 147.650 Grant. PART 1265—GOVERNMENTWIDE 1265.320 Must I verify that principals of my 147.655 Individual. DEBARMENT AND SUSPENSION covered transactions are eligible to 147.660 Recipient. (NONPROCUREMENT) participate? 147.665 State. 1265.325 What happens if I do business 147.670 Suspension. Sec. with an excluded person in a covered transaction? Authority: 41 U.S.C. 701–707. 1265.25 How is this part organized? 1265.50 How is this part written? 1265.330 What requirements must I pass ■ 11. Part 147 is further amended as set 1265.75 Do terms in this part have special down to persons at lower tiers with forth below. meanings? whom I intend to do business?

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Disclosing Information—Primary Tier 1265.520 Who places the information into 1265.835 Are debarment proceedings Participants the EPLS? formal? 1265.335 What information must I provide 1265.525 Whom do I ask if I have questions 1265.840 How is fact-finding conducted? before entering into a covered about a person in the EPLS? 1265.845 What does the debarring official transaction with NASA? 1265.530 Where can I find the EPLS? consider in deciding whether to debar me? 1265.340 If I disclose unfavorable Subpart F—General Principles Relating to 1265.850 What is the standard of proof in information required under § 1265.335, Suspension and Debarment Actions will I be prevented from participating in a debarment action? 1265.600 How do suspension and the transaction? 1265.855 Who has the burden of proof in a debarment actions start? debarment action? 1265.345 What happens if I fail to disclose 1265.605 How does suspension differ from 1265.860 What factors may influence the the information required under debarment? debarring official’s decision? § 1265.335? 1265.610 What procedures does NASA use 1265.865 How long may my debarment 1265.350 What must I do if I learn of the in suspension and debarment actions? last? information required under § 1265.335 1265.615 How does NASA notify a person 1265.870 When do I know if the debarring after entering into a covered transaction of a suspension and debarment action? official debars me? with NASA? 1265.620 Do Federal agencies coordinate 1265.875 May I ask the debarring official to Disclosing Information—Lower Tier suspension and debarment actions? reconsider a decision to debar me? Participants 1265.625 What is the scope of a suspension 1265.880 What factors may influence the debarring official during 1265.355 What information must I provide or debarment action? reconsideration? to a higher tier participant before 1265.630 May NASA impute the conduct of 1265.885 May the debarring official extend entering into a covered transaction with one person to another? a debarment? that participant? 1265.635 May NASA settle a debarment or 1265.360 What happens if I fail to disclose suspension action? Subpart I—Definitions 1265.640 May a settlement include a the information required under voluntary exclusion? 1265.900 Adequate evidence. § 1265.355? 1265.645 Do other Federal agencies know if 1265.905 Affiliate. 1265.365 What must I do if I learn of NASA agrees to a voluntary exclusion? 1265.910 Agency. information required under § 1265.355 1265.915 Agent or representative. after entering into a covered transaction Subpart G—Suspension 1265.920 Civil judgment. with a higher tier participant? 1265.700 When may the suspending official 1265.925 Conviction. Subpart D—Responsibilities of NASA issue a suspension? 1265.930 Debarment. Officials Regarding Transactions 1265.705 What does the suspending official 1265.935 Debarring official. consider in issuing a suspension? 1265.940 Disqualified. 1265.400 May I enter into a transaction 1265.710 When does a suspension take 1265.945 Excluded or exclusion. with an excluded or disqualified person? effect? 1265.950 Excluded Parties List System. 1265.405 May I enter into a covered 1265.715 What notice does the suspending 1265.955 Indictment. transaction with a participant if a official give me if I am suspended? 1265.960 Ineligible or ineligibility. principal of the transaction is excluded? 1265.720 How may I contest a suspension? 1265.965 Legal proceedings. 1265.410 May I approve a participant’s use 1265.725 How much time do I have to 1265.970 Nonprocurement transaction. of the services of an excluded person? contest a suspension? 1265.975 Notice. 1265.415 What must I do if a Federal 1265.730 What information must I provide 1265.980 Participant. agency excludes the participant or a to the suspending official if I contest a 1265.985 Person. principal after I enter into a covered suspension? 1265.990 Preponderance of the evidence. transaction? 1265.735 Under what conditions do I get an 1265.995 Principal. 1265.420 May I approve a transaction with additional opportunity to challenge the 1265.1000 Respondent. an excluded or disqualified person at a facts on which the suspension is based? 1265.1005 State. lower tier? 1265.740 Are suspension proceedings 1265.1010 Suspending official. 1265.425 When do I check to see if a person formal? 1265.1015 Suspension. is excluded or disqualified? 1265.745 How is fact-finding conducted? 1265.1020 Voluntary exclusion or 1265.430 How do I check to see if a person 1265.750 What does the suspending official voluntarily excluded. is excluded or disqualified? consider in deciding whether to continue Subpart J—[Reserved] 1265.435 What must I require of a primary or terminate my suspension? tier participant? 1265.755 When will I know whether the Appendix to Part 1265—Covered 1265.440 What method do I use to suspension is continued or terminated? Transactions communicate those requirements to 1265.760 How long may my suspension participants? last? Authority: Sec. 2455, Pub. L. 103–355, 108 1265.445 What action may I take if a Stat. 3327 (31 U.S.C. 6101 note); E.O. 11738, primary tier participant knowingly does Subpart H—Debarment 3 CFR, 1973 Comp., p.799; E.O. 12549, 3 business with an excluded or 1265.800 What are the causes for CFR, 1986 Comp., p. 189; E.O. 12689, 3 CFR, disqualified person? debarment? 1989 Comp., p. 235; 42 U.S.C. 2473(c)(1). 1265.450 What action may I take if a 1265.805 What notice does the debarring ■ primary tier participant fails to disclose official give me if I am proposed for 2. Part 1265 is further amended as set the information required under debarment? forth below. ■ § 1265.335? 1265.810 When does a debarment take a. ‘‘The [Agency noun]’’ is removed 1265.455 What may I do if a lower tier effect? and ‘‘NASA’’ is added in its place participant fails to disclose the 1265.815 How may I contest a proposed wherever it occurs. information required under § 1265.355 to debarment? ■ b. ‘‘[Agency adjective]’’ is removed and the next higher tier? 1265.820 How much time do I have to ‘‘NASA’’ is added in its place wherever contest a proposed debarment? Subpart E—Excluded Parties List System it occurs. 1265.825 What information must I provide ■ c. ‘‘[Agency head or designee]’’ is 1265.500 What is the purpose of the to the debarring official if I contest a removed and ‘‘Assistant Administrator Excluded Parties List System (EPLS)? proposed debarment? for Procurement’’ is added in its place 1265.505 Who uses the EPLS? 1265.830 Under what conditions do I get an 1265.510 Who maintains the EPLS? additional opportunity to challenge the wherever it occurs. 1265.515 What specific information is in facts on which the proposed debarment ■ 3. Section 1265.440 is added to read as the EPLS? is based? follows:

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§ 1265.440 What method do I use to 1267.610 Controlled substance. Dated: July 23, 2003. communicate those requirements to 1267.615 Conviction. Lucia Homick, participants? 1267.620 Cooperative agreement. Acting Director, Office of Executive Budgeting 1267.625 Criminal drug statute. To communicate the requirements to and Assistance Management. participants, you must include a term or 1267.630 Debarment. condition in the transaction requiring 1267.635 Drug-free workplace. ■ For the reasons stated in the common 1267.640 Employee. the participant’s compliance with preamble, the Department of Commerce 1267.645 Federal agency or agency. amends 15 CFR subtitle A, as follows: subpart C of this part and requiring 1267.650 Grant. them to include a similar term or 1267.655 Individual. ■ 1. Part 26 is revised to read as set forth condition in lower tier covered 1267.660 Recipient. in instruction 1 at the end of the common transactions. 1267.665 State. preamble. ■ 4. Part 1267 is added to read as set forth 1267.670 Suspension. in instruction 2 at the end of the common Authority: 41 U.S.C. 701 et seq.; 42 U.S.C. PART 26—GOVERNMENTWIDE preamble. 2473c. DEBARMENT AND SUSPENSION ■ 5. Part 1267 is further amended as set (NONPROCUREMENT) PART 1267—GOVERNMENTWIDE forth below. Sec. REQUIREMENTS FOR DRUG-FREE ■ a. ‘‘The [Agency noun]’’ is removed WORKPLACE (FINANCIAL 26.25 How is this part organized? and ‘‘NASA’’ is added in its place 26.50 How is this part written? ASSISTANCE) wherever it occurs. 26.75 Do terms in this part have special Subpart A—Purpose and Coverage ■ b. ‘‘[Agency adjective]’’ is removed and meanings? Sec. ‘‘NASA’’ is added in its place wherever Subpart A—General 1267.100 What does this part do? it occurs. ■ c. ‘‘[Agency head or designee]’’ is 26.100 What does this part do? 1267.105 Does this part apply to me? 26.105 Does this part apply to me? 1267.110 Are any of my Federal assistance removed and ‘‘Assistant Administrator 26.110 What is the purpose of the awards exempt from this part? for Procurement’’ is added in its place nonprocurement debarment and 1267.115 Does this part affect the Federal wherever it occurs. suspension system? contracts that I receive? ■ d. ‘‘[Agency head]’’ is removed and 26.115 How does an exclusion restrict a Subpart B—Requirements for Recipients ‘‘Assistant Administrator for person’s involvement in covered Other Than Individuals Procurement’’ is added in its place transactions? 1267.200 What must I do to comply with wherever it occurs. 26.120 May we grant an exception to let an this part? ■ 6. Section 1267.510(c) is further excluded person participate in a covered transaction? 1267.205 What must I include in my drug- amended by removing ‘‘[CFR citation for free workplace statement? 26.125 Does an exclusion under the the Federal Agency’s regulations nonprocurement system affect a person’s 1267.210 To whom must I distribute my implementing Executive Order 12549 drug-free workplace statement? eligibility for Federal procurement 1267.215 What must I include in my drug- and Executive Order 12689]’’ and adding contracts? free awareness program? ‘‘14 CFR Part 1265’’ in its place. 26.130 Does exclusion under the Federal 1267.220 By when must I publish my drug- ■ 7. Section 1267.605(a)(2) is further procurement system affect a person’s free workplace statement and establish amended by removing ‘‘[Agency-specific eligibility to participate in my drug-free awareness program? CFR citation]’’and adding ‘‘14 CFR Part nonprocurement transactions? 26.135 May the Department of Commerce 1267.225 What actions must I take 1273’’ in its place. concerning employees who are convicted exclude a person who is not currently of drug violations in the workplace? lllllllllllllllllll participating in a nonprocurement 1267.230 How and when must I identify transaction? workplaces? DEPARTMENT OF COMMERCE 26.140 How do I know if a person is excluded? Subpart C—Requirements for Recipients 15 CFR Parts 26 and 29 26.145 Does this part address persons who Who Are Individuals [Docket No. 030723184–3184–01] are disqualified, as well as those who are 1267.300 What must I do to comply with RIN 0605–AA16 excluded from nonprocurement this part if I am an individual recipient? transactions? 1267.301 [Reserved] FOR FURTHER INFORMATION CONTACT: Subpart B—Covered Transactions Subpart D—Responsibilities of NASA Christine Makris, Office of Acquisition 26.200 What is a covered transaction? Awarding Officials Management, U.S. Department of Commerce, 14th Street and Constitution 26.205 Why is it important to know if a 1267.400 What are my responsibilities as a Avenue, NW., Room HCHB 6422, particular transaction is a covered NASA awarding official? transaction? Washington, DC 20230, 202–482–6131, 26.210 Which nonprocurement transactions Subpart E—Violations of This Part and e-mail: [email protected]. Consequences are covered transactions? List of Subjects 26.215 Which nonprocurement transactions 1267.500 How are violations of this part are not covered transactions? determined for recipients other than 15 CFR Part 26 26.220 Are any procurement contracts individuals? included as covered transactions? 1267.505 How are violations of this part Administrative practice and 26.225 How do I know if a transaction in determined for recipients who are procedure, Debarment and suspension, which I may participate is a covered individuals? Grant programs, Reporting and transaction? 1267.510 What actions will the Federal recordkeeping requirements. Government take against a recipient Subpart C—Responsibilities of Participants determined to have violated this part? 15 CFR Part 29 Regarding Transactions 1267.515 Are there any exceptions to those Doing Business With Other Persons actions? Administrative practice and procedure, Drug abuse, Grant programs, 26.300 What must I do before I enter into Subpart F—Definitions Reporting and recordkeeping a covered transaction with another 1267.605 Award. requirements. person at the next lower tier?

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26.305 May I enter into a covered 26.450 What action may I take if a primary 26.805 What notice does the debarring transaction with an excluded or tier participant fails to disclose the official give me if I am proposed for disqualified person? information required under § 26.335? debarment? 26.310 What must I do if a Federal agency 26.455 What may I do if a lower tier 26.810 When does a debarment take effect? excludes a person with whom I am participant fails to disclose the 26.815 How may I contest a proposed already doing business in a covered information required under § 26.355 to debarment? transaction? the next higher tier? 26.820 How much time do I have to contest 26.315 May I use the services of an Subpart E—Excluded Parties List System a proposed debarment? excluded person as a principal under a 26.825 What information must I provide to covered transaction? 26.500 What is the purpose of the the Debarring official if I contest a 26.320 Must I verify that principals of my Excluded Parties List System (EPLS)? proposed debarment? covered transactions are eligible to 26.505 Who uses the EPLS? 26.830 Under what conditions do I get an participate? 26.510 Who maintains the EPLS? additional opportunity to challenge the 26.325 What happens if I do business with 26.515 What specific information is in the an excluded person in a covered facts on which the proposed debarment EPLS? is based? transaction? 26.520 Who places the information into the 26.330 What requirements must I pass 26.835 Are debarment proceedings formal? EPLS? 26.840 How is fact-finding conducted? down to persons at lower tiers with 26.525 Whom do I ask if I have questions whom I intend to do business? 26.845 What does the debarring official about a person in the EPLS? consider in deciding whether to debar Disclosing Information—Primary Tier 26.530 Where can I find the EPLS? me? Participants Subpart F—General Principles Relating to 26.850 What is the standard of proof in a 26.3357 What information must I provide Suspension and Debarment Actions debarment action? before entering into a covered 26.855 Who has the burden of proof in a 26.600 How do suspension and debarment transaction with the Department of debarment action? actions start? Commerce? 26.860 What factors may influence the 26.605 How does suspension differ from 26.340 If I disclose unfavorable information debarring official’s decision? debarment? required under § 26.335, will I be 26.865 How long may my debarment last? 26.610 What procedures does the prevented from participating in the 26.870 When do I know if the debarring Department of Commerce use in transaction? official debars me? suspension and debarment actions? 26.345 What happens if I fail to disclose the 26.875 May I ask the debarring official to 26.615 How does the Department of information required under § 26.335? Commerce notify a person of a reconsider a decision to debar me? 26.350 What must I do if I learn of the 26.880 What factors may influence the information required under § 26.335 after suspension and debarment action? 26.620 Do Federal agencies coordinate debarring official during entering into a covered transaction with reconsideration? the Department of Commerce? suspension and debarment actions? 26.625 What is the scope of a suspension or 26.885 May the debarring official extend a Disclosing Information—Lower Tier debarment action? debarment? Participants 26.630 May the Department of Commerce Subpart I—Definitions impute the conduct of one person to 26.355 What information must I provide to 26.900 Adequate evidence. another? a higher tier participant before entering 26.905 Affiliate. 26.635 May the Department of Commerce into a covered transaction with that 26.910 Agency. participant? settle a debarment or suspension action? 26.640 May a settlement include a 26.915 Agent or representative. 26.360 What happens if I fail to disclose the 26.920 Civil judgment. information required under § 26.355? voluntary exclusion? 26.645 Do other Federal agencies know if 26.925 Conviction. 26.365 What must I do if I learn of 26.930 Debarment. information required under § 26.355 after the Department of Commerce agrees to a voluntary exclusion? 26.935 Debarring official. entering into a covered transaction with 26.940 Disqualified. a higher tier participant? Subpart G—Suspension 26.945 Excluded or exclusion. Subpart D—Responsibilities of DoC 26.700 When may the suspending official 26.950 Excluded Parties List System. Officials Regarding Transactions issue a suspension? 26.955 Indictment. 26.400 May I enter into a transaction with 26.705 What does the suspending official 26.960 Ineligible or ineligibility. an excluded or disqualified person? consider in issuing a suspension? 26.965 Legal proceedings. 26.405 May I enter into a covered 26.710 When does a suspension take effect? 26.970 Nonprocurement transaction. transaction with a participant if a 26.715 What notice does the suspending 26.975 Notice. principal of the transaction is excluded? official give me if I am suspended? 26.980 Participant. 26.410 May I approve a participant’s use of 26.720 How may I contest a suspension? 26.985 Person. the services of an excluded person? 26.725 How much time do I have to contest 26.990 Preponderance of the evidence. 26.415 What must I do if a Federal agency a suspension? 26.995 Principal. excludes the participant or a principal 26.730 What information must I provide to 26.1000 Respondent. after I enter into a covered transaction? the suspending official if I contest a 26.1005 State. 26.420 May I approve a transaction with an suspension? 26.1010 Suspending official. excluded or disqualified person at a 26.735 Under what conditions do I get an 26.1015 Suspension. lower tier? additional opportunity to challenge the 26.1020 Voluntary exclusion or voluntarily 26.425 When do I check to see if a person facts on which the suspension is based? excluded. is excluded or disqualified? 26.740 Are suspension proceedings formal? Subpart J—[Reserved] 26.430 How do I check to see if a person is 26.745 How is fact-finding conducted? excluded or disqualified? 26.750 What does the suspending official Appendix to Part 26—Covered Transactions 26.435 What must I require of a primary tier consider in deciding whether to continue participant? or terminate my suspension? Authority: 5 U.S.C. 301; Sec. 2455, Pub. L. 26.440 What method do I use to 26.755 When will I know whether the 103–355, 108 Stat. 3327 (31 U.S.C. 6101 communicate those requirements to suspension is continued or terminated? note); E.O. 12549 (3 CFR, 1986 Comp., p. participants? 26.760 How long may my suspension last? 189); E.O. 12689 (3 CFR, 1989 Comp., p. 235). 26.445 What action may I take if a primary tier participant knowingly does business Subpart H—Debarment ■ 2. Part 26 is further amended as set with an excluded or disqualified person? 26.800 What are the causes for debarment? forth below.

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■ a. ‘‘[Agency noun]’’ is removed and (c) The contract is a subcontract 29.225 What actions must I take concerning ‘‘Department of Commerce’’ is added in awarded by a participant in a employees who are convicted of drug its place wherever it occurs. procurement transaction that is covered violations in the workplace? ■ b. ‘‘[Agency adjective]’’ is removed and under paragraph (a) of this section, and 29.230 How and when must I identify workplaces? ‘‘DoC’’ is added in its place wherever it the amount of the contract exceeds or is occurs. expected to exceed $25,000. This Subpart C—Requirements for Recipients ■ c. ‘‘[Agency head or designee]’’ is extends the coverage of paragraph (a) of Who Are Individuals removed and ‘‘Secretary of Commerce or this section to one additional tier of 29.300 What must I do to comply with this designee’’ is added in its place wherever contracts, as shown in the diagram in part if I am an individual recipient? it occurs. the Appendix to this part. 29.301 [Reserved] ■ 3. Section 26.215 is amended as ■ 5. Section 26.440 is added to read as Subpart D—Responsibilities of DoC follows: follows: Awarding Officials ■ a. Add paragraph (d)(1) and add and 29.400 What are my responsibilities as a reserve paragraph (d)(2). § 26.440 What method do I use to DoC awarding official? ■ b. Add paragraph (f)(1) and add and communicate those requirements to reserve paragraph (f)(2). participants? Subpart E—Violations of This Part and Consequences ■ c. Add paragraph (g)(1) and add and To communicate the requirements to reserve paragraph (g)(2). participants, you must include a term or 29.500 How are violations of this part The additions read as follows: condition in the transaction requiring determined for recipients other than individuals? the participants’ compliance with § 26.215 Which nonprocurement 29.505 How are violations of this part transactions are not covered transactions? subpart C of this part and requiring determined for recipients who are them to include a similar term or * * * * * individuals? condition in lower-tier covered 29.510 What actions will the Federal (d) * * * transactions. Government take against a recipient (1) For the purposes of the DoC this ■ 6. Section 26.970 is amended to add determined to have violated this part? means: 29.515 Are there any exceptions to those (i) Fisherman’s Contingency Fund. paragraphs (a)(12) through (16) to read as actions? (ii) [Reserved] follows: (2) [Reserved] Subpart F—Definitions § 26.970 Nonprocurement transaction * * * * * 29.605 Award. (f) * * * (a) * * * 29.610 Controlled substance. (1) For purposes of the DoC this (12) Joint Project Agreements under 29.615 Conviction. 29.620 Cooperative agreement. means: 15 U.S.C. 1525. (13) Cooperative research and 29.625 Criminal drug statute. (i) Export Promotion, Trade 29.630 Debarment. Information and Counseling, and Trade development agreements. 29.635 Drug-free workplace. Policy. (14) Joint statistical agreements. 29.640 Employee. (ii) Geodetic Surveys and Services (15) Patent licenses under 35 U.S.C. 29.645 Federal agency or agency. (Specialized Services). 207. 29.650 Grant. (iii) Fishery Products Inspection (16) NTIS joint ventures, 15 U.S.C. 29.655 Individual. Certification. 3704b. 29.660 Recipient. 29.665 State. (iv) Standard Reference Materials. * * * * * (v) Calibration, Measurement and 29.670 Suspension. ■ 7. Part 29 is added to read as set forth Testing. Authority: 5 U.S.C. 301; 41 U.S.C. 701 et (vi) Critically Evaluated Data in instruction 2 at the end of the common seq. preamble. (Standard Reference Data). ■ 8. Part 29 is further amended as set (vii) Phoenix Data System. forth below. (viii) The sale or provision of PART 29—GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE ■ a. ‘‘[Agency noun]’’ is removed and products, information, and services to ‘‘Department of Commerce’’ is added in the general public. WORKPLACE (FINANCIAL ASSISTANCE) its place wherever it occurs. (2) [Reserved] ■ b. ‘‘[Agency adjective]’’ is removed and (g) * * * Subpart A—Purpose and Coverage ‘‘DoC’’ is added in its place wherever it (1) For purposes of the DoC this occurs. means: 29.100 What does this part do? 29.105 Does this part apply to me? ■ c. ‘‘[Agency head or designee]’’ is (i) The Administration of the 29.110 Are any of my Federal assistance removed and ‘‘Secretary of Commerce or Antidumping and Countervailing Duty awards exempt from this part? designee’’ is added in its place wherever Statutes. 29.115 Does this part affect the Federal it occurs. (ii) The Export Trading Company Act contracts that I receive? ■ d. ‘‘[Agency head]’’ is removed and Certificate of Review Program. ‘‘Secretary of Commerce’’ is added in its (iii) Trade Adjustment Assistance Subpart B—Requirements for Recipients Other Than Individuals place wherever it occurs. Program Certification. ■ (iv) Foreign Trade Zones Act of 1934, 29.200 What must I do to comply with this 9. Section 29.510(c) is further amended as amended. part? by removing ‘‘[CFR citation for the (v) Statutory Import Program. 29.205 What must I include in my drug-free Federal agency’s regulations (2) [Reserved] workplace statement? implementing Executive Order 12549 29.210 To whom must I distribute my drug- ■ 4. Section 26.220 is amended to add and Executive Order 12689]’’ and adding free workplace statement? ‘‘15 CFR Part 26’’ in its place. paragraph (c) to read as follows: 29.215 What must I include in my drug-free ■ awareness program? 10. Section 29.605(a)(2) is further § 26.220 Are any procurement contracts 29.220 By when must I publish my drug- amended by removing ‘‘[Agency-specific included as covered transactions? free workplace statement and establish CFR citation]’’ and adding ‘‘15 CFR Part * * * * * my drug-free awareness program? 24’’ in its place.

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lllllllllllllllllll 436.25 How is this part organized? Disclosing Information—Primary Tier 436.50 How is this part written? Participants SOCIAL SECURITY ADMINISTRATION 436.75 Do terms in this part have special 436.335 What information must I provide meanings? 20 CFR Parts 436 and 439 before entering into a covered Subpart A—General transaction with the SSA? RIN 0960–AE27 436.340 If I disclose unfavorable 436.100 What does this part do? information required under § 436.335, FOR FURTHER INFORMATION CONTACT: 436.105 Does this part apply to me? Phyllis Y. Smith, Grants Management will I be prevented from participating in 436.110 What is the purpose of the the transaction? Officer, Office of Acquisition and nonprocurement debarment and 436.345 What happens if I fail to disclose Grants, Grants Management Team, 1710 suspension system? the information required under Gwynn Oak Ave, Baltimore, MD 21207, 436.115 How does an exclusion restrict a § 436.335? (410) 965–9518, e-mail: person’s involvement in covered 436.350 What must I do if I learn of [email protected]. transactions? information required under § 436.335 436.120 May we grant an exception to let an SUPPLEMENTARY INFORMATION: Prior to after entering into a covered transaction excluded person participate in a covered with the SSA? March 31, 1995, SSA was an operating transaction? component of the Department of Health 436.125 Does an exclusion under the Disclosing Information—Lower Tier and Human Services (HHS). As a result nonprocurement system affect a person’s Participants of Public Law 103–296, the Social eligibility for Federal procurement 436.355 What information must I provide to Security Administration (SSA) became contracts? a higher tier participant before entering an independent agency on March 31, 436.130 Does exclusion under the Federal into a covered transaction with that procurement system affect a person’s 1995. However, pursuant to section participant? eligibility to participate in 436.360 What happens if I fail to disclose 106(b) of that law, the HHS regulations nonprocurement transactions? the information required under at 45 CFR part 76 dealing with 436.135 May the SSA exclude a person who § 436.355? nonprocurement, debarment and is not currently participating in a 436.365 What must I do if I learn of suspension, and the requirements for a nonprocurement transaction? information required under § 436.355 drug-free workplace have remained 436.140 How do I know if a person is after entering into a covered transaction applicable to SSA. In order to excluded? with a higher tier participant? implement its own set of regulations on 436.145 Does this part address persons who are disqualified, as well as those who are Subpart D—Responsibilities of SSA these topics, SSA is adopting the excluded from nonprocurement Officials Regarding Transactions common rules on nonprocurement, transactions? 436.400 May I enter into a transaction with debarment and suspension, and an excluded or disqualified person? requirements for a drug-free workplace Subpart B—Covered Transactions 436.405 May I enter into a covered with one amendment as new parts 436 436.200 What is a covered transaction? transaction with a participant if a and 439 in title 20 of the Code of 436.205 Why is it important to know if a principal of the transaction is excluded? Federal Regulations. HHS regulations at particular transaction is a covered 436.410 May I approve a participant’s use transaction? of the services of an excluded person? 45 CFR Part 76 will cease to be 436.210 Which nonprocurement 436.415 What must I do if a Federal agency applicable to SSA on the effective date transactions are covered transactions? excludes the participant or a principal of these regulations, in accordance with 436.215 Which nonprocurement after I enter into a covered transaction? section 106(b) of Pub. L. 103–296. transactions are not covered 436.420 May I approve a transaction with transactions? an excluded or disqualified person at a List of Subjects 436.220 Are any procurement contracts lower tier? 20 CFR Part 436 included as covered transactions? 436.425 When do I check to see if a person 436.225 How do I know if a transaction in is excluded or disqualified? Administrative practice and which I may participate is a covered 436.430 How do I check to see if a person procedures, Debarment and suspension, transaction? is excluded or disqualified? Grant programs, and reporting and 436.435 What must I require of a primary recordkeeping requirements. Subpart C—Responsibilities of Participants tier participant? Regarding Transactions 436.440 What method do I use to 20 CFR Part 439 Doing Business With Other Persons communicate those requirements to participants? Administrative practice and 436.300 What must I do before I enter into procedure, Drug abuse, Grant programs, 436.445 What action may I take if a primary a covered transaction with another tier participant knowingly does business Reporting and recordkeeping person at the next lower tier? with an excluded or disqualified person? requirements. 436.305 May I enter into a covered 436.450 What action may I take if a primary Dated: July 15, 2003. transaction with an excluded or tier participant fails to disclose the disqualified person? Jo Anne B. Barnhart, information required under § 436.335? 436.310 What must I do if a Federal agency 436.455 What may I do if a lower tier Commissioner of Social Security. excludes a person with whom I am participant fails to disclose the ■ For the reasons stated in the common already doing business in a covered information required under § 436.355 to preamble, the Social Security transaction? the next higher tier? Administration amends 20 CFR chapter 436.315 May I use the services of an excluded person as a principal under a Subpart E—Excluded Parties List System III, as follows: covered transaction? 436.500 What is the purpose of the ■ 1. Part 436 is added to read as set forth 436.320 Must I verify that principals of my Excluded Parties List System (EPLS)? in instruction 1 at the end of the common covered transactions are eligible to 436.505 Who uses the EPLS? preamble. participate? 436.510 Who maintains the EPLS? 436.325 What happens if I do business with 436.515 What specific information is in the PART 436—GOVERNMENTWIDE an excluded person in a covered EPLS? DEBARMENT AND SUSPENSION transaction? 436.520 Who places the information into (NONPROCUREMENT) 436.330 What requirements must I pass the EPLS? down to persons at lower tiers with 436.525 Whom do I ask if I have questions Sec. whom I intend to do business? about a person in the EPLS?

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436.530 Where can I find the EPLS? 436.850 What is the standard of proof in a the participant’s compliance with debarment action? Subpart F—General Principles Relating to subpart C of this part and requiring 436.855 Who has the burden of proof in a Suspension and Debarment Actions them to include a similar term or debarment action? condition in lower tier covered 436.600 How do suspension and debarment 436.860 What factors may influence the actions start? debarring official’s decision? transactions. 436.605 How does suspension differ from 436.865 How long may my debarment last? ■ 4. Part 439 is added to read as set forth debarment? 436.870 When do I know if the debarring in instruction 2 at the end of the common 436.610 What procedures does the SSA use official debars me? preamble. in suspension and debarment actions? 436.875 May I ask the debarring official to 436.615 How does the SSA notify a person reconsider a decision to debar me? PART 439—GOVERNMENTWIDE of a suspension and debarment action? 436.880 What factors may influence the REQUIREMENTS FOR DRUG-FREE 436.620 Do Federal agencies coordinate debarring official during WORKPLACE (FINANCIAL suspension and debarment actions? reconsideration? ASSISTANCE) 436.625 What is the scope of a suspension 436.885 May the debarring official extend a or debarment action? debarment? Subpart A—Purpose and Coverage 436.630 May the SSA impute the conduct Subpart I—Definitions Sec. of one person to another? 439.100 What does this part do? 436.900 Adequate evidence. 436.635 May the SSA settle a debarment or 439.105 Does this part apply to me? 436.905 Affiliate. suspension action? 439.110 Are any of my Federal assistance 436.910 Agency. 436.640 May a settlement include a awards exempt from this part? 436.915 Agent or representative. voluntary exclusion? 439.115 Does this part affect the Federal 436.920 Civil judgment. 436.645 Do other Federal agencies know if contracts that I receive? the SSA agrees to a voluntary exclusion? 436.925 Conviction. 436.930 Debarment. Subpart B—Requirements for Recipients Subpart G—Suspension 436.935 Debarring official. Other Than Individuals 436.700 When may the suspending official 436.940 Disqualified. 439.200 What must I do to comply with this issue a suspension? 436.945 Excluded or exclusion. part? 436.705 What does the suspending official 436.950 Excluded Parties List System. 439.205 What must I include in my drug- consider in issuing a suspension? 436.955 Indictment. free workplace statement? 436.710 When does a suspension take 436.960 Ineligible or ineligibility. 439.210 To whom must I distribute my effect? 436.965 Legal proceedings. drug-free workplace statement? 436.715 What notice does the suspending 436.970 Nonprocurement transaction. 439.215 What must I include in my drug- official give me if I am suspended? 436.975 Notice. free awareness program? 436.720 How may I contest a suspension? 436.980 Participant. 439.220 By when must I publish my drug- 436.725 How much time do I have to 436.985 Person. free workplace statement and establish contest a suspension? 436.990 Preponderance of the evidence. my drug-free awareness program? 436.730 What information must I provide to 436.995 Principal. 439.225 What actions must I take the suspending official if I contest a 436.1000 Respondent. concerning employees who are convicted suspension? 436.1005 State. of drug violations in the workplace? 436.735 Under what conditions do I get an 436.1010 Suspending official. 439.230 How and when must I identify additional opportunity to challenge the 436.1015 Suspension. workplaces? facts on which the suspension is based? 436.1020 Voluntary exclusion or 436.740 Are suspension proceedings voluntarily excluded. Subpart C—Requirements for Recipients formal? Who Are Individuals Subpart J—[Reserved] 436.745 How is fact-finding conducted? 439.300 What must I do to comply with this 436.750 What does the suspending official Appendix to Part 436—Covered part if I am an individual recipient? consider in deciding whether to continue Transactions 439.301 [Reserved] or terminate my suspension? 436.755 When will I know whether the Authority: 42 U.S.C. 902(a)(5); Sec. 2455, Subpart D—Responsibilities of SSA suspension is continued or terminated? Pub. L. 103–355, 108 Stat. 3327; E.O. 12549 Awarding Officials 436.760 How long may my suspension last? (3 CFR, 1986 Comp., p. 189); E.O. 12689 (3 439.400 What are my responsibilities as an CFR, 1989 Comp., p. 235). Subpart H—Debarment SSA awarding official? ■ 2. Part 436 is further amended as 436.800 What are the causes for debarment? Subpart E—Violations of This Part and 436.805 What notice does the debarring follows: Consequences ■ a. ‘‘[Agency noun]’’ is removed and official give me if I am proposed for 439.500 How are violations of this part debarment? ‘‘SSA’’ is added in its place wherever it determined for recipients other than 436.810 When does a debarment take occurs. individuals? ■ effect? b. ‘‘[Agency adjective]’’ is removed and 439.505 How are violations of this part 436.815 How may I contest a proposed ‘‘SSA’’ is added in its place wherever it determined for recipients who are debarment? occurs. individuals? 436.820 How much time do I have to ■ c. ‘‘[Agency head or designee]’’ is 439.510 What actions will the Federal contest a proposed debarment? removed and ‘‘SSA Debarring/ Government take against a recipient 436.825 What information must I provide to Suspension Official’’ is added in its determined to have violated this part? the debarring official if I contest a place wherever it occurs. 439.515 Are there any exceptions to those proposed debarment? ■ actions? 436.830 Under what conditions do I get an 3. Section 436.440 is added to read as additional opportunity to challenge the follows: Subpart F—Definitions facts on which the proposed debarment 439.605 Award. § 436.440 What method do I use to is based? 439.610 Controlled substance. communicate those requirements to 436.835 Are debarment proceedings formal? 439.615 Conviction. participants? 436.840 How is fact-finding conducted? 439.620 Cooperative agreement. 436.845 What does the debarring official To communicate the requirements to 439.625 Criminal drug statute. consider in deciding whether to debar participants, you must include a term or 439.630 Debarment. me? condition in the transaction requiring 439.635 Drug-free workplace.

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439.640 Employee. PART 1404—GOVERNMENTWIDE 1404.325 What happens if I do business 439.645 Federal agency or agency. DEBARMENT AND SUSPENSION with an excluded person in a covered 439.650 Grant. (NONPROCUREMENT) transaction? 439.655 Individual. 1404.330 What requirements must I pass 439.660 Recipient. Sec. down to persons at lower tiers with 439.665 State. 1404.25 How is this part organized? whom I intend to do business? 439.670 Suspension. 1404.50 How is this part written? Disclosing Information—Primary Tier 1404.75 Do terms in this part have special Authority: 41 U.S.C. 701 et seq. Participants meanings? ■ 1404.335 What information must I provide 5. Part 439 is further amended as Subpart A—General follows: before entering into a covered 1404.100 What does this part do? transaction with the Office of National ■ a. ‘‘[Agency noun]’’ is removed and 1404.105 Does this part apply to me? Drug Control Policy? ‘‘SSA’’ is added in its place wherever it 1404.110 What is the purpose of the 1404.340 If I disclose unfavorable occurs. nonprocurement debarment and information required under § 1404.335, ■ b. ‘‘[Agency adjective]’’ is removed and suspension system? will I be prevented from participating in ‘‘SSA’’ is added in its place wherever it 1404.115 How does an exclusion restrict a the transaction? occurs. person’s involvement in covered 1404.345 What happens if I fail to disclose ■ transactions? the information required under c. ‘‘[Agency head or designee]’’ is 1404.120 May we grant an exception to let § 1404.335? removed and ‘‘SSA Official or designee’’ an excluded person participate in a 1404.350 What must I do if I learn of the is added in its place wherever it occurs. covered transaction? information required under § 1404.335 ■ d. ‘‘[Agency head]’’ is removed and 1404.125 Does an exclusion under the after entering into a covered transaction ‘‘the Commissioner of SSA’’ is added in nonprocurement system affect a person’s with the Office of National Drug Control its place wherever it occurs. eligibility for Federal procurement Policy? contracts? ■ 6. Section 439.510(c) is further 1404.130 Does exclusion under the Federal Disclosing Information—Lower Tier amended by removing ‘‘[CFR citation for procurement system affect a person’s Participants the Federal Agency’s regulations eligibility to participate in 1404.355 What information must I provide implementing Executive Order 12549 nonprocurement transactions? to a higher tier participant before and Executive Order 12689]’’and adding 1404.135 May the Office of National Drug entering into a covered transaction with ‘‘20 CFR Part 436’’ in its place. Control Policy exclude a person who is that participant? not currently participating in a 1404.360 What happens if I fail to disclose ■ 7. Section 439.605(a)(2) is further nonprocurement transaction? the information required under amended by removing ‘‘[Agency-specific 1404.140 How do I know if a person is § 1404.355? CFR citation]’’and adding ‘‘20 CFR Part excluded? 1404.365 What must I do if I learn of 439’’ in its place. 1404.145 Does this part address persons information required under § 1404.355 lllllllllllllllllll who are disqualified, as well as those after entering into a covered transaction who are excluded from nonprocurement with a higher tier participant? transactions? OFFICE OF NATIONAL DRUG Subpart D—Responsibilities of Office of CONTROL POLICY Subpart B—Covered Transactions National Drug Control Policy Officials 21 CFR Parts 1404 and 1405 1404.200 What is a covered transaction? Regarding Transactions 1404.205 Why is it important to know if a 1404.400 May I enter into a transaction RIN 3201–ZA03 particular transaction is a covered with an excluded or disqualified person? transaction? FOR FURTHER INFORMATION CONTACT: 1404.405 May I enter into a covered 1404.210 Which nonprocurement ONDCP, Attn: Daniel R. Petersen, transaction with a participant if a transactions are covered transactions? principal of the transaction is excluded? Washington, DC 20503, (202) 395–6745, 1404.215 Which nonprocurement _ _ 1404.410 May I approve a participant’s use Daniel R. [email protected]. transactions are not covered of the services of an excluded person? transactions? List of Subjects 1404.415 What must I do if a Federal 1404.220 Are any procurement contracts agency excludes the participant or a 21 CFR Part 1404 included as covered transactions? principal after I enter into a covered 1404.225 How do I know if a transaction in transaction? Administrative practice and which I may participate is a covered 1404.420 May I approve a transaction with procedure, Debarment and suspension, transaction? an excluded or disqualified person at a Grant programs, Reporting and Subpart C—Responsibilities of Participants lower tier? recordkeeping requirements. Regarding Transactions 1404.425 When do I check to see if a person is excluded or disqualified? 21 CFR Part 1405 Doing Business With Other Persons 1404.430 How do I check to see if a person Administrative practice and 1404.300 What must I do before I enter into is excluded or disqualified? procedure, Drug abuse, Grant programs, a covered transaction with another 1404.435 What must I require of a primary Reporting and recordkeeping person at the next lower tier? tier participant? 1404.305 May I enter into a covered 1404.440 What method do I use to requirements. transaction with an excluded or communicate those requirements to John Walters, disqualified person? participants? 1404.310 What must I do if a Federal 1404.445 What action may I take if a Director. agency excludes a person with whom I primary tier participant knowingly does ■ For the reason stated in the common am already doing business in a covered business with an excluded or preamble, the Office of National Drug transaction? disqualified person? Control Policy amends 21 CFR chapter 1404.315 May I use the services of an 1404.450 What action may I take if a III, as follows. excluded person as a principal under a primary tier participant fails to disclose covered transaction? the information required under ■ 1. Part 1404 is revised to read as set 1404.320 Must I verify that principals of my § 1404.335? forth in instruction 1 at the end of the covered transactions are eligible to 1404.455 What may I do if a lower tier common preamble. participate? participant fails to disclose the

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information required under § 1404.355 to 1404.805 What notice does the debarring ■ 2. Part 1404 is further amended as set the next higher tier? official give me if I am proposed for forth below. debarment? Subpart E—Excluded Parties List System ■ 1404.810 When does a debarment take a. ‘‘[Agency noun]’’ is removed and 1404.500 What is the purpose of the effect? ‘‘Office of National Drug Control Policy’’ Excluded Parties List System (EPLS)? 1404.815 How may I contest a proposed is added in its place wherever it occurs. 1404.505 Who uses the EPLS? debarment? ■ b. ‘‘[Agency adjective]’’ is removed and 1404.510 Who maintains the EPLS? 1404.820 How much time do I have to ‘‘Office of National Drug Control Policy’’ 1404.515 What specific information is in contest a proposed debarment? is added in its place wherever it occurs. the EPLS? 1404.825 What information must I provide 1404.520 Who places the information into to the debarring official if I contest a ■ c. ‘‘[Agency head or designee]’’ is the EPLS? proposed debarment? removed and ‘‘Director of National Drug 1404.525 Whom do I ask if I have questions 1404.830 Under what conditions do I get an Control Policy’’ is added in its place about a person in the EPLS? additional opportunity to challenge the wherever it occurs. 1404.530 Where can I find the EPLS? facts on which the proposed debarment is based? ■ 3. Section 1404.440 is added to read as Subpart F—General Principles Relating to 1404.835 Are debarment proceedings follows: Suspension and Debarment Actions formal? 1404.600 How do suspension and 1404.840 How is fact-finding conducted? § 1404.440 What method do I use to debarment actions start? 1404.845 What does the debarring official communicate those requirements to 1404.605 How does suspension differ from consider in deciding whether to debar participants? debarment? me? You must obtain certifications from 1404.610 What procedures does the Office 1404.850 What is the standard of proof in participants that they will comply with of National Drug Control Policy use in a debarment action? suspension and debarment actions? 1404.855 Who has the burden of proof in a subpart C of this part and that they will 1404.615 How does the Office of National debarment action? obtain similar certifications from lower- Drug Control Policy notify a person of a 1404.860 What factors may influence the tier participants. suspension and debarment action? debarring official’s decision? ■ 4. Part 1405 is added to read as set forth 1404.620 Do Federal agencies coordinate 1404.865 How long may my debarment suspension and debarment actions? last? in instruction 2 at the end of the common 1404.625 What is the scope of a suspension 1404.870 When do I know if the debarring preamble. or debarment action? official debars me? 1404.630 May the Office of National Drug 1404.875 May I ask the debarring official to PART 1405—GOVERNMENTWIDE Control Policy impute the conduct of one reconsider a decision to debar me? REQUIREMENTS FOR DRUG-FREE person to another? 1404.880 What factors may influence the WORKPLACE (FINANCIAL 1404.635 May the Office of National Drug debarring official during ASSISTANCE) Control Policy settle a debarment or reconsideration? suspension action? 1404.885 May the debarring official extend Subpart A—Purpose and Coverage 1404.640 May a settlement include a a debarment? 1405.100 What does this part do? voluntary exclusion? Subpart I—Definitions 1405.105 Does this part apply to me? 1404.645 Do other Federal agencies know if 1405.110 Are any of my Federal assistance the Office of National Drug Control 1404.900 Adequate evidence. awards exempt from this part? Policy agrees to a voluntary exclusion? 1404.905 Affiliate. 1405.115 Does this part affect the Federal 1404.910 Agency. contracts that I receive? Subpart G—Suspension 1404.915 Agent or representative. 1404.700 When may the suspending official 1404.920 Civil judgment. Subpart B—Requirements for Recipients issue a suspension? 1404.925 Conviction. Other Than Individuals 1404.705 What does the suspending official 1404.930 Debarment. 1405.200 What must I do to comply with consider in issuing a suspension? 1404.935 Debarring official. this part? 1404.710 When does a suspension take 1404.940 Disqualified. 1405.205 What must I include in my drug- effect? 1404.945 Excluded or exclusion. free workplace statement? 1404.715 What notice does the suspending 1404.950 Excluded Parties List System. 1405.210 To whom must I distribute my official give me if I am suspended? 1404.955 Indictment. drug-free workplace statement? 1404.720 How may I contest a suspension? 1404.960 Ineligible or ineligibility. 1405.215 What must I include in my drug- 1404.725 How much time do I have to 1404.965 Legal proceedings. free awareness program? contest a suspension? 1404.970 Nonprocurement transaction. 1405.220 By when must I publish my drug- 1404.730 What information must I provide 1404.975 Notice. free workplace statement and establish to the suspending official if I contest a 1404.980 Participant. my drug-free awareness program? suspension? 1404.985 Person. 1405.225 What actions must I take 1404.735 Under what conditions do I get an 1404.990 Preponderance of the evidence. concerning employees who are convicted additional opportunity to challenge the 1404.995 Principal. of drug violations in the workplace? facts on which the suspension is based? 1404.1000 Respondent. 1405.230 How and when must I identify 1404.740 Are suspension proceedings 1404.1005 State. workplaces? formal? 1404.1010 Suspending official. 1404.745 How is fact-finding conducted? 1404.1015 Suspension. Subpart C—Requirements for Recipients 1404.750 What does the suspending official 1404.1020 Voluntary exclusion or Who Are Individuals consider in deciding whether to continue voluntarily excluded. 1405.300 What must I do to comply with or terminate my suspension? this part if I am an individual recipient? Subpart J—[Reserved] 1404.755 When will I know whether the 1405.301 [Reserved] suspension is continued or terminated? Appendix to Part 1404—Covered Subpart D—Responsibilities of Office of 1404.760 How long may my suspension Transactions National Drug Control Policy Awarding last? Authority: E.O. 12549 3 CFR 1986 Comp., Officials Subpart H—Debarment p. 189; E.O. 12689 3 CFR 1989 Comp., p. 235; 1405.400 What are my responsibilities as an 1404.800 What are the causes for sec. 2455, Pub. L. 103–355, 108 Stat. 3327 (31 Office of National Drug Control Policy debarment? U.S.C. 6101 note); 21 U.S.C. 1701. awarding official?

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Subpart E—Violations of This Part and List of Subjects 133.505 How are violations of this part Consequences determined for recipients who are 22 CFR Part 133 1405.500 How are violations of this part individuals? determined for recipients other than Administrative practice and 133.510 What actions will the Federal individuals? Government take against a recipient procedure, Drug abuse, Grant programs, determined to have violated this part? 1405.505 How are violations of this part Reporting and recordkeeping 133.515 Are there any exceptions to those determined for recipients who are requirements. actions? individuals? 1405.510 What actions will the Federal 22 CFR Part 137 Subpart F—Definitions Government take against a recipient Administrative practice and 133.605 Award. determined to have violated this part? 133.610 Controlled substance. 1405.515 Are there exceptions to those procedure, Debarment and suspension, 133.615 Conviction. actions? Grant programs, Reporting and 133.620 Cooperative agreement. Subpart F—Definitions recordkeeping requirements. 133.625 Criminal drug statute. Dated: June 17, 2003. 133.630 Debarment. 1405.605 Award. 133.635 Drug-free workplace. 1405.610 Controlled substance. Georgia K. Hubert, 133.640 Employee. 1405.615 Conviction. Acting Procurement Executive, Department 133.645 Federal agency or agency. 1405.620 Cooperative agreement. of State. 133.650 Grant. 1405.625 Criminal drug statute. ■ For the reasons stated in the common 133.655 Individual. 1405.630 Debarment. 133.660 Recipient. 1405.635 Drug-free workplace. preamble, the Department of State 133.665 State. 1405.640 Employee. amends 22 CFR chapter I, as follows: 133.670 Suspension. 1405.645 Federal agency or agency. ■ 1. Part 133 is added to read as set forth Authority: 22 U.S.C. 2658; 41 U.S.C. 701, 1405.650 Grant. in instruction 2 at the end of the common 1405.655 Individual. et seq. preamble. 1405.660 Recipient. ■ 2. Part 133 is further amended as set 1405.665 State. PART 133—GOVERNMENTWIDE forth below. 1405.670 Suspension. REQUIREMENTS FOR DRUG-FREE ■ a. ‘‘[Agency noun]’’ is removed and Authority: 21 U.S.C. 1701; 41 U.S.C. 701, WORKPLACE (FINANCIAL ‘‘Department of State’’ is added in its et seq. ASSISTANCE) place wherever it occurs. ■ b. ‘‘[Agency adjective]’’ is removed and ■ 5. Part 1405 is further amended as set Subpart A—Purpose and Coverage ‘‘Department of State’’ is added in its forth below. 133.100 What does this part do? place wherever it occurs. ■ a. ‘‘[Agency noun]’’ is removed and 133.105 Does this part apply to me? ■ c. ‘‘[Agency head or designee]’’ is ‘‘Office of National Drug Control Policy’’ 133.110 Are any of my Federal assistance removed and ‘‘Procurement Executive’’ is added in its place wherever it occurs. awards exempt from this part? is added in its place wherever it occurs. ■ b. ‘‘[Agency adjective]’’ is removed and 133.115 Does this part affect the Federal ■ d. ‘‘[Agency head]’’ is removed and ‘‘Office of National Drug Control Policy’’ contracts that I receive? ‘‘Procurement Executive’’ is added in its is added in its place wherever it occurs. Subpart B—Requirements for Recipients place wherever it occurs. ■ c. ‘‘[Agency head or designee]’’ is Other Than Individuals ■ 3. Section 133.510(c) is further removed and ‘‘Director of National Drug 133.200 What must I do to comply with this amended by removing ‘‘[CFR citation for Control Policy’’ is added in its place part? the Federal Agency’s regulations wherever it occurs. 133.205 What must I include in my drug- implementing Executive Order 12549 ■ d. ‘‘[Agency head]’’ is removed and free workplace statement? and Executive Order 12689]’’ and adding ‘‘Director of National Drug Control 133.210 To whom must I distribute my ‘‘22 CFR Part 137’’ in its place. drug-free workplace statement? Policy’’ is added in its place wherever it ■ 4. Section 133.605(a)(2) is further 133.215 What must I include in my drug- amended by removing ‘‘[Agency-specific occurs. free awareness program? ■ 6. Section 1405.510 (c) is further 133.220 By when must I publish my drug- CFR citation]’’ and adding ‘‘22 CFR Part amended by removing ‘‘[CFR citation for free workplace statement and establish 135’’ in its place. the Federal Agency’s regulations my drug-free awareness program? ■ 5. Part 137 is revised to read as set forth implementing Executive Order 12549 133.225 What actions must I take in instruction 1 at the end of the common and Executive Order 12689]’’ and adding concerning employees who are convicted preamble. ‘‘21 CFR Part 1404’’ in its place. of drug violations in the workplace? 133.230 How and when must I identify PART 137—GOVERNMENTWIDE ■ 7. Section 1405.605 (a) (2) is further workplaces? DEBARMENT AND SUSPENSION amended by removing ‘‘[Agency-specific (NONPROCUREMENT) CFR citation]’’ and adding ‘‘21 CFR Part Subpart C—Requirements for Recipients Who Are Individuals 1403’’ in its place. Sec. lllllllllllllllllll 133.300 What must I do to comply with this 137.25 How is this part organized? part if I am an individual recipient? 137.50 How is this part written? DEPARTMENT OF STATE 133.301 [Reserved] 137.75 Do terms in this part have special Subpart D—Responsibilities of Department meanings? 22 CFR Parts 133 and 137 of State Awarding Officials Subpart A—General RIN 1400–AB83 133.400 What are my responsibilities as a 137.100 What does this part do? FOR FURTHER INFORMATION CONTACT: Department of State awarding official? 137.105 Does this part apply to me? 137.110 What is the purpose of the Susan Catington, Department Subpart E—Violations of This Part and nonprocurement debarment and Competition Advocate, Policy Division, Consequences suspension system? Office of the Procurement Executive, 133.500 How are violations of this part 137.115 How does an exclusion restrict a U.S. Department of State, Washington, determined for recipients other than person’s involvement in covered DC 20522, (703) 516–1693. individuals? transactions?

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137.120 May we grant an exception to let an 137.350 What must I do if I learn of the 137.615 How does the Department of State excluded person participate in a covered information required under § 137.335 notify a person of a suspension and transaction? after entering into a covered transaction debarment action? 137.125 Does an exclusion under the with the Department of State? 137.620 Do Federal agencies coordinate nonprocurement system affect a person’s suspension and debarment actions? eligibility for Federal procurement Disclosing Information—Lower Tier 137.625 What is the scope of a suspension contracts? Participants or debarment action? 137.130 Does exclusion under the Federal 137.355 What information must I provide to 137.630 May the Department of State procurement system affect a person’s a higher tier participant before entering impute the conduct of one person to eligibility to participate in into a covered transaction with that another? nonprocurement transactions? participant? 137.635 May the Department of State settle 137.135 May the Department of State 137.360 What happens if I fail to disclose a debarment or suspension action? exclude a person who is not currently the information required under 137.640 May a settlement include a participating in a nonprocurement § 137.355? voluntary exclusion? transaction? 137.365 What must I do if I learn of 137.645 Do other Federal agencies know if 137.140 How do I know if a person is information required under § 137.355 the Department of State agrees to a excluded? after entering into a covered transaction voluntary exclusion? 137.145 Does this part address persons who with a higher tier participant? are disqualified, as well as those who are Subpart G—Suspension excluded from nonprocurement Subpart D—Responsibilities of Department 137.700 When may the suspending official transactions? of State Officials Regarding Transactions issue a suspension? Subpart B—Covered Transactions 137.400 May I enter into a transaction with 137.705 What does the suspending official consider in issuing a suspension? 137.200 What is a covered transaction? an excluded or disqualified person? 137.710 When does a suspension take 137.205 Why is it important to know if a 137.405 May I enter into a covered effect? particular transaction is a covered transaction with a participant if a transaction? principal of the transaction is excluded? 137.715 What notice does the suspending 137.210 Which nonprocurement 137.410 May I approve a participant’s use official give me if I am suspended? transactions are covered transactions? of the services of an excluded person? 137.720 How may I contest a suspension? 137.215 Which nonprocurement 137.415 What must I do if a Federal agency 137.725 How much time do I have to transactions are not covered excludes the participant or a principal contest a suspension? transactions? after I enter into a covered transaction? 137.730 What information must I provide to 137.220 Are any procurement contracts 137.420 May I approve a transaction with the suspending official if I contest a included as covered transactions? an excluded or disqualified person at a suspension? 137.225 How do I know if a transaction in lower tier? 137.735 Under what conditions do I get an which I may participate is a covered 137.425 When do I check to see if a person additional opportunity to challenge the transaction? is excluded or disqualified? facts on which the suspension is based? 137.430 How do I check to see if a person 137.740 Are suspension proceedings Subpart C—Responsibilities of Participants is excluded or disqualified? formal? Regarding Transactions 137.435 What must I require of a primary 137.745 How is fact-finding conducted? Doing Business With Other Persons tier participant? 137.750 What does the suspending official 137.440 What method do I use to consider in deciding whether to continue 137.300 What must I do before I enter into communicate those requirements to or terminate my suspension? a covered transaction with another 137.755 When will I know whether the person at the next lower tier? participants? suspension is continued or terminated? 137.305 May I enter into a covered 137.445 What action may I take if a primary 137.760 How long may my suspension last? transaction with an excluded or tier participant knowingly does business disqualified person? with an excluded or disqualified person? Subpart H—Debarment 137.450 What action may I take if a primary 137.310 What must I do if a Federal agency 137.800 What are the causes for debarment? excludes a person with whom I am tier participant fails to disclose the 137.805 What notice does the debarring already doing business in a covered information required under § 137.335? official give me if I am proposed for transaction? 137.455 What may I do if a lower tier debarment? 137.315 May I use the services of an participant fails to disclose the 137.810 When does a debarment take excluded person as a principal under a information required under § 137.355 to covered transaction? the next higher tier? effect? 137.815 How may I contest a proposed 137.320 Must I verify that principals of my Subpart E—Excluded Parties List System covered transactions are eligible to debarment? participate? 137.500 What is the purpose of the 137.820 How much time do I have to 137.325 What happens if I do business with Excluded Parties List System? contest a proposed debarment? an excluded person in a covered 137.505 Who uses the EPLS? 137.825 What information must I provide to transaction? 137.510 Who maintains the EPLS? the debarring official if I contest a 137.330 What requirements must I pass 137.515 What specific information is in the proposed debarment? down to persons at lower tiers with EPLS? 137.830 Under what conditions do I get an whom I intend to do business? 137.520 Who places the information into additional opportunity to challenge the the EPLS? facts on which the proposed debarment Disclosing Information—Primary Tier 137.525 Whom do I ask if I have questions is based? Participants about a person in the EPLS? 137.835 Are debarment proceedings formal? 137.335 What information must I provide 137.530 Where can I find the EPLS? 137.840 How is fact-finding conducted? before entering into a covered 137.845 What does the debarring official Subpart F—General Principles Relating to transaction with the Department of consider in deciding whether to debar Suspension and Debarment Actions State? me? 137.340 If I disclose unfavorable 137.600 How do suspension and debarment 137.850 What is the standard of proof in a information required under § 137.335, actions start? debarment action? will I be prevented from participating in 137.605 How does suspension differ from 137.855 Who has the burden of proof in a the transaction? debarment? debarment action? 137.345 What happens if I fail to disclose 137.610 What procedures does the 137.860 What factors may influence the the information required under Department of State use in suspension debarring official’s decision? § 137.335? and debarment actions? 137.865 How long may my debarment last?

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137.870 When do I know if the debarring AGENCY FOR INTERNATIONAL excluded from nonprocurement official debars me? DEVELOPMENT transactions? 137.875 May I ask the debarring official to Subpart B—Covered Transactions reconsider a decision to debar me? 22 CFR Parts 208 and 210 137.880 What factors may influence the RIN 0412–AA47 208.200 What is a covered transaction? debarring official during 208.205 Why is it important to know if a reconsideration? FOR FURTHER INFORMATION CONTACT: particular transaction is a covered 137.885 May the debarring official extend a Raquel Powell, M/OP/POL, 1300 transaction? debarment? Pennsylvania Avenue, NW., 208.210 Which nonprocurement transactions are covered transactions? Subpart I—Definitions Washington, DC 20523–7801, (202) 712– 0778. 208.215 Which nonprocurement 137.900 Adequate evidence. transactions are not covered 137.905 Affiliate. List of Subjects transactions? 137.910 Agency. 208.220 Are any procurement contracts 137.915 Agent or representative. 22 CFR Part 208 included as covered transactions? 137.920 Civil judgment. Administrative practice and 208.225 How do I know if a transaction in 137.925 Conviction. which I may participate is a covered procedure, Debarment and suspension, transaction? 137.930 Debarment. Grant programs, Reporting and 137.935 Debarring official. recordkeeping requirements. Subpart C—Responsibilities of Participants 137.940 Disqualified. Regarding Transactions 137.945 Excluded or exclusion. 22 CFR Part 210 Doing Business With Other Persons 137.950 Excluded Parties List System. Administrative practice and 137.955 Indictment. 208.300 What must I do before I enter into 137.960 Ineligible or ineligibility. procedure, Drug abuse, Grant programs, a covered transaction with another 137.965 Legal proceedings. Reporting and recordkeeping person at the next lower tier? 137.970 Nonprocurement transaction. requirements. 208.305 May I enter into a covered 137.975 Notice. Dated: July 15, 2003. transaction with an excluded or 137.980 Participant. disqualified person? Timothy T. Beans, 137.985 Person. 208.310 What must I do if a Federal agency 137.990 Preponderance of the evidence. Director, Office of Procurement. excludes a person with whom I am 137.995 Principal. ■ For the reason stated in the common already doing business in a covered 137.1000 Respondent. preamble, the Agency for International transaction? 137.1005 State. Development amends 22 CFR Chapter II, 208.315 May I use the services of an 137.1010 Suspending official. excluded person as a principal under a as follows: covered transaction? 137.1015 Suspension. ■ 1. Part 208 is revised to read as set forth 208.320 Must I verify that principals of my 137.1020 Voluntary exclusion or in instruction 1 at the end of the common voluntarily excluded. covered transactions are eligible to preamble. participate? Subpart J—[Reserved] 208.325 What happens if I do business with PART 208—GOVERNMENTWIDE an excluded person in a covered Appendix to Part 137—Covered transaction? Transactions DEBARMENT AND SUSPENSION (NONPROCUREMENT) 208.330 What requirements must I pass Authority: 22 U.S.C. 2658; sec. 2455, Pub. down to persons at lower tiers with L. 103–355, 108 Stat. 3327 (31 U.S.C. 6101 Sec. whom I intend to do business? 208.25 How is this part organized? note); E.O. 12549, 3 CFR 1986 Comp., p.189; Disclosing Information—Primary Tier E.O. 12689, 3 CFR 1989 Comp., p. 235. 208.50 How is this part written? 208.75 Do terms in this part have special Participants ■ 6. Part 137 is further amended as set meanings? 208.335 What information must I provide before entering into a covered forth below. Subpart A—General ■ transaction with the U.S. Agency for a. ‘‘[Agency noun]’’ is removed and 208.100 What does this part do? International Development? ‘‘Department of State’’ is added in its 208.105 Does this part apply to me? 208.340 If I disclose unfavorable place wherever it occurs. 208.110 What is the purpose of the information required under § 208.335, ■ b. ‘‘[Agency adjective]’’ is removed and nonprocurement debarment and will I be prevented from participating in ‘‘Department of State’’ is added in its suspension systems? the transaction? place wherever it occurs. 208.115 How does an exclusion restrict a 208.345 What happens if I fail to disclose ■ person’s involvement in covered the information required under c. ‘‘[Agency head or designee]’’ is transactions? § 208.335? removed and ‘‘Procurement Executive’’ 208.120 May we grant an exception to let an 208.350 What must I do if I learn of the is added in its place wherever it occurs. excluded person participate in a covered information required under § 208.335 ■ 7. Section 137.440 is added to read as transaction? after entering into a covered transaction follows: 208.125 Does an exclusion under the with the U.S. Agency for International nonprocurement system affect a person’s Development? § 137.440 What method do I use to eligibility for Federal procurement contracts? Disclosing Information—Lower Tier communicate those requirements to Participants participants? 208.130 Does exclusion under the Federal procurement system affect a person’s 208.355 What information must I provide to To communicate the requirement to eligibility to participate in a higher tier participant before entering participants, you must include a term or nonprocurement transactions? into a covered transaction with that condition in the transaction requiring 208.135 May the U.S. Agency for participant? the participant’s compliance with International Development exclude a 208.360 What happens if I fail to disclose subpart C of this part and requiring person who is not currently participating the information required under them to include a similar term or in a nonprocurement transaction? § 208.355? 208.140 How do I know if a person is 208.365 What must I do if I learn of condition in lower tier covered excluded? information required under § 208.355 transactions. 208.145 Does this part address persons who after entering into a covered transaction lllllllllllllllllll are disqualified, as well as those who are with a higher tier participant?

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Subpart D—Responsibilities of USAID Development agrees to a voluntary 208.925 Conviction. Officials Regarding Transactions exclusion? 208.930 Debarment. 208.935 Debarring official. 208.400 May I enter into a transaction with Subpart G—Suspension an excluded or disqualified person? 208.940 Disqualified. 208.700 When may the suspending official 208.405 May I enter into a covered 208.945 Excluded or exclusion. issue a suspension? transaction with a participant if a 208.950 Excluded Parties List System. 208.705 What does the suspending official principal of the transaction is excluded? 208.955 Indictment. consider in issuing a suspension? 208.410 May I approve a participant’s use 208.960 Ineligible or ineligibility. 208.710 When does a suspension take of the services of an excluded person? 208.965 Legal proceedings. effect? 208.415 What must I do if a Federal agency 208.970 Nonprocurement transaction. 208.715 What notice does the suspending excludes the participant or a principal 208.975 Notice. official give me if I am suspended? after I enter into a covered transaction? 208.980 Participant. 208.720 How may I contest a suspension? 208.420 May I approve a transaction with 208.985 Person. 208.725 How much time do I have to an excluded or disqualified person at a 208.990 Preponderance of the evidence. contest a suspension? lower tier? 208.995 Principal. 208.730 What information must I provide to 208.425 When do I check to see if a person 208.1000 Respondent. the suspending official if I contest a is excluded or disqualified? 208.1005 State. suspension? 208.430 How do I check to see if a person 208.1010 Suspending official. 208.735 Under what conditions do I get an is excluded or disqualified? 208.1015 Suspension. additional opportunity to challenge the 208.435 What must I require of a primary 208.1020 Voluntary exclusion or facts on which the suspension is based? tier participant? voluntarily excluded. 208.740 Are suspension proceedings 208.440 What method do I use to formal? Subpart J—[Reserved] communicate those requirements to 208.745 How is fact-finding conducted? participants? Appendix to Part 208—Covered 208.750 What does the suspending official 208.445 What action may I take if a primary consider in deciding whether to continue Transactions tier participant knowingly does business or terminate my suspension? with an excluded or disqualified person? Authority: E.O. 12163, 3 CFR 1979 Comp., 208.755 When will I know whether the 208.450 What action may I take if a primary p. 435; E.O. 12549 3 CFR 1986 Comp., p. 189; suspension is continued or terminated? tier participant fails to disclose the E.O. 12698, 3 CFR 1989 Comp., p. 235; sec. 208.760 How long may my suspension last? information required under § 208.335? 2455, Pub. L. 103–355, 108 Stat. 3327 (31 208.455 What may I do if a lower tier Subpart H—Debarment U.S.C. 6101 note); sec. 621, Pub. L. 87–195, 75 Stat. 445 (22 U.S.C. 2381), as amended. participant fails to disclose the 208.800 What are the causes for debarment? information required under § 208.355 to 208.805 What notice does the debarring ■ 2. Part 208 is further amended as set the next higher tier? official give me if I am proposed for forth below. Subpart E—Excluded Parties List System debarment? ■ a. ‘‘[Agency Noun]’’ is removed and 208.810 When does a debarment take ‘‘U.S. Agency for International 208.500 What is the purpose of the effect? Excluded Parties List System (EPLS)? 208.815 How may I contest a proposed Development’’ is added in its place 208.505 Who uses the EPLS? debarment? wherever it occurs. 208.510 Who maintains the EPLS? 208.820 How much time do I have to ■ b. ‘‘[Agency adjective]’’ is removed and 208.515 What specific information is in the contest a proposed debarment? ‘‘USAID’’ is added in its place wherever EPLS? 208.825 What information must I provide to it occurs. 208.520 Who places the information into the debarring official if I contest a ■ c. ‘‘[Agency head or designee]’’ is the EPLS? proposed debarment? 208.525 Whom do I ask if I have questions removed and ‘‘Director, Office of 208.830 Under what conditions do I get an Procurement’’ is added in its place about a person in the EPLS? additional opportunity to challenge the 208.530 Where can I find the EPLS? facts on which the proposed debarment wherever it occurs. Subpart F—General Principles Relating to is based? ■ 3. Section 208.440 is added to read as Suspension and Debarment Actions 208.835 Are debarment proceedings formal? follows: 208.840 How is fact-finding conducted? 208.600 How do suspension and debarment 208.845 What does the debarring official § 208.440 What method do I use to actions start? consider in deciding whether to debar communicate those requirements to 208.605 How does suspension differ from me? participants? debarment? 208.850 What is the standard of proof in a 208.610 What procedures does the U.S. To communicate the requirements in debarment action? § 208.35, you must include a term or Agency for International Development 208.855 Who has the burden of proof in a use in suspension and debarment debarment action? condition in the transaction requiring actions? 208.860 What factors may influence the the participants’ compliance with 208.615 How does the U.S. Agency for debarring official’s decision? subpart C of this part and requiring International Development notify a 208.865 How long may my debarment last? them to include a similar term or person of a suspension and debarment 208.870 When do I know if the debarring condition in lower-tier covered action? official debars me? transactions. 208.620 Do Federal agencies coordinate 208.875 May I ask the debarring official to ■ 4. Section 208.935 is further amended suspension and debarment actions? reconsider a decision to debar me? 208.625 What is the scope of a suspension 208.880 What factors may influence the by adding paragraph (b) to read as or debarment action? debarring official during follows: 208.630 May the U.S. Agency for reconsideration? § 208.935 Debarring official. International Development impute the 208.885 May the debarring official extend a conduct of one person to another? debarment? * * * * * 208.635 May the U.S. Agency for Subpart I—Definitions (b) The U.S. Agency for International International Development settle a Development’s debarring official is the debarment or suspension action? 208.900 Adequate evidence. Director of the Office of Procurement. 208.640 May a settlement include a 208.905 Affiliate. voluntary exclusion? 208.910 Agency. ■ 5. Section 208.1010 is further amended 208.645 Do other Federal agencies know if 208.915 Agent or representative. by adding paragraph (b) to read as the U.S. Agency for International 208.920 Civil judgment follows:

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§ 208.1010 Suspending official. 210.610 Controlled substance. 22 CFR Part 312 * * * * * 210.615 Conviction. (b) The U.S. Agency for International 210.620 Cooperative agreement. Administrative practice and Development’s suspending official is the 210.625 Criminal drug statute. procedure, Drug abuse, Grant programs, 210.630 Debarment 210.635 Drug-free Director of the Office of Procurement. Reporting and recordkeeping workplace. requirements. ■ 6. Part 210 is added to read as set forth 210.640 Employee. in instruction 2 at the end of the common 210.645 Federal agency or agency. Dated: July 24, 2003. preamble. 210.650 Grant. Keith A. Vance, 210.655 Individual. Director, Office of Administrative Services, PART 210—GOVERNMENTWIDE 210.660 Recipient. Peace Corps. REQUIREMENTS FOR DRUG-FREE 210.665 State. ■ WORKPLACE (FINANCIAL 210.670 Suspension. For the reasons stated in the common ASSISTANCE) Authority: 41 U.S.C. 701, et seq.; sec. 621, preamble, the Peace Corps amends 22 Pub. L. 87–195, 75 Stat. 445 (22 U.S.C. 2381), CFR chapter III, as follows: Subpart A—Purpose and Coverage as amended; E.O. 12163, 3 CFR 1979 Comp., ■ 1. Part 310 is revised to read as set forth p. 435. in instruction 1 at the end of the common Sec. 210.100 What does this part do? ■ 7. Part 210 is further amended as set preamble. 210.105 Does this part apply to me? forth below. PART 310—GOVERNMENTWIDE 210.110 Are any of my Federal assistance ■ a. ‘‘[Agency Noun]’’ is removed and awards exempt from this part? DEBARMENT AND SUSPENSION ‘‘U.S. Agency for International (NONPROCUREMENT). 210.115 Does this part affect the Federal Development’’ is added in its place contracts that I receive? wherever it occurs. Sec. Subpart B—Requirements for ■ b. ‘‘[Agency Adjective]’’ is removed 310.25 How is this part organized? Recipients Other Than Individuals and ‘‘USAID’’ is added in its place 310.50 How is this part written? wherever it occurs. 310.75 Do terms in this part have special meanings? 210.200 What must I do to comply with this ■ c. ‘‘[Agency Head or Designee]’’ is part? Subpart A—General 210.205 What must I include in my drug- removed and ‘‘Director of the Office of free workplace statement? Procurement’’ is added in its place 310.100 What does this part do? 210.210 To whom must I distribute my wherever it occurs. 310.105 Does this part apply to me? drug-free workplace statement? ■ d. ‘‘[Agency head]’’ is removed and 310.110 What is the purpose of the 210.215 What must I include in my drug- ‘‘USAID Administrator or designee’’ is nonprocurement debarment and free awareness program? added in its place wherever it occurs. suspension system? 210.220 By when must I publish my drug- 310.115 How does an exclusion restrict a ■ free workplace statement and establish 8. Section 210.510(c) is further person’s involvement in covered my drug-free awareness program? amended by removing ‘‘[CFR citation for transactions? 210.225 What actions must I take the Federal Agency’s regulation 310.120 May we grant an exception to let an concerning employees who are convicted implementing Executive Order 12549 excluded person participate in a covered of drug violations in the workplace? and Executive Order 12689]’’ and adding transaction? 210.230 How and when must I identify ‘‘22 CFR Part 208’’ in its place. 310.125 Does an exclusion under the workplaces? nonprocurement system affect a person’s ■ 9. Section 210.605 is further amended eligibility for Federal procurement Subpart C—Requirements for by adding a paragraph (c) to read as contracts? Recipients Who Are Individuals follows: 310.130 Does exclusion under the federal procurement system affect a person’s § 210.605 Award 210.300 What must I do to comply with this eligibility to participate in part if I am an individual recipient? * * * * * nonprocurement transactions? 210.301 [Reserved] (c) Notwithstanding paragraph (a)(2) 310.135 May the Peace Corps exclude a person who is not currently participating Subpart D—Responsibilities of USAID of this section, this paragraph is not applicable to AID. in a nonprocurement transaction? Awarding Officials 310.140 How do I know if a person is lllllllllllllllllll excluded? 210.400 What are my responsibilities as a 310.145 Does this part address persons who USAID awarding official? PEACE CORPS are disqualified, as well as those who are Subpart E—Violations of This Part and 22 CFR Parts 310 and 312 excluded from nonprocurement transactions? Consequences RIN 0420–AA17 Subpart B—Covered Transactions 210.500 How are violations of this part FOR FURTHER INFORMATION CONTACT: determined for recipients other than Suzanne Glasow, Associate General 310.200 What is a covered transaction? individuals? Counsel, Office of the General Counsel, 310.205 Why is it important to know if a 210.505 How are violations of this part particular transaction is a covered Peace Corps, 1111 20th Street, NW., transaction? determined for recipients who are Washington, DC 20526, (202) 692–2157. individuals? 310.210 Which nonprocurement 210.510 What actions will the Federal List of Subjects transactions are covered transactions? Government take against a recipient 310.215 Which nonprocurement determined to have violated this part? 22 CFR Part 310 transactions are not covered transactions? 210.515 Are there any provisions for Administrative practice and exceptions to those actions? 310.220 Are any procurement contracts procedure, Government contracts, Grant included as covered transactions? Subpart F—Definitions programs, Loan programs, Reporting 310.225 How do I know if a transaction in and recordkeeping requirements, which I may participate is a covered 210.605 Award. Technical assistance. transaction?

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Subpart C—Responsibilities of Participants 310.435 What must I require of a primary 310.750 What does the suspending official Regarding Transactions tier participant? consider in deciding whether to continue 310.440 What method do I use to or terminate my suspension? Doing Business With Other Persons communicate those requirements to 310.755 When will I know whether the 310.300 What must I do before I enter into participants? suspension is continued or terminated? a covered transaction with another 310.445 What action may I take if a primary 310.760 How long may my suspension last? person at the next lower tier? tier participant knowingly does business 310.305 May I enter into a covered with an excluded or disqualified person? Subpart H—Debarment transaction with an excluded or 310.450 What action may I take if a primary 310.800 What are the causes for debarment? disqualified person? tier participant fails to disclose the 310.805 What notice does the debarring 310.310 What must I do if a federal agency information required under § 310.335? official give me if I am proposed for excludes a person with whom I am 310.455 What may I do if a lower tier debarment? already doing business in a covered participant fails to disclose the 310.810 When does a debarment take transaction? information required under § 310.355 to effect? 310.315 May I use the services of an the next higher tier? excluded person as a principal under a 310.815 How may I contest a proposed covered transaction? Subpart E—Excluded Parties List System debarment? 310.320 Must I verify that principals of my 310.820 How much time do I have to 310.500 What is the purpose of the contest a proposed debarment? covered transactions are eligible to Excluded Parties List System (EPLS)? 310.825 What information must I provide to participate? 310.505 Who uses the EPLS? the debarring official if I contest a 310.325 What happens if I do business with 310.510 Who maintains the EPLS? proposed debarment? an excluded person in a covered 310.515 What specific information is in the transaction? EPLS? 310.830 Under what conditions do I get an 310.330 What requirements must I pass 310.520 Who places the information into additional opportunity to challenge the down to persons at lower tiers with the EPLS? facts on which the proposed debarment whom I intend to do business? 310.525 Whom do I ask if I have questions is based? 310.835 Are debarment proceedings formal? Disclosing Information—Primary Tier about a person in the EPLS? Participants 310.530 Where can I find the EPLS? 310.840 How is fact-finding conducted? 310.845 What does the debarring official 310.335 What information must I provide Subpart F—General Principles Relating to consider in deciding whether to debar before entering into a covered Suspension and Debarment Actions me? transaction with the Peace Corps? 310.600 How do suspension and debarment 310.850 What is the standard of proof in a 310.340 If I disclose unfavorable actions start? debarment action? information required under § 310.335, 310.605 How does suspension differ from 310.855 Who has the burden of proof in a will I be prevented from participating in debarment? debarment action? the transaction? 310.610 What procedures does the Peace 310.345 What happens if I fail to disclose 310.860 What factors may influence the Corps use in suspension and debarment the information required under debarring official’s decision? actions? § 310.335? 310.865 How long may my debarment last? 310.615 How does the Peace Corps notify a 310.350 What must I do if I learn of the 310.870 When do I know if the debarring person of a suspension and debarment information required under § 310.335 official debars me? action? after entering into a covered transaction 310.875 May I ask the debarring official to 310.620 Do federal agencies coordinate with the Peace Corps? reconsider a decision to debar me? suspension and debarment actions? 310.880 What factors may influence the Disclosing Information—Lower Tier 310.625 What is the scope of a suspension debarring official during Participants or debarment action? reconsideration? 310.355 What information must I provide to 310.630 May the Peace Corps impute the 310.885 May the debarring official extend a a higher tier participant before entering conduct of one person to another? debarment? into a covered transaction with that 310.635 May the Peace Corps settle a participant? debarment or suspension action? Subpart I—Definitions 310.360 What happens if I fail to disclose 310.640 May a settlement include a 310.900 Adequate evidence. the information required under voluntary exclusion? 310.905 Affiliate. § 310.355? 310.645 Do other federal agencies know if 310.910 Agency. 310.365 What must I do if I learn of the Peace Corps agrees to a voluntary 310.915 Agent or representative. information required under § 310.355 exclusion? 310.920 Civil judgment. after entering into a covered transaction Subpart G—Suspension 310.925 Conviction. with a higher tier participant? 310.700 When may the suspending official 310.930 Debarment. Subpart D—Responsibilities of Peace Corps issue a suspension? 310.935 Debarring official. Officials Regarding Transactions 310.705 What does the suspending official 310.940 Disqualified. 310.945 Excluded or exclusion. 310.400 May I enter into a transaction with consider in issuing a suspension? 310.950 Excluded Parties List System. an excluded or disqualified person? 310.710 When does a suspension take 310.955 Indictment. 310.405 May I enter into a covered effect? transaction with a participant if a 310.715 What notice does the suspending 310.960 Ineligible or ineligibility. principal of the transaction is excluded? official give me if I am suspended? 310.965 Legal proceedings. 310.410 May I approve a participant’s use 310.720 How may I contest a suspension? 310.970 Nonprocurement transaction. of the services of an excluded person? 310.725 How much time do I have to 310.975 Notice. 310.415 What must I do if a federal agency contest a suspension? 310.980 Participant. excludes the participant or a principal 310.730 What information must I provide to 310.985 Person. after I enter into a covered transaction? the suspending official if I contest a 310.990 Preponderance of the evidence. 310.420 May I approve a transaction with suspension? 310.995 Principal. an excluded or disqualified person at a 310.735 Under what conditions do I get an 310.100 Respondent. lower tier? additional opportunity to challenge the 310.1005 State. 310.425 When do I check to see if a person facts on which the suspension is based? 310.1010 Suspending official. is excluded or disqualified? 310.740 Are suspension proceedings 310.1015 Suspension. 310.430 How do I check to see if a person formal? 310.1020 Voluntary exclusion or is excluded or disqualified? 310.745 How is fact-finding conducted? voluntarily excluded.

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Subpart J—Reserved Subpart C—Requirements for Recipients lllllllllllllllllll Who Are Individuals Appendix to Part 310—Covered INTER-AMERICAN FOUNDATION Transactions 312.300 What must I do to comply with this part if I am an individual recipient? 22 CFR Parts 1006 and 1008 Authority: 22 U.S.C. 2503; Sec. 2455, Pub. 312.301 [Reserved] L. 103–355, 108 Stat. 3327 (31 U.S.C. 6101 RIN 3200–ZA05 Subpart D—Responsibilities of Peace Corps note); E.O. 12549 (3 CFR, 1986 Comp., p. Awarding Officials FOR FURTHER INFORMATION CONTACT: 189); E.O. 12689 (3 CFR, 1989 Comp., p. 235). Carolyn Karr, General Counsel, Inter- 312.400 What are my responsibilities as a American Foundation, 901 N. Stuart ■ 2. Part 310 is further amended as set Peace Corps awarding official? Street, Arlington, Virginia 22203, (703) forth below. Subpart E—Violations of This Part and 306–4350, [email protected]. ■ a. ‘‘[Agency noun]’’ is removed and Consequences List of Subjects ‘‘Peace Corps’’ is added in its place 312.500 How are violations of this part wherever it occurs. determined for recipients other than 22 CFR Part 1006 ■ individuals? b. ‘‘[Agency adjective]’’ is removed and Administrative practice and ‘‘Peace Corps’’ is added in its place 312.505 How are violations of this part determined for recipients who are procedure, Government contracts, Grant wherever it occurs. programs, Loan programs, Reporting ■ individuals? c. ‘‘[Agency head or designee]’’ is 312.510 What actions will the Federal and recordkeeping requirements, removed and ‘‘Peace Corps Director or Government take against a recipient Technical assistance. designee ‘‘is added in its place wherever determined to have violated this part? it occurs. 312.515 Are there any exceptions to those 22 CFR Part 1008 ■ 3. Section 310.440 is added to read as actions? Administrative practice and follows: Subpart F—Definitions procedure, Drug abuse, Grant programs, Reporting and recordkeeping § 310.440 What method do I use to 312.605 Award. requirements. communicate those requirements to 312.610 Controlled substance. Dated: August 1, 2003. participants? 312.615 Conviction. 312.620 Cooperative agreement. David Valenzuela, To communicate the requirements to 312.625 Criminal drug statute. President, Inter-American Foundation. participants, you must include a term or 312.630 Debarment. ■ For the reasons stated in the common condition in the transaction requiring 312.635 Drug-free workplace. preamble, the Inter-American the participant’s compliance with 312.640 Employee. Foundation amends 22 CFR Chapter X, subpart C of this part and requiring 312.645 Federal agency or agency. as follows: them to include a similar term or 312.650 Grant. 312.655 Individual. condition in lower tier covered ■ 1. Part 1006 is revised to read as set 312.660 Recipient. forth in instruction 1 at the end of the transactions. 312.665 State. common preamble. ■ 4. Part 312 is added to read as set forth 312.670 Suspension. in instruction 2 at the end of the common Authority: 22 U.S.C. 2503 (b); 41 U.S.C. PART 1006—GOVERNMENTWIDE preamble. 701 et seq. DEBARMENT AND SUSPENSION ■ 5. Part 312 is further amended as set (NONPROCUREMENT) PART 312—GOVERNMENTWIDE forth below. REQUIREMENTS FOR DRUG—FREE ■ a. ‘‘[Agency noun]’’ is removed and Sec. WORKPLACE (FINANCIAL ‘‘Peace Corps’’ is added in its place 1006.25 How is this part organized? ASSISTANCE) 1006.50 How is this part written? wherever it occurs. 1006.75 Do terms in this part have special ■ Subpart A—Purpose and Coverage b. ‘‘[Agency adjective]’’ is removed and meanings? ‘‘Peace Corps’’ is added in its place Sec. wherever it occurs. Subpart A—General 312.100 What does this part do? ■ c. ‘‘[Agency head or designee]’’ is 1006.100 What does this part do? 312.105 Does this part apply to me? 1006.105 Does this part apply to me? 312.110 Are any of my federal assistance removed and ‘‘Peace Corps Director or designee’’ is added in its place wherever 1006.110 What is the purpose of the awards exempt from this part? nonprocurement debarment and 312.115 Does this part affect the federal it occurs. ■ suspension system? contracts that I receive? d. ‘‘[Agency head]’’ is removed and 1006.115 How does an exclusion restrict a Subpart B—Requirements for Recipients ‘‘Peace Corps Director’’ is added in its person’s involvement in covered Other Than Individuals place wherever it occurs. transactions? ■ 6. Section 312.510(c) is further 1006.120 May we grant an exception to let 312.200 What must I do to comply with this an excluded person participate in a part? amended by removing ‘‘[CFR citation for the federal agency’s regulations covered transaction? 312.205 What must I include in my drug- 1006.125 Does an exclusion under the free workplace statement? implementing Executive Order 12549 nonprocurement system affect a person’s 312.210 To whom must I distribute my and Executive Order 12689]’’ and adding eligibility for Federal procurement drug-free workplace statement? ‘‘22 CFR Part 310’’ in its place. contracts? 312.215 What must I include in my drug- ■ 7. Section 312.605 is further amended 1006.130 Does exclusion under the Federal free awareness program? by adding a paragraph (c) to read as procurement system affect a person’s 312.220 By when must I publish my drug- follows: eligibility to participate in free workplace statement and establish nonprocurement transactions? my drug-free awareness program? § 312.605 Award. 1006.135 May the Inter-American 312.225 What actions must I take Foundation exclude a person who is not concerning employees who are convicted * * * * * currently participating in a of drug violations in the workplace? (c) Notwithstanding paragraph (a)(2) nonprocurement transaction? 312.230 How and when must I identify of this section, this paragraph is not 1006.140 How do I know if a person is workplaces? applicable for the Peace Corps. excluded?

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1006.145 Does this part address persons Subpart D—Responsibilities of Inter- 1006.645 Do other Federal agencies know if who are disqualified, as well as those American Foundation Officials Regarding the Inter-American Foundation agrees to who are excluded from nonprocurement Transactions a voluntary exclusion? transactions? 1006.400 May I enter into a transaction Subpart G—Suspension Subpart B—Covered Transactions with an excluded or disqualified person? 1006.405 May I enter into a covered 1006.700 When may the suspending official 1006.200 What is a covered transaction? transaction with a participant if a issue a suspension? 1006.205 Why is it important to know if a principal of the transaction is excluded? 1006.705 What does the suspending official particular transaction is a covered 1006.410 May I approve a participant’s use consider in issuing a suspension? transaction? of the services of an excluded person? 1006.710 When does a suspension take 1006.210 Which nonprocurement effect? transactions are covered transactions? 1006.415 What must I do if a Federal 1006.715 What notice does the suspending 1006.215 Which nonprocurement agency excludes the participant or a official give me if I am suspended? transactions are not covered principal after I enter into a covered transactions? transaction? 1006.720 How may I contest a suspension? 1006.220 Are any procurement contracts 1006.420 May I approve a transaction with 1006.725 How much time do I have to included as covered transactions? an excluded or disqualified person at a contest a suspension? 1006.225 How do I know if a transaction in lower tier? 1006.730 What information must I provide which I may participate is a covered 1006.425 When do I check to see if a person to the suspending official if I contest a transaction? is excluded or disqualified? suspension? 1006.430 How do I check to see if a person 1006.735 Under what conditions do I get an Subpart C—Responsibilities of Participants is excluded or disqualified? additional opportunity to challenge the Regarding Transactions 1006.435 What must I require of a primary facts on which the suspension is based? tier participant? Doing Business With Other Persons 1006.740 Are suspension proceedings 1006.440 What method do I use to formal? 1006.300 What must I do before I enter into communicate those requirements to 1006.745 How is fact-finding conducted? a covered transaction with another participants? 1006.750 What does the suspending official person at the next lower tier? 1006.445 What action may I take if a 1006.305 May I enter into a covered consider in deciding whether to continue primary tier participant knowingly does or terminate my suspension? transaction with an excluded or business with an excluded or disqualified person? 1006.755 When will I know whether the disqualified person? suspension is continued or terminated? 1006.310 What Must I do if a Federal 1006.450 What action may I take if a agency excludes a person with whom I 1006.760 How long may my suspension primary tier participant fails to disclose last? am already doing business in a covered the information required under transaction? § 1006.335? Subpart H—Debarment 1006.315 May I use the services of an 1006.455 What may I do if a lower tier 1006.800 What are the causes for excluded person as a principal under a participant fails to disclose the covered transaction? debarment? information required under § 1006.355 to 1006.805 What notice does the debarring 1006.320 I verify that principals of my the next higher tier? covered transactions are eligible to official give me if I am proposed for participate? Subpart E—Excluded Parties List System debarment? 1006.810 When does a debarment take 1006.325 What happens if I do business 1006.500 What is the purpose of the effect? with an excluded person in a covered Excluded Parties List System (EPLS)? 1006.815 How may I contest a proposed transaction? 1006.505 Who uses the EPLS? debarment? 1006.330 What requirements must I pass 1006.510 Who maintains the EPLS? down to persons at lower tiers with 1006.820 How much time do I have to 1006.515 What specific information is in whom I intend to do business? the EPLS? contest a proposed debarment? 1006.825 What information must I provide Disclosing Information—Primary Tier 1006.520 Who places the information into to the debarring official if I contest a Participants the EPLS? 1006.525 Whom do I ask if I have questions proposed debarment? 1006.335 What information must I provide 1006.830 Under what conditions do I get an before a covered transaction with the about a person in the EPLS? 1006.530 Where can I find the EPLS? additional opportunity to challenge the Inter-American Foundation? fact on which the proposed debarment is 1006.340 If I disclose unfavorable Subpart F—General Principles Relating to based? information required under § 1006.335, Suspension and Debarment Actions 1006.835 Are debarment proceedings will I be prevented from participating in formal? the transaction? 1006.600 How do suspension and 1006.840 How is fact-finding conducted? 1006.345 What happens if I fail to disclose debarment actions start? 1006.845 What does the debarring official the information required under 1006.605 How does suspension differ from consider in deciding whether to debar § 1006.335? debarment? me? 1006.350 What must I do if I learn of the 1006.610 What procedures does the Inter- information required under § 1006.335 American Foundation use in suspension 1006.850 What is the standard of proof in after entering into a covered transaction and debarment actions? a debarment action? with the Inter-American Foundation? 1006.615 How does the Inter-American 1006.855 Who has the burden of proof in a Foundation notify a person of a debarment action? Disclosing Information—Lower Tier suspension and debarment action? 1006.860 What factors may influence the Participants 1006.620 Do Federal agencies coordinate debarring official’s decision? 1006.355 What information must I provide suspension and debarment actions? 1006.865 How long may my debarment to a higher tier participant before 1006.625 What is the scope of a suspension last? entering into a covered transaction with or debarment action? 1006.870 When do I know if the debarring that participant? 1006.630 May the Inter-American official debars me? 1006.360 What happens if I fail to disclose Foundation impute the conduct of one 1006.875 May I ask the debarring official to the information required under person to another? reconsider a decision to debar me? § 1006.355? 1006.635 May the Inter-American 1006.880 What factors may influence the 1006.365 What must I do if I learn of Foundation settle a debarment or debarring official during information required under § 1006.355 suspension action? reconsideration? after entering into a covered transaction 1006.640 May a settlement include a 1006.885 May the debarring official extend with a higher tier participant? voluntary exclusion? a debarment?

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Subpart I—Definitions PART 1008—GOVERNMENTWIDE ■ 5. Part 1008 is further amended as set 1006.900 Adequate evidence. REQUIREMENTS FOR DRUG-FREE forth below. 1006.905 Affiliate. WORKPLACE (FINANCIAL ■ a. ‘‘[Agency noun]’’ is removed and 1006.910 Agency. ASSISTANCE) ‘‘Inter-American Foundation’’ is added 1006.915 Agent or representative. in its place wherever it occurs. Subpart A—Purpose and Coverage 1006.920 Civil judgment. ■ b. ‘‘[Agency adjective]’’ is removed and 1006.925 Conviction. Sec. ‘‘Inter-American Foundation’’ is added 1006.930 Debarment. 1008.100 What does this part do? in its place wherever it occurs. 1008.105 Does this part apply to me? 1006.935 Debarring official. ■ c. ‘‘[Agency head or designee]’’ is 1006.940 Disqualified. 1008.110 Are any of my Federal assistance awards exempt from this part? removed and ‘‘Inter-American 1006.945 Excluded or exclusion. 1008.115 Does this part affect the Federal Foundation President or designee’’ is 1006.950 Excluded Parties List System. contracts that I receive? added in its place wherever it occurs. 1006.955 Indictment. ■ d. ‘‘[Agency head]’’ is removed and 1006.960 Ineligible or ineligibility. Subpart B—Requirements for Recipients ‘‘Inter-American Foundation’’ is added 1006.965 Legal proceedings. Other Than Individuals 1006.970 Nonprocurement transaction. 1008.200 What must I do to comply with in its place wherever it occurs. 1006.975 Notice. this part? ■ 6. Section 1008.510(c) is further 1006.980 Participant. 1008.205 What must I include in my drug- amended by removing ‘‘[CFR citation for 1006.985 Person. free workplace statement? the Federal Agency’s regulations 1006.990 Preponderance of the evidence. 1008.210 To whom must I distribute my implementing Executive Order 12549 1006.995 Principal. drug-free workplace statement? and Executive Order 12689]’’ and adding 1008.215 What must I include in my drug- 1006.1000 Respondent. ‘‘22 CFR Part 1006’’ in its place. free awareness program? 1006.1005 State. 1008.220 By when must I publish my drug- ■ 7. Section 1008.605 is further amended 1006.1010 Suspending official. free workplace statement and establish by adding a paragraph (c) to read as 1006.1015 Suspension. my drug-free awareness program? follows: 1006.1020 Voluntary exclusion or 1008.225 What actions must I take voluntarily excluded concerning employees who are convicted § 1008.605 Award. of drug violations in the workplace? Subpart J—[Reserved] * * * * * 1008.230 How and when must I identify (c) Notwithstanding paragraph (a)(2) workplaces? Appendix to Part 1006—Covered of this section, this paragraph is not Transactions Subpart C—Requirements for Recipients applicable for the Inter-American Who Are Individuals Authority: Sec. 2455, Pub. L. 103–355, 108 Foundation. Stat. 3327 (31 U.S.C. 6101 note); E.O. 12549, 1008.300 What must I do to comply with lllllllllllllllllll 3 CFR, 1986 Comp., p. 189; E.O. 12689, 3 this part if I am an individual recipient? 1008.301 [Reserved] CFR, 1989 Comp., p. 235. AFRICAN DEVELOPMENT Subpart D—Responsibilities of Inter- FOUNDATION ■ 2. Part 1006 is further amended as set American Foundation Awarding Officials 22 CFR Parts 1508 and 1509 forth below. 1008.400 What are my responsibilities as an RIN 3005–ZA01 ■ a. ‘‘[Agency noun]’’ is removed and Inter-American Foundation awarding ‘‘Inter-American Foundation’’ is added official? FOR FURTHER INFORMATION CONTACT: in its place wherever it occurs. Subpart E—Violations of This Part and Doris Martin at 202–673–3916 (phone) Consequences or [email protected]. ■ b. ‘‘[Agency adjective]’’ is removed and ‘‘Inter-American Foundation’’ is added 1008.500 How are violations of this part List of Subjects in its place wherever it occurs. determined for recipients other than individuals? 22 CFR Part 1508 ■ c. ‘‘[Agency head or designee]’’ is 1008.505 How are violations of this part Administrative practice and removed and ‘‘Inter-American determined for recipients who are individuals? procedure, Debarment and suspension, Foundation Debarring Official’’ is added Government contracts, Grant programs, in its place wherever it occurs. 1008.510 What actions will the Federal Government take against a recipient Loan programs, Reporting and ■ 3. Section 1006.440 is added to read as determined to have violated this part? recordkeeping requirements. follows: 1008.515 Are there any exceptions to those actions? 22 CFR Part 1509 § 1006.440 What method do I use to Subpart F—Definitions Administrative practice and communicate those requirements to procedure, Drug abuse, Grant programs, participants? 1008.605 Award. 1008.610 Controlled substance. Reporting and recordkeeping To communicate the requirements to 1008.615 Conviction. requirements. participants, you must include a term or 1008.620 Cooperative agreement. Dated: June 30, 2003. condition in the transaction requiring 1008.625 Criminal drug statute. Doris Martin, the participant’s compliance with 1008.630 Debarment. 1008.635 Drug-free workplace. General Counsel. Subpart C of this part and requiring 1008.640 Employee. ■ For the reasons stated in the common them to include a similar term or 1008.645 Federal agency or agency. preamble, the African Development condition in lower tier covered 1008.650 Grant. Foundation amends 22 CFR chapter XV, transactions. 1008.655 Individual. 1008.660 Recipient. as follows: ■ 4. Part 1008 is added to read as set forth 1008.665 State. ■ 1. Part 1508 is revised to read as set in instruction 2 at the end of the common 1008.670 Suspension. forth in instruction 1 at the end of the preamble. Authority: 41 U.S.C. 701 et seq. common preamble.

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PART 1508—GOVERNMENTWIDE 1508.325 What happens if I do business Subpart E—Excluded Parties List System DEBARMENT AND SUSPENSION with an excluded person in a covered 1508.500 What is the purpose of the (NONPROCUREMENT) transaction? Excluded Parties List System (EPLS)? 1508.330 What requirements must I pass 1508.505 Who uses the EPLS? Sec. down to persons at lower tiers with 1508.510 Who maintains the EPLS? 1508.25 How is this part organized? whom I intend to do business? 1508.515 What specific information is in 1508.50 How is this part written? Disclosing Information—Primary Tier the EPLS? 1508.75 Do terms in this part have special Participants 1508.520 Who places the information into meanings? the EPLS? 1508.335 What information must I provide 1508.525 Whom do I ask if I have questions Subpart A—General before entering into a covered about a person in the EPLS? transaction with the African 1508.100 What does this part do? 1508.530 Where can I find the EPLS? 1508.105 Does this part apply to me? Development Foundation? 1508.110 What is the purpose of the 1508.340 If I disclose unfavorable Subpart F—General Principles Relating to nonprocurement debarment and information required under § 1508.335, Suspension and Debarment Actions suspension system? will I be prevented from participating in 1508.600 How do suspension and 1508.115 How does an exclusion restrict a the transaction? debarment actions start? person’s involvement in covered 1508.345 What happens if I fail to disclose 1508.605 How does suspension differ from transactions? the information required under debarment? 1508.120 May we grant an exception to let § 1508.335? 1508.610 What procedures does the African an excluded person participate in a 1508.350 What must I do if I learn of the Development Foundation use in covered transaction? information required under § 1508.335 suspension and debarment actions? 1508.125 Does an exclusion under the after entering into a covered transaction 1508.615 How does the African with the African Development nonprocurement system affect a person’s Development Foundation notify a person Foundation? eligibility for Federal procurement of a suspension and debarment action? contracts? Disclosing Information—Lower Tier 1508.620 Do Federal agencies coordinate 1508.130 Does exclusion under the Federal Participants suspension and debarment actions? procurement system affect a person’s 1508.355 What information must I provide 1508.625 What is the scope of a suspension eligibility to participate in or debarment action? nonprocurement transactions? to a higher tier participant before entering into a covered transaction with 1508.630 May the African Development 1508.135 May the African Development Foundation impute the conduct of one Foundation exclude a person who is not that participant? 1508.360 What happens if I fail to disclose person to another? currently participating in a 1508.635 May the African Development nonprocurement transaction? the information required under § 1508.355? Foundation settle a debarment or 1508.140 How do I know if a person is suspension action? excluded? 1508.365 What must I do if I learn of information required under § 1508.355 1508.640 May a settlement include a 1508.145 Does this part address persons voluntary exclusion? who are disqualified, as well as those after entering into a covered transaction with a higher tier participant? 1508.645 Do other Federal agencies know if who are excluded from nonprocurement the African Development Foundation transactions? Subpart D—Responsibilities of ADF agrees to a voluntary exclusion? Officials Regarding Transactions Subpart B—Covered Transactions Subpart G—Suspension 1508.400 May I enter into a transaction 1508.200 What is a covered transaction? 1508.700 When may the suspending official 1508.205 Why is it important to know if a with an excluded or disqualified person? 1508.405 May I enter into a covered issue a suspension? particular transaction is a covered 1508.705 What does the suspending official transaction? transaction with a participant if a principal of the transaction is excluded? consider in issuing a suspension? 1508.210 Which nonprocurement 1508.710 When does a suspension take transactions are covered transactions? 1508.410 May I approve a participant’s use of the services of an excluded person? effect? 1508.215 Which nonprocurement 1508.715 What notice does the suspending transactions are not covered 1508.415 What must I do if a Federal agency excludes the participant or a official give me if I am suspended? transactions? 1508.720 How may I contest a suspension? 1508.220 Are any procurement contracts principal after I enter into a covered transaction? 1508.725 How much time do I have to included as covered transactions? contest a suspension? 1508.225 How do I know if a transaction in 1508.420 May I approve a transaction with an excluded or disqualified person at a 1508.730 What information must I provide which I may participate is a covered to the suspending official if I contest a transaction? lower tier? 1508.425 When do I check to see if a person suspension? Subpart C—Responsibilities of Participants is excluded or disqualified? 1508.735 Under what conditions do I get an Regarding Transactions 1508.430 How do I check to see if a person additional opportunity to challenge the is excluded or disqualified? facts on which the suspension is based? Doing Business With Other Persons 1508.435 What must I require of a primary 1508.740 Are suspension proceedings 1508.300 What must I do before I enter into tier participant? formal? a covered transaction with another 1508.440 What method do I use to 1508.745 How is fact-finding conducted? person at the next lower tier? communicate those requirements to 1508.750 What does the suspending official 1508.305 May I enter into a covered participants? consider in deciding whether to continue transaction with an excluded or 1508.445 What action may I take if a or terminate my suspension? disqualified person? primary tier participant knowingly does 1508.755 When will I know whether the 1508.310 What must I do if a Federal business with an excluded or suspension is continued or terminated? agency excludes a person with whom I disqualified person? 1508.760 How long may my suspension am already doing business in a covered 1508.450 What action may I take if a last? transaction? primary tier participant fails to disclose 1508.315 May I use the services of an the information required under Subpart H—Debarment excluded person as a principal under a § 1508.335? 1508.800 What are the causes for covered transaction? 1508.455 What may I do if a lower tier debarment? 1508.320 Must I verify that principals of my participant fails to disclose the 1508.805 What notice does the debarring covered transactions are eligible to information required under § 1508.355 to official give me if I am proposed for participate? the next higher tier? debarment?

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1508.810 When does a debarment take ■ a. ‘‘[Agency noun]’’ is removed and Subpart E—Violations of This Part and effect? ‘‘African Development Foundation’’ is Consequences 1508.815 How may I contest a proposed added in its place wherever it occurs. 1509.500 How are violations of this part debarment? ■ b. ‘‘[Agency adjective]’’ is removed and determined for recipients other than 1508.820 How much time do I have to individuals? contest a proposed debarment? ‘‘ADF’’ is added in its place wherever it 1509.505 How are violations of this part 1508.825 What information must I provide occurs. determined for recipients who are to the debarring official if I contest a ■ c. ‘‘[Agency head or designee]’’ is individuals? proposed debarment? removed and ‘‘ADF President’’ is added 1509.510 What actions will the Federal 1508.830 Under what conditions do I get an in its place wherever it occurs. Government take against a recipient additional opportunity to challenge the determined to have violated this part? facts on which the proposed debarment ■ 3. Section 1508.440 is added to read as 1509.515 Are there any exceptions to those is based? follows: actions? 1508.835 Are debarment proceedings formal? § 1508.440 What method do I use to Subpart F—Definitions 1508.840 How is fact-finding conducted? communicate those requirements to 1509.605 Award. 1508.845 What does the debarring official participants? 1509.610 Controlled substance. consider in deciding whether to debar 1509.615 Conviction. me? To communicate the requirements to 1509.620 Cooperative agreement. 1508.850 What is the standard of proof in participants, you must include a term or 1509.625 Criminal drug statute. a debarment action? condition in the transaction requiring 1509.630 Debarment. 1508.855 Who has the burden of proof in a the participant’s compliance with 1509.635 Drug-free workplace. debarment action? subpart C of this part, and requiring 1509.640 Employee. 1508.860 What factors may influence the them to include a similar term or 1509.645 Federal agency or agency. debarring official’s decision? condition in lower tier covered 1509.650 Grant. 1509.655 Individual. 1508.865 How long may my debarment transactions. last? 1509.660 Recipient. 1508.870 When do I know if the debarring ■ 4. Part 1509 is added to read as set forth 1509.665 State. official debars me? in instruction 2 at the end of the common 1509.670 Suspension. 1508.875 May I ask the debarring official to preamble. Authority: 41 U.S.C. 701 et seq. reconsider a decision to debar me? 1508.880 What factors may influence the PART 1509—GOVERNMENTWIDE ■ 5. Part 1509 is further amended as set debarring official during REQUIREMENTS FOR DRUG-FREE forth below. reconsideration? ■ WORKPLACE (FINANCIAL a. ‘‘[Agency noun]’’ is removed and 1508.885 May the debarring official extend ASSISTANCE) ‘‘African Development Foundation’’ is a debarment? added in its place wherever it occurs. Subpart I—Definitions Subpart A—Purpose and Coverage ■ b. ‘‘[Agency adjective]’’ is removed and 1508.900 Adequate evidence. Sec. ‘‘ADF’’ is added in its place wherever it 1508.905 Affiliate. 1509.100 What does this part do? occurs. ■ 1508.910 Agency. 1509.105 Does this part apply to me? c. ‘‘[Agency head or designee]’’ is 1508.915 Agent or representative. 1509.110 Are any of my Federal assistance removed and ‘‘ADF President’’ is added 1508.920 Civil judgment. awards exempt from this part? in its place wherever it occurs. 1508.925 Conviction. 1509.115 Does this part affect the Federal ■ d. ‘‘[Agency head]’’ is removed and 1508.930 Debarment. contracts that I receive? ‘‘ADF President’’ is added in its place 1508.935 Debarring official. wherever it occurs. Subpart B—Requirements for Recipients 1508.940 Disqualified. ■ Other Than Individuals 6. Section 1509.310(c) is further 1508.945 Excluded or exclusion. amended by removing ‘‘[CFR citation for 1508.950 Excluded Parties List System. 1509.200 What must I do to comply with the Federal Agency’s regulations 1508.955 Indictment. this part? 1508.960 Ineligible or ineligibility. 1509.205 What must I include in my drug- implementing Executive Order 12549 1508.965 Legal proceedings. free workplace statement? and Executive Order 12689]’’ and adding 1508.970 Nonprocurement transaction. 1509.210 To whom must I distribute my ‘‘22 CFR Part 1508’’ in its place. 1508.975 Notice. drug-free workplace statement? ■ 7. Section 1509.605 is further amended 1508.980 Participant. 1509.215 What must I include in my drug- by adding a paragraph (c) to read as 1508.985 Person. free awareness program? follows: 1508.990 Preponderance of the evidence. 1509.220 By when must I publish my drug- 1508.995 Principal. free workplace statement and establish § 1509.605 Award. 1508.1000 Respondent. my drug-free awareness program? * * * * * 1508.1005 State. 1509.225 What actions must I take (c) Notwithstanding paragraph (a)(2) 1508.1010 Suspending official. concerning employees who are convicted of this section, this paragraph is not 1508.1015 Suspension. of drug violations in the workplace? applicable for ADF. 1508.1020 Voluntary exclusion or 1509.230 How and when must I identify lllllllllllllllllll voluntarily excluded. workplaces? Subpart J—[Reserved] Subpart C—Requirements for Recipients DEPARTMENT OF HOUSING AND Appendix to Part 1508—Covered Who Are Individuals URBAN DEVELOPMENT Transactions 1509.300 What must I do to comply with 24 CFR Parts 21 and 24 this part if I am an individual recipient? Authority: Sec. 2455, Pub.L. 103–355, 108 1509.301 [Reserved] [Docket No. FR–4692–F–01] Stat. 3327; E.O. 12549, 3CFR, 1986 Comp., RIN 2501–AC81 p.89; E.O. 12689, 3CFR, 1989 Comp., p. 235. Subpart D—Responsibilities of ADF Awarding Officials FOR FURTHER INFORMATION CONTACT: ■ 2. Part 1508 is further amended as set 1509.400 What are my responsibilities as an Dane Narode, Assistant General forth below: ADF awarding official? Counsel, Office of Program

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Enforcement, Administrative suspensions. The proposed rule advised The Department, based upon another Proceedings Division, Department of that HUD would retain its definitions of internal comment, has made a minor Housing and Urban Development, 1250 ‘‘Hearing Officer’’ at § 24.947 and modification to its procedures for when Maryland Avenue, Suite 200, ‘‘Ultimate Beneficiary’’ at § 24.1017 as a suspension or proposed debarment Washington, DC 20024–0500; telephone found in the current common rule. The has been issued subsequent to the (202) 708–2350 (this is not a toll-free proposed rule made clear in § 24.750 issuance of a limited denial of number); e-mail: and § 24.845 that all fact-finding participation. Under this modification, [email protected]. Hearing-or referrals for HUD suspensions and the hearing officer’s jurisdiction over a speech-impaired individuals may access debarments will be made to hearing limited denial of participation will not the voice telephone number listed above officers. be immediately divested upon by calling the toll-free Federal Subpart J of part 24, which addressed consolidation of the matter with a Information Relay Service during limited denial of participation, was suspension or a proposed debarment. working hours at 1–800–877–8339. revised stylistically so that the rule Upon consolidation, the suspending or conforms to the question and answer debarring official must determine SUPPLEMENTARY INFORMATION: format of the common rule. HUD also whether material facts are in dispute The January 23, 2002, Common Rule removed the term ‘‘contractor’’ from within 90 days of consolidation unless § 24.1105 because the common rule good cause exists to extend this time. In On January 23, 2002 (67 FR 3266), a deleted the definition of the term. The the event material facts are in dispute, governmentwide common rule was revised definition of ‘‘participant’’ in the matters will be referred to the published that proposed substantive the proposed rule covered individuals original hearing officer for fact-finding. changes and amendments to the previously defined as ‘‘contractors’’ in The Department does not regard this as governmentwide nonprocurement the current rule. Section 24.1145, which a material modification. common rule for debarment and addresses imputing the conduct of one Comment: The commenter requested suspension and the governmentwide person to another in a limited denial of that the Department clarify the extent to rule implementing the Drug-Free participation, was revised to be which the drug-free workplace Workplace Act of 1988. The publication consistent with the provisions of requirements apply to the residences of is available at http:// _ § 24.630. telecommuters and other remote www.access.gpo.gov/su docs. Finally, HUD’s rule proposed to enact workers. HUD’s July 22, 2002, Proposed Rule the requirements for maintaining a drug- HUD Response: The Department free workplace as a new part 21, believes this issue was adequately HUD published a proposed rule on codifying HUD’s drug-free workplace addressed in the final governmentwide July 22, 2002 (67 FR 48006), to adopt requirements. rule of May 25, 1990 (55 FR 21681), in the changes and amendments made in The public comment period on the response to comments regarding the common rule. Additionally, HUD proposed rule closed on September 20, regulations promulgated pursuant to the proposed to adopt specific requirements 2002. One commenter submitted Drug-Free Workplace Act of 1988. (See that, along with the provisions in the comments on the proposed rule. especially, 55 FR 21683.) common rule, would best serve HUD’s Comment: The commenter also asked This Final Rule programs. HUD’s proposed rule added a whether the proposed rule intended that paragraph regarding employment This final rule follows publication of collective bargaining agreements be contracts to the definition of ‘‘covered the July 22, 2002, proposed rule and included in the term ‘‘employment transaction’’ found at § 24.200. HUD’s takes into consideration the one public contracts.’’ The commenter wrote that addition made clear that each payment comment received. The public the rule should clarify that the term under an employment contract comment, along with the Department’s ‘‘employment contracts’’ does not constitutes a new ‘‘covered transaction.’’ responses to the comment, is treated include a collective bargaining HUD also enhanced the exclusion below. However, the Department was agreement between an employer and its review that takes place in § 24.300. not persuaded to change the rule. employees’ unions. According to the Under HUD’s rule, a participant must Accordingly, this final rule adopts the commenter, the exclusion of collective ensure it is not entering into a covered July 22, 2002, proposed rule without bargaining agreements as employment transaction with an excluded or change except for the minor contracts is important because, if a disqualified person. In reviewing for an modifications identified below principal of a union were excluded, the exclusion, however, HUD’s rule, at necessary to keep the Department’s rule state would not be permitted to § 24.300(d), exempts participants from consistent with the common rule and ‘‘contracts’’ with that union. The checking on the exemption status of existing practice. commenter further wrote that if their principals while making salary In response to an internal comment, ‘‘employment contracts’’ mean a payments pursuant to an employment the Department has replaced the consulting contract, it is a redundancy contract. Additionally, § 24.440 formulation used to refer to the ‘‘Agency because consultant contracts are already proposed to use terms or conditions to head or designee’’ wherever used in the covered in § 24.200. the award transaction as a means to common rule. The proposed rule HUD Response: The Department’s enforce exclusions under HUD originally referred to the ‘‘HUD proposal does not enlarge the scope of transactions rather than the use of Debarring Official or designee.’’ That employment contracts (i.e., those that written certifications. formulation has been replaced with the are covered transactions, e.g., a Housing HUD proposed rule provided ‘‘Secretary or designee’’ in the final rule. Authority’s employment of a Public examples for the debarment and This text change does not modify the Housing Executive Director using funds suspension common rule definition of meaning of the proposed rule as all provided pursuant to a Consolidated ‘‘principal’’ found at § 24.995. The debarring authority within the Agency Annual Contributions Contract) to expansion contains minor modifications stems from the Secretary’s delegable include a collective bargaining consistent with HUD’s present practice authority. Similarly, the textual agreement. The proposal merely regarding the definition of ‘‘principal’’ modification is consistent with current reinforces the concept that each for the purpose of debarments and practice in the Department. payment made under an employment

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contract that is a covered transaction provisions found in § 24.1145 of the Subpart D—Responsibilities of HUD will constitute an independent covered proposed rule. The minor modifications Awarding Officials transaction. to § 24.1145 were made to ensure 21.400 What are my responsibilities as a Comment: The commenter argued that consistency with the common rule. HUD awarding official? if each salary payment is made a Likewise, the Department has adopted Subpart E—Violations of This Part and covered transaction, employers would EPLS when referring to the list of Consequences be prohibited from making future salary excluded parties. payments to employees who happened 21.500 How are violations of this part List of Subjects determined for recipients other than to have been excluded since the last individuals? salary payment. In the commenter’s 24 CFR Part 21 21.505 How are violations of this part view, because an employee’s salary is determined for recipients who are paid after the work is performed, the Administrative practice and individuals? rule would prohibit paying the procedure, Grant programs, Drug-free 21.510 What actions will the federal employee for work he/she has already workplace, Reporting and recordkeeping government take against a recipient performed, notwithstanding that the requirements. determined to have violated this part? exclusion may be unrelated to the 21.515 Are there any exceptions to those employee’s present activity. 24 CFR Part 24 actions? HUD Response: The Department has Administrative practice and Subpart F—Definitions elected to retain the provision as procedure, Government contracts, Grant 21.605 Award. written. Payment for work completed programs, Loan programs, Technical 21.610 Controlled substance. prior to the current activity of the assistance, Reporting and recordkeeping 21.615 Conviction. employee does not raise a compliance requirements. 21.620 Cooperative agreement. concern. The provision, as written, 21.625 Criminal drug statute. allows payment for the work previously Dated: September 3, 2003. 21.630 Debarment. performed (work completed before the Mel Martinez, 21.635 Drug-free workplace. 21.640 Employee. debarment), but would not allow a Secretary. continuation of payments subsequent to 21.645 Federal agency or agency. ■ For the reasons stated in the common 21.650 Grant. the imposition of a debarment or 21.655 Individual. suspension absent an exception preamble, the Department of Housing and Urban Development amends 24 CFR 21.660 Recipient. specified in the Suspension and 21.665 State. Debarment regulations. Treating each Subtitle A, as follows: 21.670 Suspension. compensation payment as a separate ■ 1. A new part 21 is added to read as Authority: 41 U.S.C. 701; 42 U.S.C. covered transaction ensures that public follows: 3535(d). funds are adequately protected (which is one of the objectives of the PART 21—GOVERNMENTWIDE ■ 2. Part 21 is further amended as Suspension and Debarment regulations), REQUIREMENTS FOR DRUG-FREE while not appreciably increasing the WORKPLACE (GRANTS) follows: administrative burden on the regulated ■ a. ‘‘[Agency noun]’’ is removed and entity. (See, for example, HUD’s Subpart A—Purpose and Coverage ‘‘Department of Housing and Urban proposed language at 24 CFR 300(d), Sec. Development’’ is added in its place exempting salary payments from a 21.100 What does this part do? wherever it occurs. requirement to check the Excluded 21.105 Does this part apply to me? ■ b. ‘‘[Agency adjective]’’ is removed and Parties List System (EPLS).) 21.110 Are any of my federal assistance ‘‘HUD’’ is added in its place wherever it Comment: The commenter suggested awards exempt from this part? occurs. that the Department strike its detailed 21.115 Does this part affect the federal ■ c. ‘‘[Agency head or designee]’’ is list of principals in § 24.995(c) contracts that I receive? removed and ‘‘Secretary or designee’’ is accompanying the definition of Subpart B—Requirements for Recipients added in its place wherever it occurs. ‘‘Principal.’’ The commenter wrote that Other Than Individuals ■ d. ‘‘[Agency head]’’ is removed and the list provided invites readers to make 21.200 What must I do to comply with this ‘‘Secretary’’ is added in its place a mechanical comparison of individuals part? wherever it occurs. they (i.e., the readers) may be involved 21.205 What must I include in my drug-free ■ 3. Part 24 is revised to read as set forth with to the principals on the list, as workplace statement? opposed to an evaluation of whether the 21.210 To whom must I distribute my drug- in instruction 1 at the end of the common principals have influence or critical free workplace statement? preamble. 21.215 What must I include in my drug-free control over the covered transaction. PART 24—GOVERNMENTWIDE HUD Response: The Department has awareness program? DEBARMENT AND SUSPENSION elected to retain the detailed list of 21.220 By when must I publish my drug- (NONPROCUREMENT) principals. In the Department’s view, free workplace statement and establish the addition of paragraph (c) to the my drug-free awareness program? Sec. definition of the term ‘‘principal’’ in 21.225 What actions must I take concerning 24.25 How is this part organized? § 24.995 does not, in any way, expand employees who are convicted of drug 24.50 How is this part written? or detract from the definition stated in violations in the workplace? 24.75 Do terms in this part have special 21.230 How and when must I identify the common rule on Suspensions and meanings? workplaces? Debarments. Rather, the section is Subpart A—General Subpart C—Requirements for Recipients intended as a convenience to HUD 24.100 What does this part do? Who Are Individuals program users to facilitate their 24.105 Does this part apply to me? understanding of the rule. 21.300 What must I do to comply with this 24.110 What is the purpose of the The Department has tracked changes part if I am an individual recipient? nonprocurement debarment and to § 24.630 for the imputation 21.301 [Reserved] suspension system?

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24.115 How does an exclusion restrict a 24.345 What happens if I fail to disclose the Development use in suspension and person’s involvement in covered information required under § 24.335? debarment actions? transactions? 24.350 What must I do if I learn of the 24.615 How does the Department of 24.120 May we grant an exception to let an information required under § 24.335 after Housing and Urban Development notify excluded person participate in a covered entering into a covered transaction with a person of a suspension or debarment transaction? the Department of Housing and Urban action? 24.125 Does an exclusion under the Development? 24.620 Do federal agencies coordinate nonprocurement system affect a person’s suspension and debarment actions? Disclosing Information—Lower Tier eligibility for federal procurement 24.625 What is the scope of a suspension or contracts? Participants debarment action? 24.130 Does exclusion under the federal 24.355 What information must I provide to 24.630 May the Department of Housing and procurement system affect a person’s a higher tier participant before entering Urban Development impute the conduct eligibility to participate in into a covered transaction with that of one person to another? nonprocurement transactions? participant? 24.635 May the Department of Housing and 24.135 May the Department of Housing and 24.360 What happens if I fail to disclose the Urban Development settle a debarment Urban Development exclude a person information required under § 24.355? or suspension action? who is not currently participating in a 24.365 What must I do if I learn of 24.640 May a settlement include a nonprocurement transaction? information required under § 24.355 after voluntary exclusion? 24.140 How do I know if a person is entering into a covered transaction with 24.645 Do other federal agencies know if excluded? a higher tier participant? the Department of Housing and Urban 24.145 Does this part address persons who Development agrees to a voluntary Subpart D—Responsibilities of HUD exclusion? are disqualified, as well as those who are Officials Regarding Transactions excluded from nonprocurement Subpart G—Suspension transactions? 24.400 May I enter into a transaction with an excluded or disqualified person? 24.700 When may the suspending official Subpart B—Covered Transactions 24.405 May I enter into a covered issue a suspension? 24.200 What is a covered transaction? transaction with a participant if a 24.705 What does the suspending official 24.205 Why is it important to know if a principal of the transaction is excluded? consider in issuing a suspension? particular transaction is a covered 24.410 May I approve a participant’s use of 24.710 When does a suspension take effect? transaction? the services of an excluded person? 24.715 What notice does the suspending 24.210 Which nonprocurement transactions 24.415 What must I do if a federal agency official give me if I am suspended? are covered transactions? excludes the participant or a principal 24.720 How may I contest a suspension? 24.215 Which nonprocurement transactions after I enter into a covered transaction? 24.725 How much time do I have to contest are not covered transactions? 24.420 May I approve a transaction with an a suspension? 24.220 Are any procurement contracts excluded or disqualified person at a 24.730 What information must I provide to included as covered transactions? lower tier? the suspending official if I contest a 24.225 How do I know if a transaction in 24.425 When do I check to see if a person suspension? which I may participate is a covered is excluded or disqualified? 24.735 Under what conditions do I get an transaction? 24.430 How do I check to see if a person is additional opportunity to challenge the excluded or disqualified? facts on which the suspension is based? Subpart C—Responsibilities of Participants 24.435 What must I require of a primary tier 24.740 Are suspension proceedings formal? Regarding Transactions participant? 24.745 How is fact-finding conducted? Doing Business With Other Persons 24.440 What method do I use to 24.750 What does the suspending official communicate those requirements to consider in deciding whether to continue 24.300 What must I do before I enter into participants? or terminate my suspension? a covered transaction with another 24.445 What action may I take if a primary 24.755 When will I know whether the person at the next lower tier? tier participant knowingly does business suspension is continued or terminated? 24.305 May I enter into a covered with an excluded or disqualified person? 24.760 How long may my suspension last? transaction with an excluded or 24.450 What action may I take if a primary Subpart H—Debarment disqualified person? tier participant fails to disclose the 24.310 What must I do if a federal agency information required under § 24.335? 24.800 What are the causes for debarment? excludes a person with whom I am 24.455 What may I do if a lower tier 24.805 What notice does the debarring already doing business in a covered participant fails to disclose the official give me if I am proposed for transaction? information required under § 24.355 to debarment? 24.315 May I use the services of an the next higher tier? 24.810 When does a debarment take effect? excluded person as a principal under a 24.815 How may I contest a proposed covered transaction? Subpart E—Excluded Parties List System debarment? 24.320 Must I verify that principals of my 24.500 What is the purpose of the Excluded 24.820 How much time do I have to contest covered transactions are eligible to Parties List System (EPLS)? a proposed debarment? participate? 24.505 Who uses the EPLS? 24.825 What information must I provide to 24.325 What happens if I do business with 24.510 Who maintains the EPLS? the debarring official if I contest a an excluded person in a covered 24.515 What specific information is in the proposed debarment? transaction? EPLS? 24.830 Under what conditions do I get an 24.330 What requirements must I pass 24.520 Who places the information into the additional opportunity to challenge the down to persons at lower tiers with EPLS? facts on which the proposed debarment whom I intend to do business? 24.525 Whom do I ask if I have questions is based? about a person in the EPLS? 24.835 Are debarment proceedings formal? Disclosing Information—Primary Tier 24.530 Where can I find the EPLS? 24.840 How is fact-finding conducted? Participants 24.845 What does the debarring official 24.335 What information must I provide Subpart F—General Principles Relating to consider in deciding whether to debar before entering into a covered Suspension and Debarment Actions me? transaction with the Department of 24.600 How do suspension and debarment 24.850 What is the standard of proof in a Housing and Urban Development? actions start? debarment action? 24.340 If I disclose unfavorable information 24.605 How does suspension differ from 24.855 Who has the burden of proof in a required under § 24.335, will I be debarment? debarment action? prevented from entering into the 24.610 What procedures does the 24.860 What factors may influence the transaction? Department of Housing and Urban debarring official’s decision?

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24.865 How long may my debarment last? Appendix to Part 24—Covered Transactions § 24.750 What does the suspending official 24.870 When do I know if the debarring consider in deciding whether to continue or official debars me? Authority: 41 U.S.C. 701 et seq.; 42 U.S.C. terminate my suspension? 24.875 May I ask the debarring official to 3535(d); Sec. 2455, Pub. L. 103–355, 108 Stat. 3327 (31 U.S.C. 6101 note); E.O. 12549 (3 * * * * * reconsider a decision to debar me? (c) The official receiving the referral 24.880 What factors may influence the CFR, 1986 Comp., p. 189); E.O. 12689 (3 CFR, 1989 Comp., p. 235). for findings of fact regarding disputed debarring official during material facts must be a hearing officer reconsideration? ■ 4. Part 24 is further amended as set in all HUD suspensions. 24.885 May the debarring official extend a forth below. ■ debarment? 9. Section 24.845 is further amended ■ a. ‘‘[Agency noun]’’ is removed and by adding a paragraph (d) to read as Subpart I—Definitions ‘‘the Department of Housing and Urban follows: 24.900 Adequate evidence. Development’’ is added in its place § 24.845 What does the debarring official 24.905 Affiliate. wherever it occurs. 24.910 Agency. consider in deciding whether to debar me? ■ 24.915 Agent or representative. b. ‘‘[Agency adjective]’’ is removed and * * * * * 24.920 Civil judgment. ‘‘HUD’’ is added in its place wherever it (d) The official receiving the referral 24.925 Conviction. occurs. for findings of fact regarding disputed 24.930 Debarment. ■ c. ‘‘[Agency head or designee]’’ is material facts must be a hearing officer 24.935 Debarring official. removed and ‘‘Secretary or designee’’ is in all HUD debarments. 24.940 Disqualified. added in its place wherever it occurs. ■ 24.945 Excluded or exclusion. 10. Section 24.947 is added to read as 24.947 Hearing officer. ■ 5. Section 24.200 is further amended follows: 24.950 Excluded Parties List System. by adding a paragraph (c) to read as § 24.947 Hearing officer. 24.955 Indictment. follows: 24.960 Ineligible or ineligibility. Hearing officer means an 24.965 Legal Proceedings. § 24.200 What is a covered transaction? Administrative Law Judge or Board of 24.970 Nonprocurement transaction. * * * * * Contract Appeals Judge authorized by 24.975 Notice. HUD’s Secretary or by the Secretary’s (c) In the case of employment 24.980 Participant. designee, to conduct proceedings under 24.985 Person. contracts that are covered transactions, this part. 24.990 Preponderance of the evidence. each salary payment under the contract ■ is a separate covered transaction. 11. Section 24.995 is further amended 24.995 Principal. by adding a paragraph (c) to read as 24.1000 Respondent. ■ 6. Section 24.300 is further amended 24.1005 State. follows: by adding paragraphs (d) and (e) to read 24.1010 Suspending official. § 24.995 Principal. 24.1015 Suspension. as follows: * * * * * 24.1017 Ultimate beneficiaries. § 24.300 What must I do before I enter into 24.1020 Voluntary exclusion or voluntarily (c) A person who has a critical a covered transaction with another person influence on, or substantive control excluded. at the next lower tier? over, a covered transaction, whether or Subpart J—Limited Denial of Participation * * * * * not employed by the participant. 24.1100 What is a limited denial of (d) You, as a participant, are Persons who have a critical influence participation? responsible for determining whether on, or substantive control over, a 24.1105 Who may issue a limited denial of you are entering into a covered covered transaction may include, but participation? transaction with an excluded or are not limited to: 24.1110 When may a HUD official issue a disqualified person. You may decide the (1) Loan officers; limited denial of participation? (2) Staff appraisers and inspectors; 24.1115 When does a limited denial of method by which you do so. You may, but are not required to, check the EPLS. (3) Underwriters; participation take effect? (4) Bonding companies; 24.1120 How long may a limited denial of (e) In the case of an employment (5) Borrowers under programs participation last? contract, HUD does not require 24.1125 How does a limited denial of financed by HUD or with loans employers to check the EPLS prior to guaranteed, insured, or subsidized participation start? making salary payments pursuant to 24.1130 How may I contest my limited through HUD programs; that contract. denial of participation? (6) Purchasers of properties with 24.1135 Do federal agencies coordinate ■ 7. Section 24.440 is added to read as HUD-insured or Secretary-held limited denial of participation actions? follows: mortgages; 24.1140 What is the scope of a limited (7) Recipients under HUD assistance denial of participation? § 24.440 What method do I use to agreements; 24.1145 May HUD impute the conduct of communicate those requirements to (8) Ultimate beneficiaries of HUD one person to another in a limited denial participants? programs; of participation? To communicate the requirements to (9) Fee appraisers and inspectors; 24.1150 What is the effect of a suspension participants, you must include a term or (10) Real estate agents and brokers; or debarment on a limited denial of (11) Management and marketing participation? condition in the transaction requiring the participants’ compliance with agents; 24.1155 What is the effect of a limited (12) Accountants, consultants, subpart C of this part and requiring denial of participation on a suspension investment bankers, architects, or a debarment? them to include a similar term or engineers, and attorneys who are in a 24.1160 May a limited denial of condition in lower tier covered business relationship with participants participation be terminated before the transactions. term of the limited denial of in connection with a covered participation expires? ■ 8. Section 24.750 is further amended transaction under a HUD program; 24.1165 How is a limited denial of by adding a paragraph (c) to read as (13) Contractors involved in the participation reported? follows: construction or rehabilitation of

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properties financed by HUD, with HUD (6) Deficiencies in ongoing § 24.1125 How does a limited denial of insured loans, or acquired properties, construction projects; participation start? including properties held by HUD as (7) Falsely certifying in connection A limited denial of participation is mortgagee-in-possession; with any HUD program, whether or not made effective by providing the person, (14) Closing agents; the certification was made directly to and any specifically named affiliate, (15) Turnkey developers of projects HUD; with notice: financed by or with financing insured (a) That the limited denial of by HUD; (8) Commission of an offense listed in participation is being imposed; (16) Title companies; § 24.800; (b) Of the cause(s) under § 24.1110 for (17) Escrow agents; (9) Violation of any law, regulation, or the sanction; (18) Project owners; procedure relating to the application for (c) Of the potential effect of the (19) Administrators of hospitals, financial assistance, insurance, or sanction, including the length of the nursing homes, and projects for the guarantee, or to the performance of sanction and the HUD program(s) and elderly financed or insured by HUD; obligations incurred pursuant to a grant geographic area affected by the sanction; and of financial assistance or pursuant to a (d) Of the right to request, in writing, (20) Developers, sellers or owners of conditional or final commitment to within 30 days of receipt of the notice, property financed with loans insured insure or guarantee; a conference under § 24.1130; and under title I or title II of the National (10) Making or procuring to be made (e) Of the right to contest the limited Housing Act. any false statement for the purpose of denial of participation under § 24.1130. ■ 12. Subpart J is added to Part 24 to read influencing in any way an action of the § 24.1130 How may I contest my limited as follows: Department; denial of participation? Subpart J—Limited Denial of (11) Imposition of a limited denial of (a) Within 30 days after receiving a Participation participation by any other HUD office; notice of limited denial of participation, or you may request a conference with the § 24.1100 What is a limited denial of (12) Debarment or suspension by official who issued such notice. The participation? another federal agency for any cause conference shall be held within 15 days A limited denial of participation substantially the same as provided in after the Department’s receipt of the excludes a specific person from § 24.800. request for a conference, unless you participating in a specific program, or waive this time limit. The official or (b) Filing of a criminal Indictment or programs, within a HUD field office’s designee who imposed the sanction Information shall constitute adequate geographic jurisdiction, for a specific shall preside. At the conference, you evidence for the purpose of limited period of time. A limited denial of may appear with a representative and denial of participation actions. The participation is normally issued by a may present all relevant information Indictment or Information need not be HUD field office, but may be issued by and materials to the official or designee. based on offenses against HUD. a Headquarters office. The decision to Within 20 days after the conference, or impose a limited denial of participation (c) Imposition of a limited denial of within 20 days after any agreed upon is discretionary and in the best interests participation by any other HUD office extension of time for submission of of the government. shall constitute adequate evidence for a additional materials, the official or concurrent limited denial of designee shall, in writing, advise you of § 24.1105 Who may issue a limited denial participation. Where such a concurrent of participation? the decision to terminate, modify, or limited denial of participation is affirm the limited denial of The Secretary designates HUD imposed, participation may be restricted participation. If all or a portion of the officials who are authorized to impose on the same basis without the need for remaining period of exclusion is a limited denial of participation, additional conference or further hearing. affirmed, the notice of affirmation shall affecting any participant and/or their (d) An affiliate or organizational advise you of the opportunity to contest affiliates, except FHA-approved element may be included in a limited the notice and request a hearing before mortgagees. denial of participation solely on the a Departmental Hearing Officer. You § 24.1110 When may a HUD official issue basis of its affiliation, and regardless of have 30 days after receipt of the notice a limited denial of participation? its knowledge of or participation in the of affirmation to request this hearing. If (a) An authorized HUD official may acts providing cause for the sanction. the official or designee does not issue a issue a limited denial of participation The burden of proving that a particular decision within the 20-day period, you against a person based upon adequate affiliate or organizational element is may contest the sanction before a evidence of any of the following causes: currently responsible and not controlled Departmental Hearing Officer. Again, (1) Approval of an applicant for by the primary sanctioned party (or by you have 30 days from the expiration of insurance would constitute an an entity that itself is controlled by the the 20-day period to request this unsatisfactory risk; primary sanctioned party) is on the hearing. If you request a hearing before (2) Irregularities in a person’s past affiliate or organizational element. the Departmental Hearing Officer, you performance in a HUD program; must submit your request to the (3) Failure of a person to maintain the § 24.1115 When does a limited denial of Debarment Docket Clerk, Department of participation take effect? prerequisites of eligibility to participate Housing and Urban Development, 451 in a HUD program; A limited denial of participation is Seventh Street, SW, B–133 Portals 200, (4) Failure to honor contractual effective immediately upon issuance of Washington DC 20410–0500. obligations or to proceed in accordance the notice. (b) You may skip the conference with with contract specifications or HUD the official and you may request a regulations; § 24.1120 How long may a limited denial of hearing before a Departmental Hearing participation last? (5) Failure to satisfy, upon Officer. This must also be done within completion, the requirements of an A limited denial of participation may 30 days after receiving a notice of assistance agreement or contract; remain effective up to 12 months. limited denial of participation. If you

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opt to have a hearing before a § 24.1145 May HUD impute the conduct of all proceedings in the limited denial of Departmental Hearing Officer, you must one person to another in a limited denial of participation, including discovery, are submit your request to the Debarment participation? automatically stayed. Docket Clerk, Department of Housing For purposes of determining a limited (b) If you do not contest the proposed and Urban Development, 451 Seventh denial of participation, HUD may debarment pursuant to § 24.815, or the Street, SW, B–133 Portals 200, impute conduct as follows: suspension pursuant to § 24.720, the Washington DC 20410–0500. The (a) Conduct imputed from an final imposition of the debarment or hearing before the Departmental Hearing individual to an organization. HUD may suspension shall also constitute a final Officer is more formal than the impute the fraudulent, criminal, or decision with respect to the limited conference before the sanctioning other improper conduct of any officer, denial of participation to the extent that official described above. The hearing director, shareholder, partner, the debarment or suspension is based on before the Departmental Hearing Officer employee, or other individual the same transaction(s) or conduct as will be conducted in accordance with associated with an organization, to that the limited denial of participation. 24 CFR part 26, subpart A. The organization when the improper (c) If you contest the proposed Departmental Hearing Officer will issue conduct occurred in connection with debarment pursuant to § 24.815, or the findings of fact and make a the individual’s performance of duties suspension pursuant to § 24.720, then: recommended decision. The sanctioning for or on behalf of that organization, or (1) Those parts of the limited denial official will then make a final decision with the organization’s knowledge, of participation and the debarment or as promptly as possible after the approval, or acquiescence. The suspension based on the same Departmental Hearing Officer organization’s acceptance of the benefits transaction(s) or conduct, as determined recommended decision is issued. The derived from the conduct is evidence of by the debarring or suspending official, sanctioning official may reject the knowledge, approval, or acquiescence. shall be immediately consolidated recommended decision or any findings (b) Conduct imputed from an before the debarring or suspending of fact, only after specifically organization to an individual or official; determining the decision or any of the between individuals. HUD may impute (2) Proceedings under the facts to be arbitrary or capricious or the fraudulent, criminal, or other consolidated portions of the limited clearly erroneous. improper conduct of any organization to denial of participation shall be stayed an individual, or from one individual to before the hearing officer until the § 24.1135 Do federal agencies coordinate another individual, if the individual to limited denial of participation actions? suspending or debarring official makes whom the improper conduct is imputed a determination as to whether the Federal agencies do not coordinate either participated in, had knowledge consolidated matters should be referred limited denial of participation actions. of, or reason to know of the improper to a hearing officer. Such a As stated in § 24.1100, a limited denial conduct. determination must be made within 90 of participation is a HUD-specific action (c) Conduct imputed from one days of the date of the issuance of the and applies only to HUD activities. organization to another organization. suspension or proposed debarment, HUD may impute the fraudulent, § 24.1140 What is the scope of a limited unless the suspending/debarring official criminal, or other improper conduct of denial of participation? extends the period for good cause. one organization to another organization (i) If the suspending or debarring The scope of a limited denial of when the improper conduct occurred in participation is as follows: official determines that there is a connection with a partnership, joint genuine dispute as to material facts (a) A limited denial of participation venture, joint application, association, generally extends only to participation regarding the consolidated matter, the or similar arrangement, or when the entire consolidated matter will be in the program under which the cause organization to whom the improper arose. A limited denial of participation referred to the hearing officer hearing conduct is imputed has the power to the limited denial of participation, for may, at the discretion of the authorized direct, manage, control, or influence the official, extend to other programs, additional proceedings pursuant to 24 activities of the organization responsible CFR 24.750 or § 24.845. initiatives, or functions within the for the improper conduct. Acceptance of (ii) If the suspending or debarring jurisdiction of an Assistant Secretary. the benefits derived from the conduct is official determines that there is no The authorized official, however, may evidence of knowledge, approval, or dispute as to material facts regarding the determine that the sanction shall apply acquiescence. to all programs throughout HUD where consolidated matter, jurisdiction of the the sanction is based on an indictment § 24.1150 What is the effect of a hearing officer under 24 CFR part 24, or conviction. suspension or debarment on a limited subpart J, to hear those parts of the (b) For purposes of this subpart, denial of participation? limited denial of participation based on participation includes receipt of any If you have submitted a request for a the same transaction[s] or conduct as benefit or financial assistance through hearing pursuant to § 24.1130 of this the debarment or suspension, as grants or contractual arrangements; section, and you also receive, pursuant determined by the debarring or benefits or assistance in the form of loan to subpart G or H of this part, a notice suspending official, will be transferred guarantees or insurance; and awards of of proposed debarment or suspension to the debarring or suspending official, procurement contracts. that is based on the same transaction(s) and the hearing officer responsible for (c) The sanction may be imposed for or conduct as the limited denial of hearing the limited denial of a period not to exceed 12 months, and participation, as determined by the participation shall transfer the shall be effective within the geographic debarring or suspending official, the administrative record to the debarring or jurisdiction of the office imposing it, following rules shall apply: suspending official. unless the sanction is imposed by an (a) During the 30-day period after you (3) The suspending or debarring Assistant Secretary or Deputy Assistant receive a proposed debarment or official shall hear the entire Secretary in which case the sanction suspension, during which you may elect consolidated case under the procedures may be imposed on either a nationwide to contest the debarment under § 24.815, governing suspensions and debarments, or a more restricted basis. or the suspension pursuant to § 24.720, and shall issue a final decision as to

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both the limited denial of participation activities from waste, fraud, abuse and eligibility for Federal procurement and the suspension or debarment. poor performance, similar to the system contracts? used for Federal procurement activities 67.130 Does an exclusion under the Federal § 24.1155 What is the effect of a limited under Subpart 9.4 of the Federal procurement system affect a person’s denial of participation on a suspension or Acquisition Regulations (FAR). eligibility to participate in non- a debarment? procurement transactions? Finally, the Department’s proposed 67.135 May the Department of Justice The imposition of a limited denial of rule on drug-free workplace participation does not affect the right of exclude a person who is not currently requirements would be separated from participating in a non-procurement the Department to suspend or debar any the proposed rule on debarment and person under this part. transaction? suspension. The drug-free workplace 67.140 How do I know if a person is § 24.1160 May a limited denial of requirements are currently located in excluded? participation be terminated before the term subpart F of the Debarment and 67.145 Does this part address persons who of the limited denial of participation Suspension Non-procurement Common are disqualified, as well as those who are expires? Rule. Moving those requirements to a excluded from non-procurement If the cause for the limited denial of separate part would allow them to transactions? participation is resolved before the appear in a more appropriate location Subpart B—Covered Transactions expiration of the 12-month period, the nearer other requirements used 67.200 What is a covered transaction? official who imposed the sanction may predominantly by award officials. The 67.205 Why is it important to know if a terminate it. requirements for maintaining a drug-free particular transaction is a covered workplace thus would be relocated from transaction? § 24.1165 How is a limited denial of 28 CFR part 67 to 28 CFR part 83, and 67.210 Which non-procurement participation reported? are restated in plain language format. transactions are covered transactions? When a limited denial of participation 67.215 Which non-procurement has been made final, or the period for List of Subjects transactions are not covered transactions? requesting a conference pursuant to 28 CFR Part 67 § 24.1130 has expired without receipt of 67.220 Are any procurement contracts such a request, the official imposing the Administrative practice and included as covered transactions? 67.225 How do I know if a transaction in limited denial of participation shall procedure, Government contracts, Grant programs, Loan programs, Reporting which I may participate is a covered notify the Director of the Compliance transaction? Division in the Departmental and recordkeeping requirements, Enforcement Center of the scope of the Technical assistance, Drug abuse. Subpart C—Responsibilities of Participants Regarding Transactions limited denial of participation. 28 CFR Part 83 lllllllllllllllllll Administrative practice and Doing Business With Other Persons 67.300 What must I do before I enter into DEPARTMENT OF JUSTICE procedure, Drug abuse, Grant programs, Reporting and recordkeeping a covered transaction with another 28 CFR Parts 67 and 83 requirements. person at the next lower tier? 67.305 May I enter into a covered [OJP(OJP)–1306] Dated: October 16, 2003. transaction with an excluded or RIN 1121—AA57 John Ashcroft, disqualified person? Attorney General. 67.310 What must I do if a Federal agency ADDRESSES: Please address all excludes a person with whom I am ■ comments regarding this interim final For the reasons set forth in the already doing business in a covered rule to Linda Fallowfield, Attorney preamble, 28 CFR chapter I is amended transaction? Advisor, Office of the General Counsel, as follows: 67.315 May I use the services of an Office of Justice Programs, Department ■ 1. Part 67 is revised to read as set forth excluded person as a principal under a of Justice, 810 7th Street NW., in instruction 1 at the end of the common covered transaction? Washington, DC 20531, (202) 305–2534, preamble. 67.320 Must I verify that principals of my e-mail:[email protected]. covered transactions are eligible to PART 67—GOVERNMENT–WIDE participate? FOR FURTHER INFORMATION CONTACT: DEBARMENT AND SUSPENSION 67.325 What happens if I do business with Linda Fallowfield, Attorney Advisor, (NONPROCUREMENT) an excluded person in a covered Office of the General Counsel, Office of transaction? Justice Programs, Department of Justice, Sec. 67.330 What requirements must I pass 810 7th Street NW., Washington, DC 67.25 How is this part organized? down to persons at lower tiers with 20531, (202) 305–2534, e- 67.50 How is this part written? whom I intend to do business? mail:[email protected]. 67.75 Do terms in this part have special meanings? Disclosing Information—Primary Tier SUPPLEMENTARY INFORMATION: Participants The Department of Justice (the Subpart A—General 67.335 What information must I provide Department) is publishing this interim 67.100 What does this part do? before entering into a covered final rule in order to join the publication 67.105 Does this part apply to me? transaction with the Department of of the government-wide common rule 67.110 What is the purpose of the non- Justice? on debarment and suspension. The procurement debarment and suspension 67.340 If I disclose unfavorable information Department is adopting this common system? required under § 67.335, will I be rule in order to promote consistency 67.115 How does an exclusion restrict a prevented from participating in the within the federal government. The person’s involvement in covered transaction? transactions? 67.345 What happens if I fail to disclose the common rule provides uniform 67.120 May we grant an exception to let an information required under § 67.335? requirements for debarment and excluded person participate in a covered 67.350 What must I do if I learn of the suspension by Executive branch transaction? information required under § 67.335 after agencies to protect assistance, loans, 67.125 Does an exclusion under the non- entering into a covered transaction with benefits and other non-procurement procurement system affect a person’s the Department of Justice?

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Disclosing Information—Lower Tier 67.630 May the Department of Justice Subpart I—Definitions Participants impute the conduct of one person to 67.900 Adequate evidence. 67.355 What information must I provide to another? 67.905 Affiliate. a higher tier participant before entering 67.635 May the Department of Justice settle 67.910 Agency. into a covered transaction with that a debarment or suspension action? 67.915 Agent or representative. participant? 67.640 May a settlement include a 67.920 Civil judgment. 67.360 What happens if I fail to disclose the voluntary exclusion? 67.925 Conviction. information required under § 67.355? 67.645 Do other Federal agencies know if 67.930 Debarment. 67.365 What must I do if I learn of the Department of Justice agrees to a 67.935 Debarring official. information required under § 67.355 after voluntary exclusion? 67.940 Disqualified. entering into a covered transaction with 67.945 Excluded or exclusion. Subpart G—Suspension a higher tier participant? 67.950 Excluded Parties List System 67.700 When may the suspending official Subpart D—Responsibilities of Department 67.955 Indictment. issue a suspension? of Justice Officials Regarding Transactions 67.960 Ineligible or ineligibility. 67.705 What does the suspending official 67.965 Legal proceedings. 67.400 May I enter into a transaction with consider in issuing a suspension? 67.970 Non-procurement transaction. an excluded or disqualified person? 67.710 When does a suspension take effect? 67.975 Notice. 67.405 May I enter into a covered 67.715 What notice does the suspending 67.980 Participant. transaction with a participant if a official give me if I am suspended? 67.985 Person. principal of the transaction is excluded? 67.720 How may I contest a suspension? 67.990 Preponderance of the evidence. 67.410 May I approve a participant’s use of 67.725 How much time do I have to contest 67.995 Principal. the services of an excluded person? a suspension? 67.1000 Respondent. 67.415 What must I do if a Federal agency 67.730 What information must I provide to 67.1005 State. excludes the participant or a principal the suspending official if I contest a 67.1010 Suspending official. after I enter into a covered transaction? 67.1015 Suspension. 67.420 May I approve a transaction with an suspension? 67.1020 Voluntary exclusion or voluntarily excluded or disqualified person at a 67.735 Under what conditions do I get an excluded. lower tier? additional opportunity to challenge the 67.425 When do I check to see if a person facts on which the suspension is based? Subpart J—[Reserved] is excluded or disqualified? 67.740 Are suspension proceedings formal? 67.430 How do I check to see if a person is 67.745 How is fact-finding conducted? Authority: E.O. 12549; Omnibus Crime excluded or disqualified? 67.750 What does the suspending official Control and Safe Streets Act of 1968, 42 67.435 What must I require of a primary tier consider in deciding whether to continue U.S.C. 3711, et seq., Juvenile Justice and participant? or terminate my suspension? Delinquency Prevention Act of 1974, 42 67.440 What method do I use to 67.755 When will I know whether the U.S.C. 5601, et seq., Victims of Crime Act of communicate those requirements to suspension is continued or terminated? 1984, 42 U.S.C. 10601, et seq.; 18 U.S.C. participants? 67.760 How long may my suspension last? 4042; 18 U.S.C. 4351–4353; E.O. 12549 (3 67.445 What action may I take if a primary CFR, 1986 Comp. P.189). Subpart H—Debarment tier participant knowingly does business ■ with an excluded or disqualified person? 67.800 What are the causes for debarment? 2. Part 67 is further amended as set 67.450 What action may I take if a primary 67.805 What notice does the debarring forth below. ■ tier participant fails to disclose the official give me if I am proposed for a. ‘‘[Agency noun]’’ is removed and information required under § 67.335? debarment? ‘‘the Department of Justice’’ is added in 67.455 What may I do if a lower tier 67.810 When does a debarment take effect? its place wherever it occurs. participant fails to disclose the 67.815 How may I contest a proposed ■ b. ‘‘[Agency adjective]’’ is removed and information required under § 67.355 to debarment? ‘‘Department of Justice’’ is added in its the next higher tier? 67.820 How much time do I have to contest place wherever it occurs. Subpart E—Excluded Parties List System a proposed debarment? ■ c. ‘‘[Agency head or designee]’’ is 67.825 What information must I provide to removed and ‘‘Department of Justice 67.500 What is the purpose of the Excluded the debarring official if I contest a Parties List System (EPLS)? debarring official or designee’’ is added proposed debarment? wherever it occurs. 67.505 Who uses the EPLS? 67.830 Under what conditions do I get an ■ 67.510 Who maintains the EPLS? additional opportunity to challenge the 3. Section 67.440 is added to read as 67.515 What specific information is on the facts on which a proposed debarment is follows: EPLS? based? 67.520 Who places the information into the § 67.440 What method do I use to 67.835 Are debarment proceedings formal? EPLS? communicate those requirements to 67.840 How is fact-finding conducted? 67.525 Whom do I ask if I have questions participants? 67.845 What does the debarring official about a person in the EPLS? consider in deciding whether to debar To communicate the requirements, 67.530 Where can I find the EPLS? me? you must include a term or condition in Subpart F—General Principles Relating to 67.850 What is the standard of proof in a the transaction requiring the Suspension and Debarment Actions debarment action? participants’ compliance with subpart C 67.600 How do suspension and debarment 67.855 Who has the burden of proof in a of this part and requiring them to actions start? debarment action? include a similar term or condition in 67.605 How does suspension differ from 67.860 What factors may influence the lower-tier covered transactions. debarment? debarring official’s decision? ■ 67.865 How long may my debarment last? 4. Part 83 is added to read as set forth 67.610 What procedures does the in instruction 2 at the end of the common Department of Justice use in suspension 67.870 When do I know if the debarring and debarment actions? official debars me? preamble. 67.615 How does the Department of Justice 67.875 May I ask the debarring official to notify a person of a suspension and reconsider a decision to debar me? PART 83—GOVERNMENT-WIDE debarment action? 67.880 What factors may influence the REQUIREMENTS FOR DRUG-FREE 67.620 Do Federal agencies coordinate debarring official during WORKPLACE (GRANTS) suspension and debarment actions? reconsideration? 67.625 What is the scope of a suspension or 67.885 May the debarring official extend a Subpart A—Purpose and Coverage debarment action? debarment? Sec.

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83.100 What does this part do? ■ b. ‘‘[Agency adjective]’’ is removed and Subpart B—Requirements for Recipients 83.105 Does this part apply to me? ‘‘Department of Justice’’ is added in its Other Than Individuals 83.110 Are any of my Federal assistance place wherever it occurs. 94.200 What must I do to comply with this awards exempt from this part? ■ part? 83.115 Does this part affect the Federal c. ‘‘[Agency head or designee]’’ is removed and ‘‘Attorney General or 94.205 What must I include in my drug-free contracts that I receive? workplace statement? designee’’ is added wherever it occurs. 94.210 To whom must I distribute my drug- Subpart B—Requirements for Recipients ■ d. ‘‘[Agency head]’’ is removed and Other Than Individuals free workplace statement? ‘‘Attorney General’’ is added wherever it 94.215 What must I include in my drug-free 83.200 What must I do to comply with this occurs. awareness program? part? ■ 6. Section 83.510(c) is further amended 94.220 By when must I publish my drug- 83.205 What must I include in my drug-free by removing ‘‘[CFR citation for the free workplace statement and establish workplace statement? my drug-free awareness program? 83.210 To whom must I distribute my drug- Federal agency’s regulations 94.225 What actions must I take concerning free workplace statement? implementing Executive Order 12549 employees who are convicted of drug 83.215 What must I include in my drug-free and Executive Order 12689]’’ and adding violations in the workplace? awareness program? ‘‘28 CFR Part 67’’ in its place. 94.230 How and when must I identify 83.220 By when must I publish my drug- ■ 7. Section 83.605(a)(2) is further workplaces? free workplace statement and establish my drug-free awareness program? amended by removing ‘‘[Agency-specific Subpart C—Requirements for Recipients 83.225 What actions must I take concerning CFR citation]’’ and adding ‘‘28 CFR Part Who Are Individuals employees who are convicted of drug 70’’ in its place. 94.300 What must I do to comply with this violations in the workplace? lllllllllllllllllll part if I am an individual recipient? 83.230 How and when must I identify 94.301 [Reserved.] workplaces? DEPARTMENT OF LABOR Subpart D—Responsibilities of Department Subpart C—Requirements for Recipients 29 CFR Part 94 and 98 of Labor Awarding Officials Who Are Individuals RIN 1291–AA33 94.400 What are my responsibilities as a 83.300 What must I do to comply with this Department of Labor awarding official? part if I am an individual recipient? FOR FURTHER INFORMATION CONTACT: Subpart E—Violations of This Part and 83.301 [Reserved] Jeffrey Saylor, Director Division of Consequences Acquisition Management Services, N– Subpart D—Responsibilities of Department 94.500 How are violations of this part of Justice Awarding Officials 5425, 200 Constitution Avenue, NW., determined for recipients other than Washington, DC 20210, (202) 693–7285, 83.400 What are my responsibilities as a individuals? Department of Justice awarding official? email [email protected]. 94.505 How are violations of this part determined for recipients who are Subpart E—Violations of This Part and List of Subjects individuals? Consequences 29 CFR Part 94 94.510 What actions will the Federal 83.500 How are violations of this part Government take against a recipient determined for recipients other than Administrative practices and determined to have violated this part? individuals? procedures, Drug abuse, Grant 94.515 Is there any provision for exceptions 83.505 How are violations of this part programs, Reporting and recordkeeping to those actions? determined for recipients who are requirements. Subpart F—Definitions individuals? 94.605 Award. 83.510 What actions will the Federal 29 CFR Part 98 94.610 Controlled substance. Government take against a recipient Administrative practices and 94.615 Conviction. determined to have violated this part? procedures, Grant programs, Loan 94.620 Cooperative agreement. 83.515 Are there any exceptions to those 94.625 Criminal drug statute. actions? programs, Reporting and recordkeeping requirements. 94.630 Debarment. Subpart F—Definitions 94.635 Drug-free workplace. Dated: August 14, 2003. 94.640 Employee. 83.605 Award. Elaine L. Chao, 94.645 Federal agency or agency. 83.610 Controlled substance. 94.650 Grant. 83.615 Conviction. Secretary of Labor. 94.655 Individual. 83.620 Cooperative agreement. ■ For the reasons stated in the common 94.660 Recipient. 83.625 Criminal drug statute. preamble, the Department of Labor 94.665 State. 83.630 Debarment. amends 29 CFR subtitle A, as follows: 94.670 Suspension. 83.635 Drug-free workplace. ■ 83.640 Employee. 1. Part 94 is added to read as set forth Authority: 41 U.S.C. 701 et seq. 83.645 Federal agency or agency. in instruction 2 at the end of the common ■ 2. Part 94 is further amended as set 83.650 Grant. preamble. forth below. 83.655 Individual. ■ a. ‘‘[Agency noun]’’ is removed and PART 94—GOVERNMENTWIDE 83.660 Recipient. ‘‘Department of Labor’’ is added in its REQUIREMENTS FOR DRUG-FREE 83.665 State. place wherever it occurs. 83.670 Suspension. WORKPLACE (FINANCIAL ■ b. ‘‘[Agency adjective]’’ is removed and Authority: Sec. 5151–5160 of the Drug-Free ASSISTANCE) ‘‘Department of Labor’’ is added in its Workplace Act of 1988 (Pub. L. 100–690, Subpart A—Purpose and Coverage place wherever it occurs. Title V, Subtitle D; 41 U.S.C. 701 et seq.). ■ c. ‘‘[Agency head or designee]’’ is Sec. removed and ‘‘Secretary of Labor or ■ 94.100 What does this part do? 5. Part 83 is further amended as set designee’’ is added in its place wherever forth below. 94.105 Does this part apply to me? 94.110 Are any of my Federal assistance it occurs. ■ a. ‘‘[Agency noun]’’ is removed and awards exempt from this part? ■ d. ‘‘[Agency head]’’ is removed and ‘‘the Department of Justice’’ is added in 94.115 Does this part affect the Federal ‘‘Secretary of Labor or designee’’ is its place wherever it occurs. contracts that I receive? added in its place wherever it occurs.

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■ 3. Section 94.510(c) is further amended Subpart C—Responsibilities of Participants 98.435 What must I require of a primary tier by removing ‘‘[CFR citation for the Regarding Transactions participant? 98.440 [Reserved] Federal Agency’s regulations Doing Business With Other Persons 98.445 What action may I take if a primary implementing Executive Order 12549 98.300 What must I do before I enter into and Executive Order 12689]’’ and adding tier participant knowingly does business a covered transaction with another with an excluded or disqualified person? ‘‘29 CFR Part 98’’ in its place. person at the next lower tier? 98.450 What action may I take if a primary 94.305 May I enter into a covered ■ 4. Section 94.605(a)(2) is further tier participant fails to disclose the transaction with an excluded or information required under § 98.335? amended by removing ‘‘[Agency-specific disqualified person? CFR citation]’’ and adding ‘‘29 CFR Part 98.455 What may I do if a lower tier 98.310 What must I do if a Federal agency participant fails to disclose the 97’’ in its place. excludes a person with whom I am information required under § 98.355 to already doing business in a covered ■ the next higher tier? 5. Part 98 is revised to read as set forth transaction? in instruction 1 at the end of the common 98.315 May I use the services of an Subpart E—Excluded Parties List System preamble. excluded person as a principal under a 98.500 What is the purpose of the Excluded covered transaction? Parties List System (EPLS)? PART 98—GOVERNMENTWIDE 98.320 Must I verify that principals of my 98.505 Who uses the EPLS? DEBARMENT AND SUSPENSION covered transactions are eligible to 98.510 Who maintains the EPLS? (NONPROCUREMENT) participate? 98.515 What specific information is in the 98.325 What happens if I do business with EPLS? Sec. an excluded person in a covered 98.520 Who places the information into the 98.25 How is this part organized? transaction? EPLS? 98.50 How is this part written? 98.330 What requirements must I pass 98.525 Whom do I ask if I have questions 98.75 Do terms in this part have special down to persons at lower tiers with about a person in the EPLS? whom I intend to do business? meanings? 98.530 Where can I find the EPLS? Disclosing Information—Primary Tier Subpart A—General Subpart F—General Principles Relating to Participants Suspension and Debarment Actions 98.100 What does this part do? 98.335 What information must I provide 98.105 Does this part apply to me? 98.600 How do suspension and debarment before entering into a covered actions start? 98.110 What is the purpose of the transaction with the Department of 98.605 How does suspension differ from Labor? nonprocurement debarment and debarment? 98.340 If I disclose unfavorable information suspension system? 98.610 What procedures does the U.S. required under § 98.335, will I be 98.115 How does an exclusion restrict a Department of Labor use in suspension prevented from participating in the person’s involvement in covered and debarment actions? transaction? transactions? 98.615 How does the U.S. Department of 98.345 What happens if I fail to disclose the 98.120 May we grant an exception to let an Labor notify a person of a suspension information required under § 98.335? and debarment action? excluded person participate in a covered 98.350 What must I do if I learn of the 98.620 Do Federal agencies coordinate transaction? information required under § 98.335 after suspension and debarment actions? 98.125 Does an exclusion under the entering into a covered transaction with nonprocurement system affect a person’s the U.S. Department of Labor? 98.625 What is the scope of a suspension or debarment action? eligibility for Federal procurement Disclosing information—Lower Tier 98.630 May the U.S. Department of Labor contracts? Participants impute the conduct of one person to 98.130 Does exclusion under the Federal another? procurement system affect a person’s 98.355 What information must I provide to a higher tier participant before entering 98.635 May the U.S. Department of Labor eligibility to participate in into a covered transaction with that settle a debarment or suspension action? nonprocurement transactions? participant? 98.640 May a settlement include a 98.135 May the U.S. Department of Labor 98.360 What happens if I fail to disclose the voluntary exclusion? exclude a person who is not currently information required under § 98.355? 98.645 Do other Federal agencies know if participating in a nonprocurement 98.365 What must I do if I learn of the U.S. Department of Labor agrees to a transaction? information required under § 98.355 after voluntary exclusion? 98.140 How do I know if a person is entering into a covered transaction with Subpart G—Suspension a higher tier participant? excluded? 98.700 When may the suspending official 98.145 Does this part address persons who Subpart D—Responsibilities of the issue a suspension? are disqualified, as well as those who are Department of Labor Officials Regarding 98.705 What does the suspending official excluded from nonprocurement Transactions consider in issuing a suspension? transactions? 98.400 May I enter into a transaction with 98.710 When does a suspension take effect? 98.715 What notice does the suspending Subpart B—Covered Transactions an excluded or disqualified person? 98.405 May I enter into a covered official give me if I am suspended? 98.200 What is a covered transaction? transaction with a participant if a 98.720 How may I contest a suspension? 98.205 Why is it important to know if a principal of the transaction is excluded? 98.725 How much time do I have to contest particular transaction is a covered 98.410 May I approve a participant’s use of a suspension? transaction? the services of an excluded person? 98.730 What information must I provide to 98.210 Which nonprocurement transactions 98.415 What must I do if a Federal agency the suspending official if I contest a are covered transactions? excludes the participant or a principal suspension? 98.735 Under what conditions do I get an 98.215 Which nonprocurement transactions after I enter into a covered transaction? 98.420 May I approve a transaction with an additional opportunity to challenge the are not covered transactions? excluded or disqualified person at a facts on which the suspension is based? 98.220 Are any procurement contracts lower tier? 98.740 Are suspension proceedings formal? included as covered transactions? 98.425 When do I check to see if a person 98.745 How is fact-finding conducted? 98.225 How do I know if a transaction in is excluded or disqualified? 98.750 What does the suspending official which I may participate is a covered 98.430 How do I check to see if a person is consider in deciding whether to continue transaction? excluded or disqualified? or terminate my suspension?

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98.755 When will I know whether the 12549, 3 CFR, 1986 Comp., p. 189; E.O. 1471.120 May we grant an exception to let suspension is continued or terminated? 12689, 3 CFR, 1989 Comp., p. 235. an excluded person participate in a 98.760 How long may my suspension last? covered transaction? ■ 6. Part 98 is further amended as 1471.125 Does an exclusion under the Subpart H—Debarment follows: nonprocurement system affect a person’s 98.800 What are the causes for debarment? ■ a. ‘‘[Agency noun]’’ is removed and eligibility for Federal procurement 98.805 What notice does the debarring ‘‘Department of Labor’’ is added in its contracts? official give me if I am proposed for place wherever it occurs. 1471.130 Does exclusion under the Federal debarment? ■ b. ‘‘[Agency adjective]’’ is removed and procurement system affect a person’s 98.810 When does a debarment take effect? ‘‘Department of Labor’’ is added in its eligibility to participate in 98.815 How may I contest a proposed place wherever it occurs. nonprocurement transactions? debarment? ■ c. ‘‘[Agency head or designee]’’ is 1471.135 May FMCS exclude a person who 98.820 How much time do I have to contest is not currently participating in a a proposed debarment? removed and ‘‘Secretary of Labor or nonprocurement transaction? 98.825 What information must I provide to designee’’ is added in its place wherever 1471.140 How do I know if a person is the debarring official if I contest a it occurs. excluded? proposed debarment? lllllllllllllllllll 1471.145 Does this part address persons 98.830 Under what conditions do I get an who are disqualified, as well as those additional opportunity to challenge the FEDERAL MEDIATION AND who are excluded from nonprocurement facts on which the proposed debarment CONCILIATION SERVICE transactions? is based? Subpart B—Covered Transactions 98.835 Are debarment proceedings formal? 29 CFR Parts 1471 and 1472 1471.200 What is a covered transaction? 98.840 How is fact-finding conducted? RIN 3076–AA08 98.845 What does the debarring official 1471.205 Why is it important to know if a consider in deciding whether to debar FOR FURTHER INFORMATION CONTACT: Jane particular transaction is a covered me? Lorber, Director, Labor-Management transaction? 98.850 What is the standard of proof in a Cooperation Program, 2100 K St., NW., 1471.210 Which nonprocurement debarment action? Washington, DC 20427, (202) 606–5444, transactions are covered transactions? 1471.215 Which nonprocurement 98.855 Who has the burden of proof in a e-mail: [email protected]. debarment action? transactions are not covered 98.860 What factors may influence the List of Subjects transactions? debarring official’s decision? 1471.220 Are any procurement contracts 98.865 How long may my debarment last? 29 CFR Part 1471 included as covered transactions? 98.870 When do I know if the debarring Administrative practice and 1471.225 How do I know if a transaction in official debars me? which I may participate is a covered procedure, Debarment and suspension, transaction? 98.875 May I ask the debarring official to Grant programs, Loan programs, reconsider a decision to debar me? Reporting and recordkeeping Subpart C—Responsibilities of Participants 98.880 What factors may influence the Regarding Transactions debarring official during requirements. reconsideration? 29 CFR Part 1472 Doing Business With Other Persons 98.885 May the debarring official extend a 1471.300 What must I do before I enter into debarment? Administrative practice and a covered transaction with another procedure, Drug abuse, Grant programs, Subpart I—Definitions person at the next lower tier? Reporting and recordkeeping 1471.305 May I enter into a covered 98.900 Adequate evidence. requirements. transaction with an excluded or 98.905 Affiliate. disqualified person? Dated: September 5, 2003. 98.910 Agency. 1471.310 What must I do if a Federal 98.915 Agent or representative. John J. Toner, agency excludes a person with whom I 98.920 Civil judgment. Chief of Staff. am already doing business in a covered 98.925 Conviction. ■ For the reason stated in the common transaction? 98.930 Debarment. preamble, the Federal Mediation and 1471.315 May I use the services of an 98.935 Debarring official. excluded person as a principal under a 98.940 Disqualified. Conciliation Service amends 29 CFR covered transaction? 98.945 Excluded or exclusion. chapter XII, as follows: 1471.320 Must I verify that principals of my 98.950 Excluded Parties List System. ■ 1. Part 1471 is revised to read as set covered transactions are eligible to 98.955 Indictment. forth in instruction 1 at the end of the participate? 98.960 Ineligible or ineligibility. common preamble. 1471.325 What happens if I do business 98.965 Legal proceedings. with an excluded person in a covered 98.970 Nonprocurement transaction. PART 1471—GOVERNMENTWIDE transaction? 98.975 Notice. DEBARMENT AND SUSPENSION 1471.330 What requirements must I pass 98.980 Participant. (NONPROCUREMENT) down to persons at lower tiers with 98.985 Person. whom I intend to do business? 98.990 Preponderance of the evidence. Sec. 98.995 Principal. Disclosing Information—Primary Tier 1471.25 How is this part organized? Participants 98.1000 Respondent. 1471.50 How is this part written? 98.1005 State. 1471.75 Do terms in this part have special 1471.335 What information must I provide 98.1010 Suspending official. meanings? before entering into a covered 98.1015 Suspension. transaction with FMCS? 98.1020 Voluntary exclusion or voluntarily Subpart A—General 1471.340 If I disclose unfavorable excluded. 1471.100 What does this part do? information required under § 1471.335, 1471.105 Does this part apply to me? will I be prevented from participating in Subpart J—[Reserved] 1471.110 What is the purpose of the the transaction? Appendix to Part 98—Covered Transactions nonprocurement debarment and 1471.345 What happens if I fail to disclose suspension system? the information required under Authority: 5 U.S.C. 301, Pub. L. 103–355, 1471.115 How does an exclusion restrict a § 1471.335? 108 Stat. 3327 (31 U.S.C. 6101 NOTE); E.O. person’s involvement in covered 1471.350 What must I do if I learn of the 11738, 3 CFR, 1973 Comp., p. 799; E.O. transactions? information required under § 1471.335

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after entering into a covered transaction 1471.615 How does FMCS notify a person 1471.870 When do I know if the debarring with FMCS? of a suspension and debarment action? official debars me? 1471.620 Do Federal agencies coordinate 1471.875 May I ask the debarring official to Disclosing Information—Lower Tier suspension and debarment actions? reconsider a decision to debar me? Participants 1471.625 What is the scope of a suspension 1471.880 What factors may influence the 1471.355 What information must I provide or debarment action? debarring official during to a higher tier participant before 1471.630 May FMCS impute the conduct of reconsideration? entering into a covered transaction with one person to another? 1471.885 May the debarring official extend that participant? 1471.635 May FMCS settle a debarment or a debarment? suspension action? 1471.360 What happens if I fail to disclose Subpart I—Definitions the information required under 1471.640 May a settlement include a § 1471.355? voluntary exclusion? 1471.900 Adequate evidence. 1471.365 What must I do if I learn of 1471.645 Do other Federal agencies know if 1471.905 Affiliate. information required under § 1471.355 FMCS agrees to a voluntary exclusion? 1471.910 Agency. after entering into a covered transaction 1471.915 Agent or representative. Subpart G—Suspension 1471.920 Civil judgment. with a higher tier participant? 1471.700 When may the suspending official 1471.925 Conviction. Subpart D—Responsibilities of FMCS issue a suspension? 1471.930 Debarment. Officials Regarding Transactions 1471.705 What does the suspending official 1471.935 Debarring official. 1471.940 Disqualified. 1471.400 May I enter into a transaction consider in issuing a suspension? 1471.710 When does a suspension take 1471.945 Excluded or exclusion. with an excluded or disqualified person? effect? 1471.950 Excluded Parties List System. 1471.405 May I enter into a covered 1471.715 What notice does the suspending 1471.955 Indictment. transaction with a participant if a official give me if I am suspended? 1471.960 Ineligible or ineligibility. principal of the transaction is excluded? 1471.720 How may I contest a suspension? 1471.965 Legal proceedings. 1471.410 May I approve a participant’s use 1471.725 How much time do I have to 1471.970 Nonprocurement transaction. of the services of an excluded person? contest a suspension? 1471.975 Notice. 1471.415 What must I do if a Federal 1471.730 What information must I provide 1471.980 Participant. agency excludes the participant or a to the suspending official if I contest a 1471.985 Person. principal after I enter into a covered suspension? 1471.990 Preponderance of the evidence. transaction? 1471.735 Under what conditions do I get an 1471.995 Principal. 1471.420 May I approve a transaction with additional opportunity to challenge the 1471.1000 Respondent. an excluded or disqualified person at a facts on which the suspension is based? 1471.1005 State. lower tier? 1471.740 Are suspension proceedings 1471.1010 Suspending official. 1471.425 When do I check to see if a person formal? 1471.1015 Suspension. is excluded or disqualified? 1471.745 How is fact-finding conducted? 1471.1020 Voluntary exclusion or 1471.430 How do I check to see if a person 1471.750 What does the suspending official voluntarily excluded is excluded or disqualified? consider in deciding whether to continue Subpart J—[Reserved] 1471.435 What must I require of a primary or terminate my suspension? tier participant? 1471.755 When will I know whether the Appendix to Part 1471—Covered 1471.440 What method do I use to suspension is continued or terminated? Transactions communicate those requirements to 1471.760 How long may my suspension participants? last? Authority: E.O. 12549 ,3 CFR 1986 Comp., 1471.445 What action may I take if a p. 189; E.O. 12698, 3 CFR 1989 Comp., p. primary tier participant knowingly does Subpart H—Debarment 235; sec. 2455, Pub. L. 103–355, 108 Stat. business with an excluded or 1471.800 What are the causes for 3327 (31 U.S.C. 6101 note); 29 U.S.C. 175a. disqualified person? debarment? ■ 2. Part 1471 is further amended as set 1471.450 What action may I take if a 1471.805 What notice does the debarring forth below. primary tier participant fails to disclose official give me if I am proposed for ■ a. ‘‘[Agency noun]’’ is removed and the information required under debarment? ‘‘Federal Mediation and Conciliation § 1471.335? 1471.810 When does a debarment take 1471.455 What may I do if a lower tier effect? Service’’ is added in its place wherever participant fails to disclose the 1471.815 How may I contest a proposed it occurs. information required under § 1471.355 to debarment? ■ b. ‘‘[Agency adjective]’’ is removed and the next higher tier? 1471.820 How much time do I have to ‘‘FMCS’’ is added in its place wherever contest a proposed debarment? Subpart E—Excluded Parties List System it occurs. 1471.825 What information must I provide ■ c. ‘‘[Agency head or designee]’’ is 1471.500 What is the purpose of the to the debarring official if I contest a removed and ‘‘Agency Director’’ is Excluded Parties List System (EPLS)? proposed debarment? added in its place wherever it occurs. 1471.505 Who uses the EPLS? 1471.830 Under what conditions do I get an ■ 1471.510 Who maintains the EPLS? additional opportunity to challenge the 3. Section 1471.440 is added to read as 1471.515 What specific information is in facts on which the proposed debarment follows: the EPLS? is based? § 1471.440 What method do I use to 1471.520 Who places the information into 1471.835 Are debarment proceedings communicate those requirements to the EPLS? formal? participants? 1471.525 Whom do I ask if I have questions 1471.840 How is fact-finding conducted? about a person in the EPLS? 1471.845 What does the debarring official To communicate the requirement you 1471.530 Where can I find the EPLS? consider in deciding whether to debar must include a term or condition in the me? transaction requiring the participants’ Subpart F—General Principles Relating to 1471.850 What is the standard of proof in Suspension and Debarment Actions compliance with subpart C of this part a debarment action? and requiring them to include a similar 1471.600 How do suspension and 1471.855 Who has the burden of proof in a term or condition in lower-tier covered debarment actions start? debarment action? transactions. 1471.605 How does suspension differ from 1471.860 What factors may influence the debarment? debarring official’s decision? ■ 4. Part 1472 is added to read as set forth 1471.610 What procedures does FMCS use 1471.865 How long may my debarment in instruction 2 at the end of the common in suspension and debarment actions? last? preamble.

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PART 1472—GOVERNMENTWIDE ■ 5. Part 1472 is further amended as set 31 CFR Part 20 REQUIREMENTS FOR DRUG-FREE forth below. WORKPLACE (FINANCIAL ■ a. ‘‘[Agency noun]’’ is removed and Administrative practice and ASSISTANCE) ‘‘Federal Mediation and Conciliation procedure, Drug abuse, Grant programs, Service’’ is added in its place wherever Reporting and recordkeeping Subpart A—Purpose and Coverage it occurs. requirements. ■ Dated: July 31, 2003. Sec. b. ‘‘[Agency adjective]’’ is removed and 1472.100 What does this part do? ‘‘FMCS’’ is added in its place wherever Barry K. Hudson, 1472.105 Does this part apply to me? it occurs. Deputy Chief Financial Officer. 1472.110 Are any of my Federal assistance ■ c. ‘‘[Agency head or designee]’’ is ■ awards exempt from this part? removed and ‘‘Agency Director’’ is For the reasons stated in the preamble, 1472.115 Does this part affect the Federal added in its place wherever it occurs. the Department of the Treasury amends contracts that I receive? 31 CFR chapter I as follows: ■ d. ‘‘[Agency head]’’ is removed and Subpart B—Requirements for Recipients ‘‘Agency Director’’ is added in its place ■ 1. Part 19 is revised to read as set forth Other Than Individuals wherever it occurs. in instruction 1 at the end of the common preamble. 1472.200 What must I do to comply with ■ 6. Section 1472.510 (c) is further this part? amended by removing ‘‘[CFR citation for PART 19—GOVERNMENTWIDE 1472.205 What must I include in my drug- the Federal Agency’s regulations free workplace statement? DEBARMENT AND SUSPENSION 1472.210 To whom must I distribute my implementing Executive Order 12549 (NONPROCUREMENT) drug-free workplace statement? and Executive Order 12689] and adding 1472.215 What must I include in my drug- ‘‘29 CFR Part 1471’’ in its place. Sec. free awareness program? ■ 7. Section 1472.605(a)(2) is further 19.25 How is this part organized? 1472.220 By when must I publish my drug- amended by removing ‘‘[Agency-specific 19.50 How is this part written? 19.75 Do terms in this part have special free workplace statement and establish CFR citation]’’ and adding ‘‘29 CFR Part meanings? my drug-free awareness program? 1470’’ in its place. 1472.225 What actions must I take Subpart A—General concerning employees who are convicted lllllllllllllllllll of drug violations in the workplace? 19.100 What does this part do? 1472.230 How and when must I identify DEPARTMENT OF THE TREASURY 19.105 Does this part apply to me? workplaces? 31 CFR Parts 19 and 20 19.110 What is the purpose of the nonprocurement debarment and Subpart C—Requirements for Recipients RIN 1505–AA86 suspension system? Who Are Individuals FOR FURTHER INFORMATION CONTACT: 19.115 How does an exclusion restrict a 1472.300 What must I do to comply with Brian Lee, Office of the Deputy Chief person’s involvement in covered this part if I am an individual recipient? transactions? Financial Officer, 1500 Pennsylvania 1472.301 [Reserved] 19.120 May we grant an exception to let an Avenue, NW., Attention: Room 6212, excluded person participate in a covered Subpart D—Responsibilities of FMCS Metropolitan Square, Washington, DC Awarding Officials transaction? 20220, (202) 622–0808, 19.125 Does an exclusion under the 1472.400 What are my responsibilities as an [email protected]. nonprocurement system affect a person’s FMCS awarding official? ADDRESSES: Written comments should eligibility for Federal procurement Subpart E—Violations of This Part and be sent to Brian Lee, Office of the contracts? Consequences Deputy Chief Financial Officer, 19.130 Does exclusion under the Federal 1472.500 How are violations of this part Department of the Treasury, 1500 procurement system affect a person’s determined for recipients other than Pennsylvania Ave., NW., Attn: eligibility to participate in nonprocurement transactions? individuals? Metropolitan Square Room 6212, 19.135 May the Department of the Treasury 1472.505 How are violations of this part Washington, DC 20220. Comments may determined for recipients who are exclude a person who is not currently individuals? also be sent by electronic mail to Brian participating in a nonprocurement 1472.510 What actions will the Federal [email protected]. transaction? Government take against a recipient Comments should discuss the extent 19.140 How do I know if a person is determined to have violated this part? to which it may be appropriate to excluded? 1472.515 Are there any exceptions to those amend the interim final rule to reflect 19.145 Does this part address persons who actions? programs and matters that may be are disqualified, as well as those who are excluded from nonprocurement Subpart F—Definitions unique to the Department of the Treasury. Comments on matters that transactions? 1472.605 Award. 1472.610 Controlled substance. have been raised in connection with the Subpart B—Covered Transactions 1472.615 Conviction. prior common notice of proposed 19.200 What is a covered transaction? 1472.620 Cooperative agreement. rulemaking and that are discussed 19.205 Why is it important to know if a 1472.625 Criminal drug statute. elsewhere in the common preamble to particular transaction is a covered 1472.630 Debarment. this rule will not be considered. transaction? 1472.635 Drug-free workplace. List of Subjects 19.210 Which nonprocurement transactions 1472.640 Employee. are covered transactions? 1472.645 Federal agency or agency. 31 CFR Part 19 19.215 Which nonprocurement transactions 1472.650 Grant. are not covered transactions? 1472.655 Individual. Administrative practice and 19.220 Are any procurement contracts 1472.660 Recipient. procedure, Debarment and suspension, included as covered transactions? 1472.665 State. Government contracts, Grant programs, 19.225 How do I know if a transaction in 1472.670 Suspension. Loan programs, Reporting and which I may participate is a covered Authority: 41 U.S.C. 701, et seq. recordkeeping requirements. transaction?

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Subpart C—Responsibilities of Participants 19.435 What must I require of a primary tier 19.750 What does the suspending official Regarding Transactions participant? consider in deciding whether to continue 19.440 What method do I use to or terminate my suspension? Doing Business With Other Persons communicate those requirements to 19.755 When will I know whether the 19.300 What must I do before I enter into participants? suspension is continued or terminated? a covered transaction with another 19.445 What action may I take if a primary 19.760 How long may my suspension last? person at the next lower tier? tier participant knowingly does business 19.305 May I enter into a covered with an excluded or disqualified person? Subpart H—Debarment transaction with an excluded or 19.450 What action may I take if a primary 19.800 What are the causes for debarment? disqualified person? tier participant fails to disclose the 19.805 What notice does the debarring 19.310 What must I do if a Federal agency information required under § 19.335? official give me if I am proposed for excludes a person with whom I am 19.455 What may I do if a lower tier already doing business in a covered debarment? participant fails to disclose the transaction? 19.810 When does a debarment take effect? 19.315 May I use the services of an information required under § 19.355 to 19.815 How may I contest a proposed excluded person as a principal under a the next higher tier? debarment? covered transaction? Subpart E—Excluded Parties List System 19.820 How much time do I have to contest 19.320 Must I verify that principals of my a proposed debarment? covered transactions are eligible to 19.500 What is the purpose of the Excluded 19.825 What information must I provide to participate? Parties List System (EPLS)? the debarring official if I contest a 19.325 What happens if I do business with 19.505 Who uses the EPLS? proposed debarment? an excluded person in a covered 19.510 Who maintains the EPLS? 19.830 Under what conditions do I get an 19.515 What specific information is in the transaction? additional opportunity to challenge the EPLS? 19.330 What requirements must I pass facts on which the proposed debarment 19.520 Who places the information into the down to persons at lower tiers with is based? EPLS? whom I intend to do business? 19.835 Are debarment proceedings formal? 19.525 Whom do I ask if I have questions 19.840 How is fact-finding conducted? Disclosing Information—Primary Tier about a person in the EPLS? 19.845 What does the debarring official Participants 19.530 Where can I find the EPLS? 19.335 What information must I provide consider in deciding whether to debar Subpart F—General Principles Relating to before entering into a covered me? transaction with the Department of the Suspension and Debarment Actions 19.850 What is the standard of proof in a Treasury? 19.600 How do suspension and debarment debarment action? 19.340 If I disclose unfavorable information actions start? 19.855 Who has the burden of proof in a required under § 19.335, will I be 19.605 How does suspension differ from debarment action? prevented from participating in the debarment? 19.860 What factors may influence the transaction? 19.610 What procedures does the debarring official’s decision? 19.345 What happens if I fail to disclose the Department of the Treasury use in 19.865 How long may my debarment last? information required under § 19.335? suspension and debarment actions? 19.870 When do I know if the debarring 19.350 What must I do if I learn of the 19.615 How does the Department of the official debars me? information required under § 19.335 after Treasury notify a person of a suspension 19.875 May I ask the debarring official to entering into a covered transaction with and debarment action? reconsider a decision to debar me? the Department of the Treasury? 19.620 Do Federal agencies coordinate 19.880 What factors may influence the Disclosing Information—Lower Tier suspension and debarment actions? debarring official during Participants 19.625 What is the scope of a suspension or reconsideration? debarment action? 19.355 What Information must I provide to 19.885 May the debarring official extend a 19.630 May the Department of the Treasury debarment? a higher tier participant before entering impute the conduct of one person to into a covered transaction with that another? Subpart I—Definitions participant? 19.635 May the Department of the Treasury 19.360 What happens if I fail to disclose the 19.900 Adequate evidence. settle a debarment or suspension action? information required under § 19.355? 19.905 Affiliate. 19.640 May a settlement include a 19.365 What must I do if I learn of 19.910 Agency. voluntary exclusion? information required under § 19.355 after 19.915 Agent or representative. 19.645 Do other Federal agencies know if entering into a covered transaction with 19.920 Civil judgment. a higher tier participant? the Department of the Treasury agrees to 19.925 Conviction. a voluntary exclusion? 19.930 Debarment. Subpart D—Responsibilities of Department 19.935 Debarring official. of the Treasury Officials Regarding Subpart G—Suspension 19.940 Disqualified. Transactions 19.700 When may the suspending official 19.945 Excluded or exclusion. 19.400 May I enter into a transaction with issue a suspension? 19.705 What does the suspending official 19.950 Excluded Parties List System. an excluded or disqualified person? 19.955 Indictment. 19.405 May I enter into a covered consider in issuing a suspension? 19.710 When does a suspension take effect? 19.960 Ineligible or ineligibility. transaction with a participant if a 19.965 Legal proceedings. principal of the transaction is excluded? 19.715 What notice does the suspending 19.970 Nonprocurement transaction. 19.410 May I approve a participant’s use of official give me if I am suspended? 19.975 Notice. the services of an excluded person? 19.720 How may I contest a suspension? 19.415 What must I do if a Federal agency 19.725 How much time do I have to contest 19.980 Participant. excludes the participant or a principal a suspension? 19.985 Person. after I enter into a covered transaction? 19.730 What information must I provide to 19.990 Preponderance of the evidence. 19.420 May I approve a transaction with an the suspending official if I contest a 19.995 Principal. excluded or disqualified person at a suspension? 19.1000 Respondent. lower tier? 19.735 Under what conditions do I get an 19.1005 State. 19.425 When do I check to see if a person additional opportunity to challenge the 19.1010 Suspending official. is excluded or disqualified? facts on which the suspension is based? 19.1015 Suspension. 19.430 How do I check to see if a person is 19.740 Are suspension proceedings formal? 19.1020 Voluntary exclusion or voluntarily excluded or disqualified? 19.745 How is fact-finding conducted? excluded.

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Subpart J—[Reserved] Subpart C—Requirements for Recipients DEPARTMENT OF DEFENSE Who Are Individuals Appendix to Part 19—Covered Transactions Office of the Secretary 20.300 What must I do to comply with this Authority: Sec. 2455, Pub. L. 103–355, 108 part if I am an individual recipient? 32 CFR Parts 25 and 26 Stat. 3327 (31 U.S.C. 6101 note); E.O. 11738 20.301 [Reserved] RIN 0790–AG86 (3 CFR, 1973 Comp., p. 799); E.O. 12549 (3 CFR, 1986 Comp., p. 189); E.O. 12689 (3 CFR, Subpart D—Responsibilities of Department FOR FURTHER INFORMATION CONTACT: 1989 Comp., p. 235).?? of the Treasury Awarding Officials Mark Herbst, Office of the Deputy Under 20.400 What are my responsibilities as an Secretary of Defense (Science and ■ 2. Part 19 is further amended as set Department of the Treasury awarding Technology), 3080 Defense Pentagon, forth below. official? Washington, DC 20301–3080., ■ a. ‘‘[Agency noun]’’ is removed and Subpart E—Violations of This Part and telephone: (703) 696–0372. ‘‘Department of the Treasury’’ is added Consequences List of Subjects in its place wherever it occurs. 20.500 How are violations of this part 32 CFR Part 25 ■ b. ‘‘[Agency adjective]’’ is removed and determined for recipients other than ‘‘Department of the Treasury’’ is added individuals? Administrative practice and in its place wherever it occurs. 20.505 How are violations of this part procedure, Debarment and suspension, determined for recipients who are Grant programs, Reporting and ■ c. ‘‘[Agency head or designee]’’ is individuals? recordkeeping requirements removed and ‘‘Secretary of the Treasury’’ 20.510 What actions will the Federal is added in its place wherever it occurs. Government take against a recipient 32 CFR Part 26 ■ 3. Section 19.440 is added to read as determined to have violated this part? Administrative practice and follows: 20.515 Are there any exceptions to those procedure, Drug abuse, Grant programs, actions? Reporting and recordkeeping § 19.440 What method do I use to Subpart F—Definitions requirements communicate those requirements to participants? 20.605 Award. Approved: July 31, 2003. 20.610 Controlled substance. Patricia L. Toppings, To communicate the requirements, 20.615 Conviction. Alternate OSD Federal Register, Liaison you must include a term or condition in 20.620 Cooperative agreement. Officer, Department of Defense. the transaction requiring the 20.625 Criminal drug statute. ■ participants’ compliance with subpart C 20.630 Debarment. Accordingly, as set forth in the of this part and requiring them to 20.635 Drug-free workplace. common preamble, 32 CFR chapter I, include a similar term or condition in 20.640 Employee. subchapter C is amended as follows: ■ lower-tier covered transactions. 20.645 Federal agency or agency. 1. Part 25 is revised to read as set forth 20.650 Grant. in instruction 1 at the end of the common ■ 4. Part 20 is added to read as set forth 20.655 Individual. preamble. in instruction 2 at the end of the common 20.660 Recipient. preamble. 20.665 State. PART 25—GOVERNMENTWIDE 20.670 Suspension. DEBARMENT AND SUSPENSION PART 20—GOVERNMENTWIDE (NONPROCUREMENT) REQUIREMENTS FOR DRUG-FREE Authority: 41 U.S.C. 701, et seq. WORKPLACE (FINANCIAL Sec. ■ 5. Part 20 is further amended as set ASSISTANCE) 25.25 How is this part organized? forth below. 25.50 How is this part written? Subpart A—Purpose and Coverage ■ 25.75 Do terms in this part have special a. ‘‘[Agency noun]’’ is removed and meanings? Sec. ‘‘Department of the Treasury’’ is added 20.100 What does this part do? in its place wherever it occurs. Subpart A—General 25.100 What does this 20.105 Does this part apply to me? part do? ■ b. ‘‘[Agency adjective]’’ is removed and 20.110 Are any of my Federal assistance 25.105 Does this part apply to me? awards exempt from this part? ‘‘Department of the Treasury’’ is added 25.110 What is the purpose of the 20.115 Does this part affect the Federal in its place wherever it occurs. nonprocurement debarment and contracts that I receive? ■ c. ‘‘[Agency head or designee]’’ is suspension system? Subpart B—Requirements for Recipients removed and ‘‘Secretary of the Treasury’’ 25.115 How does an exclusion restrict a Other Than Individuals is added in its place wherever it occurs. person’s involvement in covered transactions? 20.200 What must I do to comply with this ■ d. ‘‘[Agency head]’’ is removed and 25.120 May we grant an exception to let an part? ‘‘Secretary of the Treasury’’ is added in excluded person participate in a covered 20.205 What must I include in my drug-free its place wherever it occurs. transaction? workplace statement? 25.125 Does an exclusion under the 20.210 To whom must I distribute my drug- ■ 6. Section 20.510(c) is further amended nonprocurement system affect a person’s free workplace statement? by removing ‘‘[CFR citation for the eligibility for Federal procurement 20.215 What must I include in my drug-free Federal agency’s regulations contracts? awareness program? implementing Executive Order 12549 25.130 Does exclusion under the Federal 20.220 By when must I publish my drug- procurement system affect a person’s free workplace statement and establish and Executive Order 12689]’’ and adding eligibility to participate in my drug-free awareness program? ‘‘22 CFR Part 19’’ in its place. nonprocurement transactions? 20.225 What actions must I take concerning ■ 7. Section 20.605 is further amended 25.135 May the DOD Component exclude a employees who are convicted of drug by removing and reserving paragraph person who is not currently participating violations in the workplace? in a nonprocurement transaction? 20.230 How and when must I identify (a)(2). 25.140 How do I know if a person is workplaces? lllllllllllllllllll excluded?

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25.145 Does this part address persons who Subpart D—Responsibilities of DOD 25.705 What does the suspending official are disqualified, as well as those who are Component Officials Regarding consider in issuing a suspension? excluded from nonprocurement Transactions 25.710 When does a suspension take effect? transactions? 25.400 May I enter into a transaction with 25.715 What notice does the suspending official give me if I am suspended? Subpart B—Covered Transactions an excluded or disqualified person? 25.405 May I enter into a covered 25.720 How may I contest a suspension? 25.200 What is a covered transaction? transaction with a participant if a 25.725 How much time do I have to contest 25.205 Why is it important to know if a principal of the transaction is excluded? a suspension? particular transaction is a covered 25.415 What must I do if a Federal agency 25.730 What information must I provide to transaction? excludes the participant or a principal the suspending official if I contest a 25.210 Which nonprocurement transactions after I enter into a covered transaction? suspension? are covered transactions? 25.420 May I approve a transaction with an 25.735 Under what conditions do I get an 25.215 Which nonprocurement transactions excluded or disqualified person at a additional opportunity to challenge the are not covered transactions? lower tier? facts on which the suspension is based? 25.220 Are any procurement contracts 25.425 When do I check to see if a person 25.740 Are suspension proceedings formal? included as covered transactions? is excluded or disqualified? 25.745 How is fact-finding conducted? 25.225 How do I know if a transaction in 25.430 How do I check to see if a person is 25.750 What does the suspending official which I may participate is a covered excluded or disqualified? consider in deciding whether to continue or terminate my suspension? transaction? 25.435 What must I require of a primary tier participant? 25.755 When will I know whether the Subpart C—Responsibilities of Participants 25.440 What method do I use to suspension is continued or terminated? Regarding Transactions communicate those requirements to 25.760 How long may my suspension last? participants? Doing Business With Other Persons Subpart H—Debarment 25.445 What action may I take if a primary 25.300 What must I do before I enter into tier participant knowingly does business 25.800 What are the causes for debarment? a covered transaction with another with an excluded or disqualified person? 25.805 What notice does the debarring person at the next lower tier? 25.450 What action may I take if a primary official give me if I am proposed for 25.305 May I enter into a covered tier participant fails to disclose the debarment? transaction with an excluded or information required under § 25.335? 25.810 When does a debarment take effect? disqualified person? 25.455 What may I do if a lower tier 25.815 How may I contest a proposed 25.310 What must I do if a Federal agency participant fails to disclose the debarment? excludes a person with whom I am information required under § 25.355 to 25.820 How much time do I have to contest already doing business in a covered the next higher tier? a proposed debarment? transaction? 25.825 What information must I provide to Subpart E—Excluded Parties List System 25.315 May I use the services of an the debarring official if I contest a excluded person as a principal under a 25.500 What is the purpose of the Excluded proposed debarment? covered transaction? Parties List System (EPLS)? 25.830 Under what conditions do I get an 25.320 Must I verify that principals of my 25.505 Who uses the EPLS? additional opportunity to challenge the covered transactions are eligible to 25.510 Who maintains the EPLS? facts on which a proposed debarment is participate? 25.515 What specific information is in the based? 25.835 Are debarment proceedings formal? 25.325 What happens if I do business with EPLS? 25.840 How is fact-finding conducted? an excluded person in a covered 25.520 Who places the information into the 25.845 What does the debarring official transaction? EPLS? consider in deciding whether to debar 25.330 What requirements must I pass 25.525 Whom do I ask if I have questions me? down to persons at lower tiers with about a person in the EPLS? 25.530 Where can I find the EPLS? 25.850 What is the standard of proof in a whom I intend to do business? debarment action? Subpart F—General Principles Relating to Disclosing Information—Primary Tier 25.855 Who has the burden of proof in a Suspension and Debarment Actions Participants debarment action? 25.600 How do suspension and debarment 25.860 What factors may influence the 25.335 What information must I provide actions start? debarring official’s decision? before entering into a covered 25.605 How does suspension differ from 25.865 How long may my debarment last? transaction with the DOD Component? debarment? 25.870 When do I know if the debarring 25.340 If I disclose unfavorable information 25.610 What procedures does the DOD official debars me? required under § 25.335, will I be Component use in suspension and 25.875 May I ask the debarring official to prevented from participating in the debarment actions? reconsider a decision to debar me? transaction? 25.615 How does the DOD Component 25.880 What factors may influence the 25.345 What happens if I fail to disclose the notify a person of a suspension and debarring official during information required under § 25.335? debarment action? reconsideration? 25.350 What must I do if I learn of the 25.620 Do Federal agencies coordinate 25.885 May the debarring official extend a information required under § 25.335 after suspension and debarment actions? debarment? entering into a covered transaction with 25.625 What is the scope of a suspension or Subpart I—Definitions the DOD Component? debarment action? 25.900 Adequate evidence. Disclosing Information—Lower Tier 25.630 May the DOD Component impute 25.905 Affiliate. Participants the conduct of one person to another? 25.635 May the DOD Component settle a 25.910 Agency. 25.355 What information must I provide to debarment or suspension action? 25.915 Agent or representative. a higher tier participant before entering 25.640 May a settlement include a 25.920 Civil judgment. into a covered transaction with that voluntary exclusion? 25.925 Conviction. participant? 25.645 Do other Federal agencies know if 25.930 Debarment. 25.360 What happens if I fail to disclose the the DOD Component agrees to a 25.935 Debarring official. information required under § 25.355? voluntary exclusion? 25.940 Disqualified. 25.365 What must I do if I learn of 25.942 DOD Component. information required under § 25.355 after Subpart G—Suspension 25.945 Excluded or exclusion. entering into a covered transaction with 25.700 When may the suspending official 25.950 Excluded Parties List System. a higher tier participant? issue a suspension? 25.955 Indictment.

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25.960 Ineligible or ineligibility. § 25.1010 Suspending official. 26.625 Criminal drug statute. 25.965 Legal proceedings. * * * * * 26.630 Debarment. 25.970 Nonprocurement transaction. (b) DOD Components’ suspending 26.632 DOD Component. 25.975 Notice. officials for nonprocurement 26.635 Drug-free workplace. 25.980 Participant. 26.640 Employee. 25.985 Person. transactions are the same officials 26.645 Federal agency or agency. 25.990 Preponderance of the evidence. identified in 48 CFR part, subpart 209.4 26.650 Grant. 25.995 Principal. as suspending officials for procurement 26.655 Individual. 25.1000 Respondent. contracts. 26.660 Recipient. 25.1005 State. ■ 7. Part 26 is added to read as set forth 26.665 State. 25.1010 Suspending official. in instruction 2 at the end of the common 26.670 Suspension. 25.1015 Suspension. preamble. Authority: 41U.S.C.701, et seq. 25.1020 Voluntary exclusion or voluntarily ■ excluded. PART 26—GOVERNMENTWIDE 8. Part 26 is further amended as set REQUIREMENTS FOR DRUG-FREE forth below. Subpart J—[Reserved] ■ WORKPLACE (FINANCIAL a. ‘‘[Agency noun]’’ is removed and Appendix to Part 25—Covered Transactions ASSISTANCE) ‘‘DOD Component’’ is added in its place wherever it occurs. Authority: E.O. 12549, 3 CFR 1986 Comp., Subpart A—Purpose and Coverage ■ b. ‘‘[Agency adjective]’’ is removed and p.189; E.O. 12689 , 3 CFR 1989 Comp., p.235; sec. 2455, Pub. L. 103–355, 108 Stat. 3327 (31 Sec. ‘‘DOD Component’’ is added in its place U.S.C. 6101 note). 26.100 What does this part do? wherever it occurs. 26.105 Does this part apply to me? ■ c. ‘‘[Agency head or designee]’’ is ■ 2. Part 25 is further amended as set 26.110 Are any of my Federal assistance removed and ‘‘Head of the DOD forth below. awards exempt from this part? Component or his or her designee’’ is ■ a. ‘‘[Agency noun]’’ is removed and 26.115 Does this part affect the Federal added in its place wherever it occurs. ‘‘DOD Component’’ is added in its place contracts that I receive? ■ d. ‘‘[Agency head]’’ is removed and wherever it occurs. Subpart B—Requirements for Recipients ‘‘Secretary of Defense or Secretary of a ■ b. ‘‘[Agency adjective]’’ is removed and Other Than Individuals Military Department’’ is added in its ‘‘DOD Component’’ is added in its place 26.200 What must I do to comply with this place wherever it occurs. wherever it occurs. part? ■ 9. Section 26.510(c) is further amended ■ c. ‘‘[Agency head or designee]’’ is 26.205 What must I include in my drug-free by removing ‘‘[CFR citation for the removed and ‘‘Head of the DOD workplace statement? Federal agency’s regulations Component or his or her designee’’ is 26.210 To whom must I distribute my drug- implementing Executive Order 12549 added in its place wherever it occurs. free workplace statement? and Executive Order 12689]’’ and adding 26.215 What must I include in my drug-free ■ 3. Section 25.440 is added to read as awareness program? ‘‘32 CFR Part 25’’ in its place. follows: 26.220 By when must I publish my drug- ■ 10. Section 26.605(a)(2) is further free workplace statement and establish amended by removing ‘‘[Agency-specific § 25.440 What method do I use to my drug-free awareness program? CFR citation]’’ and adding ‘‘32 CFR part communicate those requirements to 26.225 What actions must I take concerning participants? 33’’ in its place. employees who are convicted of drug ■ 11. Section 26.632 is added to read as To communicate the requirement, you violations in the workplace? follows: must include a term or condition in the 26.230 How and when must I identify transaction requiring the participants’ workplaces? § 26.632 DOD Component. compliance with subpart C of this part Subpart C—Requirements for Recipients DOD Component means the Office of and requiring them to include a similar Who Are Individuals the Secretary of Defense, a Military term or condition in lower-tier covered 26.300 What must I do to comply with this Department, a Defense Agency, or the transactions. part if I am an individual recipient? Office of Economic Adjustment. ■ 4. Section 25.935 is further amended 26.301 [Reserved] lllllllllllllllllll by adding paragraph (b) to read as Subpart D—Responsibilities of DOD follows: Component Awarding Officials DEPARTMENT OF EDUCATION § 25.935 Debarring official. 26.400 What are my responsibilities as a 34 CFR Parts 84, 85, 668, and 682 DOD Component awarding official? * * * * * RIN 1890–AA07 Subpart E—Violations of This Part and (b) DOD Components’ debarring FOR FURTHER INFORMATION CONTACT: Consequences officials for nonprocurement Peter Wathen-Dunn, Office of the transactions are the same officials 26.500 How are violations of this part General Counsel, U.S. Department of identified in 48 CFR part 209, subpart determined for recipients other than Education, 400 Maryland Avenue, SW., individuals? 209.4 as debarring officials for room 6E211, Washington, DC 20202– procurement contracts. 26.505 How are violations of this part determined for recipients who are 2243. Telephone: 202–401–6700 or via ■ 5. Section 25.942 is added to read as individuals? e-mail: [email protected]. If follows: 26.510 What actions will the Federal you use a telecommunications device Government take against a recipient for the deaf (TDD), you may call the § 25.942 DOD Component. determined to have violated this part? Federal Information Relay Service DOD Component means the Office of 26.515 Are there any exceptions to those (FIRS) at 1–800–877–8339. the Secretary of Defense, a Military actions? Individuals with disabilities may Department, a Defense Agency, or the Subpart F—Definitions obtain this document in an alternative Office of Economic Adjustment. 26.605 Award format (e.g., Braille, large print, ■ 6. Section 25.1010 is further amended 26.610 Controlled substance. audiotape, or computer diskette) on by adding a paragraph (b) to read as 26.615 Conviction. request to the contact person listed follows: 26.620 Cooperative agreement. above.

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SUPPLEMENTARY INFORMATION: The 34 CFR Part 85 Subpart C—Requirements for Recipients Department of Education (ED) did not Who Are Individuals receive any comments on its adoption of Administrative practice and 84.300 What must I do to comply with this the common rule. We adopt as the final procedure, Debarment and suspension, part if I am an individual recipient? suspension and debarment regulation of Drug abuse, Grant programs, Loan 84.301 [Reserved] ED the common rule as proposed by ED programs, Reporting and recordkeeping Subpart D—Responsibilities of ED in its notice of proposed rulemaking requirements. Awarding Officials (NPRM) (January 23, 2002 (67 FR 3326– 34 CFR Part 668 84.400 What are my responsibilities as an 333)). ED awarding official? Generally, in the NPRM ED made Administrative practice and changes and additions to the common procedure, Colleges and universities, Subpart E—Violations of This Part and Consequences rule to ensure that ED’s programs under Consumer protection, Grant programs— Title IV of the Higher Education Act of education, Loan programs—education, 84.500 How are violations of this part 1965, as amended (HEA), were Reporting and recordkeeping determined for recipients other than protected as they have been in the past individuals? requirements, Student aid. 84.505 How are violations of this part under ED’s adoption of the original 34 CFR Part 682 determined for recipients who are common rule. See the NPRM at 67 FR individuals? 3326 for a complete description of the Administrative practice and 84.510 What actions will the Federal ED changes to the Common Rule. The procedure, Colleges and universities, Government take against a recipient Secretary also chose to adopt the Education, Loan programs—education, determined to have violated this part? 84.515 Are there any exceptions to those common rule so that procurement Reporting and recordkeeping transactions below a nonprocurement actions? requirements, Student aid, Vocational transaction are covered under ED education. Subpart F—Definitions programs at any tier if the transaction Dated: September 8, 2003. 84.605 Award. equals or exceeds $25,000 or requires 84.610 Controlled substance. consent of the Department. The Rod Paige, 84.615 Conviction. Secretary has also clarified some of the Secretary of Education. 84.620 Cooperative agreement. common rule definitions in the context 84.625 Criminal drug statute. ■ of the HEA. For the reasons stated in the common 84.630 Debarment. Because this final rule reorganizes preamble and in the specific preamble of 84.635 Drug-free workplace. part 85 of title 34 of the Code of Federal the Department of Education (ED), the 84.640 Employee. Regulations (CFR), some of the cross Secretary amends title 34 of the Code of 84.645 Federal agency or agency. references to this part in parts 668 and Federal Regulations by adding part 84, 84.650 Grant. 682 of the CFR are obsolete. Therefore, revising part 85, and amending parts 668 84.655 Individual. and 682 to read as follows: 84.660 Recipient. the Secretary makes conforming 84.665 State. amendments to parts 668 and 682 of the ■ 84.670 Suspension. CFR so they refer to the proper 1. Part 84 is added to read as set forth provisions in part 85. in instruction 2 at the end of the common Authority: E.O.s 12549 and 12689; 20 preamble. U.S.C. 1082, 1094, 1221e-3 and 3474; and Electronic Access to This Document Sec. 2455, Pub. L. 103–355, 108 Stat. 3243 at PART 84—GOVERNMENTWIDE 3327, unless otherwise noted. You may view this document, as well REQUIREMENTS FOR DRUG-FREE as all other Department of Education ■ 2. Part 84 is further amended as WORKPLACE (FINANCIAL documents published in the Federal follows: ASSISTANCE) Register, in text or Adobe Portable ■ a. ‘‘[Agency noun]’’ is removed and Document Format (PDF) on the Internet Subpart A—Purpose and Coverage ‘‘Department of Education’’ is added in its place wherever it occurs. at the following site: http://www.ed.gov/ Sec. legislation/FedRegister. ■ b. ‘‘[Agency adjective]’’ is removed and 84.100 What does this part do? ‘‘ED’’ is added in its place wherever it To use PDF you must have Adobe 84.105 Does this part apply to me? Acrobat Reader, which is available free occurs. 84.110 Are any of my Federal assistance ■ at this site. If you have questions about awards exempt from this part? c. ‘‘[Agency head or designee]’’ is using PDF, call the U.S. Government 84.115 Does this part affect the Federal removed and ‘‘ED Deciding Official’’ is Printing Office (GPO), toll free, at 1– contracts that I receive? added in its place wherever it occurs. ■ d. ‘‘[Agency head]’’ is removed and 888–293–6498; or in the Washington, Subpart B—Requirements for Recipients DC, area at (202) 512–1530. ‘‘ED Deciding Official’’ is added in its Other Than Individuals place wherever it occurs. Note: The official version of this document 84.200 What must I do to comply with this ■ is the document published in the Federal 3. Section 84.510(c) is further amended part? by removing ‘‘[CFR citation for the Register. Free Internet access to the official 84.205 What must I include in my drug-free Federal Agency’s regulations edition of the Federal Register and the CFR workplace statement? is available on GPO Access at: http:// 84.210 To whom must I distribute my drug- implementing Executive Order 12549 www.gpoaccess.gov/nara/index.html (Catalog free workplace statement? and Executive Order 12689]’’ and adding of Federal Domestic Assistance Number 84.215 What must I include in my drug-free ‘‘34 CFR part 85’’ in its place. 84.032 Federal Family Education Loan awareness program? ■ 4. Section 84.605(a)(2) is further Program) 84.220 By when must I publish my drug- amended by removing ‘‘[Agency-specific free workplace statement and establish List of Subjects CFR citation]’’ and adding ‘‘34 CFR part my drug-free awareness program? 85’’ in its place. 84.225 What actions must I take concerning 4 CFR Part 84 ■ employees who are convicted of drug 5. Each section in part 84 is further Debarment and suspension, Drug violations in the workplace? amended by adding to the end of each abuse, Grant programs, Reporting and 84.230 How and when must I identify section the following authority citation recordkeeping requirements. workplaces? to read:

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Authority: E.O.s 12549 and 12689; 20 already doing business in a covered information required under § 85.355 to U.S.C. 1082, 1094, 1221e–3 and 3474; and transaction? the next higher tier? Sec. 2455, Pub. L. 103–355, 108 Stat. 3243 at 85.315 May I use the services of an Subpart E—Excluded Parties List System 3327. excluded person as a principal under a covered transaction? 85.500 What is the purpose of the Excluded ■ 6. Part 85 is revised to read as provided 85.320 Must I verify that principals of my Parties List System (EPLS)? in instruction 1 at the end of the common covered transactions are eligible to 85.505 Who uses the EPLS? preamble: participate? 85.510 Who maintains the EPLS? 85.325 What happens if I do business with 85.515 What specific information is in the PART 85—GOVERNMENTWIDE an excluded person in a covered EPLS? DEBARMENT AND SUSPENSION transaction? 85.520 Who places the information into the (NONPROCUREMENT) 85.330 What requirements must I pass EPLS? down to persons at lower tiers with 85.525 Whom do I ask if I have questions Sec. whom I intend to do business? about a person in the EPLS? 85.530 Where can I find the EPLS? 85.25 How is this part organized? Disclosing Information—Primary Tier 85.50 How is this part written? Participants Subpart F—General Principles Relating to 85.75 Do terms in this part have special Suspension and Debarment Actions meanings? 85.335 What information must I provide before entering into a covered 85.600 How do suspension and debarment Subpart A—General transaction with the Department of actions start? 85.100 What does this part do? Education? 85.605 How does suspension differ from 85.105 Does this part apply to me? 85.340 If I disclose unfavorable information debarment? 85.110 What is the purpose of the required under § 85.335, will I be 85.610 What procedures does the nonprocurement debarment and prevented from participating in the Department of Education use in suspension system? transaction? suspension and debarment actions? 85.115 How does an exclusion restrict a 85.345 What happens if I fail to disclose the 85.611 What procedures do we use for a person’s involvement in covered information required under § 85.335? suspension or debarment action transactions? 85.350 What must I do if I learn of the involving title IV, HEA transaction? 85.120 May we grant an exception to let an information required under § 85.335 after 85.612 When does an exclusion by another excluded person participate in a covered entering into a covered transaction with agency affect the ability of the excluded transaction? the Department of Education? person to participate in title IV, HEA 85.125 Does an exclusion under the transaction? Disclosing Information—Lower Tier nonprocurement system affect a person’s 85.615 How does the Department of Participants eligibility for Federal procurement Education notify a person of a contracts? 85.355 What information must I provide to suspension and debarment action? 85.130 Does exclusion under the Federal a higher tier participant before entering 85.620 Do Federal agencies coordinate procurement system affect a person’s into a covered transaction with that suspension and debarment actions? eligibility to participate in participant? 85.625 What is the scope of a suspension or nonprocurement transactions? 85.360 What happens if I fail to disclose the debarment action? 85.135 May the Department of Education information required under § 85.355? 85.630 May the Department of Education exclude a person who is not currently 85.365 What must I do if I learn of impute the conduct of one person to participating in a nonprocurement information required under § 85.355 after another? transaction? entering into a covered transaction with 85.635 May the Department of Education 85.140 How do I know if a person is a higher tier participant? settle a debarment or suspension action? 85.640 May a settlement include a excluded? Subpart D—Responsibilities of ED Officials voluntary exclusion? 85.145 Does this part address persons who Regarding Transactions are disqualified, as well as those who are 85.645 Do other Federal agencies know if excluded from nonprocurement 85.400 May I enter into a transaction with the Department of Education agrees to a transactions? an excluded or disqualified person? voluntary exclusion? 85.405 May I enter into a covered Subpart B—Covered Transactions transaction with a participant if a Subpart G—Suspension 85.200 What is a covered transaction? principal of the transaction is excluded? 85.700 When may the suspending official 85.205 Why is it important to know if a 85.410 May I approve a participant’s use of issue a suspension? particular transaction is a covered the services of an excluded person? 85.705 What does the suspending official transaction? 85.415 What must I do if a Federal agency consider in issuing a suspension? 85.210 Which nonprocurement transactions excludes the participant or a principal 85.710 When does a suspension take effect? are covered transactions? after I enter into a covered transaction? 85.711 When does a suspension affect title 85.215 Which nonprocurement transactions 85.420 May I approve a transaction with an IV, HEA transactions? are not covered transactions? excluded or disqualified person at a 85.715 What notice does the suspending 85.220 Are any procurement contracts lower tier? official give me if I am suspended? included as covered transactions? 85.425 When do I check to see if a person 85.720 How may I contest a suspension? 85.225 How do I know if a transaction in is excluded or disqualified? 85.725 How much time do I have to contest which I may participate is a covered 85.430 How do I check to see if a person is a suspension? transaction? excluded or disqualified? 85.730 What information must I provide to 85.435 What must I require of a primary tier the suspending official if I contest a Subpart C—Responsibilities of Participants participant? suspension? Regarding Transactions 85.440 What method do I use to 85.735 Under what conditions do I get an communicate those requirements to additional opportunity to challenge the Doing Business With Other Persons participants? facts on which the suspension is based? 85.300 What must I do before I enter into 85.445 What action may I take if a primary 85.740 Are suspension proceedings formal? a covered transaction with another tier participant knowingly does business 85.745 How is fact-finding conducted? person at the next lower tier? with an excluded or disqualified person? 85.750 What does the suspending official 85.305 May I enter into a covered 85.450 What action may I take if a primary consider in deciding whether to continue transaction with an excluded or tier participant fails to disclose the or terminate my suspension? disqualified person? information required under § 85.335? 85.755 When will I know whether the 85.310 What must I do if a Federal agency 85.455 What may I do if a lower tier suspension is continued or terminated? excludes a person with whom I am participant fails to disclose the 85.760 How long may my suspension last?

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Subpart H—Debarment Subpart J—[Reserved] (c) Title IV, HEA transactions. If you 85.800 What are the causes for debarment? Appendix to Part 85—Covered Transactions are a title IV, HEA participant— 85.805 What notice does the debarring (1) You may not renew or extend the official give me if I am proposed for Authority: E.O. 12549 (3 CFR 1986 Comp., term of any contract or agreement for debarment? p.189); E.O. 12698 (3 CFR 1989 Comp., the services of an excluded person as a 85.810 When does a debarment take effect? p.235); sec. 2455, Pub. L. 103–355, 108 Stat. principal with respect to a title IV, HEA 3327 (31 U.S.C. 6101 note); 20 U.S.C. 1082, 85.811 When does a debarment affect title transaction; and IV, HEA transactions? 1094, 1221e-3, and 3474, unless otherwise noted. (2) You may not continue to use the 85.815 How may I contest a proposed ■ 7. Part 85 is further amended as services of that excluded person as a debarment? principal under this kind of an 85.820 How much time do I have to contest follows: ■ a. ‘‘[Agency noun]’’ is removed and agreement or arrangement more than 90 a proposed debarment? days after you learn of the exclusion or 85.825 What information must I provide to ‘‘Department of Education’’ is added in the debarring official if I contest a its place wherever it occurs. after the close of the Federal fiscal year proposed debarment? ■ b. ‘‘[Agency adjective]’’ is removed and in which the exclusion takes effect, 85.830 Under what conditions do I get an ‘‘ED’’ is added in its place wherever it whichever is later. additional opportunity to challenge the occurs. ■ 11. Section 85.415 is further amended facts on which the proposed debarment ■ c. ‘‘[Agency head or designee]’’ is by adding a new paragraph (c) to read as is based? removed and ‘‘ED Deciding Official’’ is follows. 85.835 Are debarment proceedings formal? added in its place wherever it occurs. 85.840 How is fact-finding conducted? ■ d. Each section in part 85 is further § 85.415 What must I do if a Federal 85.845 What does the debarring official amended by adding to the end of each agency excludes the participant or a consider in deciding whether to debar principal after I enter into a covered section the following authority citation transaction? me? to read: 85.850 What is the standard of proof in a * * * * * debarment action? Authority: E.O. 12549 (3 CFR, 1986 Comp., (c) Title IV, HEA transactions. If you 85.855 Who has the burden of proof in a p. 189); E.O 12689 (3 CFR, 1989 Comp., p. are a title IV, HEA participant— 235); 20 U.S.C. 1082, 1094, 1221e-3 and debarment action? (1) You may not renew or extend the 85.860 What factors may influence the 3474; and Sec. 2455, Pub. L. 103–355, 108 Stat. 3243 at 3327. term of any contract or agreement for debarring official’s decision? the services of an excluded person as a 85.865 How long may my debarment last? ■ 8. Section 85.220 is further amended principal with respect to a title IV, HEA 85.870 When do I know if the debarring by adding new paragraphs (c) and (d) to transaction; and official debars me? read as follows. 85.875 May I ask the debarring official to (2) You may not continue to use the reconsider a decision to debar me? § 85.220 Are any procurement contracts services of that excluded person as a 85.880 What factors may influence the included as covered transactions? principal under this kind of an debarring official during * * * * * agreement or arrangement more than 90 reconsideration? (c) The contract is awarded by any days after you learn of the exclusion or 85.885 May the debarring official extend a contractor, subcontractor, supplier, after the close of the Federal fiscal year debarment? consultant or its agent or representative in which the exclusion takes effect, Subpart I—Definitions in any transaction, regardless of tier, whichever is later. ■ 85.900 Adequate evidence. that is funded or authorized under ED 12. Subpart D of part 85 is further 85.905 Affiliate. programs and is expected to equal or amended by adding § 85.440 to read as 85.910 Agency. exceed $25,000. follows: (d) The contract is to perform services 85.915 Agent or representative. § 85.440 What method do I use to 85.920 Civil judgment. as a third party servicer in connection communicate those requirements to 85.925 Conviction. with a title IV, HEA program. participants? 85.930 Debarment. ■ 9. Section 85.310 is further amended 85.935 Debarring official. (a) To communicate those by adding paragraph (c) to read as requirements, you must include a term 85.940 Disqualified. follows: 85.942 ED Deciding Official. or condition in the transaction requiring 85.945 Excluded or exclusion. § 85.310 What must I do if a Federal each participant’s compliance with 85.950 Excluded Parties List System. agency excludes a person with whom I am subpart C of this part and requiring the 85.952 HEA. already doing business in a covered participant to include a similar term or 85.955 Indictment. transaction? condition in lower-tier covered 85.960 Ineligible or ineligibility. * * * * * transactions. 85.965 Legal proceedings. (c) If you are a title IV, HEA (b) The failure of a participant to 85.970 Nonprocurement transaction. participant, you may not continue a title include a requirement to comply with 85.975 Notice. IV, HEA transaction with an excluded Subpart C of this part in the agreement 85.980 Participant. person after the effective date of the with a lower tier participant does not 85.985 Person. 85.990 Preponderance of the evidence. exclusion unless permitted by 34 CFR affect the lower tier participant’s 85.995 Principal. 668.26, 682.702, or 668.94, as responsibilities under this part. applicable. 85.1000 Respondent. Authority: E.O. 12549 (3 CFR, 1985 Comp., ■ 85.1005 State. 10. Section 85.315 is further amended p. 189); E.O. 12689 (3 CFR 1989 Comp., p. 85.1010 Suspending official. by adding paragraph (c) to read as 235); 20 U.S.C. 1082, 1094, 1221e-3 and 85.1015 Suspension. follows: 3474; and Sec. 2455 of Pub. L. 103–355, 108 85.1016 Title IV, HEA participant. Stat. 3243 at 3327. 85.1017 Title IV, HEA program. § 85.315 May I use the services of an 85.1018 Title IV, HEA transaction. excluded person under a covered ■ 13. Subpart F of part 85 is further 85.1020 Voluntary exclusion or voluntarily transaction? amended by adding a new § 85.611 to excluded. * * * * * read as follows:

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§ 85.611 What procedures do we use for a (b)(1) If a title IV, HEA participant is (3) An opportunity to present its suspension or debarment action involving a suspended by another agency under objection at a hearing— title IV, HEA transaction? E.O. 12549 or under a proposed (i) At which the agency has the (a) If we suspend a title IV, HEA debarment under the Federal burden of persuasion by a participant under Executive Order Acquisition Regulation (FAR) (48 CFR preponderance of the evidence that 12549, we use the following procedures part 9, subpart 9.4), using procedures there is cause for the exclusion; and to ensure that the suspension prevents described in paragraph (d) of this (ii) Conducted by an impartial person participation in title IV, HEA section, that party is not eligible to enter who does not also exercise prosecutorial transactions: into title IV, HEA transactions for the or investigative responsibilities with (1) The notification procedures in duration of the suspension. respect to the exclusion action; § 85.715. (2)(i) The suspension of title IV, HEA (4) An opportunity to present witness (2) Instead of the procedures in eligibility as a result of suspension by testimony, unless the hearing official § 85.720 through § 85.760, the another agency lasts for at least 60 days. finds that there is no genuine dispute procedures in 34 CFR part 668, subpart (ii) If the excluded party does not about a material fact; G or 34 CFR part 682, subpart D or G object to the suspension, the 60-day (5) An opportunity to have agency as applicable. period begins on the 35th day after that witnesses with personal knowledge of (3) In addition to the findings and agency issues the notice of suspension. material facts in genuine dispute testify conclusions required by 34 CFR part (iii) If the excluded party objects to about those facts, if the hearing official 668, subpart G or 34 CFR part 682, the suspension, the 60-day period determines their testimony to be subpart D or G, the suspending official, begins on the date of the decision of the needed, in light of other available and, on appeal, the Secretary suspending official. evidence and witnesses; and determines whether there is sufficient (3) The suspension of title IV, HEA (6) A written decision stating findings cause for suspension as explained in eligibility does not end on the 60th day of fact and conclusions of law on which § 85.700. if— the decision is rendered. (b) If we debar a title IV, HEA (i) The excluded party agrees to an Authority: E.O. 12549 (3 CFR, 1986 Comp., participant under E.O. 12549, we use extension; or p. 189), E.O. 12689 (3 CFR, 1989 Comp., p. the following procedures to ensure that (ii) Before the 60th day we begin a 235); 20 U.S.C. 1082, 1094, 1221e–3 and the debarment also precludes limitation or termination proceeding 3474; and Sec. 2455 of Pub. L. 103–355, 108 participation in title IV, HEA against the excluded party under 34 Stat. 3243 at 3327. transactions: CFR part 668, subpart G or part 682, ■ 15. Subpart G is amended by adding a (1) The notification procedures in subpart D or G. new § 85.711, to read as follows: § 85.805 and § 85.870. (c)(1) If a title IV, HEA participant is (2) Instead of the procedures in debarred or suspended by another § 85.711 When does a suspension affect title IV, HEA transactions? § 85.810 through § 85.885, the Federal agency— procedures in 34 CFR part 668, subpart (i) We notify the participant whether (a) A suspension under § 85.611(a) G or 34 CFR part 682, subpart D or G, the debarment or suspension prohibits takes effect immediately if the Secretary as applicable. participation in title IV, HEA takes an emergency action under 34 CFR (3) On appeal from a decision transactions; and part 668, subpart G or 34 CFR part 682, debarring a title IV, HEA participant, we (ii) If participation is prohibited, we subpart D or G at the same time the issue a final decision after we receive state the effective date and duration of Secretary issues the suspension. any written materials from the parties. the prohibition. (b)(1) Except as provided under (4) In addition to the findings and (2) If a debarment or suspension by paragraph (a) of this section, a conclusions required by 34 CFR part another agency prohibits participation suspension under § 85.611(a) takes 668, subpart G or 34 CFR part 682, in title IV, HEA transactions, that effect 20 days after those procedures are subpart D or G, the debarring official, prohibition takes effect 20 days after we complete. and, on appeal, the Secretary mail notice of our action. (2) If the respondent appeals the determines whether there is sufficient (3) If ED or another Federal agency suspension to the Secretary before the cause for debarment as explained in suspends a title IV, HEA participant, we expiration of the 20 days under § 85.800. determine whether grounds exist for an paragraph (b)(1) of this section, the suspension takes effect when the Authority: E.O. 12549 (3 CFR 1986 Comp., emergency action against the participant p. 189); E.O. 12689 (3 CFR Comp., p. 235); under 34 CFR part 668, subpart G or respondent receives the Secretary’s 20 U.S.C. 1082, 1094, 1221e–3 and 3474; and part 682, subpart D or G, as applicable. decision. Sec. 2455 of Pub. L. 103–355, 108 Stat. 3243 (4) We use the procedures in § 85.611 Authority: E.O. 12549 (3 CFR, 1986 Comp., at 3327. to exclude a title IV, HEA participant p. 189), E.O. 12689 (3 CFR, 1989 Comp., p. 235); 20 U.S.C. 1082, 1094, 1221e–3 and ■ 14. Subpart F of Part 85 is further excluded by another Federal agency using procedures that did not meet the 3474; and Sec. 2455 of Pub. L. 103–355, 108 amended by adding § 85.612 to read as Stat. 3243 at 3327. follows: standards in paragraph (d) of this section. ■ 16. Subpart H is amended by adding a § 85.612 When does an exclusion by (d) If a title IV, HEA participant is new § 85.811 to read as follows: another agency affect the ability of the excluded by another agency, we debar, excluded person to participate in a title IV, terminate, or suspend the participant— § 85.811 When does a debarment affect HEA transaction? as provided under this part, 34 CFR part title IV, HEA transactions? (a) If a title IV, HEA participant is 668, or 34 CFR part 682, as applicable— (a) A debarment under § 85.611(b) debarred by another agency under E.O. if that agency followed procedures that takes effect 30 days after those 12549, using procedures described in gave the excluded party— procedures are complete. paragraph (d) of this section, that party (1) Notice of the proposed action; (b) If the respondent appeals the is not eligible to enter into title IV, HEA (2) An opportunity to submit and debarment to the Secretary before the transactions for the duration of the have considered evidence and argument expiration of the 30 days under debarment. to oppose the proposed action; paragraph (a) of this section, the

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debarment takes effect when the (c) For the purposes of Department of 235); 20 U.S.C. 1082, 1094, 1221e–3 and respondent receives the Secretary’s Education title IV, HEA transactions— 3474; and Sec. 2455 of Pub. L. 103–355, 108 decision. (1) A third-party servicer, as defined Stat. 3243 at 3327. Authority: E.O. 12549 (3 CFR, 1986 Comp., in 34 CFR 668.2 or 682.200; or ■ 22. Subpart I of part 85 is further p. 189) E.O. 12689 (3 CFR, Comp., p. 235); (2) Any person who provides services amended by adding § 85.1018 to read as 20 U.S.C. 1082, 1094, 1221e–3 and 3474; and described in 34 CFR 668.2 or 682.200 to follows: Sec. 2455 of Pub. L. 103–355, 108 Stat. 3243 a title IV, HEA participant, whether or at 3327. not that person is retained or paid § 85.1018 Title IV, HEA transaction. ■ 17. Subpart I of part 85 is further directly by the title IV, HEA participant. A title IV, HEA transaction includes: amended by adding § 85.942 to read as * * * * * (a) A disbursement or delivery of follows: ■ 20. Subpart I of part 85 is further funds provided under a title IV, HEA amended by adding § 85.1016 to read as program to a student or borrower; § 85.942 ED Deciding Official. follows: The ED Deciding Official is an ED (b) A certification by an educational officer who has delegated authority § 85.1016 Title IV, HEA participant. institution of eligibility for a loan under under the procedures of the Department A title IV, HEA participant is— a title IV, HEA program; of Education to decide whether to affirm (a) An institution described in 34 CFR (c) Guaranteeing a loan made under a a suspension or enter a debarment. 600.4, 600.5, or 600.6 that provides title IV, HEA program; and Authority: E.O. 12549 (3 CFR, 1986 Comp., postsecondary education; or (d) The acquisition or exercise of any p. 189), E.O. 12689 (3 CFR, 1989 Comp., p. (b) A lender, third-party servicer, or servicing responsibility for a grant, loan, 235); 20 U.S.C. 1082, 1094, 1221e–3 and guaranty agency, as those terms are or work study assistance under a title 3474; and Sec. 2455 of Pub. L. 103–355, 108 defined in 34 CFR 668.2 or 682.200. IV, HEA program. Stat. 3243 at 3327. Authority: E.O. 12549 (3 CFR, 1986 Comp., Authority: E.O. 12549 (3 CFR, 1986 Comp., ■ 18. Subpart I of part 85 is further p. 189); E.O. 12689 (3 CFR, 1989 Comp., p. p. 189) E.O. 12689 (3 CFR, 1989 Comp., p. amended by adding § 85.952 to read as 235); 20 U.S.C. 1082, 1094, 1221e–3 and 235); 20 U.S.C. 1082, 1094, 1221e–3 and follows: 3474; and Sec. 2455 of Pub. L. 103–355, 108 3474; and Sec. 2455 of Pub. L. 103–355, 108 Stat. 3243 at 3327. Stat. 3243 at 3327. § 85.952 HEA. ■ 21. Subpart I of part 85 is further ■ 23. The appendix to part 85 is HEA means the Higher Education Act amended by adding § 85.1017 to read as of 1965, as amended. amended by removing and reserving the follows: Covered Transaction Chart and by ■ 19. Section 85.995 is further amended § 85.1017 Title IV, HEA program. adding a Covered Transactions for ED by adding paragraph (c) to read as Chart to read as follows. follows: A title IV, HEA program includes any program listed in 34 CFR 668.1(c). Appendix to Part 85—Covered § 85.995 Principal. Authority: E.O. 12549 (3 CFR, 1986 Comp., Transactions for ED Covered * * * * * p.1890: E.O. 12689 (3 CFR, 1989 Comp., p. Transactions—[Reserved]

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PART 668—STUDENT ASSISTANCE PART 682—FEDERAL FAMILY NATIONAL ARCHIVES AND RECORDS GENERAL PROVISIONS EDUCATION LOAN (FFEL) PROGRAM ADMINISTRATION 36 CFR Parts 1209 and 1212 ■ 24. The authority citation for part 668 ■ 26. The authority citation for part 682 is revised to read as follows: continues to read as follows: RIN 3095–AB04 Authority: 20 U.S.C. 1001, 1002, 1003, Authority: 20 U.S.C. 1071 to 1087–2, FOR FURTHER INFORMATION CONTACT: 1085, 1088, 1091, 1092, 1094, 1099c, and unless otherwise noted. 1099c–1, unless otherwise noted. Nancy Allard at Policy and § 682.416 [Amended] Communications Staff (NPOL), Room § 668.82 [Amended] 4100, 8601 Adelphi Road, College Park, ■ 27. Amend § 682.416(d)(1)(ii)(B) by Maryland 20740–6001, 301–837–1477, ■ 25. Amend § 668.82 as follows: removing the words ‘‘cause under 34 or [email protected]. ■ a. In paragraph (e)(1)(i)(B), by CFR 85.305 or 85.405’’ and adding, in removing the words ‘‘Cause exists under their place, the words ‘‘cause under 34 List of Subjects 34 CFR 85.305 or 85.405’’ and adding, in CFR 85.700 or 85.800.’’ their place, the words ‘‘Cause exists 36 CFR Part 1209 under 34 CFR 85.700 or 85.800’’. § 682.705 [Amended] Administrative practice and ■ b. In paragraphs (f)(1) and (f)(2)(i), by procedure, Debarment and suspension, removing the citation ‘‘34 CFR ■ 28. Amend § 682.705 by removing Grant programs, Reporting and 85.201(c)’’ and adding, in its place, the paragraph (a)(3). recordkeeping requirements. citation ‘‘34 CFR 85.612(d)’’. lllllllllllllllllll

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36 CFR Part 1212 Subpart C—Responsibilities of Participants 1209.430 How do I check to see if a person Regarding Transactions is excluded or disqualified? Administrative practice and 1209.435 What must I require of a primary Doing Business With Other Persons procedure, Drug abuse, Grant programs, tier participant? Reporting and recordkeeping 1209.300 What must I do before I enter into 1209.440 What method do I use to requirements. a covered transaction with another communicate those requirements to person at the next lower tier? participants? Dated: July 24, 2003. 1209.305 May I enter into a covered 1209.445 What action may I take if a John W. Carlin, transaction with an excluded or primary tier participant knowingly does business with an excluded or Archivist of the United States. disqualified person? 1209.310 What must I do if a Federal disqualified person? ■ For the reasons stated in the common agency excludes a person with whom I 1209.450 What action may I take if a preamble, the National Archives and am already doing business in a covered primary tier participant fails to disclose transaction? the information required under Records Administration amends 36 CFR § 1209.335? chapter XII, as follows: 1209.315 May I use the services of an excluded person as a principal under a 1209.455 What may I do if a lower tier participant fails to disclose the ■ 1. Part 1209 is revised to read as set covered transaction? 1209.320 Must I verify that principals of my information required under § 1209.35 to forth in instruction 1 at the end of the the next higher tier? common preamble. covered transactions are eligible to participate? Subpart E—Excluded Parties List System 1209.325 What happens if I do business PART 1209—GOVERNMENTWIDE 1209.500 What is the purpose of the with an excluded person in a covered DEBARMENT AND SUSPENSION Excluded Parties List System (EPLS)? transaction? (NONPROCUREMENT) 1209.505 Who uses the EPLS? 1209.330 What requirements must I pass 1209.510 Who maintains the EPLS? down to persons at lower tiers with Sec. 1209.515 What specific information is in whom I intend to do business? 1209.25 How is this part organized? the EPLS? 1209.50 How is this part written? Disclosing Information—Primary Tier 1209.520 Who places the information into 1209.75 Do terms in this part have special Participants the EPLS? 1209.525 Whom do I ask if I have questions meanings? 1209.335 What information must I provide about a person in the EPLS? before entering into a covered Subpart A—General 1209.530 Where can I find the EPLS? transaction with NARA? 1209.100 What does this part do? 1209.340 If I disclose unfavorable Subpart F—General Principles Relating to 1209.105 Does this part apply to me? information required under § 1209.335, Suspension and Debarment Actions 1209.110 What is the purpose of the will I be prevented from participating in nonprocurement debarment and 1209.600 How do suspension and the transaction? debarment actions start? suspension system? 1209.345 What happens if I fail to disclose 1209.115 How does an exclusion restrict a 1209.605 How does suspension differ from the information required under debarment? person’s involvement in covered § 1209.335? transactions? 1209.610 What procedures does NARA use 1209.350 What must I do if I learn of the in suspension and debarment actions? 1209.120 May we grant an exception to let information required under § 1209.335 an excluded person participate in a 1209.615 How does NARA notify a person after entering into a covered transaction of a suspension and debarment action? covered transaction? with NARA? 1209.125 Does an exclusion under the 1209.620 Do Federal agencies coordinate nonprocurement system affect a person’s Disclosing Information—Lower Tier suspension and debarment actions? eligibility for Federal procurement Participants 1209.625 What is the scope of a suspension or debarment action? contracts? 1209.355 What information must I provide 1209.630 May NARA impute the conduct of 1209.130 Does exclusion under the Federal to a higher tier participant before one person to another? procurement system affect a person’s entering into a covered transaction with 1209.635 May NARA settle a debarment or eligibility to participate in that participant? suspension action? nonprocurement transactions? 1209.360 What happens if I fail to disclose 1209.640 May a settlement include a 1209.135 May NARA exclude a person who the information required under voluntary exclusion? is not currently participating in a § 1209.355? 1209.645 Do other Federal agencies know if nonprocurement transaction? 1209.365 What must I do if I learn of NARA agrees to a voluntary exclusion? 1209.140 How do I know if a person is information required under § 1209.355 excluded? after entering into a covered transaction Subpart G—Suspension 1209.145 Does this part address persons with a higher tier participant? 1209.700 When may the suspending official who are disqualified, as well as those issue a suspension? who are excluded from nonprocurement Subpart D—Responsibilities of NARA Officials Regarding Transactions 1209.705 What does the suspending official transactions? consider in issuing a suspension? 1209.400 May I enter into a transaction Subpart B—Covered Transactions 1209.710 When does a suspension take with an excluded or disqualified person? effect? 1209.200 What is a covered transaction? 1209.405 May I enter into a covered 1209.715 What notice does the suspending 1209.205 Why is it important to know if a transaction with a participant if a official give me if I am suspended? particular transaction is a covered principal of the transaction is excluded? 1209.720 How may I contest a suspension? transaction? 1209.410 May I approve a participant’s use 1209.725 How much time do I have to 1209.210 Which nonprocurement of the services of an excluded person? contest a suspension? transactions are covered transactions? 1209.415 What must I do if a Federal 1209.730 What information must I provide 1209.215 Which nonprocurement agency excludes the participant or a to the suspending official if I contest a transactions are not covered principal after I enter into a covered suspension? transactions? transaction? 1209.735 Under what conditions do I get an 1209.220 Are any procurement contracts 1209.420 May I approve a transaction with additional opportunity to challenge the included as covered transactions? an excluded or disqualified person at a facts on which the suspension is based? 1209.225 How do I know if a transaction in lower tier? 1209.740 Are suspension proceedings which I may participate is a covered 1209.425 When do I check to see if a person formal? transaction? is excluded or disqualified? 1209.745 How is fact-finding conducted?

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1209.750 What does the suspending official 1209.1020 Voluntary exclusion or Subpart C—Requirements for Recipients consider in deciding whether to continue voluntarily excluded. Who Are Individuals or terminate my suspension? Subpart J—[Reserved] 1212.300 What must I do to comply with 1209.755 When will I know whether the this part if I am an individual recipient? suspension is continued or terminated? Appendix to Part 1209—Covered 1212.301 [Reserved] 1209.760 How long may my suspension Transactions last? Subpart D—Responsibilities of NARA Authority: 44 U.S.C. 2104(a); sec. 2455, Awarding Officials Subpart H—Debarment Pub. L. 103–355, 108 Stat. 3327 (31 U.S.C. 1212.400 What are my responsibilities as a 6101 note); E.O. 12549 (3 CFR 1986 Comp., 1209.800 What are the causes for NARA awarding official? debarment? p. 189); E.O. 12689 (3 CFR 1989 Comp., p. 1209.805 What notice does the debarring 235);. Subpart E—Violations of This Part and Consequences official give me if I am proposed for ■ 2. Part 1209 is further amended as set debarment? 1212.500 How are violations of this part 1209.810 When does a debarment take forth below. ■ a. ‘‘[Agency noun]’’ is removed and determined for recipients other than effect? individuals? 1209.815 How may I contest a proposed ‘‘NARA’’ is added in its place wherever 1212.505 How are violations of this part debarment? it occurs. determined for recipients who are ■ 1209.820 How much time do I have to b. ‘‘[Agency adjective]’’ is removed and individuals? contest a proposed debarment? ‘‘NARA’’ is added in its place wherever 1212.510 What actions will the Federal 1209.825 What information must I provide it occurs. Government take against a recipient to the debarring official if I contest a ■ c. ‘‘[Agency head or designee]’’ is determined to have violated this part? proposed debarment? removed and ‘‘Archivist of the United 1212.515 Are there any exceptions to those 1209.830 Under what conditions do I get an States or designee’’ is added in its place actions? additional opportunity to challenge the wherever it occurs. facts on which the proposed debarment Subpart F—Definitions ■ is based? 3. Section 1209.440 is added to read as 1212.605 Award. 1209.835 Are debarment proceedings follows: 1212.610 Controlled substance. formal? § 1209.440 What method do I use to 1212.615 Conviction. 1209.840 How is fact-finding conducted? communicate those requirements to 1212.620 Cooperative agreement. 1209.845 What does the debarring official participants? 1212.625 Criminal drug statute consider in deciding whether to debar 1212.630 Debarment. me? To communicate the requirement, you 1212.635 Drug-free workplace. 1209.850 What is the standard of proof in must include a term or condition in the 1212.640 Employee. a debarment action? transaction requiring the participants’ 1212.645 Federal agency or agency. 1209.855 Who has the burden of proof in a compliance with subpart C of this part 1212.650 Grant. debarment action? and requiring them to include a similar 1212.655 Individual. 1209.860 What factors may influence the term or condition in lower-tier covered 1212.660 Recipient. debarring official’s decision? transactions. 1212.665 State. 1209.865 How long may my debarment 1212.670 Suspension. last? ■ 4. Part 1212 is added to read as set forth Authority: 41 U.S.C. 701, et seq.; 44 U.S.C. 1209.870 When do I know if the debarring in instruction 2 at the end of the common 2104(a). official debars me? preamble. 1209.875 May I ask the debarring official to ■ reconsider a decision to debar me? PART 1212—GOVERNMENTWIDE 5. Part 1212 is further amended as set 1209.880 What factors may influence the REQUIREMENTS FOR DRUG-FREE forth below. debarring official during WORKPLACE (FINANCIAL ■ a. ‘‘[Agency noun]’’ is removed and reconsideration? ASSISTANCE) ‘‘NARA’’ is added in its place wherever 1209.885 May the debarring official extend it occurs. a debarment? Subpart A—Purpose and Coverage ■ b. ‘‘[Agency adjective]’’ is removed and Subpart I—Definitions Sec. 1212.100 What does this part do? ‘‘NARA’’ is added in its place wherever 1209.900 Adequate evidence. 1212.105 Does this part apply to me? it occurs. 1209.905 Affiliate. 1212.110 Are any of my Federal assistance ■ c. ‘‘[Agency head or designee]’’ is 1209.910 Agency. awards exempt from this part? 1209.915 Agent or representative. removed and ‘‘Archivist of the United 1212.115 Does this part affect the Federal States or designee’’ is added in its place 1209.920 Civil judgment. contracts that I receive? 1209.925 Conviction. wherever it occurs. 1209.930 Debarment. Subpart B—Requirements for Recipients ■ d. ‘‘[Agency head]’’ is removed and Other Than Individuals 1209.935 Debarring official. ‘‘Archivist of the United States or 1209.940 Disqualified. 1212.200 What must I do to comply with designee’’ is added in its place wherever 1209.945 Excluded or exclusion. this part? it occurs. 1209.950 Excluded Parties List System. 1212.205 What must I include in my drug- 1209.955 Indictment. free workplace statement? ■ 6. Section 1212.510(c) is further 1209.960 Ineligible or ineligibility. 1212.210 To whom must I distribute my amended by removing ‘‘[CFR citation for 1209.965 Legal proceedings. drug-free workplace statement? the Federal agency’s regulations 1209.970 Nonprocurement transaction. 1212.215 What must I include in my drug- implementing Executive Order 12549 1209.975 Notice. free awareness program? 1209.980 Participant. 1212.220 By when must I publish my drug- and Executive Order 12689]’’ and adding 1209.985 Person. free workplace statement and establish ‘‘36 CFR part 1209’’ in its place. 1209.990 Preponderance of the evidence. my drug-free awareness program? ■ 7. Section 1212.605(a)(2) is further 1209.995 Principal. 1212.225 What actions must I take amended by removing ‘‘[Agency-specific 1209.1000 Respondent. concerning employees who are convicted 1209.1005 State. of drug violations in the workplace? CFR citation]’’ and adding ‘‘36 CFR part 1209.1010 Suspending official. 1212.230 How and when must I identify 1207’’ in its place. 1209.1015 Suspension. workplaces? lllllllllllllllllll

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DEPARTMENT OF VETERANS 44.135 May the Department of Veterans 44.365 What must I do if I learn of AFFAIRS Affairs exclude a person who is not information required under § 44.355 after currently participating in a entering into a covered transaction with 38 CFR Parts 44 and 48 nonprocurement transaction? a higher tier participant? RIN 2900–AK16 44.140 How do I know if a person is excluded? Subpart D—Responsibilities of Department FOR FURTHER INFORMATION CONTACT: Mr. 44.145 Does this part address persons who of Veterans Affairs Officials Regarding Robert D. Finneran, Assistant Director are disqualified, as well as those who are Transactions for Loan Policy and Valuation (262), excluded from nonprocurement 44.400 May I enter into a transaction with Loan Guaranty Service, Veterans transactions? an excluded or disqualified person? Benefits Administration, Department of Subpart B—Covered Transactions 44.405 May I enter into a covered Veterans Affairs, Washington, DC transaction with a participant if a 44.200 What is a covered transaction? principal of the transaction is excluded? 20420, (202) 273–7369, e-mail: 44.205 Why is it important to know if a 44.410 May I approve a participant’s use of [email protected]. particular transaction is a covered the services of an excluded person? transaction? 44.415 What must I do if a Federal agency List of Subjects 44.210 Which nonprocurement transactions excludes the participant or a principal are covered transactions? 38 CFR Part 44 after I enter into a covered transaction? 44.215 Which nonprocurement transactions 44.420 May I approve a transaction with an Administrative practice and are not covered transactions? excluded or disqualified person at a procedure, Condominiums, Debarment 44.220 Are any procurement contracts included as covered transactions? lower tier? and suspension, Grant programs, 44.425 When do I check to see if a person Handicapped, Housing loan programs— 44.225 How do I know if a transaction in which I may participate is a covered is excluded or disqualified? housing and community development, transaction? 44.430 How do I check to see if a person is Manufactured homes, Reporting and excluded or disqualified? recordkeeping requirements, Veterans. Subpart C—Responsibilities of Participants 44.435 What must I require of a primary tier Regarding Transactions participant? 38 CFR Part 48 Doing Business With Other Persons 44.440 What method do I use to communicate those requirements to Administrative practice and 44.300 What must I do before I enter into procedure, Drug abuse, Grant programs, participants? a covered transaction with another 44.445 What action may I take if a primary Reporting and recordkeeping person at the next lower tier? tier participant knowingly does business requirements. 44.305 May I enter into a covered with an excluded or disqualified person? transaction with an excluded or Approved: August 4, 2003. 44.450 What action may I take if a primary disqualified person? Anthony J. Principi, tier participant fails to disclose the 44.310 What must I do if a Federal agency information required under § 44.335? Secretary of Veterans Affairs. excludes a person with whom I am 44.455 What may I do if a lower tier ■ For the reasons stated in the common already doing business in a covered participant fails to disclose the transaction? information required under § 44.355 to preamble, the Department of Veterans 44.315 May I use the services of an the next higher tier? Affairs amends 38 CFR Chapter I, as excluded person as a principal under a follows: covered transaction? Subpart E—Excluded Parties List System ■ 1. Part 44 is revised to read as set forth 44.320 Must I verify that principals of my 44.500 What is the purpose of the Excluded in instruction 1 at the end of the common covered transactions are eligible to Parties List System (EPLS)? participate? preamble. 44.505 Who uses the EPLS? 44.325 What happens if I do business with 44.510 Who maintains the EPLS? an excluded person in a covered PART 44—GOVERNMENTWIDE 44.515 What specific information is in the transaction? EPLS? DEBARMENT AND SUSPENSION 44.330 What requirements must I pass (NONPROCUREMENT) down to persons at lower tiers with 44.520 Who places the information into the whom I intend to do business? EPLS? Sec. 44.525 Whom do I ask if I have questions 44.25 How is this part organized? Disclosing Information—Primary Tier about a person in the EPLS? 44.50 How is this part written? Participants 44.530 Where can I find the EPLS? 44.75 Do terms in this part have special 44.335 What information must I provide Subpart F—General Principles Relating to meanings? before entering into a covered Suspension and Debarment Actions Subpart A—General transaction with the Department of Veterans Affairs? 44.600 How do suspension and debarment 44.100 What does this part do? 44.340 If I disclose unfavorable information actions start? 44.105 Does this part apply to me? required under § 44.335, will I be 44.605 How does suspension differ from 44.110 What is the purpose of the prevented from participating in the debarment? nonprocurement debarment and transaction? 44.610 What procedures does the suspension system? 44.345 What happens if I fail to disclose the Department of Veterans Affairs use in 44.115 How does an exclusion restrict a information required under § 44.335? suspension and debarment actions? person’s involvement in covered 44.350 What must I do if I learn of the 44.615 How does the Department of transactions? information required under § 44.335 after Veterans Affairs notify a person of a 44.120 May we grant an exception to let an entering into a covered transaction with suspension and debarment action? excluded person participate in a covered the Department of Veterans Affairs? 44.620 Do Federal agencies coordinate transaction? suspension and debarment actions? 44.125 Does an exclusion under the Disclosing Information—Lower Tier 44.625 What is the scope of a suspension or nonprocurement system affect a person’s Participants debarment action? eligibility for Federal procurement 44.355 What information must I provide to 44.630 May the Department of Veterans contracts? a higher tier participant before entering Affairs impute the conduct of one person 44.130 Does exclusion under the Federal into a covered transaction with that to another? procurement system affect a person’s participant? 44.635 May the Department of Veterans eligibility to participate in 44.360 What happens if I fail to disclose the Affairs settle a debarment or suspension nonprocurement transactions? information required under § 44.355? action?

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44.640 May a settlement include a 44.925 Conviction. ■ 5. Section 44.995 is further amended voluntary exclusion? 44.930 Debarment. by adding a paragraph (c) to read as 44.645 Do other Federal agencies know if 44.935 Debarring official. follows: the Department of Veterans Affairs 44.940 Disqualified. agrees to a voluntary exclusion? 44.945 Excluded or exclusion. § 44.995 Principal. 44.950 Excluded Parties List System. Subpart G—Suspension 44.700 When may * * * * * 44.955 Indictment. the suspending official issue a suspension? 44.960 Ineligible or ineligibility. (c) In the Department of Veterans 44.705 What does the suspending official 44.965 Legal proceedings. Affairs loan guaranty program, consider in issuing a suspension? 44.970 Nonprocurement transaction. principals include, but are not limited 44.710 When does a suspension take effect? 44.975 Notice. to the following: 44.715 What notice does the suspending 44.980 Participant. (1) Loan officers. official give me if I am suspended? 44.985 Person. (2) Loan solicitors, 44.720 How may I contest a suspension? 44.990 Preponderance of the evidence. (3) Loan processors. 44.725 How much time do I have to contest 44.995 Principal. (4) Loan servicers. a suspension? 44.1000 Respondent. 44.730 What information must I provide to (5) Loan supervisors. 44.1005 State. (6) Mortgage brokers. the suspending official if I contest a 44.1010 Suspending official. suspension? (7) Office managers. 44.1015 Suspension. (8) Staff appraisers and inspectors. 44.735 Under what conditions do I get an 44.1020 Voluntary exclusion or voluntarily additional opportunity to challenge the excluded. (9) Fee appraisers and inspectors. facts on which the suspension is based? (10) Underwriters. 44.740 Are suspension proceedings formal? Subpart J—[Reserved] (11) Bonding companies. 44.745 How is fact-finding conducted? Appendix to Part 44—Covered Transactions (12) Real estate agents and brokers. 44.750 What does the suspending official (13) Management and marketing consider in deciding whether to continue Authority: 38 U.S.C. 501 and 38 U.S.C. agents. or terminate my suspension? 3703(c); Sec. 2455, Pub. L. 103–355, 108 Stat. (14) Accountants, consultants, 44.755 When will I know whether the 3327 (31 U.S.C. 6101 note); E.O. 11738 (3 investments bankers, architects, suspension is continued or terminated CFR, 1973 Comp., p.799); E.O. 12549 (3 CFR 44.760 How long may my suspension engineers, attorneys, and others in a 1986 comp., p.189) E.O. 12689 (3 CFR 1989 business relationship with participants last? Comp., p. 235.) in connection with a covered Subpart H—Debarment 44.800 What are the ■ 2. Part 44 is further amended as set transaction under the Department of causes for debarment? forth below. Veterans Affairs loan guaranty program. 44.805 What notice does the debarring ■ a. ‘‘[Agency noun]’’ is removed and (15) Contractors involved in the official give me if I am proposed for ‘‘Department of Veterans Affairs’’ is construction, improvement or repair of debarment? added in its place wherever it occurs. properties financed with Department of 44.810 When does a debarment take effect? ■ b. ‘‘[Agency adjective]’’ is removed and 44.815 How may I contest a proposed Veterans Affairs guaranteed loans. debarment? ‘‘Department of Veterans Affairs’’ is (16) Closing Agents. 44.820 How much time do I have to contest added in its place wherever it occurs. ■ 6. Section 44.1010 is further amended ■ a proposed debarment? c. ‘‘[Agency head or designee]’’ is by adding paragraph (b) to read as 44.825 What information must I provide to removed and ‘‘Secretary’’ is added in its follows: the debarring official if I contest a place wherever it occurs. proposed debarment? ■ 3. Section 44.440 is added to read as § 44.1010 Suspending official. 44.830 Under what conditions do I get an follows: * * * * * additional opportunity to challenge the (b) For the Department of Veterans facts on which the proposed debarment § 44.440 What method do I use to is based? communicate those requirements to Affairs the suspending official is: 44.835 Are debarment proceedings formal? participants? (1) For the Veterans Health Administration, the Under Secretary for 44.840 How is fact-finding conducted? To communicate the requirement, you 44.845 What does the debarring official Health; must include a term or condition in the consider in deciding whether to debar (2) For the Veterans Benefits transaction requiring the participants’ me? Administration, the Under Secretary for compliance with subpart C of this part 44.850 What is the standard of proof in a Benefits; and debarment action? and requiring them to include a similar (3) For the National Cemetery 44.855 Who has the burden of proof in a term or condition in lower-tier covered debarment action? Administration, the Deputy Under transactions. Secretary for Operations. 44.860 What factors may influence the ■ 4. Section 44.935 is further amended debarring official’s decision? ■ 7. Part 48 is added to read as set forth by adding paragraph (b) to read as 44.865 How long may my debarment last? in instruction 2 at the end of the common follows: 44.870 When do I know if the debarring preamble. official debars me? § 44.935 Debarring official. 44.875 May I ask the debarring official to PART 48—GOVERNMENTWIDE reconsider a decision to debar me? * * * * * REQUIREMENTS FOR DRUG–FREE (b) For the Department of Veterans 44.880 What factors may influence the WORKPLACE (FINANCIAL debarring official during Affairs the debarring official is: reconsideration? (1) For the Veterans Health ASSISTANCE) 44.885 May the debarring official extend a Administration, the Under Secretary for Subpart A—Purpose and Coverage debarment? Health; Sec. Subpart I—Definitions (2) For the Veterans Benefits 48.100 What does this part do? 44.900 Adequate evidence. Administration, the Under Secretary for 48.105 Does this part apply to me? 44.905 Affiliate. Benefits; and 48.110 Are any of my Federal assistance 44.910 Agency. (3) For the National Cemetery awards exempt from this part? 44.915 Agent or representative. Administration, the Deputy Under 48.115 Does this part affect the Federal 44.920 Civil judgment. Secretary for Operations. contracts that I receive?

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Subpart B—Requirements for Recipients ■ d. ‘‘[Agency head]’’ is removed and Subpart A—General Other Than Individuals ‘‘Secretary’’ is added in its place 32.100 What does this part do? 48.200 What must I do to comply with this wherever it occurs. 32.105 Does this part apply to me? part? ■ 9. Section 48.510(c) is further amended 32.110 What is the purpose of the 48.205 What must I include in my drug-free nonprocurement debarment and workplace statement? by removing ‘‘[CFR citation for the suspension system? 48.210 To whom must I distribute my drug- Federal Agency’s regulations 32.115 How does an exclusion restrict a free workplace statement? implementing Executive Order 12549 person’s involvement in covered 48.215 What must I include in my drug-free and Executive Order 12689] and adding transactions? awareness program? ‘‘38 CFR part 44’’ in its place. 32.120 May we grant an exception to let an 48.220 By when must I publish my drug- ■ 10. Section 48.605(a)(2) is further excluded person participate in a covered transaction? free workplace statement and establish amended by removing ‘‘[Agency specific my drug-free awareness program? 32.125 Does an exclusion under the 48.225 What actions must I take concerning CFR citation]’’ and adding ‘‘38 CFR part nonprocurement system affect a person’s employees who are convicted of drug 43’’ in its place. eligibility for Federal procurement violations in the workplace? lllllllllllllllllll contracts? 48.230 How and when must I identify 32.130 Does exclusion under the Federal workplaces? ENVIRONMENTAL PROTECTION procurement system affect a person’s AGENCY eligibility to participate in Subpart C—Requirements for Recipients nonprocurement transactions? Who Are Individuals 40 CFR Parts 32 and 36 32.135 May the EPA exclude a person who 48.300 What must I do to comply with this RIN 2030–AA48 is not currently participating in a part if I am an individual recipient? nonprocurement transaction? 48.301 [Reserved] FOR FURTHER INFORMATION CONTACT: 32.140 How do I know if a person is Robert F. Meunier, EPA Debarring excluded? Subpart D—Responsibilities of the 32.145 Does this part address persons who Department of Veterans Affairs Awarding Official, Office of Grants and Debarment (3901R), U.S. Environmental Protection are disqualified, as well as those who are Officials excluded from nonprocurement Agency, 1200 Pennsylvania Ave., NW., 48.400 What are my responsibilities as a transactions? Washington, DC 20460, (202) 564–5399, Department of Veterans Affairs awarding Subpart B—Covered Transactions official? e-mail: [email protected]. 32.200 What is a covered transaction? Subpart E—Violations of This Part and List of Subjects 32.205 Why is it important to know if a Consequences 40 CFR Part 32 particular transaction is a covered 48.500 How are violations of this part transaction? determined for recipients other than Environmental protection, 32.210 Which nonprocurement transactions individuals? Administrative practice and procedure, are covered transactions? 48.505 How are violations of this part Air pollution control, Government 32.215 Which nonprocurement transactions determined for recipients who are contracts, Grant programs, Loan are not covered transactions? individuals? programs, Reporting and recordkeeping 32.220 Are any procurement contracts 48.510 What actions will the Federal included as covered transactions? requirements, Technical assistance, 32.225 How do I know if a transaction in Government take against a recipient Water pollution control. determined to have violated this part? which I may participate is a covered 48.515 Are there any exceptions to those 40 CFR Part 36 transaction? actions? Administrative practice and Subpart C—Responsibilities of Participants Regarding Transactions Subpart F—Definitions procedure, Drug abuse, Grant programs, 48.605 Award. Reporting and recordkeeping Doing Business With Other Persons 48.610 Controlled substance. requirements. 32.300 What must I do before I enter into 48.615 Conviction. Dated: July 17, 2003. a covered transaction with another 48.620 Cooperative agreement. person at the next lower tier? 48.625 Criminal drug statute. Morris X. Winn, 32.305 May I enter into a covered 48.630 Debarment. Assistant Administrator, Office of transaction with an excluded or 48.635 Drug-free workplace. Administration and Resources Management. disqualified person? 48.640 Employee. ■ 32.310 What must I do if a Federal agency 48.645 Federal agency or agency. For the reason stated in the common preamble, the Environmental Protection excludes a person with whom I am 48.650 Grant. already doing business in a covered 48.655 Individual. Agency amends 40 CFR chapter I, as transaction? 48.660 Recipient. follows: 32.315 May I use the services of an 48.665 State. ■ 1. Part 32 is revised to read as set forth excluded person as a principal under a 48.670 Suspension. in instruction 1 at the end of the common covered transaction? Authority: 41 U.S.C. 701, et seq.; 38 U.S.C preamble. 32.320 Must I verify that principals of my 501 covered transactions are eligible to PART 32—GOVERNMENTWIDE participate? ■ 8. Part 48 is further amended as set 32.325 What happens if I do business with forth below. DEBARMENT AND SUSPENSION an excluded person in a covered ■ a. ‘‘[Agency noun]’’ is removed and (NONPROCUREMENT); AND transaction? ‘‘Department of Veterans Affairs’’ is STATUTORY DISQUALIFICATION 32.330 What requirements must I pass added in its place wherever it occurs. UNDER THE CLEAN AIR ACT AND down to persons at lower tiers with ■ b. ‘‘[Agency adjective]’’ is removed and CLEAN WATER ACT whom I intend to do business? ‘‘Department of Veterans Affairs’’ is Sec. Disclosing Information—Primary Tier added in its place wherever it occurs. 32.25 How is this part organized? Participants ■ c. ‘‘[Agency head or designee]’’ is 32.50 How is this part written? 32.335 What information must I provide removed and ‘‘Secretary’’ is added in its 32.75 Do terms in this part have special before entering into a covered place wherever it occurs. meanings? transaction with the EPA?

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32.340 If I disclose unfavorable information 32.605 How does suspension differ from 32.875 May I ask the debarring official to required under § 32.335, will I be debarment? reconsider a decision to debar me? prevented from participating in the 32.610 What procedures does the EPA use 32.880 What factors may influence the transaction? in suspension and debarment actions? debarring official during 32.345 What happens if I fail to disclose the 32.615 How does the EPA notify a person reconsideration? information required under § 32.335? of a suspension or debarment action? 32.885 May the debarring official extend a 32.350 What must I do if I learn of the 32.620 Do Federal agencies coordinate debarment? information required under § 32.335 after suspension and debarment actions? 32.890 How may I appeal my debarment? entering into a covered transaction with 32.625 What is the scope of a suspension or the EPA? debarment? Subpart I—Definitions 32.630 May the EPA impute conduct of one 32.900 Adequate evidence. Disclosing Information—Lower Tier person to another? 32.905 Affiliate. Participants 32.635 May the EPA settle a debarment or 32.910 Agency. suspension action? 32.355 What information must I provide to 32.915 Agent or representative. 32.640 May a settlement include a a higher tier participant before entering 32.920 Civil judgment. voluntary exclusion? into a covered transaction with that 32.925 Conviction. participant? 32.645 Do other Federal agencies know if the EPA agrees to a voluntary exclusion? 32.930 Debarment. 32.360 What happens if I fail to disclose the 32.935 Debarring official. information required under § 32.355? Subpart G—Suspension 32.940 Disqualified. 32.365 What must I do if I learn of 32.700 When may the suspending official 32.945 Excluded or exclusion. information required under § 32.355 after issue a suspension? 32.950 Excluded Parties List System. entering into a covered transaction with 32.705 What does the suspending official 32.955 Indictment. a higher tier participant? consider in issuing a suspension? 32.960 Ineligible or ineligibility. Subpart D—Responsibilities of EPA 32.710 When does a suspension take effect? 32.965 Legal proceedings. Officials Regarding Transactions 32.715 What notice does the suspending 32.970 Nonprocurement transaction. official give me if I am suspended? 32.975 Notice. 32.400 May I enter into a transaction with 32.720 How may I contest a suspension? 32.980 Participant. an excluded or disqualified person? 32.725 How much time do I have to contest 32.985 Person. 32.405 May I enter into a covered a suspension? 32.990 Preponderance of the evidence. transaction with a participant if a 32.730 What information must I provide to 32.995 Principal. principal of the transaction is excluded? the suspending official if I contest a 32.1000 Respondent. 32.410 May I approve a participant’s use of suspension? 32.1005 State. the services of an excluded person? 32.735 Under what conditions do I get an 32.1010 Suspending official. 32.415 What must I do if a Federal agency additional opportunity to challenge the 32.1015 Suspension. excludes the participant or a principal facts on which the suspension is based? 32.1020 Voluntary exclusion or voluntarily after I enter into a covered transaction? 32.740 Are suspension proceedings formal? excluded. 32.420 May I approve a transaction with an 32.745 How is fact-finding conducted? excluded or disqualified person at a 32.750 What does the suspending official Subpart J—Statutory Disqualification and lower tier? consider in deciding whether to continue Reinstatement Under the Clean Air Act and 32.425 When do I check to see if a person or terminate my suspension? Clean Water Act is excluded or disqualified? 32.755 When will I know whether the 32.1100 What does this subpart do? 32.430 How do I check to see if a person is suspension is continued or terminated? 32.1105 Does this subpart apply to me? excluded or disqualified? 32.760 How long may my suspension last? 32.1110 How will a CAA or CWA 32.435 What must I require of a primary tier 32.765 How may I appeal my suspension? conviction affect my eligibility to participant? participate in Federal contracts, 32.440 What method do I use to Subpart H—Debarment subcontracts, assistance, loans and other communicate those requirements to 32.800 What are the causes for debarment? benefits? participants? 32.805 What notice does the debarring 32.1115 Can the EPA extend a CAA or CWA 32.445 What action may I take if a primary official give me if I am proposed for disqualification to other facilities? tier participant knowingly does business debarment? 32.1120 What is the purpose of CAA or with an excluded or disqualified person? 32.810 When does a debarment take effect? CWA disqualification? 32.450 What action may I take if a primary 32.815 How may I contest a proposed 32.1125 How do award officials and others tier participant fails to disclose the debarment? know if I am disqualified? information required under § 32.335? 32.820 How much time do I have to contest 32.1130 How does disqualification under 32.455 What may I do if a lower tier a proposed debarment? participant fails to disclose the 32.825 What information must I provide to the CAA or CWA differ from a Federal information required under § 32.355 to the debarring official if I contest a discretionary suspension or debarment the next higher tier? proposed debarment? action? 32.830 Under what conditions do I get an 32.1135 Does CAA or CWA disqualification Subpart E—Excluded Parties List System additional opportunity to challenge the mean that I must remain ineligible? 32.500 What is the purpose of the Excluded facts on which a proposed debarment is 32.1140 Can an exception be made to allow Parties List System (EPLS)? based? me to receive an award even though I 32.505 Who uses the EPLS? 32.835 Are debarment proceedings formal? may be disqualified? 32.510 Who maintains the EPLS? 32.840 How is fact-finding conducted? 32.1200 How will I know if I am 32.515 What specific information is in the 32.845 What does the debarring official disqualified under the CAA or CWA? EPLS? consider in deciding whether to debar 32.1205 What procedures must I follow to 32.520 Who places the information into the me? have my procurement and EPLS? 32.850 What is the standard of proof in a nonprocurement eligibility reinstated 32.525 Whom do I ask if I have questions debarment action? under the CAA or CWA? about a person in the EPLS? 32.855 Who has the burden of proof in a 32.1210 Will anyone else provide 32.530 Where can I find the EPLS? debarment action? information to the EPA debarring official 32.860 What factors may influence the concerning my reinstatement request? Subpart F—General Principles Relating to debarring official’s decision? 32.1215 What happens if I disagree with the Suspension and Debarment Actions 32.865 How long may my debarment last? information provided by others to the 32.600 How do suspension and debarment 32.870 When do I know if the debarring EPA debarring official on my actions start? official debars me? reinstatement request?

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32.1220 What will the EPA debarring § 32.440 What method do I use to of the debarring official’s decision in official consider in making a decision on communicate those requirements to two ways: my reinstatement request? participants? 32.1225 When will the EPA debarring (1) You may ask the debarring official To communicate the requirements to to reconsider the decision for material official make a decision on my participants, you must include a term or reinstatement request? errors of fact or law that you believe will 32.1230 How will the debarring official condition in the transaction requiring change the outcome of the matter; and/ notify me of the reinstatement decision? the participant’s compliance with or 32.1300 Can I resolve my eligibility status subpart C of this part, and requiring (2) You may request the Director, under terms of an administrative them to include a similar term or Office of Grants and Debarment (OGD agreement without having to submit a condition in lower tier covered formal reinstatement request? Director), to review the debarring transactions. official’s decision to debar you within 32.1305 What are the consequences if I ■ mislead the EPA in seeking 6. Section 32.765 is added to Subpart 30 days of your receipt of the debarring reinstatement or fail to comply with my G to read as follows: official’s decision under § 32.870 or administrative agreement? § 32.765 How may I appeal my paragraph (a)(1) of this section. 32.1400 How may I appeal a decision suspension? However, the OGD Director can reverse denying my request for reinstatement? the debarring official’s decision only (a) If the EPA suspending official 32.1500 If I am reinstated, when will my where the OGD Director finds that the issues a decision under § 32.755 to name be removed from the EPLS? decision is based on a clear error of 32.1600 What definitions apply specifically continue your suspension after you material fact or law, or where the OGD to actions under this subpart? present information in opposition to Director finds that the debarring that suspension under § 32.720, you can Appendix to Part 32—Covered Transactions official’s decision was arbitrary, ask for review of the suspending capricious, or an abuse of discretion. Authority: 33 U.S.C. 1251 et seq.; 42 U.S.C. official’s decision in two ways: 7401 et seq.; Sec. 2455, Pub. L. 103-355, 108 (1) You may ask the suspending (b) A request for review under this Stat. 3327 (31 U.S.C. 6101 note); E.O. 11738 official to reconsider the decision for section must be in writing; state the (3 CFR, 1973 Comp., p. 799); E.O. 12549 (3 material errors of fact or law that you specific findings you believe to be in CFR, 1986 Comp., p. 189); E.O. 12689 (3 CFR, error; and include the reasons or legal 1989 Comp., p. 235). believe will change the outcome of the matter; and/or bases for your position. PART 32—GOVERNMENTWIDE (2) You may request the Director, (c) A review under paragraph (a)(2) of DEBARMENT AND SUSPENSION Office of Grants and Debarment (OGD this section is solely within the (NONPROCUREMENT); AND Director), to review the suspending discretion of the OGD Director who may STATUTORY DISQUALIFICATION official’s decision to continue your also stay the debarment pending review UNDER THE CLEAN AIR ACT AND suspension within 30 days of your of the debarring official’s decision. CLEAN WATER ACT receipt of the suspending official’s (d) The EPA debarring official and the decision under § 32.755 or paragraph OGD Director must notify you of their ■ 2. The heading for Part 32 is revised as (a)(1) of this section. However, the OGD decisions under this section, in writing, set forth above. Director can reverse the suspending using the notice procedures at § 32.615 ■ 3. Part 32 is further amended as set official’s decision only where the OGD and § 32.975. forth below. Director finds that the decision is based ■ 8. Section 32.995 is further amended on a clear error of material fact or law, ■ a. ‘‘[Agency noun]’’ is removed and by adding a paragraph (c) to read as or where the OGD Director finds that the ‘‘EPA’’ is added in its place wherever it follows: suspending official’s decision was occurs. arbitrary, capricious, or an abuse of § 32.995 Principal. ■ b. ‘‘[Agency adjective]’’ is removed and discretion. * * * * * ‘‘EPA’’ is added in its place wherever it (b) A request for review under this (c) Other examples of individuals who occurs. section must be in writing; state the ■ c. ‘‘[Agency head or designee]’’ is are principals in EPA covered specific findings you believe to be in transactions include: removed and ‘‘EPA Debarring Official’’ is error; and include the reasons or legal (1) Principal investigators; added in its place wherever it occurs. bases for your position. ■ 4. Section 32.220 is further amended (c) A review under paragraph (a)(2) of (2) Technical or management by adding a paragraph (c) to read as this section is solely within the consultants; follows: discretion of the OGD Director who may (3) Individuals performing chemical also stay the suspension pending review or scientific analysis or oversight; § 32.220 Are any procurement contracts of the suspending official’s decision. (4) Professional service providers included as covered transactions? (d) The EPA suspending official and such as doctors, lawyers, accountants, * * * * * the OGD Director must notify you of engineers, etc.; (c) The contract is awarded by any their decisions under this section, in (5) Individuals responsible for the contractor, subcontractor, supplier, writing, using the notice procedures at inspection, sale, removal, consultant or its agent or representative § 32.615 and § 32.975. transportation, storage or disposal of in any transaction, regardless of tier, to ■ 7. Section 32.890 is added to Subpart solid or hazardous waste or materials; be funded or provided by the EPA under H to read as follows: a nonprocurement transaction that is (6) Individuals whose duties require special licenses; expected to equal or exceed $25,000. § 32.890 How may I appeal my debarment? (See optional lower tier coverage shown (7) Individuals that certify, (a) If the EPA debarring official issues authenticate or authorize billings; and in the diagram in the appendix to this a decision under § 32.870 to debar you part.) after you present information in (8) Individuals that serve in positions ■ 5. Section 32.440 is added to read as opposition to a proposed debarment of public trust. follows: under § 32.815, you can ask for review ■ 9. Subpart J is added to read as follows:

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Subpart J—Statutory Disqualification (b) You own, lease or supervise the this part or under 48 CFR part 9, subpart and Reinstatement Under the Clean Air violating facility. 9.4, are exclusions imposed at the Act and Clean Water Act discretion of Federal suspending or § 32.1115 Can the EPA extend a CAA or debarring officials. This means that if CWA disqualification to other facilities? § 32.1100 What does this subpart do? you are convicted of violating the CAA This subpart explains how the EPA The CAA specifically authorizes the or CWA provisions described under administers section 306 of the Clean Air EPA to extend a CAA disqualification to § 32.1105, ordinarily your name and Act (CAA) (42 U.S.C. 7606), and section other facilities that are owned or that of the violating facility is placed 508 of the Clean Water Act (CWA) (33 operated by the convicted person. The into the EPLS before you receive a U.S.C. 1368), which disqualify persons EPA also has authority under subparts confirmation notice of the listing, or convicted for certain offenses under A through I of this part, or under 48 CFR have an opportunity to discuss the those statutes (see § 32.1105), from part 9, subpart 9.4, to take discretionary disqualification with, or seek eligibility to receive certain contracts, suspension and debarment actions on reinstatement from, the EPA. subcontracts, assistance, loans and other the basis of misconduct leading to a (b) CAA or CWA disqualification benefits (see coverage under the Federal CAA or CWA conviction, or for applies to both the person convicted of Acquisition Regulation (FAR), 48 CFR activities that the EPA debarring official the offense, and to the violating facility part 9, subpart 9.4, and subparts A believes were designed to improperly during performance of an award or through I of this part). It also explains: circumvent a CAA or CWA covered transaction under the Federal the procedures for seeking reinstatement disqualification. procurement and nonprocurement of a person’s eligibility under the CAA § 32.1120 What is the purpose of CAA or suspension and debarment system. It is or CWA; the criteria and standards that CWA disqualification? the EPA’s policy to carry out CAA and CWA disqualifications in a manner apply to EPA’s decision-making process; As provided for in Executive Order which integrates the disqualifications and requirements of award officials and 11738 (3 CFR, 1973 Comp., p.799), the into the Governmentwide suspension others involved in Federal procurement purpose of CAA and CWA and debarment system. Whenever the and nonprocurement activities in disqualification is to enforce the Federal EPA determines that the risk presented carrying out their responsibilities under Government’s policy of undertaking to Federal procurement or the CAA and CWA. Federal procurement and nonprocurement activities on the basis nonprocurement activities in a manner § 32.1105 Does this subpart apply to me? of the misconduct which gives rise to a that improves and enhances (a) Portions of this subpart apply to person’s CAA or CWA conviction environmental quality by promoting you if you are convicted, or likely be exceeds the coverage afforded by effective enforcement of the CAA or convicted, of any offense under section mandatory disqualification, the EPA CWA. 7413(c) of the CAA or section 1319(c) of may use its discretionary authority to the CWA. § 32.1125 How do award officials and suspend or debar a person under (b) Portions of this subpart apply to others know if I am disqualified? subparts A through I of this part, or you if you are the EPA debarring If you are convicted under these under 48 CFR part 9, subpart 9.4. official, a Federal procurement or statutes, the EPA enters your name and § 32.1135 Does CAA or CWA nonprocurement award official, a address and that of the violating facility disqualification mean that I must remain participant in a Federal procurement or into the Excluded Parties List System ineligible? nonprocurement program that is (EPLS) as soon as possible after the EPA You must remain ineligible until the precluded from entering into a covered learns of your conviction. In addition, EPA debarring official certifies that the transaction with a person disqualified the EPA enters other information condition giving rise to your conviction under the CAA or CWA, or if you are describing the nature of your has been corrected. If you desire to have a Federal department or agency disqualification. Federal award officials your disqualification terminated, you anticipating issuing an exception to a and others who administer Federal must submit a written request for person otherwise disqualified under the programs consult the EPLS before reinstatement to the EPA debarring CAA or CWA. entering into or approving procurement official and support your request with and nonprocurement transactions. As of § 32.1110 How will a CAA or CWA persuasive documentation. For conviction affect my eligibility to participate the date of this regulation, award information about the process for in Federal contracts, subcontracts, officials and others, including the reinstatement see § 32.1205 and assistance, loans and other benefits? public, may obtain a yearly subscription § 32.1300. to a printed version of the EPLS from If you are convicted of any offense § 32.1140 Can an exception be made to described in § 32.1105, you are the Superintendent of Documents, U.S. Government Printing Office, allow me to receive an award even though automatically disqualified from I may be disqualified? eligibility to receive any contract, Washington, DC 20402, or by calling the Government Printing Office Inquiry and (a) After consulting with the EPA subcontract, assistance, sub-assistance, debarring official, the head of any loan or other nonprocurement benefit or Order Desk at (202) 783–3238. Anyone may access the EPLS through the Federal department or agency (or transaction that is prohibited by a designee) may exempt any particular Federal department or agency under the internet, currently at http://epls.arnet.gov. award or a class of awards with that Governmentwide debarment and department or agency from the suspension system (i.e., covered § 32.1130 How does disqualification under prohibitions otherwise resulting from transactions under subparts A through I the CAA or CWA differ from a Federal CAA or CWA disqualification. In the of this part, or prohibited awards under discretionary suspension or debarment event an exemption is granted, the 48 CFR part 9, subpart 9.4), if you: action? exemption must: (a) Will perform any part of the (a) CAA and CWA disqualifications (1) Be in writing; and transaction or award at the facility are exclusions mandated by statute. In (2) State why the exemption is in the giving rise to your conviction (called the contrast, suspensions and debarments paramount interests of the United violating facility); and imposed under subparts A through I of States.

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(b) In the event an exemption is procedures. Using your informal option in support of, or in opposition to, your granted, the exempting department or first does not prevent you from request for reinstatement, including any agency must send a copy of the submitting a formal reinstatement findings of material fact. exemption decision to the EPA request with the debarring official at any (b) The debarring official will also debarring official for inclusion in the time. consider any mitigating or aggravating official record. factors that may relate to your § 32.1210 Will anyone else provide conviction or the circumstances § 32.1200 How will I know if I am information to the EPA debarring official concerning my reinstatement request? surrounding it, including any of those disqualified under the CAA or CWA? factors that appear in § 32.860 that may If you request reinstatement under There may be several ways that you apply to your situation. learn about your disqualification. You § 32.1205, the EPA debarring official (c) Finally, if disqualification applies are legally on notice by the statutes that may obtain review and comment on to a business entity, the debarring a criminal conviction under the CAA or your request by anyone who may have official will consider any corporate or CWA automatically disqualifies you. As information about, or an official interest business attitude, policies, practices and a practical matter, you may learn about in, the matter. For example, the procedures that contributed to the debarring official may consult with the your disqualification from your defense events leading to conviction, or that EPA Regional offices, the Department of counsel, a Federal contract or award may have been implemented since the Justice or other Federal agencies, or official, or from someone else who sees date of the misconduct or conviction. state, tribal or local governments. The your name in the EPLS. As a courtesy, You can obtain any current policy EPA debarring official will make sure the EPA will attempt to notify you and directives issued by the EPA that apply that you have an opportunity to address the owner, lessor or supervisor of the to CAA or CWA disqualification or important allegations or information violating facility that your names have reinstatement by contacting the Office of contained in the administrative record been entered into the EPLS. The EPA the EPA Debarring Official, U. S. before making a final decision on your will inform you of the procedures for Environmental Protection Agency, request for reinstatement. seeking reinstatement and give you the Office of Grants and Debarment (3901– name of a person you can contact to § 32.1215 What happens if I disagree with R), 1200 Pennsylvania Avenue NW., discuss your reinstatement request. the information provided by others to the Washington, DC 20460. EPA debarring official on my reinstatement § 32.1205 What procedures must I follow request? § 32.1225 When will the EPA debarring to have my procurement and official make a decision on my nonprocurement eligibility reinstated under (a) If your reinstatement request is reinstatement request? the CAA or CWA? based on factual information (as opposed to a legal matter or (a) The EPA debarring official will (a) You must submit a written request make a decision regarding your for reinstatement to the EPA debarring discretionary conclusion) that is different from the information provided reinstatement request under official stating what you believe the § 32.1205(a), when the administrative conditions were that led to your by others or otherwise contained in the administrative record, the debarring record is complete, and he or she can conviction, and how those conditions determine whether the condition giving have been corrected, relieved or official will decide whether those facts are genuinely in dispute, and material to rise to the CAA or CWA conviction has addressed. Your request must include been corrected-usually within 45 days documentation sufficient to support all making a decision. If so, a fact-finding proceeding will be conducted in of closing the administrative record. material assertions you make. The (b) A reinstatement request is not accordance with § 32.830 through debarring official must determine that officially before the debarring official § 32.840, and the debarring official will all the technical and non-technical while you are having informal consider the findings when making a causes, conditions and consequences of discussions under § 32.1205(b). your actions have been sufficiently decision on your reinstatement request. (b) If the basis for your disagreement addressed so that the Government can § 32.1230 How will the EPA debarring with the information contained in the official notify me of the reinstatement confidently conduct future business administrative record relates to a legal decision? activities with you, and that your future issue or discretionary conclusion, or is operations will be conducted in The EPA debarring official will notify not a genuine dispute over a material compliance with the CAA and CWA. you of the reinstatement decision in fact, you will not have a fact-finding (b) You may begin the reinstatement writing, using the same methods for proceeding. However, the debarring process by having informal discussions communicating debarment or official will allow you ample with the EPA representative named in suspension action notices under opportunity to support your position for your notification of listing. Having § 32.615. the record and present matters in informal dialogue with that person will opposition to your continued § 32.1300 Can I resolve my eligibility make you aware of the EPA concerns disqualification. A summary of any status under terms of an administrative that must be addressed. The EPA agreement without having to submit a information you provide orally, if not representative is not required to formal reinstatement request? already recorded, should also be negotiate conditions for your (a) The EPA debarring official may, at submitted to the debarring official in reinstatement. However, beginning the any time, resolve your CAA or CWA writing to assure that it is preserved for reinstatement process with informal eligibility status under the terms of an the debarring official’s consideration dialogue increases the chance of administrative agreement. Ordinarily, and the administrative record. achieving a favorable outcome, and the debarring official will not make an avoids unnecessary delay that may § 32.1220 What will the EPA debarring offer to you for reinstatement until after result from an incomplete or inadequate official consider in making a decision on my the administrative record for decision is reinstatement request. It may also allow reinstatement request? complete, or contains enough you to resolve your disqualification by (a) The EPA debarring official will information to enable him or her to reaching an agreement with the EPA consider all information and arguments make an informed decision in the debarring official under informal contained in the administrative record matter.

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(b) Any resolution of your eligibility receipt of the debarring official’s PART 36—GOVERNMENTWIDE status under the CAA or CWA resulting decision under § 32.1230 or paragraph REQUIREMENTS FOR DRUG-FREE from an administrative agreement must (a)(1) of this section. However, the OGD WORKPLACE (FINANCIAL include a certification that the condition Director can reverse the debarring ASSISTANCE) giving rise to the conviction has been official’s decision denying reinstatement corrected. only where the OGD Director finds that Subpart A—Purpose and Coverage (c) The EPA debarring official may there is a clear error of material fact or Sec. enter into an administrative agreement law, or where the OGD Director finds 36.100 What does this part do? to resolve CAA or CWA disqualification that the debarring official’s decision was 36.105 Does this part apply to me? issues as part of a comprehensive arbitrary, capricious, or an abuse of 36.110 Are any of my Federal assistance criminal plea, civil or administrative discretion. awards exempt from this part? agreement when it is in the best interest (b) A request for review under this 36.115 Does this part affect the Federal contracts that I receive? of the United States to do so. section must be in writing and state the specific findings you believe to be in Subpart B—Requirements for Recipients § 32.1305 What are the consequences if I error and the reason for your position. Other Than Individuals mislead the EPA in seeking reinstatement (c) A review by the OGD Director or fail to comply with my administrative 36.200 What must I do to comply with this agreement? under this section is solely within the part? discretion of the OGD Director. 36.205 What must I include in my drug-free (a) Any certification of correction (d) The OGD Director must notify you workplace statement? issued by the EPA debarring official, of his or her decision under this section, 36.210 To whom must I distribute my drug- whether the certification results from a in writing, using the notice procedures free workplace statement? reinstatement decision under identified at § 32.615 and § 32.975. 36.215 What must I include in my drug-free § 32.1205(a) and § 32.1230, or from an awareness program? administrative agreement under § 32.1500 If I am reinstated, when will my 36.220 By when must I publish my drug- § 32.1205(b) and § 32.1300, is name be removed from the EPLS? free workplace statement and establish conditioned upon the accuracy of the If your eligibility for procurement and my drug-free awareness program? information, representations or nonprocurement participation is 36.225 What actions must I take concerning assurances made during development of restored under the CAA or CWA, employees who are convicted of drug violations in the workplace? the administrative record. whether by decision, appeal, or by 36.230 How and when must I identify (b) If the EPA debarring official finds administrative agreement, the EPA will workplaces? that he or she has certified correction of remove your name and that of the the condition giving rise to a CAA or violating facility from the EPLS, Subpart C—Requirements for Recipients CWA conviction or violation on the generally within 5 working days of your Who Are Individuals basis of a false, misleading, incomplete reinstatement. 36.300 What must I do to comply with this or inaccurate information; or if a person part if I am an individual recipient? fails to comply with material condition § 32.1600 What definitions apply 36.301 [Reserved] specifically to actions under this subpart? of an administrative agreement, the EPA Subpart D—Responsibilities of EPA debarring official may revoke the In addition to definitions under Awarding Officials certification of correction and subpart I of this part that apply to this part as a whole, the following two 36.400 What are my responsibilities as an immediately reinstate the CAA or CWA EPA awarding official? disqualification. In addition, the EPA definitions apply specifically to CAA and CWA disqualifications under this Subpart E—Violations of This Part and debarring official may take suspension Consequences or debarment action against the subpart: person(s) responsible for the (a) Person means an individual, 36.500 How are violations of this part misinformation or noncompliance with corporation, partnership, association, determined for recipients other than individuals? the agreement as appropriate. If anyone state, municipality, commission, or political subdivision of a state, or any 36.505 How are violations of this part provides false, inaccurate, incomplete or determined for recipients who are misleading information to EPA in an interstate body. (b) Violating facility means any individuals? attempt to obtain reinstatement, the EPA 36.510 What actions will the Federal debarring official will refer the matter to building, plant, installation, structure, mine, vessel, floating craft, location or Government take against a recipient the EPA Office of the Inspector General determined to have violated this part? site of operations that gives rise to a for potential criminal or civil action. 36.515 Are there any exceptions to those CAA or CWA conviction, and is a actions? § 32.1400 How may I appeal a decision location at which or from which a denying my request for reinstatement? Federal contract, subcontract, loan, Subpart F—Definitions (a) If the EPA debarring official denies assistance award or other covered 36.605 Award. your request for reinstatement under the transaction may be performed. If a site 36.610 Controlled substance. CAA or CWA, you can ask for review of of operations giving rise to a CAA or 36.615 Conviction. the EPA debarring official’s decision in CWA conviction contains or includes 36.620 Cooperative agreement. 36.625 Criminal drug statute. two ways: more than one building, plant, installation, structure, mine, vessel, 36.630 Debarment. (1) You may ask the debarring official 36.635 Drug-free workplace. to reconsider the decision for material floating craft, or other operational 36.640 Employee. errors of fact or law that you believe will element, the entire location or site of 36.645 Federal agency or agency. change the outcome of the matter; and/ operation is regarded as the violating 36.650 Grant. or facility unless otherwise limited by the 36.655 Individual. (2) You may request the Director, EPA. 36.660 Recipient. Office of Grants and Debarment (OGD ■ 10. Part 36 is added to read as set forth 36.665 State. Director), to review the debarring in instruction 2 at the end of the common 36.670 Suspension. official’s denial within 30 days of your preamble. Authority: 41 U.S.C. 701 et seq.

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■ 11. Part 36 is further amended as set PART 105–68—GOVERNMENTWIDE 105–68.325 What happens if I do business forth below. DEBARMENT AND SUSPENSION with an excluded person in a covered transaction? ■ (NONPROCUREMENT) a. ‘‘[Agency noun]’’ is removed and 105–68.330 What requirements must I pass ‘‘EPA’’ is added in its place wherever it Sec. down to persons at lower tiers with occurs. 105–68.25 How is this part organized? whom I intend to do business? ■ b. ‘‘[Agency adjective]’’ is removed and 105–68.50 How is this part written? Disclosing Information—Primary Tier 105–68.75 Do terms in this part have ‘‘EPA’’ is added in its place wherever it Participants special meanings? occurs. 105–68.335 What information must I ■ c. ‘‘[Agency head or designee]’’ is Subpart A—General provide before entering into a covered removed and ‘‘EPA Administrator or 105–68.100 What does this part do? transaction with the General Services designee’’ is added in its place wherever 105–68.105 Does this part apply to me? Administration? it occurs. 105–68.110 What is the purpose of the 105–68.340 If I disclose unfavorable nonprocurement debarment and information required under § 105– ■ d. ‘‘[Agency head]’’ is removed and suspension system? 68.335, will I be prevented from ‘‘EPA Administrator’’ is added in its 105–68.115 How does an exclusion restrict participating in the transaction? place wherever it occurs. a person’s involvement in covered 105–68.345 What happens if I fail to transactions? disclose the information required under ■ 12. Section 36.510(c) is further 105–68.120 May we grant an exception to § 105–68.335? amended by removing ‘‘[CFR citation for let an excluded person participate in a 105–68.350 What must I do if I learn of the the Federal Agency’s regulations covered transaction? information required under § 105–68.335 implementing Executive Order 12549 105–68.125 Does an exclusion under the after entering into a covered transaction and Executive Order 12689]’’ and adding nonprocurement system affect a person’s with the General Services ‘‘40 CFR Part 32’’ in its place. eligibility for Federal procurement Administration? contracts? ■ 13. Section 36.605(a)(2) is further 105–68.130 Does exclusion under the Disclosing Information—Lower Tier Participants amended by removing ‘‘[Agency-specific Federal procurement system affect a CFR citation]’’ and adding ‘‘40 CFR Part person’s eligibility to participate in 105–68.355 What information must I 31’’ in its place. nonprocurement transactions? provide to a higher tier participant before 105–68.135 May the General Services entering into a covered transaction with lllllllllllllllllll Administration exclude a person who is that participant? not currently participating in a 105–68.360 What happens if I fail to GENERAL SERVICES nonprocurement transaction? disclose the information required under ADMINISTRATION 105–68.140 How do I know if a person is § 105–68.355? excluded? 105–68.365 What must I do if I learn of 41 CFR Parts 105–68 and 105–74 105–68.145 Does this part address persons information required under § 105–68.355 RIN 3090–AH35 who are disqualified, as well as those after entering into a covered transaction who are excluded from nonprocurement with a higher tier participant? FOR FURTHER INFORMATION CONTACT: transactions? Subpart D—Responsibilities of GSA Donald J. Suda, Special Assistant for Subpart B—Covered Transactions Officials Regarding Transactions Contractor Integrity, General Services 105–68.200 What is a covered transaction? 105–68.400 May I enter into a transaction Administration, 1800 F Street NW., 105–68.205 Why is it important to know if Washington, DC 20405–0002, (202) 501– with an excluded or disqualified person? a particular transaction is a covered 105–68.405 May I enter into a covered 4770, e-mail: [email protected]. transaction? transaction with a participant if a 105–68.210 Which nonprocurement List of Subjects principal of the transaction is excluded? transactions are covered transactions? 105–68.410 May I approve a participant’s 41 CFR Part 105–68 105–68.215 Which nonprocurement use of the services of an excluded transactions are not covered person? Administrative practice and transactions? 105–68.415 What must I do if a Federal procedure, Debarment and suspension, 105–68.220 Are any procurement contracts agency excludes the participant or a Grant programs, Reporting and included as covered transactions? principal after I enter into a covered 105–68.225 How do I know if a transaction recordkeeping requirements. transaction? in which I may participate is a covered 105–68.420 May I approve a transaction 41 CFR Part 105–74 transaction? with an excluded or disqualified person Subpart C—Responsibilities of Participants at a lower tier? Administrative practice and Regarding Transactions 105–68.425 When do I check to see if a procedure, Drug abuse, Grant programs, person is excluded or disqualified? Reporting and recordkeeping Doing Business With Other Persons 105–68.430 How do I check to see if a requirements. 105–68.300 What must I do before I enter person is excluded or disqualified? into a covered transaction with another 105–68.435 What must I require of a Dated: September 23, 2003. person at the next lower tier? primary tier participant? Stephen A. Perry, 105–68.305 May I enter into a covered 105–68.440 What method do I use to Administrator of General Services. transaction with an excluded or communicate those requirements to disqualified person? participants? ■ For the reasons stated in the common 105–68.310 What must I do if a Federal 105–68.445 What action may I take if a preamble, the General Services agency excludes a person with whom I primary tier participant knowingly does Administration amends 41 CFR chapter am already doing business in a covered business with an excluded or 105, as follows: transaction? disqualified person? 105–68.315 May I use the services of an 105–68.450 What action may I take if a CHAPTER 105—[AMENDED] excluded person as a principal under a primary tier participant fails to disclose covered transaction? the information required under § 105– ■ 1. Part 105–68 is revised to read as set 105–68.320 Must I verify that principals of 68.335? forth in instruction 1 at the end of the my covered transactions are eligible to 105–68.455 What may I do if a lower tier common preamble. participate? participant fails to disclose the

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information required under § 105–68.355 Subpart H—Debarment p. 189; E.O. 12689, 3 CFR, 1989 Comp., p. to the next higher tier? 105–68.800 What are the causes for 235. Subpart E—Excluded Parties List System debarment? ■ 2. Part 105–68 is further amended as 105–68.805 What notice does the debarring set forth below. 105–68.500 What is the purpose of the official give me if I am proposed for Excluded Parties List System (EPLS)? debarment? ■ a. ‘‘[Agency noun]’’ is removed and 105–68.505 Who uses the EPLS? 105–68.810 When does a debarment take ‘‘General Services Administration’’ is 105–68.510 Who maintains the EPLS? effect? added in its place wherever it occurs. 105–68.515 What specific information is in 105–68.815 How may I contest a proposed ■ the EPLS? debarment? b. ‘‘[Agency adjective]’’ is removed and 105–68.520 Who places the information 105–68.820 How much time do I have to ‘‘GSA’’ is added in its place wherever it into the EPLS? contest a proposed debarment? occurs. 105–68.525 Whom do I ask if I have 105–68.825 What information must I ■ c. ‘‘[Agency head or designee]’’ is questions about a person in the EPLS? provide to the debarring official if I removed and ‘‘Administrator of General 105–68.530 Where can I find the EPLS? contest a proposed debarment? 105–68.830 Under what conditions do I get Services ‘‘is added in its place wherever Subpart F—General Principles Relating to an additional opportunity to challenge it occurs. Suspension and Debarment Actions the facts on which the proposed ■ 3. Section 105–68.440 is added to read 105–68.600 How do suspension and debarment is based? as follows: debarment actions start? 105–68.835 Are debarment proceedings 105–68.605 How does suspension differ formal? § 105–68.440 What method do I use to from debarment? 105–68.840 How is fact-finding conducted? communicate those requirements to 105–68.610 What procedures does the 105–68.845 What does the debarring official participants? General Services Administration use in consider in deciding whether to debar suspension and debarment actions? me? To communicate the requirement, you 105–68.850 What is the standard of proof in 105–68.615 How does the General Services must include a term or condition in the a debarment action? Administration notify a person of a transaction requiring the participants’ 105–68.855 Who has the burden of proof in compliance with subpart C of this part suspension and debarment action? a debarment action? 105–68.620 Do Federal agencies coordinate 105–68.860 What factors may influence the and requiring them to include a similar suspension and debarment actions? debarring official’s decision? term or condition in lower-tier covered 105–68.625 What is the scope of a 105–68.865 How long may my debarment transactions. suspension or debarment action? last? ■ 105–68.630 May the General Services 4. Part 105–74 is added to read as set 105–68.870 When do I know if the forth in instruction 2 at the end of the Administration impute the conduct of debarring official debars me? one person to another? 105–68.875 May I ask the debarring official common preamble. 105–68.635 May the General Services to reconsider a decision to debar me? Administration settle a debarment or 105–68.880 What factors may influence the PART 105–74—GOVERNMENTWIDE suspension action? debarring official during REQUIREMENTS FOR DRUG-FREE 105–68.640 May a settlement include a reconsideration? WORKPLACE (FINANCIAL voluntary exclusion? 105–68.885 May the debarring official ASSISTANCE) 105–68.645 Do other Federal agencies know extend a debarment? Subpart A—Purpose and Coverage if the General Services Administration Subpart I—Definitions agrees to a voluntary exclusion? Sec. 105–68.900 Adequate evidence. 105–74.100 What does this part do? Subpart G—Suspension 105–68.905 Affiliate. 105–74.105 Does this part apply to me? 105–68.910 Agency. 105–68.700 When may the suspending 105–74.110 Are any of my Federal 105–68.915 Agent or representative. official issue a suspension? assistance awards exempt from this part? 105–68.705 What does the suspending 105–68.920 Civil judgment. 105–68.925 Conviction. 105–74.115 Does this part affect the Federal official consider in issuing a suspension? contracts that I receive? 105–68.710 When does a suspension take 105–68.930 Debarment. effect? 105–68.935 Debarring official. Subpart B—Requirements for Recipients 105–68.715 What notice does the 105–68.940 Disqualified. Other Than Individuals 105–68.945 Excluded or exclusion. suspending official give me if I am 105–74.200 What must I do to comply with suspended? 105–68.950 Excluded Parties List System. 105–68.955 Indictment. this part? 105–68.720 How may I contest a 105–68.960 Ineligible or ineligibility. 105–74.205 What must I include in my suspension? 105–68.965 Legal proceedings. drug-free workplace statement? 105–68.725 How much time do I have to 105–68.970 Nonprocurement transaction. 105–74.210 To whom must I distribute my contest a suspension? 105–68.975 Notice. drug-free workplace statement? 105–68.730 What information must I 105–68.980 Participant. 105–74.215 What must I include in my provide to the suspending official if I 105–68.985 Person. drug-free awareness program? contest a suspension? 105–68.990 Preponderance of the evidence. 105–74.220 By when must I publish my 105–68.735 Under what conditions do I get 105–68.995 Principal. drug-free workplace statement and an additional opportunity to challenge 105–68.1000 Respondent. establish my drug-free awareness the facts on which the suspension is 105–68.1005 State. program? based? 105–68.1010 Suspending official. 105–74.225 What actions must I take 105–68.740 Are suspension proceedings 105–68.1015 Suspension. concerning employees who are convicted formal? 105–68.1020 Voluntary exclusion or of drug violations in the workplace? 105–68.745 How is fact-finding conducted? voluntarily excluded. 105–74.230 How and when must I identify 105–68.750 What does the suspending workplaces? official consider in deciding whether to Subpart J—[Reserved] continue or terminate my suspension? Subpart C—Requirements for Recipients Appendix to Part 105–68-Covered Who Are Individuals 105–68.755 When will I know whether the Transactions suspension is continued or terminated? 105–74.300 What must I do to comply with 105–68.760 How long may my suspension Authority: Sec. 2455, Pub. L. 103–355, 108 this part if I am an individual recipient? last? Stat. 3327; E.O. 12549, 3 CFR, 1986 Comp., 105–74.301 [Reserved]

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Subpart D—Responsibilities of GSA List of Subjects 42.120 May we grant an exception to let an Awarding Officials excluded person participate in a covered 43 CFR Part 12 105–74.400 What are my responsibilities as transaction? a GSA awarding official? Administrative practice and 42.125 Does an exclusion under the procedure, Contract programs, nonprocurement system affect a person’s Subpart E—Violations of This Part and eligibility for Federal procurement Consequences Cooperative agreements, Debarment and contracts? suspension, Grant programs, Grant 42.130 Does exclusion under the Federal 105–74.500 How are violations of this part administration. determined for recipients other than procurement system affect a person’s individuals? eligibility to participate in 43 CFR Part 42 nonprocurement transactions? 105–74.505 How are violations of this part 42.135 May the Department of the Interior determined for recipients who are Administrative practice and exclude a person who is not currently individuals? procedure, Contract programs, participating in a nonprocurement 105–74.510 What actions will the Federal Cooperative agreements, Debarment and transaction? Government take against a recipient suspension, Grant programs, Grants 42.140 How do I know if a person is determined to have violated this part? administration, Reporting and excluded? 105–74.515 Are there any exceptions to recordkeeping requirements. 42.145 Does this part address persons who those actions? are disqualified, as well as those who are 43 CFR Part 43 Subpart F—Definitions excluded from nonprocurement transactions? 105–74.605 Award. Administrative practice and 105–74.610 Controlled substance. procedure, Contract programs, Subpart B—Covered Transactions Cooperative agreements, Drug abuse, 105–74.615 Conviction. 42.200 What is a covered transaction? 105–74.620 Cooperative agreement. Grant programs, Grants administration, 42.205 Why is it important to know if a 105–74.625 Criminal drug statute. Reporting and recordkeeping particular transaction is a covered 105–74.630 Debarment. requirements. transaction? 105–74.635 Drug-free workplace. Dated: July 25, 2003. 42.210 Which nonprocurement transactions 105–74.640 Employee. are covered transactions? 105–74.645 Federal agency or agency. P. Lynn Scarlett, 42.215 Which nonprocurement transactions 105–74.650 Grant. Assistant Secretary—Policy, Management are not covered transactions? 105–74.655 Individual. and Budget. 42.220 Are any procurement contracts 105–74.660 Recipient. ■ Accordingly, for the reasons stated in included as covered transactions? 105–74.665 State. the common preamble, the Department 42.225 How do I know if a transaction in 105–74.670 Suspension. which I may participate is a covered of Interior amends 43 CFR subtitle A, as transaction? Authority: 41 U.S.C. 701 et seq. follows: Subpart C—Responsibilities of Participants ■ 5. Part 105–74 is further amended as PART 12—ADMINISTRATIVE AND Regarding Transactions set forth below. AUDIT REQUIREMENTS AND COST ■ a. ‘‘[Agency noun]’’ is removed and Doing Business With Other Persons PRINCIPLES FOR ASSISTANCE ‘‘General Services Administration’’ is 42.300 What must I do before I enter into PROGRAMS added in its place wherever it occurs. a covered transaction with another ■ b. ‘‘[Agency adjective]’’ is removed and ■ 1. The authority citation for part 12 is person at the next lower tier? 42.305 May I enter into a covered ‘‘GSA’’ is added in its place wherever it revised to read as follows: transaction with an excluded or occurs. Authority: E.O 12549 (3 CFR, 1986 Comp., disqualified person? ■ c. ‘‘[Agency head or designee]’’ is p. 189); E.O. 12689 (3 CFR, 1989 Comp., p. 42.310 What must I do if a Federal agency removed and ‘‘Administrator of General 235); sec. 2455, Pub. L. 103–355, 108 Stat. excludes a person with whom I am Services’’ is added in its place wherever 3327 (31 U.S.C. 6101 note); 5 U.S.C. 301; already doing business in a covered it occurs. U.S.C 6101 note. transaction? 42.315 May I use the services of an ■ d. ‘‘[Agency head]’’ is removed and ■ 2. Part 12, Subpart D is removed and excluded person as a principal under a ‘‘Administrator of General Services’’ is reserved. covered transaction? added in its place wherever it occurs. ■ 3. Part 42 is added to read as set forth 42.320 Must I verify that principals of my ■ 6. Section 105–74.510(c) is further covered transactions are eligible to in instruction 1 at the end of the common participate? amended by removing ‘‘[CFR citation for preamble. the Federal agency’s regulations 42.325 What happens if I do business with an excluded person in a covered implementing Executive Order 12549 PART 42—GOVERNMENTWIDE transaction? and Executive Order 12689]’’ and adding DEBARMENT AND SUSPENSION 42.330 What requirements must I pass ‘‘41 FR part 105–68’’ in its place. (NONPROCUREMENT) down to persons at lower tiers with ■ 7. Section 105–74.605(a)(2) is further whom I intend to do business? Sec. amended by removing ‘‘[Agency-specific Disclosing Information—Primary Tier CFR citation]’’ and adding ‘‘41 CFR part 42.25 How is this part organized? 42.50 How is this part written? Participants 105–71’’ in its place. 42.75 Do terms in this part have special 42.335 What information must I provide lllllllllllllllllll meanings? before entering into a covered transaction with the Department of the Subpart A—General DEPARTMENT OF THE INTERIOR Interior? 43 CFR Parts 12, 42 and 43 42.100 What does this part do? 42.340 If I disclose unfavorable information 42.105 Does this part apply to me? required under § 42.335, will I be RIN 1090–AA79 42.110 What is the purpose of the prevented from participating in the nonprocurement debarment and transaction? FOR FURTHER INFORMATION CONTACT: suspension system? 42.345 What happens if I fail to disclose the Debra E. Sonderman, Director, Office of 42.115 How does an exclusion restrict a information required under § 42.335? Acquisition and Property Management, person’s involvement in covered 42.350 What must I do if I learn of the (202) 208–6431. transactions? information required under § 42.335 after

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entering into a covered transaction with 42.620 Do Federal agencies coordinate 42.885 May the debarring official extend a the Department of the Interior? suspension and debarment actions? debarment? 42.625 What is the scope of a suspension or Subpart I—Definitions Disclosing Information—Lower Tier debarment action? Participants 42.630 May the Department of the Interior 42.900 Adequate evidence. 42.355 What information must I provide to impute the conduct of one person to 42.905 Affiliate. a higher tier participant before entering another? 42.910 Agency. into a covered transaction with that 42.635 May the Department of the Interior 42.915 Agent or representative. participant? settle a debarment or suspension action? 42.920 Civil judgment. 42.360 What happens if I fail to disclose the 42.640 May a settlement include a 42.925 Conviction. information required under § 42.355? voluntary exclusion? 42.930 Debarment. 42.365 What must I do if I learn of 42.645 Do other Federal agencies know if 42.935 Debarring official. information required under § 42.355 after the Department of the Interior agrees to 42.940 Disqualified. entering into a covered transaction with a voluntary exclusion? 42.945 Excluded or exclusion. a higher tier participant? 42.950 Excluded Parties List System. Subpart G—Suspension 42.955 Indictment. Subpart D—Responsibilities of Department 42.700 When may the suspending official 42.960 Ineligible or ineligibility. of the Interior Officials Regarding issue a suspension? 42.965 Legal proceedings. Transactions 42.705 What does the suspending official 42.970 Nonprocurement transaction. 42.400 May I enter into a transaction with consider in issuing a suspension? 42.975 Notice. an excluded or disqualified person? 42.710 When does a suspension take effect? 42.980 Participant. 42.405 May I enter into a covered 42.715 What notice does the suspending 42.985 Person. transaction with a participant if a official give me if I am suspended? 42.990 Preponderance of the evidence. principal of the transaction is excluded? 42.720 How may I contest a suspension? 42.995 Principal. 42.410 May I approve a participant’s use of 42.725 How much time do I have to contest 42.1000 Respondent. the services of an excluded person? a suspension? 42.1005 State. 42.415 What must I do if a Federal agency 42.730 What information must I provide to 42.1010 Suspending official. excludes the participant or a principal the suspending official if I contest a 42.1015 Suspension. after I enter into a covered transaction? suspension? 42.1020 Voluntary exclusion or voluntarily 42.420 May I approve a transaction with an 42.735 Under what conditions do I get an excluded. excluded or disqualified person at a additional opportunity to challenge the Subpart J—[Reserved] lower tier? facts on which the suspension is based? 42.425 When do I check to see if a person 42.740 Are suspension proceedings formal? Appendix to Part 42—Covered Transactions is excluded or disqualified? 42.745 How is fact-finding conducted? 42.430 How do I check to see if a person is 42.750 What does the suspending official Authority: E.O. 12549 (3 CFR, 1986 Comp., excluded or disqualified? consider in deciding whether to continue p. 189); E.O. 12689 (3 CFR, 1989 Comp., p. 42.435 What must I require of a primary tier or terminate my suspension? 235); sec. 2455, Pub. L. 103–355, 108 Stat. participant? 42.755 When will I know whether the 3327 (31 U.S.C. 6101 note); 5 U.S.C. 301; 31 42.440 What method do I use to suspension is continued or terminated? U.S.C. 42.760 How long may my suspension last? communicate those requirements to ■ 4. Part 42 is further amended as set participants? Subpart H—Debarment forth below. 42.445 What action may I take if a primary ■ tier participant knowingly does business 42.800 What are the causes for debarment? a. ‘‘[Agency noun]’’ is removed and with an excluded or disqualified person? 42.805 What notice does the debarring ‘‘Department of the Interior’’ is added in 42.450 What action may I take if a primary official give me if I am proposed for its place wherever it occurs. tier participant fails to disclose the debarment? ■ b. ‘‘[Agency adjective]’’ is removed and information required under § 42.335? 42.810 When does a debarment take effect? ‘‘Department of the Interior’’ is added in 42.455 What may I do if a lower tier 42.815 How may I contest a proposed its place where it occurs. participant fails to disclose the debarment? ■ c. ‘‘[Agency head or designee]’’ is information required under § 42.355 to 42.820 How much time do I have to contest removed and ‘‘Director, Office of the next higher tier? a proposed debarment? 42.825 What information must I provide to Acquisition and Property Management’’ Subpart E—Excluded Parties List System the debarring official if I contest a is added in its place wherever it occurs. 42.500 What is the purpose of the Excluded proposed debarment? ■ 5. Section 42.215 is further amended Parties List System (EPLS)? 42.830 Under what conditions do I get an by adding paragraphs (h) through (k) to 42.505 Who uses the EPLS? additional opportunity to challenge the read as follows: 42.510 Who maintains the EPLS? facts on which the proposed debarment 42.515 What specific information is in the is based? § 42.215 Which nonprocurement EPLS? 42.835 Are debarment proceedings formal? transactions are not covered transactions? 42.520 Who places the information into the 42.840 How is fact-finding conducted? * * * * * EPLS? 42.845 What does the debarring official (h) Transactions entered into pursuant 42.525 Whom do I ask if I have questions consider in deciding whether to debar me? to Public Law 93–638, 88 Stat. 2203. about a person in the EPLS? (i) Under natural resource 42.530 Where can I find the EPLS? 42.850 What is the standard of proof in a debarment action? management programs, permits, Subpart F—General Principles Relating to 42.855 Who has the burden of proof in a licenses, exchanges and other Suspension and Debarment Actions debarment action? acquisitions of real property, rights-of- 42.600 How do suspension and debarment 42.860 What factors may influence the way, and easements. actions start? debarring official’s decision? (j) Transactions concerning mineral 42.605 How does suspension differ from 42.865 How long may my debarment last? patent claims entered into pursuant to debarment? 42.870 When do I know if the debarring 30 U.S.C. 22 et seq. 42.610 What procedures does the official debars me? (k) Water service contracts and Department of the Interior use in 42.875 May I ask the debarring official to repayments entered into pursuant to 43 suspension and debarment actions? reconsider a decision to debar me? 42.615 How does the Department of the 42.880 What factors may influence the U.S.C. 485. Interior notify a person of a suspension debarring official during ■ 6. Section 42.440 is added to read as and debarment action? reconsideration? follows:

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§ 42.440 What method do I use to 43.205 What must I include in my drug-free ■ d. ‘‘[Agency head]’’ is removed and communicate those requirements to workplace statement? ‘‘Secretary of the Interior’’ is added in its participants? 43.210 To whom must I distribute my drug- place wherever it occurs. To communicate the requirement to free workplace statement? ■ 43.215 What must I include in my drug-free 12. Section 43.301 is added to read as participants, you must include a term or follows: condition in the transaction requiring awareness program? 43.220 By when must I publish my drug- § 43.301 Is there a central point to which the participants’ compliance with free workplace statement and establish I may report information required by subpart C of this part and requiring my drug-free awareness program? § 43.300? them to include a similar term or 43.225 What actions must I take concerning condition in lower-tier covered employees who are convicted of drug No. The Department of the Interior is transactions. violations in the workplace? not designating a central location for the ■ 7. Section 42.935 is further amended 43.230 How and when must I identify receipt of these reports. Therefore you by adding paragraph (b) to read as workplaces? shall provide this report to every grant follows: Subpart C—Requirements for Recipients officer, or other designee within a Who Are Individuals Bureau/Office of the Department on § 42.935 Debarring official. 43.300 What must I do to comply with this whose grant activity the convicted * * * * * part if I am an individual recipient? employee was working. (b) The debarring official for the 43.301 Is there a central point to which I ■ 13. Section 43.510(c) is further Department of the Interior is the may report information required by amended by removing ‘‘[CFR citation for Director, Office of Acquisition and § 43.300? the Federal Agency’s regulations Property Management. Subpart D—Responsibilities of Department implementing Executive Order 12549 ■ 8. Section 42.970 is further amended of the Interior Awarding Officials and Executive Order 12689]’’ and adding by adding paragraphs (a)(12) through 43.400 What are my responsibilities as a ‘‘43 CFR Part 42’’in its place. (a)(15) to read as follows: Department of the Interior awarding ■ 14. Section 43.605(a)(2) is further official? amended by removing ‘‘[Agency-specific § 42.970 Nonprocurement transaction. CFR citation]’’ and adding ‘‘43 CFR Part * * * * * Subpart E—Violations of This Part and Consequences 12’’ in its place. (a) * * * lllllllllllllllllll (12) Federal acquisition of a leasehold 43.500 How are violations of this part interest or any other interest in real determined for recipients other than DEPARTMENT OF HEALTH AND individuals? property. HUMAN SERVICES (13) Concession contracts. 43.505 How are violations of this part (14) Disposition of Federal real and determined for recipients who are 45 CFR Parts 76 and 82 individuals? personal property and natural resources. 43.510 What actions will the Federal RIN 0991–AB12 (15) Any other nonprocurement Government take against a recipient FOR FURTHER INFORMATION CONTACT: transactions between the Department determined to have violated this part? Marc R. Weisman, 336 E. Hubert H. and a person. 43.515 Are there any exceptions to those Humphrey Building, 200 Independence actions? * * * * * Avenue, SW., Washington, DC 20201, ■ 9. Section 42.1010 is further amended Subpart F—Definitions 202–690–8554. by adding paragraph (b) to read as 43.605 Award. List of Subjects follows: 43.610 Controlled substance. 43.615 Conviction. 45 CFR Part 76 § 42.1010 Suspending official. 43.620 Cooperative agreement. * * * * * 43.625 Criminal drug statute. Administrative practice and (b) The suspending official for the 43.630 Debarment. procedure, Grant programs, Reporting Department of the Interior is the 43.635 Drug-free workplace. and recordkeeping requirements. Director, Office of Acquisition and 43.640 Employee. 45 CFR Part 82 Property Management. 43.645 Federal agency or agency. 43.650 Grant. Administrative practice and ■ 10. Part 43 is added to read as set forth 43.655 Individual. procedure, Drug abuse, Grant programs, in instruction 2 at the end of the common 43.660 Recipient. Reporting and recordkeeping preamble. 43.665 State. requirements. 43.670 Suspension. PART 43—GOVERNMENTWIDE Dated: July 30, 2003. REQUIREMENTS FOR DRUG-FREE Authority: 5 U.S.C. 301; 31 U.S.C. 6101 note, 7501; 41 U.S.C. Sections 252a and 701 Tommy G. Thompson, WORKPLACE (FINANCIAL et seq. Secretary, Department of Health and Human ASSISTANCE) Services. ■ 11. Part 43 is further amended as set ■ Subpart A—Purpose and Coverage For the reasons stated in the common forth below. preamble, the Department of Health and Sec. ■ a. ‘‘[Agency noun]’’ is removed and Human Services amends 45 CFR Subtitle 43.100 What does this part do? 43.105 Does this part apply to me? ‘‘Department of the Interior’’ is added in A, as follows: ■ 43.110 Are any of my Federal assistance its place where it occurs. 1. Part 76 is revised to read as set forth awards exempt from this part? ■ b. ‘‘[Agency adjective]’’ is removed and in instruction 1 at the end of the common 43.115 Does this part affect the Federal ‘‘Department of the Interior’’ is added in preamble. contracts that I receive? its place wherever it occurs. PART 76—GOVERNMENTWIDE ■ Subpart B—Requirements for Recipients c. ‘‘[Agency head or designee]’’ is DEBARMENT AND SUSPENSION Other Than Individuals removed and ‘‘Director, Office of (NONPROCUREMENT) 43.200 What must I do to comply with this Acquisition and Property Management’’ part? is added in its place wherever it occurs. Sec.

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76.25 How is this part organized? 76.330 What requirements must I pass 76.520 Who places the information into the 76.50 How is this part written? down to persons at lower tiers with EPLS? 76.75 Do terms in this part have special whom I intend to do business? 76.525 Whom do I ask if I have questions meanings? about a person in the EPLS? Disclosing Information—Primary Tier 76.530 Where can I find the EPLS? Subpart A—General Participants 76.100 What does this part do? 76.335 What information must I provide Subpart F—General Principles Relating to 76.105 Does this part apply to me? before entering into a covered Suspension and Debarment Actions 76.110 What is the purpose of the transaction with HHS? 76.600 How do suspension and debarment nonprocurement debarment and 76.340 If I disclose unfavorable information actions start? suspension system? required under § 76.335, will I be 76.605 How does suspension differ from 76.115 How does an exclusion restrict a prevented from participating in the debarment? person’s involvement in covered transaction? 76.610 What procedures does HHS use in transactions? 76.345 What happens if I fail to disclose the suspension and debarment actions? 76.120 May we grant an exception to let an information required under § 76.335? 76.615 How does HHS notify a person of a excluded person participate in a covered 76.350 What must I do if I learn of the suspension and debarment action? transaction? information required under § 76.335 after 76.620 Do Federal agencies coordinate 76.125 Does an exclusion under the entering into a covered transaction with suspension and debarment actions? nonprocurement system affect a person’s HHS? 76.625 What is the scope of a suspension or eligibility for Federal procurement debarment action? contracts? Disclosing Information—Lower Tier 76.630 May HHS impute the conduct of one 76.130 Does exclusion under the Federal Participants person to another? procurement system affect a person’s 76.355 What information must I provide to 76.635 May HHS settle a debarment or eligibility to participate in a higher tier participant before entering suspension action? nonprocurement transactions? into a covered transaction with that 76.640 May a settlement include a 76.135 May HHS exclude a person who is participant? voluntary exclusion? not currently participating in a 76.360 What happens if I fail to disclose the 76.645 Do other Federal agencies know if nonprocurement transaction? information required under § 76.355? HHS agrees to a voluntary exclusion? 76.140 How do I know if a person is 76.365 What must I do if I learn of Subpart G—Suspension excluded? information required under § 76.355 after 76.145 Does this part address persons who entering into a covered transaction with 76.700 When may the suspending official are disqualified, as well as those who are a higher tier participant? issue a suspension? excluded from nonprocurement 76.705 What does the suspending official transactions? Subpart D—Responsibilities of HHS consider in issuing a suspension? Officials Regarding Transactions Subpart B—Covered Transactions 76.710 When does a suspension take effect? 76.400 May I enter into a transaction with 76.715 What notice does the suspending 76.200 What is a covered transaction? an excluded or disqualified person? official give me if I am suspended? 76.205 Why is it important to know if a 76.405 May I enter into a covered 76.720 How may I contest a suspension? particular transaction is a covered transaction with a participant if a 76.725 How much time do I have to contest transaction? principal of the transaction is excluded? a suspension? 76.210 Which nonprocurement transactions 76.410 May I approve a participant’s use of 76.730 What information must I provide to are covered transactions? the services of an excluded person? the suspending official if I contest a 76.215 Which nonprocurement transactions 76.415 What must I do if a Federal agency suspension? are not covered transactions? excludes the participant or a principal 76.735 Under what conditions do I get an 76.220 Are any procurement contracts after I enter into a covered transaction? additional opportunity to challenge the included as covered transactions? 76.420 May I approve a transaction with an facts on which the suspension is based? 76.225 How do I know if a transaction in excluded or disqualified person at a 76.740 Are suspension proceedings formal? which I may participate is a covered lower tier? 76.745 How is fact-finding conducted? transaction? 76.425 When do I check to see if a person 76.750 What does the suspending official 76.230 What is the relationship between is excluded or disqualified? consider in deciding whether to continue covered transactions and exclusions 76.430 How do I check to see if a person is or terminate my suspension? from participation in Federal health care excluded or disqualified? 76.755 When will I know whether the programs under Title XI of the Social 76.435 What must I require of a primary tier suspension is continued or terminated? Security Act? participant? 76.760 How long may my suspension last? Subpart C—Responsibilities of Participants 76.440 What method do I use to Subpart H—Debarment Regarding Transactions communicate those requirements to participants? 76.800 What are the causes for debarment? Doing Business With Other Persons 76.445 What action may I take if a primary 76.805 What notice does the debarring 76.300 What must I do before I enter into tier participant knowingly does business official give me if I am proposed for a covered transaction with another with an excluded or disqualified person? debarment? person at the next lower tier? 76.450 What action may I take if a primary 76.810 When does a debarment take effect? 76.305 May I enter into a covered tier participant fails to disclose the 76.815 How may I contest a proposed transaction with an excluded or information required under § 76.335? debarment? disqualified person? 76.455 What may I do if a lower tier 76.820 How much time do I have to contest 76.310 What must I do if a Federal agency participant fails to disclose the a proposed debarment? excludes a person with whom I am information required under § 76.355 to 76.825 What information must I provide to already doing business in a covered the next higher tier? the debarring official if I contest a transaction? 76.460 What are the obligations of Medicare proposed debarment? 76.315 May I use the services of an carriers and intermediaries? 76.830 Under what conditions do I get an excluded person as a principal under a additional opportunity to challenge the covered transaction? Subpart E—Excluded Parties List System facts on which the proposed debarment 76.320 Must I verify that principals of my 76.500 What is the purpose of the Excluded is based? covered transactions are eligible to Parties List System (EPLS)? 76.835 Are debarment proceedings formal? participate? 76.505 Who uses the EPLS? 76.840 How is fact-finding conducted? 76.325 What happens if I do business with 76.510 Who maintains the EPLS? 76.845 What does the debarring official an excluded person in a covered 76.515 What specific information is in the consider in deciding whether to debar transaction? EPLS? me?

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76.850 What is the standard of proof in a transaction that is covered under officials with respect to actions under debarment action? paragraph (a) of this section, and the 45 CFR part 76. This would include 76.855 Who has the burden of proof in a value of the contract exceeds or is these entities checking the EPLS and debarment action? expected to exceed the ‘‘simplified taking necessary steps to effectuate this 76.860 What factors may influence the debarring official’s decision? acquisition threshold’’ defined at 42 part. 76.865 How long may my debarment last? U.S.C. 403(11). This extends the ■ 7. Section 76.940 is further amended 76.870 When do I know if the debarring coverage of paragraph (a) of this section by adding a paragraph (d) to read as official debars me? to all lower tiers of contracts that exceed follows: 76.875 May I ask the debarring official to the simplified acquisition threshold (see reconsider a decision to debar me? optional lower tier coverage shown in § 76.940 Disqualified. 76.880 What factors may influence the the diagram in the appendix to this * * * * * debarring official during part). reconsideration? (d) The program exclusion authorities 76.885 May the debarring official extend a ■ 4. Section 76.230 is added to read as under Title XI of the Social Security Act debarment? follows: (42 U.S.C. 1320a–7) and enforced by the Subpart I—Definitions § 76.230 What is the relationship between HHS Office of Inspector General. 76.900 Adequate evidence. covered transactions and exclusions from ■ 8. Section 76.995 is further amended 76.905 Affiliate. participation in Federal health care by adding a paragraph (c) to read as 76.910 Agency. programs under Title XI of the Social follows: 76.915 Agent or representative. Security Act? 76.920 Civil judgment. Any individual or entity excluded § 76.995 Principal. 76.925 Conviction. from participation in Medicare, * * * * * 76.930 Debarment. Medicaid and other Federal health care 76.935 Debarring official. (c) Other examples of individuals who 76.940 Disqualified. programs under Title XI of the Social are principals in HHS covered 76.945 Excluded or exclusion. Security Act, 42 U.S.C. 1320a–7, will be transactions include: subject to the prohibitions against 76.950 Excluded Parties List System. (1) Principal investigators; 76.955 Indictment. participating in covered transactions, as 76.960 Ineligible or ineligibility. set forth in this part. In addition, these (2) Providers of Federally-required 76.965 Legal proceedings. excluded parties are also prohibited audit services; and 76.970 Nonprocurement transaction. from participating in all Executive (3) Researchers. 76.975 Notice. Branch procurement programs and 76.980 Participant. ■ 9. Part 82 is added to read as set forth 76.985 Person. activities. (Public Law 103–355, section in instruction 2 at the end of the common 76.990 Preponderance of the evidence. 2455) For example, if an individual or preamble. 76.995 Principal. entity is excluded by the HHS Office of 76.1000 Respondent. Inspector General from participation in PART 82—GOVERNMENTWIDE 76.1005 State. Medicare, Medicaid and all other REQUIREMENTS FOR DRUG-FREE 76.1010 Suspending official. Federal health care programs, in WORKPLACE (FINANCIAL 76.1015 Suspension. accordance with 42 U.S.C. 1320a–7, ASSISTANCE) 76.1020 Voluntary exclusion or voluntarily then that individual or entity is excluded. prohibited from participating in all Subpart A—Purpose and Coverage Subpart J—Reserved Federal Government procurement and Sec. 82.100 What does this part do? Appendix to Part 76—Covered Transactions nonprocurement programs (42 CFR part 1001). 82.105 Does this part apply to me? 82.110 Are any of my Federal assistance Authority: 5 U.S.C. 301; Sec. 2455, Pub. L. ■ 5. Section 76.440 is added to read as awards exempt from this part? 103–355, 108 Stat. 3327 (31 U.S.C. 6101 follows: note); E.O. 11738 (3 CFR, 1973 Comp., p. 82.115 Does this part affect the Federal contracts that I receive? 799); E.O. 12549 (3 CFR, 1986 Comp., p. 189); § 76.440 What method do I use to E.O. 12689 (3 CFR, 1989 Comp., p. 235). communicate those requirements to Subpart B—Requirements for Recipients participants? Other Than Individuals ■ 2. Part 76 is further amended as set forth below. To communicate the requirements to 82.200 What must I do to comply with this ■ a. ‘‘[Agency noun]’’ is removed and participants, you must include a term or part? ‘‘HHS’’ is added in its place wherever it condition in the transaction requiring 82.205 What must I include in my drug-free the participant’s compliance with workplace statement? occurs. 82.210 To whom must I distribute my drug- ■ b. ‘‘[Agency adjective]’’ is removed and subpart C of this part and requiring them to include a similar term or free workplace statement? ‘‘HHS’’ is added in its place wherever it 82.215 What must I include in my drug-free occurs. condition in lower tier covered awareness program? ■ c. ‘‘[Agency head or designee]’’ is transactions. 82.220 By when must I publish my drug- removed and ‘‘HHS Debarring/ ■ 6. Section 76.460 is added to read as free workplace statement and establish Suspension Official’’ is added in its follows: my drug-free awareness program? place wherever it occurs. 82.225 What actions must I take concerning § 76.460 What are the obligations of ■ 3. Section 76.220 is further amended employees who are convicted of drug Medicare carriers and intermediaries? violations in the workplace? by adding a paragraph (c) to read as 82.230 How and when must I identify follows: Because Medicare carriers, intermediaries and other Medicare workplaces? § 76.220 Are any procurement contracts contractors undertake responsibilities Subpart C—Requirements for Recipients included as covered transactions? on behalf of the Medicare program (Title Who Are Individuals * * * * * XVIII of the Social Security Act), these 82.300 What must I do to comply with this (c) The contract is a subcontract at entities assume the same obligations part if I am an individual recipient? any tier below a procurement and responsibilities as Medicare agency 82.301 [Reserved]

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Subpart D—Responsibilities of HHS List of Subjects 620.215 Which nonprocurement Awarding Officials transactions are not covered 45 CFR Part 620 82.400 What are my responsibilities as an transactions? HHS awarding official? Administrative practice and 620.215 Are any procurement contracts procedure, Debarment and suspension, included as covered transactions? Subpart E—Violations of This Part and 620.225 How do I know if a transaction in Consequences Grant programs, Reporting and which I may participate is a covered recordkeeping requirements. 82.500 How are violations of this part transaction? determined for recipients other than 45 CFR Part 630 Subpart C—Responsibilities of Participants individuals? Regarding Transactions 82.505 How are violations of this part Administrative practice and determined for recipients who are procedure, Drug abuse, Grant programs, Doing Business With Other Persons individuals? Reporting and recordkeeping 620.300 What must I do before I enter into 82.510 What actions will the Federal requirements. a covered transaction with another Government take against a recipient Dated: June 10, 2003. person at the next lower tier? determined to have violated this part? 620.305 May I enter into a covered Lawrence Rudolph, 82.515 Are there any exceptions to those transaction with an excluded or actions? General Counsel, National Science disqualified person? Foundation. 620.310 What must I do if a Federal agency Subpart F—Definitions ■ Accordingly, as set forth in the excludes a person with whom I am 82.605 Award. common preamble, the National Science already doing business in a covered transaction? 82.610 Controlled substance. Foundation amends 45 CFR Chapter VI, 82.615 Conviction. 620.315 May I use the services of an 82.620 Cooperative agreement. as follows: excluded person as a principal under a ■ 82.625 Criminal drug statute. 1. Part 620 is revised to read as set forth covered transaction? 82.630 Debarment. in instruction 1 at the end of the common 620.320 Must I verify that principals of my 82.635 Drug-free workplace. preamble. covered transactions are eligible to 82.640 Employee. participate? 82.645 Federal agency or agency. PART 620—GOVERNMENTWIDE 620.325 What happens if I do business with 82.650 Grant. DEBARMENT AND SUSPENSION an excluded person in a covered 82.655 Individual. (NONPROCUREMENT) transaction? 82.660 Recipient. 620.330 What requirements must I pass 82.665 State. Sec. down to persons at lower tiers with 82.670 Suspension. 620.25 How is this part organized? whom I intend to do business? 620.50 How is this part written? Authority: 41 U.S.C. 701 et seq. Disclosing Information—Primary Tier 620.75 Do terms in this part have special Participants ■ 10. Part 82 is further amended as set meanings? forth below. 620.335 What information must I provide ■ a. ‘‘[Agency noun]’’ is removed and Subpart A—General before entering into a covered 620.100 What does this part do? transaction with the National Science ‘‘HHS’’ is added in its place wherever it Foundation? occurs. 620.105 Does this part apply to me? 620.110 What is the purpose of the 620.340 If I disclose unfavorable ■ b. ‘‘[Agency adjective]’’ is removed and information required under § 620.335, ‘‘HHS’’ is added in its place wherever it nonprocurement debarment and suspension system? will I be prevented from participating in occurs. 620.115 How does an exclusion restrict a the transaction? ■ 620.345 What happens if I fail to disclose c. ‘‘[Agency head or designee]’’ is person’s involvement in covered the information required under removed and ‘‘HHS Official or designee’’ transactions? § 620.335? is added in its place wherever it occurs. 620.120 May we grant an exception to let an 620.350 What must I do if I learn of the ■ d. ‘‘[Agency head]’’ is removed and excluded person participate in a covered information required under § 620.335 ‘‘the Secretary of HHS’’ is added in its transaction? after entering into a covered transaction place wherever it occurs. 620.125 Does an exclusion under the with the National Science Foundation? ■ 11. Section 82.510(c) is further nonprocurement system affect a person’s Disclosing Information—Lower Tier amended by removing ‘‘[CFR citation for eligibility for Federal procurement contracts? Participants the Federal Agency’s regulations 620.130 Does exclusion under the Federal implementing Executive Order 12549 620.355 What information must I provide to procurement system affect a person’s a higher tier participant before entering and Executive Order 12689]’’ and adding eligibility to participate in into a covered transaction with that ‘‘45 CFR Part 76’’ in its place. nonprocurement transactions? participant? ■ 12. Section 82.605(a)(2) is further 620.135 May the National Science 620.360 What happens if I fail to disclose amended by removing ‘‘[Agency-specific Foundation exclude a person who is not the information required under CFR citation]’’and adding ‘‘45 CFR Part currently participating in a § 620.355? 92’’ in its place. nonprocurement transaction? 620.365 What must I do if I learn of 620.140 How do I know if a person is information required under § 620.355 lllllllllllllllllll excluded? after entering into a covered transaction 620.145 Does this part address persons who with a higher tier participant? NATIONAL SCIENCE FOUNDATION are disqualified, as well as those who are Subpart D—Responsibilities of National 45 CFR Parts 620 and 630 excluded from nonprocurement transactions? Science Foundation Officials Regarding RIN 3145–AA41 Transactions Subpart B—Covered Transactions FOR FURTHER INFORMATION CONTACT: 620.400 May I enter into a transaction with 620.200 What is a covered transaction? Anita Eisenstadt, Assistant General an excluded or disqualified person? 620.205 Why is it important to know if a 620.405 May I enter into a covered Counsel, National Science Foundation, particular transaction is a covered transaction with a participant if a 4201 Wilson Boulevard, Room 1265, transaction? principal of the transaction is excluded? Arlington, Virginia, 22230, (703) 292– 620.210 Which nonprocurement 620.410 May I approve a participant’s use 8060; e:mail: [email protected]. transactions are covered transactions? of the services of an excluded person?

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620.415 What must I do if a Federal agency 620.725 How much time do I have to 620.985 Person. excludes the participant or a principal contest a suspension? 620.990 Preponderance of the evidence. after I enter into a covered transaction? 620.730 What information must I provide to 620.995 Principal. 620.420 May I approve a transaction with the suspending official if I contest a 620.1000 Respondent. an excluded or disqualified person at a suspension? 620.1005 State. lower tier? 620.735 Under what conditions do I get an 620.1010 Suspending official. 620.425 When do I check to see if a person additional opportunity to challenge the 620.1015 Suspension. is excluded or disqualified? facts on which the suspension is based? 620.1020 Voluntary exclusion or 620.430 How do I check to see if a person 620.740 Are suspension proceedings voluntarily excluded. is excluded or disqualified? formal? Subpart J—[Reserved] 620.435 What must I require of a primary 620.745 How is fact-finding conducted? tier participant? 620.750 What does the suspending official Appendix to Part 620—Covered 620.440 What method do I use to consider in deciding whether to continue Transactions communicate those requirements to or terminate my suspension? participants? 620.755 When will I know whether the Authority: 42 U.S.C. 1870(a); Sec. 2455, 620.445 What action may I take if a primary suspension is continued or terminated? Pub. L. 103–355, 108 Stat. 3327 (31 U.S.C. tier participant knowingly does business 620.760 How long may my suspension last? 6101 note); E.O. 12549 (3 CFR, 1986 Comp., with an excluded or disqualified person? p. 189); E.O. 12689 (3 CFR, 1989 Comp., p. 620.450 What action may I take if a primary Subpart H—Debarment 235). tier participant fails to disclose the 620.800 What are the causes for debarment? ■ information required under § 620.335? 620.805 What notice does the debarring 2. Part 620 is further amended as set 620.455 What may I do if a lower tier official give me if I am proposed for forth below. participant fails to disclose the debarment? ■ a. ‘‘[Agency noun]’’ is removed and information required under § 620.355 to 620.810 When does a debarment take ‘‘National Science Foundation’’ is added the next higher tier? effect? in its place wherever it occurs. Subpart E—Excluded Parties List System 620.815 How may I contest a proposed ■ b. ‘‘[Agency adjective]’’ is removed and debarment? ‘‘National Science Foundation’’ is added 620.500 What is the purpose of the 620.820 How much time do I have to Excluded Parties List System (EPLS)? in its place wherever it occurs. contest a proposed debarment? ■ c. ‘‘[Agency head or designee]’’ is 620.505 Who uses the EPLS? 620.825 What information must I provide to 620.510 Who maintains the EPLS? the debarring official if I contest a removed and ‘‘Director or designee’’ is 620.515 What specific information is in the proposed debarment? added in its place wherever it occurs. EPLS? 620.830 Under what conditions do I get an ■ 3. Section 620.440 is added to read as 620.520 Who places the information into additional opportunity to challenge the the EPLS? follows: facts on which the proposed debarment 620.525 Whom do I ask if I have questions is based? § 620.440 What method do I use to about a person in the EPLS? 620.835 Are debarment proceedings formal? communicate those requirements to 620.530 Where can I find the EPLS? 620.840 How is fact-finding conducted? participants? Subpart F—General Principles Relating to 620.845 What does the debarring official To communicate the requirements to Suspension and Debarment Actions consider in deciding whether to debar participants, you must include a term or 620.600 How do suspension and debarment me? condition in the transaction requiring 620.850 What is the standard of proof in a actions start? the participant’s compliance with 620.605 How does suspension differ from debarment action? 620.855 Who has the burden of proof in a subpart C of this part and requiring debarment? them to include a similar term or 620.610 What procedures does the National debarment action? Science Foundation use in suspension 620.860 What factors may influence the condition in lower tier covered and debarment actions? debarring official’s decision? transactions. 620.615 How does the National Science 620.865 How long may my debarment last? ■ 4. Part 630 is added to read as set forth Foundation notify a person of a 620.870 When do I know if the debarring in instruction 2 at the end of the common official debars me? suspension and debarment action? preamble. 620.620 Do Federal agencies coordinate 620.875 May I ask the debarring official to suspension and debarment actions? reconsider a decision to debar me? PART 630—GOVERNMENTWIDE 620.625 What is the scope of a suspension 620.880 What factors may influence the debarring official during REQUIREMENTS FOR DRUG-FREE or debarment action? WORKPLACE (FINANCIAL 620.630 May the National Science reconsideration? Foundation impute the conduct of one 620.885 May the debarring official extend a ASSISTANCE) debarment? person to another? Subpart A—Purpose and Coverage 620.635 May the National Science Subpart I—Definitions Foundation settle a debarment or Sec. suspension action? 620.900 Adequate evidence. 630.100 What does this part do? 620.640 May a settlement include a 620.905 Affiliate. 620.105 Does this part apply to me? voluntary exclusion? 620.910 Agency. 630.110 Are any of my Federal assistance 620.645 Do other Federal agencies know if 620.915 Agent or representative. awards exempt from this part? the National Science Foundation agrees 620.920 Civil judgment. 630.115 Does this part affect the Federal to a voluntary exclusion? 620.925 Conviction. contracts that I receive? 620.930 Debarment. Subpart G—Suspension 620.935 Debarring official. Subpart B—Requirements for Recipients Other Than Individuals 620.700 When may the suspending official 620.940 Disqualified. issue a suspension? 620.945 Excluded or exclusion. 630.200 What must I do to comply with this 620.705 What does the suspending official 620.950 Excluded Parties List System. part? consider in issuing a suspension? 620.955 Indictment. 630.205 What must I include in my drug- 620.710 When does a suspension take 620.960 Ineligible or ineligibility. free workplace statement? effect? 620.965 Legal proceedings. 630.210 To whom must I distribute my 620.715 What notice does the suspending 620.970 Nonprocurement transaction. drug-free workplace statement? official give me if I am suspended? 620.975 Notice. 630.215 What must I include in my drug- 620.720 How may I contest a suspension? 620.980 Participant. free awareness program?

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630.220 By when must I publish my drug- CFR citation]’’ and adding ‘‘45 CFR Part eligibility to participate in free workplace statement and establish 602’’ in its place. nonprocurement transactions? my drug-free awareness program? lllllllllllllllllll 1154.135 May the National Endowment for 630.225 What actions must I take the Arts exclude a person who is not concerning employees who are convicted NATIONAL FOUNDATION ON THE currently participating in a of drug violations in the workplace? ARTS AND HUMANITIES nonprocurement transaction? 630.230 How and when must I identify 1154.140 How do I know if a person is workplaces? National Endowment for the Arts excluded? Subpart C—Requirements for Recipients 45 CFR Parts 1154 and 1155 1154.145 Does this part address persons Who Are Individuals who are disqualified, as well as those RINs 3135–AA18 and 3135–AA19 who are excluded from nonprocurement 630.300 What must I do to comply with this part if I am an individual recipient? FOR FURTHER INFORMATION CONTACT: transactions? 630.301 [Reserved] Karen Elias, Deputy General Counsel, Subpart B—Covered Transactions National Endowment for the Arts, Room Subpart D—Responsibilities of National 1154.200 What is a covered transaction? Science Foundation Awarding Officials 518, 1100 Pennsylvania Avenue, NW., 1154.205 Why is it important to know if a Washington, DC 20506, (202) 682–5418, particular transaction is a covered 630.400 What are my responsibilities as a or by e-mail: [email protected]. National Science Foundation awarding transaction? official? List of Subjects 1154.210 Which nonprocurement transactions are covered transactions? Subpart E—Violations of This Part and 45 CFR Part 1154 1154.215 Which nonprocurement Consequences Administrative practice and transactions are not covered 630.500 How are violations of this part procedure, Debarment and suspension, transactions? determined for recipients other than 1154.220 Are any procurement contracts individuals? Government contracts, Grant programs, Loan programs, Reporting and included as covered transactions? 630.505 How are violations of this part 1154.225 How do I know if a transaction in determined for recipients who are recordkeeping requirements. which I may participate is a covered individuals? transaction? 630.510 What actions will the Federal 45 CFR Part 1155 Government take against a recipient Administrative practice and Subpart C—Responsibilities of Participants determined to have violated this part? procedure, Drug abuse, Grant programs, Regarding Transactions 630.515 Are there any exceptions to those Reporting and recordkeeping Doing Business With Other Persons actions? requirements. 1154.300 What must I do before I enter into Subpart F—Definitions Dated: July 15, 2003. a covered transaction with another 630.605 Award. Karen L. Elias, person at the next lower tier? 630.610 Controlled substance. Deputy General Counsel, National 1154.305 May I enter into a covered 630.615 Conviction. Endowment for the Arts. transaction with an excluded or 630.620 Cooperative agreement. ■ For the reasons stated in the common disqualified person? 630.625 Criminal drug statute. 1154.310 What must I do if a Federal 630.630 Debarment. preamble, the National Endowment for agency excludes a person with whom I 630.635 Drug-free workplace. the Arts amends 45 CFR chapter XI, as am already doing business in a covered 630.640 Employee. follows: transaction? ■ 630.645 Federal agency or agency. 1. Part 1154 is revised to read as set 1154.315 May I use the services of an 630.650 Grant. forth in instruction 1 at the end of the excluded person as a principal under a 630.655 Individual. common preamble. covered transaction? 630.660 Recipient. 1154.320 Must I verify that principals of my 630.665 State. PART 1154—GOVERNMENTWIDE covered transactions are eligible to 630.670 Suspension. DEBARMENT AND SUSPENSION participate? Authority: 41 U.S.C. 701 et seq. (NONPROCUREMENT) 1154.325 What happens if I do business ■ 5. Part 630 is further amended as set with an excluded person in a covered forth below. Sec. transaction? ■ 1154.25 How is this part organized? 1154.330 What requirements must I pass a. ‘‘[Agency noun]’’ is removed and 1154.50 How is this part written? ‘‘National Science Foundation’’ is added down to persons at lower tiers with 1154.75 Do terms in this part have special whom I intend to do business? in its place wherever it occurs. meanings? ■ b. ‘‘[Agency adjective]’’ is removed and Disclosing Information—Primary Tier Subpart A—General ‘‘National Science Foundation’’ is added Participants 1154.100 What does this part do? in its place wherever it occurs. 1154.335 What information must I provide ■ 1154.105 Does this part apply to me? c. ‘‘[Agency head or designee]’’ is before entering into a covered removed and ‘‘Director or designee’’ is 1154.110 What is the purpose of the nonprocurement debarment and transaction with the National added in its place wherever it occurs. Endowment for the Arts? ■ suspension system? d. ‘‘[Agency head]’’ is removed and 1154.115 How does an exclusion restrict a 1154.340 If I disclose unfavorable ‘‘Director, National Science Foundation’’ person’s involvement in covered information required under § 1154.335, is added in its place wherever it occurs. transactions? will I be prevented from participating in ■ 6. Section 630.510(c) is further 1154.120 May we grant an exception to let the transaction? amended by removing ‘‘[CFR citation for an excluded person participate in a 1154.345 What happens if I fail to disclose the Federal Agency’s regulations covered transaction? the information required under § 1154.335? implementing Executive Order 12549 1154.125 Does an exclusion under the 1154.350 What must I do if I learn of the and Executive Order 12689]’’ and adding nonprocurement system affect a person’s eligibility for Federal procurement information required under § 1154.335 ‘‘45 CFR Part 620’’ in its place. contracts? after entering into a covered transaction ■ 7. Section 630.605(a)(2) is further 1154.130 Does exclusion under the Federal with the National Endowment for the amended by removing ‘‘[Agency-specific procurement system affect a person’s Arts?

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Disclosing Information—Lower Tier 1154.620 Do Federal agencies coordinate 1154.865 How long may my debarment Participants suspension and debarment actions? last? 1154.355 What information must I provide 1154.625 What is the scope of a suspension 1154.870 When do I know if the debarring to a higher tier participant before or debarment action? official debars me? entering into a covered transaction with 1154.630 May the National Endowment for 1154.875 May I ask the debarring official to that participant? the Arts impute the conduct of one reconsider a decision to debar me? 1154.360 What happens if I fail to disclose person to another? 1154.880 What factors may influence the the information required under 1154.635 May the National Endowment for debarring official during § 1154.355? the Arts settle a debarment or suspension reconsideration? 1154.365 What must I do if I learn of action? 1154.885 May the debarring official extend information required under § 1154.355 1154.640 May a settlement include a a debarment? voluntary exclusion? after entering into a covered transaction Subpart I—Definitions with a higher tier participant? 1154.645 Do other Federal agencies know if the National Endowment for the Arts 1154.900 Adequate evidence. Subpart D—Responsibilities of NEA agrees to a voluntary exclusion? 1154.905 Affiliate. Officials Regarding Transactions 1154.910 Agency. 1154.400 May I enter into a transaction Subpart G—Suspension 1154.915 Agent or representative. with an excluded or disqualified person? 1154.700 When may the suspending official 1154.920 Civil judgment. 1154.405 May I enter into a covered issue a suspension? 1154.925 Conviction. transaction with a participant if a 1154.705 What does the suspending official 1154.930 Debarment. principal of the transaction is excluded? consider in issuing a suspension? 1154.935 Debarring official. 1154.410 May I approve a participant’s use 1154.710 When does a suspension take 1154.940 Disqualified. of the services of an excluded person? effect? 1154.945 Excluded or exclusion. 1154.415 What must I do if a Federal 1154.715 What notice does the suspending 1154.950 Excluded Parties List System. agency excludes the participant or a official give me if I am suspended? 1154.955 Indictment. principal after I enter into a covered 1154.720 How may I contest a suspension? 1154.960 Ineligible or ineligibility. transaction? 1154.725 How much time do I have to 1154.965 Legal proceedings. 1154.420 May I approve a transaction with contest a suspension? 1154.970 Nonprocurement transaction. an excluded or disqualified person at a 1154.730 What information must I provide 1154.975 Notice. lower tier? to the suspending official if I contest a 1154.980 Participant. 1154.425 When do I check to see if a person suspension? 1154.985 Person. is excluded or disqualified? 1154.735 Under what conditions do I get an 1154.990 Preponderance of the evidence. 1154.430 How do I check to see if a person additional opportunity to challenge the 1154.995 Principal. is excluded or disqualified? facts on which the suspension is based? 1154.1000 Respondent. 1154.435 What must I require of a primary 1154.740 Are suspension proceedings 1154.1005 State. tier participant? formal? 1154.1010 Suspending official. 1154.440 What method do I use to 1154.745 How is fact-finding conducted? 1154.1015 Suspension. communicate those requirements to 1154.750 What does the suspending official 1154.1020 Voluntary exclusion or participants? consider in deciding whether to continue voluntarily excluded. 1154.445 What action may I take if a or terminate my suspension? primary tier participant knowingly does Subpart J—[Reserved] 1154.755 When will I know whether the business with an excluded or suspension is continued or terminated? disqualified person? Appendix to Part 1154—Covered 1154.760 How long may my suspension 1154.450 What action may I take if a Transactions primary tier participant fails to disclose last? Authority: Sec. 2455, Pub. L. 103–355, 108 the information required under Subpart H—Debarment Stat. 3327; E.O. 12549, 3 CFR, 1986 Comp., § 1154.335? 1154.800 What are the causes for p. 189; E.O. 12689, 3 CFR, 1989 Comp., p. 1154.455 What may I do if a lower tier debarment? 235. participant fails to disclose the 1154.805 What notice does the debarring information required under § 1154.355 to official give me if I am proposed for ■ 2. Part 1154 is further amended as set the next higher tier? debarment? forth below. Subpart E—Excluded Parties List System 1154.810 When does a debarment take ■ a. ‘‘[Agency noun]’’ is removed and 1154.500 What is the purpose of the effect? ‘‘National Endowment for the Arts’’ is Excluded Parties List System (EPLS)? 1154.815 How may I contest a proposed added in its place wherever it occurs. 1154.505 Who uses the EPLS? debarment? ■ b. ‘‘[Agency adjective]’’ is removed and 1154.510 Who maintains the EPLS? 1154.820 How much time do I have to ‘‘NEA’’ is added in its place wherever it 1154.515 What specific information is in contest a proposed debarment? occurs. the EPLS? 1154.825 What information must I provide ■ c. ‘‘[Agency head or designee]’’ is 1154.520 Who places the information into to the debarring official if I contest a proposed debarment? removed and ‘‘NEA Chairman’’ is added the EPLS? in its place wherever it occurs. 1154.525 Whom do I ask if I have questions 1154.830 Under what conditions do I get an about a person in the EPLS? additional opportunity to challenge the ■ 3. Section 1154.440 is added to read as 1154.530 Where can I find the EPLS? facts on which the proposed debarment follows: is based? Subpart F—General Principles Relating to 1154.835 Are debarment proceedings § 1154.440 What method do I use to Suspension and Debarment Actions formal? communicate those requirements to 1154.600 How do suspension and 1154.840 How is fact-finding conducted? participants? debarment actions start? 1154.845 What does the debarring official To communicate the requirements to 1154.605 How does suspension differ from consider in deciding whether to debar participants, you must include a term or debarment? me? condition in the transaction requiring 1154.850 What is the standard of proof in 1154.610 What procedures does the the participant’s compliance with National Endowment for the Arts use in a debarment action? suspension and debarment actions? 1154.855 Who has the burden of proof in a subpart C of this part, and requiring 1154.615 How does the National debarment action? them to include a similar term or Endowment for the Arts notify a person 1154.860 What factors may influence the condition in lower tier covered of a suspension and debarment action? debarring official’s decision? transactions.

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■ 4. Part 1155 is added to read as set forth 1155.670 Suspension. PART 1169—GOVERNMENTWIDE in instruction 2 at the end of the common Authority: 41 U.S.C. 701 et seq. DEBARMENT AND SUSPENSION preamble. (NONPROCUREMENT) ■ 5. Part 1155 is further amended as set PART 1155—GOVERNMENTWIDE forth below. Sec. REQUIREMENTS FOR DRUG-FREE 1169.25 How is this part organized? ■ a. ‘‘[Agency noun]’’ is removed and WORKPLACE (FINANCIAL 1169.50 How is this part written? ‘‘National Endowment for the Arts’’ is ASSISTANCE) 1169.75 Do terms in this part have special added in its place wherever it occurs. meanings? Subpart A—Purpose and Coverage ■ b. ‘‘[Agency adjective]’’ is removed and Subpart A—General Sec. ‘‘NEA’’ is added in its place wherever it 1169.100 What does this part do? 1155.100 What does this part do? occurs. 1169.105 Does this part apply to me? 1155.105 Does this part apply to me? ■ c. ‘‘[Agency head or designee]’’ is 1169.110 What is the purpose of the 1155.110 Are any of my Federal assistance nonprocurement debarment and awards exempt from this part? removed and ‘‘NEA Chairman’’ is added suspension system? 1155.115 Does this part affect the Federal in its place wherever it occurs. 1169.115 How does an exclusion restrict a contracts that I receive? ■ d. ‘‘[Agency head]’’ is removed and person’s involvement in covered Subpart B—Requirements for Recipients ‘‘NEA Chairman’’ is added in its place transactions? Other Than Individuals wherever it occurs. 1169.120 May we grant an exception to let 1155.200 What must I do to comply with ■ 6. Section 1155.510(c) is further an excluded person participate in a this part? covered transaction? amended by removing ‘‘[CFR citation for 1169.125 Does an exclusion under the 1155.205 What must I include in my drug- the Federal Agency’s regulations free workplace statement? nonprocurement system affect a person’s 1155.210 To whom must I distribute my implementing Executive Order 12549 eligibility for Federal procurement drug-free workplace statement? and Executive Order 12689]’’ and adding contracts? 1155.215 What must I include in my drug- ‘‘45 CFR Part 1154’’ in its place. 1169.130 Does exclusion under the Federal procurement system affect a person’s free awareness program? ■ 7. Section 1155.605(a)(2) is further 1155.220 By when must I publish my drug- eligibility to participate in free workplace statement and establish amended by removing ‘‘[Agency-specific nonprocurement transactions? my drug-free awareness program? CFR citation]’’ and adding ‘‘45 CFR Part 1169.135 May the NEH exclude a person 1155.225 What actions must I take 1157’’ in its place. who is not currently participating in a concerning employees who are convicted lllllllllllllllllll nonprocurement transaction? of drug violations in the workplace? 1169.140 How do I know if a person is 1155.230 How and when must I identify NATIONAL FOUNDATION ON THE excluded? workplaces? ARTS AND HUMANITIES 1169.145 Does this part address persons who are disqualified, as well as those Subpart C—Requirements for Recipients National Endowment for the Who Are Individuals who are excluded from nonprocurement Humanities transactions? 1155.300 What must I do to comply with this part if I am an individual recipient? 45 CFR Part 1169 and 1173 Subpart B—Covered Transactions 1155.301 [Reserved] RIN 3136–AA25 1169.200 What is a covered transaction? Subpart D—Responsibilities of NEA 1169.205 Why is it important to know if a FOR FURTHER INFORMATION CONTACT: Awarding Officials particular transaction is a covered Heather C. Gottry, Assistant General transaction? 1155.400 What are my responsibilities as an Counsel, National Endowment for the 1169.210 Which nonprocurement NEA awarding official? Humanities, (202) 606–8300. transactions are covered transactions? Subpart E—Violations of This Part and 1169.215 Which nonprocurement Consequences List of Subjects transactions are not covered transactions? 1155.500 How are violations of this part 45 CFR Part 1169 1169.220 Are any procurement contracts determined for recipients other than Administrative practice and included as covered transactions? individuals? 1169.225 How do I know if a transaction in 1155.505 How are violations of this part procedure, Debarment and suspension, which I may participate is a covered determined for recipients who are Grant programs, Reporting and transaction? individuals? recordkeeping requirements. 1155.510 What actions will the Federal Subpart C—Responsibilities of Participants Government take against a recipient 45 CFR Part 1173 Regarding Transactions determined to have violated this part? 1155.515 Are there any exceptions to those Administrative practice and Doing Business With Other Persons actions? procedure, Drug abuse, Grant programs, 1169.300 What must I do before I enter into Reporting and recordkeeping a covered transaction with another Subpart F—Definitions requirements. person at the next lower tier? 1155.605 Award. 1169.305 May I enter into a covered 1155.610 Controlled substance. Dated: January 30, 2003. transaction with an excluded or 1155.615 Conviction. Michael McDonald, disqualified person? 1155.620 Cooperative agreement. Deputy General Counsel, 1169.310 What must I do if a Federal 1155.625 Criminal drug statute. National Endowment for the Humanities. agency excludes a person with whom I 1155.630 Debarment. am already doing business in a covered 1155.635 Drug-free workplace. Accordingly, as set forth in the transaction? 1155.640 Employee. common preamble, 45 CFR chapter XI is 1169.315 May I use the services of an 1155.645 Federal agency or agency. amended as follow: excluded person as a principal under a 1155.650 Grant. covered transaction? 1155.655 Individual. ■ 1. Part 1169 is revised to read as set 1169.320 Must I verify that principals of my 1155.660 Recipient. forth in instruction 1 at the end of the covered transactions are eligible to 1155.665 State. common preamble. participate?

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1169.325 What happens if I do business Subpart E—Excluded Parties List System 1169.820 How much time do I have to with an excluded person in a covered 1169.500 What is the purpose of the contest a proposed debarment? transaction? Excluded Parties List System (EPLS)? 1169.825 What information must I provide 1169.330 What requirements must I pass 1169.505 Who uses the EPLS? to the debarring official if I contest a down to persons at lower tiers with 1169.510 Who maintains the EPLS? proposed debarment? whom I intend to do business? 1169.515 What specific information is in 1169.830 Under what conditions do I get an the EPLS? additional opportunity to challenge the Disclosing Information—Primary Tier 1169.520 Who places the information into facts on which the proposed debarment Participants the EPLS? is based? 1169.335 What information must I provide 1169.525 Whom do I ask if I have questions 1169.835 Are debarment proceedings before entering into a covered about a person in the EPLS? formal? transaction with the NEH? 1169.530 Where can I find the EPLS? 1169.840 How is fact-finding conducted? 1169.340 If I disclose unfavorable 1169.845 What does the debarring official Subpart F—General Principles Relating to information required under § 1169.335, consider in deciding whether to debar Suspension and Debarment Actions will I be prevented from participating in me? the transaction? 1169.600 How do suspension and 1169.850 What is the standard of proof in 1169.345 What happens if I fail to disclose debarment actions start? a debarment action? the information required under 1169.605 How does suspension differ from 1169.855 Who has the burden of proof in a § 1169.335? debarment? debarment action? 1169.350 What must I do if I learn of the 1169.610 What procedures does the NEH 1169.860 What factors may influence the use in suspension and debarment information required under § 1169.335 debarring official’s decision? actions? after entering into a covered transaction 1169.865 How long may my debarment 1169.615 How does the NEH notify a with the NEH? last? person of a suspension and debarment 1169.870 When do I know if the debarring Disclosing Information—Lower Tier action? official debars me? Participants 1169.620 Do Federal agencies coordinate 1169.875 May I ask the debarring official to suspension and debarment actions? 1169.355 What information must I provide reconsider a decision to debar me? 1169.625 What is the scope of a suspension 1169.880 What factors may influence the to a higher tier participant before or debarment action? entering into a covered transaction with debarring official during 1169.630 May the NEH impute the conduct reconsideration? that participant? of one person to another? 1169.360 What happens if I fail to disclose 1169.885 May the debarring official extend 1169.635 May the NEH settle a debarment a debarment? the information required under or suspension action? § 1169.355? 1169.640 May a settlement include a Subpart I—Definitions 1169.365 What must I do if I learn of voluntary exclusion? 1169.900 Adequate evidence. information required under § 1169.355 1169.645 Do other Federal agencies know if 1169.905 Affiliate. after entering into a covered transaction the NEH agrees to a voluntary exclusion? 1169.910 Agency. with a higher tier participant? Subpart G—Suspension 1169.915 Agent or representative. 1169.920 Civil judgment. Subpart D—Responsibilities of NEH 1169.700 When may the suspending official 1169.925 Conviction. Officials Regarding Transactions issue a suspension? 1169.930 Debarment. 1169.400 May I enter into a transaction 1169.705 What does the suspending official consider in issuing a suspension? 1169.935 Debarring official. with an excluded or disqualified person? 1169.940 Disqualified. 1169.405 May I enter into a covered 1169.710 When does a suspension take effect? 1169.945 Excluded or exclusion. transaction with a participant if a 1169.950 Excluded Parties List System. principal of the transaction is excluded? 1169.715 What notice does the suspending official give me if I am suspended? 1169.955 Indictment. 1169.410 May I approve a participant’s use 1169.960 Ineligible or ineligibility. of the services of an excluded person? 1169.720 How may I contest a suspension? 1169.725 How much time do I have to 1169.965 Legal proceedings. 1169.415 What must I do if a Federal 1169.970 Nonprocurement transaction. agency excludes the participant or a contest a suspension? 1169.730 What information must I provide 1169.975 Notice. principal after I enter into a covered 1169.980 Participant. transaction? to the suspending official if I contest a suspension? 1169.985 Person. 1169.420 May I approve a transaction with 1169.990 Preponderance of the evidence. an excluded or disqualified person at a 1169.735 Under what conditions do I get an additional opportunity to challenge the 1169.995 Principal. lower tier? 1169.1000 Respondent. 1169.425 When do I check to see if a person facts on which the suspension is based? 1169.740 Are suspension proceedings 1169.1005 State. is excluded or disqualified? formal? 1169.1010 Suspending official. 1169.430 How do I check to see if a person 1169.745 How is fact-finding conducted? 1169.1015 Suspension. is excluded or disqualified? 1169.750 What does the suspending official 1169.1020 Voluntary exclusion or 1169.435 What must I require of a primary consider in deciding whether to continue voluntarily excluded. tier participant? or terminate my suspension? Subpart J—[Reserved] 1169.440 What method do I use to 1169.755 When will I know whether the communicate those requirements to suspension is continued or terminated? Appendix to Part 1169—Covered participants? 1169.760 How long may my suspension Transactions 1169.445 What action may I take if a last? primary tier participant knowingly does Authority: E.O. 12549 (3 CFR, 1986 Comp., business with an excluded or Subpart H—Debarment p. 189); E.O. 12698 (3 CFR, 1989 Comp., p. disqualified person? 1169.800 What are the causes for 235); sec. 2455, Pub. L. 103–355, 108 Stat. 1169.450 What action may I take if a debarment? 3327 (31 U.S.C. 6101 note); 20 U.S.C. primary tier participant fails to disclose 1169.805 What notice does the debarring 959(a)(1). the information required under official give me if I am proposed for ■ § 1169.335? debarment? 2. Part 1169 is further amended as set 1169.455 What may I do if a lower tier 1169.810 When does a debarment take forth below. participant fails to disclose the effect? ■ a. ‘‘[Agency noun]’’ is removed and information required under § 1169.355 to 1169.815 How may I contest a proposed ‘‘NEH’’ is added in its place wherever it the next higher tier? debarment? occurs.

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■ b. ‘‘[Agency adjective]’’ is removed and 1173.505 How are violations of this part List of Subjects ‘‘NEH’’ is added in its place wherever it determined for recipients who are 45 CFR Part 1185 occurs. individuals? 1173.510 What actions will the Federal ■ c. ‘‘[Agency head or designee]’’ is Administrative practice and Government take against a recipient procedure, Debarment and suspension, removed and ‘‘NEH General Counsel’’ is determined to have violated this part? added in its place wherever it occurs. Government contracts, Grant programs, 1173.515 Are there any exceptions to those Loan programs, Reporting and ■ 3. Section 1169.440 is added to read as actions? recordkeeping requirements. follows: Subpart F—Definitions 45 CFR Part 1186 § 1169.440 What method do I use to 1173.605 Award. 1173.610 Controlled substance. Administrative practice and communicate those requirements to procedure, Drug abuse, Grant programs, participants? 1173.615 Conviction. 1173.620 Cooperative agreement. Reporting and recordkeeping To communicate the requirements, 1173.625 Criminal drug statute. requirements. you must include a term or condition in 1173.630 Debarment. Dated: June 6, 2003. 1173.635 Drug-free workplace. the transaction requiring the Robert S. Martin, participants’ compliance with subpart C 1173.640 Employee. 1173.645 Federal agency or agency. Director, Institute of Museum and Library of this part and requiring them to Services. include a similar term or condition in 1173.650 Grant. ■ lower-tier covered transactions. 1173.655 Individual. For the reasons stated in the preamble, 1173.660 Recipient. the Institute of Museum and Library ■ 4. Part 1173 is added to read as set forth 1173.665 State. Services amends 45 CFR chapter XI, as in instruction 2 at the end of the common 1173.670 Suspension. follows: preamble. Authority: 41 U.S.C. 701, et seq.; 20 U.S.C. ■ 1. Part 1185 is revised to read as 959(a)(1). follows: PART 1173—GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE ■ 5. Part 1173 is further amended as set PART 1185—GOVERNMENTWIDE WORKPLACE (FINANCIAL forth below. DEBARMENT AND SUSPENSION ASSISTANCE) ■ a. ‘‘[Agency noun]’’ is removed and (NONPROCUREMENT) Subpart A—Purpose and Coverage ‘‘NEH’’ is added in its place wherever it Sec. occurs. Sec. 1185.25 How is this part organized? 1173.100 What does this part do? ■ b. ‘‘[Agency adjective]’’ is removed and 1185.50 How is this part written? 1173.105 Does this part apply to me? ‘‘NEH’’ is added in its place wherever it 1185.75 Do terms in this part have special 1173.110 Are any of my Federal assistance occurs. meanings? awards exempt from this part? ■ Subpart A—General 1173.115 Does this part affect the Federal c. ‘‘[Agency head or designee]’’ is contracts that I receive? removed and ‘‘NEH General Counsel’’ is 1185.100 What does this part do? added in its place wherever it occurs. 1185.105 Does this part apply to me? Subpart B—Requirements for Recipients ■ 1185.110 What is the purpose of the Other Than Individuals d. ‘‘[Agency head]’’ is removed and nonprocurement debarment and ‘‘NEH General Counsel’’ is added in its 1173.200 What must I do to comply with suspension system? this part? place wherever it occurs. 1185.115 How does an exclusion restrict a 1173.205 What must I include in my drug- ■ 6. Section 1173.510(c) is further person’s involvement in covered free workplace statement? transactions? amended by removing ‘‘[CFR citation for 1185.120 May we grant an exception to let 1173.210 To whom must I distribute my the Federal agency’s regulations drug-free workplace statement? an excluded person participate in a 1173.215 What must I include in my drug- implementing Executive Order 12549 covered transaction? free awareness program? and Executive Order 12689]’’ and adding 1185.125 Does an exclusion under the 1173.220 By when must I publish my drug- ‘‘45 CFR Part 1169’’ in its place. nonprocurement system affect a person’s eligibility for Federal procurement free workplace statement and establish ■ my drug-free awareness program? 7. Section 1173.605(a)(2) is further contracts? 1173.225 What actions must I take amended by removing ‘‘[Agency-specific 1185.130 Does exclusion under the Federal concerning employees who are convicted CFR citation]’’ and adding ‘‘45 CFR Part procurement system affect a person’s of drug violations in the workplace? 1174’’ in its place. eligibility to participate in 1173.230 How and when must I identify lllllllllllllllllll nonprocurement transactions? workplaces? 1185.135 May the Institute of Museum and Library Services exclude a person who is Subpart C—Requirements for Recipients NATIONAL FOUNDATION ON THE ARTS AND HUMANITIES not currently participating in a Who Are Individuals nonprocurement transaction? 1173.300 What must I do to comply with Institute of Museum and Library 1185.140 How do I know if a person is this part if I am an individual recipient? Services excluded? 1173.301 [Reserved] 1185.145 Does this part address persons 45 CFR Parts 1185 and 1186 who are disqualified, as well as those Subpart D—Responsibilities of NEH RIN 3137–AA14 who are excluded from nonprocurement Awarding Officials transactions? 1173.400 What are my responsibilities as an FOR FURTHER INFORMATION CONTACT: Subpart B—Covered Transactions NEH awarding official? Nancy E. Weiss, General Counsel, 1185.200 What is a covered transaction? Subpart E—Violations of This Part and Institute of Museum and Library 1185.205 Why is it important to know if a Consequences Services, 1100 Pennsylvania Avenue, particular transaction is a covered 1173.500 How are violations of this part NW., Suite 802, Washington, DC 20506; transaction? determined for recipients other than Telephone: (202) 606–5414; E-mail: 1185.210 Which nonprocurement individuals? [email protected]. transactions are covered transactions?

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1185.215 Which nonprocurement 1185.410 May I approve a participant’s use 1185.705 What does the suspending official transactions are not covered of the services of an excluded person? consider in issuing a suspension? transactions? 1185.415 What must I do if a Federal 1185.710 When does a suspension take 1185.220 Are any procurement contracts agency excludes the participant or a effect? included as covered transactions? principal after I enter into a covered 1185.715 What notice does the suspending 1185.225 How do I know if a transaction in transaction? official give me if I am suspended? which I may participate is a covered 1185.420 May I approve a transaction with 1185.720 How may I contest a suspension? transaction? an excluded or disqualified person at a 1185.725 How much time do I have to Subpart C—Responsibilities of Participants lower tier? contest a suspension? Regarding Transactions 1185.425 When do I check to see if a person 1185.730 What information must I provide is excluded or disqualified? to the suspending official if I contest a Doing Business With Other Persons 1185.430 How do I check to see if a person suspension? 1185.300 What must I do before I enter into is excluded or disqualified? 1185.735 Under what conditions do I get an a covered transaction with another 1185.435 What must I require of a primary additional opportunity to challenge the person at the next lower tier? tier participant? facts on which the suspension is based? 1185.305 May I enter into a covered 1185.440 What method do I use to 1185.740 Are suspension proceedings transaction with an excluded or communicate those requirements to formal? disqualified person? participants? 1185.745 How is fact-finding conducted? 1185.310 What must I do if a Federal 1185.445 What action may I take if a 1185.750 What does the suspending official agency excludes a person with whom I primary tier participant knowingly does consider in deciding whether to continue am already doing business in a covered business with an excluded or or terminate my suspension? transaction? disqualified person? 1185.755 When will I know whether the 1185.315 May I use the services of an 1185.450 What action may I take if a suspension is continued or terminated? excluded person as a principal under a primary tier participant fails to disclose 1185.760 How long may my suspension covered transaction? the information required under last? 1185.320 Must I verify that principals of my § 1185.335? Subpart H—Debarment covered transactions are eligible to 1185.455 What may I do if a lower tier participate? participant fails to disclose the 1185.800 What are the causes for 1185.325 What happens if I do business information required under § 1185.355 to debarment? with an excluded person in a covered the next higher tier? 1185.805 What notice does the debarring transaction? official give me if I am proposed for Subpart E—Excluded Parties List System 1185.330 What requirements must I pass debarment? down to persons at lower tiers with 1185.500 What is the purpose of the 1185.810 When does a debarment take whom I intend to do business? Excluded Parties List System (EPLS)? effect? 1185.505 Who uses the EPLS? 1185.815 How may I contest a proposed Disclosing Information—Primary Tier 1185.510 Who maintains the EPLS? debarment? Participants 1185.515 What specific information is in 1185.820 How much time do I have to 1185.335 What information must I provide the EPLS? contest a proposed debarment? before entering into a covered 1185.520 Who places the information into 1185.825 What information must I provide transaction with the Institute of Museum the EPLS? to the debarring official if I contest a and Library Services? 1185.525 Whom do I ask if I have questions proposed debarment? 1185.340 If I disclose unfavorable about a person in the EPLS? 1185.830 Under what conditions do I get an information required under § 1185.335, 1185.530 Where can I find the EPLS? additional opportunity to challenge the will I be prevented from participating in facts on which the proposed debarment Subpart F—General Principles Relating to the transaction? is based? Suspension and Debarment Actions 1185.345 What happens if I fail to disclose 1185.835 Are debarment proceedings the information required under 1185.600 How do suspension and formal? § 1185.335? debarment actions start? 1185.840 How is fact-finding conducted? 1185.350 What must I do if I learn of the 1185.605 How does suspension differ from 1185.845 What does the debarring official information required under § 1185.335 debarment? consider in deciding whether to debar after entering into a covered transaction 1185.610 What procedures does the me? with the Institute of Museum and Library Institute of Museum and Library Services 1185.850 What is the standard of proof in Services? use in suspension and debarment a debarment action? actions? 1185.855 Who has the burden of proof in a Disclosing Information—Lower Tier 1185.615 How does the Institute of Museum debarment action? Participants and Library Services notify a person of 1185.860 What factors may influence the 1185.355 What information must I provide a suspension and debarment action? debarring official’s decision? to a higher tier participant before 1185.620 Do Federal agencies coordinate 1185.865 How long may my debarment entering into a covered transaction with suspension and debarment actions? last? that participant? 1185.625 What is the scope of a suspension 1185.870 When do I know if the debarring 1185.360 What happens if I fail to disclose or debarment action? official debars me? the information required under 1185.630 May the Institute of Museum and 1185.875 May I ask the debarring official to § 1185.355? Library Services impute the conduct of reconsider a decision to debar me? 1185.365 What must I do if I learn of one person to another? 1185.880 What factors may influence the information required under § 1185.355 1185.635 May the Institute of Museum and debarring official during after entering into a covered transaction Library Services settle a debarment or reconsideration? with a higher tier participant? suspension action? 1185.885 May the debarring official extend 1185.640 May a settlement include a a debarment? Subpart D—Responsibilities of Institute of voluntary exclusion? Museum and Library Services Officials Subpart I—Definitions 1185.645 Do other Federal agencies know if Regarding Transactions the Institute of Museum and Library 1185.900 Adequate evidence. 1185.400 May I enter into a transaction Services agrees to a voluntary exclusion? 1185.905 Affiliate. with an excluded or disqualified person? 1185.910 Agency. 1185.405 May I enter into a covered Subpart G—Suspension 1185.915 Agent or representative. transaction with a participant if a 1185.700 When may the suspending official 1185.920 Civil judgment. principal of the transaction is excluded? issue a suspension? 1185.925 Conviction.

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1185.930 Debarment. Subpart B—Requirements for Recipients designee’’ is added in its place wherever 1185.935 Debarring official. Other Than Individuals it occurs. 1185.940 Disqualified. 1186.200 What must I do to comply with ■ d. ‘‘[Agency head]’’ is removed and 1185.945 Excluded or exclusion. this part? ‘‘Director, Institute of Museum and 1185.950 Excluded Parties List System. 1186.205 What must I include in my drug- 1185.955 Indictment. Library Services’’ is added in its place free workplace statement? wherever it occurs. 1185.960 Ineligible or ineligibility. 1186.210 To whom must I distribute my 1185.965 Legal proceedings. drug-free workplace statement? ■ 6. Section 1186.510(c) is further 1185.970 Nonprocurement transaction. 1186.215 What must I include in my drug- amended by removing ‘‘[CFR citation for 1185.975 Notice. free awareness program? the Federal Agency’s regulations 1185.980 Participant. 1186.220 By when must I publish my drug- 1185.985 Person. implementing Executive Order 12549 free workplace statement and establish 1185.990 Preponderance of the evidence. and Executive Order 12689]’’ and adding my drug-free awareness program? 1185.995 Principal. ‘‘45 CFR Part 1185’’ in its place. 1186.225 What actions must I take 1185.1000 Respondent. concerning employees who are convicted ■ 7. Section 1186.605(a)(2) is further 1185.1005 State. of drug violations in the workplace? amended by removing ‘‘[Agency-specific 1185.1010 Suspending official. 1186.230 How and when must I identify 1185.1015 Suspension. CFR citation]’’ and adding ‘‘45 CFR Part workplaces? 1185.1020 Voluntary exclusion or 1183’’ in its place. voluntarily excluded. Subpart C—Requirements for Recipients lllllllllllllllllll Who Are Individuals Subpart J—[Reserved] CORPORATION FOR NATIONAL AND 1186.300 What must I do to comply with Appendix to Part 1185—Covered this part if I am an individual recipient? COMMUNITY SERVICE Transactions 1186.301 [Reserved] 45 CFR Parts 2542 and 2545 Authority: 20 U.S.C. 9101 et seq.; Sec. 2455 Subpart D—Responsibilities of Institute of RIN 3045–AA28 Pub. L. 103–355, 108 Stat. 311867 (31 U.S.C. Museum and Library Services Awarding 6101 note); E.O. 12549 (3 CFR, 1986 Comp., Officials FOR FURTHER INFORMATION CONTACT: p. 189); E.O. 12689 (3 CFR, 1989 Comp., p. Suzanne Dupre´, Office of General 235). 1186.400 What are my responsibilities as an Institute of Museum and Library Services Counsel, Corporation for National and ■ 2. Part 1185 is further amended as set awarding official? Community Service, Room 8200, 1201 New York Ave., NW., Washington, DC forth below. Subpart E—Violations of This Part and ■ 20525, (202) 606–5000 ext. 396, e-mail: a. ‘‘[Agency noun]’’ is removed and Consequences ‘‘Institute of Museum and Library [email protected]. 1186.500 How are violations of this part Services’’ is added in its place wherever determined for recipients other than List of Subjects it occurs. individuals? ■ b. ‘‘[Agency adjective]’’ is removed and 1186.505 How are violations of this part 45 CFR Part 2542 ‘‘IMLS’’ is added in its place wherever it determined for recipients who are Administrative practice and occurs. individuals? procedure, Debarment and suspension, ■ c. ‘‘[Agency head or designee]’’ is 1186.510 What actions will the Federal Grant programs, Reporting and removed and ‘‘Director, Institute of Government take against a recipient recordkeeping requirements. Museum and Library Services’’ is added determined to have violated this part? in its place wherever it occurs. 1186.515 Are there any exceptions to those 45 CFR Part 2545 actions? ■ 3. Section 1185.440 is added to read as Administrative practice and follows: Subpart F—Definitions procedure, Drug abuse, Grant programs, § 1185.440 What method do I use to 1186.605 Award. Reporting and recordkeeping communicate those requirements to 1186.610 Controlled substance. requirements. participants? 1186.615 Conviction. 1186.620 Cooperative agreement. Dated: June 27, 2003. To communicate the requirements, 1186.625 Criminal drug statute. Michelle Guillermin, you must include a term or condition in 1186.630 Debarment. Chief Financial Officer, Corporation for the transaction requiring the 1186.635 Drug-free workplace. National and Community Service. participant’s compliance with subpart C 1186.640 Employee. ■ Accordingly, as set forth in the of this part and requiring them to 1186.645 Federal agency or agency. 1186.650 Grant. common preamble, the Corporation for include a similar term or condition in National and Community Service lower-tier covered transactions. 1186.655 Individual. 1186.660 Recipient. amends 45 CFR chapter XXV, as follows: ■ 4. Part 1186 is added to read as set forth 1186.665 State. ■ 1. Part 2542 is revised to read as set in instruction 2 at the end of the common 1186.670 Suspension. forth in instruction 1 at the end of the preamble. Authority: 41 U.S.C. 701 et seq. common preamble. PART 1186—GOVERNMENTWIDE ■ 5. Part 1186 is further amended as set PART 2542—GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE forth below. DEBARMENT AND SUSPENSION WORKPLACE (FINANCIAL ■ a. ‘‘[Agency noun]’’ is removed and (NONPROCUREMENT) ASSISTANCE) ‘‘Institute of Museum and Library Sec. Subpart A—Purpose and Coverage Services’’ is added in its place wherever it occurs. 2542.25 How is this part organized? Sec. ■ b. ‘‘[Agency adjective]’’ is removed and 2542.50 How is this part written? 1186.100 What does this part do? 2542.75 Do terms in this part have special 1186.105 Does this part apply to me? ‘‘IMLS’’ is added in its place wherever it meanings? 1186.110 Are any of my Federal assistance occurs. awards exempt from this part? ■ c. ‘‘[Agency head or designee]’’ is Subpart A—General 1186.115 Does this part affect the Federal removed and ‘‘Director, Institute of 2542.100 What does this part do? contracts that I receive? Museum and Library Services or 2542.105 Does this part apply to me?

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2542.110 What is the purpose of the will I be prevented from participating in Subpart F—General Principles Relating to nonprocurement debarment and the transaction? Suspension and Debarment Actions suspension system? 2542.345 What happens if I fail to disclose 2542.600 How do suspension and 2542.115 How does an exclusion restrict a the information required under debarment actions start? person’s involvement in covered § 2542.335? 2542.605 How does suspension differ from transactions? 2542.350 What must I do if I learn of the debarment? 2542.120 May we grant an exception to let information required under § 2542.335 2542.610 What procedures does the an excluded person participate in a after entering into a covered transaction Corporation use in suspension and covered transaction? with the Corporation? debarment actions? 2542.125 Does an exclusion under the 2542.615 How does the Corporation notify nonprocurement system affect a person’s Disclosing Information—Lower Tier a person of a suspension and debarment eligibility for Federal procurement Participants action? contracts? 2542.355 What information must I provide 2542.620 Do Federal agencies coordinate 2542.130 Does exclusion under the Federal to a higher tier participant before suspension and debarment actions? procurement system affect a person’s entering into a covered transaction with 2542.625 What is the scope of a suspension eligibility to participate in that participant? or debarment action? nonprocurement transactions? 2542.360 What happens if I fail to disclose 2542.630 May the Corporation impute the 2542.135 May the Corporation exclude a the information required under conduct of one person to another? person who is not currently participating 2542.635 May the Corporation settle a in a nonprocurement transaction? § 2542.355? 2542.365 What must I do if I learn of debarment or suspension action? 2542.140 How do I know if a person is 2542.640 May a settlement include a excluded? information required under § 2542.355 after entering into a covered transaction voluntary exclusion? 2542.145 Does this part address persons 2542.645 Do other Federal agencies know if with a higher tier participant? who are disqualified, as well as those the Corporation agrees to a voluntary who are excluded from nonprocurement Subpart D—Responsibilities of Corporation exclusion? transactions? Officials Regarding Transactions Subpart G—Suspension Subpart B—Covered Transactions 2542.400 May I enter into a transaction 2542.700 When may the suspending official 2542.200 What is a covered transaction? with an excluded or disqualified person? issue a suspension? 2542.205 Why is it important to know if a 2542.405 May I enter into a covered 2542.705 What does the suspending official particular transaction is a covered transaction with a participant if a consider in issuing a suspension? transaction? principal of the transaction is excluded? 2542.710 When does a suspension take 2542.210 Which nonprocurement 2542.410 May I approve a participant’s use effect? transactions are covered transactions? of the services of an excluded person? 2542.715 What notice does the suspending 2542.215 Which nonprocurement 2542.415 What must I do if a Federal official give me if I am suspended? transactions are not covered agency excludes the participant or a 2542.720 How may I contest a suspension? transactions? principal after I enter into a covered 2542.725 How much time do I have to 2542.220 Are any procurement contracts transaction? contest a suspension? included as covered transactions? 2542.420 May I approve a transaction with 2542.730 What information must I provide 2542.225 How do I know if a transaction in an excluded or disqualified person at a to the suspending official if I contest a which I may participate is a covered lower tier? suspension? transaction? 2542.425 When do I check to see if a person 2542.735 Under what conditions do I get an Subpart C—Responsibilities of Participants is excluded or disqualified? additional opportunity to challenge the Regarding Transactions 2542.430 How do I check to see if a person facts on which the suspension is based? is excluded or disqualified? 2542.740 Are suspension proceedings Doing Business With Other Persons 2542.435 What must I require of a primary formal? 2542.300 What must I do before I enter into tier participant? 2542.745 How is fact-finding conducted? a covered transaction with another 2542.440 What method do I use to 2542.750 What does the suspending official person at the next lower tier? communicate those requirements to consider in deciding whether to continue 2542.305 May I enter into a covered participants? or terminate my suspension? transaction with an excluded or 2542.445 What action may I take if a 2542.755 When will I know whether the disqualified person? primary tier participant knowingly does suspension is continued or terminated? 2542.310 What must I do if a Federal 2542.760 How long may my suspension business with an excluded or agency excludes a person with whom I last? disqualified person? am already doing business in a covered 2542.450 What action may I take if a Subpart H—Debarment transaction? 2542.315 May I use the services of an primary tier participant fails to disclose 2542.800 What are the causes for excluded person as a principal under a the information required under debarment? covered transaction? § 2542.335? 2542.805 What notice does the debarring 2542.320 Must I verify that principals of my 2542.455 What may I do if a lower tier official give me if I am proposed for covered transactions are eligible to participant fails to disclose the debarment? participate? information required under § 2542.355 to 2542.810 When does a debarment take 2542.325 What happens if I do business the next higher tier? effect? with an excluded person in a covered Subpart E—Excluded Parties List System 2542.815 How may I contest a proposed transaction? debarment? 2542.330 What requirements must I pass 2542.500 What is the purpose of the 2542.820 How much time do I have to down to persons at lower tiers with Excluded Parties List System (EPLS)? contest a proposed debarment? whom I intend to do business? 2542.505 Who uses the EPLS? 2542.825 What information must I provide 2542.510 Who maintains the EPLS? to the debarring official if I contest a Disclosing Information—Primary Tier 2542.515 What specific information is in proposed debarment? Participants the EPLS? 2542.830 Under what conditions do I get an 2542.335 What information must I provide 2542.520 Who places the information into additional opportunity to challenge the before entering into a covered the EPLS? facts on which the proposed debarment transaction with the Corporation? 2542.525 Whom do I ask if I have questions is based? 2542.340 If I disclose unfavorable about a person in the EPLS? 2542.835 Are debarment proceedings information required under § 2542.335, 2542.530 Where can I find the EPLS? formal?

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2542.840 How is fact-finding conducted? § 2542.440 What method do I use to 2545.615 Conviction. 2542.845 What does the debarring official communicate those requirements to 2545.620 Cooperative agreement. consider in deciding whether to debar participants? 2545.625 Criminal drug statute. me? To communicate the requirements, 2545.630 Debarment. 2542.850 What is the standard of proof in you must include a term or condition in 2545.635 Drug-free workplace. a debarment action? the transaction requiring the 2545.640 Employee. 2542.855 Who has the burden of proof in a 2545.645 Federal agency or agency. debarment action? participant’s compliance with subpart C of this part and requiring them to 2545.650 Grant. 2542.860 What factors may influence the 2545.655 Individual. include a similar term or condition in debarring official’s decision? 2545.660 Recipient. 2542.865 How long may my debarment lower-tier covered transactions. 2545.665 State. last? ■ 4. Part 2545 is added to read as set forth 2545.670 Suspension. 2542.870 When do I know if the debarring in instruction 2 at the end of the common Authority: 41 U.S.C. 701, et seq.; 42 U.S.C. official debars me? preamble. 2542.875 May I ask the debarring official to 12644 and 12651(c). reconsider a decision to debar me? PART 2545—GOVERNMENTWIDE ■ 2542.880 What factors may influence the REQUIREMENTS FOR DRUG-FREE 5. Part 2545 is further amended as set debarring official during WORKPLACE (FINANCIAL forth below. reconsideration? ■ 2542.885 May the debarring official extend ASSISTANCE) a. ‘‘[Agency noun]’’ is removed and a debarment? ‘‘Corporation’’ is added in its place Subpart A—Purpose and Coverage wherever it occurs. Subpart I—Definitions Sec. ■ b. ‘‘[Agency adjective]’’ is removed and 2545.100 What does this part do? 2542.900 Adequate evidence. ‘‘Corporation’’ is added in its place 2542.905 Affiliate. 2545.105 Does this part apply to me? 2542.910 Agency. 2545.110 Are any of my Federal assistance wherever it occurs. 2542.915 Agent or representative. awards exempt from this part? ■ c. ‘‘[Agency head or designee]’’ is 2542.920 Civil judgment. 2545.115 Does this part affect the Federal removed and ‘‘Corporation Chief 2542.925 Conviction. contracts that I receive? Executive Officer or designee’’ is added 2542.930 Debarment. Subpart B—Requirements for Recipients in its place wherever it occurs. 2542.935 Debarring official. Other Than Individuals 2542.940 Disqualified. ■ d. ‘‘[Agency head]’’ is removed and 2542.945 Excluded or exclusion. 2545.200 What must I do to comply with ‘‘Corporation Chief Executive Officer’’ is 2542.950 Excluded Parties List System. this part? added in its place wherever it occurs. 2542.955 Indictment. 2545.205 What must I include in my drug- 2542.960 Ineligible or ineligibility. free workplace statement? ■ 6. Section 2545.510(c) is further 2542.965 Legal proceedings. 2545.210 To whom must I distribute my amended by removing ‘‘[CFR citation for 2542.970 Nonprocurement transaction. drug-free workplace statement? the Federal Agencies’ regulations 2542.975 Notice. 2545.215 What must I include in my drug- implementing Executive Order 12549 2542.980 Participant. free awareness program? 2545.220 By when must I publish my drug- and Executive Order 12689]’’ and adding 2542.985 Person. ‘‘45 CFR Part 2542’’ in its place. 2542.990 Preponderance of the evidence. free workplace statement and establish 2542.995 Principal. my drug-free awareness program? ■ 7. Section 2545.605(a)(2) is further 2545.225 What actions must I take 2542.1000 Respondent. amended by removing ‘‘[Agency-specific 2542.1005 State. concerning employees who are convicted of drug violations in the workplace? CFR citation]’’ and adding ‘‘45 CFR Part 2542.1010 Suspending official. 2545.230 How and when must I identify 2541’’ in its place. 2542.1015 Suspension. workplaces? 2542.1020 Voluntary exclusion or lllllllllllllllllll voluntarily excluded. Subpart C—Requirements for Recipients Who Are Individuals DEPARTMENT OF TRANSPORTATION Subpart J—[Reserved] 2545.300 What must I do to comply with 49 CFR Parts 29 and 32 Appendix to Part 2542—Covered this part if I am an individual recipient? RIN 2105–AD07 Transactions 2545.301 [Reserved] Authority: 42 U.S.C. 12651(c); sec. 2455, Subpart D—Responsibilities of Corporation FOR FURTHER INFORMATION CONTACT: Pub. L. 103–355, 108 Stat. 3327 (31 U.S.C. Awarding Officials Ladd Hakes, Office of the Senior 6101 note); E.O. 12549 (3 CFR, 1986 Comp., 2545.400 What are my responsibilities as a Procurement Executive (M–62), 400 p. 189); E.O. 12689 (3 CFR, 1989 Comp., p. Corporation awarding official? Seventh Street, SW., Washington, DC 235). 20590, (202) 366–4268, e-mail: Subpart E—Violations of This Part and ■ 2. Part 2542 is further amended as set Consequences [email protected]. forth below. 2545.500 How are violations of this part List of Subjects ■ a. ‘‘[Agency noun]’’ is removed and determined for recipients other than 49 CFR Part 29 ‘‘Corporation’’ is added in its place individuals? 2545.505 How are violations of this part wherever it occurs. Administrative practice and ■ b. ‘‘[Agency adjective]’’ is removed and determined for recipients who are individuals? procedure, Government contracts, Grant ‘‘Corporation’’ is added in its place 2545.510 What actions will the Federal programs, Loan programs, Reporting wherever it occurs. Government take against a recipient and recordkeeping requirements. ■ c. ‘‘[Agency head or designee]’’ is determined to have violated this part? removed and ‘‘Corporation Chief 2545.515 Are there any exceptions to those 49 CFR Part 32 actions? Executive Officer or designee’’ is added Administrative practice and in its place wherever it occurs. Subpart F—Definitions procedure, Drug abuse, Grant programs, ■ 3. Section 2542.440 is added to read as 2545.605 Award. Reporting and recordkeeping follows: 2545.610 Controlled substance. requirements.

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Dated: August 12, 2003. 29.310 What must I do if a Federal agency 29.455 What may I do if a lower tier Norman Y. Mineta, excludes a person with whom I am participant fails to disclose the Secretary of Transportation. already doing business in a covered information required under § 29.355 to transaction? the next higher tier? ■ For the reasons stated in the common 29.315 May I use the services of an Subpart E—Excluded Parties List System preamble, the Department of excluded person as a principal under a Transportation amends 49 CFR subtitle covered transaction? 29.500 What is the purpose of the Excluded A, as follows: 29.320 Must I verify that principals of my Parties List System (EPLS)? ■ 1. Part 29 is revised to read as set forth covered transactions are eligible to 29.505 Who uses the EPLS? in instruction 1 at the end of the common participate? 29.510 Who maintains the EPLS? 29.515 What specific information is in the preamble. 29.325 What happens if I do business with an excluded person in a covered EPLS? 29.520 Who places the information into the PART 29—GOVERNMENTWIDE transaction? 29.330 What requirements must I pass EPLS? DEBARMENT AND SUSPENSION 29.525 Whom do I ask if I have questions (NONPROCUREMENT) down to persons at lower tiers with whom I intend to do business? about a person in the EPLS? 29.530 Where can I find the EPLS? Sec. Disclosing Information—Primary Tier 29.25 How is this part organized? Participants Subpart F—General Principles Relating to 29.50 How is this part written? Suspension and Debarment Actions 29.335 What information must I provide 29.75 Do terms in this part have special 29.600 How do suspension and debarment meanings? before entering into a covered transaction with DOT? actions start? Subpart A—General 29.340 If I disclose unfavorable information 29.605 How does suspension differ from debarment? required under § 29.335, will I be 29.100 What does this part do? 29.610 What procedures does DOT use in prevented from participating in the 29.105 Does this part apply to me? suspension and debarment actions? transaction? 29.110 What is the purpose of the 29.615 How does DOT notify a person of a 29.345 What happens if I fail to disclose the nonprocurement debarment and suspension and debarment action? information required under § 29.335? suspension system? 29.620 Do Federal agencies coordinate 29.350 What must I do if I learn of the 29.115 How does an exclusion restrict a suspension and debarment actions? information required under § 29.335 after person’s involvement in covered 29.625 What is the scope of a suspension or entering into a covered transaction with transactions? debarment action? DOT? 29.120 May we grant an exception to let an 29.630 May DOT impute the conduct of one excluded person participate in a covered Disclosing Information—Lower Tier person to another? transaction? Participants 29.635 May DOT settle a debarment or 29.125 Does an exclusion under the suspension action? 29.355 What information must I provide to nonprocurement system affect a person’s 29.640 May a settlement include a a higher tier participant before entering eligibility for Federal procurement voluntary exclusion? into a covered transaction with that contracts? 29.645 Do other Federal agencies know if participant? 29.130 Does exclusion under the Federal DOT agrees to a voluntary exclusion? procurement system affect a person’s 29.360 What happens if I fail to disclose the eligibility to participate in information required under § 29.355? Subpart G—Suspension nonprocurement transactions? 29.365 What must I do if I learn of 29.700 When may the suspending official 29.135 May DOT exclude a person who is information required under § 29.355 after issue a suspension? not currently participating in a entering into a covered transaction with 29.705 What does the suspending official nonprocurement transaction? a higher tier participant? consider in issuing a suspension? 29.140 How do I know if a person is Subpart D—Responsibilities of DOT 29.710 When does a suspension take effect? excluded? Officials Regarding Transactions 29.715 What notice does the suspending 29.145 Does this part address persons who official give me if I am suspended? are disqualified, as well as those who are 29.400 May I enter into a transaction with 29.720 How may I contest a suspension? excluded from nonprocurement an excluded or disqualified person? 29.725 How much time do I have to contest transactions? 29.405 May I enter into a covered a suspension? transaction with a participant if a Subpart B—Covered Transactions 29.730 What information must I provide to principal of the transaction is excluded? the suspending official if I contest a 29.200 What is a covered transaction? 29.410 May I approve a participant’s use of suspension? 29.205 Why is it important to know if a the services of an excluded person? 29.735 Under what conditions do I get an particular transaction is a covered 29.415 What must I do if a Federal agency additional opportunity to challenge the transaction? excludes the participant or a principal facts on which the suspension is based? 29.210 Which nonprocurement transactions after I enter into a covered transaction? 29.740 Are suspension proceedings formal? are covered transactions? 29.420 May I approve a transaction with an 29.745 How is fact-finding conducted? 29.215 Which nonprocurement transactions excluded or disqualified person at a 29.750 What does the suspending official are not covered transactions? lower tier? consider in deciding whether to continue 29.220 Are any procurement contracts 29.425 When do I check to see if a person or terminate my suspension? included as covered transactions? is excluded or disqualified? 29.755 When will I know whether the 29.225 How do I know if a transaction in 29.430 How do I check to see if a person is suspension is continued or terminated? which I may participate is a covered excluded or disqualified? 29.760 How long may my suspension last? transaction? 29.435 What must I require of a primary tier participant? Subpart H—Debarment Subpart C—Responsibilities of Participants 29.440 What method do I use to 29.800 What are the causes for debarment? Regarding Transactions Doing Business communicate those requirements to 29.805 What notice does the debarring With Other Persons participants? official give me if I am proposed for 29.300 What must I do before I enter into 29.445 What action may I take if a primary debarment? a covered transaction with another tier participant knowingly does business 29.810 When does a debarment take effect? person at the next lower tier? with an excluded or disqualified person? 29.815 How may I contest a proposed 29.305 May I enter into a covered 29.450 What action may I take if a primary debarment? transaction with an excluded or tier participant fails to disclose the 29.820 How much time do I have to contest disqualified person? information required under § 29.335? a proposed debarment?

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29.825 What information must I provide to official’’ is added in its place wherever delegate any of his or her functions the debarring official if I contest a it occurs. under this part and authorize successive proposed debarment? ■ delegations. 29.830 Under what conditions do I get an 3. Section 29.120 is further amended ■ additional opportunity to challenge the by adding a paragraph (c) to read as 8. Part 32 is added to read as set forth facts on which the proposed debarment follows: in instruction 2 at the end of the common is based? preamble. 29.835 Are debarment proceedings formal? § 29.120 May we grant an exception to an 29.840 How is fact-finding conducted? excluded person to participate in a covered PART 32—GOVERNMENTWIDE 29.845 What does the debarring official transaction? REQUIREMENTS FOR DRUG-FREE consider in deciding whether to debar * * * * * WORKPLACE (FINANCIAL me? (c) A debarring or suspending official ASSISTANCE) 29.850 What is the standard of proof in a may grant exceptions and make written debarment action? determinations under this section. Subpart A—Purpose and Coverage 29.855 Who has the burden of proof in a ■ Sec. debarment action? 4. Section 29.440 is added to read as 32.100 What does this part do? 29.860 What factors may influence the follows: 32.105 Does this part apply to me? debarring official’s decision? 32.110 Are any of my Federal assistance 29.865 How long may my debarment last? § 29.440 What method do I use to awards exempt from this part? 29.870 When do I know if the debarring communicate those requirements to 32.115 Does this part affect the Federal official debars me? participants? 29.875 May I ask the debarring official to To communicate the requirement you contracts that I receive? reconsider a decision to debar me? must include a term or condition in the Subpart B—Requirements for Recipients 29.880 What factors may influence the transaction requiring the participants’ Other Than Individuals debarring official during compliance with subpart C of this part 32.200 What must I do to comply with this reconsideration? and requiring them to include a similar part? 29.885 May the debarring official extend a 32.205 What must I include in my drug-free debarment? term or condition in lower-tier covered transactions. workplace statement? Subpart I—Definitions ■ 5. Section 29.520 is further amended 32.210 To whom must I distribute my drug- free workplace statement? 29.900 Adequate evidence. by removing the period at the end of 29.905 Affiliate. 32.215 What must I include in my drug-free paragraph (c)(4) and adding a semi- awareness program? 29.910 Agency. colon, and adding a paragraph (d) to read 29.915 Agent or representative. 32.220 By when must I publish my drug- 29.920 Civil judgment. as follows: free workplace statement and establish 29.925 Conviction. my drug-free awareness program? § 29.520 Who places the information into 32.225 What actions must I take concerning 29.930 Debarment. the EPLS? 29.935 Debarring official. employees who are convicted of drug 29.940 Disqualified. * * * * * violations in the workplace? 29.945 Excluded or exclusion. (d) The DOT official’s Operating 32.230 How and when must I identify 29.950 Excluded Parties List System. Administration code, as follows: United workplaces? 29.955 Indictment. States Coast Guard [DOT–USCG]; Subpart C—Requirements for Recipients 29.960 Ineligible or ineligibility. Federal Aviation Administration [DOT– Who Are Individuals 29.965 Legal proceedings. FAA]; Federal Highway Administration 32.300 What must I do to comply with this 29.970 Nonprocurement transaction. [DOT–FHWA]; Federal Motor Carrier 29.975 Notice. part if I am an individual recipient? 29.980 Participant. Safety Administration [DOT–FMCSA]; 32.301 [Reserved] 29.985 Person. Federal Railway Administration [DOT– Subpart D—Responsibilities of DOT 29.990 Preponderance of the evidence. FRA]; Federal Transit Administration Awarding Officials 29.995 Principal. [DOT–FTA]; National Highway Traffic 32.400 What are my responsibilities as a 29.1000 Respondent. Safety Administration [DOT–NHTSA]; DOT awarding official? 29.1005 State. Research and Special Programs [DOT– 29.1010 Suspending official. RSPA]; Maritime Administration [DOT– Subpart E—Violations of This Part and 29.1015 Suspension. MARAD]; and DOT (general) [DOT– Consequences 29.1020 Voluntary exclusion or voluntarily OST]. 32.500 How are violations of this part excluded. ■ 6. Section 29.935 is further amended determined for recipients other than Subpart J—[Reserved] adding a paragraph (b) to read as follows: individuals? 32.505 How are violations of this part Appendix to Part 29—Covered Transactions § 29.935 Debarring official. determined for recipients who are individuals? Authority: Sec. 2455, Pub. L. 103–355, 108 * * * * * 32.510 What actions will the Federal Stat. 3327 (31 U.S.C. 6101 note); E.O. 11738 (b) For DOT ‘‘debarring official’’ Government take against a recipient (3 CFR, 1973 Comp., p. 799); E.O. 12549 (3 means the designated head of a DOT determined to have violated this part? CFR, 1986 Comp., p. 189); E.O. 12689 (3 CFR, operating administration, who may 32.515 Are there any exceptions to those 1989 Comp., p. 235). delegate any of his or her functions actions? ■ under this part and authorize successive 2. Part 29 is further amended as set Subpart F—Definitions forth below. delegations. ■ a. ‘‘[Agency noun]’’ is removed and ■ 7. Section 29.1010 is further amended 32.605 Award. ‘‘Department of Transportation’’ is 32.610 Controlled substance. adding a paragraph (b) to read as follows: 32.615 Conviction. added in its place wherever it occurs. 32.620 Cooperative agreement. ■ § 29.1010 Suspending official. b. [Agency adjective]’’ is removed and 32.625 Criminal drug statute. ‘‘DOT’’ is added in its place wherever it * * * * * 32.630 Debarment. occurs. (b) For DOT ‘‘suspending official’’ 32.635 Drug-free workplace. ■ c. ‘‘[Agency head or designee]’’ is means the designated head of a DOT 32.640 Employee. removed and ‘‘debarring or suspending operating administration, who may 32.645 Federal agency or agency.

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32.650 Grant. ■ b. ‘‘[Agency adjective]’’ is removed and and Executive Order 12689’’ and adding 32.655 Individual. ‘‘DOT’’ is added in its place wherever it ‘‘49 CFR Part 29’’ in its place. 32.660 Recipient. occurs. ■ 11. Section 32.605(a)(2) is further ■ 32.665 State. c. ‘‘[Agency head or designee]’’ is amended by removing ‘‘[Agency-specific 32.670 Suspension. removed and ‘‘Secretary of CFR citation]’’ and adding ‘‘49 CFR Part Authority: 41 U.S.C. 701 et seq. Transportation’’ is added in its place 18’’ in its place. wherever it occurs. ■ ■ 9. Part 32 is further amended as set d. ‘‘[Agency head]’’ is removed and [FR Doc. 03–28454 Filed 11–21–03; 8:45 am] forth below. ‘‘Secretary of Transportation’’ is added BILLING CODE 6325–52–P; 3410–90–P; 6450–01–P; in its place wherever it occurs. 6690–01–P; 8025–01–P; 7510–01–P; 3510–FA–P; 4191– ■ 02–P; 3180–02–P; 4710–05–P; 6116–01–P; 6051–01–P; a. ‘‘[Agency noun]’’ is removed and ■ 10. Section 32.510 (c) is further 7025–01–P; 6117–01–P; 4210–32–P; 4410–18–P; 4510–23– ‘‘Department of Transportation’’ is amended by removing ‘‘CFR citation for P; 6732–01–P; 4811–16–P; 5001–08–P; 4000–01–P; 7515– 01–P; 8320–01–P; 6560–50–P; 6820–61–P; 7025–01–P; added in its place wherever it occurs. the Federal Agency’s regulations 4151–17–P; 7555–01–P; 7537–01–P; 7536–01–P; 7036–01– implementing Executive Order 12549 P; 6050–$$–P; 4910–62–P

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Part III

Department of Commerce Patent and Trademark Office

37 CFR Parts 1, 5, and 41 Rules of Practice Before the Board of Patent Appeals and Interferences; Proposed Rule

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DEPARTMENT OF COMMERCE should not include information that the renumbering it as Rule 14(e). 68 FR submitter does not wish to have 38611, 38612, 38620 (30 June 2003). In Patent and Trademark Office published. Comments that include the present proposal, the language of the confidentiality notices will not be rule has been simplified to avoid some 37 CFR Parts 1, 5, and 41 entered into the record. of the criticisms in one comment, but RIN 0651–AB32 The Board of Patent Appeals and the suggestion in the comments to relax Interferences (Board) has significantly the standards for publishing decisions is Rules of Practice Before the Board of overhauled its operations to address not being proposed. Proposed Rule Patent Appeals and Interferences concerns about the duration of 14(e)(1) would continue to state that proceedings before the Board. publicly available materials are publicly AGENCY: United States Patent and Improvements include an increase in available. Such materials may be Trademark Office, Commerce. the number of administrative patent published without notification to or ACTION: Proposed rule. judges, outreach programs to educate permission from the applicant or patent parties and examiners about Board owner. SUMMARY: The Under Secretary of operations, and restructuring of Board Rules 17(b)–(d) and (h) would be Commerce for Intellectual Property and procedures. This rule making proposes revised to remove the Board fees, which Director of the United States Patent and to revise the rules governing Board will be relocated to proposed § 41.20. Trademark Office proposes changes to proceedings to better reflect these new Rule 48(a)–(c) and (i) would be the rules governing practice before the procedures. Consistent with these revised, and Rule 48(j) added, to Board of Patent Appeals and improvements, the rules are also consolidate the cross-reference Interferences to consolidate and consolidated and simplified to ease use. correction of inventorship for simplify such rules and to reflect Finally, the rules address case law and applications in contested cases before developments in case law, legislation, legislative changes that have occurred the Board. and administrative practice. since the last significant revision of the Rules 55(a)(3) and (a)(4), and 136(b) DATES: Submit comments on or before Board’s rules. would be revised to eliminate the cross- January 26, 2004. references to Board rules. Explanation of Proposed Changes ADDRESSES: Submit comments: Rule 116 would be amended to limit 1. By electronic mail to In keeping with long-standing patent amendments after a final rejection or [email protected]. practice, existing rules are denominated other final action (Rule 113) in an 2. By mail to Mail Stop Interference, ‘‘Rule x’’ in this supplementary application or in an ex parte Director of the United States Patent and information. The proposed rules are reexamination filed under Rule 510, or Trademark Office, PO Box 1450, denominated ‘‘proposed § 41.x’’ to help after an action closing prosecution (Rule Alexandria, VA 22313–1450. readers distinguish between existing 949) in an inter partes reexamination 3. By facsimile to 703–308–7953. and proposed rules. filed under Rule 913, to such See the SUPPLEMENTARY INFORMATION Rules 1(a)(1)(iii), 5(e), 6(d)(9), amendments filed before or with any for further information about submitting 8(a)(2)(i)(B) and (a)(2)(i)(C), and 11(e), appeal to the Board under proposed comments. and subpart E of part 1, would be § 41.31 or § 41.61. Amendments after FOR FURTHER INFORMATION CONTACT: removed to consolidate interference appeal currently treated under Rule 116 Appeals: Jeffrey V. Nase or William F. information in proposed part 41, would be moved to proposed §§ 41.33 Smith, 703–308–9797. subparts D and E. and 41.63. Rule 116(d) would be Otherwise: Richard Torczon, 703– Rules 4(a)(2); 9(g); 36; 59(a)(1); 103(g); amended to permit only an amendment 308–9797. 112; 113(a); 114(d); 131(a)(1); 136(a)(1) canceling claims, where such SUPPLEMENTARY INFORMATION: and (a)(2); 181(a)(3); 248(c); 292(a) and cancellation does not affect the scope of (c); 295(b); 302(b); 303(c); 304(a)(1) and any other pending claim in the Relationship to Announced Rule (a)(2); 322(a)(3); 323; 324; 565(e); proceeding, to be made in an inter Makings 701(c)(2)(ii); 703(a)(4), (b)(3)(ii), (b)(4), partes reexamination proceeding after This notice combines two rule (d)(2), and (e); 704(c)(9); and 993 would the right of appeal notice has issued makings previously announced in the be revised to change cross-references to under Rule 953, except as provided in Unified Agenda as 0651–AB27 Board proceedings. Rule 981 or as permitted by proposed (Appeals) and 0651–AB32 Rule 14(e) would be revised to § 41.77(b)(1). Rule 116(e) would be (Interferences). eliminate references to Board actions. added to set forth a standard for An analogous rule for Board actions is treatment of an affidavit or other Filing Comments on This Proposed proposed in § 41.6(a). The Office evidence submitted after a final Rule previously proposed a similar change to rejection or other final action (Rule 113) To the extent reasonably possible, the Rule 14(e). See ‘‘Changes to Implement in an application or in an ex parte Office will make the comments Electronic Maintenance of Official reexamination filed under Rule 510, or available at http://www.uspto.gov/web/ Patent Application Records’’, 68 FR in an action closing prosecution (Rule offices/dcom/bpai/. To facilitate this 14365 (25 March 2003), in which the 949) in an inter partes reexamination goal, the Office strongly encourages the paragraph in question was numbered filed under Rule 913, but before or with submission of comments electronically, Rule 14(f). The Office received two any appeal (proposed § 41.31 or in either ASCII format or ADOBE comments that were specific to then- proposed § 41.61). The proposed portable document format (pdf). proposed Rule 14(f). See http:// standard would be that such an affidavit Regardless of which submission mode www.uspto.gov/web/offices/pac/dapp/ or other evidence could be admitted you select, write only ‘‘Consolidated opla/comments/efw/aipla.pdf and http:/ upon a showing of good and sufficient Board Rules’’ in the subject line to /www.uspto.gov/web/offices/pac/dapp/ reasons why the affidavit or other ensure prompt consideration of your opla/comments/efw/neifeld.pdf. To evidence is necessary and was not comments. avoid confusion with this proposed rule earlier presented. This standard is Since the comments will be made making, no change was adopted to the currently in effect under Rule 195 for an available to the public, the comments language of the rule beyond affidavit or other evidence submitted

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after appeal. Rule 116(f) would be added inter partes reexamination proceeding Proposed subpart A would state to prohibit affidavits and other evidence may require, to carry into effect the policies, practices, and definitions in an inter partes reexamination decision of the Board of Patent Appeals common to all proceedings before the proceeding after the right of appeal and Interferences. Paragraph (b) would Board. notice under Rule 953, except as be amended to state that upon Proposed § 41.1 would set forth provided in Rule 981 or as permitted by termination of the appeal before the general principles for proposed part 41. proposed § 41.77(b)(1). Board of Patent Appeals and Proposed § 41.1(a) would define the Rule 191 would be amended to direct Interferences (proposed § 41.83), if no scope of rules. Proposed § 41.1(b) would appellants under 35 U.S.C. 134(a) or (b) further appeal has been taken (Rule mandate that the Board’s rules be to proposed part 41, subpart B. Rules 983), the inter partes reexamination construed to achieve just, speedy, and 192–196 would be removed and proceeding will be terminated and the inexpensive resolutions of all Board reserved. Director will issue a certificate under proceedings, following the model of Rule 197 would be amended by Rule 997. If an appeal to the U.S. Court Rule 601 and Federal Rule of Civil changing its title to ‘‘Return of of Appeals for the Federal Circuit has Procedure 1. Proposed § 41.1(c) would Jurisdiction from the Board of Patent been filed, that appeal is considered explicitly extend the requirement for Appeals and Interferences; termination terminated when the mandate is decorum under Rule 3 to Board of proceedings’’ to reflect the two received by the Office. proceedings, including dealings with remaining paragraphs of this section. Rule 981 would be amended by opposing parties. Board officials are The subject matter of current paragraph changing its title to ‘‘Reopening after a similarly expected to treat parties with (b) would be moved to proposed § 41.52 final decision of the Board of Patent courtesy and decorum. and the subject matter of current Appeals and Interferences’’ to better Proposed § 41.2 would set forth paragraph (c) would be moved to reflect the substance of the section and definitions for Board proceedings under proposed paragraph (b) of this section. to clarify that it applies when a decision proposed part 41. The preamble to In addition, paragraph (a) would be by the Board of Patent Appeals and proposed § 41.2 is based on the amended to return of jurisdiction of the Interferences on appeal has become preamble of Rule 601, which cautions involved application or patent under ex final for judicial review. that context may give a defined word a parte reexamination proceeding to the Section 3 of part 5 provides that no different meaning. For instance, examiner. interference will be declared with an although ‘‘final’’ would be defined for Rule 198 would be amended by application under a national secrecy the purposes of identifying final agency changing its title to ‘‘Reopening after a order. In part, this is because the actions of the Board, it would not final decision of the Board of Patent application cannot issue while the change the meaning of ‘‘final rejection’’ Appeals and Interferences’’ to better secrecy order is in place so the in proposed § 41.37(c)(1)(iv), which reflect the substance of the section and completion requirement of proposed refers to an action by an examiner. to clarify that it applies when a decision § 41.102 is not met. Cf. Case v. CPC Int’l, The proposed definition of ‘‘Board’’ by the Board of Patent Appeals and Inc., 730 F.2d 745, 750, 221 USPQ 196, would cover three distinct situations. Interferences on appeal has become 200 (Fed. Cir. 1984) (the Director First, for the purposes of a final agency final for judicial review. declares an interference to determine action committed to a panel of Board Rule 324(a) and (c) would be revised, whether the application may issue). The members, the definition would be and Rule 324(d) added, to consolidate proposed revision to Rule 5.3 would identical in scope to 35 U.S.C. 6(b). cross-references to correction of remove the reference to a patent because Second, the definition would include inventorship for patents in contested an interference may be provoked with action by the Chief Administrative cases before the Board. an application as well (proposed Patent Judge in matters delegated in Rule 959 would be revised to direct § 41.202(a)(1)). The proposed revision these proposed rules to the Chief inter partes reexamination participants would also remove the requirement to Administrative Patent Judge. Third, the to proposed part 41, subpart C, for place a notice in the file of the targeted definition would recognize that non- information about appeals in such patent. Since the Office will not act on final actions are often performed by proceedings. the suggestion for an interference, the officials other than a panel or the Chief Rules 961–977 would be removed to notice only serves to cast unexamined Administrative Patent Judge. See Rule consolidate inter partes reexamination doubt on the claims of the patentee 610(a); cf. 37 CFR 2.127(c). This appeal information in proposed part 41, without providing any route of relief. definition should not be read to subpart C. An applicant intent on having an authorize a final decision on Rule 979 would be amended by interference should take steps to have patentability, priority, or United States changing its title to ‘‘Return of the secrecy order lifted. Government ownership by anything Jurisdiction from the Board of Patent Section 23(c)(7) of part 10 would be other than a Board panel. Other than Appeals and Interferences; termination amended to change the cross-reference instances in which a panel is required of proceedings’’ to reflect the two to the interference rules. by statute, the selection and paragraphs of this section. Most of the A new part 41 would permit authorization of an official to act on subject matter of current paragraphs (a)– consolidation of rules relating to Board behalf of the Board would be entirely a (g) would be moved to proposed practice and to simplify reference to matter of internal administration. §§ 41.79, 41.81 and 41.83. Paragraph (a) such practices. The Board would The definition of ‘‘Board member’’ would be amended to recite that continue the practice used in part 1 of would follow the definition in 35 U.S.C. jurisdiction over an inter partes this title of citing sections without the 6(a), under which the Under Secretary reexamination proceeding passes to the part number. In proceedings before the of Commerce for Intellectual Property examiner after a decision by the Board Board, a party could cite ‘‘§ 41.x’’ as and Director of the United States Patent of Patent Appeals and Interferences ‘‘Board Rule x’’. and Trademark Office, the Deputy upon transmittal of the file to the Proposed part 41 would better state Under Secretary of Commerce for examiner, subject to each appellant’s the existing practice and should not be Intellectual Property and Deputy right of appeal or other review, for such read to change the existing practice Director of the United States Patent and further action as the condition of the except as explicitly provided. Trademark Office, the Commissioner for

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Patents, and the Commissioner for The term ‘‘party’’ would set forth a authorized patent term adjustments for Trademarks are ex officio members of generic term for entities acting in a time spent in proceedings before the the Board. Board proceeding. Board. 35 U.S.C. 154(b)(1)(C). The phrase ‘‘contested case’’ would The delegation of petition authority to Consequently, the Board must be include patent interferences (35 U.S.C. the Chief Administrative Patent Judge in mindful to avoid delays in its 135(a)) and proceedings with proposed § 41.3(a) would be new as a administration of its proceedings, interference-based procedures (42 rule, but follows a delegation already including delays requested or caused by U.S.C. 2182 and 2457(d)). The existence published in the Manual of Patent a party. The Board might set conditions of a contested case is a predicate for Examining Procedure (MPEP) at on extensions to minimize the effects of authorizing a subpoena under 35 U.S.C. § 1002.02(f). This delegation by rule any delay, including restriction under 24. Although both appeals in inter would not prejudice the Director’s 35 U.S.C. 121 of claims directed to partes reexaminations under 35 U.S.C. prerogative to decide a petition or to subject matter not involved in the Board 134(c) and some petitions to the Chief delegate authority to decide a petition to proceeding. Proposed § 41.4(c) would Administrative Patent Judge, such as a another subordinate. The Chief point parties to timeliness rules that are petition for access under 35 U.S.C. Administrative Patent Judge could also related to Board proceedings, but not 135(c), may involve more than one delegate petition-deciding authority to within the scope of the Board rules. party, they are not considered contested an official, provided the delegation is Proposed § 41.5 would set forth a cases for the purposes of proposed part stated in writing. Note that under limited delegation to the Board under 35 41. proposed § 41.3(b)(1) decisions U.S.C. 2(b)(2) and 32 to regulate the Finality is required for judicial committed by statute to the Board conduct of counsel in Board review. Barton v. Adang, 162 F.3d 1140, would not be subject to petitions for proceedings. It would generally be more 1143, 49 USPQ2d 1128, 1131 (Fed. Cir. supervisory review. Such decisions efficient to have a Board official familiar 1998). The term ‘‘final’’ would be would include merits decisions in with the specific proceeding decide defined pursuant to 5 U.S.C. 704 to appeals and contested cases, and questions of representation limited to assist parties in determining when a decisions on requests for rehearing. 35 the specific proceeding. Disqualification Board action is ripe for judicial review. U.S.C. 6(b). Review of such decisions would be a case-specific suspension or In Barton, 162 F.3d at 1143, 49 USPQ2d would come through a request for exclusion from practice within the at 1131, the Court of Appeals for the rehearing or through judicial review. meaning of 35 U.S.C. 32. Under the Federal Circuit held that an adverse Proposed § 41.3(b)(2), which would terms of section 32, the official judgment against a single party in a provide for petitions in contested cases conducting the disqualification hearing multi-party patent interference was a to be decided by other officials, would would have to be an attorney. final agency action with respect to that reflect the MPEP’s designation of other Proposed § 41.5(b) would delegate to party for the purposes of review under actions typical in the ordinary course of the Board the authority to conduct 35 U.S.C. 141. The proposed definition Board proceedings as ‘‘petitions’’. See counsel disqualification proceedings of ‘‘final’’ would follow Barton in MPEP § 1002.02(g) (various procedural while the Board has jurisdiction over a linking the question of finality to decisions in interferences). These proceeding. It also would clarify whether an agency action on the merits actions would be considered routine counsel disqualification practice under is operative against the party seeking motions or requests. Rule 613(c) by making explicit the fact judicial review. Under 35 U.S.C. 6(b), a Proposed § 41.3(c) would reflect that a final decision to disqualify is an decision on the merits in an appeal or current practice in requiring payment of exercise of the powers of the Under a contested case by any entity other than a standard petition fee. Matters that Secretary of Commerce for Intellectual three Board members cannot be a final would be excluded from the scope of Property and Director of the United agency action. Affirming or reversing petitions in § 41.3(a)(2) would not be States Patent and Trademark Office disposes of an issue on appeal on the petitions and so would not require under § 32, not the Board. The rule merits; vacating or remanding does not. payment of a fee. Petitions seeking would delegate to the Chief Entry of a new ground of rejection, by supervisory review of a discretionary Administrative Patent Judge the definition, does not dispose of an issue matter would also not require payment authority to make final a decision to on the merits. A petition decision might of a petition fee. Compare Rule 181(a)(3) disqualify counsel in a proceeding not be final if, for instance, the decision with Rules 182 and 183. before the Board for the purposes of is rendered without prejudice to take Proposed § 41.3(d) would reflect the judicial review. This delegation would some further action. An issue in a non- current practice of not staying any not derogate from the Director the final decision may usually be preserved action for a petition for supervisory prerogative to make such decisions, nor for review in a final decision. See, e.g., review in Rule 181(f). Note that the would it prevent the Chief proposed § 41.125(c)(5) under which a Court of Appeals for the Federal Circuit Administrative Patent Judge from party may request reconsideration by a has held that a request for rehearing further delegating authority to an panel. may toll the time for seeking judicial administrative patent judge, provided The definition of ‘‘hearing’’ would review. In re Graves, 69 F.3d 1147, the delegation was stated in writing. reflect the holding of In re Bose Corp., 1151, 36 USPQ2d 1697, 1700 (Fed. Cir. Proposed § 41.6(a) would relocate into 772 F.2d 866, 869, 227 USPQ 1, 4 (Fed. 1995). part 41 the portions of Rule 14(e) that Cir. 1985) that a party is entitled to Proposed § 41.3(e) would set times for apply to the Board. Proposed § 41.6(a)(1) judicial consideration of properly raised filing petitions. As with Rule 181(f), would continue to state that publicly issues, but is not entitled to an oral failure to file a timely petition would be available materials are publicly argument or consideration of sufficient basis for dismissing or available. Such materials may be improperly raised issues. denying a motion. published without notification to or The definitions of ‘‘panel’’ and ‘‘panel Proposed § 41.4(a) and (b) would permission from the applicant. proceeding’’ would reflect the minimum follow the requirements of Rules 136(b) Proposed § 41.6(a)(2) would set forth the quorum established in 35 U.S.C. 6(b), and 645 in providing rules for basis for making a determination under which reserves action on patentability extensions of time and for acceptance of 35 U.S.C. 122(a) that the publication of and priority to panels. 35 U.S.C. 6(b). untimely papers. Congress has a Board action constitutes a special

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circumstance. Parties should note that reflect a lack of genuine adversity application for reissue of a patent, or an disagreement with a holding is not an between the parties. Common ex parte reexamination proceeding to appropriate basis for challenging a ownership would ordinarily result in the Board. special circumstance determination. prompt termination of any proceeding The preamble to proposed § 41.30 Moreover, a party not entitled to between the commonly owned parties. would be based on a similar provision confidentiality under section 122(a) Barton, 162 F.3d at 1143, 49 USPQ2d at in the preamble of Rule 601. The term would not have the standing to 1131 (recognizing the practice while ‘‘proceeding’’ would set forth a generic challenge publication under this noting an exception). See proposed term for a national application for a paragraph. For instance, an involved § 41.206. patent, an application for reissue of a patentee could not assert an opposing The notice of judicial proceedings patent, and an ex parte reexamination applicant’s confidences as the basis for required in proposed § 41.8(b) would be proceeding. The term ‘‘applicant’’ blocking a publication. important because a judicial decision in would set forth a generic term for either Proposed § 41.6(b) would generalize another case might be binding on the the applicant in a national application to all Board proceedings the practice Board or a party. The Board might also for a patent or the applicant in an under Rule 11(e) of making the record use such information to determine the application for reissue of a patent. The of most interference proceedings best pacing for a Board proceeding. term ‘‘owner’’ would set forth a publicly available eventually, although Notice of other administrative shorthand reference to the owner of the that availability might not occur until an proceedings might also be relevant. In patent undergoing ex parte involved patent application becomes the case of other Office proceedings, reexamination under Rule 510. available. It also recognizes pre-grant particularly other Board proceedings, Proposed § 41.31 would generally publication as a basis for making a file notice might allow the Board to more incorporate the requirements of current publicly available. efficiently allocate its limited resources Rule 191(a)–(d). Paragraph (a) would be Proposed § 41.7 would adopt the and to avoid inconsistent outcomes. In subdivided into three parts to improve current practice of Rule 618 regarding re Berg, 140 F.3d 1428, 1435 nn.7&8, 46 readability. Paragraph (d) would be duplicate papers and the expunging of USPQ2d 1226, 1231 nn.7&8 (Fed. Cir. amended to refer only to the time papers, but would generalize it to all 1998) (calling failure to identify a periods referred to in paragraphs (a)(1)– Board proceedings. In recent decades, related application relevant to a double- (a)(3) of this section, while the current the typical size of files has increased patenting analysis ‘‘misleading’’). The extension of time requirements for Rules significantly. The increase imposes ‘‘affect or be affected by’’ standard in 192, 193, 194, 196 and 197, now burdens on the Office in managing the proposed § 41.8(b) is derived from provided in Rule 191(e), would be records and on users of the record. This Federal Circuit Rule 47.5(b). The relocated to proposed §§ 41.37, 41.41, rule would provide a tool for managing proposed rule would also follow Rule 41.47, 41.50 and 41.52. the size and complexity of the record 660(d) in requiring notice to the Board Proposed § 41.33(a) and (b) would and for preventing abuses that can occur of judicial review of the proceeding replace the requirements of current Rule in filing. itself. In the absence of such timely 116 with a prohibition of amendments Proposed § 41.8(a) would reflect the notice, the Board would usually submitted after the date the proceeding current practice under Rules 192(c)(1) distribute records associated in the has been appealed pursuant to proposed and 602 regarding disclosure of the real proceeding to other parts of the Office § 41.31(a)(1)–(a)(3), except amendments parties-in-interest. Federal officials must for further action. Failure to provide a canceling claims or rewriting dependent meet high ethical standards. A principal timely mandatory notice under claims into independent form and as ethical concern is the avoidance of proposed § 41.8 might result in permitted by §§ 41.39(b)(1), conflicts of interest for the officials, sanctions including disqualification of 41.50(a)(2)(i) and 41.50(b)(1). A including even the appearance of a counsel and adverse judgment. dependent claim is rewritten into conflict. See e.g., Stanek v. Dep’t of Proposed § 41.9 would follow Rule independent form by including all of Transp., 805 F.2d 1572, 1577 (Fed. Cir. 643 regarding action by an assignee to the limitations of the base claim and any 1986) (affirming dismissal of employee the exclusion of an inventor, but would intervening claims. Thus, no limitation for appearance of a conflict of interest). generalize it to all Board proceedings. of a dependent claim can be excluded In the case of the Board, a conflict Orders permitting an assignee of a in rewriting that claim into independent would typically arise when an official partial interest to act to the exclusion of form. Proposed § 41.33(c) would replace has an investment in a company with a an inventor or co-assignee would rarely the requirements of Rule 195 with a direct interest in a Board proceeding. be granted outside of contested cases. prohibition on the admission of Such conflicts could only be avoided if Even in contested cases, such orders affidavits and other evidence submitted the parties promptly provide the would typically issue only when the after the case has been appealed information necessary to identify partial assignee was in a proceeding pursuant to proposed § 41.31(a)(1)– potential conflicts. The identity of a real against its co-assignee. Ex parte (a)(3), except as permitted by proposed party-in-interest might also affect the Hinkson, 1904 Comm’r. Dec. 342. §§ 41.39(b)(1), 41.50(a)(2)(i) and credibility of evidence presented in a Proposed § 41.20 would consolidate 41.50(b)(1). This would replace the proceeding. For instance, testimony the rules on fees associated with Board current practice of permitting such from a source related to a real party-in- practice. Rules 22, 23, and 25–28, which evidence based on a showing of good interest may be seen as misleading or govern fee practice before the Office and sufficient reasons why such self-serving compared to evidence from generally, would continue to apply in evidence was not earlier presented. The a completely independent source (e.g., Board proceedings. Proposed paragraph Office believes that prosecution of an Refac Int’l, Ltd. v. Lotus Dev. Corp., 81 (a) would set forth the petition fee, application should occur before the F.3d 1576, 1581–82, 38 USPQ2d 1665, while proposed paragraph (b) would set examiner prior to an appeal being filed, 1669 (Fed. Cir. 1996) (failure to identify forth appeals-related fees. not after the case has been appealed declarants as former co-workers was Proposed subpart B would set forth pursuant to proposed § 41.31(a)(1)– inequitable conduct)). Finally, in a rules for the ex parte appeal under 35 (a)(3). contested case, the presence of a U.S.C. 134 of a rejection in either a Proposed § 41.35 would generally common real party-in-interest might national application for a patent, an incorporate the requirements of current

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Rule 191(e). In addition, the section is (7) In paragraph (c)(1)(v), require a (10) In paragraph (c)(1)(vii), require proposed to be amended to make clear concise explanation of the invention that any arguments or authorities not that jurisdiction over an application defined in each of the independent included in the brief or a reply brief may be relinquished by the Board and claims involved in the appeal, which filed pursuant to proposed § 41.41 will the application returned to the explanation shall refer to the be refused consideration by the Board, examining operation to permit specification by page and line number, unless good cause is shown processing to be completed by the and to the drawings, if any, by reference (requirement currently found in Rule examining operation before the Board characters. For each claim involved in 192(a)), and to require a separate takes up the appeal for decision. This is the appeal, it is proposed that every heading for each ground of rejection in consistent with the present practice of means plus function and step plus place of the previous Grouping of claims returning an appealed application to the function as permitted by 35 U.S.C. 112, section of the brief. For each ground of examining operation where some matter sixth paragraph, be identified and that rejection applying to two or more requiring attention has been identified the structure, material, or acts described claims, the claims may be argued prior to assignment of the appeal in the specification as corresponding to separately or as a group. It is proposed number and docketing of the appeal. In each claimed function be set forth with that, when an appellant argues as a addition, it is proposed to permit the reference to the specification by page group multiple claims subject to the Board to take other appropriate action to and line number, and to the drawing, if same ground of rejection, the Board may complete the proceeding. For example, any, by reference characters. The select a single claim from that group of if the proceeding was not complete current requirement of Rule 192(c)(5) to claims and treat its disposition of a because one copy of the brief was set forth a concise explanation of the ground of rejection of that claim as missing, the Board may contact the invention defined in the claims applying to the disposition of that appellant to obtain the missing copy. involved in the appeal by reference to ground of rejection of all claims in the Proposed § 41.37 would generally the specification by page and line group of claims. Notwithstanding any incorporate the requirements of Rule number, and to the drawings, if any, by other provision of this paragraph, it is 192. In addition, it is proposed to: reference characters is not being proposed to make explicit by rule that (1) Change the title of the section from followed in a great number of briefs an appellant’s failure to argue separately ‘‘Appellant’s brief’’ to ‘‘Appeal brief’’. before the Board. It is expected that the claims that the appellant has grouped (2) In paragraph (a), require one copy proposed requirements will be enforced together constitutes a waiver of any of the brief rather than three copies by the examiner. Accordingly, any brief argument that the Board must consider consistent with the Office’s move to an filed by an appellant who is represented the patentability of any grouped claim electronic file wrapper. by a registered practitioner that fails to separately. See In re McDaniel, 293 F.3d (3) In paragraph (a), require the brief set forth a summary which references 1379, 1384, 63 USPQ2d 1462, 1465–66 to be filed within two months from the the specification by page and line (Fed. Cir. 2002) (interpreting Rule date of the notice of appeal under number, and to the drawing, if any, by 192(c)(7) to require separate treatment of proposed § 41.31 even if the time reference characters or which fails to separately rejected claims). It is further allowed for reply to the action from identify every means plus function and proposed that any claim argued which the appeal was taken is later, step plus function as permitted by 35 separately should be placed under a which overall simplifies docketing of U.S.C. 112, sixth paragraph, would be in subheading identifying the claim by the due date. non-compliance with this section and number and that claims argued as a (4) In paragraph (c)(1)(i), require a would be handled as set forth in group should be placed under a statement in the brief identifying by proposed paragraph (d) of this section. subheading identifying the claims by name the real party in interest even if (8) In paragraph (c)(1)(vi), require a number. For example, if Claims 1 to 5 the party named in the caption of the concise statement listing each ground of stand rejected under 35 U.S.C. 102(b) as brief is the real party in interest. This rejection presented for review rather being anticipated by U.S. Patent No. Y amendment would provide appellant than issues for review. An example of a and appellant is only going to argue the the necessary mechanism for complying concise statement is ‘‘Claims 1 to 10 limitations of independent claim 1, and with proposed § 41.8(a) in an appeal to stand rejected under 35 U.S.C. 102(b) as thereby group dependent claims 2 to 5 the Board. being anticipated by U.S. Patent No. X.’’ to stand or fall with independent claim (5) In paragraph (c)(1)(ii), require (9) Delete the current grouping of 1, then one possible heading as required identification of all other prior and claims requirement set forth in Rule by this subsection could be Rejection pending appeals, interferences or 192(c)(7). The general purpose served by under 35 U.S.C. 102(b) over U.S. Patent judicial proceedings known to Rule 192(c)(7) is addressed in proposed No. Y and the optional subheading appellant, the appellant’s legal § 41.37(c)(1)(viii). The existing grouping would be Claims 1 to 5. As another representative, or assignee which may of claims requirement has led to many example, where claims 1 to 3 stand be related to, directly affect or be problems such as (i) Grouping of claims rejected under 35 U.S.C. 102(b) as being directly affected by or have a bearing on across multiple rejections (e.g., claims anticipated by U.S. Patent No. Z and the the Board’s decision in the pending 1–9 rejected under 35 U.S.C. 102 over A appellant wishes to argue separately the appeal, as well as to set forth a while claims 10–15 are rejected under patentability of each claim, a possible mechanism for complying with 35 U.S.C. 103 over A and the appellant heading as required by this subsection proposed § 41.8(b) in an appeal to the states that claims 1–15 are grouped could be Rejection under 35 U.S.C. Board. together); (ii) Claims being grouped 102(b) over U.S. Patent No. Z, and the (6) In paragraph (c)(1)(iii), require together but argued separately (e.g., optional subheadings would be Claim 1, both a statement of the status of all the claims 1–9 rejected under § 102 over A, Claim 2 and Claim 3. Under each claims in the proceeding (e.g., rejected, the appellant groups claims 1–9 together subheading the appellant would present allowed or confirmed, withdrawn, but then argues the patentability of the argument for patentability of that objected to, canceled) and an claims 1 and 5 separately); and (iii) claim. identification of those claims that are examiners disagreeing with the (11) In paragraph (c)(1)(vii), state that being appealed. appellant’s grouping of claims. ‘‘Merely pointing out differences in

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what the claims cover is not an examiner’s answer without having to Example 1: A new ground of rejection argument as to why the claims are reopen prosecution. By permitting based upon prior art may be allowed if the separately patentable’’, a statement that examiners to include a new ground of examiner obviously failed to include a in slightly different form appears in dependent claim in a rejection. For example, rejection in an examiner’s answer, in the final rejection, claims 1, 13 and 27 Rule 192(c)(7). newly presented arguments can now be were rejected under 35 U.S.C. 102(b) as being (12) In paragraph (c)(1)(vii), eliminate addressed by a new ground of rejection anticipated by U.S. Patent No. Y. Claim 27 subparagraphs (i) through (v) of Rule in the examiner’s answer when depended from claim 22 which depended 192(c)(8) which relate to the manner in appropriate. Furthermore, if new from claim 13 which depended from which arguments are to be made. arguments can now be addressed by the independent claim 1. No rejection of claim Although they provide useful advice as examiner by incorporating a new 22 was set forth in the final rejection; however, the summary sheet of the final to what an effective argument ought to ground of rejection in the examiner’s include, these provisions have often rejection indicated that claims 1, 13 and 27 answer, the new arguments may be able were rejected. In this situation, the examiner been ignored by appellants and, for the to be addressed without reopening would reject claim 22 under 35 U.S.C. 102(b) most part, have not been enforced as set prosecution and thereby decreasing as being anticipated by U.S. Patent No. Y as forth in paragraph (d) of that rule. pendency. Proposed paragraph (b) of a new ground of rejection in the answer. (13) Add paragraph (c)(1)(ix) to this rule would specify the options Example 2: A new ground of rejection require appellant to include an evidence available to an appellant who has would not be allowed to reject a previously appendix of any evidence relied upon allowed or objected to claim even if the new received a new ground of rejection, by appellant in the appeal with a ground of rejection would rely upon prior art including the option to request and have statement setting forth where that already of record. In this instance, rather than prosecution reopened before the evidence was entered in the record by making a new ground of rejection in an examiner. the examiner so that the Board will be examiner’s answer, if the basis for the new The proposed change to permit new ground of rejection was approved by a able to easily reference such evidence supervisory patent examiner as currently set during consideration of the appeal. grounds of rejection in examiner’s forth in MPEP 1208.02, the examiner would (14) Add paragraph (c)(1)(x) to require answers would not be open-ended but is reopen prosecution. appellant to include a related envisioned to be rare, rather than a Example 3: The proposed amendment is proceedings appendix containing copies routine occurrence. The Office plans to intended to continue to permit the examiner of decisions rendered by a court or the issue instructions that will be to include new grounds of rejection where Board in any proceeding identified incorporated into the MPEP requiring appellant was advised that an amendment pursuant to paragraph (c)(1)(ii) of this that any new ground of rejection made under Rule 116 would be entered for appeal section so that the Board can take into by an examiner in an answer must be purposes. The proposed rule would eliminate Rule 193(a)(2), which states that the filing of consideration such decisions. approved by a management official such an amendment under Rule 116 represents (15) Add paragraph (c)(2) to exclude as a Technology Center Director and applicant’s consent when so advised that any any new or non-admitted amendment, that any new ground of rejection made appeal on that claim will proceed subject to affidavit or other evidence from being in an answer be prominently identified any rejections set forth in an action from included in the brief. as such. It is the further intent of the which appeal was taken. Proposed (16) Add paragraph (e) to provide Office to provide guidance to examiners § 41.39(a)(2) broadens the situations in which notice that the periods set forth in this that will also be incorporated into the an examiner can make a new ground of section are extendable under the rejection to include circumstances currently MPEP as to what circumstances, e.g., covered by Rule 193(a)(2). provisions of Rule 136 for patent responding to a new argument or new applications and Rule 550(c) for ex parte evidence submitted prior to appeal, Paragraph (b) of § 41.39 would set reexamination proceedings. This would be appropriate for entry of a new forth the responses an appellant may provision currently appears in Rule ground of rejection in an examiner’s make when an examiner’s answer sets 191(d), but would be more useful if answer rather than the reopening of forth a new ground of rejection. provided in this section. prosecution. Where, for example, a new Appellant would be required within two Proposed § 41.39 would generally argument(s) or new evidence cannot be months from the date of the examiner’s incorporate requirements found in Rule addressed by the examiner based on the answer containing a new ground of 193(a). information then of record, the rejection either: Proposed § 41.39(a)(2) would permit a (1) To request that prosecution be examiner may need to reopen new ground of rejection to be included reopened by filing a reply under Rule prosecution rather than apply a new in an examiner’s answer eliminating the 111 with or without amendment or ground of rejection in an examiner’s current prohibition of new grounds of submission of affidavits (Rules 130, 131 answer to address the new argument(s) rejection in examiner’s answers. Many or 132) or other evidence, which would or new evidence. Paragraph (b) of appellants are making new arguments result in prosecution being reopened § 41.39 would provide the appellant two for the first time in their appeal brief before the examiner, or (apparently stimulated by a former options when a new ground of rejection (2) To file a reply brief under § 41.41, change to the appeal process that in an examiner’s answer is made, which would act as a request that the inserted the prohibition on new grounds including the option of having appeal be maintained. Such a reply brief of rejection in the examiner’s answer). prosecution reopened. could not be accompanied by any Because the current appeal rules only The following examples are set forth amendment, affidavit (Rules 130, 131, or allow the examiner to make a new to provide guidance as to when the 132) or other evidence. If such a reply ground by reopening prosecution, some Office may or may not consider a factual brief were accompanied by any examiners have allowed cases to go scenario suitable for introducing new amendment or evidence, it would be forward to the Board without addressing grounds of rejection in the examiner’s treated as a request that prosecution be the new arguments. Thus, the proposed answer. These examples are not reopened before the examiner under revision would improve the quality of considered an exhaustive list of paragraph (b)(1) of this section. Any examiner’s answers and reduce situations that meet or do not meet the reply brief would have to specify the pendency by providing for the inclusion criteria for making a new ground of error in each new ground of rejection as of the new ground of rejection in an rejection in an examiner’s answer: set forth in § 41.37(c)(1)(viii) and should

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generally follow the other requirements requirements pertaining to appellants (1) Paragraph (b) is proposed to be of a brief set forth in § 41.37(c). when prosecution is reopened under amended to require the separate paper If in response to the examiner’s Rule 193(b)(2) would be removed. requesting the oral hearing to be answer containing a new ground of Section 41.43(a)(1) as proposed would captioned ‘‘REQUEST FOR ORAL rejection, appellant decides to reopen permit the examiner to furnish a HEARING’’ and that such a request can prosecution of the application before the supplemental examiner’s answer to be filed within two months from the examiner, the Office will treat the respond to any new issue raised in a date of the examiner’s answer or decision to reopen prosecution also as a reply brief. It should be noted that an supplemental examiner’s answer. request to withdraw the appeal. If indication of a change in status of (2) Paragraph (d) is proposed to be appellant fails to exercise one of the two claims (e.g., that certain rejections have added to set forth the procedure for options within two months from the been withdrawn as a result of a reply handling the request for oral hearing date of the examiner’s answer, the brief) is not a supplemental examiner’s when an appellant has complied with appeal will be dismissed (i.e., answer and therefore would not give all the requirements of paragraph (b) of terminated) sua sponte. appellant the right to file a reply brief. this section. Since notice to the primary Paragraph (c) of § 41.39 is proposed to Such an indication of a change in status examiner is a matter internal to the be added to provide notice that the may be made on form PTOL–90. The Office, it is proposed that the period set forth in proposed paragraph Office will develop examples to help the requirement for notice to the primary (b) of this section is extendable under examiner determine what would or examiner be removed from the rule. It the provisions of Rule 136(b) for patent would not be considered a new issue is anticipated that the primary examiner applications and Rule 550(c) for ex parte warranting a supplemental examiner’s will be sent notice of the hearing time reexamination proceedings. This answer. An appellant who disagrees and date by e-mail. provision currently appears in Rule with an examiner’s decision that a (3) Paragraph (e) is proposed to be 191(d), but it would be more useful if supplemental examiner’s answer is added to specifically provide that at the provided in this section. permitted under this proposed rule may oral hearing (i) appellant may only rely Proposed § 41.41 would generally petition for review of the decision under on evidence that has been previously incorporate requirements found in Rule Rule 181. Possible examples of new considered by the primary examiner and 193(b). In addition: issues raised in a reply brief include the present argument that has been relied (1) Paragraph (a) would make explicit following: upon in the brief or reply brief; (ii) the that a reply brief could not include any primary examiner may only rely on new or non-admitted amendment, Example 1: The rejection is under 35 argument and evidence raised in the affidavit or other evidence. U.S.C. 103 over A in view of B. The brief answer or a supplemental answer; and (2) Paragraph (b) would be added to argues that element 4 of reference B cannot be combined with reference A as it would (iii) that appellant opens and concludes make clear that a reply brief not in destroy the function performed by reference the argument (i.e., the order of the compliance with paragraph (a) would A. The reply brief argues that B is argument at the hearing is: Appellant not be considered. The examiner would nonanalogous art and therefore the two opens, then the primary examiner notify the appellant in this event. references cannot be combined. argues, then the appellant concludes (3) Paragraph (c) would be added to Example 2: Same rejection as in Example presuming that appellant has reserved provide notice that the period set forth 1. The brief argues only that the pump means some time for a concluding argument). in this section would be extendable of claim 1 is not taught in the applied prior (4) The substance of proposed under the provisions of Rule 136(b) for art. The reply brief argues that the particular paragraph (f) is found in Rule 194. patent applications and Rule 550(c) for retaining means of claim 1 is not taught in Exemplary situations where the Board the applied prior art. ex parte reexamination proceedings. may decide no hearing is necessary This provision currently appears in Rule Paragraph (a)(1) of proposed § 41.43 include those where the Board has 191(d), but would be more useful if would also set forth the ability of the become convinced, prior to hearing, that provided in this section. examiner to withdraw the final rejection an application must be remanded for Proposed § 41.43 is proposed to be and reopen prosecution as an alternative further consideration prior to evaluating added to permit the examiner to furnish to the use of a supplemental examiner’s the merits of the appeal or that the a supplemental examiner’s answer to answer. The primary examiner’s examiner’s position cannot be sustained respond to any new issue raised in the decision to withdraw the final rejection in any event. reply brief. This would dispense with and reopen prosecution to enter a new (5) Paragraph (g) is proposed to be the need for the Board to remand the ground of rejection will require added to provide notice that the periods proceeding to the examiner to treat any approval from the supervisory patent set forth in this section are extendable new issue raised in the reply brief. It is examiner as currently set forth in MPEP under the provisions of Rule 136(b) for proposed that a supplemental 1208.02. patent applications and Rule 550(c) for examiner’s answer may not include a Paragraph (b) of proposed § 41.43 ex parte reexamination proceedings. new ground of rejection. If a would permit appellant to file a This provision currently appears in Rule supplemental examiner’s answer is supplemental reply brief in response to 191(d), but would be more useful if furnished by the examiner, it is a supplemental examiner’s answer provided in this section. proposed to permit the appellant to file within two months from the date of the Proposed § 41.50 would generally another reply brief under proposed supplemental examiner’s answer. That incorporate the requirements of Rule § 41.41 within two months from the date two-month time period may be 196. In addition: of the supplemental examiner’s answer. extended under the provisions of Rule (1) Paragraph (a)(1) would explicitly The current prohibition against a 136(b) for patent applications and Rule provide that the Board, in its principal supplemental examiner’s answer in 550(c) for ex parte reexamination role under 35 U.S.C. 6(b) of reviewing other than a remand situation would be proceedings as set forth in proposed adverse decisions of examiners, may in removed to permit use of supplemental § 41.43(c). its decision affirm or reverse the examiner’s answers where the examiner Proposed § 41.47 would generally decision of the examiner in whole or in is responding only to new issues raised incorporate the requirements of Rule part on the grounds and on the claims in the reply brief. As a consequence, the 194. In addition: specified by the examiner. The Board

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may also remand an application to the explicit statement how a claim on certificate pursuant to Rule 570. A examiner. appeal could be amended to overcome dismissal of an appeal results in a (2) Paragraph (a)(2) would be added to a specific rejection and that when the termination of the appeal proceeding require appellant to respond to any opinion of the Board included such a before the Board. After dismissal of an supplemental examiner’s answer issued statement, appellant would have the appeal, an application is returned to the in response to a remand from the Board right to amend in conformity therewith. examiner to determine the proper to the examiner for further Such an amendment in conformity with course of action (e.g., possible consideration of a rejection to avoid sua such statement would overcome the allowance and issuance if there are sponte dismissal of the appeal as to all specific rejection, but an examiner allowed claims; possible abandonment claims under appeal. It is proposed that could still reject a claim so-amended, if there are no allowed claims) as set appellant must exercise one of the provided that the rejection constituted a forth in sections 1214 to 1215.04 of the following two options to avoid such sua new ground of rejection. MPEP. After dismissal of an appeal, an sponte dismissal of the appeal as to all (5) Paragraph (d) would provide that ex parte reexamination proceeding is claims under appeal: (i) Request that appellant’s failure to timely respond to returned to the examiner to issue the prosecution be reopened before the an order of the Board of Patent Appeals appropriate certificate pursuant to Rule examiner by filing a reply under Rule and Interferences could result in the 570. 111 with or without amendment or dismissal of the appeal. Proposed subpart C provides rules for submission of affidavits (Rules 130, 131 (6) Paragraph (f) would be added to the inter partes appeal under 35 U.S.C. or 132) or other evidence, and (ii) provide notice that the periods set forth 315 of a rejection in an inter partes request that the appeal be maintained by in this section are extendable under the reexamination proceeding to the Board. filing a reply brief as provided in provisions of Rule 136(b) for patent This proposed subpart does not apply to proposed § 41.41. If such a reply brief is applications and Rule 550(c) for ex parte any other Board proceeding and is accompanied by any amendment, reexamination proceedings. This strictly limited to appeals in inter partes affidavit or other evidence, it shall be provision currently appears in Rule reexamination proceedings filed under treated as a request that prosecution be 191(d), but it would appear to be more 35 U.S.C. 311. reopened before the examiner under useful if provided in this section. The preamble to proposed § 41.60 is proposed § 41.50(a)(2)(i). Any request Proposed § 41.52 would generally based on a similar provision in the that prosecution be reopened under this incorporate the requirements of Rule preamble of Rule 601. The term paragraph would be treated as a request 197(b). In addition, paragraph (a) is ‘‘proceeding’’ provides a shorthand to withdraw the appeal. proposed to be amended to incorporate reference to an inter partes A first example of a remand from the the matter being deleted from Rule reexamination proceeding. The term Board to the examiner for further 196(b)(2) relating to the request that the ‘‘owner’’ provides a shorthand reference consideration of a rejection is a remand application or patent under ex parte to the owner of the patent undergoing for the examiner to provide additional reexamination be reheard. In addition, inter partes reexamination under Rule explanation as to how a reference the rule as proposed would permit the 915. The term ‘‘requester’’ provides a anticipates a claim (i.e., asking the Board to simply deny a request for generic term to describe each party examiner to set forth a prima facie case rehearing in appropriate cases rather other than the owner who requested that of anticipation). A second example of a than rendering a new opinion and the patent undergo inter partes remand from the Board to the examiner decision on the request for rehearing. reexamination under Rule 915. The term for further consideration of a rejection is Paragraph (b) is proposed to be added to ‘‘appellant’’ provides a generic term for a remand for the examiner to ascertain provide notice that the period set forth any party, whether the owner or a (i.e., set forth) the differences between in this section is extendable under the requester, filing a notice of appeal or the claimed subject matter of the provisions of Rule 136(b) for patent cross appeal under proposed § 41.61. If primary reference in an obviousness applications and Rule 550(c) for ex parte more than one party appeals or cross rejection and then to state why the reexamination proceedings. This appeals, each appealing or cross claimed subject matter as a whole provision currently appears in Rule appealing party is an appellant with would have been obvious at the time the 191(d), but would be more useful if respect to the claims to which his or her invention was made to a person of provided in this section. appeal or cross appeal is directed. The ordinary skill in the art (i.e., asking the Proposed § 41.54 would generally term ‘‘respondent’’ provides a generic examiner to set forth a prima facie case incorporate the requirements of Rule term for any requester responding under of obviousness). 197(a). proposed § 41.68 to the appellant’s brief A first example of a remand from the Proposed § 41.56 provides that an of the owner, or the owner responding Board to the examiner that is not for appeal under this proposed subpart is under proposed § 41.68 to the further consideration of a rejection is a terminated by the dismissal of the appellant’s brief of any requester. No remand for the examiner to consider an appeal or when, after a final Board requester may be a respondent to the Information Disclosure Statement. A action a notice of appeal under 35 appellant brief of any other requester. second example of a remand from the U.S.C. 141 is filed, a civil action under The terms ‘‘appellant’’ and Board to the examiner that is not for 35 U.S.C. 146 is commenced, or the time ‘‘respondent’’ are currently defined in further consideration of a rejection is a for seeking judicial review (Rule 304) Rule 962. The proposed definition of the remand for the examiner to consider a has expired. Termination of an appeal term ‘‘filing’’ provides a generic reply brief. under this proposed subpart is the requirement that any document filed in (3) Paragraph (b)(2) would eliminate cessation of the appeal proceeding the proceeding by any party must the provision relating to requests that before the Board and is distinct and include a certificate indicating service the application or patent under ex parte separate from the termination of of the document to all other parties to reexamination be reheard, since that proceedings on an application the proceeding as required by Rule 903. provision would be included in (proposed Rule 197(b)) or the Proposed § 41.61 would generally proposed § 41.52(a). termination of proceedings on an ex incorporate the requirements of current (4) Paragraph (c) would provide that parte reexamination proceeding which Rule 959 and the changes thereto the opinion of the Board may include an is concluded by the issuance of a proposed in ‘‘Changes To Implement the

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2002 Inter Partes Reexamination and representative, or assignee which may claims 1 and 5 separately); and (iii) Other Technical Amendments to the be related to, directly affect or be examiners disagreeing with the Patent Statute’’, 68 FR 22343 (28 April directly affected by or have a bearing on appellant’s grouping of claims. 2003) (RIN 0651–AB57). the Board’s decision in the pending (8) In paragraph (c)(1)(vii), to set forth Proposed § 41.63(a) and (b) would appeal, as well as to provide a that any arguments or authorities not replace the requirements of current Rule mechanism of complying with proposed included in a brief permitted in this 116 with a prohibition of amendments § 41.8(b) in an appeal to the Board. section or filed pursuant to proposed submitted after the date the proceeding (4) In paragraph (c)(1)(iii), to require §§ 41.68 and 41.71 will be refused has been appealed pursuant to proposed both a statement of the status of all the consideration by the Board, unless good § 41.61, except for amendments claims in the proceeding (e.g., rejected, cause is shown, and to require a permitted by proposed § 41.77(b)(1) and allowed or confirmed, withdrawn, separate heading for each ground of amendments canceling claims where objected to, canceled) and an rejection in place of the previous such cancellation does not affect the identification of those claims that are grouping of claims section of the brief. scope of any other pending claim in the being appealed. For each ground of rejection applying to proceeding. Proposed § 41.63(c) would (5) In paragraph (c)(1)(v), to require a two or more claims, the claims may be replace the requirements of Rule 975 concise explanation of the subject argued separately or as a group. When with a prohibition on the admission of matter defined in each of the an appellant argues as a group multiple affidavits and other evidence submitted independent claims involved in the claims subject to the same ground of after the case has been appealed appeal and which concise explanation rejection, the Board may select a single pursuant to proposed § 41.61 except as shall refer to the specification by page claim from that group of claims and permitted by proposed § 41.77(b)(1). and line number, and to the drawings, treat its disposition of a ground of This would replace the current practice if any, by reference characters. For each rejection of that claim as applying to the of permitting such evidence based on a claim involved in the appeal, it is disposition of that ground of rejection of showing of good and sufficient reasons proposed that every means plus all claims in the group of claims. why such evidence was not earlier function and step plus function as Notwithstanding any other provision of presented. The Office believes that permitted by 35 U.S.C. 112, sixth this paragraph, it is proposed to make prosecution of an application should paragraph, be identified and that the explicit by rule that an appellant’s structure, material, or acts described in occur before the examiner prior to an failure to argue separately claims that the specification as corresponding to appeal being filed, not after the case has appellant has grouped together would each claimed function be set forth with been appealed pursuant to proposed constitute a waiver of any argument that reference to the specification by page § 41.61. the Board must consider the and line number, and to the drawing, if Proposed § 41.64 would generally patentability of any grouped claim any, by reference characters. Any brief incorporate the requirements of Rule separately. See In re McDaniel, 293 F.3d filed by an appellant who is represented 961, but would make clear that 1379, 1384, 63 USPQ2d 1462, 1465–66 by a registered practitioner that fails to jurisdiction over a proceeding may be (Fed. Cir. 2002) (interpreting analogous provide a summary of the claimed relinquished and the proceeding Rule 192(c)(7) to require separate returned to the examining operation to subject matter which references the specification by page and line number, treatment of separately rejected claims). permit processing to be completed It is further proposed that any claim before the Board takes up the appeal for and to the drawing, if any, by reference characters or which fails to identify argued separately should be placed decision. under a subheading identifying the Proposed § 41.66 would generally every means plus function and step plus claim by number and that claims argued incorporate the requirements of Rule function as permitted by 35 U.S.C. 112, as a group should be placed under a 963. sixth paragraph, would be in non- Proposed § 41.67 would generally compliance with this section and would subheading identifying the claims by incorporate the requirements of Rule be handled as provided in proposed number. 965 and the changes thereto proposed in paragraph (d) of this section. (9) In paragraph (c)(1)(vii), to state ‘‘Changes To Implement the 2002 Inter (6) In paragraph (c)(1)(vi), to require a that ‘‘Merely pointing out differences in Partes Reexamination and Other concise statement listing each issue what the claims cover is not an Technical Amendments to the Patent presented for review. An example of a argument as to why the claims are Statute’’, 68 FR 22343 (28 April 2003) concise statement is claims 1 to 10 stand separately patentable.’’ This statement (RIN 0651–AB57). In addition, it is rejected under 35 U.S.C. 102(b) as being in slightly different form is in Rule proposed: anticipated by U.S. Patent No. X. 965(c)(7). (1) In paragraph (a), to require one (7) To delete the current grouping of (10) In paragraph (c)(1)(vii), to copy of the brief rather than three copies claims requirement set forth in Rule eliminate subparagraphs (i) through (v) consistent with the Office’s move to an 965(c)(7). The general purpose served by of Rule 965(c)(8), which relate to the electronic file wrapper. Rule 965(c)(7) is addressed in proposed manner in which arguments are to be (2) In paragraph (c)(1)(i), to require a § 41.67(c)(1)(viii). The existing grouping made. Although providing useful advice statement in the brief identifying by of claims requirement has led to many as to what an effective argument ought name the real party in interest even if problems such as (i) Grouping of claims to include, these provisions have often the party named in the caption of the across multiple rejections (e.g., claims been ignored by appellants and, for the brief is the real party in interest. This 1–9 rejected under 35 U.S.C. 102 over A most part, have not been enforced as provides appellant the necessary while claims 10–15 are rejected under provided in Rule 965(d). mechanism of complying with proposed 35 U.S.C. 103 over A and the appellant (11) To add paragraph (c)(1)(ix) to § 41.8(a) in an appeal to the Board; states that claims 1–15 are grouped require appellant to include an evidence (3) In paragraph (c)(1)(ii), to require together); (ii) claims being grouped appendix of any evidence relied upon clear identification of all other prior and together but argued separately (e.g., by appellant in the appeal with a pending appeals, interferences or claims 1–9 rejected under § 102 over A, statement setting forth where that judicial proceedings known to the appellant groups claims 1–9 together evidence was entered in the record by appellant, the appellant’s legal but then argues the patentability of the examiner so that the Board would be

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able to reference such evidence easily and (iii) that the Board will determine general than the existing rules for three during their consideration of the appeal. the order of the arguments presented at reasons. First, while three different (12) To add paragraph (c)(1)(x) to the oral hearing. statutory proceedings are currently require appellant to include a related (4) The substance of proposed conducted under ‘‘interference rules’’, proceedings appendix containing copies paragraph (f) is found in Rule 194. the rules are only tailored to patent of decisions rendered by a court or the Exemplary situations where the Board interferences. Second, the considerable Board in any proceeding identified might decide no hearing is necessary detail of the current rules has fostered pursuant to proposed § 41.67(c)(1)(ii) so include those where the Board has a tendency toward technical compliance that the Board can take into become convinced, prior to hearing, that with the rules rather than actually consideration such decisions. the proceeding must be remanded for proving a case (e.g., Hillman v. (13) Add paragraph (c)(2) to exclude further consideration prior to evaluating Shyamala, 55 USPQ2d 1220, 1221 any new or non-admitted amendment, the merits of the appeal. (BPAI 2000)). Third, experience with affidavit or other evidence from being Proposed § 41.77 would generally the current rules suggests that attempts included in an appellant’s brief. incorporate the requirements of Rule to codify the procedures for contested Proposed § 41.68 would generally 977 and the changes thereto proposed in cases too precisely frustrates the policy incorporate requirements found in Rule ‘‘Changes To Implement the 2002 Inter of administering interferences in a fast, 967 and the changes thereto proposed in Partes Reexamination and Other inexpensive, and fair manner. ‘‘Changes To Implement the 2002 Inter Technical Amendments to the Patent Consequently, the rules would be Partes Reexamination and Other Statute’’, 68 FR 22343 (April 28, 2003) simplified to give parties adequate Technical Amendments to the Patent (RIN 0651–AB57). guidance about the procedures while Statute’’, 68 FR 22343 (28 April 2003) Proposed § 41.79 would generally permitting the Board to design an (RIN 0651–AB57), and changes similar incorporate the requirements of current approach appropriate to each case. The to those proposed in § 41.67. In Rule 979 concerning rehearing before proposed rules would also better addition, it is proposed to add the Board. Paragraph (b) is proposed to describe the practice for most paragraph (b)(2) to exclude any new or be amended to generally incorporate the interferences declared since October non-admitted amendment, affidavit or requirements of current Rule 979(d). 1998. A more complete understanding other evidence from being included in Paragraph (c) is proposed to be amended of existing practice as it relates to the a respondent’s brief. to generally incorporate the current rules can be obtained from Proposed § 41.69 would generally requirements of current Rule 979(b). reading the Interference Trial Section’s incorporate requirements found in Rule Paragraph (d) is proposed to be Standing Order, which can be found at 969. amended to generally incorporate the http://www.uspto.gov/web/offices Proposed § 41.71 would generally requirements of current Rule 979(c). /dcom/bpai/standing 2003May.pdf. incorporate requirements found in Rule Paragraph (e) is proposed to be amended Proposed § 41.100 would define two 971 and the changes thereto proposed in to generally incorporate the terms. The term ‘‘business day’’ would ‘‘Changes To Implement the 2002 Inter requirements of current Rule 979(g). be defined in a manner consistent with Partes Reexamination and Other Proposed § 41.81 would generally 35 U.S.C. 21(b) to exclude Saturday, Technical Amendments to the Patent incorporate the requirements of current Sunday, and Federal holidays, when the Statute’’, 68 FR 22343 (April 28, 2003) Rule 979(e) and the changes thereto closure of the Board may affect the (RIN 0651–AB57). proposed in ‘‘Changes To Implement the Board’s, or a party’s, ability to perform Proposed § 41.73 would generally 2002 Inter Partes Reexamination and an action. incorporate the requirements of Rule Other Technical Amendments to the The term ‘‘involved’’ appears in 35 973. In addition: Patent Statute’’, 68 FR 22343 (April 28 U.S.C. 135(a) with respect to claims and (1) Paragraph (b) would require the 2003) (RIN 0651–AB57). is implicitly defined in Rule 601(f) (for separate paper requesting the oral Proposed § 41.83 would incorporate claims) and in Rule 601(l) (for hearing to be captioned ‘‘REQUEST FOR some of the requirements found in applications), but is not explicitly ORAL HEARING’’ and that such a current Rule 979(f) and would provide defined in the current rules. The request can be filed within two months that an appeal by a party under this proposed rule would expressly define from the date of the examiner’s answer. proposed subpart is terminated by the ‘‘involved’’ as designating any patent (2) Paragraph (d) would be added to dismissal of that party’s appeal, or application, patent, or claim that is the provide the procedure for handling the when, after a final Board action, a notice subject of the contested case. request for oral hearing in which a party of appeal under 35 U.S.C. 141 is filed Proposed § 41.101 would follow the has complied with all the requirements or the time for seeking judicial review practice in Rule 611(a) and (b) for of paragraph (b) of this section. Since (Rule 983) has expired. Termination of notifying parties of a contested case. As notice to the primary examiner is a an appeal by a party under this a courtesy, the Board would make matter internal to the Office, it is proposed subpart is the cessation of that reasonable efforts to provide notice to proposed that the requirement for notice appeal proceeding before the Board and all parties. Note that failure to maintain to the primary examiner be removed is distinct and separate from the a current correspondence address may from the rule. It is anticipated that the termination of proceedings on an inter result in adverse consequences. Cf. Ray primary examiner will be sent notice of partes reexamination proceeding which v. Lehman, 55 F.3d 606, 610, 34 the hearing time and date by e-mail. is concluded by the issuance of a USPQ2d 1786, 1788–89 (Fed. Cir. 1995) (3) Paragraph (e) would be added to certificate pursuant to Rule 997. (finding notice of maintenance fee specifically provide that at the oral Proposed subpart D would provide provided to obsolete, but not updated, hearing (i) parties may only rely on rules for contested cases. Contested address of record to have been evidence that has been previously cases are predominantly patent adequate). considered by the primary examiner and interferences under 35 U.S.C. 135(a), but Proposed § 41.102 would require present argument that has been relied also include United States Government completion of examination for most upon in the briefs; (ii) the primary ownership contests under 42 U.S.C. applications (and of reexamination for examiner may only rely on argument 2182[3] and 2457(d). The proposed rules most patents) before the Board will and evidence relied upon in the answer; in this proposed subpart would be more institute a contested case. Contested

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cases are generally much more would not extend to (1) ministerial the * * * brief’’ and noted that expensive than ex parte proceedings. communications with support staff (for ‘‘incorporation is a pointless imposition Consequently, it makes little sense to instance, to arrange a conference call), on the court’s time. A brief must make initiate a contested case before all (2) hearings in which opposing counsel all arguments accessible to the judges, patentability issues (other than those declines to participate, (3) informing the rather than ask them to play that are the subject of the contested Board in one proceeding of the archaeologist with the record.’’ The case) have been resolved. Brenner v. existence or status of a related Board same rationale applies to Board Manson, 383 U.S. 519, 528 n.12 (1966) proceeding, or (4) reference to a pending proceedings. (rejecting the proposition that an case in support of a general proposition Proposed § 41.106(b)(4) would interference must be declared when the (for instance, citing a published opinion provide rules for the citation of applicant’s interfering claims are from a pending case or referring to a authority. Parallel citation to a West unpatentable). The main exceptions pending case to illustrate a systemic Company reporter and to the United would be title contests under 42 U.S.C. problem). States Patents Quarterly, particularly for 2182 and 2457(d), where control of the Proposed § 41.106 would provide patent decisions of Federal courts, is the examination may itself be a guidance for the filing and service of norm in patent law. See Federal Circuit consideration. papers. Under proposed § 41.106(a), Rule 28(e). Pinpoint citations, also Proposed § 41.103 would follow the papers to be filed would be required to called ‘‘jump citations’’, are the norm in file jurisdiction practice in Rules 614 meet standards very similar to those legal practice. See The Bluebook: A and 615 except to generalize the required in patent prosecution, Rule Uniform System of Citation § 3.3(a) temporary transfer of jurisdiction to 52(a), and in filings in the Court of (Columbia L. Rev. Ass’n et al. 17th ed. include parts of the Office other than Appeals for the Federal Circuit, Fed. R. 2000). The citation of secondary the examining corps, including, for App. P. 32. Proposed § 41.106(a)(1) authority would be discouraged example, the Office of Public Records. would permit a party to file papers in whenever primary authority exists. For Such transfers of jurisdiction will either A4 format or 81⁄2-inch × 11-inch instance, a citation to the MPEP is generally be for short periods and for format, but not to alternate between unhelpful if the MPEP itself is merely limited purposes. formats. See Standing Order ¶ 3.3. At summarizing binding case law. Proposed § 41.104(a) would follow the present, the Board prefers papers to be Proposed § 41.106(d) would provide practice of Rule 610(e), which permits filed in 81⁄2-inch × 11-inch format additional guidance for special modes of an administrative patent judge wide because the present filing system is best filing. Proposed § 41.106(d)(1) would latitude in administering interferences. adapted to this paper format. Electronic provide a mailing address. Note that the The waiver provision of proposed filing might eventually render this proposed rule would encourage the use § 41.104(b) would be modeled on Rule preference moot. of the EXPRESS MAIL service of the 183 and would balance the ideal of Proposed § 41.106(b) would provide United States Postal Service. Mail sent precise rules for most proceedings guidance specific to papers other than by other means would not be considered against the need for flexibility to exhibits. Proposed § 41.106(b)(1) would to have been filed until it is actually achieve reasonably fast, inexpensive, codify current practices for the cover received. Cf. proposed § 41.106(e)(3), and fair proceedings. The decision to sheet of a paper. Standing Order ¶¶ 3.1, which would permit service by methods waive a procedural requirement would 3.5 and 3.6; cf. Fed. R. App. P. 32(a)(2). at least as fast and reliable as EXPRESS be committed to the discretion of the The caption aids in the prompt MAIL. Proposed § 41.106(d)(2) would administrative patent judge. This matching of the paper to its file. The permit other modes of filing. For provision would eliminate the need for header expedites communications instance, the Board is currently working repeatedly stating exceptions between the Board staff and the party in on a pilot program for electronic filing throughout proposed subpart D. For the event that some prompt action, such in contested cases. The diversity of instance, the current rules have many as the correction of a filing defect, is possible filing forms and the varying instances where a time is set in a rule, necessary. The current practice of ability of parties to cope with electronic but the rule also permits an requiring a pink cover sheet aids in the filing requires a case-by-case administrative patent judge to adjust the processing and filing of papers at the determination of whether to place a time. Proposed § 41.104(c) would make Board and facilitates use of the proceeding in the pilot program. clear that any default times set by rule administrative record by clearly Practitioners permitted to file may be changed by order. ‘‘Times’’ in indicating the beginning of each paper. electronically are encouraged to agree to paragraph (c) would include both dates Proposed § 41.106(b)(2), which would do so. and durations. require holes at the top of the paper, Proposed § 41.106(e)(1) would require Proposed § 41.105 would codify would codify the practice under papers to be served when they are filed existing practice prohibiting ex parte Standing Order ¶ 3.4, which is based on if they have not already been served. communications about a contested case Local Civil Rule 5.1(f) (1999) of the Under current practice, the usual with an official actually conducting the United States District Court for the instance in which filing before service is proceeding. Initiation of an ex parte District of Columbia. The proposed rule authorized is the case of preliminary communication might result in would facilitate entry of the paper in the statements where prior filing is a sanctions against the initiating party. administrative record. mechanism for ensuring that a party The prohibition would include The bar in proposed § 41.106(b)(3) states its priority case based on what it communicating with any member of a against incorporation by reference and knows about its own proofs rather than panel acting in the proceeding or combination of papers would minimize on what it knows about what the other seeking supervisory review in a the chance that an argument will be party intends to prove. Proposed proceeding without including the overlooked and would eliminate abuses § 41.106(e)(3) would provide for opposing party in the communication. that arise from incorporation and expedited service, which would place In general, it is wisest to avoid combination. In DeSilva v. DiLeonardi, the parties on an equal footing by substantive discussions of a pending 181 F.3d 865, 866–67 (7th Cir 1999), the reducing the disparities that can arise contested case with a Board official. The court rejected ‘‘adoption by reference’’ from the use of different forms of prohibition on ex parte communications as ‘‘a self-help increase in the length of delivery.

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Proposed § 41.106(f) would provide by permitting early access to such practices is highly variable and can have rules for certificates of service. Proposed statements. Nothing in the proposed the effect of prejudicing the party that § 41.106(f)(1) would require the rule would prevent the Board from complies most completely with a notice certificate to be incorporated into each authorizing the withholding of such requirement. The filing party should not paper other than exhibits. The filing of declarations on a showing of good be allowed to hide behind an ambiguous additional papers like certificates of cause. notice. For instance, a notice that alleges service and transmittal letters as Proposed § 41.110(a) would require a a date of conception ‘‘no later than 20 separate papers places a file single clean set of the claims, analogous June 2000’’ would be construed as maintenance burden on the Board. The to the requirement for amendments ‘‘in limiting the submitting party to proving filing of transmittal letters is strongly clean form’’ in Rule 121. The annotated a date no earlier than 20 June 2000. Note discouraged. Exhibits constitute the copy required in proposed § 41.110(b) that a notice is not evidence except to exception to the rule since the current would provide the opposing party and the extent it qualifies as a party- practice permits the filing of most or all the Board with a clear understanding of opponent admission. See Federal Rule exhibits at one time. When the exhibits how the party construes its own claim. of Evidence 801(d)(2). Proposed are filed at the same time, the certificate The clean and annotated copies would § 41.120(c) would permit correction of a may be incorporated into the exhibit provide everyone in the proceeding notice after the time set for filing the list. See proposed § 41.154(d). with a convenient reference and help to notice, but would set a high threshold Section 41.107 of proposed subpart D identify mistakes, such as amendments for entry of the correction. would be reserved. It is likely that rules that were not entered or portions of the Proposed § 41.121(a)(1) would for electronic filing and service will disclosure that were not printed, before redefine motions practice under Rule evolve in the next few years. When they the proceeding begins in earnest. Cf. 633(a), (b), (c)(2), (c)(3), (c)(4), (f) and (g) are ready for codification, § 41.107 Southwest Software, Inc. v. Harlequin, to focus more specifically on the central would be the natural place for them to Inc., 226 F.3d 1280, 1296, 56 USPQ2d issue in the contested case. Current appear. 1161, 1173 (Fed. Cir. 2000) (critical practice often permits motions that have Proposed § 41.108 would require each portion of disclosure missing). little to do with the point of the contest. party to identify its counsel, if any. The Moreover, identically worded claims in For instance, a motion for proposed rule would also follow Rule separate applications claims can, when unpatentability in an interference is not 613(a), which permits the Board to properly construed in view of the helpful if it does not result in a loss of require the appointment of a lead specification, have patentably distinct standing, a change in the scope of the counsel. scopes. This possibility is particularly count, or a change in the accorded Proposed § 41.109 would follow Rule important for claims written in the form benefit. 612 in permitting parties to obtain permitted under 35 U.S.C. 112[6], where Proposed § 41.121(a)(1)(iii) would copies of certain Office files directly identically worded means or steps permit a motion for judgment in the related to the contested case. Current might not correspond to equivalent contest, which can include an attack on practice is to make the necessary files structures, materials, or acts in the standing as well as a motion for relief available for copying immediately after respective disclosures. For instance, a on the central issue of the contest. For the Board initiates the proceeding. limitation requiring ‘‘means for instance, priority in interferences would Standing Order ¶ 6. After that initial fastening’’ might refer to rivets in one be raised through motions. This opportunity passes, files typically specification and glue in another, which departure from current practice would become less available because they are on the facts of the case might not prove address a potential disadvantage to the often required in other parts of the to be equivalent. Here is an example of senior party, which currently may have Office. Proposed § 41.109(c) would the annotation that would be required to make decisions about the junior require a party that has not received (except the bracketed portion should party’s priority case after the junior copies of a requested file to notify the also be shown in bold face): ‘‘. . . means party has provided its evidence but Board of the problem promptly. A delay for fastening {Fig. 6, item 3; also page before it explains the evidence. The in receiving a file resulting from a 17, lines 9–22} . . . .’’ prohibition on motions directed to failure to order a file promptly, or to Proposed § 41.120 would provide for priority and derivation in Rule 633(a) notify the Board promptly that a file has notice of requested relief and the basis would be removed, although a decision not been received, would not justify a for that relief in contested cases. Similar on such motions would likely be delay in the proceeding. notices are already common in patent contingent on decisions regarding the The proposed rule would depart from interferences, e.g., a preliminary scope of the interference. Consequently, Rule 612 by eliminating the requirement statement, a statement under Rule 608, the Board might not authorize the filing for withholding declarations under Rule and a motions list currently required at of a priority or derivation motion until 131 and statements under Rule 608. One the first status conference. These notices after scope issues have been resolved. reason for withholding such papers is can be effective mechanisms for Proposed § 41.121(a)(2) and (a)(3) that they give the opponent an advanced administering cases efficiently and for would modify the responsive motion view of the applicant’s priority case, placing opponents on notice. and miscellaneous motion practice which is said to be unfair (and can Interferences suggested under proposed under Rules 633(i) and (j), 634, and 635 enable fraud by the other party in § 41.202(a) would already include a to ensure that the proceeding remains stating its priority case). This practice, notice from at least one party, although focused. For instance, current practice however, is asymmetric because the the Board could require more detail. allows a motion to correct inventorship withholding only applies to applicants Proposed § 41.120(b) would apply at any time (Rule 634). Under the while a patentee’s Rule 131 declaration present Rule 629(e) regarding the effect proposed rules, a motion to correct is publicly available. Moreover, to the of preliminary statements to notices inventorship could be an appropriate extent the applicant has relied on the generally. Preliminary statements are responsive motion in the face of a declaration to obtain allowable claims, binding on the submitting party. The patentability attack or in view of a it is an important element in the proposed rule would make other such priority statement, but would not be prosecution history. On balance, the notices presumptively binding because permitted without some connection to goals of examination are better served compliance with current notice an issue that must be resolved in the

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contested case. The authorization the same showings, the proposed rule costs associated with miscellaneous requirement in proposed § 41.121(a)(2) would keep practice uniform motion practice. would also provide a mechanism for throughout the Office. The Board could A party is not entitled to an oral limiting abusive practices, such as temporarily release the affected file to argument. In re Bose Corp., 772 F.2d moving to add many more claims than the part of the Office usually 866, 869, 227 USPQ 1, 4 (Fed. Cir. are necessary to cure a problem. responsible for administering the rule to 1985). Hence, a party could request an Proposed § 41.121(a)(3) would provide ensure consistency or otherwise take oral argument under proposed for miscellaneous motions, which advantage of that entity’s expertise. See § 41.124(a), but requests would not be would offer a mechanism for requesting proposed § 41.103. automatically granted. Factors relief on procedural issues and other Proposed § 41.121(d) would provide considered in setting an oral argument issues tangential to patentability and authority comparable to Rule 641, might include the usefulness of an oral priority. See proposed § 41.104. A which allows an administrative patent argument to the administrative patent miscellaneous motion would not be judge to raise questions of patentability. judge or panel and the burden on an considered a petition; hence, no petition The proposed rule would be broader opponent of attending an oral argument. fee is required. See proposed § 41.3(b). because it would permit the Board to A corollary is that not all requested Panel review of a decision on a inquire into other issues that may arise, issues would necessarily be heard. miscellaneous motion would apply an such as whether there continues to be Under proposed § 41.124(b), the parties abuse of discretion standard. See an interference-in-fact in view of a claim would be required to file three working proposed § 41.125(c)(5); Rule 655(a). construction reached in deciding a copies of the papers to be considered for Proposed § 41.121(b) would place the motion. In this regard, it would be akin the panel if the hearing is set for a panel. burden of proof on the moving party, to an order to show cause under Rule This requirement would be comparable following Rule 637(a). Since priority 640(d)(1). to Rule 656(e) and Federal Circuit Rule would be presented as a motion, this Proposed § 41.122 would address the 31(b). Proposed § 41.124(c) would provide a paragraph would change the allocation perennial problem of new arguments or default time of 20 minutes per party for of burden of proof established in Rule requests for relief creeping in at oral arguments at the Board because 657(a). Cf. Brown v. Barbacid, 276 F.3d inappropriate times. The proposed rule they are not evidentiary hearings. This 1327, 1332, 61 USPQ2d 1236, 1239 would largely adopt the present practice default time would be comparable to the (Fed. Cir. 2002) (construing Rule 657(a) in Standing Order ¶ 13.7, but would 15 minutes typically provided for oral to require the ultimate burden of proof extend the practice to oppositions as on priority to remain on the junior argument at the Court of Appeals for the well. Note that a movant need not party). A motion that fails to justify Federal Circuit. Fed. Cir. R. 34, practice anticipate all possible bases for relief on its face could be dismissed or note (2001). opposition, but may be held accountable denied without regard to subsequent Proposed § 41.124(d) would permit for positions apparently inconsistent briefing. the use of demonstrative exhibits. Proposed § 41.121(c)(1) would follow with those taken by the movant during Visual aids requiring special equipment Rule 637(a) regarding the general prosecution of an application. For would be discouraged since the contents of motions, but would also instance, a motion to add a broad claim argument time would be short and codify the current practice of requiring to an application in which the claims cumbersome exhibits would tend to a separate paper for each motion. The have been narrowed to avoid prior art detract from the user’s argument. The separate paper requirement would should explain why the new claim is use of a compilation with each reduce the chances that an argument patentable, not only in terms of written demonstrative exhibit separately tabbed will be overlooked and would generally description in the specification but also would be encouraged, particularly when reduce the complexity of any given in terms of the previously applied prior a court reporter is transcribing the oral paper. The numbered paragraphs stating art. The Board could expunge improper argument because the tabs provide a material facts in proposed papers. See proposed § 41.7(a); Winter v. convenient way to record which exhibit § 41.121(c)(1)(ii) should be short, ideally Fujita, 53 USPQ2d 1234, 1250 (BPAI is being discussed. It is helpful to just a sentence or two, to permit the 1999). provide a copy of the compilation to opposing party to admit or deny each Proposed § 41.123(a) would maintain each member of the panel hearing the fact readily. Under proposed the practice of having the Board set the argument. § 41.121(c)(1)(iii), sloppy motion times for filing motions found in Rule Proposed § 41.124(e) would permit drafting would be held against the 636, but would eliminate the default the transcription of the argument. The moving party. A vague argument or times provided in that rule. Proposed transcription would become part of the citation to the record creates § 41.123(a)(1)–(3) would provide default record and could be helpful to the panel inefficiencies for the Board and is times for filing an opposition, a reply, in reaching its decision. See Okajima v. fundamentally unfair to the opposing and a responsive motion, but would not Bourdeau, 261 F.3d 1350, 1356, 59 party. Cf. Winner Int’l Royalty Corp. v. themselves authorize the filing of an USPQ2d 1795, 1798 (Fed. Cir. 2001) Wang, 202 F.3d 1340, 1351, 53 USPQ2d opposition, a reply, or a responsive (noting the role of the transcript in the 1580, 1589 (Fed. Cir. 2000) (declining to motion. Board’s decision). To be helpful, scour the record to make out an Proposed § 41.123(b) would provide however, the transcript would have to argument for a party). requirements for miscellaneous be filed promptly. Proposed § 41.121(c)(2) would require motions. A conference call would be Proposed § 41.125(a) would maintain the movant to make showings ordinarily required before the motion is filed the practice under Rule 640(b) of required for the requested relief in other because most relief requested in such addressing issues in a manner that is parts of the Office. Many actions, motions can be granted (or denied) in a both fair and efficient. Noted with particularly corrective actions like conference call. In other cases, the call approval in Berman v. Housey, 291 F.3d changes in inventorship, filing reissue would permit the setting of a schedule 1345, 1352, 63 USPQ2d 1023, 1028 applications, and seeking a retroactive to accommodate full briefing of the (Fed. Cir. 2002). A decision on a motion foreign filing license, are governed by issue. This telephone practice has might be logically contingent on the other rules of the Office. By requiring greatly increased speed and reduced outcome of another motion even though

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the motion is not expressly identified as Board would infer a concession of the file than they would under the Hunter a contingent motion. Moreover, efficient contest. Proposed § 41.127(c) would construction, the outer bound for timely allocation of Office resources might restate the recommendation provision of filing will be much closer to the date of require deferral of a motion or referral Rule 659. all affected agreements, thus reducing of a matter to another part of the Office. The Director has authority to the likelihood of an accidental failure to Given the great cost of contested cases prescribe a time for seeking judicial file. Finally, since the Director has for both parties and the Office, the review. 35 U.S.C. 142 and 146[1]. The authority to extend the time for seeking Board will continue to focus on efficient prescribed time (2 months) is set in Rule judicial review, sections 142 and 146[1], administration consistent with the 304(a)(1), but can be extended on the proposed definition permits an requirements of due process. petition under Rule 304(a)(3). Proposed additional route of relief when such Proposed § 41.125(b) would clarify § 41.127(d) would provide a time for relief, though otherwise unavailable, the current practice that a decision short requesting a rehearing and would would be in the interests of justice. of judgment is not final. It would also delegate to the Board limited discretion Proposed § 41.128(a) would codify the codify the current practice of having to toll the time for seeking judicial holding of In re Graves, 69 F.3d 1147, panel decisions bind further action review for the pendency of the request. 1151, 36 USPQ2d 1697, 1699–1700 during the proceeding. The practice of Tolling the time for seeking judicial (Fed. Cir. 1995), that whether the time having panel decisions bind further review would codify the result of In re for seeking judicial review has run or proceedings has eliminated much of the Graves, 69 F.3d 1147, 1149–51, 36 not, a timely notice of appeal on an uncertainty and added cost that results USPQ2d 1697, 1698–1700 (Fed. Cir. appealable decision terminates further from deferring any final decision until 1995), but such tolling would not be Board jurisdiction to act on the merits. the end of the proceeding. A party automatic. The Board would not toll the Proposed § 41.128(b) would extend the dissatisfied with an interlocutory time for seeking review where the same principal to the timely decision on motions should promptly request for rehearing appears to be a commencement of a district court action seek rehearing rather than waiting for a delaying tactic, for example if a party under 35 U.S.C. 146 seeking review of final judgment. A panel could, when the files requests serially. an appealable decision. interests of justice require it, reconsider Proposed § 41.128 would define the Proposed § 41.129(a) would restate its decision at any time in the term ‘‘termination’’, which appears Rule 616 on sanctions, but would proceeding prior to final judgment. A several times in 35 U.S.C. 135(c). expressly add the examples of belated request for rehearing would Section 135(c) renders settlement misleading arguments and dilatory rarely be granted, however, because its agreements and patents involved in or tactics to the list of reasons for untimeliness would detract from the resulting from the interference sanctions. A party always has a duty of efficiencies that have resulted from unenforceable if the parties fail to file candor toward a tribunal. Hence, while making interlocutory decisions binding. the agreements prior to termination. The the proposed rules no longer expressly Proposed § 41.125(c) would adopt the Office is required to provide notice of require a movant to show the time for requesting rehearing from Rule the requirement within a reasonable patentability of a proposed claim to the 640(c) and the procedural requirements time before termination or else the movant, the filing of a claim that the of the last two sentences of Rule 655(a). agreement may be filed up to sixty days party knew or should have known to be Since 35 U.S.C. 6(b) requires a panel after notice is provided. The Office has unpatentable would be inconsistent decision for finality, a party should generally tried to minimize the potential with that duty of candor. The concern request rehearing by a panel to preserve traps for the unwary by construing the about dilatory tactics arises from the an issue for judicial review. A panel requirements liberally. Over time, this potential for abuse inherent in patent will apply the deferential abuse-of- has led to divergent constructions of term adjustments for time spent in an discretion standard to procedural ‘‘termination’’. In Hunter v. Beissbarth, interference provided in 35 U.S.C. decisions on rehearing. 15 USPQ2d 1343, 1344 n.1 (Comm’r Pat. 154(b)(1)(C). Proposed § 41.126 would adopt the 1990), the question of when such Proposed § 41.129(b) would restate arbitration practice of Rule 690. agreements must be filed was liberally the list of sanctions provided in Rule Although parties may submit any issue construed to extend the time until after 616, but would add terminal disclaimer to binding arbitration, the Board might judicial review was complete. In as a sanction. Terminal disclaimer independently decide any questions of contrast, the question of what would be an appropriate sanction in patentability. The proposed rule would agreements are covered was limited to cases where a party has caused needless also clarify that the Board could agreements reached during proceedings delay. The sanction of expunging papers independently determine questions like before the Board in Johnston v. Beachy, would be consistent with proposed whether an interference-in-fact exists or 60 USPQ2d 1584, 1588 (BPAI 2001). A § 41.7(a), under which unauthorized what an Office rule means. third construction is possible in which papers may be expunged. Neither the Proposed § 41.127(a)(1) would adopt the interference proceeding is tolled list of sanctionable acts nor the list of the estoppel provision of Rule 658(c). during the judicial proceeding such that sanctions should be considered Note that while the second sentence of both Hunter and Johnston are correct. In exhaustive. the proposed paragraph would continue the proposed rule, the Director would Proposed § 41.150(a) would restate to focus on the losing party, a decision construe section 135(c) to mean the the present policy of limited discovery, of no interference-in-fact could also interference terminates when the time consistent with the goal of providing estop a party from provoking an for seeking judicial review under 35 contested proceedings that are fast, interference with the same opponent for U.S.C. 142 and 146[1] expires, whether inexpensive, and fair. Proposed the same subject matter under the first such review is sought or not. This § 41.150(b) would provide for automatic sentence. Cf. Rule 665, which cites Rule construction offers several practical discovery of materials cited in the 658(c). benefits. First, by limiting the number of specification of an involved or benefit Proposed § 41.127(a)(2) restates the agreements covered, the risk of disclosure. The proposed rule would final disposal provision of Rule 663. inadvertent failure to file is place the parties on a level playing field Proposed § 41.127(b) would restate the correspondingly limited. Second, since the party that relied on the conditions in Rule 662 under which the although parties will have less time to requested materials in its disclosure

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would ordinarily have easier access to are cited would create a record- the parties and the Board. The Board such materials than the requester and management problem for the Board and would give weight to foreign deposition would be in a better position to ensure confusion about what the fact-finders testimony to the extent warranted in that the requested material is the must consider in reaching a decision. view of all the circumstances, including material cited. It would also eliminate The Board might expunge such filings the laws of the foreign country many routine discovery requests and sua sponte. governing the testimony. Little, if any, disputes. The requirement would not be Proposed § 41.154(a) would restate weight might be given to deposition a requirement for a party to create Rule 671(a), which sets the form of testimony taken in a foreign country materials or to provide materials not evidence, and would codify the existing unless the party taking the testimony cited. See Scott v. Gbur, 62 USPQ2d practice that all evidence must be proved, as a matter of fact, that 1959 (BPAI 2002) (nonprecedential). submitted as an exhibit. Proposed knowingly giving false testimony in that Any request under proposed § 41.150(b) § 41.154(b) would restate Rule 647 country in connection with a Board should come early in the proceeding to regarding translation of foreign language proceeding is punishable under the laws ensure that the requesting party will evidence. Proposed § 41.154(c) would of that country and that the punishment have timely access to such materials. set forth additional formal requirements in that country for such false testimony Proposed § 41.150(c) would restate for exhibits consistent with current is comparable to or greater than the existing practice under Rule 687 practice under Standing Order ¶ 14.8.1. punishment for perjury committed in regarding additional testimony. An exhibit list would be required under the United States. Proposed § 41.156(c) Proposed § 41.151 would continue the proposed § 41.154(d), following the would advise that the Board may rely on practice under Rule 671(i) of making current practice under Standing Order official notice and hearsay to determine failure to comply with the rules a basis ¶ 14.8.5. the scope and effect of foreign law. for challenging admissibility. Proposed § 41.155 would set forth Proposed § 41.157 would restate Proposed § 41.152 would continue the rules for objecting to evidence and existing practice regarding the taking of current practice of using the Federal responding to objections. The current testimony. The time period for cross- Rules of Evidence in contested cases. practice is to provide a time for filing examination set in proposed Experience since this practice was motions to exclude. Under proposed § 41.157(c)(2) would follow the current implemented in 1984 has shown it to be § 41.155(b)(1), the default time for practice under Standing Order ¶ 14.3 beneficial without being unduly serving an objection to evidence other and would set a norm for the conference restrictive for either the parties or the than testimony would be five business held under proposed § 41.157(c)(1). A Board. Moreover, the Federal Rules of days. Since evidence would have to be party seeking to push the deposition Evidence embrace a well-developed served by EXPRESS MAIL or outside this period would have to be body of case law and are familiar to the comparably fast means, see proposed prepared to show good cause. Proposed courts charged with reviewing Board § 41.106(e)(3), five business days would § 41.157(c)(3) would clarify the practice decisions in contested cases. Minor ordinarily be adequate time to object. of providing documents in advance by changes to the rule have been made to Proposed § 41.155(b)(2) would permit limiting the practice to direct testimony. conform the rule with amendments to a party that submitted evidence ten Since direct testimony is generally in the Federal Rules of Evidence since business days after service of the the form of a declaration, the 1984. objection to cure any defect in the circumstance in which proposed No special provisions for electronic evidence. (Standing Order ¶ 14.2 § 41.157(c)(3) would apply should rarely records are proposed beyond the provides two weeks.) The Board would occur apart from compelled testimony. provisions already in the Federal Rules not ordinarily address an objection Proposed § 41.157(d) would codify of Evidence. See Fed. R. Evid. 1001(3). unless the objecting party filed a motion the existing requirement for a While electronic records appear to be of to exclude under § 41.155(c) because the conference before a deposition with an special concern because they often may objection either might have been cured interpreter. Board experience suggests be easily altered, the requirements or might prove unimportant in light of that the complexity of foreign language already present in the Federal Rules of subsequent developments. Proposed depositions can be so great that in many Evidence adequately addressed this § 41.155(d) would provide for a motion cases the resulting testimony is not very concern. The Board’s limited experience in limine for a ruling on admissibility, useful to the fact-finder. To avoid a with electronic records in interferences following the practice of Standing Order waste of resources in the production of has not suggested any unique ¶ 13.10.3.2. an unhelpful record, the Board must admissibility problems requiring special Under 35 U.S.C. 23, the Director may approve of the deposition format in provisions. Electronic records have been establish rules for affidavit and advance and may require that the admissible in interferences on the same deposition testimony. Under 35 U.S.C. testimony occur before the Board. basis as other records. 24[1], a party in a contested case may Occasionally other testimony that Proposed § 41.153 would restate the apply for a subpoena to compel particularly touches on the credibility of practice under Rule 671(d) of admitting testimony in the United States, but only the witness, such as testimony about Office records that are available to all for testimony to be used in the contested best mode, derivation, or inequitable parties without certification. Cf. 28 case. Proposed § 41.156(a) would conduct, will also be required to be U.S.C. 1744, which provides for the require the party seeking a subpoena to taken before the Board so the Board may admissibility of certified Office records. first obtain authorization from the directly observe the demeanor of the Note that under proposed § 41.154(a), Board; otherwise the compelled witness. each Office record cited as evidence evidence would not be used in the Proposed § 41.157(e) would depart would have to be submitted as an contested case. Proposed § 41.156(b) from the current rules in adopting exhibit, following the practice of would impose additional requirements ‘‘officer’’, the term used in 35 U.S.C. 23, Standing Order ¶ 14.5. In the case of on a party seeking testimony or to refer to the person qualified to application files and similar files, only production outside the United States administer testimony. the specific record cited should be because the use of foreign testimony The certification of proposed submitted as an exhibit. Submitting the generally increases the cost and § 41.157(e)(6)(vi) would substantially entire file when only discrete portions complexity of the proceeding for both adopt the standard of Rule 674 for

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disqualifying an officer from 1989) (application claim after for priority under 35 U.S.C. 102(g) is administering a deposition. The use of interference); In re Etter, 756 F.2d 852, narrower than full compliance with the financial interest as a disqualification, 858–59, 225 USPQ 1, 5–6 (Fed. Cir. disclosure statutes. Sections 119, 120, however, would be broader than the 1985) (en banc) (patent claim in 121, and 365 focus on whether the full employment interest currently barred. reexamination). The court in Etter noted scope of a claim is adequately disclosed, Payment for ordinary services rendered that a patentee in reexamination can while an interference is focused on in the ordinary course of administering amend its claim, while a patentee in whether at least one embodiment the deposition and preparing the litigation ordinarily may not. A patentee anticipates the interfering subject matter transcript would not be a disqualifying in an interference can contingently as defined in a count. financial interest. An interest narrow its claim by filing a reissue The phrase ‘‘constructive reduction to acknowledged by the parties on the application. 35 U.S.C. 251; Rule 633(h) practice’’ would focus consideration on record without objection would not be and (i); proposed § 41.121(a)(2). Indeed, the value of a disclosure as a potentially a disqualifying interest. a patentee may face an estoppel if it anticipating reference under section Proposed § 41.157(e)(7) would require does not seek to amend its claim when 102(g). Only a single enabled the proponent of the testimony to file necessary. Rule 658(c); proposed embodiment is necessary for the transcript of the testimony. If the § 41.127(a)(1). anticipation of the count. Note that original proponent of the testimony Proposed § 41.200(c) would set forth abandonment of an application without declined to file the transcript (for the policy now found in Rule 610(c) a co-pending (section 120 and 121) or instance, because that party no longer setting two years as the maximum timely filed (sections 119 and 365) intended to rely on the testimony), but normal pendency for patent successor application can render an another party wished to rely on the interferences. New procedures adopted otherwise anticipating disclosure under testimony, that party becomes the since October 1998 have permitted the section 102(g) ‘‘inoperative for any proponent and could file the transcript Board to meet or exceed this goal in purpose, save as evidence of as its own exhibit. most interferences declared since that conception.’’ In re Costello, 717 F.2d Proposed § 41.157(f) would codify the time. The cooperation of the parties has 1346, 1350, 219 USPQ 389, 391 (Fed. existing practice of requiring the been a critical factor in this success. The Cir. 1983). The phrase ‘‘earliest proponent of testimony to pay the proposed rules would build on this constructive reduction to practice’’ reasonable costs associated with making success by codifying procedures that would reflect this requirement for the witness available for cross have facilitated efficiency, removing continuity in the disclosure of the examination, including the costs of the procedures that delayed proceedings, anticipating embodiment under section reporter and transcript. and creating new opportunities for 102(g). Proposed § 41.158 would codify the improvement. The term ‘‘count’’ would be redefined practice under Standing Order ¶¶ 14.9 Proposed § 41.201 would set forth to emphasize the relationship of the and 14.10 regarding expert testimony definitions specific to patent count to admissible proofs of priority and scientific tests and data. Opinions interferences. The phrase ‘‘accorded under section 102(g). Eaton v. Evans, expressed without disclosing the benefit’’ would be defined as an act by 204 F.3d 1094, 1097, 53 USPQ2d 1696, underlying facts or data may be given the Board with regard to priority. 1698 (Fed. Cir. 2000) (priority cannot be little, if any, weight. Rohm & Haas Co. Specifically, it would be the Board’s established with a reduction to practice v. Brotech Corp., 127 F.3d 1089, 1092, recognition of an application as outside the count). There has been a 44 USPQ2d 1459, 1462 (Fed. Cir. 1997). providing a proper constructive theoretical debate in the interference bar United States patent law is not an reduction to practice for a party. This about whether a count is necessary. appropriate topic for expert testimony recognition would create a presumption Opponents hold that a count is an before the Board. that is important for setting the burdens artificial construct that imposes Proposed subpart E would provide for proving priority. ‘‘Accorded benefit’’ significant administrative costs. It is rules specific to patent interferences. in this proposed subpart would be a true that the use of a count is the Proposed § 41.200(a) would specifically term of art limited to priority principal reason why interferences identify patent interferences as determinations under 35 U.S.C. 102(g). almost always proceed in two phases: a contested cases subject to the rules in In this regard accorded benefit should first phase to examine issues related to proposed subpart D. be understood to be distinct from the scope of the count and a second Proposed § 41.200(b) would continue benefit under 35 U.S.C. 119, 120, 121, phase to determine priority for the the practice under Rule 633(a) of or 365(a), which impose additional count. Moreover, use of a count might looking at the applicant’s specification requirements not directly relevant to a in some cases obscure the relationship to determine the meaning of a copied priority determination under section between the priority proofs and the claim, not the specification from which 102(g). patentability of claims said to the claim was copied. See Rowe v. Dror, A definition would be set forth for the correspond to the count. Proponents, 112 F.3d 473, 479, 42 USPQ2d 1550, phrase ‘‘constructive reduction to however, note that addressing the 1554 (Fed. Cir. 1997) (explaining the practice’’ because this phrase would be separate unpatentability of claims change in practice). Claims in used in the proposed rules instead of without the benefit of a count to focus interferences are not to be treated any ‘‘earliest effective filing date’’ to explain the analysis also imposes extensive differently than any other claim before more precisely how benefit would be costs and uncertainties. the Office. In this regard, the proposed accorded for the purpose of determining While a count may be theoretically rule would also clarify that claims are priority. ‘‘Earliest effective filing date’’ unnecessary, experience with the given their broadest reasonable has proved confusing because the same current rules suggests that a count is interpretation in light of the associated term is used to discuss compliance with desirable. The costs associated with the specification. In re Van Geuns, 988 F.2d the disclosure requirements of 35 U.S.C. count are outweighed by the advantages 1181, 1185, 26 USPQ2d 1057, 1059 119, 120, 121, and 365. Compliance flowing from having a single description (Fed. Cir. 1993) (application claim in with these statutes is important when of the interfering subject matter both for interference); In re Zletz, 893 F.2d 319, considering most questions of the purpose of determining priority and, 321, 13 USPQ2d 1320, 1322 (Fed. Cir. patentability, but the question of benefit perhaps more importantly, for the

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purpose of claim correspondence. The be limited to motions from a party with requirement. Where the requirement is Federal Circuit recently reached a a patent or published application based on a patent or a published similar conclusion regarding the use of against a party with an involved application, the examiner should note a count in the context of interfering application. Note that the section 135(b) the patent or application in making the patents in 35 U.S.C. 291 proceedings. bar and lack of written description requirement. In challenging the Slip-Track Sys. v. Metal-Lite, Inc., 304 address complementary problems: requirement, the applicant may point to F.3d 1256, 1264, 64 USPQ2d 1423, 1428 Under section 135(b) a claim may be another claim in the application that (Fed. Cir. 2002) (requiring the use of a supported but untimely, while a claim already claims the subject matter of the count). Note that the requirement that lacking written description may be required claim. The applicant may also counts be separately patentable timely but is unsupported. For the propose an alternative claim with an preserves the current practice of having purposes of the proposed rule, explanation of why the alternative claim genus and species counts in appropriate provocation of an interference would be would be better for the purpose of cases, e.g., Hester v. Allgeier, 687 F.2d inferred from the circumstances, such as determining the interference. A 464, 215 USPQ 481 (CCPA 1982) entry of a claim after publication of the common reason for proposing an because a generic invention and a movant’s application or issuance of the alternative claim is that the applicant specific invention are often patentably movant’s patent. It would not require believes the required claim to be distinct. any determination that the opponent unpatentable at least to the applicant. The definition of ‘‘involved claim’’ had an intent to provoke the Proposed § 41.202(d) would set forth would be based on a similar definition interference. the basis for a summary proceeding in Rule 601(f). This definition would be Proposed § 41.202(a) would restate when an applicant does not appear to be consistent with the definition of the requirements of Rules 604, 607, and able to show it would prevail on ‘‘involved’’ for contested cases in 608 for applicants provoking an priority. Proposed § 41.202(d)(1) would proposed § 41.100 because only claims interference. A showing of priority need restate Rule 608, but would eliminate that correspond to the count are at risk not anticipate all possible bases for the distinction between Rule 608(a) and in an interference, except to the extent opposing the showing. For instance, Rule 608(b). The requirement could be a question is raised as to whether a when the applicant’s earliest made under 35 U.S.C. 132 even when a claim that does not correspond should. constructive reduction to practice of the rejection is not available. Failure to The definition of ‘‘senior party’’ interfering subject matter occurred comply with the requirement would would depart from the current before the apparent earliest constructive result in abandonment of the definition in Rule 601(m) by focusing on reduction to practice of a targeted application under 35 U.S.C. 133. the earliest constructive reduction to patent, it would typically suffice for the Proposed § 41.202(d)(2) would restate practice to determine which party, if applicant to show precisely where its Rule 617 by providing a basis for a any, is senior. Identification of the earliest constructive reduction to summary proceeding on priority when senior party is important because a practice was disclosed. the applicant fails to make a sufficient presumption of priority attaches to the Proposed § 41.202(a)(5) would showing of priority. To be sufficient, senior party under proposed continue the practice under Rule 633(a) under proposed § 41.202(e), the showing § 41.207(a)(1). of looking at the applicant’s would by itself, if unrebutted, have to The phrase ‘‘threshold issue’’ would specification to determine the meaning warrant a determination of priority. be defined to include three specific of a copied claim, not the specification Proposed § 41.203(a) would state the issues that affect the standing of a party from which the claim was copied. See standard for declaring a patent to participate in an interference. All Rowe v. Dror, 112 F.3d 473, 479, 42 interference. The Director uses a two- three are of particular interest to the USPQ2d 1550, 1554 (Fed. Cir. 1997) way unpatentability test to determine Board because they have been subject to (explaining the change in practice). It whether claimed inventions interfere abuse by parties using interferences as would also set forth a mechanism for because, while a one-way test is only a type of opposition proceeding. An weeding out frivolous attempts to sufficient for rejecting a claim under 35 adverse decision on these issues with provoke an interference. A protester U.S.C. 102(g), a two-way test is respect to all of a party’s claims would under Rule 291 hoping to prompt an necessary to ensure that the claims of ordinarily end the interference. The list examiner to propose an interference both parties are directed to the same would be open-ended and thus admit could improve its chances of success by invention. the possibility that another issue might satisfying the requirements of proposed The case law provides that there is no qualify as a threshold issue on the § 41.202(a)(1)–(a)(4) in its protest. interference-in-fact when there is particular facts of a specific case. Note Proposed § 41.202(c) would restate patentable distinctness between the that these threshold issues would exist the practice under Rule 605 of requiring claims of the parties (e.g., Case v. CPC in addition to the possibility that a an applicant to add a claim to provoke Int’l, Inc., 730 F.2d 745, 221 USPQ 196 junior party has failed to allege a prima an interference. This requirement is an (Fed. Cir.1984); Aelony v. Arni, 547 F.2d facie sufficient case of priority. See effective and sometimes necessary 566, 192 USPQ 486 (CCPA 1977); Nitz proposed §§ 41.202(d) and 41.204(a). method for determining whether an v. Ehrenreich, 537 F.2d 539, 190 USPQ The first identified threshold issue interference actually exists between two 413 (CCPA 1976)). Consequently, to would be no interference-in-fact. parties. In re Ogiue, 517 F.2d 1382, declare an interference, the Director Without an interference-in-fact, there 1390, 186 USPQ 227, 235 (CCPA 1975). requires patentable indistinctness would be no reason to place either The requirement may be used to obtain between the claimed subject matter of party’s claim in jeopardy in the context a clearer definition of the interfering the parties. Eli Lilly & Co. v. Bd. of of an interference proceeding. subject matter or to establish whether Regents of Univ. of Washington, 334 The other two specifically identified the applicant will pursue claims to the F.3d 1264, 67 USPQ2d 1161 (Fed. Cir. issues, the bar under 35 U.S.C. 135(b) interfering subject matter. While an 2003). In practice this means that a and lack of written description under 35 applicant must add the claim or forfeit claim of A and a claim of B interfere if U.S.C. 112[1], would be directed to the the subject matter of the claim, the the subject matter of A’s claim would, prevention of spuriously provoked applicant may contest the requirement if treated as prior art, have anticipated interferences and would consequently and the examiner may withdraw the or rendered obvious (alone or in

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combination with prior art) the subject documents are more susceptible to USPQ2d 1057, 1059 (Fed. Cir. 1993), for matter of B’s claim, and vice versa. This alteration in light of subsequent grounds of unpatentability other than standard has recently come to be known developments in the interference. priority, under which patentability must as the ‘‘two-way’’ test because it Derivation would not be treated be determined for claims, not counts. concisely summarizes the analysis. If separately in the proposed rule since it The Board could rely, however, on this test is not effectively satisfied there is a type of attack on priority. claim grouping that is explicit in the is no interference-in-fact, i.e., no Proposed § 41.204(b) would codify the arguments of the parties, see e.g., In re priority question to be resolved, existing practice of requiring a list of Roemer, 258 F.3d 1303, 1307, 59 although there may be other applicable motions, but under the proposed rule a USPQ2d 1527, 1529 (Fed. Cir. 2001) rejections. party would ordinarily be limited to (noting party concession to have claims Proposed § 41.203(b) would filing substantive motions consistent stand or fall according to specifically delegate this discretion to with its notice of requested relief. No correspondence), or implicit from a an administrative patent judge. default times would be set for logical relationship of the claims (e.g., Proposed § 41.203(c) would similarly statements in proposed § 41.204(c) lack of written support for a limitation authorize an administrative patent judge because the time for filing such in a claim might also affect its to redeclare the interference sua sponte statements would be contingent on too dependent claims). or in response to a decision on motions. many other variables to make default Under proposed § 41.207(b)(2), a An administrative patent judge could times useful. Generally, such statements claim would correspond to the count if redeclare an interference sua sponte, for would be required early in the the subject matter of the claim would instance, when another interfering interference because there would be have been anticipated by or obvious patent or application came to light. An very little discovery permitted so most (alone or in combination with prior art) interference is often redeclared after a motions will be based on information in view of the subject matter of the motion is decided, particularly when under the party’s control. Subsequent count. The Director proposes to use a there are changes in the scope of the developments in the proceeding, such one-way test for claim correspondence count, in the order of the parties, or in as a change in the count, might justify because correspondence is a provisional the claims that would be affected by the corrections to a statement. rejection based on 35 U.S.C. 102(g). The judgment as the result of the decision. Proposed § 41.205 would restate count defines the scope of admissible Proposed § 41.203(d) would depart practice under Rule 666 regarding the proofs for proving priority and thus, in from current practice regarding adding filing of settlement agreements and theory, defines a single inventive files or declaring additional would implement the requirements of concept based on the claims of the interferences. Rules 633(d), (e), and (h) 35 U.S.C. 135(c). parties. An adverse determination of treat the addition of a party’s Proposed § 41.206 would revise priority for the invention of the count application or patent, or the declaration practice under Rule 602(a) to use the would be the basis for the rejection of an additional interference involving ‘‘commonly owned’’ test discussed in under section 102(g) or section 103. the parties, as substantive motions, Barton, 162 F.3d at 1144, 49 USPQ2d at The claims that correspond to the while Rule 642 treats the addition of 1132. Common ownership in a count are the ‘‘claims involved’’ in the other patents or applications to the contested case is a concern because it interference as that phrase is used in 35 interference as an action more akin to can lead to manipulation of the process. U.S.C. 135(a). Claim correspondence the original declaration. The proposed The proposed rule would be stated identifies the parties’ claims that are at rule would eliminate this difference in permissively because not all cases of risk in the event of an adverse judgment treatment and permit a suggestion, like overlapping ownership would be cause on priority such that they will be finally an applicant’s request for an for concern. The cases of principal refused (involved application claims) or interference, to have an administrative concern involve a real party-in-interest cancelled (involved patent claims) by patent judge exercise discretion to with the ability to control the conduct virtue of the judgment as required under declare a new interference or to of more than one party. section 135(a). If a party loses on redeclare the existing interference to Proposed § 41.207(a)(1) would adopt priority with respect to the subject accommodate such files. The net effect the presumption regarding order of matter of a count, the party would not of these changes would be to unify the invention from Rule 657(a). The be entitled to a claim that is anticipated treatment and legal effect of declaring presumption is based on the date of the by (section 102(g)) or obvious in view of and redeclaring interferences. earliest constructive reduction to (section 103) the subject matter of the Proposed § 41.204 would define practice and permits a different senior lost count. Since correspondence is notices of requested relief in party for each count. Proposed effectively a provisional rejection under interferences. Proposed § 41.204(a) § 41.207(a)(2) would adopt the section 102(g), only a one-way test is would greatly simplify the formal evidentiary standards for proving required to determine which claims requirements for the principal notice on priority stated in Rule 657(b) and (c), would be at risk (e.g., In re Saunders, priority, the preliminary statement but would restate the standard of Rule 219 F.2d 455, 104 USPQ 394 (CCPA (which is renamed a ‘‘priority 657(c) in terms of the date of the earliest 1955) (generic claim unpatentable in statement’’). It would not specify the constructive reduction to practice. The view of lost count to species)). information that needs to be filed with proposed rule would also add The current rules use both count- a priority statement. Instead, the rule publication under 35 U.S.C. 122(b) as a based and claim-based correspondence. would require each party to state with reason for requiring proof of priority Compare Rules 603, 606, and particularity the facts on which it under a clear and convincing evidence 637(c)(2)(ii) (count based) with Rules intends to rely. The requirement for standard. 637(c)(3)(ii) and (c)(4)(ii) (claim based). filing documentary support would Proposed § 41.207(b) would clarify The principal virtue of claim-based reflect the current practice under Rule claim correspondence practice and correspondence is that it clearly reflects 623(c) of filing first drawings and explicitly state the effect of claim the implicit rejection of the written descriptions. The requirement correspondence. Proposed § 41.207(b)(1) corresponding claim based on 35 U.S.C. would be limited to documents under would reflect the practice under In re 102(g). A rejection based on § 102(g) the control of a party because those Van Geuns, 988 F.2d 1181, 1184, 26 must look to the invention of another.

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Ordinarily in proceedings before the the repetition in this section would not (holding the required showings to be Office, a determination of the invention be necessary. insufficient). Ultimately, the movant must be based on what is claimed. 35 The presumption of abandonment would have to justify the relief sought U.S.C. 112[2]. A claim is not a after one year in proposed § 41.207(d) substantively, which means compliance prerequisite for a rejection under section would be new. It is modeled after the with statutes, rules, and case law that 102(g), however (e.g., Apotex USA, Inc. one-year statutory bars (e.g., 35 U.S.C. could never be fully replicated in a rule v. Merck & Co., Inc., 254 F.3d 1031, 59 102(b), 102(d), and 135(b)) and other governing the content of motions. USPQ2d 1139 (Fed. Cir. 2001) (prior incentives for prompt filing (e.g., 35 Substantive motions in an invention of another not based on a U.S.C. 119(a) and 273(b)(1)). The interference essentially ask three claim)). It has long been the practice to presumption is intended to encourage questions. First, should the proceeding determine priority in an interference prompt filing of patent applications and reach the question of priority at all? based on a count, which might not even to help parties facing the issue by Second, what is the scope of the proofs be fully supported by the disclosure of simplifying the analysis of an apparent necessary and proper for proving either party, Aelony v. Arni, although abandonment, suppression, or priority and what claims must be other patentability determinations must concealment. An invention, though cancelled in the event of an adverse be based on claims, In re Van Geuns, completed, is deemed abandoned, judgment? Third, which party will lose 988 F.2d 1181, 26 USPQ2d 1057 (Fed. suppressed, or concealed if, within a the determination of priority? While Cir. 1993). The count is understood be reasonable time after completion, no final judgment is possible on a wide the common inventive concept of the steps are taken to make the invention array of issues, the fundamental purpose parties. publicly known. For example, failure to of an interference is to determine Both claim-based and count-based file a patent application, to describe the priority. Consequently, substantive correspondence rest on the assumptions invention in a publicly disseminated motions without some nexus to an that the claim or count on which document, or to use the invention ultimate question of priority would not correspondence is based defines a single publicly, has been held to constitute ordinarily be considered. For example, inventive concept and that any abandonment, suppression, or a motion that a claim is unpatentable obviousness relationship between the concealment. Correge v. Murphy, 705 might be dismissed if it does not affect proof of priority and a corresponding F.2d 1326, 1330, 217 USPQ 753, 756 a party’s standing, the scope of the claim is not too attenuated. Either of (Fed. Cir. 1983). The case law does not count, or the accorded benefit. The first question implicates the three these problems can be addressed by give definitive guidance on when ‘‘threshold issues’’ that are ordinarily filing an appropriate motion regardless abandonment, suppression, or taken up early because they affect a of the basis on which correspondence is concealment has occurred. This uncertainty makes it harder to party’s standing in an interference. determined. determine what evidence to present in Berman v. Housey, 291 F.3d 1345, 1352, In cases where the count is closely order to show an abandonment, 63 USPQ2d 1023, 1028 (Fed. Cir. 2002) based on actual claims and where the suppression or concealment; and to (endorsing the Board practice of early number of claims is small, there is determine in close cases whether determination of threshold issues). generally very little practical difference abandonment, suppression, or These threshold issues are no between claim-based and count-based concealment has occurred. Although interference-in-fact, repose under 35 correspondence. In cases involving very this presumption is designed to U.S.C. 135(b), and lack of written large numbers of claims, however, encourage prompt filing, it does not description supporting claims added to claim-based correspondence places a exclude rebuttal proofs of continuing provoke an interference. Threshold huge burden on a party seeking to have activity other than filing, such as those issues present a movant with an a claim designated as not corresponding listed in the Correge decision. opportunity to escape the burdens of a because a comparison must be made Proposed § 41.208(a) would focus full-scale interference. A party that with every single corresponding claim. substantive motions on the core failed to request such relief early would Count-based correspondence would questions of priority. not ordinarily receive an early make analysis of claim correspondence Proposed § 41.208(b) would place the determination. The practice of deciding easier by providing a single point of burden of proof on the movant and threshold issues early evolved to reference—the count—for determining would provide guidance on how to address abuses on the part of some correspondence. Moreover, by basing satisfy the burden of going forward. applicants provoking interferences. correspondence exclusively on the Proposed § 41.208(c) would set forth An attack on standing must count, the proposed rule would make some guidance to parties about specific necessarily be effective with respect to the basis for claim correspondence motions, but would not attempt to list all of an opponent’s claims on which consistent with the basis for the priority all possible substantive requirements for the determination of interference-in-fact determination. each motion, nor would it exhaustively depends; otherwise, it would really be The presumption in proposed list all possible kinds of motions. In some other type of motion, such as a § 41.207(c) would restate the practice, interference practice has motion to change the count, claim presumption in Rule 637(a) that prior proved too varied to permit an correspondence, or accorded benefit. art cited against an opponent is exhaustive list. The specific Occasionally, more than one threshold presumed to apply against the movant’s requirements of the analogous Rule 637 issue might need to be raised (in claims. Note that the proposed rule have proved both over-inclusive, see separate motions) to address all would clarify the current practice by not Chief Admin. Pat. J., ‘‘Interference involved claims. For instance, an triggering the presumption unless the Practice—Interference Rules Which opponent’s copied claims might lack motion is granted with respect to an Require a Party to ‘Show the written description, while its other opponent’s claim. Although the Patentability’ of a Claim’’, 1217 Official corresponding claims would not in fact proposed rule would omit the reference Gaz. 17 (USPTO 1998) (limiting the interfere. Issues other than threshold to priority statements, a party could not scope of showings), and under- issues could also affect standing, but rely on its notice of requested relief as inclusive, see Hillman v. Shyamala, 55 would rarely be taken up early because evidence, see proposed § 41.120(b), so USPQ2d 1220, 1221 (BPAI 2000) they have less connection with the

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threshold determination of whether the obligation to state these grounds as application in terms of recognition for a Director is of the opinion that an bases for relief when required. constructive reduction to practice. In interference exists. The second set of substantive doing so, the test would avoid confusion Proposed § 41.208(c)(1) would set questions would involve changes to the with the related, but distinct, tests for forth guidance on filing a motion for scope of the count, claim benefit of a disclosure for the purposes judgment of no interference-in-fact. The correspondence, and accorded benefit. of 35 U.S.C. 119, 120, 121, and 365. proposed rule would require a showing Motions under proposed § 41.208(c)(3) Note that a constructive reduction to that the test for an interference under attacking the patentability of claimed practice relates to the count, not a claim. proposed § 41.203(a) is not met. The subject matter within the scope of the Moreover, the showing for a showing must be for all claims because count might also fall within this constructive reduction to practice a single claim of each party is sufficient category if they have the effect of would generally be narrower because to support the Director’s opinion that an narrowing the count. only a single embodiment is necessary interference exists in fact. Proposed § 41.208(c)(4) would set to anticipate a count. By contrast, § 120 Proposed § 41.208(c)(2) would set forth guidance for some common incorporates the requirements of 35 forth guidance on filing a motion for motions to change the count. If the U.S.C. 112[1], which include disclosure judgment that a patentee is entitled to count changes, no change in accorded of sufficient embodiments to support repose under 35 U.S.C. 135(b). Section benefit will be presumed; it would have the full scope of a claim. See Cromlish to be established in a contingent motion 135(b) has two aspects. It is a statute of v. D.Y., 57 USPQ2d 1318 (BPAI 2000) to change benefit. Proposed repose, Berman v. Housey, 291 F.3d (discussing this difference). § 41.208(c)(4)(i) would restate the 1345, 1351, 63 USPQ2d 1023, 1027 Proposed § 41.208(c)(7) would permit requirement of Rule 637(c)(1)(v) to show (Fed. Cir. 2002), and a statutory bar, In the Board to require additional that counts are separately patentable. re McGrew, 120 F.3d 1236, 1238–39, 43 showings. For example if a party had Proposed § 41.208(c)(4)(ii)(C) would USPQ2d 1632, 1635 (Fed. Cir. 1997). As copied a claim and during the codify the practice in Louis v. Okada, 59 a statute of repose, it presents a interference proposed to argue that its USPQ2d 1073, 1076 (BPAI 2001), which threshold issue; otherwise, it is simply opponent’s claim was indefinite under required a movant seeking to broaden a an attack on patentability. To be a 35 U.S.C. 112[2], the Board could count to cover its best proof of priority require the movant to explain why its threshold issue, the motion must satisfy to proffer that proof so the Board could two conditions. First, the party moving copied claim was not also indefinite. evaluate the merits of the motion. Proposed § 41.208(d) would require for repose must be the patentee or Proposed § 41.208(c)(5) would set published applicant entitled to repose the use of claim charts whenever a forth guidance for parties moving to claim is being compared to something under the statute. Second, it must apply change claim correspondence. Proposed (possibly in combination with other else. Claim charts are often the most § 41.208(c)(5)(i) would require that any effective way to present the comparison threshold issues) to all of an opponent’s added claim be patentable and involved claims; otherwise, the convincingly. Claim charts would not, correspond to the count. A motion to however, be a substitute for argument interference would continue whether add a claim that did not correspond to the motion is granted or not. If either since the comparison would generally the count would in effect be a request require additional explanation. The condition is not met, the motion would for an advisory action, which the Board be treated as a motion for proposed rule would refer to a ‘‘paper’’ would not ordinarily give. A patentee rather than a ‘‘motion’’ because such unpatentability, but not as a threshold could not use a reissue application to comparisons can arise in oppositions issue. circumvent this requirement that all and even replies. Proposed § 41.208(c)(3) would set claims in an interference must forth general guidance for attacking correspond to the count. Winter v. Regulatory Flexibility Act patentability. This guidance would Fujita, 53 USPQ2d 1234, 1249 (BPAI The Deputy General Counsel for apply to a non-threshold motion 1999). The proposed rule could be used General Law of the United States Patent alleging unpatentability under 35 U.S.C. to compel an opponent to add a claim and Trademark Office has certified to 135(b) in view of non-party’s patent or to its involved application or patent. the Chief Counsel for Advocacy of the published application. A motion Note that patentee cannot be literally Small Business Administration under attacking patentability could be a compelled to file a reissue application the provisions of section 605(b) of the threshold issue (e.g., an attack on the for any reason, including to add a claim. Regulatory Flexibility Act that this written description of a copied claim), Green v. Rich Iron Co., 944 F.2d 852, proposed rule making will not have a an effort to change the count (by 854, 20 USPQ2d 1075, 1076–77 (Fed. significant economic impact on a showing that claims within the scope of Cir. 1991). The consequence of an substantial number of small entities. the count are not patentable over prior opponent’s refusal to add a claim, art), or a priority issue, depending on however, may be a concession of Executive Order 13132 the claims attacked and the basis for the priority with respect to the subject This rule making does not contain attack. Note that because counts would matter that the patentee refuses to add. policies with federalism implications continue to be used, the Board would See Rule 605(a); cf. In re Ogiue, 517 sufficient to warrant preparation of a continue the practice of ordinarily F.2d at 1390, 186 USPQ at 235 (an Federalism Assessment under Executive either not authorizing the filing of, or applicant surrenders the subject matter Order 13132 (Aug. 4, 1999). deferring any decision on, a of a claim it refuses to copy); proposed patentability motion that raises § 41.202(c). The remainder of proposed Executive Order 12866 questions of priority or derivation § 41.208(c)(5) would restate the This rule making has been determined during the first part of the interference. correspondence test in terms of a one- to be not significant for purposes of Generally motions attacking way test for patentability in which the Executive Order 12866 (Sept. 30, 1993). patentability under 35 U.S.C. 102(a), subject matter of the count is used as the 102(e), 102(f), or 102(g) will be deferred, primary reference. Paperwork Reduction Act in whole or in part. This practice does Proposed § 41.208(c)(6) would restate This proposed rule involves not, however, relieve a party of its the test for according benefit of an information collection requirements

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which are subject to review by the patents in subpart D, §§ 1.501 to 1.570; decision is made public over its Office of Management and Budget of extension of patent term in subpart F, objection. See § 2.27 for trademark (OMB) under the Paperwork Reduction §§ 1.710 to 1.785; of inter partes applications. Act of 1995 (44 U.S.C. 3501 et seq.). reexaminations of patents in subpart H, * * * * * Currently approved forms include §§ 1.902 to 1.997; and of the Board of 9. In § 1.17, remove and reserve PTO/SB/31 (Notice of appeal) and PTO/ Patent Appeals and Interferences in part paragraphs (b)–(d), and revise paragraph SB/32 (Request for hearing), both of 41 of this title. (h) to read as follows: which were cleared under the OMB * * * * * 0651–0031 collection, which will expire § 1.17 Patent application and at the end of July 2006. § 1.5 [Amended] reexamination processing fees. Notwithstanding any other provision 4. Remove and reserve § 1.5(e). * * * * * of law, no person is required to respond (h) For filing a petition under one of to nor shall a person be subject to a § 1.6 [Amended] the following sections which refers to penalty for failure to comply with a 5. Remove and reserve § 1.6(d)(9). this paragraph: $130.00. § 1.12—for access to an assignment collection of information subject to the § 1.8 [Amended] requirements of the Paperwork record. Reduction Act unless that collection of 6. Remove and reserve § 1.8(a)(2)(i)(B) § 1.14—for access to an application. information displays a currently valid and (a)(2)(i)(C). § 1.47—for filing by other than all the OMB control number. 7. In § 1.9, revise paragraph (g) to read inventors or a person not the inventor. as follows: § 1.53(e)—to accord a filing date. List of Subjects § 1.9 Definitions. § 1.59—for expungement and return 37 CFR Part 1 of information. * * * * * § 1.84—for accepting color drawings Administrative practice and (g) For definitions in Board of Patent or photographs. procedure, Biologics, Courts, Freedom Appeals and Interferences proceedings, § 1.91—for entry of a model or of information, Inventions and patents, see part 41 of this title. exhibit. Reporting and recordkeeping * * * * * § 1.102—to make an application requirements, Small businesses. 8. In § 1.14, revise paragraph (e) to special. 37 CFR Part 5 read as follows: § 1.103(a)—to suspend action in an application. Classified information, Exports, § 1.14 Patent applications preserved in confidence. § 1.138(c)—to expressly abandon an Foreign relations, Inventions and application to avoid publication. patents. * * * * * § 1.182—for decision on a question (e) Decisions on petition. (1) Any 37 CFR Part 41 not specifically provided for. decision on petition is available for § 1.183—to suspend the rules. Administrative practice and public inspection without applicant’s or § 1.295—for review of refusal to procedure, Inventions and patents, patent owner’s permission if rendered publish a statutory invention Lawyers. in a file open to the public pursuant to registration. For the reasons stated in the § 1.11 or in an application that has been § 1.313—to withdraw an application preamble, the Under Secretary of published in accordance with §§ 1.211 from issue. Commerce for Intellectual Property and through 1.221. The Office may § 1.314—to defer issuance of a patent. Director of the United States Patent and independently publish any decision that § 1.377—for review of decision Trademark Office proposes to amend 37 is available for public inspection. refusing to accept and record payment CFR chapter I as follows: (2) Any decision on petition not of a maintenance fee filed prior to publishable under paragraph (e)(1) of expiration of a patent. PART 1—RULES OF PRACTICE IN this section may be published or made § 1.378(e)—for reconsideration of PATENT CASES available for public inspection if the decision on petition refusing to accept 1. The authority citation for Part 1 Director believes that special delayed payment of maintenance fee in continues to read as follows: circumstances warrant publication and an expired patent. the applicant does not, within two § 1.741(b)—to accord a filing date to Authority: 35 U.S.C. 2(b)(2), unless months after being notified of the otherwise noted. an application under § 1.740 for intention to make the decision public, extension of a patent term. § 1.1 [Amended] object in writing on the ground that the § 5.12—for expedited handling of a 2. Remove and reserve § 1.1(a)(1)(iii). decision discloses a trade secret or other foreign filing license. 3. In § 1.4, revise paragraph (a)(2) to confidential information and states that § 5.15—for changing the scope of a read as follows: such information is not otherwise license. publicly available. If a decision § 5.25—for retroactive license. § 1.4 Nature of correspondence and discloses such information, the § 104.3—for waiver of a rule in Part signature requirements. applicant shall identify the deletions in 104 of this title. (a) * * * the text of the decision considered * * * * * (2) Correspondence in and relating to necessary to protect the information. If 10. Revise § 1.36 to read as follows: a particular application or other the applicant considers that the entire proceeding in the Office. See decision must be withheld from the § 1.36 Revocation of power of attorney; particularly the rules relating to the public to protect such information, the withdrawal of patent attorney or agent. filing, processing, or other proceedings applicant must explain why. The (a) A power of attorney, pursuant to of national applications in subpart B, applicant will be given time, not less § 1.32(b), may be revoked at any stage in §§ 1.31 to 1.378; of international than twenty days, to request the proceedings of a case by the applications in subpart C, §§ 1.401 to reconsideration and seek court review applicant for patent (§ 1.41(b)) or the 1.499; of ex parte reexaminations of before any contested portion of a assignee of the entire interest. A

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registered patent attorney or patent (1) A request to correct the (4) The processing fee set forth in agent will be notified of the revocation inventorship that sets forth the desired § 1.17(i); and of the power of attorney. Where power inventorship change; (5) If an assignment has been executed of attorney is given to the patent (2) A statement from each person by any of the original named inventors, practitioners associated with a Customer being added as an inventor and from the written consent of the assignee (see Number (§ 1.32(b)(2)(iii)), the each person being deleted as an § 3.73(b) of this chapter). practitioners so appointed will also be inventor that the error in inventorship * * * * * notified of the revocation of the power occurred without deceptive intention on (i) Correction of inventorship in of attorney when the power of attorney his or her part; patent. See § 1.324 for correction of to the practitioners associated with the (3) An oath or declaration by the inventorship in a patent. Customer Number is revoked. The actual inventor or inventors as required (j) Correction of inventorship in a notice of revocation will be mailed to by § 1.63 or as permitted by §§ 1.42, 1.43 contested case before the Board of the correspondence address for the or § 1.47; Patent Appeals and Interferences. In a application (§ 1.33) in effect before the (4) The processing fee set forth in contested case under part 41, subpart D, revocation. An assignment will not of § 1.17(i); and of this title, a request for correction of itself operate as a revocation of a power (5) If an assignment has been executed an application must be in the form of a previously given, but the assignee of the by any of the original named inventors, motion under § 41.121(a)(2) of this title entire interest may revoke previous the written consent of the assignee (see and must comply with the requirements powers and give another power of § 3.73(b) of this chapter). of this section. 12. In § 1.55, revise paragraphs (a)(3) attorney as provided in § 1.32(b) of the (b) Nonprovisional application—fewer and (a)(4) to read as follows: assignee’s own selection. See § 41.5 of inventors due to amendment or this title for proceedings before the cancellation of claims. If the correct § 1.55 Claim for foreign priority. Board of Patent Appeals and inventors are named in a nonprovisional (a) * * * Interferences. application, and the prosecution of the (3) The Office may require that the nonprovisional application results in (b) A registered patent attorney or claim for priority and the certified copy the amendment or cancellation of patent agent who has been given a of the foreign application be filed earlier claims so that fewer than all of the power of attorney pursuant to § 1.32(b) than provided in paragraphs (a)(1) or currently named inventors are the actual may withdraw upon application to and (a)(2) of this section: inventors of the invention being claimed approval by the Director. The applicant (i) When the application becomes in the nonprovisional application, an or patent owner will be notified of the involved in an interference (see § 41.202 amendment must be filed requesting withdrawal of the registered patent of this title), deletion of the name or names of the attorney or patent agent. Where power (ii) When necessary to overcome the person or persons who are not inventors of attorney is given to the patent date of a reference relied upon by the of the invention being claimed. practitioners associated with a Customer examiner, or Amendment of the inventorship (iii) When deemed necessary by the Number, a request to delete all of the requires: examiner. patent practitioners associated with the (1) A request, signed by a party set (4)(i) An English language translation Customer Number may not be granted if forth in § 1.33(b), to correct the of a non-English language foreign an applicant has given power of inventorship that identifies the named application is not required except: attorney to the patent practitioners inventor or inventors being deleted and (A) When the application is involved associated with the Customer Number acknowledges that the inventor’s in an interference (see § 41.202 of this and insufficient time remains for the invention is no longer being claimed in title), applicant to file a reply. See § 41.5(c) of the nonprovisional application; and (B) When necessary to overcome the this title for withdrawal in a proceeding (2) The processing fee set forth in date of a reference relied upon by the before the Board of Patent Appeals and § 1.17(i). examiner, or Interferences. (c) Nonprovisional application— (C) When specifically required by the 11. Amend § 1.48 to revise paragraphs inventors added for claims to previously examiner. (a)–(c) and (i), and to add paragraph (j), unclaimed subject matter. If a (ii) If an English language translation to read as follows: nonprovisional application discloses is required, it must be filed together unclaimed subject matter by an inventor with a statement that the translation of § 1.48 Correction of inventorship in a or inventors not named in the the certified copy is accurate. patent application, other than a reissue * * * * * application, pursuant to 35 U.S.C. 116. application, the application may be amended to add claims to the subject 13. In § 1.59, revise paragraph (a)(1) to (a) Nonprovisional application after matter and name the correct inventors read as follows: oath/declaration filed. If the inventive for the application. Amendment of the § 1.59 Expungement of information or entity is set forth in error in an executed inventorship requires: copy of papers in application file. § 1.63 oath or declaration in a (1) A request to correct the (a)(1) Information in an application nonprovisional application, and such inventorship that sets forth the desired will not be expunged and returned, error arose without any deceptive inventorship change; except as provided in paragraph (b) of intention on the part of the person (2) A statement from each person this section or § 41.7(a) of this title. named as an inventor in error or on the being added as an inventor that the * * * * * part of the person who through error addition is necessitated by amendment 14. In § 1.103, revise paragraph (g) to was not named as an inventor, the of the claims and that the inventorship read as follows: inventorship of the nonprovisional error occurred without deceptive application may be amended to name intention on his or her part; § 1.103 Suspension of action by the Office. only the actual inventor or inventors. (3) An oath or declaration by the * * * * * Amendment of the inventorship actual inventors as required by § 1.63 or (g) Statutory invention registration. requires: as permitted by §§ 1.42, 1.43, or § 1.47; The Office will suspend action by the

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Office for the entire pendency of an will be entered and considered. If an or an action closing prosecution application if the Office has accepted a applicant files a request for continued (§ 1.949) in an inter partes request to publish a statutory invention examination under this section after reexamination filed under § 1.913 may registration in the application, except appeal, but prior to a decision on the not cancel claims where such for purposes relating to patent appeal, it will be treated as a request to cancellation affects the scope of any interference proceedings under part 41, withdraw the appeal and to reopen other pending claim in the subpart D, of this title. prosecution of the application before the reexamination proceeding except as 15. Revise § 1.112 to read as follows: examiner. An appeal brief (§ 41.37 of provided in § 1.981 or as permitted by this title) or a reply brief (§ 41.41 of this § 41.77(b)(1). § 1.112 Reconsideration before final action. title), or related papers, will not be (e) An affidavit or other evidence considered a submission under this submitted after a final rejection or other After reply by applicant or patent section. final action (§ 1.113) in an application owner (§ 1.111 or § 1.945) to a non-final or in an ex parte reexamination filed action and any comments by an inter * * * * * 18. Revise § 1.116 to read as follows: under § 1.510, or an action closing partes reexamination requester (§ 1.947), prosecution (§ 1.949) in an inter partes the application or the patent under § 1.116 Amendments and affidavits or reexamination filed under § 1.913 but reexamination will be reconsidered and other evidence after final action. before or with any appeal (§ 41.31 or again examined. The applicant, or in the (a) An amendment after final action § 41.61), may be admitted upon a case of a reexamination proceeding the must comply with § 1.114 or this showing of good and sufficient reasons patent owner and any third party section. why the affidavit or other evidence is requester, will be notified if claims are (b) After a final rejection or other final necessary and was not earlier presented. rejected, objections or requirements action (§ 1.113) in an application or in (f) Notwithstanding the provisions of made, or decisions favorable to an ex parte reexamination filed under paragraph (e) of this section, no affidavit patentability are made, in the same § 1.510, or an action closing prosecution or other evidence can be made in an manner as after the first examination (§ 1.949) in an inter partes inter partes reexamination proceeding (§ 1.104). Applicant or patent owner reexamination filed under § 1.913, but after the right of appeal notice under may reply to such Office action in the before or with any appeal (§ 41.31 or § 1.953 except as provided in § 1.981 or same manner provided in § 1.111 or § 41.61). as permitted by § 41.77(b)(1). § 1.945, with or without amendment, (1) An amendment may be made (g) After decision on appeal, unless such Office action indicates that canceling claims or complying with any amendments, affidavits and other it is made final (§ 1.113) or an appeal requirement of form expressly set forth evidence can only be made as provided (§ 41.31 of this title) has been taken in a previous Office action; in §§ 1.198 and 1.981, or to carry into (§ 1.116), or in an inter partes (2) An amendment presenting rejected effect a recommendation under reexamination, that it is an action claims in better form for consideration § 41.50(c). closing prosecution (§ 1.949) or a right on appeal may be admitted; of appeal notice (§ 1.953). (3) An amendment touching the 19. In § 1.131, revise paragraph (a)(1) 16. In § 1.113, revise paragraph (a) to merits of the application or patent under to read as follows: read as follows: reexamination may be admitted upon a § 1.131 Affidavit or declaration of prior showing of good and sufficient reasons invention. § 1.113 Final rejection or action. why the amendment is necessary and (a) * * * (a) On the second or any subsequent was not earlier presented. examination or consideration by the (c) The admission of, or refusal to (1) The rejection is based upon a U.S. examiner the rejection or other action admit, any amendment after a final patent or U.S. patent application may be made final, whereupon rejection, a final action, an action publication of a pending or patented applicants, or for ex parte closing prosecution, or any related application to another or others that reexaminations filed under § 1.510, proceedings will not operate to relieve claims interfering subject matter as patent owner’s reply is limited to appeal the application or reexamination defined in § 41.203(a) of this title, in in the case of rejection of any claim proceeding from its condition as subject which case an applicant may suggest an (§ 41.31 of this title), or to amendment to appeal or to save the application from interference pursuant to § 41.202(a); or as specified in § 1.114 or § 1.116. abandonment under § 1.135, or the * * * * * Petition may be taken to the Director in reexamination prosecution from 20. In § 1.136, revise paragraphs (a)(1), the case of objections or requirements termination under § 1.550(d) or (a)(2), and (b) to read as follows: not involved in the rejection of any § 1.957(b) or limitation of further § 1.136 Extensions of time. claim (§ 1.181). Reply to a final rejection prosecution under § 1.957(c). or action must comply with § 1.114 or (d)(1) Notwithstanding the provisions (a)(1) If an applicant is required to paragraph (c) of this section. For final of paragraph (b) of this section, no reply within a nonstatutory or shortened actions in an inter partes reexamination amendment other than canceling claims, statutory time period, applicant may filed under § 1.913, see § 1.953. where such cancellation does not affect extend the time period for reply up to the earlier of the expiration of any * * * * * the scope of any other pending claim in 17. In § 1.114, revise paragraph (d) to the proceeding, can be made in an inter maximum period set by statute or five read as follows: partes reexamination proceeding after months after the time period set for the right of appeal notice under § 1.953 reply, if a petition for an extension of § 1.114 Request for continued except as provided in § 1.981 or as time and the fee set in § 1.17(a) are filed, examination. permitted by § 41.77(b)(1). unless: * * * * * (2) Notwithstanding the provisions of (i) Applicant is notified otherwise in (d) If an applicant timely files a paragraph (b) of this section, an an Office action; submission and fee set forth in § 1.17(e), amendment made after a final rejection (ii) The reply is a reply brief the Office will withdraw the finality of or other final action (§ 1.113) in an ex submitted pursuant to § 41.41 of this any Office action and the submission parte reexamination filed under § 1.510, title;

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(iii) The reply is a request for an oral circumstances. For petitions involving primary examiner except under the hearing submitted pursuant to § 41.47(a) action of the Board of Patent Appeals provisions of § 1.114 or § 41.50 without of this title; and Interferences, see § 41.3 of this title. the written authority of the Director, (iv) The reply is to a decision by the * * * * * and then only for the consideration of Board of Patent Appeals and 22. Revise § 1.191 to read as follows: matters not already adjudicated, Interferences pursuant to § 1.304 or to sufficient cause being shown. § 41.50 or § 41.52 of this title; or § 1.191 Appeal to Board of Patent Appeals 26. In § 1.248, revise paragraph (c) to (v) The application is involved in a and Interferences. read as follows: contested case (§ 41.101(a) of this title). Appeals to the Board of Patent (2) The date on which the petition Appeals and Interferences under 35 § 1.248 Service of papers; manner of service; proof of service in cases. and the fee have been filed is the date U.S.C. 134(a) and (b) are conducted for purposes of determining the period according to part 41, subpart B, of this * * * * * of extension and the corresponding title. (c) See § 41.105(f) of this title for amount of the fee. The expiration of the service of papers in contested cases §§ 1.192–1.196 [Removed and reserved] before the Board of Patent Appeals and time period is determined by the 23. Remove and reserve §§ 1.192– amount of the fee paid. A reply must be Interferences. 1.196. 27. In § 1.292, revise paragraphs (a) filed prior to the expiration of the 24. Revise § 1.197 to read as follows: period of extension to avoid and (c) to read as follows: abandonment of the application § 1.197 Return of Jurisdiction from the § 1.292 Public use proceedings. (§ 1.135), but in no situation may an Board of Patent Appeals and Interferences; termination of proceedings. (a) When a petition for the institution applicant reply later than the maximum of public use proceedings, supported by (a) Jurisdiction over an application or time period set by statute, or be granted affidavits or declarations is found, on patent under ex parte reexamination an extension of time under paragraph reference to the examiner, to make a proceeding passes to the examiner after (b) of this section when the provisions prima facie showing that the invention a decision by the Board of Patent of this paragraph are available. See claimed in an application believed to be Appeals and Interferences upon § 1.304 for extensions of time to appeal on file had been in public use or on sale transmittal of the file to the examiner, to the U.S. Court of Appeals for the more than one year before the filing of subject to appellant’s right of appeal or Federal Circuit or to commence a civil the application, a hearing may be had other review, for such further action by action; § 1.550(c) for extensions of time before the Director to determine appellant or by the examiner, as the in ex parte reexamination proceedings, whether a public use proceeding should condition of the application or patent § 1.956 for extensions of time in inter be instituted. If instituted, the Director under ex parte reexamination partes reexamination proceedings; and may designate an appropriate official to proceeding may require, to carry into §§ 41.4(a) and 41.121(a)(3) of this title conduct the public use proceeding, effect the decision of the Board of Patent for extensions of time in contested cases including the setting of times for taking Appeals and Interferences. before the Board of Patent Appeals and testimony, which shall be taken as Interferences. (b) Proceedings on an application are considered terminated by the dismissal provided by part 41, subpart D, of this * * * * * title. The petitioner will be heard in the (b) When a reply cannot be filed of an appeal or the failure to timely file an appeal to the court or a civil action proceedings but after decision therein within the time period set for such reply will not be heard further in the and the provisions of paragraph (a) of (§ 1.304) except: Where claims stand allowed in an application; or where the prosecution of the application for this section are not available, the period patent. for reply will be extended only for nature of the decision requires further action by the examiner. The date of * * * * * sufficient cause and for a reasonable (c) A petition for institution of public time specified. Any request for an termination of proceedings on an application is the date on which the use proceedings shall not be filed by a extension of time under this paragraph party to an interference as to an must be filed on or before the day on appeal is dismissed or the date on which the time for appeal to the court application involved in the interference. which such reply is due, but the mere Public use and on sale issues in an filing of such a request will not affect or review by civil action (§ 1.304) expires. If an appeal to the court or a interference shall be raised by a motion any extension under this paragraph. In under § 41.121(a)(1) of this title. no situation can any extension carry the civil action has been filed, proceedings on an application are considered 28. In § 1.295, revise paragraph (b) to date on which reply is due beyond the read as follows: maximum time period set by statute. terminated when the appeal or civil See § 1.304 for extensions of time to action is terminated. An appeal to the § 1.295 Review of decision finally refusing appeal to the U.S. Court of Appeals for U.S. Court of Appeals for the Federal to publish a statutory invention registration. Circuit is terminated when the mandate the Federal Circuit or to commence a * * * * * civil action; § 1.550(c) for extensions of is issued by the Court. A civil action is (b) Any requester who is dissatisfied time in ex parte reexamination terminated when the time to appeal the with a decision finally rejecting claims proceedings; and § 1.956 for extensions judgment expires. pursuant to 35 U.S.C. 112 may obtain 25. Revise § 1.198 to read as follows: of time in inter partes reexamination review of the decision by filing an proceedings. § 1.198 Reopening after a final decision of appeal to the Board of Patent Appeals * * * * * the Board of Patent Appeals and and Interferences pursuant to § 41.31 of 21. In § 1.181, revise paragraph (a)(3) Interferences. this title. If the decision rejecting claims to read as follows: When a decision by the Board of pursuant to 35 U.S.C. 112 is reversed, Patent Appeals and Interferences on the request for a statutory invention § 1.181 Petition to the Director. appeal has become final for judicial registration will be approved and the (a) * * * review, prosecution of the proceeding registration published if all of the other (3) To invoke the supervisory before the primary examiner will not be provisions of § 1.293 and this section authority of the Director in appropriate reopened or reconsidered by the are met.

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29. In § 1.302, revise paragraph (b) to § 1.323 Certificate of correction of may set. For concurrent inter partes read as follows: applicant’s mistake. reexamination and interference of a The Office may issue a certificate of patent, see § 1.993. § 1.302 Notice of appeal. correction under the conditions * * * * * specified in 35 U.S.C. 255 at the request §§ 1.601–1.690 (Subpart E) [Removed and reserved] (b) In interferences, the notice must be of the patentee or the patentee’s served as provided in § 41.106(f) of this assignee, upon payment of the fee set 36. Remove and reserve subpart E, title. forth in § 1.20(a). If the request relates consisting of §§ 1.601 through 1.690, of * * * * * to a patent involved in an interference, part 1. 30. In § 1.303, revise paragraph (c) to the request must comply with the 37. In § 1.701, revise paragraph read as follows: requirements of this section and be (c)(2)(ii) to read as follows: accompanied by a motion under § 1.701 Extension of patent term due to § 1.303 Civil action under 35 U.S.C. 145, § 41.121(a)(2) of this title. examination delay under the Uruguay 146, 306. 34. In § 1.324, revise paragraphs (a) Round Agreements Act (original * * * * * and (c), and add paragraph (d), to read applications, other than designs, filed on or (c) A notice of election under 35 as follows: after June 8, 1995, and before May 29, U.S.C. 141 to have all further 2000). proceedings on review conducted as § 1.324 Correction of inventorship in patent, pursuant to 35 U.S.C. 256. * * * * * provided in 35 U.S.C. 146 must be filed (c) * * * with the Office of the Solicitor and (a) Whenever through error a person (2) * * * served as provided in § 41.106(f) of this is named in an issued patent as the (ii) The number of days, if any, in the title. inventor, or through error an inventor is period beginning on the date of mailing not named in an issued patent and such * * * * * of an examiner’s answer under § 41.39 error arose without any deceptive 31. In § 1.304, revise paragraphs (a)(1) of this title in the application under intention on his or her part, the Director and (a)(2) to read as follows: secrecy order and ending on the date the may, on petition, or on order of a court secrecy order and any renewal thereof § 1.304 Time for appeal or civil action. before which such matter is called in was removed; (a)(1) The time for filing the notice of question, issue a certificate naming only the actual inventor or inventors. A * * * * * appeal to the U.S. Court of Appeals for 38. In § 1.703, revise paragraphs (a)(4), the Federal Circuit (§ 1.302) or for petition to correct inventorship of a patent involved in an interference must (b)(3)(ii), (b)(4), (d)(2), and (e) to read as commencing a civil action (§ 1.303) is follows: two months from the date of the comply with the requirements of this decision of the Board of Patent Appeals section and must be accompanied by a § 1.703 Period of adjustment of patent and Interferences. If a request for motion under § 41.121(a)(2) of this title. term due to examination delay. rehearing or reconsideration of the * * * * * (a) * * * decision is filed within the time period (c) For correction of inventorship in (4) The number of days, if any, in the provided under § 41.52(a), § 41.79(a), or an application, see §§ 1.48 and 1.497, period beginning on the day after the § 41.127(d) of this title, the time for and in a contested case before the Board date that is four months after the date filing an appeal or commencing a civil of Patent Appeals and Interferences, see an appeal brief in compliance with action shall expire two months after § 41.121(a)(2) of this title. § 41.37 of this title was filed and ending action on the request. In contested cases (d) Correction of inventorship in a on the date of mailing of any of an before the Board of Patent Appeals and contested case before the Board of examiner’s answer under § 41.39 of this Interferences, the time for filing a cross- Patent Appeals and Interferences. In a title, an action under 35 U.S.C. 132, or appeal or cross-action expires: contested case under part 41, subpart D, a notice of allowance under 35 U.S.C. (i) Fourteen days after service of the of this title, a request for correction of 151, whichever occurs first; notice of appeal or the summons and a patent must be in the form of a motion * * * * * complaint; or under § 41.121(a)(2) of this title. (b) * * * (ii) Two months after the date of 35. In § 1.565, revise paragraph (e) to (3) * * * decision of the Board of Patent Appeals read as follows: (ii) The number of days, if any, in the and Interferences, whichever is later. § 1.565 Concurrent Office proceedings period beginning on the date of mailing (2) The time periods set forth in this which include an ex parte reexamination of an examiner’s answer under § 41.39 section are not subject to the provisions proceeding. of this title in the application under of § 1.136, § 1.550(c), or § 1.956, or of * * * * * secrecy order and ending on the date the § 41.4 of this title. (e) If a patent in the process of ex secrecy order was removed; * * * * * parte reexamination is or becomes * * * * * 32. In § 1.322, revise paragraph (a)(3) involved in an interference, the Director (4) The number of days, if any, in the to read as follows: may suspend the reexamination or the period beginning on the date on which interference. The Director will not a notice of appeal to the Board of Patent § 1.322 Certificate of correction of Office consider a request to suspend an Appeals and Interferences was under 35 mistake. interference unless a motion U.S.C. 134 and § 41.31 of this title and (a) * * * (§ 41.121(a)(3) of this title) to suspend ending on the date of the last decision (3) If the request relates to a patent the interference has been presented to, by the Board of Patent Appeals and involved in an interference, the request and denied by, an administrative patent Interferences or by a Federal court in an must comply with the requirements of judge, and the request is filed within ten appeal under 35 U.S.C. 141 or a civil this section and be accompanied by a (10) days of a decision by an action under 35 U.S.C. 145, or on the motion under § 41.121(a)(2) of this title. administrative patent judge denying the date of mailing of either an action under * * * * * motion for suspension or such other 35 U.S.C. 132, or a notice of allowance 33. Revise § 1.323 to read as follows: time as the administrative patent judge under 35 U.S.C. 151, whichever occurs

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first, if the appeal did not result in a §§ 1.961–1.977 [Removed and reserved] PART 5—SECRECY OF CERTAIN decision by the Board of Patent Appeals 41. Remove and reserve §§ 1.961– INVENTIONS AND LICENSES TO and Interferences. 1.977. EXPORT AND FILE APPLICATIONS IN * * * * * 42. Revise § 1.979 to read as follows: FOREIGN COUNTRIES (d) * * * § 1.979 Return of Jurisdiction from the 45. The authority citation for Part 5 (2) The number of days, if any, in the Board of Patent Appeals and Interferences; continues to read as follows: period beginning on the date of mailing termination of proceedings. (a) Jurisdiction over an inter partes Authority: 35 U.S.C.2(b)(2), 41, 181–188, as of an examiner’s answer under § 41.39 amended by the patent Law Foreign Filing of this title in the application under reexamination proceeding passes to the Amendments Act of 1988, Pub. L. 100–418, secrecy order and ending on the date the examiner after a decision by the Board 102 Stat. 1567; the Arms Export Control Act, secrecy order was removed; of Patent Appeals and Interferences as amended, 22 U.S.C. 2751 et seq.; the * * * * * upon transmittal of the file to the Atomic Energy Act of 1954, as amended, 42 examiner, subject to each appellant’s U.S.CX. 2011 et seq.; the Nuclear Non (e) The period of adjustment under right of appeal or other review, for such Proliferation Act of 1978, 22 U.S.C. 3201 et § 1.702(e) is the sum of the number of further action as the condition of the seq.; and the delegations in the regulations days, if any, in the period beginning on inter partes reexamination proceeding under these Acts of the Commissioner (15 the date on which a notice of appeal to may require, to carry into effect the CFR 3701.10(j), 22 CFR 125.04, and 10 CFR 810.7). the Board of Patent Appeals and decision of the Board of Patent Appeals Interferences was filed under 35 U.S.C. and Interferences. 45a. In § 5.3, revise paragraph (b) to 134 and § 41.31 of this title and ending (b) Upon termination of the appeal read as follows: on the date of a final decision in favor before the Board of Patent Appeals and of the applicant by the Board of Patent § 5.3 Prosecution of application under Interferences (§ 41.83), if no further secrecy orders; withholding patent. Appeals and Interferences or by a appeal has been taken (§ 1.983), the Federal court in an appeal under 35 inter partes reexamination proceeding * * * * * U.S.C. 141 or a civil action under 35 will be terminated and the Director will (b) An interference will not be U.S.C. 145. issue a certificate under § 1.997 declared involving a national * * * * * terminating the proceeding. If an appeal application under secrecy order. An 39. In § 1.704, revise paragraph (c)(9) to the U.S. Court of Appeals for the applicant whose application is under to read as follows: Federal Circuit has been filed, that secrecy order may suggest an appeal is considered terminated when interference (§ 41.202(a)), but the Office § 1.704 Reduction of period of adjustment the mandate is issued by the Court. will not act on the request while the of patent term. 43. Revise § 1.981 to read as follows: application remains under a secrecy * * * * * order. § 1.981 Reopening after a final decision of * * * * * (c) * * * the Board of Patent Appeals and (9) Submission of an amendment or Interferences. PART 10—REPRESENTATION OF other paper after a decision by the Board When a decision by the Board of OTHERS BEFORE THE PATENT AND of Patent Appeals and Interferences, Patent Appeals and Interferences on TRADEMARK OFFICE other than a decision designated as appeal has become final for judicial containing a new ground of rejection review, prosecution of the inter partes 46. The authority citation for Part 10 under § 41.50(b) of this title or statement reexamination proceeding will not be continues to read as follows: under § 41.50(c) of this title, or a reopened or reconsidered by the Authority: 5 U.S.C. 500, 15 U.S.C. 1123; 35 decision by a Federal court, less than primary examiner except under the U.S.C. 2(b)(2), 31, 32, 41. one month before the mailing of an provisions of § 41.77 without the Office action under 35 U.S.C. 132 or 46a. In § 10.23, revise paragraph (c)(7) written authority of the Director, and to read as follows: notice of allowance under 35 U.S.C. 151 then only for the consideration of that requires the mailing of a matters not already adjudicated, § 10.23 Misconduct. supplemental Office action or sufficient cause being shown. * * * * * supplemental notice of allowance, in 44. Revise § 1.993 to read as follows: (c) * * * which case the period of adjustment set (7) Knowingly withholding from the forth in § 1.703 shall be reduced by the § 1.993 Suspension of concurrent Office information identifying a patent lesser of: interference and inter partes reexamination proceeding. or patent application of another from (i) The number of days, if any, If a patent in the process of inter which one or more claims have been beginning on the day after the mailing partes reexamination is or becomes copied. See § 41.202(a)(1) of this title. date of the original Office action or involved in an interference, the Director * * * * * notice of allowance and ending on the may suspend the inter partes 47. Add part 41 to read as follows: mailing date of the supplemental Office reexamination or the interference. The action or notice of allowance; or Director will not consider a request to PART 41—PRACTICE BEFORE THE (ii) Four months; suspend an interference unless a motion BOARD OF PATENT APPEALS AND * * * * * under § 41.121(a)(3) of this title to INTERFERENCES 40. Revise § 1.959 to read as follows: suspend the interference has been Subpart A—General Provisions presented to, and denied by, an § 1.959 Appeal in inter partes administrative patent judge and the Sec. reexamination. 41.1 Policy. request is filed within ten (10) days of 41.2 Definitions. Appeals to the Board of Patent a decision by an administrative patent 41.3 Petitions. Appeals and Interferences under 35 judge denying the motion for 41.4 Timeliness. U.S.C. 134(c) are conducted according suspension or such other time as the 41.5 Counsel. to part 41, subpart C, of this title. administrative patent judge may set. 41.6 Public availability of Board records.

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41.7 Management of the record. 41.156 Compelling testimony and Trademarks, and the administrative 41.8 Mandatory notices. production. patent judges. 41.9 Action by owner. 41.157 Taking testimony. Contested case means a Board 41.20 Fees. 41.158 Expert testimony; tests and data. proceeding other than an appeal under Subpart B—Ex parte Appeals to the Board Subpart E—Patent Interferences 35 U.S.C. 134 or a petition under § 41.3. 41.30 Definitions. 41.200 Procedure; pendency. An appeal in an inter partes 41.31 Appeal to Board. 41.201 Definitions. reexamination is not a contested case. 41.33 Amendments and affidavits or other 41.202 Suggesting an interference. Final means, with regard to a Board evidence after appeal. 41.203 Declaration. action, final for the purposes of judicial 41.35 Jurisdiction over appeal. 41.204 Notice of basis for relief. review. A decision is final only if: 41.37 Appeal brief. 41.205 Settlement agreements. (1) In a panel proceeding. The 41.39 Examiner’s answer. 41.206 Common interests in the invention. decision is rendered by a panel, 41.207 Presumptions. 41.41 Reply brief. disposes of all issues with regard to the 41.43 Examiner’s response to reply brief. 41.208 Content of substantive and 41.47 Oral hearing. responsive motions. party seeking judicial review, and does 41.50 Decisions and other actions by the not indicate that further action is Authority: 35 U.S.C. 2(b)(2), 3(a)(2)(A), 21, required; and Board. 23, 32, 41, 134, 135. 41.52 Rehearing. (2) In other proceedings. The decision 41.54 Action following decision. Subpart A—General Provisions disposes of all issues or the decision 41.56 Termination of appeal. states it is final. § 41.1 Policy. Subpart C—Inter Partes Appeals to the Hearing means consideration of the Board (a) Scope. This Part 41 governs issues of record. Rehearing means 41.60 Definitions. proceedings before the Board of Patent reconsideration. 41.61 Notice of appeal and cross appeal to Appeals and Interferences. Sections 1.1 Office means United States Patent and Board. to 1.36 and 1.181 to 1.183 of this title Trademark Office. 41.63 Amendments and affidavits or other also apply to practice before the Board, Panel means at least three Board evidence after appeal. as do other sections of part 1 of this title members acting in a panel proceeding. 41.64 Jurisdiction over appeal in inter that are cited in this part 41. Panel proceeding means a proceeding partes reexamination. (b) Construction. The provisions of in which final action is reserved by 41.66 Time for filing briefs. this Part 41 shall be construed to secure statute to at least three Board members, 41.67 Appellant’s brief. the just, speedy, and inexpensive but includes a non-final portion of such 41.68 Respondent’s brief. resolution of every proceeding before 41.69 Examiner’s answer. a proceeding whether administered by 41.71 Rebuttal brief. the Board. panel or not. 41.73 Oral hearing. (c) Decorum. Each party must act with Party, in this part, means any entity 41.77 Decisions and other actions by the courtesy and decorum in all participating in a Board proceeding, Board. proceedings before the Board, including other than officers and employees of the 41.79 Rehearing. interactions with other parties. Office, including: 41.81 Action following decision. (1) An appellant; 41.83 Termination of appeal. § 41.2 Definitions. Unless otherwise clear from the (2) A participant in a contested case; Subpart D—Contested Cases context, the following definitions apply (3) A petitioner; and 41.100 Definitions. to proceedings under this part: (4) Counsel for any of the above, 41.101 Notice of proceeding. Affidavit means affidavit, declaration where context permits. 41.102 Completion of examination. under § 1.68 of this title, or statutory 41.103 Jurisdiction over involved files. § 41.3 Petitions. declaration under 28 U.S.C. 1746. A 41.104 Conduct of contested case. (a) Deciding official. Petitions must be transcript of an ex parte deposition may 41.105 Ex parte communications. addressed to the Chief Administrative be used as an affidavit in a contested 41.106 Filing and service. Patent Judge. A panel or an 41.107 [Reserved]. case. administrative patent judge may certify 41.108 Lead counsel. Board means the Board of Patent 41.109 Access to and copies of Office Appeals and Interferences and includes: a question of policy to the Chief records. (1) For a final Board: Administrative Patent Judge for 41.110 Filing claim information. (i) In an appeal or contested case, a decision. The Chief Administrative 41.120 Notice of basis for relief. panel of the Board. Patent Judge may delegate authority to 41.121 Motions. (ii) In a proceeding under § 41.3, the decide petitions. 41.122 New arguments in opposition or Chief Administrative Patent Judge or (b) The following matters are not reply. another official acting under an express subject to petition: 41.123 Time for acting on motions. (1) Issues committed by statute to a 41.124 Oral argument. delegation from the Chief 41.125 Decisions on motions. Administrative Patent Judge. panel, and 41.126 Arbitration. (2) For non-final actions, a Board (2) In pending contested cases, 41.127 Judgment. member or employee acting with the procedural issues. See § 41.121(a)(3) and 41.128 Termination. authority of the Board. § 41.125(c). 41.129 Sanctions. Board member means the Under (c) Petition fee. The fee set in 41.150 Discovery. Secretary of Commerce for Intellectual § 41.20(a) must accompany any petition 41.151 Admissibility. Property and Director of the United under this section except no fee is 41.152 Applicability of the Federal Rules of States Patent and Trademark Office, the required for a petition under this section Evidence. seeking supervisory review. 41.153 Records of the United States Patent Deputy Under Secretary of Commerce and Trademark Office. for Intellectual Property and Deputy (d) Effect on proceeding. The filing of 41.154 Form of evidence. Director of the United States Patent and a petition does not stay the time for any 41.155 Objection; motion to exclude; Trademark Office, the Commissioner for other action in a Board proceeding. motion in limine. Patents, the Commissioner for (e) Time for action.

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(1) Except as otherwise provided in pursuant to § 1.11 of this title or in an affected by, the Board proceeding, this part or as the Board may authorize application that has been published in specifically including judicial review of in writing, a party may: accordance with §§ 1.211 through 1.221 the Board proceeding. (i) File the petition within 14 calendar of this title. The Office may days from the date of the action from independently publish any Board action § 41.9 Action by owner. which the party is requesting relief, and that is available for public inspection. (a) Entire interest. An owner of the (ii) File any request for (2) Determination of special entire interest in an application or reconsideration of a petition decision circumstances. Any Board action not patent involved in a Board proceeding within 14 calendar days of the decision publishable under paragraph (a)(1) of may act in the proceeding to the on petition or such other time as the this section may be published or made exclusion of the inventor (see § 3.73(b) Board may set. available for public inspection if the of this title). (2) A party may not file an opposition Director believes that special (b) Part interest. An owner of a part or a reply to a petition without Board circumstances warrant publication and interest in an application or patent authorization. a party does not, within two months involved in a Board proceeding may after being notified of the intention to petition to act in the proceeding to the § 41.4 Timeliness. make the action public, object in writing exclusion of an inventor or a co-owner. (a) Extensions of time. Extensions of on the ground that the action discloses The petition must show the inability or time will be granted only on a showing the objecting party’s trade secret or refusal of an inventor or co-owner to of good cause except as otherwise other confidential information and prosecute the proceeding or other cause provided by rule. states with specificity that such why it is in the interest of justice to (b) Late filings. Late filings will not be information is not otherwise publicly permit the owner of a part interest to act considered absent a showing of available. If the action discloses such in the proceeding. An order granting the excusable neglect or a Board information, the party shall identify the petition may set conditions on the determination that consideration on the deletions in the text of the action actions of the parties during the merits would be in the interest of considered necessary to protect the proceeding. justice. information. If the affected party § 41.20 Fees. (c) Scope. This section governs all considers that the entire action must be proceedings before the Board, but does (a) Petition fee. The fee for filing a withheld from the public to protect such petition under this part is—§ 130.00. not apply to Board-related proceedings information, the party must explain outside the Board, such as: (b) Appeal fees. why. The party will be given time, not (1) For filing a notice of appeal from (1) Seeking judicial review (see less than twenty days, to request §§ 1.301–1.304 of this title) or the examiner to the Board: reconsideration and seek court review (i) By a small entity (§ 1.27(a) of this (2) Extensions during prosecution (see before any contested portion of the title)—$165.00. § 1.136 of this title). action is made public over its objection. (ii) By other than a small entity— § 41.5 Counsel. (b) Record of proceeding.—(1) The $330.00. record of a Board proceeding is While the Board has jurisdiction: (2) In addition to the fee for filing a available to the public unless a patent notice of appeal, for filing a brief in (a) Appearance pro hac vice. The application not otherwise available to Board may authorize a person other support of an appeal: the public is involved. (i) By a small entity (§ 1.27(a) of this than a patent practitioner to appear as (2) Notwithstanding paragraph (b)(1) counsel in a specific proceeding. title)—$165.00. of this section, after a final Board action (ii) By other than a small entity— (b) Disqualification. (1) The Board in or termination of a Board proceeding, $330.00. may disqualify counsel in a specific the record of the Board proceeding will (3) For filing a request for an oral proceeding after notice and an be made available to the public if any hearing before the Board in an appeal opportunity to be heard. involved file is or becomes open to the under 35 U.S.C. 134: (2) A decision to disqualify is not public under § 1.11 of this title or an (i) By a small entity (§ 1.27(a) of this final for the purposes of judicial review involved application is or becomes title)—$145.00 until certified by the Chief published under §§ 1.211–1.221 of this (ii) By other than a small entity— Administrative Patent Judge. title. $290.00. (c) Withdrawal. Counsel may not withdraw from a proceeding before the § 41.7 Management of the record. Subpart B—Ex parte Appeals to the Board unless the Board authorizes such (a) The Board may expunge any paper Board withdrawal. that is not authorized under this part or (d) Procedure. The Board may in a Board order, or that is filed contrary § 41.30 Definitions. institute a proceeding under this section to a Board order. In addition to the definitions in on its own or a party in a contested case (b) A party may not file a paper § 41.2, the following definitions apply to may request relief under this section. previously filed in the same Board proceedings under this subpart unless (e) Referral to the Director of proceeding, not even as an exhibit or otherwise clear from the context: Enrollment and Discipline. The Board appendix, without Board authorization. Proceeding means either a national may refer a question arising under application for a patent, an application paragraphs (a) or (b) of this section to § 41.8 Mandatory notices. for reissue of a patent, or an ex parte the Director of Enrollment and In an appeal (§§ 41.37, 41.67, or reexamination proceeding. Appeal to Discipline for action. § 41.68) or at the initiation of a the Board in an inter partes contested case (§ 41.101), and within 20 reexamination proceeding is controlled § 41.6 Public availability of Board records. days of any change during the by subpart C of this part. (a) Publication.—(1) Generally. Any proceeding, a party must identify: Applicant means either the applicant Board action is available for public (a) Its real party-in-interest, and in a national application for a patent or inspection without a party’s permission (b) Each judicial or administrative the applicant in an application for if rendered in a file open to the public proceeding that could affect, or be reissue of a patent.

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Owner means the owner of the patent appealed pursuant to § 41.31(a)(1)–(a)(3) appendix as required by paragraph undergoing ex parte reexamination will not be admitted except as permitted (c)(1)(x) of this section. under § 1.510 of this title. by §§ 41.39(b)(1), 41.50(a)(2)(i) and (iii) Status of claims. A statement of 41.50(b)(1). the status of all the claims in the § 41.31 Appeal to Board. (c) Affidavits or other evidence proceeding (e.g., rejected, allowed or (a) Who may appeal and how to file submitted after the date the proceeding confirmed, withdrawn, objected to, an appeal: has been appealed pursuant to canceled) and an identification of those (1) Every applicant, any of whose § 41.31(a)(1)–(a)(3) will not be admitted claims that are being appealed. claims has been twice or finally (§ 1.113 except as permitted by §§ 41.39(b)(1), (iv) Status of amendments. A of this title) rejected, may appeal the 41.50(a)(2)(i) and 41.50(b)(1). statement of the status of any decision of the examiner to the Board by amendment filed subsequent to final filing a notice of appeal accompanied by § 41.35 Jurisdiction over appeal. rejection. the fee set forth in § 41.20(b)(1) within (a) Jurisdiction over the proceeding (v) Summary of claimed subject the time period provided under § 1.134 passes to the Board upon transmittal of matter. A concise explanation of the of this title for reply. the file, including all briefs and subject matter defined in each of the (2) Every owner of a patent under ex examiner’s answers, to the Board. independent claims involved in the parte reexamination filed under § 1.510 (b) If, after receipt and review of the appeal, which shall refer to the of this title before November 29, 1999, proceeding, the Board determines that specification by page and line number, any of whose claims has been twice or the file is not complete or is not in and to the drawing, if any, by reference finally (§ 1.113 of this title) rejected, compliance with the requirements of characters. For each claim involved in may appeal from the decision of the this subpart, the Board may relinquish the appeal, every means plus function examiner to the Board by filing a notice jurisdiction to the examiner or take and step plus function as permitted by of appeal accompanied by the fee set other appropriate action to permit 35 U.S.C. 112, sixth paragraph, must be forth in § 41.20(b)(1) within the time completion of the proceeding. identified and the structure, material, or acts described in the specification as period provided under § 1.134 of this (c) Prior to the entry of a decision on corresponding to each claimed function title for reply. the appeal by the Board, the Director must be set forth with reference to the (3) Every owner of a patent under ex may sua sponte order the proceeding specification by page and line number, parte reexamination filed under § 1.510 remanded to the examiner. of this title on or after November 29, and to the drawing, if any, by reference 1999, any of whose claims has been § 41.37 Appeal brief. characters. (vi) Grounds of rejection to be finally (§ 1.113 of this title) rejected, (a)(1) Appellant must file a brief reviewed on appeal. A concise may appeal from the decision of the under this section within two months statement of each ground of rejection examiner to the Board by filing a notice from the date of the notice of appeal of appeal accompanied by the fee set presented for review. under § 41.31. (vii) Argument. The contentions of forth in § 41.20(b)(1) within the time (2) The brief must be accompanied by period provided under § 1.134 of this appellant with respect to each ground of the fee set forth in § 41.20(b)(2). rejection presented for review in title for reply. (b) On failure to file the brief, (b) The signature requirement of paragraph (c)(1)(vi) of this section, and accompanied by the requisite fee, the basis therefor, with citations of the § 1.33 of this title does not apply to a within the period specified in paragraph notice of appeal filed under this section. statutes, regulations, authorities, and (a) of this section, the appeal will stand parts of the record relied on. Any (c) An appeal, when taken, must be dismissed. taken from the rejection of all claims arguments or authorities not included in (c)(1) The brief shall contain the under rejection which the applicant or the brief or a reply brief filed pursuant following items under appropriate owner proposes to contest. Questions to § 41.41 will be refused consideration headings and in the order indicated in relating to matters not affecting the by the Board, unless good cause is paragraphs (c)(1)(i) through (c)(1)(x) of merits of the invention may be required shown. Each ground of rejection must this section, except that a brief filed by to be settled before an appeal can be be treated under a separate heading. For an appellant who is not represented by considered. each ground of rejection applying to two a registered practitioner need only (d) The time periods set forth in or more claims, the claims may be substantially comply with paragraphs paragraphs (a)(1)–(a)(3) of this section argued separately or as a group. When (c)(1)(i) through (c)(1)(iv) and (c)(1)(vii) are extendable under the provisions of multiple claims subject to the same through (c)(1)(x) of this section: § 1.136 of this title for patent ground of rejection are argued as a applications and § 1.550(c) of this title (i) Real party in interest. A statement group by appellant, the Board may for ex parte reexamination proceedings. identifying by name the real party in select a single claim from the group of interest. claims that are argued together to decide § 41.33 Amendments and affidavits or (ii) Related appeals and interferences. the appeal with respect to the group of other evidence after appeal. A statement identifying by application, claims as to the ground of rejection on (a) Amendments submitted after the patent, appeal or interference number the basis of the selected claim alone. date the proceeding has been appealed all other prior and pending appeals, Notwithstanding any other provision of pursuant to § 41.31(a)(1)–(a)(3) may be interferences or judicial proceedings this paragraph, the failure of appellant admitted: known to appellant, the appellant’s to separately argue claims which (1) To cancel claims, where such legal representative, or assignee which appellant has grouped together shall cancellation does not affect the scope of may be related to, directly affect or be constitute a waiver of any argument that any other pending claim in the directly affected by or have a bearing on the Board must consider the proceeding, or the Board’s decision in the pending patentability of any grouped claim (2) To rewrite dependent claims into appeal. Copies of any decisions separately. Any claim argued separately independent form. rendered by a court or the Board in any should be placed under a subheading (b) All other amendments submitted proceeding identified under this identifying the claim by number. Claims after the date the proceeding has been paragraph must be included in an argued as a group should be placed

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under a subheading identifying the comply with the provisions of §§ 41.31– evidence filed after final action but claims by number. A statement which 41.37 or does not relate to an appealable before or with any appeal and § 41.33 merely points out what a claim recites action, the primary examiner shall make for amendments, affidavits or other will not be considered an argument for such determination of record. evidence filed after the date of the patentability of the claim. (2) An examiner’s answer may appeal. (viii) Claims appendix. An appendix include a new ground of rejection. (b) A reply brief that is not in containing a copy of the claims involved (b) If an examiner’s answer contains a compliance with paragraph (a) of this in the appeal. new ground of rejection, appellant must section will not be considered. (ix) Evidence appendix. An appendix within two months from the date of the Appellant will be notified if a reply containing copies of any evidence examiner’s answer exercise one of the brief is not in compliance with submitted pursuant to §§ 1.130, 1.131, following two options to avoid sua paragraph (a) of this section. 1.132 of this title or of any other sponte dismissal of the appeal as to the (c) Extensions of time under § 1.136(a) evidence entered by the examiner and claims subject to the new ground of of this title for patent applications are relied upon by appellant in the appeal, rejection: not applicable to the time period set along with a statement setting forth (1) Reopen prosecution. Request that forth in this section. See § 1.136(b) of where in the record that evidence was prosecution be reopened before the this title for extensions of time to reply entered in the record by the examiner. primary examiner by filing a reply for patent applications and § 1.550(c) of Reference to unentered evidence is not under § 1.111 of this title with or this title for extensions of time to reply permitted in the brief. See § 41.33 for without amendment or submission of for ex parte reexamination proceedings. treatment of evidence submitted after affidavits (§§ 1.130, 1.131 or 1.132 of appeal. This appendix may also include this title) or other evidence. Any § 41.43 Examiner’s response to reply brief. copies of the evidence relied upon by amendment or submission of affidavits (a)(1) After receipt of a reply brief in the examiner as to grounds of rejection or other evidence must be relevant to compliance with § 41.41, the primary to be reviewed on appeal. the new ground of rejection. A request examiner must acknowledge receipt and (x) Related proceedings appendix. An that complies with this paragraph will entry of the reply brief. In addition, the appendix containing copies of decisions be entered and the application or the primary examiner may withdraw the rendered by a court or the Board in any patent under ex parte reexamination final rejection and reopen prosecution proceeding identified pursuant to will be reconsidered by the examiner or may furnish a supplemental paragraph (c)(1)(ii) of this section. under the provisions of § 1.112 of this examiner’s answer responding to any (2) A brief shall not include any new title. Any request that prosecution be new issue raised in the reply brief. or non-admitted amendment, or any reopened under this paragraph will be (2) A supplemental examiner’s answer new or non-admitted affidavit or other treated as a request to withdraw the may not include a new ground of evidence. See § 1.116 of this title for appeal. rejection. amendments, affidavits or other (2) Maintain appeal. Request that the (b) If a supplemental examiner’s evidence filed after final action but appeal be maintained by filing a reply answer is furnished by the examiner, before or with any appeal and § 41.33 brief as set forth in § 41.41. Such a reply appellant may file another reply brief for amendments, affidavits or other brief must address each new ground of under § 41.41 to any supplemental evidence filed after the date of the rejection as set forth in § 41.37(c)(1)(vii) examiner’s answer within two months appeal. and should follow the other from the date of the supplemental (d) If a brief is filed which does not requirements of a brief as set forth in examiner’s answer. comply with all the requirements of § 41.37(c). A reply brief may not be paragraph (c) of this section, appellant accompanied by any amendment, (c) Extensions of time under § 1.136(a) will be notified of the reasons for non- affidavit (§§ 1.130, 1.131 or 1.132 of this of this title for patent applications are compliance and given a time period title) or other evidence. If a reply brief not applicable to the time period set within which to file an amended brief. filed pursuant to this section is forth in this section. See § 1.136(b) of If appellant does not file an amended accompanied by any amendment, this title for extensions of time to reply brief within the set time period, or files affidavit or other evidence, it shall be for patent applications and § 1.550(c) of an amended brief which does not treated as a request that prosecution be this title for extensions of time to reply overcome all the reasons for non- reopened before the primary examiner for ex parte reexamination proceedings. compliance stated in the notification, under paragraph (b)(1) of this section. § 41.47 Oral hearing. the appeal will stand dismissed. (c) Extensions of time under § 1.136(a) (e) The time periods set forth in this of this title for patent applications are (a) An oral hearing should be section are extendable under the not applicable to the time period set requested only in those circumstances provisions of § 1.136 of this title for forth in this section. See § 1.136(b) of in which appellant considers such a patent applications and § 1.550(c) of this this title for extensions of time to reply hearing necessary or desirable for a title for ex parte reexamination for patent applications and § 1.550(c) of proper presentation of the appeal. An proceedings. this title for extensions of time to reply appeal decided on the briefs without an for ex parte reexamination proceedings. oral hearing will receive the same § 41.39 Examiner’s answer. consideration by the Board as appeals (a)(1) The primary examiner may, § 41.41 Reply brief. decided after an oral hearing. within such time as may be directed by (a)(1) Appellant may file a reply brief (b) If appellant desires an oral the Director, furnish a written answer to to an examiner’s answer within two hearing, appellant must file, as a the appeal brief including such months from the date of the examiner’s separate paper captioned ‘‘REQUEST explanation of the invention claimed answer. FOR ORAL HEARING,’’ a written and of the references relied upon and (2) A reply brief shall not include any request for such hearing accompanied grounds of rejection as may be new or non-admitted amendment, or by the fee set forth in § 41.20(b)(3) necessary, supplying a copy to any new or non-admitted affidavit or within two months from the date of the appellant. If the primary examiner other evidence. See § 1.116 of this title examiner’s answer or supplemental determines that the appeal does not for amendments, affidavits or other examiner’s answer.

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(c) If no request and fee for oral (i) Reopen prosecution. Request that been misapprehended or overlooked in hearing have been timely filed by prosecution be reopened before the entering the new ground of rejection appellant as required by paragraph (b) of examiner by filing a reply under § 1.111 and also state all other grounds upon this section, the appeal will be assigned of this title with or without amendment which rehearing is sought. for consideration and decision on the or submission of affidavits (§§ 1.130, (c) The opinion of the Board may briefs without an oral hearing. 1.131 or 1.132 of this title) or other include an explicit statement how a (d) If appellant has complied with all evidence. Any amendment or claim on appeal may be amended to the requirements of paragraph (b) of this submission of affidavits or other overcome a specific rejection. When the section, a date for the oral hearing will evidence must be relevant to the issues opinion of the Board includes such a be set, and due notice thereof given to set forth in the remand or raised in the statement, appellant has the right to appellant. If an oral hearing is held, an supplemental examiner’s answer. A amend in conformity therewith. An oral argument may be presented by, or request that complies with this amendment in conformity with such on behalf of, the primary examiner if paragraph will be entered and the statement will overcome the specific considered desirable by either the application or the patent under ex parte rejection. An examiner may reject a primary examiner or the Board. A reexamination will be reconsidered by claim so-amended, provided that the hearing will be held as stated in the the examiner under the provisions of rejection constitutes a new ground of notice, and oral argument will § 1.112 of this title. Any request that rejection. ordinarily be limited to twenty minutes prosecution be reopened under this (d) The Board may order appellant to for appellant and fifteen minutes for the paragraph will be treated as a request to additionally brief any matter that the primary examiner unless otherwise withdraw the appeal. Board considers to be of assistance in ordered. (ii) Maintain appeal. Request that the reaching a reasoned decision on the (e) Appellant will argue first and may appeal be maintained by filing a reply pending appeal. Appellant will be given reserve time for rebuttal. At the oral brief as provided in § 41.41. If such a a non-extendable time period within hearing, appellant may only rely on reply brief is accompanied by any which to respond to such an order. evidence that has been previously amendment, affidavit or other evidence, Failure to timely comply with the order entered and considered by the primary it shall be treated as a request that may result in the sua sponte dismissal examiner and present argument that has prosecution be reopened before the of the appeal. been relied upon in the brief or reply examiner under paragraph (a)(2)(i) of (e) Whenever a decision of the Board brief. The primary examiner may only this section. includes a remand, that decision shall rely on argument and evidence relied (b) Should the Board have knowledge not be considered final for judicial upon in an answer or a supplemental of any grounds not involved in the review. When appropriate, upon answer. appeal for rejecting any pending claim, conclusion of proceedings on remand (f) Notwithstanding the submission of it may include in its opinion a statement before the examiner, the Board may a request for oral hearing complying to that effect with its reasons for so enter an order otherwise making its with this rule, if the Board decides that holding, which statement constitutes a decision final for judicial review. a hearing is not necessary, the Board new ground of rejection of the claim. A (f) Extensions of time under § 1.136(a) will so notify appellant. new ground of rejection pursuant to this of this title for patent applications are (g) Extensions of time under § 1.136(a) paragraph shall not be considered final not applicable to the time periods set of this title for patent applications are for judicial review. When the Board forth in this section. See § 1.136(b) of not applicable to the time periods set makes a new ground of rejection, the this title for extensions of time to reply forth in this section. See § 1.136(b) of appellant, within two months from the for patent applications and § 1.550(c) of this title for extensions of time to reply date of the decision, must exercise one this title for extensions of time to reply for patent applications and § 1.550(c) of of the following two options with for ex parte reexamination proceedings. respect to the new ground of rejection this title for extensions of time to reply § 41.52 Rehearing. for ex parte reexamination proceedings. to avoid termination of the appeal (§ 41.56) as to the rejected claims: (a) Appellant may file a single request § 41.50 Decisions and other actions by the (1) Reopen prosecution. Submit an for rehearing within 2 months of the Board. appropriate amendment of the claims so date of the original decision of the (a)(1) The Board, in its decision, may rejected or a showing of facts relating to Board. No request for rehearing from a affirm or reverse the decision of the the claims so rejected, or both, and have decision on rehearing will be permitted, examiner in whole or in part on the the matter reconsidered by the unless the rehearing decision so grounds and on the claims specified by examiner, in which event the modified the original decision as to the examiner. The affirmance of the proceeding will be remanded to the become, in effect, a new decision, and rejection of a claim on any of the examiner. The new ground of rejection the Board states that a second request grounds specified constitutes a general is binding upon the examiner unless an for rehearing would be permitted. The affirmance of the decision of the amendment or showing of facts not request for rehearing must state with examiner on that claim, except as to any previously of record is made which, in particularity the points believed to have ground specifically reversed. The Board the opinion of the examiner, overcomes been misapprehended or overlooked by may also remand an application to the the new ground of rejection stated in the the Board. Except for arguments examiner. decision. Should the examiner reject the responding to a new ground of rejection (2) If a supplemental examiner’s claims, appellant may again appeal to made pursuant to § 41.50(b), arguments answer is written in response to a the Board pursuant to §§ 41.31 through not raised in the briefs before the Board remand by the Board for further 41.56. and evidence not previously relied upon consideration of a rejection pursuant to (2) Request rehearing. Request that in the brief and any reply brief(s) are not paragraph (a)(1) of this section, the the proceeding be reheard under § 41.52 permitted in the request for rehearing. appellant must exercise one of the by the Board upon the same record. The When a request for rehearing is made, following two options to avoid sua request for rehearing must address any the Board shall render a decision on the sponte dismissal of the appeal as to all new ground of rejection and state with request for rehearing. The decision on claims under appeal: particularity the points believed to have the request for rehearing is deemed to

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incorporate the earlier opinion appellant’s brief of the owner, or the be required to be settled before an reflecting its decision for appeal, except owner responding under § 41.68 to the appeal is decided. for those portions specifically appellant’s brief of any requester. No (e) The time periods for filing a notice withdrawn on rehearing, and is final for requester may be a respondent to the of appeal or cross appeal may not be the purpose of judicial review, except appellant brief of any other requester. extended. when noted otherwise in the decision Filing means filing with a certificate (f) If a notice of appeal or cross appeal on rehearing. indicating service of the document is timely filed but does not comply with (b) Extensions of time under § 1.136(a) under § 1.903 of this title. any requirement of this section, of this title for patent applications are appellant will be notified of the reasons not applicable to the time period set § 41.61 Notice of appeal and cross appeal for non-compliance and given a non- forth in this section. See § 1.136(b) of to Board. extendable time period within which to this title for extensions of time to reply (a)(1) Upon the issuance of a Right of file an amended notice of appeal or for patent applications and § 1.550(c) of Appeal Notice under § 1.953 of this title, cross appeal. If the appellant does not this title for extensions of time to reply the owner may appeal to the Board with then file an amended notice of appeal or for ex parte reexamination proceedings. respect to the final rejection of any cross appeal within the set time period, claim of the patent by filing a notice of or files a notice which does not § 41.54 Action following decision. appeal within the time provided in the overcome all the reasons for non- After decision by the Board, the Right of Appeal Notice and paying the compliance stated in the notification of proceeding will be returned to the fee set forth in § 41.20(b)(1). the reasons for non-compliance, that examiner, subject to appellant’s right of (2) Upon the issuance of a Right of appellant’s appeal or cross appeal will appeal or other review, for such further Appeal Notice under § 1.953 of this title, stand dismissed. action by appellant or by the examiner, the requester may appeal to the Board as the condition of the proceeding may with respect to any final decision § 41.63 Amendments and affidavits or require, to carry into effect the decision. favorable to the patentability, including other evidence after appeal. any final determination not to make a (a) Amendments submitted after the § 41.56 Termination of appeal. proposed rejection, of any original, date the proceeding has been appealed An appeal under this subpart is proposed amended, or new claim of the pursuant to § 41.61 canceling claims terminated by the dismissal of the patent by filing a notice of appeal may be admitted where such appeal or when, after a final Board within the time provided in the Right of cancellation does not affect the scope of action: Appeal Notice and paying the fee set any other pending claim in the (a) A notice of appeal under 35 U.S.C. forth in § 41.20(b)(1). proceeding. 141 is filed, (b)(1) Within fourteen days of service (b) All other amendments submitted (b) A civil action under 35 U.S.C. 146 of a requester’s notice of appeal under after the date the proceeding has been is commenced, or paragraph (a)(2) of this section and upon appealed pursuant to § 41.61 will not be (c) The time for seeking judicial payment of the fee set forth in admitted except as permitted by review (§ 1.304 of this title) has expired. § 41.20(b)(1), an owner who has not § 41.77(b)(1). filed a notice of appeal may file a notice (c) Affidavits or other evidence Subpart C—Inter Partes Appeals to the submitted after the date the proceeding Board of cross appeal with respect to the final rejection of any claim of the patent. has been appealed pursuant to § 41.61 § 41.60 Definitions. (2) Within fourteen days of service of will not be admitted except as permitted by reopening prosecution under In addition to the definitions in an owner’s notice of appeal under § 41.77(b)(1). § 41.2, the following definitions apply to paragraph (a)(1) of this section and upon proceedings under this subpart unless payment of the fee set forth in § 41.64 Jurisdiction over appeal in inter otherwise clear from the context: § 41.20(b)(1), a requester who has not partes reexamination. Proceeding means an inter partes filed a notice of appeal may file a notice (a) Jurisdiction over the proceeding reexamination proceeding. Appeal to of cross appeal with respect to any final passes to the Board upon transmittal of the Board in an ex parte reexamination decision favorable to the patentability, the file, including all briefs and proceeding is controlled by subpart B of including any final determination not to examiner’s answers, to the Board. this part. An inter partes reexamination make a proposed rejection, of any (b) If, after receipt and review of the proceeding is not a contested case original, proposed amended, or new proceeding, the Board determines that subject to subpart D of this part. claim of the patent. the file is not complete or is not in Owner means the owner of the patent (c) The notice of appeal or cross compliance with the requirements of undergoing inter partes reexamination appeal in the proceeding must identify this subpart, the Board may relinquish under § 1.915 of this title. the appealed claim(s) and must be jurisdiction to the examiner or take Requester means each party, other signed by the owner, the requester, or a other appropriate action to permit than the owner, who requested that the duly authorized attorney or agent. completion of the proceeding. patent undergo inter partes (d) An appeal or cross appeal, when (c) Prior to the entry of a decision on reexamination under § 1.915 of this title. taken, must be taken from all the the appeal by the Board, the Director Appellant means any party, whether rejections of the claims in a Right of may sua sponte order the proceeding the owner or a requester, filing a notice Appeal Notice which the patent owner remanded to the examiner. of appeal or cross appeal under § 41.61. proposes to contest or from all the If more than one party appeals or cross determinations favorable to § 41.66 Time for filing briefs. appeals, each appealing or cross patentability, including any final (a) An appellant’s brief must be filed appealing party is an appellant with determination not to make a proposed no later than two months from the latest respect to the claims to which his or her rejection, in a Right of Appeal Notice filing date of the last-filed notice of appeal or cross appeal is directed. which a requester proposes to contest. appeal or cross appeal or, if any party Respondent means any requester Questions relating to matters not to the proceeding is entitled to file an responding under § 41.68 to the affecting the merits of the invention may appeal or cross appeal but fails to timely

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do so, the expiration of time for filing (iii) Status of claims. A statement of with respect to the group of claims as to (by the last party entitled to do so) such the status of all the claims in the the ground of rejection on the basis of notice of appeal or cross appeal. The proceeding (e.g., rejected, allowed or the selected claim alone. time for filing an appellant’s brief or an confirmed, withdrawn, objected to, Notwithstanding any other provision of amended appellant’s brief may not be canceled). If the appellant is the owner, this paragraph, the failure of appellant extended. the appellant must also identify the to separately argue claims which (b) Once an appellant’s brief has been rejected claims whose rejection is being appellant has grouped together shall properly filed, any brief must be filed by appealed. If the appellant is a requester, constitute a waiver of any argument that respondent within one month from the the appellant must identify the claims the Board must consider the date of service of the appellant’s brief. that the examiner has made a patentability of any grouped claim The time for filing a respondent’s brief determination favorable to patentability, separately. Any claim argued separately or an amended respondent’s brief may which determination is being appealed. should be placed under a subheading not be extended. (iv) Status of amendments. A identifying the claim by number. Claims (c) The examiner will consider both statement of the status of any argued as a group should be placed the appellant’s and respondent’s briefs amendment filed subsequent to the under a subheading identifying the and may prepare an examiner’s answer close of prosecution. claims by number. A statement which under § 41.69. (v) Summary of claimed subject merely points out what a claim recites (d) Any appellant may file a rebuttal matter. A concise explanation of the will not be considered an argument for brief under § 41.71 within one month of subject matter defined in each of the patentability of the claim. the date of the examiner’s answer. The independent claims involved in the (viii) Claims appendix. An appendix appeal, which shall refer to the time for filing a rebuttal brief or an containing a copy of the claims to be specification by column and line amended rebuttal brief may not be reviewed on appeal. number, and to the drawing(s), if any, (ix) Evidence appendix. An appendix extended. by reference characters. For each claim containing copies of any evidence (e) No further submission will be involved in the appeal, every means submitted pursuant to §§ 1.130, 1.131, considered and any such submission plus function and step plus function as 1.132 of this title or of any other will be treated in accordance with permitted by 35 U.S.C. 112, sixth evidence entered by the examiner and § 1.939 of this title. paragraph, must be identified and the relied upon by appellant in the appeal, § 41.67 Appellant’s brief. structure, material, or acts described in along with a statement setting forth (a)(1) Appellant(s) may once, within the specification as corresponding to where in the record that evidence was time limits for filing set forth in § 41.66, each claimed function must be set forth entered in the record by the examiner. with reference to the specification by Reference to unentered evidence is not file a brief and serve the brief on all page and line number, and to the permitted in the brief. See § 41.63 for other parties to the proceeding in drawing, if any, by reference characters. treatment of evidence submitted after accordance with § 1.903 of this title. (vi) Issues to be reviewed on appeal. appeal. This appendix may also include (2) The brief must be signed by the A concise statement of each issue copies of the evidence relied upon by appellant, or the appellant’s duly presented for review. No new ground of the examiner in any ground of rejection authorized attorney or agent and must rejection can be proposed by a third to be reviewed on appeal. be accompanied by the requisite fee set party requester appellant, unless such (x) Related proceedings appendix. An forth in § 41.20(b)(2). ground was withdrawn by the examiner appendix containing copies of decisions (b) A party’s appeal shall stand during the prosecution of the rendered by a court or the Board in any dismissed upon failure of that party to proceeding, and the third party proceeding identified pursuant to file an appellant’s brief, accompanied by requester has not yet had an opportunity paragraph (c)(1)(ii) of this section. the requisite fee, within the time to propose it as a third party requester (xi) Certificate of service. A allowed under § 41.66(a). proposed ground of rejection. certification that a copy of the brief has (c)(1) The appellant’s brief shall (vii) Argument. The contentions of been served in its entirety on all other contain the following items under appellant with respect to each issue parties to the reexamination proceeding. appropriate headings and in the order presented for review in paragraph The names and addresses of the parties indicated in paragraphs (c)(1)(i) through (c)(1)(vi) of this section, and the basis served must be indicated. (c)(1)(xi) of this section. therefor, with citations of the statutes, (2) A brief shall not include any new (i) Real party in interest. A statement regulations, authorities, and parts of the or non-admitted amendment, or any identifying by name the real party in record relied on. Any arguments or new or non-admitted affidavit or other interest. authorities not included in the brief evidence. See § 1.116 of this title for (ii) Related appeals and interferences. permitted under this section or §§ 41.68 amendments, affidavits or other A statement identifying by application, and 41.71 will be refused consideration evidence filed after final action but patent, appeal or interference number by the Board, unless good cause is before or with any appeal and § 41.63 all other prior and pending appeals, shown. Each issue must be treated for amendments, affidavits or other interferences or judicial proceedings under a separate heading. If the evidence after the date of the appeal. known to appellant, the appellant’s appellant is the patent owner, for each (d) If a brief is filed which does not legal representative, or assignee which ground of rejection in the Right of comply with all the requirements of may be related to, directly affect or be Appeal Notice which appellant contests paragraph (a) and paragraph (c) of this directly affected by or have a bearing on and which applies to two or more section, appellant will be notified of the the Board’s decision in the pending claims, the claims may be argued reasons for non-compliance and given a appeal. Copies of any decisions separately or as a group. When multiple non-extendable time period within rendered by a court or the Board in any claims subject to the same ground of which to file an amended brief. If proceeding identified under this rejection are argued as a group by appellant does not file an amended brief paragraph must be included in an appellant, the Board may select a single within the set time period, or files an appendix as required by paragraph claim from the group of claims that are amended brief which does not overcome (c)(1)(xi) of this section. argued together to decide the appeal all the reasons for non-compliance

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stated in the notification, that (vi) Issues to be reviewed on appeal. compliance and given a non-extendable appellant’s appeal will stand dismissed. A statement accepting or disputing time period within which to file an appellant’s statement of the issues amended brief. If respondent does not § 41.68 Respondent’s brief. presented for review. If appellant’s file an amended respondent brief within (a)(1) Respondent(s) in an appeal may statement of the issues presented for the set time period, or files an amended once, within the time limit for filing set review is disputed, the errors in respondent brief which does not forth in § 41.66, file a respondent brief appellant’s statement must be specified. overcome all the reasons for non- and serve the brief on all parties in A counter statement of the issues for compliance stated in the notification, accordance with § 1.903 of this title. review may be made. No new ground of the respondent brief and any amended (2) The brief must be signed by the rejection can be proposed by a requester respondent brief by that respondent will party, or the party’s duly authorized respondent. not be considered. attorney or agent, and must be (vii) Argument. A statement accepting accompanied by the requisite fee set or disputing the contentions of § 41.69 Examiner’s answer. forth in § 41.20(b)(2). appellant with each of the issues (a) The primary examiner may, within (3) The respondent brief shall be presented by the appellant for review. If such time as directed by the Director, limited to issues raised in the appellant a contention of the appellant is furnish a written answer to the owner’s brief to which the respondent brief is disputed, the errors in appellant’s and/or requester’s appellant brief or directed. argument must be specified, stating the respondent brief including, as may be (4) A requester’s respondent brief may basis therefor, with citations of the necessary, such explanation of the not address any brief of any requester. statutes, regulations, authorities, and invention claimed and of the references (b)(1) The respondent brief shall parts of the record relied on. Each issue relied upon, the grounds of rejection, contain the following items under must be treated under a separate and the reasons for patentability, appropriate headings and in the order heading. An argument may be made including grounds for not adopting any here indicated, and may include an with each of the issues stated in the proposed rejection. A copy of the appendix containing only those portions counter statement of the issues, with answer shall be supplied to the owner of the record on which reliance has been each counter-stated issue being treated and all requesters. If the primary made. under a separate heading. examiner determines that the appeal (i) Real Party in Interest. A statement (viii) Evidence appendix. An does not comply with the provisions of identifying by name the real party in appendix containing copies of any §§ 41.61–41.68 or does not relate to an interest. evidence submitted pursuant to appealable action, the primary examiner (ii) Related Appeals and §§ 1.130, 1.131, 1.132 of this title or of shall make such determination of Interferences. A statement identifying any other evidence entered by the record. by application, patent, appeal or examiner and relied upon by (b) An examiner’s answer may not interference number all other prior and respondent in the appeal, along with a include a new ground of rejection. pending appeals, interferences or statement setting forth where in the (c) An examiner’s answer may not judicial proceedings known to record that evidence was entered in the include a new determination not to respondent, the respondent’s legal record by the examiner. Reference to make a proposed rejection of a claim. representative, or assignee which may unentered evidence is not permitted in (d) Any new ground of rejection, or be related to, directly affect or be the respondent’s brief. See § 41.63 for any new determination not to make a directly affected by or have a bearing on treatment of evidence submitted after proposed rejection, must be made in an the Board’s decision in the pending appeal. Office action reopening prosecution. appeal. Copies of any decisions (ix) Related proceedings appendix. § 41.71 Rebuttal brief. rendered by a court or the Board in any An appendix containing copies of (a) Within one month of the proceeding identified under this decisions rendered by a court or the examiner’s answer, any appellant may paragraph must be included in an Board in any proceeding identified once file a rebuttal brief. appendix as required by paragraph pursuant to paragraph (b)(1)(ii) of this (b)(1) The rebuttal brief of the owner (b)(1)(ix) of this section. section. may be directed to the examiner’s (iii) Status of claims. A statement (x) Certificate of service. A answer and/or any respondent brief. accepting or disputing appellant’s certification that a copy of the (2) The rebuttal brief of the owner statement of the status of claims. If respondent brief has been served in its shall not include any new or non- appellant’s statement of the status of entirety on all other parties to the admitted amendment, or an affidavit or claims is disputed, the errors in reexamination proceeding. The names other evidence. See § 1.116 of this title appellant’s statement must be specified and addresses of the parties served must for amendments, affidavits or other with particularity. be indicated. evidence filed after final action but (iv) Status of amendments. A (2) A respondent brief shall not before or with any appeal and § 41.63 statement accepting or disputing include any new or non-admitted for amendments, affidavits or other appellant’s statement of the status of amendment, or any new or non- evidence filed after the date of the amendments. If appellant’s statement of admitted affidavit or other evidence. See appeal. the status of amendments is disputed, § 1.116 of this title for amendments, (c)(1) The rebuttal brief of any the errors in appellant’s statement must affidavits or other evidence filed after requester may be directed to the be specified with particularity. final action but before or with any examiner’s answer and/or the (v) Summary of claimed subject appeal and § 41.63 for amendments, respondent brief of the owner. matter. A statement accepting or affidavits or other evidence filed after (2) The rebuttal brief of a requester disputing appellant’s summary of the the date of the appeal. may not be directed to the respondent subject matter defined in each of the (c) If a respondent brief is filed which brief of any other requester. independent claims involved in the does not comply with all the (3) No new ground of rejection can be appeal. If appellant’s summary of the requirements of paragraph (a) and proposed by a requester. subject matter is disputed, the errors in paragraph (b) of this section, respondent (4) The rebuttal brief of a requester appellant’s summary must be specified. will be notified of the reasons for non- shall not include any new or non-

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admitted affidavit or other evidence. See hearing is held, an oral argument may knowledge of any grounds not raised in § 1.116(d) of this title for affidavits or be presented by, or on behalf of, the the appeal for rejecting any pending other evidence filed after final action primary examiner if considered claim, it may include in its opinion a but before or with any appeal and desirable by either the primary statement to that effect with its reasons § 41.63(c) for affidavits or other examiner or the Board. The notice shall for so holding, which statement shall evidence filed after the date of the set a non-extendable period within constitute a new ground of rejection of appeal. which all requests for oral hearing shall the claim. Any decision which includes (d) The rebuttal brief must include a be submitted by any other party to the a new ground of rejection pursuant to certification that a copy of the rebuttal appeal desiring to participate in the oral this paragraph shall not be considered brief has been served in its entirety on hearing. A hearing will be held as stated final for judicial review. When the all other parties to the proceeding. The in the notice, and oral argument will be Board makes a new ground of rejection, names and addresses of the parties limited to thirty minutes for each the owner, within one month from the served must be indicated. appellant and respondent who has date of the decision, must exercise one (e) If a rebuttal brief is timely filed requested an oral hearing, and twenty of the following two options with under paragraph (a) of this section but minutes for the primary examiner respect to the new ground of rejection does not comply with all the unless otherwise ordered. No appellant to avoid termination of the appeal requirements of paragraphs (a)–(d) of or respondent will be permitted to proceeding as to the rejected claim: this section, appellant will be notified of participate in an oral hearing unless he (1) Reopen prosecution. The owner the reasons for non-compliance and or she has requested an oral hearing and may file a response requesting provided with a non-extendable period submitted the fee set forth in reopening of prosecution before the of one month within which to file an § 41.20(b)(3). examiner. Such a response must be amended rebuttal brief. If the appellant (e) At the oral hearing, each appellant either an amendment of the claims so does not file an amended rebuttal brief and respondent may only rely on rejected, a showing of facts or new during the one-month period, or files an evidence that has been previously evidence relating to the claims so amended rebuttal brief which does not entered and considered by the primary rejected, or both. overcome all the reasons for non- examiner and present argument that has (2) Request rehearing. The owner may compliance stated in the notification, been relied upon in the briefs. The request that the proceeding be reheard that appellant’s rebuttal brief and any primary examiner may only rely on under § 41.79 by the Board upon the amended rebuttal brief by that appellant argument and evidence relied upon in same record. The request for rehearing will not be considered. an answer. The Board will determine must address any new ground of the order of the arguments presented at rejection and state with particularity the § 41.73 Oral hearing. the oral hearing. points believed to have been (a) An oral hearing should be (f) Notwithstanding the submission of misapprehended or overlooked in requested only in those circumstances a request for oral hearing complying entering the new ground of rejection in which an appellant or a respondent with this rule, if the Board decides that and also state all other grounds upon considers such a hearing necessary or a hearing is not necessary, the Board which rehearing is sought. desirable for a proper presentation of will so notify the owner and all (c) Where the owner has filed a the appeal. An appeal decided on the requesters. response requesting reopening of briefs without an oral hearing will prosecution under paragraph (b)(1) of receive the same consideration by the § 41.77 Decisions and other actions by the this section, any requester, within one Board as an appeal decided after an oral Board. month of the date of service of the hearing. (a) The Board of Patent Appeals and owner’s response, may once file (b) If an appellant or a respondent Interferences, in its decision, may affirm comments on the response. Such desires an oral hearing, he or she must or reverse each decision of the examiner written comments must be limited to file, as a separate paper captioned on all issues raised on each appealed the issues raised by the Board’s opinion ‘‘REQUEST FOR ORAL HEARING,’’ a claim, or remand the reexamination reflecting its decision and the owner’s written request for such hearing proceeding to the examiner for further response. Any requester that had not accompanied by the fee set forth in consideration. The reversal of the previously filed an appeal or cross § 41.20(b)(3) within two months after examiner’s determination not to make a appeal and is seeking under this the date of the examiner’s answer. The rejection proposed by the third party subsection to file comments or a reply time for requesting an oral hearing may requester constitutes a decision adverse to the comments is subject to the appeal not be extended. The request must to the patentability of the claims which and brief fees under § 41.20(b)(1) and include a certification that a copy of the are subject to that proposed rejection (2), respectively, which must request has been served in its entirety which will be set forth in the decision accompany the comments or reply. on all other parties to the proceeding. of the Board of Patent Appeals and (d) Following any response by the The names and addresses of the parties Interferences as a new ground of owner under paragraph (b)(1) of this served must be indicated. rejection under paragraph (b) of this section and any written comments from (c) If no request and fee for oral section. The affirmance of the rejection a requester under paragraph (c) of this hearing have been timely filed by of a claim on any of the grounds section, the proceeding will be appellant or respondent as required by specified constitutes a general remanded to the examiner. The paragraph (b) of this section, the appeal affirmance of the decision of the statement of the Board shall be binding will be assigned for consideration and examiner on that claim, except as to any upon the examiner unless an decision on the briefs without an oral ground specifically reversed. amendment or showing of facts not hearing. (b) Should the Board reverse the previously of record is made which, in (d) If appellant or respondent has examiner’s determination not to make a the opinion of the examiner, overcomes complied with all the requirements of rejection proposed by a requester, the the new ground of rejection stated in the paragraph (b) of this section, a hearing Board shall set forth in the opinion in decision. The examiner will consider date will be set, and notice given to the support of its decision a new ground of any owner response under paragraph owner and all requesters. If an oral rejection; or should the Board have (b)(1) of this section and any written

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comments by a requester under responding to a new ground of rejection Business day means a day other than paragraph (c) of this section and issue made pursuant to § 41.77(b). a Saturday, Sunday, or Federal holiday a determination that the rejection is (c) Within one month of the date of within the District of Columbia. maintained or has been overcome. service of any request for rehearing Involved means the Board has (e) Within one month of the under paragraph (a) of this section, or declared the patent application, patent, examiner’s determination pursuant to any further request for rehearing under or claim so described to be a subject of paragraph (d) of this section, the owner paragraph (d) of this section, the owner the contested case. or any requester may once submit and all requesters may once file comments in response to the examiner’s comments in opposition to the request § 41.101 Notice of proceeding. determination. Within one month of the for rehearing or the further request for (a) Notice of a contested case will be date of service of comments in response rehearing. The comments in opposition sent to every party to the proceeding. to the examiner’s determination, the must be limited to the issues raised in The entry of the notice initiates the owner and any requesters may file a the request for rehearing or the further proceeding. reply to the comments. No requester request for rehearing. (b) When the Board is unable to reply may address the comments of any (d) If a party to an appeal files a provide actual notice of a contested case other requester reply. Any requester that request for rehearing under paragraph on a party through the correspondence had not previously filed an appeal or (a) of this section, or a further request address of record for the party, the cross appeal and is seeking under this for rehearing under this section, the Board may authorize other modes of subsection to file comments or a reply Board shall render a decision on the notice, including: to the comments is subject to the appeal request for rehearing. The decision on (1) Sending notice to another address and brief fees under §§ 41.20(b)(1) and the request for rehearing is deemed to associated with the party, or incorporate the earlier opinion (2), respectively, which must (2) Publishing the notice in the reflecting its decision for appeal, except accompany the comments or reply. Official Gazette of the United States for those portions specifically (f) After submission of any comments Patent and Trademark Office. withdrawn on rehearing and is final for and any reply pursuant to paragraph (e) the purpose of judicial review, except of this section, or after time has expired, § 41.102 Completion of examination. when noted otherwise in the decision the proceeding will be returned to the Except as the Board may otherwise on rehearing. If the Board opinion Board which shall reconsider the matter authorize, before a contested case is reflecting its decision on rehearing and issue a new decision. The new initiated: becomes, in effect, a new decision, and decision is deemed to incorporate the (a) Examination of each involved the Board so indicates, then any party earlier decision, except for those application and any pending to the appeal may, within one month of portions specifically withdrawn. reexamination of each involved patent the new decision, file a further request must be completed, and (g) The time period set forth in for rehearing of the new decision under paragraph (b) of this section is subject this subsection. Such further request for (b) Each involved application and to the extension of time provisions of rehearing must comply with paragraph patent must have at least one claim that: § 1.956 of this title when the owner is (b) of this section. (1) Is patentable, and responding under paragraph (b)(1) of (e) The times for requesting rehearing (2) Would be involved in the this section. The time period set forth in under paragraph (a) of this section, for contested case. paragraph (b) of this section may not be requesting further rehearing under § 41.103 Jurisdiction over involved files. extended when the owner is responding paragraph (c) of this section, and for under paragraph (b)(2) of this section. submitting comments under paragraph The Board has jurisdiction over any The time periods set forth in paragraphs (b) of this section may not be extended. involved file from the time the Board (c) and (e) of this section may not be initiates a contested case until the extended. § 41.81 Action following decision. termination of the contested case. Other The parties to an appeal to the Board proceedings for the involved file within § 41.79 Rehearing. may not appeal to the U.S. Court of the Office are suspended except as the (a) Parties to the appeal may file a Appeals for the Federal Circuit under Board may order. request for rehearing of the decision § 1.983 of this title until all parties’ within one month of the date of: rights to request rehearing have been § 41.104 Conduct of contested case. (1) The original decision of the Board exhausted, at which time the decision of (a) The Board may determine a proper under § 41.77(a), the Board is final and appealable by any course of conduct in a proceeding for (2) the original § 41.77(b) decision party to the appeal to the Board. any situation not specifically covered by under the provisions of § 41.77(b)(2), this part and may enter non-final orders (3) the expiration of the time for the § 41.83 Termination of appeal. to administer the proceeding. owner to take action under § 41.77(b)(2), An appeal to the Board by a party (b) An administrative patent judge or under this subpart is terminated by the may waive or suspend in a proceeding (4) the new decision of the Board dismissal of that party’s appeal or when, the application of any rule in this under § 41.77(f). after a final Board action: subpart, subject to such conditions as (b) The request for rehearing must (a) A notice of appeal under 35 U.S.C. the administrative patent judge may state with particularity the points 141 is filed, or impose. (b) The time for seeking judicial believed to have been misapprehended (c) Times set in this subpart are review (§ 1.983 of this title) has expired. or overlooked in rendering the Board’s defaults. In the event of a conflict opinion reflecting its decision. Subpart D—Contested Cases between a time set by rule and a time Arguments not raised in the briefs set by order, the time set by order is before the Board and evidence not § 41.100 Definitions. controlling. Action due on a day other previously relied upon in the briefs are In addition to the definitions in than a business day may be completed not permitted in the request for § 41.2, the following definitions apply to on the next business day unless the rehearing except for arguments proceedings under this subpart: Board expressly states otherwise.

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§ 41.105 Ex parte communications. whenever a case is published in both. (4) A certificate made by a person An ex parte communication about a Other parallel citations are discouraged. other than a registered patent contested case with a Board member or (C) Pinpoint citations whenever a practitioner must be in the form of an a Board employee conducting the specific holding or portion of an affidavit. proceeding is not permitted. authority is invoked. (ii) Non-binding authority should be § 41.107 [Reserved] § 41.106 Filing and service. used sparingly. If the authority is not an § 41.108 Lead counsel. (a) General format requirements. (1) authority of the Office and is not (a) A party may be represented by The paper used for filings must be reproduced in one of the reporters listed counsel. The Board may require a party durable and white. A party must choose in paragraph (c)(4)(i) of this section, a to appoint a lead counsel. If counsel is to file on either A4-sized paper or 81⁄2 copy of the authority should be filed × not of record in a party’s involved inch 11 inch paper except in the case with the first paper in which it is cited. application or patent, then a power of of exhibits that require a larger size in (5) Exhibits. Additional requirements attorney for that counsel for the party’s order to preserve details of the original. for exhibits appear in § 41.154(c). involved application or patent must be A party may not switch between paper (c) Working copy. Every paper filed filed with the notice required in sizes in a single proceeding. Only one must be accompanied by a working paragraph (b) of this section. side of the paper may be used. copy marked ‘‘APJ Copy’’. (b) Within 14 days of the initiation of (2) In papers, including affidavits, (d) Specific filing forms.—(1) Filing by each contested case, each party must file created for the proceeding: mail. A paper filed by mail must be a separate notice identifying its counsel, (i) The ink must be black or must addressed to Mail Stop if any, and providing contact otherwise provide an equivalently INTERFERENCE, Board of Patent information for each counsel identified permanent, dark, high-contrast image on Appeals and Interferences, United or, if the party has no counsel, then for the paper. The quality of the printing States Patent and Trademark Office, PO the party. Contact information must, at must be equivalent to the quality Box 1450, Alexandria, Virginia 22313– a minimum, include: produced by a laser printer. Either a 1450. A paper filed using the EXPRESS (1) A mailing address; proportional or monospaced font may MAIL service of the United States (2) An address for courier delivery be used, but the proportional font must Postal Service will be deemed to be filed when the mailing address is not be 12-point or larger and a monospaced as of ‘‘date-in’’ on the EXPRESS MAIL available for such delivery (for example, font must not contain more than 4 mailing label; otherwise, mail will be when the mailing address is a Post characters per centimeter (10 characters deemed to be filed as of the stamped Office box); per inch). Case names must be date of receipt at the Board. (3) A telephone number; underlined or italicized. (2) Other modes of filing. The Board (4) A facsimile number; and (ii) Double spacing must be used may authorize other modes of filing, (5) An electronic mail address. except in headings, signature blocks, including electronic filing, and may set (c) A party must promptly notify the and certificates of service. Block conditions for the use of such other Board of any change in the contact quotations may be single-spaced and modes. information required in paragraph (b). must be indented. Margins must be at (e) Service. (1) Papers filed with the § 41.109 Access to and copies of Office least 2.5 centimeters (1 inch) on all Board, if not previously served, must be records. sides. served simultaneously on every (a) Request for access or copies. Any (b) Papers other than exhibits.—(1) opposing party except as the Board request from a party for access to or Cover sheet. (i) The cover sheet must expressly directs. copies of Office records directly related include the caption the Board specifies (2) If a party is represented by to a contested case must be filed with for the proceeding, a header indicating counsel, service must be on counsel. the Board. The request must precisely the party and contact information for (3) Service must be by EXPRESS identify the records and in the case of the party, and a title indicating the MAIL (an expedited-delivery service copies include the appropriate fee set sequence and subject of the paper. For of the United States Postal Service) or under § 1.19(b) of this title. example, ‘‘JONES MOTION 2, For by means at least as fast and reliable as  (b) Authorization of access and benefit of an earlier application’’. EXPRESS MAIL . Electronic service is copies. Access and copies will (ii) If the Board specifies a color other not permitted without Board ordinarily only be authorized for the than white for the cover sheet, the cover authorization. following records: sheet must be that color. (4) The date service is received does (1) The application file for an (2) Papers must have two 0.5 cm not count in computing the time for involved patent; (1⁄4inch) holes with centers 1 cm (1⁄2 responding. (2) An involved application; and inch) from the top of the page and 7 cm (f) Certificate of service. (3) An application for which a party (23⁄4 inch) apart, centered horizontally (1) Papers other than exhibits must has been accorded benefit under subpart on the page. include a certificate of service as a E of this part. (3) Incorporation by reference; separate page at the end of each paper (c) Missing or incomplete copies. If a combined papers. Arguments must not that must be served on an opposing party does not receive a complete copy be incorporated by reference from one party. of a record within 21 days of the paper into another paper. Combined (2) Exhibits must be accompanied by authorization, the party must promptly motions, oppositions, replies, or other a certificate of service, but a single notify the Board. combined papers are not permitted. certificate may accompany any group of (4) Citation of authority. exhibits submitted together. § 41.110 Filing claim information. (i) Citations to authority must include: (3) A certificate of service must state: (a) Clean copy of claims. Within 14 (A) A United States Reports citation (i) The name of each paper served, days of the initiation of the proceeding, for any Supreme Court case. (ii) The date and manner of service, each party must file a clean copy of its (B) Parallel citation of cases to both and involved claims and, if a biotechnology the West Reporter System and to the (iii) The name and address of every material sequence is a limitation, a United States Patents Quarterly person served. clean copy of the sequence.

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(b) Annotated copy of claims. Within (3) Miscellaneous motions. Any (i) The opposing party must be 28 days of the initiation of the request for relief other than a consulted prior to filing the proceeding, each party must: substantive or responsive motion must miscellaneous motion, and (1) For each involved claim having a be filed as a miscellaneous motion. (ii) If an opposing party plans to limitation that is illustrated in a (b) Burden of proof. The party filing oppose the miscellaneous motion, the drawing or biotechnology material the motion has the burden of proof to movant may not file the motion without sequence, file an annotated copy of the establish that it is entitled to the Board authorization. Such authorization claim indicating in bold face between requested relief. should ordinarily be obtained through a braces ({}) where each limitation is (c) Content of motions; oppositions telephone conference including the shown in the drawing or sequence. and replies. (1) Each motion must be Board and every other party to the (2) For each involved claim that filed as a separate paper and must proceeding. Delay in seeking relief may contains a means-plus-function or step- include: justify a denial of the motion. plus-function limitation in the form (i) A statement of the precise relief (2) An opposition may not be filed permitted under 35 U.S.C. 112[6], file an requested, without authorization. The default times annotated copy of the claim indicating (ii) A statement of material facts in for acting are: in bold face between braces ({}) the support of the motion in short (i) An opposition to a miscellaneous specific portions of the specification numbered paragraphs, with specific motion is due five business days after that describe the structure, material, or citations to the portions of the record service of the motion. acts corresponding to each claimed that support each fact, and (ii) A reply to a miscellaneous motion function. (iii) A full statement of the reasons for opposition is due three business days (c) Any motion to amend a claim or the relief requested, including a detailed after service of the opposition. add a reissue claim must include an explanation of the significance of the § 41.124 Oral argument. addendum containing a clean set of the evidence and the governing law, rules, claims and, where applicable, an and precedent. (a) Request for oral argument. A party addendum containing claims annotated (2) Compliance with rules. Where a may request an oral argument on an according to paragraph (b) of this rule in part 1 of this title ordinarily issue raised in a paper within five section. governs the relief sought, the motion business days of the filing of the paper. The request must be filed as a separate § 41.120 Notice of basis for relief. must make any showings required paper and must specify the issues to be (a) The Board may require a party to under that rule in addition to any showings required in this part. considered. provide a notice stating the relief it (b) Copies for panel. If a hearing is set requests and the basis for its entitlement (3) The Board may order additional showings or explanations as a condition for a panel, the movant on any issue to to relief. The Board may provide for the be heard must provide three working notice to be maintained in confidence for filing a motion. (4) Oppositions and replies must copies of the motion, the opposition, for a limited time. and the reply. Each party is responsible (b) Effect. If a notice under paragraph comply with the content requirements for providing three working copies of its (a) is required, a party will be limited for motions and must include a exhibits relating to the motion. to filing substantive motions consistent statement identifying material facts in dispute. Any material fact not (c) Length of argument. If the request with the notice. Ambiguities in the is granted, each party will have 20 notice will be construed against the specifically denied will be considered minutes to present its argument, party. A notice is not evidence except as admitted. (d) Board-ordering briefings. The including any time for rebuttal. an admission by a party-opponent. (d) Demonstrative exhibits must be (c) Correction. A party may move to Board may order briefing on any issue served at least five business days before correct its notice. The motion should be that could be raised by motion. the oral argument and filed no later than filed promptly after the party becomes § 41.122 New arguments in opposition or aware of the basis for the correction. A the time of the oral argument. reply. (e) Transcription. The Board correction filed after the time set for encourages the use of a transcription filing notices will only be entered if All arguments for the relief requested entry would serve the interests of must be made in a motion. An service at oral arguments but, if such a justice. opposition may raise new arguments, service is to be used, the Board must be but only in response to arguments made notified in advance to ensure adequate § 41.121 Motions. in the corresponding motion. A reply facilities are available and a transcript (a) Types of motions.—(1) Substantive may only respond to arguments raised must be filed with the Board promptly motions. Consistent with the notice of in the corresponding opposition. after the oral argument. requested relief, if any, and to the extent § 41.123 Time for acting on motions. § 41.125 Decision on motions. the Board authorizes, a party may file a motion: (a) A motion, other than a (a) Order of consideration. The Board (i) To redefine the scope of the miscellaneous motion, may only be filed may take up motions for decisions in contested case, according to a schedule the Board sets. any order, may grant, deny, or dismiss (ii) To change benefit accorded for the The default times for acting are: any motion, and may take such other contested subject matter, or (1) An opposition is due 30 days after action appropriate to secure the just, (iii) For judgment in the contested service of the motion. speedy, and inexpensive determination case. (2) A reply is due 30 days after service of the proceeding. A decision on a (2) Responsive motions. The Board of the opposition. motion may include deferral of action may authorize a party to file a motion (3) A responsive motion is due within on an issue until a later point in the to amend, add, or cancel a claim, to 30 days of the service of the motion. proceeding. change inventorship, or otherwise to (b) Miscellaneous motions. (1) If no (b) Interlocutory decisions. A decision cure a defect raised in a notice of time for filing a specific miscellaneous on motions without a judgment requested relief or in a substantive motion is provided in this part or in a terminating the proceeding is not final motion. Board order: for the purposes of judicial review. A

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panel decision on an issue will govern accordance with the procedures specifically identify all matters the party further proceedings in the contested established in this subpart. believes to have been misapprehended case. (e) The Board will not consider the or overlooked, and the place where the (c) Rehearing.—(1) Time for request. arbitration award unless it: matter was previously addressed in a A request for rehearing of a decision (1) Is binding on the parties, motion, opposition, or reply. The Board must be filed within fourteen days of (2) Is in writing, may toll the time for seeking judicial the decision. (3) States in a clear and definite review (35 U.S.C. 142 and 146[1]) for (2) No tolling. The filing of a request manner each issue arbitrated and the the pendency of the rehearing. for rehearing does not toll times for disposition of each issue, and taking action. (4) Is filed within 20 days of the date § 41.128 Termination. (3) Burden on rehearing. The burden of the award. A contested case is terminated after a of showing a decision should be (f) Once the award is filed, the parties final Board action, as soon as any of the modified lies with the party attacking to the award may not take actions following occur: the decision. The request must inconsistent with the award. If the (a) A notice of appeal under 35 U.S.C. specifically identify: award is dispositive of the contested 141 is filed, (i) All matters the party believes to subject matter for a party, the Board may (b) A civil action under 35 U.S.C. 146 have been misapprehended or enter judgment as to that party. is commenced, or overlooked, and (c) The time for seeking judicial (ii) The place where the matter was § 41.127 Judgment. review has expired. previously addressed in a motion, (a) Effect within Office.—(1) Estoppel. opposition, or reply. A judgment disposes of all issues that § 41.128 Sanctions. (4) Opposition; reply. Neither an were, or by motion could have properly (a) The Board may impose a sanction opposition nor a reply to a request for been, raised and decided. A losing party against a party for misconduct, rehearing may be filed without Board who could have properly moved for including: authorization. relief on an issue, but did not so move, (1) Failure to comply with an (5) Panel rehearing. If a decision is may not take action in the Office after applicable rule or order in the not a panel decision, the party the judgment that is inconsistent with proceeding; requesting rehearing may request that a that party’s failure to move, except that (2) Advancing a misleading or panel rehear the decision. A panel a losing party shall not be estopped with frivolous request for relief or argument; rehearing a procedural decision will respect to any contested subject matter or review the decision for an abuse of for which that party was awarded a (3) Engaging in dilatory tactics. discretion. favorable judgment. (b) Sanctions include entry of: (2) Final disposal of claim. Adverse (1) An order holding certain facts to § 41.126 Arbitration. judgment against a claim is a final have been established in the proceeding; (a) Parties to a contested case may action of the Office requiring no further (2) An order expunging, or precluding resort to binding arbitration to action by the Office to dispose of the a party from filing, a paper; determine any issue in a contested case. claim permanently. (3) An order precluding a party from The Office is not a party to the (b) Request for adverse judgment. A presenting or contesting a particular arbitration. The Board is not bound and party may at any time in the proceeding issue; may independently determine questions request judgment against itself. Actions (4) An order precluding a party from of patentability, jurisdiction, and Office construed to be a request for adverse requesting, obtaining, or opposing practice. judgment include: discovery; (b) The Board will not authorize (1) Abandonment of an involved (5) An order excluding evidence; arbitration unless: application such that the party no (6) An order awarding compensatory (1) It is to be conducted according to longer has an application or patent expenses, including attorney fees; Title 9 of the United States Code. involved in the proceeding, (7) An order requiring terminal (2) The parties notify the Board in (2) Cancellation or disclaiming of a disclaimer of patent term; or writing of their intention to arbitrate. claim such that the party no longer has (3) The agreement to arbitrate: (8) Judgment in the contested case. a claim involved in the proceeding, (i) Is in writing, § 41.150 Discovery. (ii) Specifies the issues to be (3) Concession of priority or (a) Limited discovery. A party is not arbitrated, unpatentability of the contested subject (iii) Names the arbitrator, or provides matter, and entitled to discovery except as a date not more than 30 days after the (4) Abandonment of the contest. authorized in this subpart. The parties execution of the agreement for the (c) Recommendation. The judgment may agree to discovery among selection of the arbitrator, and may include a recommendation for themselves at any time. (iv) Provides that the arbitrator’s further action by the examiner or by the (b) Automatic discovery. award shall be binding on the parties Director. If the Board recommends (1) Within 21 days of a request by an and that judgment thereon can be rejection of a claim of an involved opposing party, a party must: entered by the Board. application, the examiner must enter (i) Serve a legible copy of every (4) A copy of the agreement is filed and maintain the recommended requested patent, literature reference, within 20 days after its execution. rejection unless an amendment or and test standard mentioned in the (5) The arbitration is completed showing of facts not previously of specification of the party’s involved within the time the Board sets. record is filed which, in the opinion of patent or application, or application (c) The parties are solely responsible the examiner, overcomes the upon which the party will rely for for the selection of the arbitrator and the recommended rejection. benefit, and, if the requested material is conduct of proceedings before the (d) Rehearing. A party dissatisfied in a language other than English, a arbitrator. with the judgment may request translation, if available, and (d) Issues not disposed of by the rehearing within 30 calendar days of the (ii) File with the Board a notice arbitration will be resolved in entry of the judgment. The request must (without copies of the requested

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materials) of service of the requested required to produce a document in a § 41.156 Compelling testimony and materials. language other than English, a production. (2) Unless previously served, or the translation of the document into English (a) Authorization required. A party Board orders otherwise, any exhibit and an affidavit attesting to the accuracy seeking to compel testimony or cited in a motion or in testimony must of the translation must be filed with the production of documents or things must be served with the citing motion or document. file a miscellaneous motion for testimony. (c) An exhibit must conform with the authorization. The miscellaneous (c) Additional discovery. A party may requirements for papers in § 41.106 of motion must describe the general request additional discovery. The this subpart and the requirements of this relevance of the testimony, document, requesting party must show that such paragraph. or thing and must: additional discovery is in the interests (1) Each exhibit must have an exhibit (1) In the case of testimony, identify of justice. The Board may specify label with a unique number in a range the witness by name or title, and conditions for such additional assigned by the Board, the names of the (2) In the case of a document or thing, discovery. parties, and the proceeding number in the general nature of the document or the following format: JONES EXHIBIT thing. § 41.151 Admissibility. 2001, Jones v. Smith, Interference (b) Outside the United States. For Evidence that is not taken, sought, or 104,999 testimony or production sought outside filed in accordance with this subpart (2) When the exhibit is a paper: the United States, the motion must also: shall not be admissible. (i) Each page must be uniquely (1) In the case of testimony. § 41.152 Applicability of the Federal Rules numbered in sequence, and (i) Identify the foreign country and of Evidence. (ii) The exhibit label must be affixed explain why the party believes the to the lower right corner of the first page witness can be compelled to testify in (a) Generally. Except as otherwise of the exhibit without obscuring provided in this subpart, the Federal the foreign country, including a information on the first page or, if description of the procedures that will Rules of Evidence shall apply to obscuring is unavoidable, affixed to a contested cases. be used to compel the testimony in the duplicate first page. foreign country and an estimate of the (b) Exclusions. Those portions of the (d) Exhibit list. Each party must Federal Rules of Evidence relating to time it is expected to take to obtain the maintain an exhibit list with the exhibit testimony; and criminal proceedings, juries, and other number and a brief description of each matters not relevant to proceedings (ii) Demonstrate that the party has exhibit. If the exhibit is not filed, the made reasonable efforts to secure the under this subpart shall not apply. exhibit list should note that fact. The (c) Modifications in terminology. agreement of the witness to testify in the Board may require the filing of a current Unless otherwise clear from context, the United States but has been unsuccessful exhibit list prior to acting on a motion. following terms of the Federal Rules of in obtaining the agreement, even though Evidence shall be construed as § 1.155 Objection; motion to exclude; the party has offered to pay the indicated: motion in limine. expenses of the witness to travel to and Appellate court means United States (a) Deposition. Objections to testify in the United States. Court of Appeals for the Federal Circuit deposition evidence must be made (2) In the case of production of a or a United States district court when during the deposition. Evidence to cure document or thing. (i) Identify the judicial review is under 35 U.S.C. 146. the objection must be provided during foreign country and explain why the Civil action, civil proceeding, action, the deposition unless the parties to the party believes production of the and trial mean contested case. deposition stipulate otherwise on the document or thing can be compelled in Courts of the United States, U.S. deposition record. the foreign country, including a Magistrate, court, trial court, and trier of (b) Other than deposition. For description of the procedures that will fact mean Board. evidence other than deposition be used to compel production of the Hearing means: evidence: document or thing in the foreign (i) In Federal Rule of Evidence 703, (1) Objection. Any objection must be country and an estimate of the time it the time when the expert testifies. filed within five business days of is expected to take to obtain production (ii) In Federal Rule of Evidence service of evidence, other than of the document or thing; and 804(a)(5), the time for taking testimony. deposition evidence, to which the (ii) Demonstrate that the party has Judge means the Board. objection is directed. The objection made reasonable efforts to obtain the Judicial notice means official notice. agreement of the individual or entity Trial or hearing means, in Federal must identify the grounds for the having possession, custody, or control Rule of Evidence 807, the time for objection with sufficient particularity to of the document to produce the taking testimony. allow correction in the form of supplemental evidence. document or thing in the United States § 41.153 Records of the United States (2) Supplemental evidence. The party but has been unsuccessful in obtaining Patent and Trademark Office. relying on evidence to which an that agreement, even though the party Certification is not necessary as a objection is timely filed may respond to has offered to pay the expenses of condition to admissibility when the the objection by filing supplemental producing the document or thing in the evidence to be submitted is a record of evidence within ten business days of United States. the Office to which all parties have service of the objection. (c) The Board, in determining foreign access. (c) Motion to exclude. A law, may consider any relevant material miscellaneous motion to exclude or source, including testimony, whether § 41.154 Form of evidence. evidence must be filed to preserve any or not submitted by a party or (a) Evidence consists of affidavits, objection. The motion must identify the admissible under the Federal Rules of transcripts of depositions, documents, objections in the record in order and Evidence. and objects. All evidence must be must explain the objections. submitted in the form of an exhibit. (d) Motion in limine. A party may file § 41.157 Taking testimony. (b) Translation required. When a a miscellaneous motion in limine for a (a) Form. Direct testimony must be party relies on a document or is ruling on the admissibility of evidence. submitted in the form of an affidavit

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except when the testimony is compelled must initiate a conference with the (vi) The officer has no disqualifying under 35 U.S.C. 24, in which case it Board at least five business days before interest, personal or financial, in a may be in the form of a deposition the deposition. party; and transcript. (e) Manner of taking testimony. (1) (vii) If a witness refuses to read or (b) Time and location.—(1) Each witness before giving a deposition sign the transcript, the circumstances Uncompelled direct testimony may be shall be duly sworn according to law by under which the witness refused. taken at any time; otherwise, testimony the officer before whom the deposition (7) The officer must promptly provide may only be taken during such time is to be taken. The officer must be a copy of the transcript to all parties. period as the Board may authorize. authorized to take testimony under 35 The proponent of the testimony must (2) Other testimony. (i) Except as the U.S.C. 23. file the original as an exhibit. Board otherwise orders, authorized (2) The testimony shall be taken in (8) Any objection to the content, form, testimony may be taken at any answer to interrogatories with any or manner of taking the deposition, reasonable time and location within the questions and answers recorded in their including the qualifications of the United States before any disinterested regular order by the officer, or by some officer, is waived unless made on the official authorized to administer oaths at other disinterested person in the record during the deposition and that location. presence of the officer, unless the preserved in a timely filed (ii) Testimony outside the United presence of the officer is waived on the miscellaneous motion to exclude. States may only be taken as the Board record by agreement of all parties. (f) Costs. Except as the Board may specifically directs. (3) Any exhibits relied upon must be order or the parties may agree in (c) Notice of deposition. (1) Prior to numbered according to the numbering writing, the proponent of the testimony the taking of testimony, all parties to the scheme assigned for the contested case shall bear all costs associated with the proceeding must agree on the time and and must, if not previously served, be testimony, including the reasonable place for taking testimony. If the parties served at the deposition. costs associated with making the cannot agree, the party seeking the (4) All objections made at the time of witness available for the cross- testimony must initiate a conference examination. with the Board to set a time and place. the deposition to the qualifications of (2) Cross-examination should the officer taking the deposition, the § 41.158 Expert testimony; tests and data. ordinarily take place after any manner of taking it, the evidence (a) Expert testimony that does not supplemental evidence relating to the presented, the conduct of any party, and disclose the underlying facts or data on direct testimony has been filed and any other objection to the proceeding which the opinion is based is entitled to more than a week before the filing date shall be noted on the record by the little or no weight. Testimony on United for any paper in which the cross- officer. Evidence objected to shall be States patent law will not be admitted. examination testimony is expected to be taken subject to a ruling on the (b) If a party relies on a technical test used. A party requesting cross- objection. or data from such a test, the party must examination testimony of more than one (5) When the testimony has been provide an affidavit explaining: witness may choose the order in which transcribed, the witness shall read and (1) Why the test or data is being used, the witnesses are to be cross-examined. sign (in the form of an affidavit) a (2) How the test was performed and (3) In the case of direct testimony, at transcript of the deposition unless: the data was generated, least three business days prior to the (i) The parties otherwise agree in (3) How the data is used to determine conference in paragraph (c)(1) of this writing, a value, section, the party seeking the direct (ii) The parties waive reading and (4) How the test is regarded in the testimony must serve: signature by the witness on the record relevant art, and (i) A list and copy of each document at the deposition, or (5) Any other information necessary under the party’s control and on which (iii) The witness refuses to read or for the Board to evaluate the test and the party intends to rely, and sign the transcript of the deposition. data. (ii) A list of, and proffer of reasonable (6) The officer shall prepare a certified access to, any thing other than a transcript by attaching to the transcript Subpart E—Patent Interferences document under the party’s control and of the deposition a certificate in the § 41.200 Procedure; pendency. on which the party intends to rely. form of an affidavit signed and sealed by (4) Notice of the deposition must be the officer. Unless the parties waive any (a) A patent interference is a contested filed at least two business days before a of the following requirements, in which case subject to the procedures set forth deposition. The notice limits the scope case the certificate shall so state, the in subpart C of this part. of the testimony and must list: certificate must state: (b) A claim shall be given its broadest reasonable construction in light of the (i) The time and place of the (i) The witness was duly sworn by the specification of the application or patent deposition, officer before commencement of (ii) The name and address of the in which it appears. testimony by the witness; witness, (c) Patent interferences shall be (iii) A list of the exhibits to be relied (ii) The transcript is a true record of administered such that pendency before upon during the deposition, and the testimony given by the witness; the Board is normally no more than two (iv) A general description of the scope (iii) The name of the person who years. and nature of the testimony to be recorded the testimony and, if the elicited. officer did not record it, whether the § 41.201 Definitions. (5) Motion to quash. Objection to a testimony was recorded in the presence In addition to the definitions in defect in the notice is waived unless a of the officer; §§ 41.2 and 41.100, the following miscellaneous motion to quash is (iv) The presence or absence of any definitions apply to proceedings under promptly filed. opponent; this subpart: (d) Deposition in a foreign language. (v) The place where the deposition Accord benefit means Board If an interpreter will be used during the was taken and the day and hour when recognition that a patent application deposition, the party calling the witness the deposition began and ended; provides a proper constructive

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reduction to practice under 35 U.S.C. (5) If a claim has been added or obvious the subject matter of a claim of 102(g). amended to provoke an interference, the opposing party and vice versa. Constructive reduction to practice provide a claim chart showing the (b) Notice of declaration. An means description and enablement of an written description for each claim in the administrative patent judge declares the embodiment within the scope of the applicant’s specification, and patent interference on behalf of the interfering subject matter in a patent (6) For each constructive reduction to Director. A notice declaring an application. practice for which the applicant wishes interference identifies: Count means the Board’s description to be accorded benefit, provide a chart (1) The interfering subject matter; of the interfering subject matter that sets showing where the disclosure provides (2) The involved applications, the scope of admissible proofs on enabling description of an embodiment patents, and claims; priority. Where there is more than one within the scope of the interfering (3) The accorded benefit for each count, each count must describe a subject matter. count; and patentably distinct invention. (b) Patentee. A patentee cannot (4) The claims corresponding to each Earliest constructive reduction to suggest an interference under this count. practice means the first constructive section, but may file a protest to the (c) Redeclaration. An administrative reduction to practice that has been extent permitted under § 1.291 of this patent judge may redeclare a patent continuously disclosed through a chain title to draw the examiner’s attention to interference on behalf of the Director to of patent applications culminating in a potential interference. change the declaration made under the involved application or patent. For (c) Examiner. An examiner may paragraph (b) of this section. the chain to be continuous, each require an applicant to add a claim to (d) Additional patent, application, or subsequent application must have been provoke an interference. Failure to interference. A party may suggest the co-pending under 35 U.S.C. 120 or 121, satisfy the requirement within a period addition of a patent or application to the or timely filed under 35 U.S.C. 119 or (not less than one month) the examiner interference or the declaration of an 365(a). sets will operate as a concession of additional interference. The suggestion Involved claim means, for the priority for the subject matter of the should make the showings required purposes of 35 U.S.C. 135(a), a claim claim. The claim the examiner proposes under § 41.202(a). that has been designated as to have added must, apart from the § 41.204 Notice of basis for relief. corresponding to the count. question of priority under 35 U.S.C. Senior party means the party entitled 102(g): (a) Priority statement. Each party that to the presumption under § 41.207(a)(1) (1) Be patentable to the applicant and will submit evidence of its priority apart that it is the prior inventor. Any other (2) Be drawn to patentable subject from its accorded benefit must file a party is a junior party. matter claimed by another applicant or statement alleging with particularity Threshold issue means an issue that, patentee. facts that, if proved, would be sufficient if resolved in favor of the movant, (d) Requirement to show priority for it to establish an earlier date of would deprive the opponent of standing under 35 U.S.C. 102(g). (1) When an conception or an earlier actual in the interference. Threshold issues applicant has an earliest constructive reduction to practice. The statement may include: reduction to practice that is later than must include all bases on which the (1) No interference-in-fact, and the apparent earliest constructive party intends to establish its entitlement (2) In the case of an involved reduction to practice for a patent or to a judgment on priority and must application claim first made after the published application claiming include documentary support for each publication of the movant’s application interfering subject matter, the applicant basis when the documentary support is or issuance of the movant’s patent: must show why it would prevail on a unique record under the control of the (i) Repose under 35 U.S.C. 135(b) in priority. party or its real party-in-interest. Failure view of the movant’s patent or (2) If an applicant fails to show of a junior party to file a sufficient published application, or priority under paragraph (d)(1) of this priority statement will be treated as an (ii) Unpatentability for lack of written section, an administrative patent judge abandonment of contest absent a description under 35 U.S.C. 112[1] of an may nevertheless declare an showing of good cause. involved application claim. interference to place the applicant (b) Other substantive motions. For under an order to show cause why each substantive motion that a party § 41.202 Suggesting an interference. judgment should not be entered against will file, the Board may require a (a) Applicant. An applicant, including the applicant on priority. New evidence statement of basis for the relief the party a reissue applicant, may suggest an in support of priority will not be seeks. interference with another application or admitted except on a showing of good (c) Filing and service. The Board will a patent. The suggestion must: cause. The Board may authorize the set the times for filing and serving (1) Provide sufficient information to filing of motions to redefine the statements required under this section. identify the application or patent with interfering subject matter or to change § 41.205 Settlement agreements. which the applicant seeks an the benefit accorded to the parties. interference, (e) Sufficiency of showing. A showing (a) Constructive notice; time for filing. (2) Identify all claims the applicant of priority under this section is not Pursuant to 35 U.S.C. 135(c), an believes interfere and show how they sufficient unless it would, if unrebutted, agreement or understanding, including should correspond to one or more support with adequate evidence a collateral agreements referred to therein, counts, determination of priority in favor of the made in connection with or in (3) For each count, provide a claim party making the showing. contemplation of the termination of an chart comparing at least one claim of interference must be filed prior to the each party corresponding to the count § 41. 203 Declaration. termination (§ 41.128) of the and show why the claims interfere (a) Interfering subject matter. An interference between the parties to the within the meaning of § 41.203(a), interference exists if the subject matter agreement. (4) Explain in detail why the of a claim of one party would, if prior (b) Untimely filing. The Chief applicant will prevail on priority, art, have anticipated or rendered Administrative Patent Judge may permit

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the filing of an agreement under anticipated or rendered obvious the grant of the patent or the publication of paragraph (a) of this section up to six subject matter of the claim. the application. months after termination upon petition (c) Cross-applicability of prior art. (3) Unpatentability of a claim. A party and a showing of good cause for the When a motion for judgment of moving for a decision that an failure to file prior to termination. unpatentability against an opponent’s opponent’s claim is not patentable to (c) Request to keep separate. Any claim on the basis of prior art is granted, the opponent must: party to an agreement under paragraph each of the movant’s claims (i) Identify the legal basis for (a) of this section may request that the corresponding to the same count as the unpatentability, agreement be kept separate from the opponent’s claim will be presumed to (ii) Show why each claim alleged to interference file. The request must be be unpatentable in view of the same be unpatentable fails to satisfy the filed with or promptly after the prior art unless the movant in its motion substantive requirements of the legal agreement is filed. rebuts this presumption with supporting basis identified, and (d) Access to agreement. Any person, evidence. (iii) For arguments involving prior art, (d) Abandonment, suppression, or other than a representative of a explain why the movant’s claims concealment. A party is presumed to Government agency, may have access to corresponding to the same count as the have abandoned, suppressed, or an agreement kept separate under opponent’s claim are not unpatentable concealed the interfering subject matter paragraph (c) of this section only upon in view of the prior art. if the accorded date of the party’s petition and on a showing of good (4) Adding or substituting a count. (i) earliest constructive reduction to cause. The agreement will be available The movant must show why the practice is more than one year after the to Government agencies on written proposed count does not define the party’s actual reduction to practice. A request. same invention within the meaning of party subject to this presumption must § 41.203(a) as any other count, including show in its motion for priority that it § 41.206 Common interests in the the count it would replace. did not abandon, suppress, or conceal invention. (ii) To broaden a count to include its invention. An administrative patent judge may subject matter not in the current count, decline to declare, or if already declared § 41.208 Content of substantive and the movant must: the Board may terminate, an responsive motions. (A) Show that the proposed count interference between an application and The general requirements for motions does not include prior art subject another application or patent that are in contested cases are stated at matter, commonly owned. § 41.121(c). (B) Show that the additional subject (a) In an interference, substantive § 41.207 Presumptions. matter interferes within the meaning of motions must: § 41.203(a) with subject matter in an (a) Priority.—(1) Order of invention. (1) Raise a threshold issue, opponent’s involved claim, and Parties are presumed to have invented (2) Seek to change the scope of the (C) Show why the change is necessary interfering subject matter in the order of count or the correspondence of claims to a priority determination. If the change the dates of their accorded benefit for to the count, is necessary to include the movant’s each count. If two parties are accorded (3) Seek to change the benefit best proof of priority, the movant must the benefit of the same earliest date of accorded for the count, or proffer that proof with an explanation of constructive reduction to practice, then (4) Seek judgment on derivation or on why it does not fall within the scope of neither party is entitled to a priority. the current count. (b) To be sufficient, a motion must presumption of priority with respect to (5) Changing claim correspondence.— provide a showing, supported with the other such party. (i) To add a claim. A party moving to appropriate evidence, such that, if (2) Evidentiary standard. Priority may add a claim to an involved patent or unrebutted, it would justify the relief be proved by a preponderance of the application must show that the subject sought. The burden of proof is on the evidence except a party must prove matter of the count would have priority by clear and convincing movant. (c) Specific motions that may be anticipated or rendered obvious the evidence if the date of its earliest authorized, along with necessary subject matter of the added claim and constructive reduction to practice is content for each, include: that the added claim would be after the issue date of an involved patent (1) No interference-in-fact. A party patentable in the patent or application. or the publication date under 35 U.S.C. moving for judgment because the The showing of patentability must 122(b) of an involved application or involved claims do not, in fact, claim include a showing of where the patent. interfering subject matter must, for each disclosure of the patent or application (b) Claim correspondence. (1) For the of its involved claims, show that the provides written description of the purposes of determining priority and subject matter of the claim does not subject matter of the claim. derivation, all claims of a party interfere within the meaning of (ii) To designate a claim as corresponding to the count are § 41.203(a) with the subject matter of corresponding to a count. A party presumed to stand or fall together. To any involved claim of an opponent. moving to have a claim designated as challenge this presumption, a party (2) Repose under 35 U.S.C. 135(b). A corresponding to a count must show must file a timely substantive motion to party moving for repose under 35 U.S.C. that the subject matter of the count have a corresponding claim designated 135(b) must: would have anticipated or rendered as not corresponding to the count. No (i) Identify the claims of the movant’s obvious the subject matter of the claim. presumption based on claim United States patent or published (iii) To designate a claim as not correspondence regarding the grouping application claiming the same or corresponding to a count. A party of claims exists for other grounds of substantially the same invention as is moving to have a claim designated as unpatentability. claimed in an opponent’s involved not corresponding to a count must show (2) A claim corresponds to a count if claim, and that: the subject matter of the count, treated (ii) Show the opponent did not make (A) The subject matter of the count as prior art to the claim, would have such a claim prior to one year from the would not have anticipated or rendered

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obvious the subject matter of the claim, practice of an embodiment within the the comparison of a claim to something and scope of the count. else, such as another claim, prior art, or (B) The claim to be designated as not (ii) To attack the accorded benefit of a specification. Claim charts must corresponding to the count does not a constructive reduction to practice date accompany the paper as an appendix. interfere within the meaning of accorded to an opponent must show Claim charts are not a substitute for § 41.203(a) with any claim of an that the application for which benefit appropriate argument and explanation opponent’s involved patent or has been accorded does not provide a in the paper. constructive reduction to practice of an application. Dated: November 12, 2003. embodiment within the scope of the (6) Changing the accorded benefit. A count or that the disclosure of the Jon W. Dudas, party moving: embodiment has not been continuous. Deputy Under Secretary of Commerce for (i) To be accorded the benefit of (7) Other requirements. The Board Intellectual Property and Deputy Director of another constructive reduction to may specify additional requirements for the United States Patent and Trademark practice date must show that the a motion. Office. application for which benefit is sought (d) Claim charts. Claim charts must be [FR Doc. 03–29154 Filed 11–25–03; 8:45 am] provided a constructive reduction to used in support of any paper requiring BILLING CODE 3510–16–P

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Reader Aids Federal Register Vol. 68, No. 228 Wednesday, November 26, 2003

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING NOVEMBER

Federal Register/Code of Federal Regulations At the end of each month, the Office of the Federal Register General Information, indexes and other finding 202–741–6000 publishes separately a List of CFR Sections Affected (LSA), which aids lists parts and sections affected by documents published since Laws 741–6000 the revision date of each title. Presidential Documents 3 CFR 1924...... 62221 1941...... 62221 Executive orders and proclamations 741–6000 Proclamations: 1942...... 65829 The United States Government Manual 741–6000 7727...... 62351 1943...... 62221 Other Services 7728...... 62503 1955...... 62221 7729...... 62505 Electronic and on-line services (voice) 741–6020 3017...... 66534 7730...... 62507 Privacy Act Compilation 741–6064 3021...... 66534 7731...... 64483 Proposed Rules: Public Laws Update Service (numbers, dates, etc.) 741–6043 7732...... 64485 TTY for the deaf-and-hard-of-hearing 741–6086 457...... 64570 7733...... 64491 624...... 65202 7734...... 64977 800...... 65210 ELECTRONIC RESEARCH 7735...... 65153 959...... 65643 7736...... 65155 1423...... 65412 World Wide Web 7737...... 65627 Full text of the daily Federal Register, CFR and other publications 7738...... 66315 9 CFR is located at: http://www.access.gpo.gov/nara 7739...... 66319 71...... 62225 Federal Register information and research tools, including Public Executive Orders: 12170 (See Notice of 77...... 65831 Inspection List, indexes, and links to GPO Access are located at: 121...... 62218 http://www.archives.gov/federallregister/ November 12, 2003) ...... 64489 130...... 62226, 64504 E-mail 12364 (Superseded by 145...... 64507 147...... 64507 FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is EO 13318)...... 66317 13318...... 66317 319...... 62228 an open e-mail service that provides subscribers with a digital 381...... 62228, 63983 form of the Federal Register Table of Contents. The digital form Administrative Orders: Memorandums: Proposed Rules: of the Federal Register Table of Contents includes HTML and 93...... 62386 PDF links to the full text of each document. Memorandum of October 20, 2003 ...... 63975 94...... 62386, 64274 To join or leave, go to http://listserv.access.gpo.gov and select Presidential 95...... 62386 Online mailing list archives, FEDREGTOC-L, Join or leave the list Determinations: (or change settings); then follow the instructions. 10 CFR No. 2004-05 of PENS (Public Law Electronic Notification Service) is an e-mail October 21, 2003 ...... 63977 11...... 62509, 65765 service that notifies subscribers of recently enacted laws. No. 2004-06 of 25...... 62509, 65765 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html October 21, 2003 ...... 63979 50...... 65386 and select Join or leave the list (or change settings); then follow No. 2004-07 of 606...... 66534 the instructions. November 1, 2003 ...... 63981 607...... 66534 No. 2004-07 of 1036...... 66534 FEDREGTOC-L and PENS are mailing lists only. We cannot November 7, 2003 ...... 65383 Proposed Rules: respond to specific inquiries. Notices: 2...... 66372 Reference questions. Send questions and comments about the Notice of November 50...... 65415 Federal Register system to: [email protected] 12, 2003 ...... 64489 61...... 64993 The Federal Register staff cannot interpret specific documents or 5 CFR regulations. 11 CFR 532...... 64493 102...... 64512 970...... 66534 FEDERAL REGISTER PAGES AND DATE, NOVEMBER 106...... 64517 2600...... 62213 110...... 64512 62213–62350...... 3 3601...... 64979 Proposed Rules: 62351–62502...... 4 7 CFR 110...... 64571 62503–62730...... 5 113...... 64571 62731–63010...... 6 20...... 62213 9004...... 64571 205...... 62215 63011–63732...... 7 9034...... 64571 319...... 63983 63733–63982...... 10 331...... 62218 63983–64262...... 12 12 CFR 762...... 62221 64263–64490...... 13 764...... 62221 413...... 66534 64491–64798...... 14 905...... 64494 Proposed Rules: 64799–64976...... 17 906...... 66001 352...... 65850 64977–65152...... 18 916...... 64499 614...... 65417 65153–65382...... 19 917...... 64499 620...... 65417 65383–65626...... 20 984...... 65629 630...... 65417 65627–65828...... 21 989...... 64502 65829–66000...... 24 1464...... 65385 13 CFR 66001–66318...... 25 1580...... 62731 145...... 66534 66319–66692...... 26 1910...... 62221 147...... 66534

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14 CFR 18 CFR Proposed Rules: 1212...... 66534 1 ...... 62549, 62553, 63743, 23...... 63011, 64520 4...... 63194 37 CFR 35...... 64799 284...... 66323 63744, 65346, 65419, 65645, 39 ...... 62228, 62231, 62233, 65646, 65864, 66059 2...... 63019 62513, 63013, 64263, 64266, 19 CFR 301...... 62553 7...... 63019 64268, 64270, 64802, 64980, 206...... 65164 27 CFR Proposed Rules: 64982, 65157, 66004, 66321 1...... 66648 Proposed Rules: 71 ...... 62514, 62515, 62732, 20 CFR 5...... 66648 9...... 62259, 63042 62733, 62734, 62735, 63017, 436...... 66534 41...... 66648 63985, 64522, 64523, 64524, 439...... 66534 28 CFR 65159, 65161, 65162, 65163, 38 CFR Proposed Rules: 14...... 62516 65389 20...... 64805 321...... 63041 67...... 66534 73...... 64525 21...... 65399 404...... 62670 81...... 62370 91...... 65382 44...... 66534 408...... 62670 83...... 66534 95...... 65390 48...... 66534 416...... 62670 544...... 65169, 65170 97 ...... 62234, 64983, 64985 902...... 66340 121...... 65376 21 CFR 39 CFR 135...... 65376 1...... 63017 29 CFR 111...... 66015 145...... 65376 16...... 62353 94...... 66534 3001...... 65348 1265...... 66534 20...... 63017, 65392 98...... 66534 Proposed Rules: 1267...... 66534 522...... 65168 1471...... 66534 501...... 65429 Proposed Rules: 573...... 65632 1472...... 66534 551...... 65430 1 ...... 64730, 64993, 65854 1240...... 62353 Proposed Rules: 40 CFR 21...... 64730, 64993 1310...... 62735 1910...... 64036 25...... 64730, 64993 1404...... 66534 1915...... 64036 32...... 66534 33...... 64730, 64993 1405...... 66534 1926...... 64036, 65018 36...... 66534 39 ...... 62405, 62408, 62409, Proposed Rules: 4022...... 64525 51...... 63021 62415, 62544, 62545, 64001, 101...... 66040 4044...... 64525 52 ...... 62236, 62239, 62501, 64002, 64006, 64282, 64283, 868...... 65014 62529, 62738, 62869, 63021, 64286, 64288, 64290, 64295, 870...... 65014 30 CFR 63991, 64532, 64537, 64540, 64572, 64822, 64823, 64825, 882...... 65014 250...... 65172 64543, 65845, 65846, 66000, 64827, 64830, 64994, 64996, 1300...... 62255 707...... 65622 66343, 66348, 66350 64998, 65000, 65003, 65005, 1301...... 62255 917...... 65835 60...... 62529 65006, 65008, 65011, 65854, 1304...... 62255, 66048 943...... 62517 63...... 63852, 64432 65856, 65857, 66026, 66028, 1306...... 66048 906...... 65422 70 ...... 63735, 65401, 65637 66030, 66382, 66384, 66386 1307...... 62255 917...... 65424 81...... 62239 71 ...... 62548, 62758, 62759, 1309...... 66048, 66052 950...... 62519 131...... 62740, 62744 62760, 62761, 62762, 64008, 1310...... 66052 271...... 64550 64574, 64575, 64832, 65224, 31 CFR 300...... 62747, 64806 22 CFR 65417, 65859, 66387 19...... 66534 350...... 64720 73...... 64833 126...... 65633 20...... 66534 1600...... 65403 91...... 65854 133...... 66534 103...... 65392 Proposed Rules: 97...... 65854 137...... 66534 575...... 65844 Ch. 1 ...... 65120 121 ...... 64730, 64993, 65854 208...... 66534 Proposed Rules: 52 ...... 62263, 62264, 62553, 125...... 65854 210...... 66534 103...... 66299, 66305 64576, 65229, 65234, 65646, 129...... 65854 303...... 66006 65866, 66388, 66389 135 ...... 64730, 64993, 65854 307...... 66014 32 CFR 60...... 62553 310...... 66534 25...... 66534 63...... 65648 15 CFR 312...... 66534 26...... 66534 81...... 62264 26...... 66534 1006...... 66534 199...... 65172 93...... 62690 29...... 66534 1008...... 66534 122...... 63042 902...... 62501, 64986 1508...... 66534 33 CFR 123...... 65663 Proposed Rules: 1509...... 66534 100 ...... 62524, 63018, 65174 133...... 63042 740...... 64009 Proposed Rules: 101...... 62502 148...... 66164 742...... 64009 96...... 64296 104...... 62501 180...... 66390 748...... 64009 98...... 64296 117 ...... 62524, 62528, 63986, 260...... 65586 754...... 64009 65174, 65175, 66014, 66343 261 ...... 64834, 65586, 66164 23 CFR 772...... 64009 160...... 62501, 63735 268...... 66164 476...... 66338 165 ...... 62501, 62524, 63988, 271 ...... 62264, 64578, 66164 16 CFR 655...... 65496 64527, 64988, 65177 300...... 64843, 65020 385...... 64200 302...... 66164 305...... 65631, 65833 24 CFR Proposed Rules: 350...... 64726 21...... 66534 117...... 66059, 66062 355...... 64041 17 CFR 24...... 66534 165 ...... 64038, 65227, 65427, 501...... 65663 228...... 64952 203...... 65824 66064 41 CFR 229...... 64952 334...... 65019 240...... 64952 25 CFR 105-68...... 66534 241...... 65820 Proposed Rules: 34 CFR 105-74...... 66534 249...... 64952 161...... 64023 84...... 66534 270...... 64952 85...... 66534 42 CFR 274...... 64952 26 CFR 668...... 66534 71...... 62353 Proposed Rules: 1 ...... 62516, 63733, 63734, 682...... 66534 73...... 62245 36...... 66032 63986, 65634 400...... 63692 240 ...... 62872, 62910, 62972 31...... 63734 36 CFR 405...... 63692 242...... 62972 602...... 63734, 63986 1209...... 66534 410...... 63196, 63398

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414...... 63196 126...... 62501 48 CFR 1806...... 64847 419...... 63398 176...... 62501 204...... 64555, 64557 1807...... 64847 426...... 63692, 65346 232...... 62535 208...... 64559 1808...... 64847 281...... 62535 1809...... 64847 43 CFR 210...... 64559 287...... 62535 212...... 64557 1811...... 64847 12...... 66534 295...... 62535 213...... 64557 1821...... 64847 42...... 66534 298...... 62535 216...... 64661 43...... 66534 310...... 62535 219...... 64559 49 CFR 355...... 62535 252...... 64557, 64559 44 CFR 380...... 62535 29...... 66534 Proposed Rules: 32...... 66534 64...... 62748 390...... 62535 601...... 64297 383...... 63030 65 ...... 64809, 64812, 66020 602...... 64297 571...... 65179, 65404 67 ...... 64817, 64819, 66023, 47 CFR 603...... 64297 579...... 64568 66024 1...... 66252 604...... 64297 590...... 65404 206...... 63738 25...... 62247, 63994 605...... 64297 1572...... 63033 Proposed Rules: 27...... 66252 606...... 64297 Proposed Rules: 67 ...... 63745, 64844, 64845, 51...... 63999 609...... 64297 192...... 62555 64846, 66067 64 ...... 62249, 62751, 63029 611...... 64297 195...... 62555 73 ...... 62539, 62540, 62541, 612...... 64297 45 CFR 224...... 62942 64555, 66351 613...... 64297 393...... 64072 5b...... 62250 Proposed Rules: 616...... 64297 571 ...... 62417, 65431, 65667 76...... 66534 1...... 66232 617...... 64297 587...... 62421 82...... 66534 2...... 66232 619...... 64297 620...... 66534 20...... 66232 622...... 64297 630...... 66534 21...... 66232 623...... 64297 50 CFR 1154...... 66534 22...... 64050, 66232 625...... 64297 229...... 65409 1155...... 66534 24...... 64050, 66232 626...... 64297 622 ...... 62373, 62542, 64820 1169...... 66534 25...... 66232 628...... 64297 635...... 63738, 64990 1173...... 66534 27...... 66232 630...... 64297 648...... 62250, 64821 1185...... 66534 53...... 65665 632...... 64297 660...... 62374, 66352 1186...... 66534 73 ...... 62554, 64578, 64579, 636...... 64297 Proposed Rules: 2542...... 66534 66394 637...... 64297 17...... 65020, 66395 2545...... 66534 74...... 66232 642...... 64297 20...... 65023 78...... 66232 651...... 64297 300...... 63052 46 CFR 80...... 66232 652...... 64297 600...... 62267, 64578 2...... 62501 87...... 66232 653...... 64297 622 ...... 62267, 62422, 66069 31...... 62501 90...... 64050, 66232 1801...... 64847 635...... 63747 71...... 62501 95...... 66232 1803...... 64847 648...... 64579 91...... 62501 97...... 66232 1804...... 64847 660...... 62763, 63053 115...... 62501 101...... 66232 1805...... 64847 679...... 62423, 65676

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REMINDERS Governmentwide Governmentwide Governmentwide The items in this list were requirements; published requirements; published requirements— editorially compiled as an aid 11-26-03 11-26-03 Institute of Museum and to Federal Register users. ENERGY DEPARTMENT INTER-AMERICAN Library Sciences; Inclusion or exclusion from Debarment and suspension FOUNDATION published 11-26-03 this list has no legal (nonprocurement) and drug- Debarment and suspension National Endowment for significance. free workplace (grants): (nonprocurement) and drug- the Arts; published 11- Governmentwide free workplace (grants): 26-03 Governmentwide National Endowment for RULES GOING INTO requirements; published 11-26-03 requirements; published the Humanities; EFFECT NOVEMBER 26, 11-26-03 published 11-26-03 2003 ENVIRONMENTAL PROTECTION AGENCY INTERIOR DEPARTMENT NATIONAL SCIENCE Fish and Wildlife Service FOUNDATION AFRICAN DEVELOPMENT Air quality implementation Migratory bird permits: Debarment and suspension FOUNDATION plans; approval and promulgation; various Rehabilitation activities and (nonprocurement) and drug- Debarment and suspension permit exceptions; free workplace (grants): (nonprocurement) and drug- States; air quality planning published 10-27-03 Governmentwide free workplace (grants): purposes; designation of INTERIOR DEPARTMENT requirements; published Governmentwide areas: Debarment and suspension 11-26-03 requirements; published Idaho; published 10-27-03 (nonprocurement) and drug- 11-26-03 Air quality implementation PEACE CORPS free workplace (grants): Debarment and suspension AGENCY FOR plans; approval and Governmentwide (nonprocurement) and drug- INTERNATIONAL promulgation; various States: requirements; published free workplace (grants): DEVELOPMENT 11-26-03 Debarment and suspension Maryland; published 10-27- Governmentwide JUSTICE DEPARTMENT (nonprocurement) and drug- 03 requirements; published Debarment and suspension 11-26-03 free workplace (grants): North Carolina; published (nonprocurement) and drug- Governmentwide 11-26-03 PERSONNEL MANAGEMENT free workplace (grants): requirements; published OFFICE Debarment and suspension Governmentwide 11-26-03 (nonprocurement) and drug- Debarment and suspension requirements; published (nonprocurement) and drug- AGRICULTURE free workplace (grants): 11-26-03 DEPARTMENT free workplace (grants): Governmentwide LABOR DEPARTMENT Agricultural Marketing requirements; published Governmentwide Debarment and suspension Service 11-26-03 requirements; published (nonprocurement) and drug- Oranges and grapefruit grown 11-26-03 EXPORT-IMPORT BANK free workplace (grants): in— SMALL BUSINESS Debarment and suspension Governmentwide ADMINISTRATION Texas; published 11-25-03 (nonprocurement) and drug- requirements; published Debarment and suspension AGRICULTURE free workplace (grants): 11-26-03 DEPARTMENT (nonprocurement) and drug- Governmentwide NATIONAL AERONAUTICS free workplace (grants): Debarment and suspension requirements; published AND SPACE Governmentwide (nonprocurement) and drug- 11-26-03 ADMINISTRATION free workplace (grants): requirements; published FEDERAL MEDIATION AND Debarment and suspension 11-26-03 Governmentwide (nonprocurement) and drug- CONCILIATION SERVICE SOCIAL SECURITY requirements; published free workplace (grants): Debarment and suspension ADMINISTRATION 11-26-03 Governmentwide (nonprocurement) and drug- Debarment and suspension COMMERCE DEPARTMENT requirements; published free workplace (grants): (nonprocurement) and drug- Debarment and suspension 11-26-03 Governmentwide free workplace (grants): (nonprocurement) and drug- NATIONAL ARCHIVES AND requirements; published Governmentwide free workplace (grants): RECORDS ADMINISTRATION 11-26-03 requirements; published Governmentwide Debarment and suspension requirements; published GENERAL SERVICES 11-26-03 ADMINISTRATION (nonprocurement) and drug- 11-26-03 free workplace (grants): STATE DEPARTMENT Debarment and suspension CORPORATION FOR Governmentwide Debarment and suspension (nonprocurement) and drug- NATIONAL AND requirements; published (nonprocurement) and drug- free workplace (grants): COMMUNITY SERVICE 11-26-03 free workplace (grants): Governmentwide Debarment and suspension EXECUTIVE OFFICE OF THE Governmentwide requirements; published (nonprocurement) and drug- PRESIDENT requirements; published 11-26-03 11-26-03 free workplace (grants): National Drug Control Policy Governmentwide HEALTH AND HUMAN Office TRANSPORTATION requirements; published SERVICES DEPARTMENT Debarment and suspension DEPARTMENT 11-26-03 Debarment and suspension (nonprocurement) and drug- Debarment and suspension DEFENSE DEPARTMENT (nonprocurement) and drug- free workplace (grants): (nonprocurement) and drug- Debarment and suspension free workplace (grants): Governmentwide free workplace (grants): (nonprocurement) and drug- Governmentwide requirements; published Governmentwide free workplace (grants): requirements; published 11-26-03 requirements; published Governmentwide 11-26-03 ARTS AND HUMANITIES, 11-26-03 requirements; published HOUSING AND URBAN NATIONAL FOUNDATION TRANSPORTATION 11-26-03 DEVELOPMENT National Foundation on the DEPARTMENT EDUCATION DEPARTMENT DEPARTMENT Arts and the Humanities Federal Aviation Debarment and suspension Debarment and suspension Debarment and suspension Administration (nonprocurement) and drug- (nonprocurement) and drug- (nonprocurement) and drug- Air traffic operating and flight free workplace (grants): free workplace (grants): free workplace (grants): rules, etc.:

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Reduced vertical separation DEFENSE DEPARTMENT Kentucky; comments due by Evaluating safety of minimum in domestic U.S. Acquisition regulations: 12-3-03; published 11-3- antimicrobial new animal airspace; published 10-27- Indian Incentive Program; 03 [FR 03-27551] drugs with regard to their 03 comments due by 12-1- Missouri; comments due by microbiological effects on Airworthiness directives: 03; published 10-1-03 [FR 12-1-03; published 10-30- bacteria of human health Eurocopter France; 03-24629] 03 [FR 03-27261] concern; Open for comments until further published 10-22-03 Service contracts and task Montana and Wyoming; comments due by 12-5- notice; published 10-27-03 McDonnell Douglas; orders approval; [FR 03-27113] published 10-22-03 comments due by 12-1- 03; published 11-5-03 [FR 03-27265] HOMELAND SECURITY TRANSPORTATION 03; published 10-1-03 [FR Air quality planning purposes; DEPARTMENT DEPARTMENT 03-24627] designation of areas: Customs and Border Federal Highway EDUCATION DEPARTMENT California; comments due by Protection Bureau Administration Grants: 12-1-03; published 10-31- Articles conditionally free, Planning and research: Faith-based organizations; 03 [FR 03-27487] subject to reduced rate, eligibility to participate in Interstate highway system; Environmental statements; etc.: direct grant, State- published 11-26-03 availability, etc.: Caribbean Basin Economic administered, and other Recovery Act; brassieres; TRANSPORTATION such programs; comments Coastal nonpoint pollution preferential treatment; DEPARTMENT due by 12-1-03; published control program— comments due by 12-1- Federal Transit 9-30-03 [FR 03-24292] Minnesota and Texas; Administration Open for comments 03; published 9-30-03 [FR ENERGY DEPARTMENT 03-24796] Planning and research: until further notice; Energy Efficiency and Drawback: Interstate highway system; published 10-16-03 [FR Renewable Energy Office Merchandise processing published 11-26-03 03-26087] Consumer products; energy Hazardous waste program fees; claim eligibility TREASURY DEPARTMENT conservation program: authorizations: based on substitution of Debarment and suspension Energy conservation South Dakota; comments finished petroleum (nonprocurement) and drug- standards and test due by 12-3-03; published derivatives; comments due free workplace (grants): procedures— 11-3-03 [FR 03-27553] by 12-1-03; published 10- 2-03 [FR 03-24856] Governmentwide Clothes washers; Pesticides; tolerances in food, requirements; published comments due by 12-1- animal feeds, and raw INTERIOR DEPARTMENT 11-26-03 03; published 10-31-03 agricultural commodities: Fish and Wildlife Service VETERANS AFFAIRS [FR 03-27468] Vinclozolin; comments due Endangered and threatened DEPARTMENT Clothes washers; by 12-1-03; published 9- species: Debarment and suspension comments due by 12-1- 30-03 [FR 03-24782] Critical habitat (nonprocurement) and drug- 03; published 10-31-03 Zinc phosphide; comments designations— free workplace (grants): [FR 03-27469] due by 12-1-03; published Tennessee and Governmentwide ENERGY DEPARTMENT 9-30-03 [FR 03-24844] Cumberland River Basin requirements; published Federal Energy Regulatory Superfund program: mussels; technical 11-26-03 Commission National oil and hazardous correction; comments Electric rate and corporate substances contingency due by 12-5-03; regulation filings: plan— published 10-6-03 [FR COMMENTS DUE NEXT 03-25184] WEEK Virginia Electric & Power National priorities list Co. et al.; Open for update; comments due Scarlet-chested parakeet comments until further by 12-1-03; published and turquoise parakeet; AGRICULTURE notice; published 10-1-03 10-30-03 [FR 03-27161] comments due by 12-1- DEPARTMENT [FR 03-24818] FEDERAL 03; published 9-2-03 [FR Animal and Plant Health 03-22225] ENVIRONMENTAL COMMUNICATIONS Inspection Service Migratory bird permits: PROTECTION AGENCY COMMISSION Viruses, serums, toxins, etc.: Icelandic eiderdown; Air programs; approval and Radio spectrum, efficient use importation; comments Bovine virus diarrhea and promulgation; State plans promotion; secondary due by 12-4-03; published bovine rhinotracheitis for designated facilities and markets development; 9-5-03 [FR 03-22298] vaccines; standard pollutants: regulatory barriers requirements; comments INTERIOR DEPARTMENT Puerto Rico; comments due elimination; comments due due by 12-5-03; published by 12-5-03; published 11- Minerals Management 10-6-03 [FR 03-25252] by 12-1-03; published 10- 31-03 [FR 03-27483] 25-03 [FR 03-29193] Service COMMERCE DEPARTMENT Radio stations; table of Air quality implementation Outer Continental Shelf; oil, assignments: National Oceanic and plans; approval and gas, and sulphur operations: Atmospheric Administration promulgation; various North Carolina; comments Incident reporting Fishery conservation and States; air quality planning due by 12-1-03; published requirements; comments management: purposes; designation of 10-22-03 [FR 03-26682] due by 12-5-03; published Alaska; fisheries of areas: Television stations; table of 7-31-03 [FR 03-19459] Exclusive Economic Arizona; comments due by assignments: INTERIOR DEPARTMENT Zone— 12-3-03; published 11-3- New York; comments due Surface Mining Reclamation Gulf of Alaska groundfish; 03 [FR 03-27263] by 12-1-03; published 10- and Enforcement Office comments due by 12-1- Air quality implementation 31-03 [FR 03-27430] Permanent program and 03; published 10-16-03 plans; approval and HEALTH AND HUMAN abandoned mine land [FR 03-26074] promulgation; various SERVICES DEPARTMENT reclamation plan Gulf of Alaska groundfish; States: Food and Drug submissions: comments due by 12-4- California; comments due by Administration Colorado; comments due by 03; published 11-4-03 12-1-03; published 10-30- Reports and guidance 12-5-03; published 11-20- [FR 03-27605] 03 [FR 03-27267] documents; availability, etc.: 03 [FR 03-28996]

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JUSTICE DEPARTMENT Federal Employees Health TRANSPORTATION S. 313/P.L. 108–130 Grants: Benefits Children’s Equity DEPARTMENT Animal Drug User Fee Act of Religious organizations; Act of 2002; Maritime Administration 2003 (Nov. 18, 2003; 117 participation in department implementation; comments Information collection Stat. 1361) programs; equal treatment due by 12-1-03; published responses; electronic of all program 10-1-03 [FR 03-24792] transmittal options; H.R. 274/P.L. 108–131 participants; comments comments due by 12-5-03; Prevailing rate systems; Blackwater National Wildlife due by 12-1-03; published published 11-5-03 [FR 03- comments due by 12-1-03; Refuge Expansion Act (Nov. 9-30-03 [FR 03-24294] 27761] published 10-31-03 [FR 03- 22, 2003; 117 Stat. 1372) LABOR DEPARTMENT 27382] TREASURY DEPARTMENT Employment and Training H.R. 2559/P.L. 108–132 Administration SECURITIES AND Internal Revenue Service EXCHANGE COMMISSION Workforce Investment Act; Income taxes: Military Construction nondiscrimination and equal Investment companies: Consolidated return Appropriations Act, 2004 (Nov. opportunity provisions: Fund of funds investments; regulations— 22, 2003; 117 Stat. 1374) Section 108 application to Religious activities; Federal investment company’s H.R. 3054/P.L. 108–133 financial assistance; ability to acquire shares consolidated group comments due by 12-1- of another investment members; indebtedness District of Columbia Military 03; published 9-30-03 [FR company broadened; income discharge; Retirement Equity Act of 2003 03-24296] registration forms cross-reference; (Nov. 22, 2003; 117 Stat. LABOR DEPARTMENT amended; comments due comments due by 12-3- 1386) Workforce Investment Act; by 12-3-03; published 10- 03; published 9-4-03 H.R. 3232/P.L. 108–134 nondiscrimination and equal 8-03 [FR 03-25336] [FR 03-22454] opportunity provisions: Nonaccrual-experience TRANSPORTATION To reauthorize certain school method of accounting; use Religious activities; Federal DEPARTMENT lunch and child nutrition financial assistance; limitation; cross reference; programs through March 31, comments due by 12-1- Federal Aviation public hearing; comments 2004. (Nov. 22, 2003; 117 03; published 9-30-03 [FR Administration due by 12-3-03; published Stat. 1389) 03-24296] Airworthiness directives: 9-4-03 [FR 03-22459] H.J. Res. 79/P.L. 108–135 NATIONAL CREDIT UNION Airbus; comments due by ADMINISTRATION Making further continuing 12-1-03; published 10-30- LIST OF PUBLIC LAWS Credit unions: 03 [FR 03-27323] appropriations for the fiscal Conversion of insured credit Australia Pty Ltd.; year 2004, and for other unions to mutual savings This is a continuing list of AeroSpace Technologies; purposes. (Nov. 22, 2003; 117 banks; information public bills from the current comments due by 12-4- Stat. 1391) disclosure; comments due session of Congress which 03; published 10-24-03 by 12-1-03; published 10- have become Federal laws. It Last List November 19, 2003 1-03 [FR 03-24762] [FR 03-26899] may be used in conjunction Suretyship and guaranty Boeing; comments due by with ‘‘PLUS’’ (Public Laws requirements; maximum 12-1-03; published 11-4- Update Service) on 202–741– borrowing authority; 03 [FR 03-27672] 6043. This list is also Public Laws Electronic comments due by 12-1- Bombardier; comments due available online at http:// Notification Service 03; published 10-1-03 [FR by 12-1-03; published 10- www.nara.gov/fedreg/ (PENS) 03-24761] 31-03 [FR 03-27426] plawcurr.html. Freedom of Information Act; General Electric Co.; The text of laws is not implementation; comments comments due by 12-2- published in the Federal PENS is a free electronic mail due by 12-1-03; published 03; published 10-3-03 [FR Register but may be ordered notification service of newly 10-30-03 [FR 03-27310] 03-25000] in ‘‘slip law’’ (individual enacted public laws. To INTERIOR DEPARTMENT pamphlet) form from the subscribe, go to http:// National Indian Gaming McDonnell Douglas; comments due by 12-1- Superintendent of Documents, listserv.gsa.gov/archives/ Commission U.S. Government Printing publaws-l.html Indian Gaming Regulatory Act: 03; published 10-15-03 [FR 03-25979] Office, Washington, DC 20402 Fee rates; comments due (phone, 202–512–1808). The Note: This service is strictly by 11-30-03; published Saab; comments due by 12- text will also be made for E-mail notification of new 10-8-03 [FR 03-25472] 1-03; published 10-30-03 available on the Internet from laws. The text of laws is not PERSONNEL MANAGEMENT [FR 03-27321] GPO Access at http:// available through this service. OFFICE Class E airspace; comments www.access.gpo.gov/nara/ PENS cannot respond to Health benefits, Federal due by 12-5-03; published nara005.html. Some laws may specific inquiries sent to this employees: 10-21-03 [FR 03-26560] not yet be available. address.

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