3–1–04 Monday Vol. 69 No. 40 Mar. 1, 2004
Pages 9515–9742
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1 II Federal Register / Vol. 69, No. 40 / Monday, March 1, 2004
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2 III
Contents Federal Register Vol. 69, No. 40
Monday, March 1, 2004
Agriculture Department Defense Department See Cooperative State Research, Education, and Extension See Army Department Service See Federal Crop Insurance Corporation Economic Development Administration See Food and Nutrition Service NOTICES See Forest Service Adjustment assistance: See Grain Inspection, Packers and Stockyards Cord Master Engineering Co., Inc., et al., 9582–9583 Administration See Natural Resources Conservation Service Education Department See Rural Utilities Service NOTICES NOTICES Agency information collection activities; proposals, Agency information collection activities; proposals, submissions, and approvals, 9600–9602 submissions, and approvals, 9568 Privacy Act: Systems of records, 9602–9605 Army Department Energy Department NOTICES See Federal Energy Regulatory Commission Meetings: U.S. Military Academy, Board of Visitors, 9600 Environmental Protection Agency RULES Coast Guard Air pollution control: RULES State operating permits programs— Drawbridge operations: New York, 9557–9558 Florida, 9547–9551 Air programs; approval and promulgation; State plans for Louisiana, 9549 designated facilities and pollutants: New Jersey, 9551–9552 South Carolina, 9554–9557 New York, 9549–9550 PROPOSED RULES Ports and waterways safety: Air programs; approval and promulgation; State plans for Upper Potomac River, Upper Chesapeake Bay, and designated facilities and pollutants: Chesapeake and Delaware Canal, MD; safety zone, South Carolina, 9564–9565 9552–9553 NOTICES PROPOSED RULES Agency information collection activities; proposals, Drawbridge operations: submissions, and approvals, 9612–9617 Connecticut, 9562–9564 Confidential business information and data transfer, 9617– 9618 Commerce Department Grants and cooperative agreements; availability, etc.: See Economic Development Administration Hazardous substances research program, 9618–9623 See Foreign-Trade Zones Board Reports and guidance documents; availability, etc.: See Industry and Security Bureau Draft Inventory of U.S. Greenhouse Gas Emissions and See International Trade Administration Sinks: 1990-2002, 9623–9624 See Minority Business Development Agency Toxic and hazardous substances control: See National Institute of Standards and Technology New chemicals— See National Oceanic and Atmospheric Administration Test marketing exemption approvals, 9624–9627 See National Telecommunications and Information Administration Executive Office of the President See Presidential Documents Commodity Futures Trading Commission Federal Aviation Administration NOTICES RULES Agency information collection activities; proposals, Airworthiness directives: submissions, and approvals, 9598–9599 Bombardier, 9523–9526 Dassault, 9521–9523 Consumer Product Safety Commission Pratt & Whitney Canada, 9520–9521 NOTICES Raytheon, 9526–9529 Agency information collection activities; proposals, submissions, and approvals, 9599 Federal Communications Commission NOTICES Cooperative State Research, Education, and Extension Common carrier services: Service Telecommunications carrier eligibility designation NOTICES petitions— Grants and cooperative agreements; availability, etc.: Sprint Corp.; North Carolina service area, 9627–9628 Geospatial Extension Specialists Program; correction, Rulemaking proceedings; petitions filed, granted, denied, 9568 etc., 9628
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Federal Crop Insurance Corporation Grain Inspection, Packers and Stockyards Administration RULES NOTICES Crop insurance regulations: Agency designation actions: Miscellaneous provisions; removal, 9519–9520 Various States, 9572–9574 Meetings: Federal Energy Regulatory Commission Grain Inspection Advisory Committee, 9574 NOTICES Electric rate and corporate regulation filings, 9607–9610 Health and Human Services Department Hydroelectric applications, 9610–9611 See Food and Drug Administration Meetings: See Health Resources and Services Administration Chandeleur Pipe Line Co., 9611 See National Institutes of Health Off-the-record communications, 9611–9612 Applications, hearings, determinations, etc.: Health Resources and Services Administration Dominion Transmission, Inc., 9605 NOTICES El Paso Natural Gas Co., 9605 Grants and cooperative agreements; availability, etc.: Gulf South Pipeline Co., LP, 9606 Competitive and other 2004 FY grant programs preview; Southern Star Central Gas Pipeline, Inc., 9606 comprehensive review and application information; Tennessee Gas Pipeline Co., 9606–9607 cancellation, 9631 Federal Motor Carrier Safety Administration NOTICES Homeland Security Department National Environmental Policy Act; implementation, 9679– See Coast Guard 9719 Housing and Urban Development Department Federal Reserve System PROPOSED RULES NOTICES Manufactured Housing Program: Privacy Act: Minimum payments to States, 9739–9742 Systems of records, 9628–9630 NOTICES Agency information collection activities; proposals, Fish and Wildlife Service submissions, and approvals, 9632 NOTICES Mortgage and loan insurance programs: Endangered and threatened species: Multifamily housing programs; basic statutory mortgage Incidental take permits— limits; adjustments, 9632–9633 Douglas County, CO; Preble’s meadow jumping mouse, Mortgagee Review Board; administrative actions, 9633–9638 9638 Industry and Security Bureau Food and Drug Administration NOTICES PROPOSED RULES Agency information collection activities; proposals, Food for human consumption: submissions, and approvals, 9584 Food labeling— Trans fatty acids in nutrition labeling, nutrient content Interior Department claims, and health claims; footnote or disclosure See Fish and Wildlife Service statement, 9559–9560 NOTICES Human drugs: Internal Revenue Service Drug products withdrawn from sale for reasons other RULES than safety or effectiveness— Income taxes: Cytoxan 2 gram vials, 9630–9631 Modified accelerated cost recovery system property; changes in use; depreciation, 9529–9547 Food and Nutrition Service PROPOSED RULES NOTICES Income taxes: Agency information collection activities; proposals, Modified accelerated cost recovery system property; submissions, and approvals, 9569 changes in use; depreciation, 9560–9562 NOTICES Foreign-Trade Zones Board Meetings: NOTICES Taxpayer Advocacy Panels, 9677 Applications, hearings, determinations, etc.: Texas International Trade Administration Turbomeca U.S.A.; helicopter engine repair and NOTICES maintenance, 9583–9584 Antidumping: Polychloroprene rubber from— Forest Service Japan, 9586–9587 NOTICES Silicomanganese from— Environmental statements; notice of intent: Brazil, 9587–9588 Colville National Forest, WA, 9569–9572 Antidumping and countervailing duties: Colville National Forest, WA; cancellation, 9569 Administrative review requests, 9584–9585 Meetings: Five-year (sunset) review— Northwest Sacramento Provincial Advisory Committee, Initiation of reviews, 9585–9586 9572 Export trade certificates of review, 9588–9590
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Import investigations: National Telecommunications and Information Stainless steel sheet and strips in coils from— Administration Italy, 9590 NOTICES North American Free Trade Agreement (NAFTA); Meetings: binational panel reviews: Wireless Sensor Technology Forum, 9598 Carbon and alloy steel wire rod from— Canada, 9590–9591 Natural Resources Conservation Service NOTICES Environmental statements; availability, etc.: International Trade Commission Dona Ana Arroyo Watershed, NM, 9574–9575 NOTICES Environmental Quality Incentives Program, 9575–9576 Import investigations: Chloropicrin from— Nuclear Regulatory Commission China, 9638–9640 NOTICES Greige polyester/cotton printcloth from— Applications, hearings, determinations, etc.: China, 9640–9643 Nuclear Fuel Services, Inc., 9649 Outboard engines from— Nuclear Management Co., LLC, 9649–9650 Japan, 9643 STP Nuclear Operating Co. et al., 9650–9651 Meetings; Sunshine Act, 9643 Occupational Safety and Health Administration Labor Department NOTICES See Occupational Safety and Health Administration State plans: Oregon; approval of State standards amendments, 9643– 9647 Minority Business Development Agency NOTICES Presidential Documents Grants and cooperative agreements; availability, etc.: PROCLAMATIONS Minority Business Development Center Program, 9591 Cuba; expansion of national emergency and invocation of emergency authority relating to the anchorage and National Aeronautics and Space Administration movement of vessels (Proc. 7757), 9515–9517 NOTICES Meetings: Presidio Trust Advisory Council NOTICES Space Science Advisory Committee, 9648 Environmental statements; availability, etc.: Patent licenses; non-exclusive, exclusive, or partially Presidio Trust Management Plan— exclusive: Public Health Service Hospital district, 9651 Laura Lee Desrosiers Curtis LLC, 9648 Nivis LLC, 9648 Research and Special Programs Administration PROPOSED RULES Hazardous materials: National Institute of Standards and Technology Regulatory Flexibility Act Section 610 and plain language NOTICES reviews, 9565–9567 Voluntary product standards: American Softwood Lumber Standard; comment request, Rural Utilities Service 9591–9592 NOTICES Grants and cooperative agreements; availability, etc.: National Institutes of Health Distance Learning and Telemedicine Loan and Grant NOTICES Program, 9576–9582 Meetings: Advisory Committee to Director, 9631 Securities and Exchange Commission RULES Securities, etc.: National Oceanic and Atmospheric Administration Sarbanes-Oxley Act of 2002; implementation— NOTICES Exchange Act periodic reports; inclusion of Grants and cooperative agreements; availability, etc.: management’s report on internal control over Funds; availability for 2004 FY; omnibus notice; financial reporting and certification of disclosure, Republication, 9592–9596 9721–9723 Meetings: PROPOSED RULES International Commission for Conservation of Atlantic Investment companies: Tunas, U.S. Section Advisory Committee, 9596 Brokerage commission usage for finance distribution; Permits: prohibition, 9725–9737 Endangered and threatened species, 9596–9597 NOTICES Exempted fishing, 9597–9598 Self-regulatory organizations; proposed rule changes: American Stock Exchange LLC, 9651–9655 National Science Foundation Boston Stock Exchange Clearing Corp., 9657 NOTICES Boston Stock Exchange, Inc., 9655–9658 Meetings: Chicago Stock Exchange, Inc., 9658–9662 NSF-NASA National Astronomy and Astrophysics National Association of Securities Dealers, Inc., 9662– Advisory Committee, 9648–9649 9668
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National Securities Clearing Corp., 9668–9670 Veterans Affairs Department Pacific Exchange, Inc., 9670–9672 NOTICES Philadelphia Stock Exchange, Inc., 9672–9674 Disability compensation and dependency and indemnity compensation; rates adjustments, 9677–9678 Inventions, Government-owned; availability for licensing, Small Business Administration 9678 NOTICES Disaster loan areas: Oregon, 9674 Separate Parts In This Issue Applications, hearings, determinations, etc.: Elk Associates Funding Corp., 9674 Part II Transportation Department, Federal Motor Carrier Safety State Department Administration, 9679–9719 NOTICES Art objects; importation for exhibition: Part III Cubist Paintings of Diego Rivera Memory, Politics, Place, Securities and Exchange Commission, 9721–9723 9674 Japan and Paris: Impressionism, Postimpressionism and Part IV the Modern Era, 9675 Securities and Exchange Commission, 9725–9737 Meetings: Shipping Coordinating Committee, 9675 Part V Housing and Urban Development Department, 9739–9742 Transportation Department See Federal Aviation Administration Reader Aids See Federal Motor Carrier Safety Administration Consult the Reader Aids section at the end of this issue for See Research and Special Programs Administration phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws. Treasury Department To subscribe to the Federal Register Table of Contents See Internal Revenue Service LISTSERV electronic mailing list, go to http:// NOTICES listserv.access.gpo.gov and select Online mailing list Agency information collection activities; proposals, archives, FEDREGTOC-L, Join or leave the list (or change submissions, and approvals, 9675–9677 settings); then follow the instructions.
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CFR PARTS AFFECTED IN THIS ISSUE
A cumulative list of the parts affected this month can be found in the Reader Aids section at the end of this issue.
3 CFR Proclamations: 6867 (Amended by Proc. 7757) ...... 9515 7757...... 9515 7 CFR 400...... 9519 457...... 9519 14 CFR 39 (4 documents) ...9520, 9521, 9523, 9526 17 CFR 210...... 9722 228...... 9722 229...... 9722 240...... 9722 249...... 9722 270...... 9722 274...... 9722 Proposed Rules: 270...... 9726 21 CFR Proposed Rules: 101...... 9559 24 CFR Proposed Rules: 3284...... 9740 26 CFR 1...... 9529 Proposed Rules: 1...... 9560 33 CFR 117 (5 documents) ...... 9547, 9549, 9550, 9551 165...... 9552 Proposed Rules: 117...... 9562 40 CFR 62...... 9554 70...... 9557 Proposed Rules: 62...... 9564 49 CFR Proposed Rules: 172...... 9565 173...... 9565 174...... 9565 175...... 9565 176...... 9565 177...... 9565 178...... 9565
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Federal Register Presidential Documents Vol. 69, No. 40
Monday, March 1, 2004
Title 3— Proclamation 7757 of February 26, 2004
The President Expanding the Scope of the National Emergency and Invoca- tion of Emergency Authority Relating to the Regulation of the Anchorage and Movement of Vessels into Cuban Territorial Waters
By the President of the United States of America
A Proclamation
By the authority vested in me by the Constitution and the laws of the United States of America, in order to expand the scope of the national emergency declared in Proclamation 6867 of March 1, 1996, based on the disturbance or threatened disturbance of the international relations of the United States caused by actions taken by the Cuban government, and in light of steps taken over the past year by the Cuban government to worsen the threat to United States international relations, and, WHEREAS the United States has determined that Cuba is a state-sponsor of terrorism and it is subject to the restrictions of section 6(j)(1)(A) of the Export Administration Act of 1979, section 620A of the Foreign Assist- ance Act of 1961, and section 40 of the Arms Export Control Act; WHEREAS the Cuban government has demonstrated a ready and reckless willingness to use excessive force, including deadly force, against U.S. citi- zens, in the ostensible enforcement of its sovereignty, including the February 1996 shoot-down of two unarmed U.S.-registered civilian aircraft in inter- national airspace, resulting in the deaths of three American citizens and one other individual; WHEREAS the Cuban government has demonstrated a ready and reckless willingness to use excessive force, including deadly force, against U.S. citi- zens and its own citizens, including on July 13, 1995, when persons in U.S.-registered vessels that entered into Cuban territorial waters suffered injury as a result of the reckless use of force against them by the Cuban military, and including the July 1994 sinking of an unarmed Cuban-registered vessel, resulting in the deaths of 41 Cuban citizens; WHEREAS the Cuban government has impounded U.S.-registered vessels in Cuban ports and forced the owners, as a condition of release, to violate U.S. law by requiring payments to be made to the Cuban government; WHEREAS the entry of any U.S.-registered vessels into Cuban territorial waters could result in injury to, or loss of life of, persons engaged in that conduct, due to the potential use of excessive force, including deadly force, against them by the Cuban military, and could threaten a disturbance of international relations; WHEREAS the unauthorized entry of vessels subject to the jurisdiction of the United States into Cuban territorial waters is in violation of U.S. law and contrary to U.S. policy; WHEREAS the objectives of U.S. policy regarding Cuba are the end of the dictatorship and a rapid, peaceful transition to a representative democracy respectful of human rights and characterized by an open market economic system;
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WHEREAS a critical initiative by the United States to advance these U.S. objectives is to deny resources to the repressive Cuban government, resources that may be used by that government to support terrorist activities and carry out excessive use of force against innocent victims, including U.S. citizens; WHEREAS the unauthorized entry of U.S.-registered vessels into Cuban terri- torial waters is detrimental to the foreign policy of the United States, which is to deny monetary and material support to the repressive Cuban govern- ment, and, therefore, such unauthorized entries threaten to disturb the inter- national relations of the United States by facilitating the Cuban government’s support of terrorism, use of excessive force, and continued existence; WHEREAS the Cuban government has over the course of its 45-year existence repeatedly used violence and the threat of violence to undermine U.S. policy interests. This same regime continues in power today, and has since 1959 maintained a pattern of hostile actions contrary to U.S. policy interests. Among other things, the Cuban government established a military alliance with the Soviet Union, and invited Soviet forces to install nuclear missiles in Cuba capable of attacking the United States, and encouraged Soviet au- thorities to use those weapons against the United States; it engaged in military adventurism in Africa; and it helped to form and provide material and political support to terrorist organizations that sought the violent over- throw of democratically elected governments in Central America and else- where in the hemisphere allied with the United States, thereby causing repeated disturbances of U.S. international relations; WHEREAS the Cuban government has recently and over the last year taken a series of steps to destabilize relations with the United States, including threatening to abrogate the Migration Accords with the United States and to close the U.S. Interests Section, and Cuba’s most senior officials repeatedly asserting that the United States intended to invade Cuba, despite explicit denials from the U.S. Secretaries of State and Defense that such action is planned, thereby causing a sudden and worsening disturbance of U.S. international relations; WHEREAS U.S. concerns about these unforeseen Cuban government actions that threaten to disturb international relations were sufficiently grave that on May 8, 2003, the United States warned the Cuban government that political manipulations that resulted in a mass migration would be viewed as a ‘‘hostile act;’’ NOW, THEREFORE, I, GEORGE W. BUSH, President of the United States of America, by the authority vested in me by the Constitution and the laws of the United States of America, including section 1 of title II of Public Law 65–24, ch. 30, June 15, 1917, as amended (50 U.S.C. 191), sections 201 and 301 of the National Emergencies Act (50 U.S.C. 1601 et seq.), and section 301 of title 3, United States Code, in order to expand the scope of the national emergency declared in Proclamation 6867 of March 1, 1996, and to secure the observance of the rights and obligations of the United States, hereby authorize and direct the Secretary of Homeland Security (the ‘‘Secretary’’) to make and issue such rules and regulations as the Sec- retary may find appropriate to regulate the anchorage and movement of vessels, and authorize and approve the Secretary’s issuance of such rules and regulations, as authorized by the Act of June 15, 1917. Section 1. The Secretary may make rules and regulations governing the anchorage and movement of any vessel, foreign or domestic, in the territorial waters of the United States, which may be used, or is susceptible of being used, for voyage into Cuban territorial waters and that may create unsafe conditions, or result in unauthorized transactions, and thereby threaten a disturbance of international relations. Any rule or regulation issued pursuant to this proclamation may be effective immediately upon issuance as such rule or regulation shall involve a foreign affairs function of the United States.
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Sec. 2. The Secretary is authorized to inspect any vessel, foreign or domestic, in the territorial waters of the United States, at any time; to place guards on any such vessel; and, with my consent expressly hereby granted, take full possession and control of any such vessel and remove the officers and crew and all other persons not specifically authorized by the Secretary to go or remain on board the vessel when necessary to secure the rights and obligations of the United States. Sec. 3. The Secretary may request assistance from such departments, agencies, officers, or instrumentalities of the United States as the Secretary deems necessary to carry out the purposes of this proclamation. Such departments, agencies, officers, or instrumentalities shall, consistent with other provisions of law and to the extent practicable, provide requested assistance. Sec. 4. The Secretary may seek assistance from State and local authorities in carrying out the purposes of this proclamation. Because State and local assistance may be essential for an effective response to this emergency, I urge all State and local officials to cooperate with Federal authorities and to take all actions within their lawful authority necessary to prevent the unauthorized departure of vessels intending to enter Cuban territorial waters. Sec. 5. All powers and authorities delegated by this proclamation to the Secretary may be delegated by the Secretary to other officers and agents of the United States Government unless otherwise prohibited by law. Sec. 6. Any provisions of Proclamation 6867 that are inconsistent with the provisions of this proclamation are superseded to the extent of such inconsistency. Sec. 7. This proclamation shall be immediately transmitted to the Congress and published in the Federal Register. IN WITNESS WHEREOF, I have hereunto set my hand this twenty-sixth day of February, in the year of our Lord two thousand four, and of the Independence of the United States of America the two hundred and twenty- eighth. W
[FR Doc. 04–4634 Filed 2–27–04; 8:45 am] Billing code 3195–01–P
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Rules and Regulations Federal Register Vol. 69, No. 40
Monday, March 1, 2004
This section of the FEDERAL REGISTER This rule contains no Federal mandates Executive Order 12372 contains regulatory documents having general (under the regulatory provisions of title applicability and legal effect, most of which This program is not subject to the II of the UMRA) for State, local, and provisions of Executive Order 12372 are keyed to and codified in the Code of tribal governments or the private sector. Federal Regulations, which is published under which require intergovernmental 50 titles pursuant to 44 U.S.C. 1510. Therefore, this rule is not subject to the consultation with State and local requirements of sections 202 and 205 of officials. See the Notice related to 7 CFR The Code of Federal Regulations is sold by the UMRA. part 3015, subpart V, published at 48 FR the Superintendent of Documents. Prices of 29115, June 24, 1983. new books are listed in the first FEDERAL Executive Order 13132 REGISTER issue of each week. Executive Order 12988 The rule will not have a substantial direct effect on states, on the This rule has been reviewed in accordance with Executive Order 12988 DEPARTMENT OF AGRICULTURE relationship between the national government and the states, or on the on civil justice reform. The provisions Federal Crop Insurance Corporation distribution of power and of this rule will not have a retroactive responsibilities among the various effect. The provisions of this rule will 7 CFR Parts 400 and 457 levels of government. Nor does this rule preempt State and local laws to the impose substantial direct compliance extent such State and local laws are Crop Insurance Regulations, Removal costs on state and local governments. inconsistent herewith. The administrative appeal provisions of Miscellaneous Provisions Therefore, consultation with the states published at 7 CFR part 11 or 7 CFR is not required. AGENCY: Federal Crop Insurance 400.169, as applicable, must be Corporation, USDA. Regulatory Flexibility Act exhausted before any action for judicial ACTION: Final rule. review of any determination or action FCIC certifies that this regulation will by FCIC may be brought. SUMMARY: The Federal Crop Insurance not have a significant economic impact Corporation (FCIC) is removing on a substantial number of small Environmental Evaluation outdated provisions in 7 CFR chapter IV entities. Program requirements for the This action is not expected to have a that are no longer applicable in the Federal crop insurance program are the significant impact on the quality of the administration of the Federal crop same for all producers regardless of the human environment, health, and safety. insurance program. size of their farming operation. For Therefore, neither an Environmental EFFECTIVE DATE: March 31, 2004. instance, all producers are required to Assessment nor an Environmental FOR FURTHER INFORMATION CONTACT: submit an application and acreage Impact Statement is needed. Louise Narber, Risk Management report to establish their insurance Background Specialist, Product Development guarantees, and compute premium Division, Federal Crop Insurance amounts, or a notice of loss and FCIC has reviewed its regulations Corporation, 6501 Beacon Drive, Stop production information to determine an published at 7 CFR chapter IV and 0812, Room 421, Kansas City, MO, indemnity payment in the event of an determined that § 400.29 at 7 CFR part 64133–4676, telephone (816) 926–7730. insured cause of crop loss. Whether a 400, subpart C; § 400.57 at 7 CFR part SUPPLEMENTARY INFORMATION: producer has 10 acres or 1000 acres, 400, subpart G; § 400.127 at 7 CFR part there is no difference in the kind of 400, subpart K; § 400.210 at 7 CFR part Executive Order 12866 information collected. To ensure crop 400, subpart M; § 400.413 at 7 CFR part This rule has been determined to be insurance is available to small entities, 400, subpart Q; § 400.500 at 7 CFR part exempt for the purposes of Executive the Federal Crop Insurance Act 400, subpart R; § 400.676 at 7 CFR part Order 12866 and, therefore, it has not authorizes FCIC to waive collection of 400, subpart U; and 7 CFR part 400 been reviewed by the Office of administrative fees from limited subpart H—Information Collection Requirements Under the Paperwork Management and Budget (OMB). resource farmers. FCIC believes this Reduction Act, OMB Control Numbers waiver helps to ensure small entities are Paperwork Reduction Act of 1995 are no longer applicable. The provisions given the same opportunities to manage for the information collection This rule does not contain their risks through the use of crop requirements relating to the collection information collection requirements that insurance. A Regulatory Flexibility and displaying of OMB control number would require approval by OMB under Analysis has not been prepared since the Paperwork Reduction Act of 1995 by form are obsolete. The OMB numbers this regulation does not have an impact (44 U.S.C. chapter 35). listed are not applicable and FCIC does on small entities, and, therefore, this not develop or distribute forms. FCIC Unfunded Mandates Reform Act of regulation is exempt from the provisions only establishes standards used by 1995 of the Regulatory Flexibility Act (5 insurance companies for such purposes. Title II of the Unfunded Mandates U.S.C. 605). Each insurance company reinsured by Reform Act of 1995 (UMRA) establishes Federal Assistance Program FCIC is responsible for their own forms requirements for Federal agencies to and those forms do not have OMB assess the effects of their regulatory This program is listed in the Catalog control numbers. The regulations listed actions on State, local, and tribal of Federal Domestic Assistance under in § 400.51 are removed from 7 CFR governments and the private sector. No. 10.450. except for part 457. Section 457.114 at
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7 CFR part 457 is no longer applicable DEPARTMENT OF TRANSPORTATION JT15D–1, –1A, and –1B turbofan engines because the nursery provisions that are with certain impellers part number (P/ currently in effect are located in Federal Aviation Administration N) 3020365. We published the proposed § 457.162. In addition, § 457.115 at 7 AD in the Federal Register on CFR part 457 is obsolete. 14 CFR Part 39 November 13, 2003 (68 FR 64295). That action proposed to require a one-time Since the purpose of this rule is [Docket No. 2003–NE–41–AD; Amendment borescope inspection of the rear face of simply to remove the provisions that are 39–13490; AD 2004–04–09] certain impellers for evidence of a obsolete and no longer applicable in the RIN 2120–AA64 machined groove or step, and repair or administration of the Federal crop replacement of the impeller if a groove insurance program, this rule is Airworthiness Directives; Pratt & or step is found. considered a rule of agency practice or Whitney Canada JT15D–1, –1A, and procedure. Therefore, under section –1B Turbofan Engines Comments 553(b) of the Administrative Procedures We provided the public the AGENCY: Federal Aviation Act, this rule does not need to be Administration (FAA), DOT. opportunity to participate in the published for notice and comment. development of this AD. We received no ACTION: Final rule. comments on the proposal or on the List of Subjects in 7 CFR Parts 400 and determination of the cost to the public. 457 SUMMARY: The FAA is adopting a new airworthiness directive (AD) for Pratt & Conclusion Crop insurance. Whitney Canada (PWC) JT15D–1, –1A, We have carefully reviewed the and –1B turbofan engines with certain available data and determined that air Final Rule impellers part number (P/N) 3020365. safety and the public interest require This AD requires a one-time borescope ■ Accordingly, under the authority of 7 adopting the AD as proposed. inspection of the rear face of certain U.S.C. 1506(1) and 1506(p), the Federal impellers for evidence of a machined Changes to 14 CFR Part 39—Effect on Crop Insurance Corporation hereby groove or step, and repair or the AD amends 7 CFR chapter IV as follows: replacement of the impeller if a groove On July 10, 2002, the FAA published PART 400—GENERAL or step is found. This AD results from a new version of 14 CFR part 39 (67 FR three reports of uncontained failure of ADMINISTRATIVE REGULATIONS 47997, July 22, 2002), which governs the the impeller. We are issuing this AD to FAA’s AD system. That regulation now ■ 1. The authority citiation for part 400 prevent uncontained failure of the includes material that relates to altered impeller and possible damage to the continues to read as follows: products, special flight permits, and airplane. alternative methods of compliance. The Authority: 7 U.S.C. 1506(1), 1506(p). DATES: This AD becomes effective April material previously was included in PART 400—[AMENDED] 5, 2004. The Director of the Federal each individual AD. Since the material Register approved the incorporation by is included in 14 CFR part 39, we will reference of certain publications listed not include it in future AD actions. ■ 2. In part 400, remove and reserve in the regulations as of April 5, 2004. §§ 400.29, 400.57, 400.65, 400.66, Costs of Compliance ADDRESSES: You can get the service 400.127, 400.210, 400.413, 400.500, and There are about 1,300 PWC JT15D–1, 400.676. information identified in this AD from Pratt & Whitney Canada, 1000 Marie- –1A, and –1B turbofan engines of the affected design in the worldwide fleet. § 400.51 [Amended] Victorin, Longueuil, Quebec, Canada J4G1A1, telephone (800) 268–8000; fax We estimate that 740 of the PWC ■ 3. In § 400.51, in the first sentence, (450) 647–2888. engines installed on airplanes of U.S. remove the listed regulations following You may examine the AD docket, by registry are affected by this AD. We also the colon ‘‘:’’ through ‘‘7 CFR part 446— appointment, at the FAA, New England estimate that it will take about 2 work Walnut Crop Insurance.’’ Region, Office of the Regional Counsel, hours per engine to perform the 12 New England Executive Park, inspection at a hot section inspection PART 457—[AMENDED] Burlington, MA. You may examine the interval, and 30 work hours per engine service information, by appointment, at to replace impellers found with a groove ■ 4. In part 457, remove and reserve the FAA, New England Region, Office of or a step in the rear face at shop visit. §§ 457.114 and 457.115. the Regional Counsel, 12 New England The average labor rate is $65 per work Executive Park, Burlington, MA; or at hour. Required parts will cost about Signed in Washington, DC, on February 25, $55,427 per engine. Based on these 2004. the Office of the Federal Register, 800 North Capitol Street, NW., suite 700, figures, we estimate that for impellers Ross J. Davidson, Jr., Washington, DC. inspected at hot section inspections, the Manager, Federal Crop Insurance total labor cost of the AD to U.S. FOR FURTHER INFORMATION CONTACT: Corporation. Ian operators is $96,200. On the basis of 100 Dargin, Aerospace Engineer, Engine [FR Doc. 04–4456 Filed 2–27–04; 8:45 am] percent replacement, the total labor cost Certification Office, FAA, Engine and BILLING CODE 3410–08–P of the AD to U.S. operators is estimated Propeller Directorate, 12 New England to be $1,443,000 and the parts Executive Park, Burlington, MA 01803– replacement cost is estimated to be 5299; telephone (781) 238–7178; fax $41,015,980 for a total replacement cost (781) 238–7199. of $42,555,180. SUPPLEMENTARY INFORMATION: The FAA proposed to amend 14 CFR Part 39 with Regulatory Findings a proposed airworthiness directive (AD). We have determined that this AD will The proposed AD applies to PWC not have federalism implications under
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Executive Order 13132. This AD will actions specified in this AD are intended to DEPARTMENT OF TRANSPORTATION not have a substantial direct effect on prevent uncontained failure of the impeller the States, on the relationship between and possible damage to the airplane. Federal Aviation Administration the national government and the States, Compliance 14 CFR Part 39 or on the distribution of power and (e) You are responsible for having the responsibilities among the various actions required by this AD performed within [Docket No. 2003–NM–30–AD; Amendment levels of government. the compliance times specified unless the 39–13492; AD 2004–04–11] For the reasons discussed above, I actions have already been done. certify that this AD: (f) If you have already inspected the RIN 2120–AA64 (1) Is not a ‘‘significant regulatory impeller, P/N 3020365, using PWC overhaul action’’ under Executive Order 12866; manual Revision 14, or if the impeller is Airworthiness Directives; Dassault (2) Is not a ‘‘significant rule’’ under listed in Appendix A of PWC Service Model Mystere-Falcon 50 Series DOT Regulatory Policies and Procedures Bulletin (SB) No. JT15D–72–7590, dated May Airplanes 23, 2003, no further action is required. (44 FR 11034, February 26, 1979); and AGENCY: Federal Aviation (3) Will not have a significant One-Time Borescope Inspection Administration, DOT. economic impact, positive or negative, (g) Perform a one-time borescope ACTION: Final rule. on a substantial number of small entities inspection of the impeller rear face for under the criteria of the Regulatory evidence of a machined groove or step, using SUMMARY: This amendment adopts a Flexibility Act. paragraph 3.B. of Accomplishment new airworthiness directive (AD), We prepared a summary of the costs Instructions of PWC SB No. JT15D–72–7590, applicable to certain Dassault Model to comply with this AD and placed it in dated May 23, 2003, as follows: Mystere-Falcon 50 series airplanes, that (1) For engines with 5,000 or more cycles- the AD Docket. You may get a copy of requires applying PR (fuel tank sealant) this summary by sending a request to us since-new (CSN) on the effective date of this AD, inspect within 250 cycles-in-service and installing PR patches over the at the address listed under ADDRESSES. internal side panel recesses of the left- Include ‘‘AD Docket No. 2003–NE–41– (CIS) after the effective date of this AD. (2) For engines with fewer than 5,000 CSN hand and right-hand feeder tanks at AD’’ in your request. on the effective date of this AD, inspect certain frames and stringers. This action List of Subjects in 14 CFR Part 39 before reaching 5,250 CSN. is necessary to prevent possible fuel Air transportation, Aircraft, Aviation Disposition of Inspected Impellers ignition in the event of a lightning strike and consequent uncontained rupture of safety, Incorporation by reference, (h) Before further flight, repair or replace Safety. impellers that do not pass the inspection the fuel tank(s). This action is intended requirements of paragraph 3.B.(8) of to address the identified unsafe Adoption of the Amendment Accomplishment Instructions of PWC SB No. condition. ■ Accordingly, under the authority JT15D–72–7590, dated May 23, 2003. DATES: Effective April 5, 2004. delegated to me by the Administrator, Alternative Methods of Compliance The incorporation by reference of the Federal Aviation Administration (i) The Manager, Engine Certification certain publications listed in the amends 14 CFR part 39 as follows: Office, has the authority to approve regulations is approved by the Director alternative methods of compliance for this of the Federal Register as of April 5, PART 39—AIRWORTHINESS AD if requested using the procedures found 2004. DIRECTIVES in 14 CFR 39.19. ADDRESSES: The service information ■ 1. The authority citation for part 39 Material Incorporated by Reference referenced in this AD may be obtained continues to read as follows: (j) You must use Pratt & Whitney Canada from Dassault Falcon Jet, PO Box 2000, Authority: 49 U.S.C. 106(g), 40113, 44701. Service Bulletin No. JT15D–72–7590, dated South Hackensack, New Jersey 07606. May 23, 2003, to perform the one-time This information may be examined at § 39.13 [Amended] inspection required by this AD. The Director the Federal Aviation Administration ■ 2. The FAA amends § 39.13 by adding of the Federal Register approved the (FAA), Transport Airplane Directorate, incorporation by reference of this service Rules Docket, 1601 Lind Avenue, SW., the following new airworthiness bulletin in accordance with 5 U.S.C. 552(a) directive (AD): and 1 CFR part 51. You can get a copy from Renton, Washington; or at the Office of 2004–04–09 Pratt & Whitney Canada: Pratt & Whitney Canada, 1000 Marie- the Federal Register, 800 North Capitol Amendment 39–13490. Docket No. Victorin, Longueuil, Quebec, Canada J4G1A1, Street, NW., suite 700, Washington, DC. 2003–NE–41–AD. telephone (800) 268–8000; fax (450) 647– FOR FURTHER INFORMATION CONTACT: Dan 2888. You can review copies at the FAA, Effective Date Rodina, Aerospace Engineer; New England Region, Office of the Regional International Branch, ANM–116, FAA, (a) This AD becomes effective April 5, Counsel, 12 New England Executive Park, Transport Airplane Directorate, 1601 2004. Burlington, MA; or at the Office of the Lind Avenue, SW., Renton, Washington Affected ADs Federal Register, 800 North Capitol Street, NW., suite 700, Washington, DC. 98055–4056; telephone (425) 227–2125; (b) None. fax (425) 227–1149. Related Information Applicability SUPPLEMENTARY INFORMATION: A (k) Transport Canada airworthiness (c) This AD applies to Pratt & Whitney proposal to amend part 39 of the Federal directive No. CF–2003–17, dated June 23, Aviation Regulations (14 CFR part 39) to Canada (PWC) JT15D–1, –1A, and –1B 2003, also addresses the subject of this AD. turbofan engines with certain impellers, part include an airworthiness directive (AD) number (P/N) 3020365, installed. These Issued in Burlington, Massachusetts, on that is applicable to certain Dassault engines are installed on, but not limited to, February 18, 2004. Model Mystere-Falcon 50 series Cessna Aircraft Company Models 500 and Francis A. Favara, airplanes was published in the Federal 501 airplanes. Acting Manager, Engine and Propeller Register on November 18, 2003 (68 FR Unsafe Condition Directorate, Aircraft Certification Service. 65005). That action proposed to require (d) This AD results from three reports of [FR Doc. 04–4100 Filed 2–27–04; 8:45 am] applying PR (fuel tank sealant) and uncontained failure of the impeller. The BILLING CODE 4910–13–P installing PR patches over the internal
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side panel recesses of the left-hand and Request To Revise Cost Impact incidental costs, such as the time right-hand feeder tanks at certain frames The same commenter states that the required to gain access and close up, and stringers. figures in the Cost Impact section of the planning time, or time necessitated by other administrative actions. Comments proposed AD do not match the figures in Dassault Document DGT–DTF/NAV Regulatory Impact Interested persons have been afforded 89815, dated December 20, 2002. The regulations adopted herein will an opportunity to participate in the From this comment we infer that the not have a substantial direct effect on making of this amendment. Due commenter is requesting that the Cost the States, on the relationship between consideration has been given to the Impact section of the proposed AD be the national Government and the States, comments received from one revised. We do not concur. The figures or on the distribution of power and commenter. in Dassault Document DGT–DTF/NAV responsibilities among the various 89815 include work hours for preparing Request To Revise Statement of Unsafe levels of government. Therefore, it is an airplane (including degreasing and Condition determined that this final rule does not cleaning) for the application of PR (fuel have federalism implications under The commenter, the airplane tank sealant) and installation of PR Executive Order 13132. manufacturer, requests that the wording patches, and checking/testing the of the unsafe condition in the Summary airplane after accomplishment of those For the reasons discussed above, I and Discussion sections of the proposed actions. As stated in the proposed AD, certify that this action (1) is not a AD be changed. The commenter ‘‘the cost impact figures represent only ‘‘significant regulatory action’’ under requests that the FAA change the the time necessary to perform the Executive Order 12866; (2) is not a wording to emphasize that the current specific actions actually required by the ‘‘significant rule’’ under DOT design conforms to the certification AD. These figures typically do not Regulatory Policies and Procedures (44 basis, but that a design improvement include incidental costs, such as the FR 11034, February 26, 1979); and (3) has been developed. The French time required to gain access and close will not have a significant economic airworthiness directive which parallels up, planning time, or time necessitated impact, positive or negative, on a the proposed AD states that the French by other administrative actions.’’ substantial number of small entities airworthiness directive was issued Application of PR and installation of PR under the criteria of the Regulatory because ‘‘Analysis of an in-service patches are the specific actions required Flexibility Act. A final evaluation has incident has shown the need to improve by the proposed AD; the other actions been prepared for this action and it is the resistance of the feeder tank skins to are incidental. We have not changed contained in the Rules Docket. A copy direct lightning effects.’’ The commenter this final rule regarding this issue. of it may be obtained from the Rules acknowledges that an unsafe condition Docket at the location provided under does exist. Conclusion the caption ADDRESSES. The FAA partially agrees with the After careful review of the available List of Subjects in 14 CFR Part 39 commenter. The unsafe condition as data, including the comments noted stated in the proposed AD is ‘‘This above, the FAA has determined that air Air transportation, Aircraft, Aviation action is necessary to prevent fuel safety and the public interest require the safety, Incorporation by reference, ignition in the event of a lightning strike adoption of the rule with the change Safety. and consequent uncontained rupture of described previously. The FAA has Adoption of the Amendment the fuel tank(s).’’ We acknowledge that determined that these changes will this statement could be interpreted to neither increase the economic burden ■ Accordingly, pursuant to the authority mean that each time the feeder tank on any operator nor increase the scope delegated to me by the Administrator, panels were struck by lightning, the of the AD. the Federal Aviation Administration result would be fuel ignition and amends part 39 of the Federal Aviation rupture of the fuel tanks(s) due to a Cost Impact Regulations (14 CFR part 39) as follows: problem with the current design of the We estimate that 213 airplanes of U.S. fuel feeder tanks. We acknowledge that registry will be affected by this AD, that PART 39—AIRWORTHINESS this result may not occur in all cases. it will take approximately 40 work DIRECTIVES However, conformity to the approved hours per airplane to accomplish the ■ 1. The authority citation for part 39 type design is not relevant in this required actions, and that the average continues to read as follows: situation. An unsafe condition has been labor rate is $65 per work hour. identified based on an in-service event. Required parts will cost approximately Authority: 49 U.S.C. 106(g), 40113, 44701. The airworthiness authority for the state $5,890 per airplane. Based on these § 39.13 [Amended] of design has issued an airworthiness figures, the cost impact of the AD on ■ directive mandating corrective action. U.S. operators is estimated to be 2. Section 39.13 is amended by adding We conclude that based on the $1,808,370, or $8,490 per airplane. the following new airworthiness authority’s action the required The cost impact figure discussed directive: corrective action is more than a design above is based on assumptions that no 2004–04–11 Dassault Aviation: improvement. The unsafe condition operator has yet accomplished any of Amendment 39–13492. Docket 2003– statement in the Summary and body of the requirements of this AD action, and NM–30–AD this final rule will be changed to state that no operator would accomplish Applicability: Model Mystere-Falcon 50 that this action is necessary to ‘‘prevent those actions in the future if this AD series airplanes, certificated in any category, possible fuel ignition in the event of a were not adopted. The cost impact except those airplanes on which Dassault Modification M2491 or Dassault Modification lightning strike and consequent figures discussed in AD rulemaking M673 has been implemented. uncontained rupture of the fuel tank(s).’’ actions represent only the time Compliance: Required as indicated, unless The Discussion section is not restated in necessary to perform the specific actions accomplished previously. this final rule, so no change to the final actually required by the AD. These To prevent possible fuel ignition in the rule is necessary in this regard. figures typically do not include event of a lightning strike and consequent
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uncontained rupture of the fuel tank(s), Bombardier Inc. (formerly deHavilland Texas 76193–0190; telephone: (817) accomplish the following: Inc.) Model Otter DHC–3 airplanes that 222–5195; facsimile: (817) 222–5959. • Installation have turbine engines installed per one For STC No. SA09857SC: Peter W. Hakala, Aerospace Engineer, FAA, (a) Within 18 months from the effective of three supplemental type certificates date of this AD, apply PR (fuel tank sealant) (STC). This AD prohibits you from Special Certification Office, Rotorcraft and install PR patches over the internal side- operating any affected airplane with Directorate, 2601 Meacham Boulevard, panel recesses of the left-hand and right-hand these engine and propeller Fort Worth, Texas 76193–0190; feeder tanks between frame 28 and frame 31 configurations unless a new STC for an telephone: (817) 222–5145; facsimile: and from stringer 5 to stringer 13, in elevator servo-tab with a redundant (817) 222–5785. accordance with the Accomplishment control linkage is installed. This AD is SUPPLEMENTARY INFORMATION: Instructions of Dassault Service Bulletin the result of reports of the control rod F50–415, dated November 27, 2002. Discussion Although the service bulletin referenced in to the elevator servo-tab system this AD specifies to submit certain detaching from the elevator servo-tab, What events have caused this AD? information to the manufacturer, this AD which caused the elevator servo-tab to The FAA has received several reports of does not include such a requirement. flutter on airplanes with a turbine situations where pilots of Bombardier Inc. Model Otter DHC–3 airplanes with Alternative Methods of Compliance engine installed. We are issuing this AD to prevent a single failure of the elevator installed turbine engines have (b) In accordance with 14 CFR 39.19, the servo-tab system, which could cause experienced buffeting of the elevators. Manager, International Branch, ANM–116, All pilots declared an emergency and Transport Airplane Directorate, FAA, is severe tab flutter. This failure could lead authorized to approve alternative methods of to possible loss of control of the safely landed their aircraft. compliance for this AD. airplane. Investigation found that the control rod to the elevator servo-tab system Incorporation by Reference DATES: This AD becomes effective on detached from the elevator servo-tab (c) The actions shall be done in accordance April 20, 2004. and caused the elevator servo-tab to with Dassault Service Bulletin F50–415, As of April 20, 2004, the Director of flutter. In all cases, the aircraft had been dated November 27, 2002. This incorporation the Federal Register approved the modified with a Pratt and Whitney by reference was approved by the Director of incorporation by reference of certain PT6A–135 or a PT6A–34 turbine engine the Federal Register in accordance with 5 publications listed in the regulation. U.S.C. 552(a) and 1 CFR part 51. Copies may per STC No. SA3777NM. ADDRESSES: be obtained from Dassault Falcon Jet, PO Box You may get the service The certification basis for STC information identified in this AD from: SA3777NM includes freedom from 2000, South Hackensack, New Jersey 07606. • Copies may be inspected at the FAA, For STC No. SA3777NM: A.M. flutter and control reversal and Transport Airplane Directorate, 1601 Lind Luton 3025 Eldridge Avenue, divergence, required by 14 CFR Avenue, SW., Renton, Washington; or at the Bellingham, Washington 98225; 23.629(f)(1). Further review reveals that Office of the Federal Register, 800 North telephone (360) 671–7817; facsimile this requirement was not complied with Capitol Street, NW., suite 700, Washington, (360) 671–7820. when the STC was issued. Subsequent DC. • For STC No. SA09866SC: Texas to the issuance of the STC, single Note 1: The subject of this AD is addressed Turbine Conversions, Inc., 8955 CR 135, failures of the control system for the in French airworthiness directive, dated Celina, Texas 75009; telephone: (972) 2002–595(B), dated November 27, 2002. servo-tab began causing the servo-tab to 382–4402; facsimile: (972) 382–4402. flutter. The failures were attributed to • Effective Date For STC No. SA09857SC: Canada the increased velocity and airflow over (d) This amendment becomes effective on Turbine Conversions, Inc., Lot 16, the servo-tab caused by the turbine April 5, 2004. 105081 Highway 11, Pine Falls MB ROE conversion. 1MO, Canada. As a method of compliance with 14 Issued in Renton, Washington, on February • 20, 2002. For STC No. SA01059SE: American CFR 23.629(f)(1), American Aeromotives Aeromotives, Inc. (American Ali Bahrami, has identified the installation of STC Aeromotives), 3025 Eldridge Avenue, No. SA01059SE (a new elevator servo- Acting Manager, Transport Airplane Bellingham, Washington 98225, Directorate, Aircraft Certification Service. tab and redundant control linkage) on telephone: (360) 671–7817; facsimile: [FR Doc. 04–4254 Filed 2–27–04; 8:45 am] aircraft modified with a Pratt and (360) 671–7820. Whitney PT6A–34/–135 turbine engine BILLING CODE 4910–13–P You may view the AD docket at FAA, per STC No. SA3777NM. Central Region, Office of the Regional FAA has inspected affected airplanes Counsel, Attention: Rules Docket No. DEPARTMENT OF TRANSPORTATION with STC No. SA09866SC or STC No. 2000–CE–73–AD, 901 Locust, Room SA09857SC installed and confirmed Federal Aviation Administration 506, Kansas City, Missouri 64106. Office that the same unsafe condition exists. At hours are 8 a.m. to 4 p.m., Monday this time, neither of these two STC 14 CFR Part 39 through Friday, except Federal holidays. holders has identified a method of FOR FURTHER INFORMATION CONTACT: compliance with 14 CFR 23.629(f)(1). [Docket No. 2000–CE–73–AD; Amendment • For STC No. SA3777NM or STC No. 39–13493; AD 2004–05–01] As a method of compliance with 14 SA01059SE: Richard Simonson, CFR 23.629(f)(1), FAA has identified the RIN 2120–AA64 Aerospace Engineer, FAA, Seattle installation of STC No. SA01059SE (a Aircraft Certification Office (ACO), 1601 new elevator servo-tab and redundant Airworthiness Directives; Bombardier Lind Avenue, SW., Renton, Washington control linkage) on aircraft modified Inc. Model Otter DHC–3 Airplanes 98055; telephone: (425) 917–6507; with STC No. SA09866SC or STC No. AGENCY: Federal Aviation facsimile: (425) 917–6590. SA09857SC. • Administration (FAA), DOT. For STC No. SA09866SC: Richard What is the potential impact if FAA ACTION: Final rule. Karanian, Aerospace Engineer, Special took no action? A single failure of the Certification Office, FAA, Rotorcraft elevator servo-tab system could cause SUMMARY: The FAA adopts a new Directorate, Special Certification Office, severe tab flutter and lead to possible airworthiness directive (AD) for certain 2601 Meacham Boulevard, Fort Worth, loss of control of the airplane.
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Has FAA taken any action to this balance servo-tab was demonstrated to making any changes to the final rule AD point? We issued a proposal to amend work smoothly throughout the elevator action. part 39 of the Federal Aviation control travel. Comment Issue No. 4: Carefully Review Regulations (14 CFR part 39) to include We are not making any changes to the Any Proposed Structural Modification an AD that would apply to certain final rule AD action. to the Tab and Elevator Bombardier Inc. (formerly deHavilland Inc.) Model Otter DHC–3 airplanes that Comment Issue No. 2: Identify STC What is the commenter’s concern? have turbine engines installed per one ST01243NY (Canadian STC SA99–129, There have been several reports of of three supplemental type certificates Revision 3) as an Approved Alternative servo-tab failures on piston-powered (STC). This proposal was published in Method of Compliance Model DHC–3 airplanes. At least one the Federal Register as a notice of What is the commenter’s concern? reported failure involved a severed proposed rulemaking (NPRM) on Two commenters request that FAA servo-tab and distressed elevator in the November 5, 2003 (68 FR 62454). The identify STC ST01243NY (STC SA99– region where the second actuator is NPRM proposed to prohibit you from 129, Revision 3) as an approved installed following STC SA01059SE. operating any affected airplane that alternative method of compliance since Although the failure progression for the incorporates STC No. SA3777NM, STC this STC has been demonstrated to severed servo and distressed elevator is No. SA09866SC, or STC No. SA09857SC prevent the elevator servo-tab from not known, one commenter suggests a without incorporation of STC No. fluttering when the control rod to the cautious approach to any proposed SA01059SE. servo-tab system becomes detached. structural modifications to the servo-tab and elevator. Comments What is FAA’s response to the concern? We agree that Canadian STC What is FAA’s response to the Was the public invited to comment? SA99–129, Revision 3, is an acceptable concern? The FAA agrees with the We provided the public the opportunity method of compliance to the AD. suggestion of taking a cautious approach to participate in developing this AD. However, FAA has not determined if the to any proposed structural The following presents the comments latest version of STC ST01243NY modifications to the servo-tab and received on the proposal and FAA’s (amended March 18, 2002) corresponds elevator. We considered this failure response to each comment: to the Canadian STC SA99–216, mode during the design of the completely new servo-tab installed Comment Issue No. 1: Remove the Link Revision 3. Aircraft that have been modified under STC ST01243NY will be following STC SA01059SE. The Between STCs SA01059SE and structural modifications to the rear spar ST01243NY evaluated under paragraph (f), alternative method of compliance, of the of the horizontal stabilizer for mounting What is the commenter’s concern? AD and the procedures in 14 CFR 39.19 of the second control rod acts to One commenter requests removing the to determine if the modification strengthen the rear spar area. The new link between STCs SA01059SE and corresponds to the Canadian STC SA99– servo-tab is designed to handle a ST01243NY. The STC SA01059SE 216, Revision 3. conservative aerodynamic load with references STC ST01243NY by only the second rod attached. The new We are not making any changes to the permitting a combined installation of servo-tab is considerably stronger in final rule AD action. both. The STC ST01243NY is an FAA bending than the original servo-tab. version of the Canadian STC SA99–129. Comment Issue No. 3: Inspection and We are not making any changes to the The STC SA99–129 introduced a Maintenance of the New Mass-Balance final rule AD action. mass-balance servo-tab which Servo-tab and the Servo-tab System Comment Issue No. 5: Lack of a Dual experienced failures until corrected in Actuator for the Rudder Tab STC SA99–129, Revision 3, which What is the commenter’s concern? required structural modifications to One commenter notes that one cause of What is the commenter’s concern? attach the mass-balance servo-tab the problems with the first version of One commenter requests that the (which does not exist in that model). STC ST01243NY (STC SA99–129) was proposed AD also address the lack of a The use of dissimilar actuators the retrofit of the existing mass-balance dual actuator for the rudder tab. The increases the risk of ‘‘force fighting’’ and servo-tab. Therefore, the use of a commenter explains that although only an additional loading unaccounted for completely new mass-balance servo-tab the elevator servo-tab has displayed in STC SA99–129, Revision 3. is fundamental. The commenter service difficulties in the past, strict What is FAA’s response to the recommends that maintenance and application of 14 CFR 39.13 would also concern? We do not believe it is inspection requirements include the require modifying the rudder tab to necessary to remove any link between critical points in the design. either a dual actuator or a mass STCs SA01059SE and ST01243NY since What is FAA’s response to the balanced configuration. a link is not discussed in the proposed concern? We agree with the There is no reference to modifying the AD. The proposed AD requires only the commenter’s suggestion. The STC rudder trim system in STC SA01059SE. installation of STC SA01059SE. SA01059SE requires a completely new In this context, the rudder is less During testing, FAA investigated the mass-balance servo-tab, reinforced at the affected by the increased swirl of the interaction of STC SA01059SE with STC second attachment. In addition, the propeller stream since the rudder is ST01243NY and found that the STCs are trailing edge is an extrusion and the already in the turbulent body flow compatible. The link is noted in STC outboard end block is one-piece region, whereas, the servo-tab actuator SA01059SE only to assist the installer in aluminum. The Instructions for is more exposed to the increased establishing the compatibility between Continuing Airworthiness (ICA) for STC propeller tip effects. Therefore, the lack the two STCs. SA01059SE require periodic inspection of reference to the rudder trim system is The risk of ‘‘force fighting’’ was and maintenance of the new mass- not contentious as there have been no addressed during the development of balance servo-tab and the servo-tab reports of increased difficulties in this STC SA01059SE. The geometry system. area. differences are not significant and, Since the commenter’s What is FAA’s response to the during the flight test program, the mass- recommendation is in effect, we are not concern? We disagree with the
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recommendation that the proposed AD Conclusion which governs the FAA’s AD system. address the lack of a dual actuator for This regulation now includes material What is FAA’s final determination on the rudder tab. Since the rudder is less that relates to altered products, special this issue? We have carefully reviewed affected by the increased swirl of the flight permits, and alternative methods the available data and determined that propeller stream and due to the lack of of compliance. This material previously air safety and the public interest require reported service difficulties with the was included in each individual AD. adopting the AD as proposed except for rudder trim system, we will not require Since this material is included in 14 the changes discussed above and minor a dual actuator for the rudder trim CFR part 39, we will not include it in editorial corrections. We have system in this AD. future AD actions. determined that these changes and We are not making any changes to the minor corrections: Costs of Compliance final rule AD action. —Are consistent with the intent that How many airplanes does this AD Comment Issue No. 6: Use Correct and was proposed in the NPRM for impact? We estimate that this AD affects Consistent Terminology correcting the unsafe condition; and 32 airplanes in the U.S. registry. —Do not add any additional burden What is the cost impact of this AD on What is the commenter’s concern? upon the public than was already owners/operators of the affected One commenter requests that we change proposed in the NPRM. airplanes? We estimate the following the term ‘‘Servo trim tab’’ to ‘‘elevator costs to do the modification (on Model Changes to 14 CFR Part 39—Effect on servo-tab’’ and ‘‘elevator flutter’’ to ‘‘tab DHC–3 airplanes with a turbine engine) the AD flutter’’. These changes are for for installing STC No. SA01059SE, a consistency and correctness. How does the revision to 14 CFR part new elevator servo-tab and redundant What is FAA’s response to the 39 affect this AD? On July 10, 2002, the control linkage. We have no way of concern? We agree and will make these FAA published a new version of 14 CFR determining the number of airplanes changes throughout the AD. part 39 (67 FR 47997, July 22, 2002), that may need such modification:
Labor cost Parts cost Total cost per airplane
20 workhours × $65 per hour = $1,300 ...... $3,000 $1,300 + $3,000 = $4,300.
Compliance Time of This AD responsibilities among the various PART 39—AIRWORTHINESS What will be the compliance time of levels of government. DIRECTIVES this AD? The compliance time of this Will this AD involve a significant rule ■ 1. The authority citation for part 39 AD is within 3 calendar months or 250 or regulatory action? For the reasons continues to read as follows: hours time-in-service (TIS) after the discussed above, I certify that this AD: Authority: 49 U.S.C. 106(g), 40113, 44701. effective date of this AD, whichever 1. Is not a ‘‘significant regulatory occurs first. action’’ under Executive Order 12866; § 39.13 [Amended] Why is the compliance time of this AD 2. Is not a ‘‘significant rule’’ under the ■ 2. FAA amends § 39.13 by adding a presented in both hours TIS and new AD to read as follows: calendar time? A single failure of the DOT Regulatory Policies and Procedures elevator servo-tab system is a direct (44 FR 11034, February 26, 1979); and 2004–05–01 Bombardier Inc.: Amendment 39–13493; Docket No. 2000–CE–73–AD. result of airplane operation with a 3. Will not have a significant turbine engine installed. For example, a economic impact, positive or negative, When Does This AD Become Effective? single failure of the elevator servo-tab on a substantial number of small entities (a) This AD becomes effective on April 20, system could occur on an affected under the criteria of the Regulatory 2004. airplane within a short period of Flexibility Act. What Other ADs Are Affected by This airplane operation while you could We prepared a summary of the costs Action? operate another affected airplane for a (b) None. considerable amount of time without to comply with this AD and placed it in experiencing a single failure of the the AD Docket. You may get a copy of What Airplanes Are Affected by This AD? elevator servo-tab system. Therefore, to this summary by sending a request to us (c) This AD affects any Model Otter DHC– assure that a single failure of the at the address listed under ADDRESSES. 3 airplane (all serial numbers) that: elevator servo-tab system is detected Include ‘‘AD Docket No. 2000–CE–73– (1) Has a turbine engine installed per: and corrected in a timely manner AD’’ in your request. (i) Supplemental Type Certificate (STC) without inadvertently grounding any of No. SA3777NM (A.M. Luton installation of List of Subjects in 14 CFR Part 39 Pratt and Whitney PT6A–34/–135 engine); the affected airplanes, we are using a (ii) STC No. SA09866SC (Texas Turbines compliance time based upon both hours Air transportation, Aircraft, Aviation Conversions, Inc. installation of Honeywell TIS and calendar time. safety, Incorporation by reference, TPE–331 engine); or Regulatory Findings Safety. (iii) STC No. SA09857SC (Canada Turbine Conversions, Inc. installation of Walter Will this AD impact various entities? Adoption of the Amendment M601E–11 engine); and We have determined that this AD will (2) Is certificated in any category. ■ Accordingly, under the authority not have federalism implications under What Is the Unsafe Condition Presented in Executive Order 13132. This AD will delegated to me by the Administrator, This AD? the Federal Aviation Administration not have a substantial direct effect on (d) This AD is the result of reports that the the States, on the relationship between amends part 39 of the Federal Aviation control rod to the elevator servo-tab system the national government and the States, Regulations (14 CFR part 39) as follows: detached from the elevator servo-tab causing or on the distribution of power and the elevator servo-tab to flutter on airplanes
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with a turbine engine installed. The actions system causing severe tab flutter. This failure What Must I Do To Address This Problem? specified in this AD are intended to prevent could lead to possible loss of control of the (e) To address this problem, you must do a single failure of the elevator servo-tab airplane. the following:
Actions Compliance Procedures
(1) Do not operate any airplane that has a tur- As of 3 calendar months or 250 hours time-in- Not Applicable. bine engine installed per: STC No. service (TIS) after April 20, 2004 (the effec- SA3777NM, SA09866SC, or SA09857SC tive date of this AD), whichever occurs first. and DOES NOT have a new elevator servo- tab and redundant control linkage per STC No. SA01059SE. (2) You may install at the same time a turbine Before further flight as of April 20, 2004 (the Follow American Aeromotives, Inc. DHC–3 engine per STC No. SA3777NM, effective date of this AD). Otter Service Letter No. AAI–DHC3–01.01, SA09866SC, or SA09857SC and a new ele- Revision No. IR, dated April 9, 2002. vator servo-tab and redundant control linkage per STC No. SA01059SE. (3) You may operate an affected airplane in- Within 3 calendar months or 250 hours TIS Follow American Aeromotives, Inc. DHC–3 stalled with a turbine engine per STC No. after April 20, 2004 (the effective date of Otter Service Letter No. AAI–DHC3–02.01, SA777NM, SA09866SC, or SA09857SC if this AD), whichever occurs first. Revision No. IR, dated April 9, 2002. you install a new elevator servo-tab and re- dundant contol linkage per STC No. SA01059SE. (4) Do not install a turbine engine per STC No. As of April 20, 2004 (the effective date of this No Applicable. SA3777NM, SA09866SC, or SA09857SC, AD). unless you have installed a new elevator servo-tab and redundant control linkage per STC No. SA01059SE.
May I Request an Alternative Method of Avenue, Bellingham, Washington 98225, D45 (T–34B) airplanes. AD 2001–13–18 Compliance? telephone: (360) 671–7817; facsimile: (360) currently requires you to repetitively (f) You may request a different method of 671–7820. You may review copies at FAA, inspect the wing spar assembly for compliance or a different compliance time Central Region, Office of the Regional Counsel, 901 Locust, Room 506, Kansas City, cracks and replace any wing spar for this AD by following the procedures in 14 assembly found cracked (unless the spar CFR 39.19. Unless FAA authorizes otherwise, Missouri 64106; or at the Office of the Federal Register, 800 North Capitol Street, assembly has a crack indication in the send your request to your principal filler strip where the direction of the inspector. The principal inspector may add NW., suite 700, Washington, DC. comments and will send your request to the crack is toward the outside edge of the Issued in Kansas City, Missouri, on Manager, Seattle Aircraft Certification Office filler strip). AD 2001–13–18 also February 20, 2004. (ACO), FAA. For information on any already requires you to report the results of the approved alternative methods of compliance, Dorenda D. Baker, initial inspection and maintain the contact: Manager, Small Airplane Directorate, Aircraft flight and operating restrictions required (1) For STC No. SA3777NM or STC No. Certification Service. by AD 99–12–02 until the initial SA01059SE: Richard Simonson, Aerospace [FR Doc. 04–4373 Filed 2–27–04; 8:45 am] inspection is done. We approved Engineer, FAA, Seattle Aircraft Certification BILLING CODE 4910–13–P alternative methods of compliance Office (ACO), 1601 Lind Avenue, SW., Renton, Washington 98055; telephone: (425) (AMOCs) to AD 2001–13–18. We have 917–6507; facsimile: (425) 917–6590. since determined that those AMOCs do (2) For STC No. SA09866SC: Richard DEPARTMENT OF TRANSPORTATION not address all critical areas in the wing Karanian, Aerospace Engineer, Special spar assemblies and should no longer be Federal Aviation Administration Certification Office, FAA, Rotorcraft valid. We are issuing this revision to AD Directorate, Special Certification Office, 2601 2001–13–18 for the purpose of 14 CFR Part 39 Meacham Boulevard, Fort Worth, Texas eliminating the AMOCs to AD 2001–13– 76193–0190; telephone: (817) 222–5195; [Docket No. 2000–CE–09–AD; Amendment 18. The actions of this AD are intended facsimile: (817) 222–5959. 39–13496; AD 2001–13–18 R1] (3) For STC No. SA09857SC: Peter W. to prevent wing spar failure caused by Hakala, Aerospace Engineer, FAA, Special RIN 2120–AA64 fatigue cracks in the wing spar Certification Office, Rotorcraft Directorate, assemblies and ensure the operational 2601 Meacham Boulevard, Fort Worth, Texas Airworthiness Directives; Raytheon safety of the above-referenced airplanes. 76193–0190; telephone: (817) 222–5145; Aircraft Corporation Beech Models 45 DATES: This AD becomes effective on facsimile: (817) 222–5785. (YT–34), A45 (T–34A, B–45), and D45 March 15, 2004. Does This AD Incorporate Any Material by (T–34B) Airplanes On August 16, 2001 (66 FR 34802, Reference? July 2, 2001), the Director of the Federal AGENCY: Federal Aviation (g) You must do the actions required by Administration (FAA), DOT. Register approved the incorporation by this AD following the instructions in reference of certain publications listed ACTION: American Aeromotives, Inc. DHC–3 Otter Final rule; request for in the regulation. Service Letter No. AAI–DHC3–02.01, comments. We must receive any comments on Revision No. IR, dated April 9, 2002. The SUMMARY: this AD by April 26, 2004. Director of the Federal Register approved the The FAA is revising incorporation by reference of this service Airworthiness Directive (AD) 2001–13– ADDRESSES: Use one of the following to letter in accordance with 5 U.S.C. 552(a) and 18, which applies to Raytheon Aircraft submit comments on this AD: 1 CFR part 51. You may get a copy from Corporation (Raytheon) Beech Models • By mail: FAA, Central Region, American Aeromotives, Inc., 3025 Eldridge 45 (YT–34), A45 (T–34A, B–45), and Office of the Regional Counsel,
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Attention: Rules Docket No. 2000–CE– —Requires you to report the results of What Does This AD Require? 09–AD, 901 Locust, Room 506, Kansas the initial inspection; City, Missouri 64106. —Requires you to maintain the flight This AD revises AD 2001–13–18 by • By fax: (816) 329–3771. and operating restrictions that AD 99– retaining all actions (including • By e-mail: 9–ACE–7- 12–02 currently requires until you do compliance times) of AD 2001–13–18, [email protected]. Comments sent the initial inspection and possible but not retaining the AMOCs approved electronically must contain ‘‘Docket No. replacement specified in this AD; and through that AD. The requirements of 2000–CE–09–AD’’ in the subject line. If —Allows you to change the flight and the actual AD portion of AD 2001–13– you send comments electronically as operating restrictions that AD 99–12– 18 will remain the same. attached electronic files, the files must 02 currently requires after the wing In preparing this rule, we contacted be formatted in Microsoft Word 97 for spar assemblies are inspected and the type clubs and aircraft operators to get Windows or ASCII. wing spar assembly either is replaced, technical information and information You may get the service information is crack free, or only has a crack on operational and economic impacts. identified in this AD from Raytheon indication in the filler strip where the We did not receive any information Aircraft Company, P.O. Box 85, Wichita, direction of the crack is toward the through these contacts. If received, we Kansas 67201–0085; telephone: (800) outside of the filler strip. would have included a discussion of 625–7043 or (316) 676–4556. You are required to do the inspections any information that may have You may view the AD docket at FAA, of AD 2001–13–18 following the Central Region, Office of the Regional influenced this action in the rulemaking procedures of Raytheon Mandatory docket. Counsel, Attention: Rules Docket No. Service Bulletin No. SB 57–3329, 2000–CE–09–AD, 901 Locust, Room Issued: February, 2000. How Does the Revision to 14 CFR Part 506, Kansas City, Missouri 64106. Office 39 Affect This AD? hours are 8 a.m. to 4 p.m., Monday What Has Happened Since AD 2001– through Friday, except Federal holidays. 13–18 To Initiate This AD Action? On July 10, 2002, we published a new FOR FURTHER INFORMATION CONTACT: Paul In November 2003, a Raytheon Beech version of 14 CFR part 39 (67 FR 47997, Nguyen, Aerospace Engineer, FAA, Model A45 (T34A) airplane crashed July 22, 2002), which governs FAA’s AD Wichita Aircraft Certification Office, after the right wing failed at Wing system. This regulation now includes 1801 Airport Road, Mid-Continent Station (WS) 34 on the forward spar and material that relates to altered products, Airport, Wichita, Kansas 67209; WS 66.00 on the rear spar. AD 2001–13– special flight permits, and alternative telephone: (316) 946–4125; facsimile: 18 was established to inspect the wing methods of compliance. This material (316) 946–4107. spar assemblies at four locations: previously was included in each SUPPLEMENTARY INFORMATION: 1. Nine fasteners at the WS 34 forward individual AD. Since this material is spar. included in 14 CFR part 39, we will not Has FAA Taken Any Action to This 2. The lower rear bathtub fitting. include it in future AD actions. Point? 3. One fastener at WS 64 on the Comments Invited In-flight separation of the right wing forward spar. on a Raytheon Beech Model A45 (T34A) 4. Two fasteners at WS 66.00 on the Will I Have the Opportunity To airplane caused FAA to issue AD 99– rear spar. Comment Before You Issue the Rule? 12–02, Amendment 39–11193 (64 FR The FAA has approved and issued 31689, June 14, 1999) against Raytheon different alternative methods of This AD is a final rule that involves Beech Models 45 (YT–34), A45 (T–34A, compliance (AMOCs) for the requirements affecting flight safety and B–45), and D45 (T–34B) airplanes. This inspections of AD 2001–13–18. These was not preceded by notice and an AD requires: AMOCs consist of a combination of opportunity for public comment; —Incorporating flight and operating modifications and inspections to however, we invite you to submit any limitations that restrict the airplanes address the condition. written relevant data, views, or to normal category operation and None of the AMOCs issued under AD arguments regarding this AD. Send your prohibit them from acrobatic and 2001–13–18 address all four locations of comments to an address listed under utility category operations; the wing spar assemblies. ADDRESSES. Include ‘‘AD Docket No. —Limiting the flight load factor to 0 to FAA’s Determination and Requirements 2000–CE–09–AD’’ in the subject line of 2.5 G; and of This AD your comments. If you want us to —Limiting the maximum airspeed to acknowledge receipt of your mailed 175 miles per hour (mph) (152 knots). What Has FAA Decided? comments, send us a self-addressed, AD 99–12–02 was issued as an We have evaluated all pertinent stamped postcard with the docket interim action until the development of information including all information number written on it; we will date- FAA-approved inspection procedures. from the November 2003 accident and stamp your postcard and mail it back to Those procedures were developed determined that the AMOCs approved you. We specifically invite comments and FAA superseded AD 99–12–12 with under AD 2001–13–18 do not address on the overall regulatory, economic, AD 2001–13–18, Amendment 39–12300 all critical areas in the wing spar environmental, and energy aspects of (66 FR 34802, July 2, 2001). AD 2001– assemblies and should no longer be the rule that might suggest a need to 13–18 contains the following valid in order to prevent wing spar modify it. If a person contacts us provisions: failure caused by fatigue cracks in the through a nonwritten communication, —Requires you to repetitively inspect wing spar assemblies and ensure the and that contact relates to a substantive the wing spar assemblies for cracks operational safety of the above- part of this AD, we will summarize the and replace any cracked wing spar referenced airplanes. contact and place the summary in the assembly. A crack indication in the Therefore, we have determined that docket. We will consider all comments filler strip is allowed if the direction AD 2001–13–18 should be revised for received by the closing date and may of the crack is toward the outside edge the purpose of eliminating the AMOCs amend the AD in light of those of the filler strip; to AD 2001–13–18. comments.
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Regulatory Findings this summary by sending a request to us 2001–13–18 R1 Raytheon Aircraft Company: at the address listed under ADDRESSES. Amendment 39–13496; Docket No. Will This AD Impact Various Entities? Include ‘‘AD Docket No. 2000–CE–09– 2000–CE–09–AD; Revises AD 2001–13– We have determined that this AD will AD’’ in your request. 18, Amendment 39–12300. not have federalism implications under List of Subjects in 14 CFR Part 39 When Does This AD Become Effective? Executive Order 13132. This AD will (a) This AD becomes effective on March 15, not have a substantial direct effect on Air transportation, Aircraft, Aviation 2004. the States, on the relationship between safety, Incorporation by reference, the national government and the States, Safety. What Airplanes Are Affected by This AD? or on the distribution of power and (b) This AD applies to Beech Models 45 Adoption of the Amendment responsibilities among the various (YT–34), A45 (T–34A, B–45), and D45 (T– levels of government. ■ Accordingly, under the authority 34B) airplanes, all serial numbers, that are certificated in any category. Will This AD Involve a Significant Rule delegated to me by the Administrator, or Regulatory Action? the Federal Aviation Administration What Is the Unsafe Condition Presented in amends part 39 of the Federal Aviation This AD? For the reasons discussed above, I Regulations (14 CFR part 39) as follows: (c) We are issuing this AD to detect and certify that this AD: correct cracks in the wing spar assemblies 1. Is not a ‘‘significant regulatory PART 39—AIRWORTHINESS and ensure the operational safety of the action’’ under Executive Order 12866; DIRECTIVES above-referenced airplanes. 2. Is not a ‘‘significant rule’’ under the ■ DOT Regulatory Policies and Procedures 1. The authority citation for part 39 What Must I Do To Address This Problem? (44 FR 11034, February 26, 1979); and continues to read as follows: (d) To address this problem, you must 3. Will not have a significant Authority: 49 U.S.C. 106(g), 40113, 44701. maintain the actions of AD 99–12–02 that are economic impact, positive or negative, outlined in paragraphs (d)(1), (d)(2), and (d)(3) of this AD, including all on a substantial number of small entities § 39.13 [Amended] ■ subparagraphs, until you accomplish the under the criteria of the Regulatory 2. The FAA amends § 39.13 by initial inspection required in paragraph (d)(5) Flexibility Act. removing Airworthiness Directive (AD) of this AD (paragraphs (d)(1) through (d)(4) We prepared a summary of the costs 2001–13–18, Amendment 39–12300 (66 are actions retained from AD 99–12–02, and to comply with this AD and placed it in FR 34802, July 2, 2001), and by adding paragraphs (d)(5) through (d)(7) are actions the AD Docket. You may get a copy of a new AD to read as follows: new to this AD):
Action When In accordance with
(1) Accomplish the following placard require- All actions required prior to further flight after Not Applicable. ments: July 9, 1999 (the effective date of AD 99– 12–02), unless already accomplished. (i) Fabricate two placards using letters of at least 1⁄10-inch in height with each consisting of the following words: ‘‘Never exceed speed, Vne-175 MPH (152 knots) IAS; Normal Acceleration (G) Limits— 0, and +2.5; ACROBATIC MANEUVERS PROHIBITED.’’ (ii) Install these placards on the airplane instru- ment panels (one on the front panel and one on the rear panel) next to the airspeed indi- cators within the pilot’s clear view. (iii) Insert a copy of this AD into the Limitations Section of the Airplane Flight Manual (AFM). (2) Modify each airspeed indicator glass by ac- All actions required within 10 hours time-in- Not Applicable. complishing the following: service (TIS) after July 9, 1999 (the effec- (i) Place a red radial line on each indicator tive date of AD 99Ð12Ð02), unless already glass at 175 miles per hour (mph) (152 accomplished. knots). (ii) Place a white slippage index mark between each airspeed indicator glass and case to visually verify that the glass has not rotated. (3) Mark the outside surface of the ‘‘g’’ meters All actions required within 10 hours time-in- Not Applicable. with lines of approximately 1⁄16-inch by 3⁄16- service (TIS) after July 9, 1999 (the effec- inch, as follows: tive date of AD 99Ð12Ð02), unless already accomplished. (i) A red line at 0 and 2.5; and (ii) A white slippage mark between each ‘‘g’’ meter glass and case to visually verify that the glass has not rotated. (4) The actions required by paragraphs (d)(1), Upon accomplishment of the initial inspection Raytheon Aircraft Mandatory Service Bulletin (d)(2), and (d)(3) are no longer required after required in paragraph (d)(5) of this AD, un- No. SB 57Ð3329, Issued: February, 2000. the initial inspection required in paragraph less already accomplished. (d)(5) of this AD is accomplished.
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Action When In accordance with
(5) Inspect the wing spar assemblies for cracks Initially inspect within the next 80 hours time- Raytheon Aircraft Mandatory Service Bulletin in-service (TIS) after August 16, 2001 (the No. SB 57Ð3329, Issued: February, 2000. effective date of AD 2001Ð13Ð18) or within 12 months after August 16, 2001 (the effec- tive date of AD 2001Ð13Ð18), whichever oc- curs later, unless already accomplished. In- spect thereafter at intervals not to exceed 80 hours TIS. (6) Replace any cracked wing spar assembly. A Prior to further flight after the required inspec- The applicable maintenance manual. crack indication in the filler strip is allowed if tion where the cracked wing spar assembly the direction of the crack is toward the out- is found. side edge of the filler strip. If the direction of the crack is toward the inside edge of the filler strip or any crack is found in any other area, you must replace the cracked wing spar assembly. (7) Submit a report to FAA that describes the Within 10 days after the initial inspection or Pages 58 through 60 of Raytheon Aircraft damage found on the wing spar. Use the within 10 days after August 16, 2001 (the Mandatory Service Bulletin No. SB 57Ð chart on pages 58 through 60 of Raytheon effective date of AD 2001Ð13Ð18), which- 3329, Issued: February, 2000. Aircraft Mandatory Service Bulletin No. SB ever occurs later, unless already accom- 57Ð3329, Issued: February, 2000. plished. (i) Submit this report even if no cracks are found. (ii) Submit this report to FAA at the address found in paragraph (g) of this AD.
Are Any Other ADs Affected by This Action? Kansas City, Missouri 64106; or at the Office property are subject to MACRS in the (e) This AD revises AD 2001–13–18, of the Federal Register, 800 North Capitol hands of the acquiring taxpayer. These Amendment 39–12300. Street, NW., suite 700, Washington, DC. temporary regulations will affect What About Alternative Methods of Issued in Kansas City, Missouri, on taxpayers involved in a like-kind Compliance? February 23, 2004. exchange under section 1031 or an Dorenda D. Baker, involuntary conversion under section (f) As of March 15, 2004 (the effective date of this AD), all alternative methods of Manager, Small Airplane Directorate, Aircraft 1033. The text of these temporary compliance approved under AD 2001–13–18 Certification Service. regulations also serves as the text of the are not approved for this AD and are no [FR Doc. 04–4372 Filed 2–27–04; 8:45 am] proposed regulations set forth in the longer valid. Any alternative method of BILLING CODE 4910–13–P notice of proposed rulemaking on this compliance must reference ‘‘AD 2001–13–18 subject in the proposed rules section in R1’’ in order to be valid. this issue of the Federal Register. (g) You may request a different method of DATES: compliance or a different compliance time DEPARTMENT OF THE TREASURY Effective Dates: These for this AD by following the procedures in 14 regulations are effective March 1, 2004. CFR 39.19. Unless FAA authorizes otherwise, Internal Revenue Service Applicability Dates: For dates of send your request to your principal applicability, see §§ 1.168(a)–1T(b) and inspector. The principal inspector may add 26 CFR Part 1 (c), 1.168(b)–1T(b), 1.168(d)–1T(d), comments and will send your request to the [TD 9115] 1.168(i)–1T(l), 1.168(i)–6T(k), and Manager, Wichita Aircraft Certification Office 1.168(k)–1T(g). (ACO), FAA. For information on any already RIN 1545–BC27 FOR FURTHER INFORMATION CONTACT: approved alternative methods of compliance Charles J. Magee, (202) 622–3110 (not a for this AD, contact Paul Nguyen, Aerospace Depreciation of MACRS Property That toll-free number). Engineer, FAA, Wichita Aircraft Certification Is Acquired in a Like-Kind Exchange or Office, 1801 Airport Road, Mid-Continent as a Result of an Involuntary SUPPLEMENTARY INFORMATION: Airport, Wichita, Kansas 67209; telephone: Conversion (316) 946–4125; facsimile: (316) 946–4107. Background Does This AD Incorporate Any Material by AGENCY: Internal Revenue Service (IRS), This document contains amendments Reference? Treasury. to 26 CFR part 1 under section 168 of (h) You must do the actions required by ACTION: Final and temporary the Internal Revenue Code (Code). this AD following the instructions in regulations. Section 168 has been modified by Raytheon Aircraft Mandatory Service several Acts, including section 201 of Bulletin No. SB 57–3329, Issued: February, SUMMARY: This document contains the Tax Reform Act of 1986, Public Law 2000. On August 16, 2001 (66 FR 34802, July regulations relating to the depreciation 99–514 (100 Stat. 2085, 2121), section 2, 2001), the Director of the Federal Register of property subject to section 168 of the 101 of the Job Creation and Worker previously approved the incorporation by Internal Revenue Code (MACRS Assistance Act of 2002, Public Law 107– reference of this service bulletin in property). Specifically, these temporary 147 (116 Stat. 21), and section 201 of the accordance with 5 U.S.C. 552(a) and 1 CFR regulations provide guidance on how to Jobs and Growth Tax Relief part 51. You may get a copy from Raytheon Aircraft Company, P.O. Box 85, Wichita, depreciate MACRS property acquired in Reconciliation Act of 2003, Public Law Kansas 67201–0085; telephone: (800) 625– a like-kind exchange under section 1031 108–27 (117 Stat. 752). Section 168 7043 or (316) 676–4556. You may review or as a result of an involuntary provides the depreciation deduction for copies at FAA, Central Region, Office of the conversion under section 1033 when tangible property generally placed in Regional Counsel, 901 Locust, Room 506, both the acquired and relinquished service after December 31, 1986.
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Explanation of Provisions section 1033(b)(2), if such an election is property in a transaction between made, the basis of the replacement Background members of the same affiliated group. property acquired by the taxpayer Property acquired in a like-kind Section 167 allows as a depreciation generally is the cost of that property deduction a reasonable allowance for exchange or involuntary conversion to decreased by any gain not recognized by replace property whose depreciation the exhaustion, wear, and tear of reason of section 1033(a)(2). property used in a trade or business or allowance is computed under a The IRS became aware of inconsistent depreciation system other than MACRS, held for the production of income. The depreciation treatment by taxpayers of or to replace property for which a depreciation allowable for depreciable property that has a basis determined taxpayer made a valid election under tangible property placed in service after under section 1031(d) or section 1033(b) section 168(f)(1) to exclude it from the 1986 generally is determined under (replacement property). Certain section 168 (MACRS property). Under taxpayers were depreciating the application of section 168 (MACRS), is section 1031(a)(1), no gain or loss is replacement property using the same not within the scope of the temporary recognized on an exchange of property depreciation method, recovery period, regulations. Additionally, this held for productive use in a trade or and convention as the exchanged or regulation does not provide guidance for business or for investment if the involuntarily converted property a taxpayer acquiring property in an property is exchanged solely for (relinquished property) while other exchange for property that the taxpayer property of like kind that is to be held taxpayers were depreciating the depreciated under the Accelerated Cost either for productive use in a trade or replacement property as if it were newly Recovery System (ACRS) or for a business or for investment. Section placed in service. taxpayer acquiring an automobile for 1031(b) provides that if an exchange another automobile for which the would be within the provision of In response, the IRS and Treasury taxpayer used the Standard Mileage section 1031(a) were it not for the fact issued Notice 2000–4 (2000–1 C.B. 313), Rate method of deducting expenses. that the property received in the published January 18, 2000. Notice exchange consists not only of property 2000–4 instructed taxpayers how to Comments are requested on the permitted to be received in such an depreciate MACRS property that has a depreciation treatment of like-kind exchange, but also of other property or basis determined under section 1031(d) exchange or involuntary conversion money, then the gain, if any, to the or section 1033(b) (replacement MACRS transactions described above and recipient shall be recognized, but in an property), provided that the exchanged whether the depreciation treatment of amount not in excess of the sum of such or involuntarily converted property was these transactions should fall within the money and the fair market value of such also MACRS property (relinquished scope of this regulation. MACRS property). The notice stated other property. Under section 1031(c), The depreciation treatment used by that replacement MACRS property no loss from such a transaction is previous owners in determining recognized. Under section 1031(d), the placed in service after January 3, 2000, is depreciated over the remaining depreciation allowances for the basis of property acquired in an replacement MACRS property is not exchange described in section 1031 is recovery period of, and using the same depreciation method and convention as, relevant. For example, a taxpayer the same as that of the property exchanging MACRS property for exchanged, decreased by the amount of the relinquished MACRS property and property that was depreciated under any money received by the taxpayer and that any excess of the basis in the increased by the amount of gain (or replacement MACRS property over the ACRS by the person relinquishing the decreased by the amount of loss) that adjusted basis in the relinquished property may use this regulation was recognized on such exchange. MACRS property is treated as newly (because the acquired property will Section 1033(a)(1) provides that if purchased MACRS property. Notice become MACRS property in the hands property (as a result of its destruction in 2000–4 also stated that the IRS and of the acquiring taxpayer). In addition, whole or in part, theft, seizure, or Treasury intended to issue regulations elections made by previous owners in requisition or condemnation or threat or to address these transactions. Public determining depreciation allowances of imminence thereof) is compulsorily or comments on the nature and scope of the replacement MACRS property have involuntarily converted into property these temporary regulations were no effect on the acquiring taxpayer. For similar or related in service or use to the requested. example, a taxpayer exchanging MACRS property so converted, no gain is Scope property that the taxpayer depreciates recognized. Under section 1033(b)(1), under the general depreciation system the basis of property acquired by the The temporary regulations instruct for other MACRS property that the taxpayer in such a transaction is the taxpayers how to determine the annual previous owner elected to depreciate basis of the converted property. Under depreciation allowance under section under the alternative depreciation section 1033(a)(2)(A), if property is 168 for replacement MACRS property. system pursuant to section 168(g)(7) compulsorily or involuntarily converted Generally, MACRS property, which is does not have to continue using the into money or into property not similar defined in § 1.168(b)–1T(a)(2), is alternative depreciation system for the or related in service or use to the tangible property of a character subject replacement MACRS property. converted property, and, within the to the allowance for depreciation time frame described in section provided in section 167(a) that is placed Finally, the IRS has learned that some 1033(a)(2)(B), the taxpayer purchases in service after December 31, 1986, and taxpayers question whether Notice property that is related in service or use subject to section 168. The temporary 2000–4 allows depreciation of land, if to the converted property or purchases regulations also apply to a transaction to the land is acquired in a like-kind stock in the acquisition of control of a which section 1031(a), (b), or (c) applies exchange or involuntary conversion for corporation owning such property, then (like-kind exchange) or a transaction in MACRS property. As explained in the taxpayer may elect to recognize gain which gain or loss is not recognized further detail below, neither the only to the extent that the amount pursuant to section 1033 (involuntary temporary regulations nor Notice 2000– realized upon such conversion exceeds conversion) involving MACRS property 4 allow taxpayers to depreciate land or the cost of such other property. Under that is replaced with other MACRS other nondepreciable property.
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General Rule service when the relinquished MACRS acquisition of the replacement MACRS property was placed in service by the property, the temporary regulations do Exchanged Basis acquiring taxpayer. Similarly, if the not allow the taxpayer to take The temporary regulations provide depreciation method of the replacement depreciation on the relinquished rules for determining the applicable MACRS property is less accelerated MACRS property during the period recovery period, depreciation method, than that of the relinquished MACRS between the disposition of the and convention used to determine the property, then the taxpayer’s exchanged relinquished MACRS property and the depreciation allowances for the basis in the relinquished MACRS acquisition of the replacement MACRS replacement MACRS property with property is depreciated beginning in the property. This results because, in a respect to so much of the taxpayer’s year of replacement using the less deferred exchange under § 1.1031(k)–1, basis (as determined under section accelerated depreciation method of the or if a taxpayer does not replace 1031(d) and the regulations under replacement MACRS property that converted property until after the section 1031(d) or section 1033(b) and would have applied to the replacement taxpayer no longer owns the converted the regulations under section 1033(b)) in MACRS property if the replacement property, the taxpayer has no property the replacement MACRS property as MACRS property had originally been to depreciate during that intervening does not exceed the taxpayer’s adjusted placed in service when the relinquished period. Accordingly, the recovery depreciable basis in the relinquished MACRS property was placed in service period for the replacement MACRS MACRS property (exchanged basis). In by the acquiring taxpayer. property is suspended during this general, the exchanged basis is For taxpayers who wish to use the period. The temporary regulations do depreciated over the remaining recovery optional depreciation tables to not address the issue of whether an period of, and using the depreciation determine the depreciation allowances intermediary (such as an exchange method and convention of, the for the replacement MACRS property accommodation titleholder) is entitled relinquished MACRS property (general instead of the formulas (for example, see to depreciation. rule). section 6 of Rev. Proc. 87–57 (1987–2 Acquisition Prior to Disposition This general rule applies if the C.B. 687, 692)), the temporary replacement MACRS property has the regulations provide guidance on When replacement MACRS property same or a shorter recovery period or the choosing the applicable optional table is acquired and placed in service by a same or a more accelerated depreciation as well as how to modify the calculation taxpayer before the relinquished method than the relinquished MACRS for computing the depreciation MACRS property is disposed of by the property. Under certain circumstances, allowances for the replacement MACRS taxpayer (for example, under threat of this rule could adversely affect property. condemnation), the regulations allow taxpayers engaging in like-kind the taxpayer to depreciate the exchanges or involuntary conversions. Excess Basis unadjusted depreciable basis of the For example, under the general rule, a Any excess of the taxpayer’s basis in replacement MACRS property until the taxpayer must depreciate replacement the replacement MACRS property over time of disposition of the relinquished MACRS property with a shorter the taxpayer’s exchanged basis in the MACRS property by the taxpayer. The recovery period over the longer recovery relinquished MACRS property is taxpayer must include in taxable period of the relinquished MACRS referred to as the excess basis. income in the year of disposition of the property even if the taxpayer could Generally, the excess basis in the relinquished MACRS property the depreciate the replacement MACRS replacement MACRS property is treated excess of the depreciation allowable on property over a shorter recovery period as property that is placed in service by the unadjusted depreciable basis of the by treating such property as newly the acquiring taxpayer in the taxable replacement MACRS property over the acquired MACRS property. Accordingly, year in which the replacement MACRS depreciation that would be allowable on the temporary regulations provide an property is placed in service by the the excess basis of the replacement election not to apply the temporary acquiring taxpayer or, if later, the MACRS property from the date the regulations and to treat the replacement taxable year of the disposition of the replacement MACRS property was MACRS property as MACRS property relinquished MACRS property (time of placed in service by the taxpayer to the placed in service by the acquiring replacement). The depreciation time of disposition of the relinquished taxpayer at the time of replacement. allowances for the excess basis are MACRS property. The depreciation of Taxpayers may use this election to determined by using the applicable the depreciable excess basis of the ameliorate the possible adverse effects recovery period, depreciation method, replacement MACRS property continues of applying the general rule to this type and convention prescribed under to be depreciated by the taxpayer. The of transaction. IRS and Treasury may consider The general rule does not apply if the section 168 for the replacement MACRS property at the time of replacement. In providing additional future guidance replacement MACRS property has a with respect to this issue and request longer recovery period or less addition, the excess basis may be taken into account for purposes of computing comments relating thereto. The IRS and accelerated depreciation method than Treasury also invite taxpayers to the relinquished property. If the the deduction allowed under section 179. comment on whether the allowance of recovery period of the replacement depreciation for the replacement MACRS property is longer than that of Special Rules MACRS property should be followed by the relinquished MACRS property, the Deferred Exchanges basis reduction at the time of taxpayer’s exchanged basis in the disposition of the relinquished MACRS relinquished MACRS property is Because of the complex nature of property, or whether some other depreciated beginning in the year of certain like-kind exchange and approach should be taken. replacement over the remainder of the involuntary conversion transactions, the recovery period that would have temporary regulations provide special Transactions Involving Nondepreciable applied to the replacement MACRS rules for certain circumstances. If a Property property if the replacement MACRS taxpayer disposes of the relinquished Because land or other nondepreciable property had originally been placed in MACRS property prior to the property acquired in a like-kind
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exchange or involuntary conversion for taxpayer treats the relinquished MACRS MACRS property and the replacement MACRS property is not depreciable, property as disposed of at the time of MACRS property in the year of such property is not within the scope of the disposition of the relinquished disposition and year of replacement. the temporary regulations. Further, if MACRS property. The election must be Since the publication of § 1.168(k)–1T MACRS property or both MACRS made by typing or legibly printing at the and 1.1400L(b)–1T, we have received property and land or other top of Form 4562, Depreciation and comments regarding the application of nondepreciable property are acquired in Amortization, ‘‘ELECTION MADE the additional first year depreciation a like-kind exchange or involuntary UNDER SECTION 1.168(i)–6T(i),’’ or in deduction rules in §§ 1.168(k)–1T(f)(5) conversion for land or other the manner provided for on Form 4562 and 1.1400L(b)–1T(f)(5) to qualified nondepreciable property, the basis of and its instructions. property, 50-percent bonus depreciation the replacement MACRS property is property, or qualified New York Liberty Additional First Year Depreciation treated as property placed in service by Zone property acquired in a like-kind the acquiring taxpayer in the year of Temporary regulations issued under exchange or an involuntary conversion. replacement. §§ 1.168(k)–1T and 1.1400L(b)–1T (TD We will consider these comments when 9091, 68 FR 52986 (September 8, 2003)) §§ 1.168(k)–1T and 1.1400L(b)–1T are Automobiles provide that the exchanged basis finalized. The IRS received many comments (referred to as the ‘‘carryover basis’’ in concerning the like-kind exchange of such regulations) and the excess basis, General Asset Accounts automobiles. In response, the temporary if any, of the replacement MACRS Some commentators questioned how regulations contain detailed rules property (referred to as the ‘‘acquired the general rule set forth in Notice regarding the annual allowable MACRS property’’ in such regulations) 2000–4 affects the tax treatment of like- depreciation for automobiles acquired is eligible for the additional first year kind exchanges or involuntary in a like-kind exchange or involuntary depreciation deduction provided under conversions involving MACRS assets conversion. The temporary regulations section 168(k) or 1400L(b) if the contained in general asset accounts as provide that if the replacement MACRS replacement MACRS property is described in § 1.168(i)–1. property consists of a passenger qualified property under section Section 1.168(i)–1(e)(2) treats like- automobile that is subject to the 168(k)(2), 50-percent bonus depreciation kind exchanges or involuntary depreciation limitations of section property under section 168(k)(4), or conversions as dispositions of the 280F(a), then the depreciation limitation qualified New York Liberty Zone relinquished MACRS property and that applies for the taxable year is based property under section 1400L(b)(2). acquisitions of the replacement MACRS on the date the replacement MACRS However, if qualified property, 50- property. As a result, any amount automobile is placed in service by the percent bonus depreciation property, or realized on a like-kind exchange or acquiring taxpayer. In allocating the qualified New York Liberty Zone involuntary conversion is recognized as depreciation limitation, the depreciation property is placed in service by the ordinary income and the basis of the allowance for the exchanged basis in the taxpayer and then disposed of by that relinquished MACRS property in the replacement MACRS automobile taxpayer in a like-kind exchange or general asset account continues to be generally is limited to the amount that involuntary conversion in the same depreciated. However, § 1.168(i)– would have been allowable under taxable year, the relinquished MACRS 1(e)(3)(iii) allows a taxpayer to elect to section 280F(a) for the relinquished property (referred to as the ‘‘exchanged terminate general asset account MACRS automobile had the transaction or involuntarily converted MACRS treatment for the relinquished MACRS not occurred. The depreciation property’’ in such regulations) is not property, and, as a result, the tax allowance for the excess basis is eligible for the additional first year treatment of the like-kind exchange or generally limited to the section 280F(a) depreciation deduction under section involuntary conversion is determined limitation that applies for that taxable 168(k) or 1400L(b), as applicable. under section 1031 or section 1033, as year less the amount of the depreciation However, the exchanged basis (and applicable. allowance for the exchanged basis. excess basis, if any) of the replacement These temporary regulations amend MACRS property may be eligible for the the final regulations under section Election Not To Apply Temporary additional first year depreciation 168(i)(4) (TD 8566, 59 FR 51369 (1994)) Regulations deduction under section 168(k) or to address the like-kind exchange or Commentators suggested that 1400L(b), as applicable, subject to the involuntary conversion of MACRS implementing the general rule for all requirements of section 168(k) or property contained in a general asset depreciable property was burdensome 1400L(b), as applicable. The rules account. Under the temporary because taxpayers would have onerous provided under §§ 1.168(k)–1T and regulations, general asset account computational and administrative 1.1400L(b)–1T apply even if the treatment terminates for the difficulties due to the possibility of taxpayer elects not to apply these relinquished MACRS property as of the having to track different depreciation temporary regulations. first day of the year of disposition. components of one asset. Responding to These temporary regulations amend Because this rule would require these comments, the temporary the definition of time of replacement in taxpayers to track each property in a regulations include a provision by § 1.168(k)–1T(f)(5)(ii)(F) to be consistent general asset account, the IRS and which taxpayers may elect not to apply with the definition of that term under Treasury request comments on these temporary regulations. If a these temporary regulations. In alternative methods to account for a taxpayer elects not to apply the addition, these temporary regulations like-kind exchange or involuntary temporary regulations, the taxpayer modify the like-kind exchange or conversion involving MACRS property must treat the entire basis (i.e., both the involuntary conversion examples contained in a general asset account exchanged and excess basis) of the contained in § 1.168(k)–1T(f)(5)(v) to when the replacement MACRS property replacement MACRS property as being reflect the placed in service date (taking has a longer recovery period or less placed in service by the acquiring into account the convention as accelerated depreciation method than taxpayer at the time of replacement. determined under these temporary the relinquished MACRS property or Consistent with this treatment, the regulations) for the relinquished when the basis of the general asset
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account would change as a result of the Drafting Information determined under section 167 and the like-kind exchange or involuntary The principal authors of these regulations under section 167. (2) MACRS property is tangible, conversion. regulations are Alan H. Cooper, Office of depreciable property that is placed in the Chief Counsel (Small Business/Self Exchanges of Multiple Properties service after December 31, 1986 (or after Employed), and Charles J. Magee, Office July 31, 1986, if the taxpayer made an The determination of the basis of of the Associate Chief Counsel election under section 203(a)(1)(B) of property acquired in a like-kind (Passthroughs and Special Industries). exchange involving multiple properties the Tax Reform Act of 1986; 100 Stat. However, other personnel from the IRS 2143) and subject to section 168, except is described in § 1.1031(j)–1 and the and Treasury Department participated for property excluded from the determination of the basis of multiple in their development. application of section 168 as a result of properties acquired as a result of an section 168(f) or as a result of a involuntary conversion is described in List of Subjects in 26 CFR Part 1 transitional rule. § 1.1033(b)–1. Commentators question Income taxes, Reporting and (3) Unadjusted depreciable basis is how the rules set forth in Notice 2000– recordkeeping requirements. the basis of property for purposes of 4 affects the depreciation treatment of a Temporary Amendments to the section 1011 without regard to any like-kind exchange or an involuntary Regulations adjustments described in section conversion involving multiple 1016(a)(2) and (3). This basis reflects the properties. At this time, taxpayers may ■ Accordingly, 26 CFR part 1 is amended reduction in basis for the percentage of apply the principles of this temporary as follows: the taxpayer’s use of property for the regulation to determine the depreciation taxable year other than in the taxpayer’s PART 1—INCOME TAXES treatment of MACRS property acquired trade or business (or for the production in these transactions. The IRS and ■ Paragraph 1. The authority citation for of income), for any portion of the basis Treasury may consider providing future part 1 continues to read in part as the taxpayer properly elects to treat as guidance with respect to this issue and follows: an expense under section 179, and for request comments relating thereto. any adjustments to basis provided by Specifically, comments are requested on Authority: 26 U.S.C. 7805 * * * § 1.168(i)– other provisions of the Internal Revenue 1T also issued under 26 U.S.C. 168(i)(4). the depreciation treatment of these Code and the regulations under the transactions when the depreciation ■ Par. 2. Sections 1.168(a)–1T and Code (other than section 1016(a)(2) and methods or recovery periods of the 1.168(b)–1T are added to read as follows: (3)) (for example, a reduction in basis by replacement MACRS properties differ the amount of the disabled access credit from those of the relinquished MACRS § 1.168(a)–1T Modified accelerated cost pursuant to section 44(d)(7)). For properties. recovery system (temporary). property subject to a lease, see section (a) Section 168 determines the Effect on Other Documents 167(c)(2). depreciation allowance for tangible (4) Adjusted depreciable basis is the The following publication is obsolete property that is of a character subject to unadjusted depreciable basis of the after February 27, 2004: Notice 2000–4 the allowance for depreciation provided property, as defined in § 1.168(b)– (2000–1 C.B. 313). in section 167(a) and that is placed in 1T(a)(3), less the adjustments described service after December 31, 1986 (or after in section 1016(a)(2) and (3). Taxpayers who have either July 31, 1986, if the taxpayer made an (b) Effective date. (1) This section is relinquished or an acquired MACRS election under section 203(a)(1)(B) of applicable on February 27, 2004. property in a like-kind exchange or the Tax Reform Act of 1986; 100 Stat. (2) The applicability of this section involuntary conversion between January 2143). Except for property excluded expires on or before February 27, 2007. 3, 2000, and February 27, 2004, may from the application of section 168 as a ■ Par. 3. Section 1.168(d)–1 is amended rely on Notice 2000–4. result of section 168(f) or as a result of by: a transitional rule, the provisions of ■ 1. Revising paragraph (b)(3). Special Analyses ■ section 168 are mandatory for all 2. Adding paragraph (d)(3). The addition and revision read as It has been determined that this eligible property. The allowance for follows: Treasury decision is not a significant depreciation under section 168 regulatory action as defined in constitutes the amount of depreciation § 1.168(d)–1 Applicable conventions—half- Executive Order 12866. Therefore, a allowable under section 167(a). The year and mid-quarter conventions. regulatory assessment is not required. It determination of whether tangible * * * * * also has been determined that section property is property of a character (b) * * * 553(b) of the Administrative Procedure subject to the allowance for depreciation (3) * * * (i) and (ii) [Reserved] For Act (5 U.S.C. chapter 5) does not apply is made under section 167 and the further guidance, see § 1.168(d)– to these regulations. For the regulations under section 167. 1T(b)(3)(i) and (ii). applicability of the Regulatory (b) This section is applicable on and * * * * * Flexibility Act (5 U.S.C. chapter 6), refer after February 27, 2004. (d) * * * to the Special Analyses section of the (c) The applicability of this section (3) Like-kind exchanges and preamble to the cross-reference notice of expires on or before February 27, 2007. involuntary conversions. [Reserved] For proposed rulemaking published in the further guidance, see § 1.168(d)– proposed rules section in this issue of § 1.168(b)–1T Definitions (temporary). 1T(d)(3)(i). the Federal Register. Pursuant to (a) Definitions. For purposes of ■ Par. 4. Section 1.168(d)–1T is section 7805(f) of the Code, these section 168 and the regulations under amended by: temporary regulations will be submitted section 168, the following definitions ■ 1. Revising paragraphs (a) through to the Chief Counsel for Advocacy of the apply: (b)(3)(ii). Small Business Administration for (1) Depreciable property is property ■ 2. Adding paragraph (d)(3). comment on its impact on small that is of a character subject to the The addition and revisions read as business. allowance for depreciation as follows:
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§ 1.168(d)–1T Applicable conventions— property for which the time of (i) Source determined by allocation half-year and mid-quarter conventions disposition and the time of replacement and apportionment of depreciation (temporary). both occur after February 27, 2004. allowed. (a) through (b)(2) [Reserved]. For (ii) The applicability of this section (f)(2)(ii) through (h)(2) [Reserved]. For further guidance, see § 1.168(d)–1(a) expires on or before February 27, 2007. further guidance, see the entries for through (b)(2). ■ Par. 5. In § 1.168(i)–0, the entries for § 1.168(i)–1(f)(2)(ii) through (h)(2). (b)(3) Property placed in service and § 1.168(i)–1(d)(2), (e)(3)(i), (f), (f)(1), (i) Identification of disposed or disposed of in the same taxable year— (f)(2), (f)(2)(i), (i), (j) and (l) are revised, converted asset. (i) Under section 168(d)(3)(B)(ii), the the entry for (e)(3)(v) is removed and a (j) Effect of adjustments on prior depreciable basis of property placed in new entry for (e)(3)(v) and (vi) is added. dispositions. service and disposed of in the same (k)(1) through (k)(3) [Reserved]. For taxable year is not taken into account in § 1.168(i)–0 Table of contents for the further guidance, see the entries for determining whether the 40-percent test general asset account rules. § 1.168(i)–1 (k)(1) through (k)(3). is satisfied. However, the depreciable * * * * * (l) Effective date. basis of property placed in service, (l)(1) through (l)(3) [Reserved]. For § 1.168(i)–1 General asset accounts. disposed of, subsequently reacquired, further guidance, see the entries for and again placed in service, by the * * * * * § 1.168(i)–1(l)(1) through (l)(3). taxpayer in the same taxable year must (d) * * * be taken into account in applying the (2) [Reserved]. For further guidance ■ Par. 7. Section 1.168(i)–1 is amended 40-percent test, but the basis of the see the entry for § 1.168(i)–1T(d)(2). by: property is only taken into account on * * * * * ■ 1. Redesignating paragraph (e)(3)(v) as the later of the dates that the property (e) * * * paragraph (e)(3)(vi). is placed in service by the taxpayer (3) * * * ■ 2. Adding paragraphs (c)(2)(ii)(E) and during the taxable year. Further, see (i) [Reserved]. For further guidance (e)(3)(v). § 1.168(i)–6T(c)(4)(v)(B) and § 1.168(i)– see the entry for § 1.168(i)–1T(e)(3)(i). ■ 3. Revising paragraphs (d)(2), (e)(3)(i), 6T(f) for rules relating to property * * * * * (e)(3)(iii)(B)(4), newly designated placed in service and exchanged or (v) and (vi) [Reserved]. For further (e)(3)(vi), (f)(1), (f)(2)(i), (i), (j), and (l). involuntarily converted during the same guidance see the entries for § 1.168(i)– The additions and revisions read as taxable year. 1T(e)(3)(v) and (vi). follows: (ii) The applicable convention, as * * * * * § 1.168(i)–1 General asset accounts. determined under this section, applies (f) through (f)(2)(i) [Reserved]. For * * * * * to all depreciable property (except further guidance see the entries for nonresidential real property, residential (c) * * * § 1.168(i)–1T(f) through (f)(2)(i). (2) * * * (ii) * * * rental property, and any railroad * * * * * (E) [Reserved]. For further guidance, grading or tunnel bore) placed in service (i) and (j). [Reserved]. For further see § 1.168(i)–1T(c)(2)(ii)(E). by the taxpayer during the taxable year, guidance, see the entries for § 1.168(i)– (d) * * * excluding property placed in service 1T(i) and (j). (2) [Reserved]. For further guidance, and disposed of in the same taxable * * * * * see § 1.168(i)–1T(d)(2). year. However, see § 1.168(i)– (l) [Reserved]. For further guidance, (e) * * * 6T(c)(4)(v)(A) and § 1.168(i)–6T(f) for see the entry for § 1.168(i)–1T(l). (3) * * * rules relating to MACRS property that ■ Par. 6. Section 1.168(i)–0T is added to (i) [Reserved]. For further guidance, has a basis determined under section read as follows: see § 1.168(i)–1T(e)(3)(i). 1031(d) or section 1033(b). No depreciation deduction is allowed for § 1.168(i)–0T Table of contents for the * * * * * property placed in service and disposed general asset account rules (temporary). (iii) * * * (B) * * * of during the same taxable year. This section lists the major (4) [Reserved]. For further guidance, However, see § 1.168(k)–1T(f)(1) for paragraphs contained in § 1.168(i)–1T. rules relating to qualified property or see § 1.168(i)–1T(e)(3)(iii)(B)(4). 50-percent bonus depreciation property, § 1.168(i)–1T General asset accounts * * * * * and § 1.1400L(b)–1T(f)(1) for rules (temporary). (e)(3)(v) [Reserved]. For further relating to qualified New York Liberty (a) through (d)(1) [Reserved]. For guidance, see § 1.168(i)–1T(e)(3)(v). Zone property, that is placed in service further guidance, see the entries for (vi) Anti-abuse rule—[Reserved]. For by the taxpayer in the same taxable year § 1.168(i)–1(a) through (d)(1). further guidance, see § 1.168(i)– in which either a partnership is (2) Special rule for passenger 1T(e)(3)(vi). terminated as a result of a technical automobiles. (f) * * * (1) In general. [Reserved]. termination under section 708(b)(1)(B) (e) through (e)(3) [Reserved]. For For further guidance, see § 1.168(i)– or the property is transferred in a further guidance, see the entries for 1T(f)(1). transaction described in section § 1.168(i)–1(e) through (e)(3). (2) * * *(i) [Reserved]. For further (i) In general. guidance, see § 1.168(i)–1T(f)(2)(i). 168(i)(7). (e)(3)(ii) through (e)(3)(iv) [Reserved]. * * * * * * * * * * For further guidance, see the entries for (i) Identification of disposed or (d)(2) * * * § 1.168(i)–1(e)(3)(ii) through (iv). converted asset. [Reserved]. For further (3) Like-kind exchanges and (v) Transactions subject to section guidance, see § 1.168(i)–1T(i). involuntary conversions. (i) The last 1031 or 1033. sentence in paragraph (b)(3)(i) and the (vi) Anti-abuse rule. (j) Effect of adjustments on prior second sentence in paragraph (b)(3)(ii) (f) Assets generating foreign source dispositions. [Reserved]. For further of this section apply to exchanges to income. guidance, see § 1.168(i)–1T(j). which section 1031 applies, and (1) In general. * * * * * involuntary conversions to which (2) Source of ordinary income, gain, (l) Effective date—[Reserved]. For section 1033 applies, of MACRS or loss. further guidance, see § 1.168(i)–1T(l).
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■ Par. 8. Section 1.168(i)–1T is added to (e)(3)(iii)(C) through (e)(3)(iv) equals the unadjusted depreciable basis read as follows: [Reserved]. For further guidance, see of the asset less the depreciation § 1.168(i)–1(e)(iii)(C) through (e)(3)(iv). allowed or allowable for the asset, § 1.168(i)–1T General asset accounts (e)(3)(v) Transactions subject to computed by using the depreciation (temporary). section 1031 or section 1033—(A) Like- method, recovery period, and (a) through (c)(2)(ii)(D) [Reserved]. For kind exchange or involuntary convention applicable to the general further guidance, see § 1.168(i)–1(a) conversion of all assets remaining in a asset account in which the asset was through (c)(2)(ii)(D). general asset account. If all the assets, included. The depreciation allowance (c)(2)(ii)(E) [Reserved]. or the last asset, in a general asset for the asset in the year of disposition (d)(1) [Reserved]. For further account are transferred by a taxpayer in is determined in the same manner as the guidance, see § 1.168(i)–1(d)(1). a like-kind exchange (as defined under depreciation allowance for the (d)(2) Special rule for passenger § 1.168–6T(b)(11)) or in an involuntary relinquished MACRS property (as automobiles. For purposes of applying conversion (as defined under § 1.168– defined in § 1.168(i)–6T(b)(2)) in the section 280F(a), the depreciation 6T(b)(12)), the taxpayer must apply this year of disposition is determined under allowance for a general asset account paragraph (e)(3)(v)(A) (instead of § 1.168(i)–6T. The recognition and established for passenger automobiles is applying paragraph (e)(2), (e)(3)(ii), or character of the gain or loss are limited for each taxable year to the (e)(3)(iii) of this section). Under this determined in accordance with amount prescribed in section 280F(a) paragraph (e)(3)(v)(A), the general asset paragraph (e)(3)(iii)(A) of this section multiplied by the excess of the number account terminates as of the first day of (notwithstanding that paragraph of automobiles originally included in the year of disposition (as defined in (e)(3)(iii) of this section is an optional the account over the number of § 1.168(i)–6T(b)(5)) and— rule); and automobiles disposed of during the (1) The amount of gain or loss for the (2) As of the first day of the year of taxable year or in any prior taxable year general asset account is determined disposition, the taxpayer must remove in a transaction described in paragraph under section 1001(a) by taking into the relinquished asset from the general (e)(3)(iii) (disposition of an asset in a account the adjusted depreciable basis asset account and make the adjustments qualifying disposition), (e)(3)(iv) of the general asset account at the time to the general asset account described in (transactions subject to section of disposition (as defined in § 1.168(i)– paragraph (e)(3)(iii)(C)(2) through (4) of 168(i)(7)), (e)(3)(v) (transactions subject 6T(b)(3)). The depreciation allowance this section. to section 1031 or 1033), (e)(3)(vi) (anti- for the general asset account in the year (e)(3)(vi) Anti-abuse rule—(A) In abuse rule), (g) (assets subject to of disposition is determined in the same general. If an asset in a general asset recapture), or (h)(1) (conversion to manner as the depreciation allowance account is disposed of by a taxpayer in personal use) of this section. for the relinquished MACRS property a transaction described in paragraph (e)(1) through (e)(2) [Reserved]. For (as defined in § 1.168(i)–6T(b)(2)) in the (e)(3)(vi)(B) of this section, general asset further guidance, see § 1.168(i)–1(e)(1) year of disposition is determined under account treatment for the asset through (e)(2). § 1.168(i)–6T. The recognition and terminates as of the first day of the (e)(3) Special rules—(i) In general. character of gain or loss are determined taxable year in which the disposition This paragraph (e)(3) provides the rules in accordance with paragraph occurs. Consequently, the taxpayer must for terminating general asset account (e)(3)(ii)(A) of this section determine the amount of gain, loss, or treatment upon certain dispositions. (notwithstanding that paragraph other deduction attributable to the While the rules under paragraphs (e)(3)(ii) of this section is an optional disposition in the manner described in (e)(3)(ii) and (iii) of this section are rule); and paragraph (e)(3)(iii)(A) of this section optional rules, the rules under (2) The adjusted depreciable basis of (notwithstanding that paragraph paragraphs (e)(3)(iv), (v), and (vi) of this the general asset account at the time of (e)(3)(iii)(A) of this section is an section are mandatory rules. A taxpayer disposition is treated as the adjusted optional rule) and must make the applies paragraph (e)(3)(ii) or (iii) of this depreciable basis of the relinquished adjustments to the general asset account section by reporting the gain, loss, or MACRS property. described in paragraph (e)(3)(iii)(C)(1) other deduction on the taxpayer’s timely (B) Like-kind exchange or involuntary through (4) of this section. filed Federal income tax return conversion of less than all assets (B) Abusive transactions. A (including extensions) for the taxable remaining in a general asset account. If transaction is described in this year in which the disposition occurs. an asset in a general asset account is paragraph (e)(3)(vi)(B) if the transaction For purposes of applying paragraph transferred by a taxpayer in a like-kind is not described in paragraph (e)(3)(iv) (e)(3)(iii) through (vi) of this section, see exchange or in an involuntary or (e)(3)(v) of this section and the paragraph (i) of this section for conversion and if paragraph (e)(3)(v)(A) transaction is entered into, or made, identifying the unadjusted depreciable of this section does not apply to this with a principal purpose of achieving a basis of a disposed asset. asset, the taxpayer must apply this tax benefit or result that would not be (e)(3)(ii) through (e)(3)(iii)(B)(3) paragraph (e)(3)(v)(B) (instead of available absent an election under this [Reserved]. For further guidance, see applying paragraph (e)(2), (e)(3)(ii), or section. Examples of these types of § 1.168(i)–1(e)(3)(ii) through (e)(3)(iii) of this section). Under this transactions include— (e)(3)(iii)(B)(3). paragraph (e)(3)(v)(B), general asset (1) A transaction entered into with a (e)(3)(iii)(B)(4) A transaction, other account treatment for the asset principal purpose of shifting income or than a transaction described in terminates as of the first day of the year deductions among taxpayers in a paragraph (e)(3)(iv) of this section of disposition (as defined in § 1.168(i)– manner that would not be possible (pertaining to transactions subject to 6T(b)(5)), and— absent an election under this section in section 168(i)(7)) and (e)(3)(v) of this (1) The amount of gain or loss for the order to take advantage of differing section (pertaining to transactions asset is determined by taking into effective tax rates among the taxpayers; subject to section 1031 or 1033), to account the asset’s adjusted basis at the or which a nonrecognition section of the time of disposition (as defined in (2) An election made under this Code applies (determined without § 1.168(i)–6T(b)(3)). The adjusted basis section with a principal purpose of regard to this section). of the asset at the time of disposition disposing of an asset from a general
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asset account in order to utilize an involuntary conversion), or if the asset ■ Par. 9. Section 1.168(i)–5T is added to expiring net operating loss or credit. is disposed in a transaction described in read as follows: The fact that a taxpayer with a net paragraph (e)(3)(vi) of this section (anti- operating loss carryover or a credit abuse rule). § 1.168(i)–5T Table of contents (temporary). carryover transfers an asset to a related (f)(2)(ii) through (h) [Reserved]. For person or transfers an asset pursuant to further guidance, see § 1.168(i)– This section lists the major an arrangement where the asset 1(f)(2)(ii) through (h). paragraphs contained in § 1.168(i)–6T. continues to be used (or is available for (i) Identification of disposed or § 1.168(i)–6T Like-kind exchanges and use) by the taxpayer pursuant to a lease converted asset. A taxpayer may use any involuntary conversions (temporary). (or otherwise) indicates, absent strong reasonable method that is consistently (a) Scope. evidence to the contrary, that the applied to the taxpayer’s general asset (b) Definitions. transaction is described in this accounts for purposes of determining (1) Replacement MACRS property. paragraph (e)(3)(vi)(B). the unadjusted depreciable basis of a (2) Relinquished MACRS property. (f) Assets generating foreign source disposed or converted asset in a (3) Time of disposition. income—(1) In general. This paragraph transaction described in paragraph (4) Time of replacement. (f) provides the rules for determining (e)(3)(iii) (disposition of an asset in a (5) Year of disposition. the source of any income, gain, or loss (6) Year of replacement. qualifying disposition), (e)(3)(iv) (7) Exchanged basis. recognized, and the appropriate section (transactions subject to section 904(d) separate limitation category or (8) Excess basis. 168(i)(7)), (e)(3)(v) (transactions subject (9) Depreciable exchanged basis. categories for any foreign source to section 1031 or 1033), (e)(3)(vi) (anti- (10) Depreciable excess basis. income, gain, or loss recognized, on a abuse rule), (g) (assets subject to (11) Like-kind exchange. disposition (within the meaning of recapture), or (h)(1) (conversion to (12) Involuntary conversion. paragraph (e)(1) of this section) of an personal use) of this section. (c) Determination of depreciation asset in a general asset account that (j) Effect of adjustments on prior allowance. (1) Computation of the depreciation consists of assets generating both United dispositions. The adjustments to a States and foreign source income. These allowance for depreciable exchanged basis general asset account under paragraph beginning in the year of replacement. rules apply only to a disposition to (e)(3)(iii), (e)(3)(iv), (e)(3)(v), (e)(3)(vi), which paragraph (e)(2) (general (i) In general. (g), or (h)(1) of this section have no (ii) Applicable recovery period, disposition rules), (e)(3)(ii) (disposition effect on the recognition and character depreciation method, and convention. of all assets remaining in a general asset of prior dispositions subject to (2) Effect of depreciation treatment of the account), (e)(3)(iii) (disposition of an paragraph (e)(2) of this section. replacement MACRS property by previous asset in a qualifying disposition), (k) [Reserved]. For further guidance, owners of the acquired property. (e)(3)(v) (transactions subject to section (3) Recovery period and/or depreciation see § 1.168(i)–1(k). 1031 or 1033), or (e)(3)(vi) (anti-abuse method of the properties are the same, or (l) Effective date—(1) In general. rule) of this section applies. both are not the same. (2) Source of ordinary income, gain or Except as provided in paragraphs (l)(2) (i) In general. loss—(i) Source determined by and (l)(3) of this section, this section (ii) Both the recovery period and the applies to depreciable assets placed in depreciation method are the same. allocation and apportionment of (iii) Either the recovery period or the depreciation allowed. The amount of service in taxable years ending on or after October 11, 1994. For depreciable depreciation method is the same, or both are any ordinary income, gain, or loss that not the same. is recognized on the disposition of an assets placed in service after December (4) Recovery period or depreciation asset in a general asset account must be 31, 1986, in taxable years ending before method of the properties is not the same. apportioned between United States and October 11, 1994, the Internal Revenue (i) Longer recovery period. foreign sources based on the allocation Service will allow any reasonable (ii) Shorter recovery period. and apportionment of the— method that is consistently applied to (iii) Less accelerated depreciation method. (A) Depreciation allowed for the the taxpayer’s general asset accounts. (iv) More accelerated depreciation method. general asset account as of the end of (2) [Reserved]. (v) Convention. (3) Like-kind exchanges and (A) In general. the taxable year in which the (B) Mid-quarter convention. disposition occurs if paragraph (e)(2) of involuntary conversions. (i) This section (5) Year of disposition and year of this section applies to the disposition; applies for an asset transferred by a replacement. (B) Depreciation allowed for the taxpayer in a like-kind exchange (as (i) Relinquished MACRS property. general asset account as of the time of defined under § 1.168–6T(b)(11)) or in (ii) Replacement MACRS property. disposition if the taxpayer applies an involuntary conversion (as defined (A) Year of replacement is 12 months. paragraph (e)(3)(ii) of this section to the under § 1.168–6T(b)(12)) for which the (B) Year of replacement is less than 12 disposition of all assets, or the last asset, time of disposition (as defined in months. § 1.168(i)–6T(b)(3)) and the time of (iii) Deferred transactions. in the general asset account, or if all the (A) In general. assets, or the last asset, in the general replacement (as defined in § 1.168(i)– (B) Allowable depreciation for a qualified asset account are disposed of in a 6T(b)(4)) both occur after February 27, intermediary. transaction described in paragraph 2004. For an asset transferred by a (iv) Remaining recovery period. (e)(3)(v)(A) of this section; or taxpayer in a like-kind exchange or in (6) Examples. (C) Depreciation allowed for the an involuntary conversion for which the (d) Special rules for determining disposed asset for only the taxable year time of disposition, the time of depreciation allowances. in which the disposition occurs if the replacement, or both occur on or before (1) Excess basis. taxpayer applies paragraph (e)(3)(iii) of February 27, 2004, see § 1.168(i)–1 in (i) In general. (ii) Example. this section to the disposition of the effect prior to February 27, 2004, (2) Depreciable and nondepreciable asset in a qualifying disposition, if the (§ 1.168(i)–1 as contained in 26 CFR part property. asset is disposed of in a transaction 1 edition revised as of April 1, 2003). (3) Depreciation limitations for described in paragraph (e)(3)(v)(B) of (ii) The applicability of this section automobiles. this section (like-kind exchange or expires on or before February 27, 2007. (i) In general.
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(ii) Order in which limitations on been made under paragraph (i) of this the Code (including section 1016(a)(2) depreciation under section 280F(a) are section. and (3), for example, depreciation applied. (b) Definitions. For purposes of this deductions in the year of replacement (iii) Depreciation allowance for depreciable section, the following definitions apply: allowable under section 168(k) or excess basis. (iv) Examples. (1) Replacement MACRS property is 1400L(b)). (4) Replacement MACRS property acquired MACRS property (as defined in (10) Depreciable excess basis is the and placed in service before disposition of § 1.168(b)–1T(a)(2)) in the hands of the excess basis as determined under relinquished MACRS property. acquiring taxpayer that is acquired for paragraph (b)(8) of this section reduced (e) Use of optional depreciation tables. other MACRS property in a like-kind by— (1) Taxpayer not bound by prior use of exchange or an involuntary conversion. (i) The percentage of such basis table. (2) Relinquished MACRS property is attributable to the taxpayer’s use of (2) Determination of the depreciation MACRS property that is transferred by property for the taxable year other than deduction. in the taxpayer’s trade or business (or (i) Relinquished MACRS property. the taxpayer in a like-kind exchange, or (ii) Replacement MACRS property. in an involuntary conversion. for the production of income); (A) Determination of the appropriate (3) Time of disposition is when the (ii) Any portion of the basis the optional depreciation table. disposition of the relinquished MACRS taxpayer properly elects to treat as an (B) Calculating the depreciation deduction property takes place under the expense under section 179; and for the replacement MACRS property. convention, as determined under (iii) Any adjustments to basis (iii) Unrecovered basis. § 1.168(d)–1T, that applies to the provided by other provisions of the (3) Excess basis. relinquished MACRS property. Internal Revenue Code and the (4) Examples. (4) Time of replacement is the later of: regulations under the Code (including (f) Mid-quarter convention. (i) When the replacement MACRS section 1016(a)(2) and (3), for example, (1) Exchanged basis. depreciation deductions in the year of (2) Excess basis. property is placed in service under the (3) Depreciable property acquired for convention, as determined under this replacement allowable under section nondepreciable property. section, that applies to the replacement 168(k) or 1400L(b)). (g) Section 179 election. MACRS property; or (11) Like-kind exchange is an (h) Additional first year depreciation (ii) The time of disposition of the exchange of property for other property deduction. exchanged or involuntarily converted (or money) in a transaction to which (i) Election not to apply this section. property. section 1031(a)(1), (b), or (c) applies. (j) Time and manner of making elections. (5) Year of disposition is the taxable (12) Involuntary conversion is a (1) In general. year that includes the time of transaction described in section (2) Time for making election. disposition. 1033(a)(1) or (2) that resulted in the (3) Manner of making election. nonrecognition of any part of the gain (4) Revocation. (6) Year of replacement is the taxable (k) Effective date. year that includes the time of realized as the result of the conversion. (1) In general. replacement. (c) Determination of depreciation (2) Application to pre-effective date like- (7) Exchanged basis is determined allowance—(1) Computation of the kind exchanges and involuntarily after the depreciation deductions for the depreciation allowance for depreciable conversions. year of disposition are determined exchanged basis beginning in the year of under paragraph (c)(5)(i) of this section replacement—(i) In general. This ■ Par. 10. Section 1.168(i)–6T is added and is the lesser of— paragraph (c) provides rules for to read as follows: (i) The basis in the replacement determining the applicable recovery MACRS property, as determined under period, the applicable depreciation § 1.168(i)–6T Like-kind exchanges and section 1031(d) and the regulations method, and the applicable convention involuntary conversions (temporary). under section 1031(d) or section 1033(b) used to determine the depreciation (a) Scope. This section provides the and the regulations under section allowances for the depreciable rules for determining the depreciation 1033(b); or exchanged basis beginning in the year of allowance for MACRS property acquired (ii) The adjusted depreciable basis (as replacement. See paragraph (c)(5) of this in a like-kind exchange or an defined in § 1.168(b)–1T(a)(4)) of the section for rules relating to the involuntary conversion, including a relinquished MACRS property. computation of the depreciation like-kind exchange or an involuntary (8) Excess basis is any excess of the allowance for the year of disposition conversion of MACRS property that is basis in the replacement MACRS and for the year of replacement. See exchanged or replaced with other property, as determined under section paragraph (d)(1) of this section for rules MACRS property in a transaction 1031(d) and the regulations under relating to the computation of the between members of the same affiliated section 1031(d) or section 1033(b) and depreciation allowance for depreciable group. The allowance for depreciation the regulations under section 1033(b), excess basis. See paragraph (d)(4) of this under this section constitutes the over the exchanged basis as determined section if the replacement MACRS amount of depreciation allowable under under paragraph (b)(7) of this section. property is acquired before disposition section 167(a) for the year of (9) Depreciable exchanged basis is the of the relinquished MACRS property in replacement and any subsequent taxable exchanged basis as determined under a transaction to which section 1033 year for the replacement MACRS paragraph (b)(7) of this section reduced applies. See paragraph (e) of this section property and for the year of disposition by— for rules relating to the computation of of the relinquished MACRS property. (i) The percentage of such basis the depreciation allowance using the The provisions of this section apply attributable to the taxpayer’s use of optional depreciation tables. only to MACRS property to which property for the taxable year other than (ii) Applicable recovery period, § 1.168(h)–1 (like-kind exchanges of tax- in the taxpayer’s trade or business (or depreciation method, and convention. exempt use property) does not apply. for the production of income); and The recovery period, depreciation Additionally, paragraphs (c) through (f) (ii) Any adjustments to basis provided method, and convention determined of this section apply only to MACRS by other provisions of the Internal under this paragraph (c) are the only property for which an election has not Revenue Code and the regulations under permissible methods of accounting for
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MACRS property within the scope of prescribed under section 168 for the to determine the depreciation this section unless the taxpayer makes relinquished MACRS property, the allowances for the depreciable the election under paragraph (i) of this depreciation allowances for the exchanged basis beginning in the year of section not to apply this section. replacement MACRS property beginning replacement is determined under this (2) Effect of depreciation treatment of in the year of replacement are paragraph (c)(4). the replacement MACRS property by determined by using the same recovery (i) Longer recovery period. If the previous owners of the acquired period and depreciation method that recovery period prescribed under property. If replacement MACRS were used for the relinquished MACRS section 168 for the replacement MACRS property is acquired by a taxpayer in a property. Thus, the replacement property (as determined under like-kind exchange or an involuntary MACRS property is depreciated over the paragraph (c)(3)(i) of this section) is conversion, the depreciation treatment remaining recovery period (taking into longer than that prescribed for the of the replacement MACRS property by account the applicable convention), and relinquished MACRS property, the previous owners has no effect on the by using the depreciation method, of the depreciation allowances for the determination of depreciation relinquished MACRS property. Except depreciable exchanged basis beginning allowances for the replacement MACRS as provided in paragraph (c)(5) of this in the year of replacement are property in the hands of the acquiring section, the depreciation allowances for determined as though the replacement taxpayer. For example, a taxpayer the depreciable exchanged basis for any MACRS property had originally been exchanging, in a like-kind exchange, 12-month taxable year beginning with placed in service by the acquiring MACRS property for property that was the year of replacement are determined taxpayer in the same taxable year the depreciated under ACRS by the by multiplying the depreciable relinquished MACRS property was previous owner must use this section exchanged basis by the applicable placed in service by the acquiring because the replacement property will depreciation rate for each taxable year taxpayer, but using the longer recovery become MACRS property in the hands (for further guidance, for example, see period of the replacement MACRS of the acquiring taxpayer. In addition, section 6 of Rev. Proc. 87–57 (1987–2 property (as determined under elections made by previous owners in C.B. 687, 692) and § 601.601(d)(2)(ii)(b) paragraph (c)(3)(i) of this section) and determining depreciation allowances for of this chapter). the convention determined under the replacement MACRS property have (iii) Either the recovery period or the paragraph (c)(4)(v) of this section. Thus, no effect on the acquiring taxpayer. For depreciation method is the same, or the depreciable exchanged basis is example, a taxpayer exchanging, in a both are not the same. If either the depreciated over the remaining recovery like-kind exchange, MACRS property recovery period or the depreciation period (taking into account the that the taxpayer depreciates under the method prescribed under section 168 for applicable convention) of the general depreciation system for other the replacement MACRS property is the replacement MACRS property. MACRS property that the previous same as the recovery period or the (ii) Shorter recovery period. If the owner elected to depreciate under the depreciation method prescribed under recovery period prescribed under alternative depreciation system (ADS) section 168 for the relinquished MACRS pursuant to section 168(g)(7) does not property, the depreciation allowances section 168 for the replacement MACRS have to continue using the ADS for the for the depreciable exchanged basis property (as determined under replacement MACRS property. beginning in the year of replacement are paragraph (c)(3)(i) of this section) is (3) Recovery period and/or determined using the recovery period or shorter than that of the relinquished depreciation method of the properties the depreciation method that is the MACRS property, the depreciation are the same, or both are not the same— same as the relinquished MACRS allowances for the depreciable (i) In general. For purposes of property. See paragraph (c)(4) of this exchanged basis beginning in the year of paragraphs (c)(3) and (c)(4) of this section to determine the depreciation replacement are determined using the section in determining whether the allowances when the recovery period or same recovery period as that of the recovery period and the depreciation the depreciation method of the relinquished MACRS property. Thus, method prescribed under section 168 for replacement MACRS property is not the the depreciable exchanged basis is the replacement MACRS property are same as that of the relinquished MACRS depreciated over the remaining recovery the same as the recovery period and the property. period (taking into account the depreciation method prescribed under (4) Recovery period or depreciation applicable convention) of the section 168 for the relinquished MACRS method of the properties is not the relinquished MACRS property. property, the recovery period and the same. If the recovery period prescribed (iii) Less accelerated depreciation depreciation method for the under section 168 for the replacement method—(A) If the depreciation method replacement MACRS property are MACRS property (as determined under prescribed under section 168 for the considered to be the recovery period paragraph (c)(3)(i) of this section) is not replacement MACRS property (as and the depreciation method that would the same as the recovery period determined under paragraph (c)(3)(i) of have applied, taking into account any prescribed under section 168 for the this section) is less accelerated than that elections made by the acquiring relinquished MACRS property, the of the relinquished MACRS property at taxpayer under section 168(b)(5) or depreciation allowances for the the time of disposition, the depreciation 168(g)(7), had the replacement MACRS depreciable exchanged basis beginning allowances for the depreciable property been placed in service by the in the year of replacement are exchanged basis beginning in the year of acquiring taxpayer at the same time as determined under this paragraph (c)(4). replacement are determined as though the relinquished MACRS property. Similarly, if the depreciation method the replacement MACRS property had (ii) Both the recovery period and the prescribed under section 168 for the originally been placed in service by the depreciation method are the same. If replacement MACRS property (as acquiring taxpayer at the same time the both the recovery period and the determined under paragraph (c)(3)(i) of relinquished MACRS property was depreciation method prescribed under this section) is not the same as the placed in service by the acquiring section 168 for the replacement MACRS depreciation method prescribed under taxpayer, but using the less accelerated property are the same as the recovery section 168 for the relinquished MACRS depreciation method. Thus, the period and the depreciation method property, the depreciation method used depreciable exchanged basis is
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depreciated using the less accelerated replacement is the 150-percent taxpayer in the month that includes the depreciation method. declining balance method and the mid-point of the placed-in-service year (B) Except as provided in paragraph depreciation method of the replacement and must be depreciated using the mid- (c)(5) of this section, the depreciation MACRS property in the year of month convention (for example, for a allowances for the depreciable replacement is the 200-percent calendar-year taxpayer with a full 12- exchanged basis for any 12-month declining balance method, and neither month taxable year, the mid-point is the taxable year beginning in the year of method had been switched to the first day of the second half of the taxable replacement are determined by straight line method in the year of year (the seventh month)). For all other multiplying the adjusted depreciable replacement or any prior taxable year, replacement MACRS property, the basis by the applicable depreciation rate the applicable depreciation rate for the applicable convention is the half-year for each taxable year. If, for example, the year of replacement and subsequent convention, unless the applicable depreciation method of the replacement taxable years is the same depreciation convention for the relinquished MACRS MACRS property in the year of rate that applied to the relinquished property is the mid-quarter convention, replacement is the 150-percent MACRS property in the year of in which case the mid-quarter declining balance method and the replacement, until the 150-percent convention is applied to the depreciation method of the relinquished declining balance method has been replacement MACRS property. MACRS property in the year of switched to the straight line method. If, (B) Mid-quarter convention. See replacement is the 200-percent for example, the depreciation method is paragraph (f) of this section for purposes declining balance method, and neither the straight line method, the applicable of applying the 40-percent test of method had been switched to the depreciation rate for the year of section 168(d)(3) to any replacement straight line method in the year of replacement is determined by using the MACRS property. replacement or any prior taxable year, remaining recovery period at the (5) Year of disposition and year of the applicable depreciation rate for the beginning of the year of disposition (as replacement. No depreciation deduction year of replacement and subsequent determined under this paragraph (c)(4) is allowable for MACRS property taxable years is determined by using the and taking into account the applicable disposed of by a taxpayer in a like-kind depreciation rate of the replacement convention). exchange or involuntary conversion in MACRS property as if the replacement the same taxable year that such property (v) Convention—(A) In general. The MACRS property was placed in service was placed in service by the taxpayer. applicable convention for the exchanged by the acquiring taxpayer at the same If replacement MACRS property is time the relinquished MACRS property basis is determined under this disposed of by a taxpayer during the was placed in service by the acquiring paragraph (c)(4)(v). The applicable same taxable year that the relinquished taxpayer, until the 150-percent convention for the exchanged basis is MACRS property is placed in service by declining balance method has been deemed to be the mid-month the taxpayer, no depreciation deduction switched to the straight line method. If, convention for replacement MACRS is allowable for either MACRS property. for example, the depreciation method of property that is nonresidential real Otherwise, the depreciation allowances the replacement MACRS property is the property, residential rental property, or for the year of disposition and for the straight line method, the applicable any railroad grading or tunnel bore. year of replacement are determined as depreciation rate for the year of Thus, if the relinquished MACRS follows: replacement is determined by using the property was depreciated using the mid- (i) Relinquished MACRS property. remaining recovery period at the month convention, then the Except as provided in paragraphs (e) beginning of the year of disposition (as replacement MACRS property is and (i) of this section, the depreciation determined under this paragraph (c)(4) deemed to have been placed in service allowance in the year of disposition for and taking into account the applicable by the acquiring taxpayer in the same the relinquished MACRS property is convention). month as the relinquished MACRS computed by multiplying the allowable (iv) More accelerated depreciation property and must continue to be depreciation deduction for the property method—(A) If the depreciation method depreciated using the mid-month for that year by a fraction, the numerator prescribed under section 168 for the convention. If nonresidential real of which is the number of months replacement MACRS property (as property, residential rental property, or (including fractions of months) the determined under paragraph (c)(3)(i) of any railroad grading or tunnel bore is property is deemed to be placed in this section) is more accelerated than received as a result of an exchange or an service during the year of disposition that of the relinquished MACRS involuntarily conversion of MACRS (taking into account the applicable property at the time of disposition, the property that was depreciated using the convention of the relinquished MACRS depreciation allowances for the mid-quarter convention, the property), and the denominator of replacement MACRS property beginning replacement MACRS property is which is 12. However, if the year of in the year of replacement are deemed to have been placed in service disposition is less than 12 months, the determined using the same depreciation by the acquiring taxpayer in the month depreciation allowance determined method as the relinquished MACRS that includes the mid-point of the under this paragraph (c)(5)(i) must be property. quarter that the relinquished MACRS adjusted for a short taxable year (for (B) Except as provided in paragraph property was placed in service and must further guidance, for example, see Rev. (c)(5) of this section, the depreciation be depreciated using the mid-month Proc. 89–15 (1989–1 C.B. 816) and allowances for the depreciable convention. If nonresidential real § 601.601(d)(2)(ii)(b) of this chapter). In exchanged basis for any 12-month property, residential rental property, or the case of termination under § 1.168(i)– taxable year beginning in the year of any railroad grading or tunnel bore is 1T(e)(3)(v) of general asset account replacement are determined by received as a result of an exchange or an treatment of an asset, or of all the assets multiplying the adjusted depreciable involuntarily conversion of MACRS remaining, in a general asset account, basis by the applicable depreciation rate property that was depreciated using the the allowable depreciation deduction in for each taxable year. If, for example, the half-year convention, the replacement the year of disposition for the asset or depreciation method of the relinquished MACRS property is deemed to have assets for which general asset account MACRS property in the year of been placed in service by the acquiring treatment is terminated is determined
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using the depreciation method, recovery taxable year subsequent to the year of recovery period prescribed under section 168 period, and convention of the general disposition. for Building Q (27.5 years) is longer than that asset account. This allowable (B) Allowable depreciation for a of Bridge P (15 years), Building Q is depreciation deduction is adjusted to qualified intermediary. [Reserved]. depreciated as if it had originally been placed (iv) Remaining recovery period. The in service in July 1998 and disposed of in account for the period the asset or assets July 2004 using a 27.5 year recovery period. is deemed to be in service in accordance remaining recovery period of the Additionally, since the depreciation method with this paragraph (c)(5)(i). replacement MACRS property is prescribed under section 168 for Building Q (ii) Replacement MACRS property— determined as of the beginning of the (straight line method) is less accelerated than (A) Year of replacement is 12 months. year of disposition of the relinquished that of Bridge P (150-percent declining Except as provided in paragraphs MACRS property. For purposes of balance method), then the depreciation (c)(5)(iii), (e), and (i) of this section, the determining the remaining recovery allowance for Building Q is computed using period of the replacement MACRS the straight line method. Thus, when depreciation allowance in the year of Building Q is acquired and placed in service replacement for the depreciable property, the replacement MACRS in 2004, its basis is depreciated over the exchanged basis is determined by— property is deemed to have been remaining 21.5 year recovery period using (1) Calculating the applicable originally placed in service under the the straight line method of depreciation and depreciation rate for that taxable year by convention determined under paragraph the mid-month convention beginning in July taking into account the recovery period (c)(4)(v) of this section but at the time 2004. and depreciation method prescribed for the relinquished MACRS property was Example 3. C, a calendar-year taxpayer, deemed to be placed in service under placed in service Building R, a restaurant, in the replacement MACRS property under January 1996. In January 2004, C exchanges paragraph (c)(3) or (4) of this section; the convention that applied to it when Building R for Tower S, a radio transmitting (2) Calculating the depreciable it was placed in service. tower, in a like-kind exchange. C did not exchanged basis of the replacement (6) Examples. The application of this make any elections under section 168 for MACRS property, and adding to that paragraph (c) is illustrated by the either Building R or Tower S. Since the amount the amount determined under following examples: recovery period prescribed under section 168 paragraph (c)(5)(i) of this section for the Example 1. A1, a calendar-year taxpayer, for Tower S (15 years) is shorter than that of exchanges Building M, an office building, for Building R (39 years), Tower S is depreciated year of disposition; and over the remaining recovery period of Building N, a warehouse in a like-kind (3) Multiplying the product of the Building R. Additionally, since the exchange. Building M is relinquished in July amounts determined under § 1.168(i)– depreciation method prescribed under 2004 and Building N is acquired and placed section 168 for Tower S (150% declining 6T(c)(5)(ii)(A)(1) and (A)(2) by a in service in October 2004. A1 did not make balance method) is more accelerated than fraction, the numerator of which is the any elections under section 168 for either that of Building R (straight line method), then number of months (including fractions Building M or Building N. The unadjusted the depreciation allowance for Tower S is of months) the property is deemed to be depreciable basis of Building M was also computed using the same depreciation in service during the year of $4,680,000 when placed in service in July method as Building R. Thus, Tower S is replacement (in the year of replacement 1997. Since the recovery period and depreciated over the remaining 31 year the replacement MACRS property is depreciation method prescribed under recovery period of Building R using the deemed to be placed in service by the section 168 for Building N (39 years, straight straight line method of depreciation and the acquiring taxpayer at the time of line method) are the same as the recovery mid-month convention. Alternatively, C may period and depreciation method prescribed replacement under the convention elect under paragraph (i) of this section to under section 168 for Building M (39 years, treat Tower S as though it is placed in service determined under paragraph (c)(4)(v) of straight line method), Building N is this section), and the denominator of in January 2004. In such case, C uses the depreciated over the remaining recovery applicable recovery period, depreciation which is 12. period of, and using the same depreciation method, and convention prescribed under (B) Year of replacement is less than method and convention as that of, Building section 168 for Tower S. 12 months. If the year of replacement is M. Thus, Building N will be depreciated Example 4. (i) In February 2001, D, a less than 12 months, the depreciation using the straight line method over a calendar-year taxpayer and manufacturer of allowance determined under paragraph remaining recovery period of 32 years rubber products, acquired for $60,000 and (c)(5)(ii)(A) of this section must be beginning in October 2004 (the remaining placed in service Asset T (a special tool) and recovery period of 32 years and 6.5 months depreciated Asset T using the straight line adjusted for a short taxable year (for at the beginning of 2004, less the 6.5 months further guidance, for example, see Rev. method election under section 168(b)(5) and of depreciation taken prior to the disposition the mid-quarter convention over its 3-year Proc. 89–15 (1989–1 C.B. 816) and of the exchanged MACRS property (Building recovery period. In June 2004, D exchanges § 601.601(d)(2)(ii)(b) of this chapter). M) in 2004). For 2004, the year in which the Asset T for Asset U (not a special tool) in a (iii) Deferred transactions—(A) In transaction takes place, the depreciation like-kind exchange. D elected not to deduct general. If the replacement MACRS allowance for Building M is ($120,000)(6.5/ the additional first year depreciation for 7- property is not acquired until after the 12) which equals $65,000. The depreciation year property placed in service in 2004. disposition of the relinquished MACRS allowance for Building N for 2004 is Since the recovery period prescribed under ($120,000)(2.5/12) which equals $25,000. For section 168 for Asset U (7 years) is longer property, depreciation is not allowable 2005 and subsequent years, Building N is during the period between the than that of Asset T (3 years), Asset U is depreciated over the remaining recovery depreciated as if it had originally been placed disposition of the relinquished MACRS period of, and using the same depreciation in service in February 2001 using a 7-year property and the acquisition of the method and convention as that of, Building recovery period. Additionally, since the replacement MACRS property. The M. Thus, the depreciation allowance for depreciation method prescribed under recovery period for the replacement Building N is the same as Building M, section 168 for Asset U (200-percent MACRS property is suspended during namely $10,000 per month. declining balance method) is more this period. For purposes of paragraph Example 2. B, a calendar-year taxpayer, accelerated than that of Asset T (straight line (c)(5)(ii) of this section, only the placed in service Bridge P in January 1998. method) at the time of disposition, the Bridge P is depreciated using the half-year depreciable exchanged basis of the depreciation allowance is computed using convention. In January 2004, B exchanges the straight line method. Asset U is replacement MACRS property is taken Bridge P for Building Q, an apartment depreciated over its remaining recovery into account for calculating the amount building, in a like-kind exchange. B did not period of 3.75 years using the straight line in paragraph (c)(5)(ii)(A)(2) of this make any elections under section 168 for method of depreciation and the mid-quarter section if the year of replacement is a either Bridge P or Building Q. Since the convention.
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(ii) The 2004 depreciation allowance for depreciation allowances for the though the replacement MACRS Asset T is $938 ($2,500 allowable depreciable excess basis are determined property is placed in service by the depreciation deduction ($60,000 original by using the applicable recovery period, acquiring taxpayer in the year of basis minus $17,500 depreciation deduction depreciation method, and convention replacement. Thus, the depreciation for 2001 minus $20,000 depreciation deduction for 2002 minus $20,000 prescribed under section 168 for the allowances for the replacement MACRS depreciation deduction for 2003) × 4.5 property at the time of replacement. property are determined by using the months ÷ 12). However, if replacement MACRS applicable recovery period, depreciation (iii) The depreciation rate in 2004 for Asset property is disposed of during the same method, and convention prescribed U is 0.2424 (1 ÷ 4.125 years (the length of the taxable year the relinquished MACRS under section 168 for the replacement applicable recovery period remaining as of property is placed in service by the MACRS property at the time of the beginning of 2004)). Therefore, the acquiring taxpayer, no depreciation replacement. See paragraph (g) of this depreciation allowance in 2004 is $379 × deduction is allowable for either section regarding the application of (0.2424 $2,500 (the sum of the $1,562 MACRS property. See paragraph (g) of section 179. See paragraph (h) of this depreciable exchanged basis of Asset U ($2,500 basis at the beginning of 2004 for this section regarding the application of section regarding the application of Asset T, less the $938 depreciation allowable section 179. See paragraph (h) of this section 168(k) or 1400L(b). for Asset T for 2004) and the $938 section regarding the application of (3) Depreciation limitations for depreciation allowable for Asset T for 2004) section 168(k) or 1400L(b). automobiles—(i) In general. × 7.5 months ÷ 12). (ii) Example. The application of this Depreciation allowances under section Example 5. On January 1, 2004, E, a paragraph (d)(1) is illustrated by the 179 and section 167 (including calendar-year taxpayer, acquired and placed following example: allowances under sections 168 and in service Canopy V, a gas station canopy. 1400L(b)) for a passenger automobile, as The purchase price of Canopy V was $60,000. Example. In 1989, G placed in service a hospital. On January 16, 2004, G exchanges defined in section 280F(d)(5), are On August 1, 2004, Canopy V was destroyed subject to the limitations of section in a hurricane and was therefore no longer this hospital plus $2,000,000 cash for an usable in E’s business. On October 1, 2004, office building in a like-kind exchange. On 280F(a). The depreciation allowances as part of the involuntary conversion, E January 16, 2004, the hospital has an for a passenger automobile that is acquired and placed in service Canopy W adjusted depreciable basis of $1,500,000. replacement MACRS property After the exchange, the basis of the office with the insurance proceeds E received due (replacement MACRS passenger building is $3,500,000. The depreciable to the loss of Canopy V. E elected not to exchanged basis of the office building is automobile) generally are limited in any deduct the additional first year depreciation depreciated in accordance with paragraph (c) taxable year to the replacement for 5-year property placed in service in 2004. of this section. The depreciable excess basis automobile section 280F limit for the E depreciates both canopies under the of $2,000,000 is treated as being placed in taxable year. The taxpayer’s basis in the general depreciation system of section 168(a) service by G in 2004 and, as a result, is replacement MACRS passenger by using the 200-percent declining balance depreciated using the applicable depreciation automobile is treated as being method of depreciation, a 5-year recovery method, recovery period, and convention period, and the half-year convention. No comprised of two separate components. prescribed for the office building under The first component is the exchanged depreciation deduction is allowable for section 168 at the time of replacement. Canopy V. The depreciation deduction basis and the second component is the allowable for Canopy W for 2004 is $12,000 (2) Depreciable and nondepreciable excess basis, if any. The depreciation ($60,000 × the annual depreciation rate of .40 property—(i) If land or other allowances for a passenger automobile × 1 ⁄2 year). nondepreciable property is acquired in that is relinquished MACRS property Example 6. Same facts as in Example 5, a like-kind exchange for, or as a result (relinquished MACRS passenger except that E did not make the election out of an involuntary conversion of, automobile) for the taxable year of the additional first year depreciation for 5- depreciable property, the land or other generally are limited to the relinquished year property placed in service in 2004. E nondepreciable property is not automobile section 280F limit for that depreciates both canopies under the general depreciated. If both MACRS and depreciation system of section 168(a) by taxable year. For purposes of this using the 200-percent declining balance nondepreciable property are acquired in paragraph (d)(3), the following method of depreciation, a 5-year recovery a like-kind exchange for, or as part of an definitions apply: period, and the half-year convention. No involuntary conversion of, MACRS (A) Replacement automobile section depreciation deduction is allowable for property, the basis allocated to the 280F limit is the limit on depreciation Canopy V. For 2004, E is allowed a 50- nondepreciable property (as determined deductions under section 280F(a) for the percent additional first year depreciation under section 1031(d) and the taxable year based on the time of deduction of $30,000 for Canopy W (the regulations under section 1031(d) or replacement of the replacement MACRS unadjusted depreciable basis of $60,000 section 1033(b) and the regulations passenger automobile (including the multiplied by .50), and a regular MACRS under section 1033(b)) is not depreciation deduction of $6,000 for Canopy effect of any elections under section W (the depreciable exchanged basis of depreciated and the basis allocated to 168(k) or section 1400L(b), as $30,000 multiplied by the annual the replacement MACRS property (as applicable). depreciation rate of .40 × 1⁄2 year). For 2005, determined under section 1031(d) and (B) Relinquished automobile section E is allowed a regular MACRS depreciation the regulations under section 1031(d) or 280F limit is the limit on depreciation deduction of $9,600 for Canopy W (the section 1033(b) and the regulations deductions under section 280F(a) for the depreciable exchanged basis of $24,000 under section 1033(b)) is depreciated in taxable year based on when the ($30,000 minus regular 2003 depreciation of accordance with this section. relinquished MACRS passenger $6,000) multiplied by the annual (ii) If MACRS property is acquired, or automobile was placed in service by the depreciation rate of .40). if both MACRS and nondepreciable taxpayer. (d) Special rules for determining property are acquired, in a like-kind (ii) Order in which limitations on depreciation allowances—(1) Excess exchange for, or as part of an depreciation under section 280F(a) are basis—(i) In general. Any excess basis in involuntary conversion of, land or other applied. Generally, depreciation the replacement MACRS property is nondepreciable property, the basis in deductions allowable under section treated as property that is placed in the replacement MACRS property that is 280F(a) reduce the basis in the service by the acquiring taxpayer in the attributable to the relinquished relinquished MACRS passenger year of replacement. Thus, the nondepreciable property is treated as automobile and the exchanged basis of
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the replacement MACRS passenger replacement automobile section 280F than the relinquished automobile section automobile, before the excess basis of limit over the sum of the amounts 280F limit for Automobile X for 2003 and is less than $5,388 (($30,000 (cost)¥$3,060 the replacement MACRS passenger allowable under paragraphs (d)(3)(ii)(A), × × automobile is reduced. The depreciation (B), (C), and (D) of this section. (depreciation allowable for 2002)) 0.4 6/ (F) The depreciation deduction 12), the depreciation allowable that would be deductions for the relinquished MACRS allowable for Automobile X (determined passenger automobile in the year of allowable under paragraph (d) of this without regard to section 280F) in the year disposition and the replacement section for the depreciable excess basis of disposition, the depreciation for MACRS passenger automobile in the of the replacement MACRS passenger Automobile X in the year of disposition is year of replacement and each automobile to the extent of the excess of limited to $3,060. For 2003 no depreciation subsequent taxable year are allowable in the replacement automobile section is allowable for the excess basis and the the following order: 280F limit over the sum of the amounts exchanged basis in Automobile Y. (A) The depreciation deduction allowable under paragraphs (d)(3)(ii)(A), Example 3. AB, a calendar-year taxpayer, allowable for the relinquished MACRS (B), (C), (D), and (E) of this section. purchased and placed in service Automobile passenger automobile as determined X1 in February 2000 for $10,000. X1 is a (iii) Examples. The application of this passenger automobile subject to section under paragraph (c)(5)(i) of this section paragraph (d)(3) is illustrated by the 280F(a) and is used solely for AB’s business. for the year of disposition to the extent following examples: AB depreciated X1 using a five year recovery of the smaller of the replacement Example 1. H, a calendar-year taxpayer, period, the double declining balance method automobile section 280F limit and the acquired and placed in service Automobile X and the half-year convention. As of January relinquished automobile section 280F in January 2000 for $30,000 to be used solely 1, 2003, the adjusted basis of X1 was $2,880 limit, if the year of disposition is the for H’s business. In December 2003, H ($10,000 original cost minus $2,000 year of replacement. If the year of exchanges, in a like-kind exchange, depreciation deduction for 2000, minus replacement is a taxable year Automobile X plus $15,000 cash for new $3,200 depreciation deduction for 2001, and subsequent to the year of disposition, Automobile Y that will also be used solely $1,920 depreciation deduction for 2002). In in H’s business. Automobile Y is 50-percent November 2003, AB exchanges, in a like-kind the depreciation deduction allowable exchange, Automobile X1 plus $14,000 cash for the relinquished MACRS passenger bonus depreciation property for purposes of section 168(k)(4). Both automobiles are for new Automobile Y1 that will be used automobile for the year of disposition is depreciated using the double declining solely in AB’s business. Automobile Y1 is 50- limited to the relinquished automobile balance method, the half-year convention, percent bonus depreciation property for section 280F limit. and a five-year recovery period. The purposes of section 168(k)(4) and qualifies (B) The additional first year relinquished automobile section 280F limit for the expensing election under section 179. depreciation allowable on the remaining for 2003 for Automobile X is $1,775. The Pursuant to paragraph § 1.168(k)–1T(g)(3)(ii) exchanged basis (remaining carryover replacement automobile section 280F limit and paragraph (k)(2)(i) of this section, AB basis as determined under § 1.168(k)– for Automobile Y is $10,710. The exchanged decided to apply § 1.168(i)–6T to the basis for Automobile Y is $17,315 ($30,000 exchange of Automobile X1 for Automobile 1T(f)(5) or § 1.1400L(b)–1T(f)(5), as Y1, the replacement MACRS property. AB applicable) of the replacement MACRS less total depreciation allowable of $12,685 (($3,060 for 2000, $4,900 for 2001, $2,950 for also makes the election under section 179 for passenger automobile, as determined 2002, and $1,775 for 2003)). Without taking the excess basis of Automobile Y1. AB under § 1.168(k)–1T(f)(5) or section 280F into account, the additional first depreciates Y1 using a five-year recovery § 1.1400L(b)–1T(f)(5), as applicable, to year depreciation deduction for the period, the double declining balance method the extent of the excess of the remaining exchanged basis is $8,658 ($17,315 and the half-year convention. For 2003, the replacement automobile section 280F × 0.5). Because this amount is less than relinquished automobile section 280F limit limit over the amount allowable under $8,935 ($10,710 (the replacement automobile for Automobile X1 is $1,775 and the paragraph (d)(3)(ii)(A) of this section. section 280F limit for 2003 for the replacement automobile section 280F limit (C) The depreciation deduction Automobile Y)¥$1,775 (the depreciation for 2003 for Automobile Y1 is $10,710. allowable for the taxable year on the allowable for Automobile X for the 2003)) the (i) The 2003 depreciation deduction for depreciable exchanged basis of the additional first year depreciation deduction Automobile X1 is $576. The depreciation replacement MACRS passenger for the exchanged basis is $8,658. No deduction calculated for X1 is $576 (the depreciation deduction is allowable in 2003 automobile determined under paragraph adjusted depreciable basis of Automobile X1 for the depreciable exchanged basis because at the beginning of 2003 of $2,880 × 40% × (c) of this section to the extent of any the depreciation deductions taken for 1⁄2 year), which is less than the relinquished excess of the sum of the amounts Automobile X and the remaining exchanged automobile section 280F limit and the allowable under paragraphs (d)(3)(ii)(A) basis exceed the exchanged automobile replacement automobile section 280F limit. and (B) of this section over the smaller section 280F limit. An additional first year (ii) The additional first year depreciation of the replacement automobile section depreciation deduction of $278 is allowable deduction for the exchanged basis is $1,152. 280F limit and the relinquished for the excess basis of $15,000 in Automobile The additional first year depreciation automobile section 280F limit. Y. Thus at the end of 2003 the adjusted deduction of $1,152 (remaining exchanged (D) Any section 179 deduction depreciable basis in Automobile Y is $23,379 basis of $2,304 ($2,880 adjusted basis of comprised of adjusted depreciable exchanged Automobile X1 at the beginning of 2003 allowable in the year of replacement on basis of $8,657 ($17,315 (exchanged basis) minus $576) × 0.5)) is less than the the excess basis of the replacement ¥$8,658 (additional first year depreciation replacement automobile section 280F limit MACRS passenger automobile to the for exchanged basis)) and of an adjusted minus $576. extent of the excess of the replacement depreciable excess basis of $14,722 ($15,000 (iii) AB’s MACRS depreciation deduction automobile section 280F limit over the (excess basis)¥$278 (additional first year allowable in 2003 for the remaining sum of the amounts allowable under depreciation for 2003)). exchanged basis of $1,152 is $47 (the paragraphs (d)(3)(ii)(A), (B), and (C) of Example 2. Same facts as in Example 1, relinquished automobile section 280F limit this section. except that H placed in service Automobile of $1,775 less the depreciation deduction of (E) The additional first year X in January 2002, and H elected not to claim $576 taken for Automobile X1 less the depreciation allowable on the remaining the additional first year depreciation additional first year depreciation deduction deduction for 5-year property placed in of $1,152 taken for the exchanged basis) excess basis of the replacement MACRS service in 2002 and 2003. The relinquished which is less than the depreciation deduction passenger automobile, as determined automobile section 280F limit for calculated for the depreciable exchanged under § 1.168(k)–1T(f)(5) or Automobile X for 2003 is $4,900. Because the basis. § 1.1400L(b)–1T(f)(5), as applicable, to replacement automobile section 280F limit (iv) For 2003, AB takes a $1,400 section the extent of the excess of the for 2003 for Automobile Y ($3,060) is less 179 deduction for the excess basis of
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Automobile Y1. AB must reduce the excess convention) to the time of disposition of 89–15 (1989–1 C.B. 816) and basis of $14,000 by the section 179 deduction the relinquished MACRS property. § 601.601(d)(2)(ii)(b) of this chapter). of $1,400 to determine the remaining excess (e) Use of optional depreciation (ii) Replacement MACRS property— basis of $12,600. tables—(1) Taxpayer not bound by prior (A) Determination of the appropriate (v) For 2003, AB is allowed a 50-percent additional first year depreciation deduction use of table. If a taxpayer used an optional depreciation table. If a taxpayer of $6,300 (the remaining excess basis of optional depreciation table for the chooses to use the appropriate optional $12,600 multiplied by .50). relinquished MACRS property, the depreciation table for the depreciable (vi) For 2003, AB’s depreciation deduction taxpayer is not required to use an exchanged basis, the depreciation for the depreciable excess basis is limited to optional table for the depreciable allowances for the depreciable $1,235. The depreciation deduction exchanged basis of the replacement exchanged basis beginning in the year of computed without regard to the replacement MACRS property. Conversely, if a replacement are determined by choosing automobile section 280F limit is $1,260 taxpayer did not use an optional the optional depreciation table that ($6,300 depreciable excess basis x 0.4 × 6/ 12). However the depreciation deduction for depreciation table for the relinquished corresponds to the recovery period, the depreciable excess basis is limited to MACRS property, the taxpayer may use depreciation method, and convention of $1,235 ($10,710 (replacement automobile the appropriate table for the depreciable the replacement MACRS property section 280F limit)¥$576 (depreciation exchanged basis of the replacement determined under paragraph (c) of this deduction for Automobile X1)¥$1,152 MACRS property. If a taxpayer decides section. (additional first year depreciation deduction not to use the table for the depreciable (B) Calculating the depreciation for the exchanged basis)¥$47 (depreciation exchanged basis of the replacement deduction for the replacement MACRS deduction for exchanged basis) ¥$1,400 ¥ MACRS property, the depreciation property—(1) The depreciation (section 179 deduction) $6,300 (additional deduction for the taxable year is first year depreciation deduction for allowance for this property for the year remaining excess basis)). of replacement and subsequent taxable computed by first determining the years is determined under paragraph (c) appropriate recovery year in the table (4) Replacement MACRS property of this section. If a taxpayer decides to identified under paragraph (e)(2)(ii)(A) acquired and placed-in-service before use the optional depreciation tables, no of this section. The appropriate recovery disposition of relinquished MACRS depreciation deduction is allowable for year for the year of replacement is the property. If, in an involuntary MACRS property placed in service by same as the recovery year for the year conversion, a taxpayer acquires and the acquiring taxpayer and subsequently of disposition, regardless of the taxable places in service the replacement exchanged or involuntarily converted by year in which the replacement property MACRS property before the date of such taxpayer in the same taxable year, is acquired. For example, if the recovery disposition of the relinquished MACRS and, if, during the same taxable year, year for the year of disposition would property, the taxpayer depreciates the MACRS property is placed in service by have been Year 4 in the table that unadjusted depreciable basis of the the acquiring taxpayer, exchanged or applied before the disposition of the replacement MACRS property under involuntarily converted by such relinquished MACRS property, then the section 168 beginning in the taxable taxpayer, and the replacement MACRS recovery year for the year of year when the replacement MACRS property is disposed of by such replacement is Year 4 in the table property is placed in service by the taxpayer, no depreciation deduction is identified under paragraph (e)(2)(ii)(A) taxpayer and by using the applicable allowable for either MACRS property. of this section. depreciation method, recovery period, (2) Determination of the depreciation (2) Next, the annual depreciation rate and convention prescribed under deduction—(i) Relinquished MACRS (expressed as a decimal equivalent) for section 168 for the replacement MACRS property. In the year of disposition, the each recovery year is multiplied by a property at the placed-in-service date. depreciation allowance for the transaction coefficient. The transaction However, at the time of disposition of relinquished MACRS property is coefficient is the formula (1/(1¥x)) the relinquished MACRS property, the computed by multiplying the where x equals the sum of the annual taxpayer determines the exchanged unadjusted depreciable basis (less the depreciation rates from the table basis and the excess basis of the amount of the additional first year identified under paragraph (e)(2)(ii)(A) replacement MACRS property and depreciation deduction allowed or of this section (expressed as a decimal begins to depreciate the depreciable allowable, whichever is greater, under equivalent) corresponding to the exchanged basis of the replacement section 168(k) or section 1400L(b), as replacement MACRS property (as MACRS property in accordance with applicable) of the relinquished MACRS determined under paragraph (e)(2)(ii)(A) paragraph (c) of this section. The property by the annual depreciation rate of this section) for the taxable years depreciable excess basis of the (expressed as a decimal equivalent) beginning with the placed-in-service replacement MACRS property continues specified in the appropriate table for the year of the relinquished MACRS to be depreciated by the taxpayer in recovery year corresponding to the year property through the taxable year accordance with the first sentence of of disposition. This product is then immediately prior to the year of this paragraph (d)(4). Further, in the multiplied by a fraction, the numerator disposition. The product of the annual year of disposition of the relinquished of which is the number of months depreciation rate and the transaction MACRS property, the taxpayer must (including fractions of months) the coefficient is multiplied by the include in taxable income the excess of property is deemed to be placed in depreciable exchanged basis (taking into the depreciation deductions allowable service during the year of the exchange account paragraph (e)(2)(i) of this on the unadjusted depreciable basis of or involuntary conversion (taking into section). In the year of replacement, this the replacement MACRS property over account the applicable convention) and product is then multiplied by a fraction, the depreciation deductions that would the denominator of which is 12. the numerator of which is the number have been allowable to the taxpayer on However, if the year of disposition is of months (including fractions of the depreciable excess basis of the less than 12 months, the depreciation months) the property is deemed to be replacement MACRS property from the allowance determined under this placed in service by the acquiring date the replacement MACRS property paragraph (e)(2)(i) must be adjusted for taxpayer during the year of replacement was placed in service by the taxpayer a short taxable year (for further (taking into account the applicable (taking into account the applicable guidance, for example, see Rev. Proc. convention) and the denominator of
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which is 12. However, if the year of relinquished MACRS property, namely applies for Asset W is the table that applies replacement is the year the relinquished $3,840 ($10,000 less $2,000 depreciation in the straight line depreciation method, the MACRS property is placed in service by 2001, $3,200 depreciation in 2002, and $960 half-year convention, and a 7-year recovery the acquiring taxpayer, the preceding depreciation in 2003). J must first determine period. The appropriate recovery year under the appropriate optional depreciation table this table is recovery year 5. The depreciation sentence does not apply. In addition, if pursuant to paragraph (c) of this section. deduction for Asset W for 2005 is $1,646 the year of replacement is less than 12 Since the replacement MACRS property has (($11,520)(0.1429)(1/(1¥0.5))(1/2)). Thus, the months, the depreciation allowance a longer recovery period and the same depreciation deduction for Asset W in 2006 determined under paragraph (e)(2)(ii) of depreciation method as the relinquished (recovery year 6) is $3,290 this section must be adjusted for a short MACRS property, J uses the optional ($11,520)(0.1428)(1/(1¥0.5)). The taxable year (for further guidance, for depreciation table corresponding to a 7-year depreciation deduction for 2007 (recovery ¥ example, see Rev. Proc. 89–15 (1989–1 recovery period, the 200% declining balance year 7) is $3,292 (($11,520)(.1429)(1/(1 .5))). C.B. 816) and § 601.601(d)(2)(ii)(b) of method, and the half-year convention The depreciation deduction for 2008 (because the 5-year property was depreciated (recovery year 8) is $3292 ($11,520 less this chapter). using a half-year convention). Had the allowable depreciation for Asset W for 2005 (iii) Unrecovered basis. If the replacement MACRS property been placed in through 2007 ($1,646 + $3,290 + $3,292)). replacement MACRS property would service in the same taxable year as the Example 3. L, a calendar-year taxpayer, have unrecovered depreciable basis after placed-in-service year of the relinquished placed in service used Computer X in the final recovery year (for example, due MACRS property, the depreciation allowance January 2002 for $5,000. L depreciated to a deferred exchange), the unrecovered for the replacement MACRS property for the Computer X under the general depreciation basis is an allowable depreciation year of replacement would be determined system of section 168(a) by using the 200- deduction in the taxable year that using recovery year 3 of the optional table. percent declining balance method of The depreciation allowance equals the depreciation, a 5-year recovery period, and corresponds to the final recovery year depreciable exchanged basis ($3,840) the half-year convention. Computer X is unless the unrecovered basis is subject multiplied by the annual depreciation rate destroyed in a fire in March 2004. For 2004, to a depreciation limitation such as for the current taxable year (.1749 for the depreciation deduction allowable for section 280F. recovery year 3) as modified by the Computer X equals $480 ([($5,000)(.1920)] × (3) Excess basis. As provided in transaction coefficient [1 / (1¥(.1429 + (1/2)). Thus, the adjusted depreciable basis of paragraph (d)(1) of this section, any .2449))] which equals 1.6335. Thus, J Computer X was $1,920 when it was excess basis in the replacement MACRS multiplies $3,840, its depreciable exchanged destroyed ($5,000 unadjusted depreciable property is treated as property that is basis in the replacement MACRS property, by basis less $1,000 depreciation for 2002, $1,600 depreciation for 2003, and $480 placed in service by the acquiring the product of .1749 and 1.6335, and then by one-half, to determine the depreciation depreciation for 2004). In April 2004, as part taxpayer at the time of replacement. allowance for 2003, $549. For 2004, J of the involuntary conversion, L acquired Thus, if the taxpayer chooses to use the multiplies its depreciable exchanged basis in and placed in service used Computer Y with appropriate optional depreciation table the replacement MACRS property insurance proceeds received due to loss of for the depreciable excess basis in the determined at the time of replacement of Computer X. Computer Y will be depreciated replacement MACRS property, the $3,840 by the product of the modified annual using the same depreciation method, depreciation allowances for the depreciation rate for the current taxable year recovery period, and convention as Computer depreciable excess basis are determined (.1249 for recovery year 4) and the X. L elected to use the optional depreciation transaction coefficient (1.6335) to determine tables to compute the depreciation allowance by multiplying the depreciable excess for Computer X and Computer Y. The basis by the annual depreciation rate its depreciation allowance of $783. Example 2. K, a calendar-year taxpayer, depreciation deduction allowable for 2004 (expressed as a decimal equivalent) acquired used Asset V for $100,000 and for Computer Y equals $384 ([$1,920 × specified in the appropriate table for placed it in service in January 1999. K (.1920)(1/(1¥.52))] × (1/2)). each taxable year. The appropriate table depreciated Asset V under the general (f) Mid-quarter convention. For for the depreciable excess basis is based depreciation system of section 168(a) by purposes of applying the 40-percent test on the depreciation method, recovery using a 5-year recovery period, the 200- under section 168(d) and the regulations percent declining balance method of period, and convention applicable to the under section 168(d), the following depreciable excess basis under section depreciation, and the half-year convention. In December 2003, as part of the involuntary rules apply: 168 at the time of replacement. (1) Exchanged basis. If, in a taxable However, if the year of replacement is conversion, Asset V is involuntarily converted due to an earthquake. In October year, MACRS property is placed in less than 12 months, the depreciation 2005, K purchases used Asset W with the service by the acquiring taxpayer (but allowance determined under this insurance proceeds from the destruction of not as a result of a like-kind exchange paragraph (e)(3) must be adjusted for a Asset V and places Asset W in service to or involuntary conversion) and— short taxable year (for further guidance, replace Asset V. If Asset W had been placed (i) In the same taxable year, is for example, see Rev. Proc. 89–15 in service when Asset V was placed in disposed of by the acquiring taxpayer in (1989–1 C.B. 816) and service, it would have been depreciated using a like-kind exchange or an involuntary § 601.601(d)(2)(ii)(b) of this chapter). a 7-year recovery period, the 200-percent declining balance method, and the half-year conversion and replaced by the (4) Examples. The application of this acquiring taxpayer with replacement paragraph (e) is illustrated by the convention. K uses the optional depreciation tables to depreciate Asset V and Asset W. For MACRS property, the exchanged basis following examples: 2003 (recovery year 5 on the optional table), (determined without any adjustments Example 1. J, a calendar-year taxpayer, the depreciation deduction for Asset V is for depreciation deductions during the acquired 5-year property for $10,000 and $5,760 ((0.1152)($100,000)(1/2)). Thus, the taxable year) of the replacement MACRS placed it in service in January 2001. J uses adjusted depreciable basis of Asset V at the property is taken into account in the the optional tables to depreciate the property. time of replacement is $11,520 ($100,000 less year of replacement in the quarter the J uses the half-year convention and did not $20,000 depreciation in 1999, $32,000 relinquished MACRS property was make any elections for the property. In depreciation in 2000, $19,200 depreciation in December 2003, J exchanges the 5-year 2001, $11,520 depreciation in 2002, and placed in service by the acquiring property for used 7-year property in a like- $5,760 depreciation in 2003). Under the table taxpayer; or kind exchange. The depreciable exchanged that applied to Asset V, the year of (ii) In the same taxable year, is basis of the 7-year property equals the disposition was recovery year 5 and the disposed of by the acquiring taxpayer in adjusted depreciable basis of the 5-year depreciation deduction was determined a like-kind exchange or an involuntary property at the time of disposition of the under the straight line method. The table that conversion, and in a subsequent taxable
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year is replaced by the acquiring taxpayer at the time of replacement and Commissioner of Internal Revenue, taxpayer with replacement MACRS the adjusted depreciable basis of the Washington, DC 20224. Requests for property, the exchanged basis relinquished MACRS property is treated consent may not be made in any other (determined without any adjustments as being disposed of by the taxpayer at manner (for example, through a request for depreciation deductions during the the time of disposition. Paragraphs under section 446(e) to change the taxable year) of the replacement MACRS (c)(5)(i) (determination of depreciation taxpayer’s method of accounting). property is taken into account in the for relinquished MACRS property in the (k) Effective date—(1) In general. (i) year of replacement in the quarter the year of disposition), (c)(5)(iii) (rules for This section applies to a like-kind replacement MACRS property was deferred transactions), (g) (section 179 exchange or an involuntary conversion placed in service by the acquiring election), and (h) (additional first year of MACRS property for which the time taxpayer; or depreciation deduction) of this section of disposition and the time of (iii) In a subsequent taxable year, apply to property to which this replacement both occur after February disposed of by the acquiring taxpayer in paragraph (i) applies. See paragraph (j) 27, 2004. a like-kind exchange or involuntary of this section for the time and manner (ii) The applicability of this section conversion, the exchanged basis of the of making the election under this expires February 27, 2007. replacement MACRS property is not paragraph (i). (2) Application to pre-effective date taken into account in the year of (j) Time and manner of making like-kind exchanges and involuntary replacement. elections—(1) In general. The election conversions. For a like-kind exchange or (2) Excess basis. Any excess basis is provided in paragraph (i) of this section an involuntary conversion of MACRS taken into account in the quarter the is made separately by each person property for which the time of replacement MACRS property is placed acquiring replacement MACRS disposition, the time of replacement, or in service by the acquiring taxpayer. property. The election is made for each both occur on or before February 27, (3) Depreciable property acquired for member of a consolidated group by the 2004, a taxpayer may: nondepreciable property. Both the common parent of the group, by the (i) Apply the provisions of this exchanged basis and excess basis of the partnership (and not by the partners section. If a taxpayer’s applicable replacement MACRS property described separately) in the case of a partnership, federal income tax return has been filed in paragraph (d)(2)(ii) of this section or by the S corporation (and not by the on or before February 27, 2004, and the (depreciable property acquired for shareholders separately) in the case of taxpayer has treated the replacement nondepreciable property), are taken into an S corporation. A separate election MACRS property as acquired, and the account for determining whether the under paragraph (i) of this section is relinquished MACRS property as mid-quarter convention applies in the required for each like-kind exchange or disposed of, in a like-kind exchange or year of replacement. involuntary conversion. The election an involuntary conversion, the taxpayer (g) Section 179 election. In applying provided in paragraph (i) of this section changes its method of accounting for the section 179 election, only the excess must be made within the time and depreciation of the replacement MACRS basis, if any, in the replacement MACRS manner provided in paragraph (j)(2) and property and relinquished MACRS property is taken into account. If the (3) of this section and may not be made property in accordance with this replacement MACRS property is by the taxpayer in any other manner (for paragraph (k)(2)(i) by following the described in paragraph (d)(2)(ii) of this example, the election cannot be made applicable administrative procedures section (depreciable property acquired through a request under section 446(e) issued under § 1.446–1T(e)(3)(ii) for for nondepreciable property), only the to change the taxpayer’s method of obtaining the Commissioner’s automatic excess basis in the replacement MACRS accounting), except as provided in consent to a change in method of property is taken into account. paragraph (k)(2) of this section. accounting (for further guidance, see (h) Additional first year depreciation (2) Time for making election. The Rev. Proc. 2002–9 (2002–1 C.B. 327) and deduction. See § 1.168(k)–1T(f)(5) (for election provided in paragraph (i) of this § 601.601(d)(2)(ii)(b) of this chapter); or qualified property or 50-percent bonus section is made by the due date (ii) Rely on prior guidance issued by depreciation property) and (including extensions) of the taxpayer’s the Internal Revenue Service for § 1.1400L(b)–1T(f)(5) (for qualified New Federal tax return for the year of determining the depreciation York Liberty Zone property). replacement. deductions of replacement MACRS (i) Election not to apply this section. (3) Manner of making election. The property and relinquished MACRS A taxpayer may elect not to apply this election provided in paragraph (i) of this property (for further guidance, for section for any MACRS property section is made by typing or legibly example, see Notice 2000–4 (2001–1 involved in a like-kind exchange or printing at the top of Form 4562, C.B. 313) and § 601.601(d)(2)(ii)(b) of involuntary conversion. An election Depreciation and Amortization, this chapter). In relying on such under this paragraph (i) applies only to ‘‘ELECTION MADE UNDER SECTION guidance, a taxpayer may use any the taxpayer making the election and 1.168(i)–6T(i),’’ or in the manner reasonable, consistent method of the election applies to both the provided for on Form 4562 and its determining depreciation in the year of relinquished MACRS property and the instructions. If Form 4562 is revised or disposition and the year of replacement. replacement MACRS property. If an renumbered, any reference in this If a taxpayer’s applicable federal income election is made under this paragraph section to that form is treated as a tax return has been filed on or before (i), the depreciation allowances for the reference to the revised or renumbered February 27, 2004, and the taxpayer has replacement MACRS property beginning form. treated the replacement MACRS in the year of replacement and for the (4) Revocation. The election provided property as acquired, and the relinquished MACRS property in the in paragraph (i) of this section, once relinquished MACRS property as year of disposition are not determined made, may be revoked only with the disposed of, in a like-kind exchange or under this section. Instead, for consent of the Commissioner of Internal an involuntary conversion, the taxpayer depreciation purposes, the exchanged Revenue. Such consent will be granted changes its method of accounting for basis and excess basis, if any, in the only in extraordinary circumstances. depreciation of the replacement MACRS replacement MACRS property are Requests for consent are requests for a property and relinquished MACRS treated as being placed in service by the letter ruling and must be filed with the property in accordance with this
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paragraph (k)(2)(ii) by following the $140,000 multiplied by the annual depreciable basis of $7,000 multiplied by the applicable administrative procedures depreciation rate of .20 for recovery year 1). annual depreciation rate of .20 for recovery issued under § 1.446–1T(e)(3)(ii) for (iii) For 2003, EE is allowed a regular year 1). obtaining the Commissioner’s automatic MACRS depreciation deduction of $22,400 (iii) For 2002, FF is allowed a regular for Canopy V1 (the remaining adjusted MACRS depreciation deduction of $1,120 for consent to a change in method of depreciable basis of $140,000 multiplied by Computer X2 (the remaining adjusted accounting (for further guidance, see the annual depreciation rate of .32 for depreciable basis of $7,000 multiplied by the Rev. Proc. 2002–9 (2002–1 C.B. 327) and recovery year 2 × 1⁄2 year). annual depreciation rate of .32 for recovery § 601.601(d)(2)(ii)(b) of this chapter). (iv) Pursuant to paragraph (f)(5)(iii)(A) of year 2 × 1⁄2 year). ■ Par. 11. Section 1.168(k)–1T is this section, the additional first year (iv) Pursuant to paragraph (f)(5)(iii)(A) of amended by: depreciation deduction allowable for Canopy this section, the 30-percent additional first year depreciation deduction for Computer Y2 ■ 1. Revising paragraphs (f)(5)(ii)(F)(2) W1 equals $44,800 (.50 of Canopy W1’s remaining carryover basis at the time of is allowable for the remaining carryover basis and (f)(5)(v). at the time of replacement of $4,480 ■ replacement of $89,600 (Canopy V1’s 2. Redesignating paragraph (g)(1) as remaining adjusted depreciable basis of (Computer X2’s unadjusted depreciable basis paragraph (g)(1)(i). $140,000 minus 2002 regular MACRS of $10,000 minus additional first year ■ 3. Revising the last sentence in newly depreciation deduction of $28,000 minus depreciation deduction allowable of $3,000 designated paragraph (g)(1)(i) and 2003 regular MACRS depreciation deduction minus 2001 regular MACRS depreciation redesignating as new paragraph (g)(1)(ii). of $22,400). deduction of $1,400 minus 2002 regular ■ 4. Redesignating paragraph (g)(3) as Example 2. (i) Same facts as in Example 1, MACRS depreciation deduction of $1,120) paragraph (g)(3)(i). except EE elected not to deduct the and for the remaining excess basis at the time ■ 5. Adding paragraph (g)(3)(ii). additional first year depreciation for 5-year of replacement of $1,000 (cash paid for property placed in service in 2002. EE Computer Y2). Thus, the 30-percent The addition and revisions read as additional first year depreciation deduction follows: deducted the additional first year depreciation for 5-year property placed in for the remaining carryover basis at the time of replacement equals $1,344 ($4,480 § 1.168(k)–1T Additional first year service in 2003. multiplied by .30) and for the remaining depreciation (temporary). (ii) For 2002, EE is allowed a regular excess basis at the time of replacement equals * * * * * MACRS depreciation deduction of $40,000 for Canopy V1 (the unadjusted depreciable $300 ($1,000 multiplied by .30), which totals (f) * * * basis of $200,000 multiplied by the annual $1,644. Example 4. (i) In September 2002, GG, a (5) * * * depreciation rate of .20 for recovery year 1). June 30 year-end corporation, acquired for (ii) * * * (iii) For 2003, EE is allowed a regular $20,000 and placed in service Equipment X3. (F) * * * MACRS depreciation deduction of $32,000 Equipment X3 is qualified property under (2) The time of disposition of the for Canopy V1 (the unadjusted depreciable section 168(k)(1) and is 5-year property exchanged or involuntarily converted basis of $200,000 multiplied by the annual under section 168(e). GG depreciated property. depreciation rate of .32 for recovery year 2 × 1 Equipment X3 under the general depreciation * * * * * ⁄2 year). system of section 168(a) by using the 200- (v) Examples. The application of this (iv) Pursuant to paragraph (f)(5)(iii)(A) of percent declining balance method of paragraph (f)(5) is illustrated by the this section, the additional first year depreciation, a 5-year recovery period, and depreciation deduction allowable for Canopy following examples: the half-year convention. GG elected to use W1 equals $64,000 (.50 of Canopy W1’s the optional depreciation tables to compute Example 1. (i) In December 2002, EE, a remaining carryover basis at the time of the depreciation allowance for Equipment calendar-year corporation, acquired for replacement of $128,000 (Canopy V1’s X3. In December 2002, GG acquired $200,000 and placed in service Canopy V1, unadjusted depreciable basis of $200,000 Equipment Y3 by exchanging Equipment X3 a gas station canopy. Canopy V1 is qualified minus 2002 regular MACRS depreciation and $5,000 cash in a like-kind exchange. property under section 168(k)(1) and is 5- deduction of $40,000 minus 2003 regular Equipment Y3 is qualified property under year property under section 168(e). EE MACRS depreciation deduction of $32,000)). section 168(k)(1) and is 5-year property depreciated Canopy V1 under the general Example 3. (i) In December 2001, FF, a under section 168(e). Pursuant to paragraph depreciation system of section 168(a) by calendar-year corporation, acquired for (g)(3)(ii) of this section and § 1.168(i)– using the 200-percent declining balance $10,000 and placed in service Computer X2. 6T(k)(2)(i), GG decided to apply § 1.168(i)–6T method of depreciation, a 5-year recovery Computer X2 is qualified property under to the exchange of Equipment X3 for period, and the half-year convention. EE section 168(k)(1) and is 5-year property Equipment Y3, the acquired MACRS elected to use the optional depreciation under section 168(e). FF depreciated property. tables to compute the depreciation allowance Computer X2 under the general depreciation (ii) Pursuant to paragraph (f)(5)(iii)(B) of for Canopy V1. On January 1, 2003, Canopy system of section 168(a) by using the 200- this section, no additional first year V1 was destroyed in a fire and was no longer percent declining balance method of depreciation deduction is allowable for usable in EE’s business. On June 1, 2003, in depreciation, a 5-year recovery period, and Equipment X3 and, pursuant to § 1.168(d)– an involuntary conversion, EE acquired and the half-year convention. FF elected to use 1T(b)(3)(ii), no regular depreciation placed in service Canopy W1 with all of the the optional depreciation tables to compute deduction is allowable for Equipment X3, for $160,000 of insurance proceeds EE received the depreciation allowance for Computer X2. the taxable year ended June 30, 2003. due to the loss of Canopy V1. Canopy W1 is On January 1, 2002, FF acquired Computer (iii) Pursuant to paragraph (f)(5)(iii)(A) of 50-percent bonus depreciation property Y2 by exchanging Computer X2 and $1,000 this section, the 30-percent additional first under section 168(k)(4) and is 5-year cash in a like-kind exchange. Computer Y2 year depreciation deduction for Equipment property under section 168(e). Pursuant to is qualified property under section 168(k)(1) Y3 is allowable for the remaining carryover paragraph (g)(3)(ii) of this section and and is 5-year property under section 168(e). basis at the time of replacement of $20,000 § 1.168(i)–6T(k)(2)(i), EE decided to apply Pursuant to paragraph (g)(3)(ii) of this section (Equipment X3’s unadjusted depreciable § 1.168(i)–6T to the involuntary conversion and § 1.168(i)–6T(k)(2)(i), FF decided to basis of $20,000) and for the remaining of Canopy V1 with the replacement of apply § 1.168(i)–6T to the exchange of excess basis at the time of replacement of Canopy W1, the acquired MACRS property. Computer X2 for Computer Y2, the acquired $5,000 (cash paid for Equipment Y3). Thus, (ii) For 2002, EE is allowed a 30-percent MACRS property. the 30-percent additional first year additional first year depreciation deduction (ii) For 2001, FF is allowed a 30-percent depreciation deduction for the remaining of $60,000 for Canopy V1 (the unadjusted additional first year depreciation deduction carryover basis at the time of replacement depreciable basis of $200,000 multiplied by of $3,000 for Computer X2 (unadjusted basis equals $6,000 ($20,000 multiplied by .30) .30), and a regular MACRS depreciation of $10,000 multiplied by .30), and a regular and for the remaining excess basis at the time deduction of $28,000 for Canopy V1 (the MACRS depreciation deduction of $1,400 for of replacement equals $1,500 ($5,000 remaining adjusted depreciable basis of Computer X2 (the remaining adjusted multiplied by .30), which totals $7,500.
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Example 5. (i) Same facts as in Example 4. replacement equals $5,600 ($11,200 DEPARTMENT OF HOMELAND GG depreciated Equipment Y3 under the multiplied by .50). SECURITY general depreciation system of section 168(a) * * * * * by using the 200-percent declining balance Coast Guard method of depreciation, a 5-year recovery (g) * * * (1) * * * (i) * * * period, and the half-year convention. GG (ii) Except as provided in paragraph 33 CFR Part 117 elected to use the optional depreciation (g)(3)(ii) of this section, the applicability tables to compute the depreciation allowance [CGD07–03–088] for Equipment Y3. On July 1, 2003, GG of this section expires on or before acquired Equipment Z1 by exchanging September 4, 2006. RIN 1625–AA09 Equipment Y3 in a like-kind exchange. (2) * * * Equipment Z1 is 50-percent bonus Drawbridge Operation Regulations; depreciation property under section 168(k)(4) (3) * * *—(i). * * * Miami River, North Fork, Miami, FL and is 5-year property under section 168(e). (ii) Paragraph (f)(5)(ii)(F)(2) of this AGENCY: Coast Guard, DHS. Pursuant to paragraph (g)(3)(ii) of this section section and paragraph (f)(5)(v) of this ACTION: Final rule. and § 1.168(i)–6T(k)(2)(i), GG decided to section apply to a like-kind exchange or apply § 1.168(i)–6T to the exchange of SUMMARY: The Coast Guard is changing Equipment Y3 for Equipment Z3, the an involuntary conversion of MACRS acquired MACRS property. property and computer software for the operating regulations and the name (ii) For the taxable year ending June 30, which the time of disposition and the of the Seaboard System Railroad Bridge, 2003, the regular MACRS depreciation time of replacement both occur after across the Miami River, mile 5.3, Miami, deduction allowable for the remaining February 27, 2004. For a like-kind Florida. This rule requires the bridge to carryover basis at the time of replacement exchange or an involuntary conversion open only after a 48-hour advance (after taking into account the additional first of MACRS property for which the time notice to the owner. In addition, the year depreciation deduction) of Equipment of disposition, the time of replacement, Coast Guard is changing the name from Y3 is $2,800 (the remaining carryover basis Seaboard System Railroad Bridge to the at the time of replacement of $20,000 minus or both occur on or before February 27, 2004, see § 1.168(i)–6T(k)(2)(ii). For a FDOT Railroad Bridge, to reflect the the additional first year depreciation current owner. deduction of $6,000, multiplied by the like-kind exchange or involuntary annual depreciation rate of .20 for recovery conversion of computer software for DATES: This rule is effective March 31, year 1) and for the remaining excess basis at which the time of disposition, the time 2004. the time of replacement (after taking into of replacement, or both occur on or ADDRESSES: Comments and material account the additional first year depreciation before February 27, 2004, a taxpayer received from the public, as well as deduction) of Equipment Y3 is $700 (the documents indicated in this preamble as remaining excess basis at the time of may rely on prior guidance issued by the Internal Revenue Service for being available in the docket, are part of replacement of $5,000 minus the additional docket (CGD07–03–088) and are first year depreciation deduction of $1,500, determining the depreciation available for inspection or copying at multiplied by the annual depreciation rate of deductions of the acquired computer .20 for recovery year 1), which totals $3,500. Commander (obr), Seventh Coast Guard software and the exchanged or District, 909 SE. 1st Avenue, Miami, (iii) For the taxable year ending June 30, involuntarily converted computer 2004, the regular MACRS depreciation Florida 33131 between 7:30 a.m. and 4 deduction allowable for the remaining software (for further guidance, see p.m., Monday through Friday, except carryover basis (after taking into account the § 1.168(k)–1T(f)(5) published in the Federal holidays. Federal Register on September 8, 2003 additional first year depreciation deduction) FOR FURTHER INFORMATION CONTACT: Mr. of Equipment Y3 is $2,240 (the remaining (68 FR 53000)). In relying on such Barry Dragon, Project Manager, Seventh carryover basis at the time of replacement of guidance, a taxpayer may use any $20,000 minus the additional first year Coast Guard District, Bridge Branch, reasonable, consistent method of (305) 415–6743. depreciation deduction of $6,000, multiplied determining depreciation in the year of by the annual depreciation rate of .32 for SUPPLEMENTARY INFORMATION: disposition and the year of replacement. recovery year 2 × 1⁄2 year) and for the remaining excess basis (after taking into The applicability of paragraph (f)(5) of Regulatory History account the additional first year depreciation this section expires on or before On August 5, 2003, the Coast Guard deduction) of Equipment Y3 is $560 (the February 27, 2007. published a notice of proposed remaining excess basis at the time of * * * * * rulemaking (NPRM) entitled Drawbridge replacement of $5,000 minus the additional Operation Regulations; Miami River, first year depreciation deduction of $1,500, Mark E. Matthews, North Fork, Miami, Florida in the multiplied by the annual depreciation rate of Deputy Commissioner for Services and Federal Register (68 FR 46139). We .32 for recovery year 2 × 1⁄2 year), which Enforcement. totals $2,800. received 1 comment on this notice of (iv) For the taxable year ending June 30, Approved: February 17, 2004. proposed rulemaking (NPRM). No 2004, pursuant to paragraph (f)(5)(iii)(A) of Pamela F. Olson, public hearing was requested, and none this section, the 50-percent additional first Assistant Secretary of the Treasury (Tax was held. year depreciation deduction for Equipment Policy). Z1 is allowable for the remaining carryover Background and Purpose basis at the time of replacement of $11,200 [FR Doc. 04–3992 Filed 2–27–04; 8:45 am] The Seaboard System Railroad Bridge (Equipment Y3’s unadjusted depreciable BILLING CODE 4830–01–P across the Miami River, mile 5.3, is a basis of $25,000 minus the total additional railroad bridge with a vertical clearance first year depreciation deduction of $7,500 of 6 feet at mean high water and a minus the total 2003 regular MACRS horizontal clearance of 60 feet. The depreciation deduction of $3,500 minus the total 2004 regular depreciation deduction current operating regulations published (taking into account the half-year convention) in 33 CFR 117.307 require the bridge to of $2,800). Thus, the 50-percent additional open on signal from 8:30 a.m. to 5:30 first year depreciation deduction for the p.m., Monday through Friday. All other remaining carryover basis at the time of times the draw must open on signal if
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at least three hours notice is given. The Small Entities determined that it does not have last time the bridge was opened for Under the Regulatory Flexibility Act implications for federalism. vessel traffic, however, was December 2, (5 U.S.C. 601–612), we have considered Unfunded Mandates Reform Act 2001, though a full time bridge tender whether this rule would have a is on site. This rule will improve the The Unfunded Mandates Reform Act significant economic impact on a of 1995 (2 U.S.C. 1531–1538) requires efficiency of the bridge system and meet substantial number of small entities. the reasonable needs of navigation by Federal agencies to assess the effects of The term ‘‘small entities’’ comprises their discretionary regulatory actions. In providing for openings with a 48-hour small businesses, not-for-profit advance notice to the CSX System particular, the Act addresses actions organizations that are independently that may result in the expenditure by a Operating Headquarters, at (800) 232– owned and operated and are not 0144. In addition, the owner is State, local, or tribal government, in the dominant in their fields, and aggregate, or by the private sector of requesting that the Coast Guard change governmental jurisdictions with the name of the bridge, which has been $100,000,000 or more in any one year. populations of less than 50,000. Though this rule will not result in such sold, from the Seaboard System Railroad The Coast Guard certifies under 5 Bridge to the FDOT Railroad Bridge. an expenditure, we do discuss the U.S.C. 605(b) that this rule will not have effects of this rule elsewhere in the Discussion of Comments and Changes a significant economic impact on a preamble. substantial number of small entities, We received 1 comment on the notice because the past few years of the Taking of Private Property of proposed rulemaking (NPRM) bridge’s history indicates that it rarely This rule will not effect a taking of advising us that the current owner is opens. The rule provides for openings private property or otherwise have Florida Department of Transportation and meets the reasonable needs of taking implications under Executive (FDOT) and not CSX Railroad. CSX navigation. Order 12630, Governmental Actions and Railroad is under contract to FDOT to Assistance for Small Entities Interference with Constitutionally operate and maintain the bridge. Protected Property Rights. Under section 213(a) of the Small We have carefully considered the Business Regulatory Enforcement Civil Justice Reform comment and made the ownership Fairness Act of 1996 (Public Law 104– This rule meets applicable standards correction to the rule. Under this rule 121), we want to assist small entities in in sections 3(a) and 3(b)(2) of Executive the bridge would open only with a 48- understanding this rule so that they can Order 12988, Civil Justice Reform, to hour advance notice to the CSX System better evaluate its effects on them and minimize litigation, eliminate Operating Headquarters, at (800) 232– participate in the rulemaking. If this ambiguity, and reduce burden. 0144. This bridge is the last moveable rule would affect your small business, structure on the river approximately organization, or governmental Protection of Children 1000 yards from a salinity dam, which jurisdiction and you have questions We have analyzed this rule under marks the end of navigability on the concerning its provisions or options for Executive Order 13045, Protection of Miami River. The bridge has not opened compliance, please contact the person Children from Environmental Health for navigation since December 2, 2001, listed in FOR FURTHER INFORMATION Risks and Safety Risks. This rule is not and, except for normal maintenance, CONTACT. an economically significant rule and experienced the same pattern of no Small businesses may send comments would not create an environmental risk openings for the year 2002. Accordingly, on the actions of Federal employees to health or risk to safety that might this schedule will meet the reasonable who enforce, or otherwise determine disproportionately affect children. needs of navigation. Moreover, in order compliance with, Federal regulations to to accurately refer to the bridge, this the Small Business and Agriculture Indian Tribal Governments rule will change the name from Regulatory Enforcement Ombudsman This rule does not have tribal Seaboard System Railroad Bridge to the and the Regional Small Business implications under Executive Order FDOT Railroad Bridge. Regulatory Fairness Boards. The 13175, Consultation and Coordination Ombudsman evaluates these actions with Indian Tribal Governments, Regulatory Evaluation annually and rates each agency’s because it does not have a substantial This rule is not a ‘‘significant responsiveness to small business. If you direct effect on one or more Indian regulatory action’’ under section 3(f) of wish to comment on actions by tribes, on the relationship between the Executive Order 12866, Regulatory employees of the Coast Guard, call 1– Federal government and Indian tribes, Planning and Review, and does not 888-REG-FAIR (1–888–734–3247). or on the distribution of power and responsibilities between the Federal require an assessment of potential costs Collection of Information and benefits under section 6(a)(3) of that government and Indian tribes. This rule calls for no new collection Order. The Office of Management and Energy Effects of information under the Paperwork Budget has not reviewed it under that Reduction Act of 1995 (44 U.S.C. 3501– We have analyzed this rule under Order. It is not ‘‘significant’’ under the 3520). Executive Order 13211, Actions regulatory policies and procedures of Concerning Regulations That the Department of Homeland Security Federalism Significantly Affect Energy Supply, (DHS). A rule has implications for federalism Distribution, or Use. We have We expect the economic impact of under Executive Order 13132, determined that it is not a ‘‘significant this rule to be so minimal that a full Federalism, if it has a substantial direct energy action’’ under that order, because Regulatory Evaluation is unnecessary, effect on State or local governments and it is not a ‘‘significant regulatory action’’ because the rule will only affect a small would either preempt State law or under Executive Order 12866 and is not percentage of vessels that travel through impose a substantial direct cost of likely to have a significant adverse effect this bridge and openings are available compliance on them. We have analyzed on the supply, distribution, or use of with 48-hour advance notice. this rule under that Order and have energy. It has not been designated by the
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Administrator of the Office of temporary deviation from the regulation In accordance with 33 CFR 117.35(c), Information and Regulatory Affairs as a governing the operation of the Black this work will be performed with all due significant energy action. Therefore, it Bayou Pontoon Bridge across the Gulf speed in order to return the bridge to does not require a statement of Energy Intracoastal Waterway, mile 237.5 west normal operation as soon as possible. Effects under Executive Order 13211. of Harvey Lock, in Calcasieu Parish, LA. This deviation from the operating This deviation allows the bridge to regulations is authorized under 33 CFR Environment remain closed to navigation during 117.35. We have analyzed this rule under daylight hours during weekdays only for Dated: February 18, 2004. Commandant Instruction M16475.1D, four weeks. The deviation is necessary Marcus Redford, which guides the Coast Guard in to repair and replace damaged portions complying with the National of the fender system. Bridge Administrator. [FR Doc. 04–4488 Filed 2–27–04; 8:45 am] Environmental Policy Act of 1969 DATES: This deviation is effective from (NEPA)(42 U.S.C. 4321–4370f), and 7 a.m. on Wednesday, March 17, 2004 BILLING CODE 4910–15–P have concluded that there are no factors through 5 p.m. on Wednesday, April 14, in this case that would limit the use of 2004. a categorical exclusion under section DEPARTMENT OF HOMELAND ADDRESSES: Materials referred to in this SECURITY 2.B.2 of the Instruction. document are available for inspection or List of Subjects in 33 CFR Part 117 copying at the office of the Eighth Coast Coast Guard Guard District, Bridge Administration Bridges. Branch, Hale Boggs Federal Building, 33 CFR Part 117 ■ For the reasons discussed in the room 1313, 500 Poydras Street, New preamble, the Coast Guard amends 33 Orleans, Louisiana 70130–3310 between [CGD01–04–014] CFR part 117 as follows: 7 a.m. and 3 p.m., Monday through Friday, except Federal holidays. The Drawbridge Operation Regulations: PART 117—DRAWBRIDGE telephone number is (504) 589–2965. Newtown Creek, Dutch Kills, English OPERATION REGULATIONS The Bridge Administration Branch of Kills, and Their Tributaries, NY ■ the Eighth Coast Guard District 1. The authority citation for part 117 AGENCY: Coast Guard, DHS. continues to read as follows: maintains the public docket for this temporary deviation. ACTION: Notice of temporary deviation Authority: 33 U.S.C. 499; Department of FOR FURTHER INFORMATION CONTACT: from regulations. Homeland Security Delegation No. 0170.1; 33 David Frank, Bridge Administration CFR 1.05–1(g); section 117.255 also issued SUMMARY: The Commander, First Coast under authority of Pub. L. 102–587, 106 Stat. Branch, telephone (504) 589–2965. Guard District, has issued a temporary 5039. SUPPLEMENTARY INFORMATION: The deviation from the drawbridge operation ■ 2. § 117.307 is revised to read as Louisiana Department of Transportation regulations for the Metropolitan Avenue follows: and Development (LDOTD) has Bridge, mile 3.4, across English Kills at requested a temporary deviation in § 117.307 Miami River, North Fork. New York City, New York. Under this order to remove and replace damaged temporary deviation the bridge may The draw of the FDOT Railroad portions of the fender system of the remain closed from 7 a.m. on March 8, Bridge, mile 5.3 at Miami, shall open on Black Bayou Pontoon Bridge across the 2004 through 4 p.m. on March 9, 2004, signal if at least 48-hour notice is given Gulf Intracoastal Waterway, mile 237.5 and from 7 a.m. on April 2, 2004 to CSX System Operating Headquarters west of Harvey Lock, in Calcasieu through 4 p.m. on April 4, 2004, to (800) 232–0144. Parish, LA. The repairs are necessary to facilitate necessary bridge maintenance. ensure the safety of the bridge. This Dated: February 13, 2004. DATES: This deviation is effective from temporary deviation will allow the Harvey E. Johnson, Jr., March 8, 2004 through April 4, 2004. bridge to remain in the closed-to- Rear Admiral, U.S. Coast Guard, Commander, FOR FURTHER INFORMATION CONTACT: Joe Seventh Coast Guard District. navigation position from 7 a.m. until 11 a.m. and from 1 p.m. until 5 p.m. Arca, Project Officer, First Coast Guard [FR Doc. 04–4487 Filed 2–27–04; 8:45 am] Monday through Friday from March 17, District, at (212) 668–7069. BILLING CODE 4910–15–P 2004 through April 14, 2004. SUPPLEMENTARY INFORMATION: The New As the bridge has no vertical York City Department of Transportation DEPARTMENT OF HOMELAND clearance in the closed-to-navigation (NYCDOT) Metropolitan Avenue Bridge SECURITY position, vessels will not be able to has a vertical clearance in the closed transit through the bridge sight when position of 10 feet at mean high water Coast Guard the bridge is closed. Navigation at the and 15 feet at mean low water. The site of the bridge consists mainly of existing drawbridge operation 33 CFR Part 117 tows with barges and some recreational regulations are listed at 33 CFR pleasure craft. Due to prior experience, 117.801(e). [CGD08–04–008] as well as coordination with waterway NYCDOT, requested a temporary users, it has been determined that this deviation from the drawbridge operation Drawbridge Operation Regulations; closure will not have a significant effect regulations to facilitate repairs to the Gulf Intracoastal Waterway—Black on these vessels. The bridge normally electrical controls at the bridge. The Bayou, LA opens to pass navigation an average of bridge must remain in the closed AGENCY: Coast Guard, DHS. 878 times per month. The bridge opens position to perform these repairs. ACTION: Notice of temporary deviation on signal as required by 33 CFR 117.5. Under this temporary deviation the from regulations. The bridge will be able to open for NYCDOT Metropolitan Avenue Bridge emergencies during the closure period may remain in the closed position from SUMMARY: The Commander, Eighth with proper notice. Alternate routes are 7 a.m. on March 8, 2004 through 4 p.m. Coast Guard District, has issued a not available. on March 9, 2004, and from 7 a.m. on
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April 2, 2004 through 4 p.m. on April Drawbridge Operation Regulations; Gulf Executive Order 12866, Regulatory 4, 2004. Intracoastal Waterway, Boca Grande, Planning and Review, and does not This deviation from the operating Charlotte County, Florida in the Federal require an assessment of potential costs regulations is authorized under 33 CFR Register (68 FR 42331). We received 10 and benefits under section 6(a)(3) of that 117.35, and will be performed with all comments on this NPRM. No public Order. The Office of Management and due speed in order to return the bridge hearing was requested, and none was Budget has not reviewed it under that to normal operation as soon as possible. held. Order. It is not ‘‘significant’’ under the regulatory policies and procedures of Dated: February 17, 2004. Background and Purpose the Department of Homeland Security John L. Grenier, The Gasparilla Island Bridge (DHS). Captain, U.S. Coast Guard, Acting Authority requested a change in the We expect the economic impact of Commander, First Coast Guard District. regulations governing the operation and this rule to be so minimal that a full [FR Doc. 04–4491 Filed 2–27–04; 8:45 am] the name of the Gasparilla Island Regulatory Evaluation is unnecessary. BILLING CODE 4910–15–P Causeway Bridge. This is a swingbridge The rule only affects a small percentage with a vertical clearance of 9 feet at of vessel traffic through this bridge and mean high water and a horizontal provides approximately the same DEPARTMENT OF HOMELAND clearance of 81 feet. The existing amount of openings that the bridge’s SECURITY regulation for this bridge is published in current activity level exhibits. Coast Guard 33 CFR 117.287(a–1), and requires the bridge to open on signal; except that Small Entities Under the Regulatory Flexibility Act 33 CFR Part 117 from January 1 to May 31, from 7 a.m. to 5 p.m., the bridge need open only on (5 U.S.C. 601–612), we have considered [CGD07–03–072] the hour, quarter hour, half hour and whether this rule would have a significant economic impact on a RIN 1625–AA09 three quarter hour. The owner requested a change to the bridge operating substantial number of small entities. Drawbridge Operation Regulations; schedule so that the bridge would open The term ‘‘small entities’’ comprises Gulf Intracoastal Waterway, Boca on signal, except that from 7 a.m. to 6 small businesses, not-for-profit Grande, Charlotte County, FL p.m., Monday through Friday, except organizations that are independently Federal holidays, the bridge need open owned and operated and are not AGENCY: Coast Guard, DHS. only on the hour and half hour, and, dominant in their fields, and ACTION: Final rule. from 7 a.m. to 6 p.m. on weekends and governmental jurisdictions with Federal holidays, the bridge need open populations of less than 50,000. SUMMARY: The Coast Guard is changing only on the hour, quarter hour, half The Coast Guard certifies under 5 the operating regulations and the name hour and three quarter hour. Tugs with U.S.C. 605(b) that this rule will not have of the Gasparilla Island Causeway tows, public vessels of the United States a significant economic impact on a Bridge, across the Gulf Intracoastal and vessels in distress shall pass at any substantial number of small entities. Waterway, mile 34.3, in Boca Grande, time. This regulation will ease vehicular This rule may affect the following Florida. This rule requires the bridge to traffic congestion while providing for entities, some of which might be small open only two times an hour during the the reasonable needs of navigation. The entities: the owners or operators of weekdays and four times an hour during bridge currently opens less than two vessels and vehicles intending to transit certain times on the weekends and times per hour on both weekends and under and over the Gasparilla Bridge Federal holidays. This action will weekdays. during the hours of 7 a.m. to 6 p.m., improve vehicular traffic movement, In addition, the owner requested that Monday through Friday, except Federal while not unreasonably interfering with the name of the bridge be changed to the holidays, and 7 a.m. to 6 p.m., navigation. Boca Grande Swingbridge, as it is weekends and Federal holidays. The DATES: This rule is effective March 31, locally known. The local name is more rule only affects a small percentage of 2004. descriptive of the bridge’s swingbridge vessel traffic through this bridge and provides approximately the same ADDRESSES: Comments and material design. amount of openings that the bridge’s received from the public, as well as Discussion of Comments and Changes documents indicated in this preamble as current activity level exhibits. We received 10 comments on the being available in the docket, are part of Assistance for Small Entities docket [CGD07–03–072] and are NPRM, 6 from the same company against the rule change, citing that the Under section 213(a) of the Small available for inspection or copying at Business Regulatory Enforcement Commander (obr), Seventh Coast Guard period of closure was too long for their vessels to wait and 4 from residents of Fairness Act of 1996 (Public Law 104– District, 909 SE 1st Avenue, Miami, 121), we offered to assist small entities Florida 33131, between 7:30 a.m. and 4 Boca Grande in favor of the rule change. We have carefully considered the in understanding this rule so that they p.m., Monday through Friday, except comments and decided not to change could better evaluate its effects on them Federal holidays. the proposed rule. The bridge currently and participate in the rulemaking FOR FURTHER INFORMATION CONTACT: Mr. opens less than twice an hour, and process. The Coast Guard offered small Barry Dragon, Project Manager, Seventh vessels transiting the area have ample businesses, organizations, or Coast Guard District, Bridge Branch, opportunity to adjust to the operating governmental jurisdictions having (305) 415–6743. schedule. Additionally, there are questions concerning the rule’s SUPPLEMENTARY INFORMATION: numerous, sufficient safe waiting areas provisions or options for compliance, to contact the person listed in FOR FURTHER Regulatory History in the vicinity. INFORMATION CONTACT. On July 17, 2003, the Coast Guard Regulatory Evaluation Small businesses may send comments published a Notice of Proposed This rule is not a ‘‘significant on the actions of Federal employees Rulemaking (NPRM) entitled regulatory action’’ under section 3(f) of who enforce, or otherwise determine
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compliance with, Federal regulations to Indian Tribal Governments ■ 2. Section 117.287(a√1) is revised to the Small Business and Agriculture This rule does not have tribal read as follows: Regulatory Enforcement Ombudsman implications under Executive Order § 117.287 Gulf Intracoastal Waterway. and the Regional Small Business 13175, Consultation and Coordination Regulatory Fairness Boards. The * * * * * with Indian Tribal Governments, (a–1) The draw of the Boca Grande Ombudsman evaluates these actions because it does not have a substantial annually and rates each agency’s Swingbridge, mile 34.3, shall open on direct effect on one or more Indian signal; except that, from 7 a.m. to 6 responsiveness to small business. If you tribes, on the relationship between the wish to comment on actions by p.m., Monday through Friday, except Federal Government and Indian tribes, Federal holidays, the draw need open employees of the Coast Guard, call 1– or on the distribution of power and 888–REG–FAIR (1–888–734–3247). only on the hour and half hour. On responsibilities between the Federal Saturday, Sunday and Federal holidays, Collection of Information Government and Indian tribes. from 7 a.m. to 6 p.m., the draw need This rule calls for no new collection Energy Effects open only on the hour, quarter hour, of information under the Paperwork We have analyzed this rule under half hour and three quarter hour. Reduction Act of 1995 (44 U.S.C. 3501– Executive Order 13211, Actions * * * * * 3520). Concerning Regulations That Dated: February 13, 2004. Federalism Significantly Affect Energy Supply, Harvey E. Johnson, Jr., Distribution, or Use. We have A rule has implications for federalism Rear Admiral, U.S. Coast Guard, Commander, determined that it is not a ‘‘significant Seventh Coast Guard District. under Executive Order 13132, energy action’’ under that order, because Federalism, if it has a substantial direct [FR Doc. 04–4492 Filed 2–27–04; 8:45 am] it is not a ‘‘significant regulatory action’’ BILLING CODE 4910–15–P effect on State or local governments and under Executive Order 12866 and is not would either preempt State law or likely to have a significant adverse effect impose a substantial direct cost of on the supply, distribution, or use of compliance on them. We have analyzed DEPARTMENT OF HOMELAND energy. It has not been designated by the SECURITY this rule under that Order and have Administrator of the Office of determined that it does not have Information and Regulatory Affairs as a Coast Guard implications for federalism. significant energy action. Therefore, it Unfunded Mandates Reform Act does not require a statement of Energy 33 CFR Part 117 Effects under Executive Order 13211. The Unfunded Mandates Reform Act [CGD01–04–007] of 1995 (2 U.S.C. 1531–1538) requires Environment Federal agencies to assess the effects of Drawbridge Operation Regulations; We have analyzed this rule under Passaic River, NJ their discretionary regulatory actions. In Commandant Instruction M16475.1D, particular, the Act addresses actions which guides the Coast Guard in AGENCY: Coast Guard, DHS. that may result in the expenditure by a complying with the National ACTION: State, local, or tribal government, in the Notice of temporary deviation Environmental Policy Act of 1969 from regulations. aggregate, or by the private sector of (NEPA) (42 U.S.C. 4321–4370f), and $100,000,000 or more in any one year. have concluded that there are no factors SUMMARY: The Commander, First Coast Though this rule will not result in such in this case that would limit the use of Guard District, has issued a temporary an expenditure, we do discuss the a categorical exclusion under section deviation from the drawbridge operation effects of this rule elsewhere in the 2.B.2 of the Instruction. Therefore, this regulations that govern the Route 280 preamble. rule is categorically excluded, under (Stickel) Bridge, at mile 5.8, across the Taking of Private Property figure 2–1, paragraph (32)(e), of the Passaic River at Harrison, New Jersey. Instruction, from further environmental This temporary deviation will allow the This rule will not effect a taking of documentation. Under figure 2–1, bridge to remain in the closed position private property or otherwise have paragraph (32)(e), of the Instruction, an from 8 a.m. to 4 p.m. on March 1, 2004. taking implications under Executive ‘‘Environmental Analysis Check List’’ This action is necessary to facilitate Order 12630, Governmental Actions and and a ‘‘Categorical Exclusion scheduled maintenance at the bridge. Interference with Constitutionally Determination’’ are not required for this DATES: Protected Property Rights. This deviation is effective from rule. 8 a.m. to 4 p.m. on March 1, 2004. Civil Justice Reform List of Subjects in 33 CFR Part 117 FOR FURTHER INFORMATION CONTACT: Mr. This rule meets applicable standards Gary Kassof, Project Officer, First Coast Bridges. in sections 3(a) and 3(b)(2) of Executive Guard District, (212) 668–7165. ■ Order 12988, Civil Justice Reform, to For the reasons discussed in the SUPPLEMENTARY INFORMATION: minimize litigation, eliminate preamble, the Coast Guard amends 33 Regulatory Information ambiguity, and reduce burden. CFR Part 117 as follows: The Route 280 (Stickel) Bridge has a PART 117—DRAWBRIDGE Protection of Children vertical clearance of 35 feet at mean OPERATION REGULATIONS We have analyzed this rule under high water and 40 feet at mean low Executive Order 13045, Protection of ■ 1. The authority citation for Part 117 water. The existing regulations listed at Children from Environmental Health continues to read as follows: 33 CFR 117.739(h), require the draw to Risks and Safety Risks. This rule is not Authority: 33 U.S.C. 499; Department of open on signal after at least a twenty an economically significant rule and Homeland Security Delegation No. 0170.1; 33 four hour advance notice is given. would not create an environmental risk CFR 1.05–1(g); Section 117.255 also issued The bridge owner, the New Jersey to health or risk to safety that might under authority of Pub. L. 102–587, 106 Stat. Department of Transportation, requested disproportionately affect children. 5039. a temporary deviation from the
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drawbridge operation regulations to SUPPLEMENTARY INFORMATION: Delaware state lines, near Chesapeake facilitate scheduled maintenance, City, Maryland. Regulatory Information testing for hazardous materials, at the Discussion of Temporary Final Rule bridge. We did not publish a notice of Under this temporary deviation the proposed rulemaking (NPRM) for this This rule limits access to the safety bridge may remain in the closed regulation. Under 5 U.S.C. 553(b)(B) and zone to those vessels authorized to enter position from 8 a.m. to 4 p.m., on March (d)(3), the Coast Guard finds that good and operate safely within the zone. 1, 2004. cause exists for not publishing a NPRM Vessels not meeting the operating The bridge has not opened for vessel and for making this regulation effective requirements established by this traffic during the past ten years. less than 30 days after publication in the temporary rule will not be allowed to This deviation from the drawbridge Federal Register. Publishing a NPRM enter the safety zone. During an operation regulations is authorized and delaying its effective date would be emergency situation, a vessel not under 33 CFR 117.35, and will be contrary to public interest, since meeting the operating requirements may performed with all due speed in order immediate action is needed to protect obtain permission from the Captain of to return the bridge to normal operation mariners against potential hazards the Port Baltimore prior to entering the as soon as possible. associated with ice conditions on the safety zone during the effective period. upper Potomac River, upper Chesapeake The Captain of the Port will notify the Dated: February 17, 2004. Bay, and Chesapeake & Delaware Canal. maritime community, via marine John L. Grenier, Background and Purpose broadcasts, of the current ice conditions Captain, U.S. Coast Guard, Acting and the restrictions imposed under Commander, First Coast Guard District. During a moderate or severe winter, those conditions. [FR Doc. 04–4490 Filed 2–27–04; 8:45 am] frozen waterways present numerous BILLING CODE 4910–15–P hazards to vessels. Ice in a waterway Regulatory Evaluation may hamper a vessel’s ability to This temporary rule is not a maneuver, and could cause visual aids ‘‘significant regulatory action’’ under DEPARTMENT OF HOMELAND to navigation to be submerged, section 3(f) of Executive Order 12866 SECURITY destroyed or moved off station. Ice and does not require an assessment of abrasions and ice pressure could also potential costs and benefits under Coast Guard compromise a vessel’s watertight section 6(a)(3) of that Order. The Office integrity, and non-steel hulled vessels of Management and Budget has not 33 CFR Part 165 would be exposed to a greater risk of reviewed it under that Order. It is not [CGD05–04–019] hull breach. significant under the regulatory policies When ice conditions develop to a and procedures of the Department of RIN 1625–AA00 point where vessel operations become Homeland Security (DHS). unsafe, it becomes necessary to impose Safety Zone; Ice Conditions, Upper We expect the economic impact of operating restrictions to ensure the safe this rule to be so minimal that a full Potomac River, Upper Chesapeake Bay navigation of vessels. Captains of the and Chesapeake & Delaware Canal, MD Regulatory Evaluation under the Port have the authority (33 CFR part regulatory policies and procedures of AGENCY: Coast Guard, DHS. 160, subpart B) to restrict and manage DHS is unnecessary. vessel movement by implementing a ACTION: Temporary final rule. safety zone. The Captain of the Port Small Entities SUMMARY: The Coast Guard is Baltimore is establishing a safety zone Under the Regulatory Flexibility Act establishing a safety zone encompassing on a portion of the upper Potomac (5 U.S.C. 601–612), we have considered a portion of the upper Potomac River, River, upper Chesapeake Bay, and the whether this rule would have a upper Chesapeake Bay and Chesapeake Chesapeake & Delaware Canal that will significant economic impact on a & Delaware Canal. This safety zone is restrict access to the Canal to only those substantial number of small entities. necessary to provide for the safety of vessels with steel hulls, keel hull The term ‘‘small entities’’ comprises life, property and to facilitate coolers or upper and lower intake. Also, small businesses, not-for-profit commerce. Due to the threat of ice to on the Chesapeake and Delaware Canal, organizations that are independently navigation, this safety zone imposes access will be restricted to vessels with owned and operated and are not shaft horsepower, intake, and hull a minimum of 3000 total shaft dominant in their fields, and restrictions on vessels that are operating horsepower. governmental jurisdictions with within the safety zone. The purpose of this regulation is to populations of less than 50,000. promote maritime safety, and to protect This will have virtually no impact on DATES: This rule is effective from the environment and mariners transiting January 25, 2004, to March 15, 2004. any small entities. Therefore, the Coast the area from the potential hazards due Guard certifies under section 605 (b) of ADDRESSES: Documents indicated in this to ice conditions that become a threat to the regulatory Flexibility Act (5 U.S.C preamble as being available in the navigation. This rule establishes a safety 605(b)) that this rule will not have a docket are part of docket CGD05–04– zone encompassing a portion of the significant impact on a substantial 019 and are available for inspection or upper Potomac River bounded by the number of small entities. copying at Commander, Coast Guard Harry W. Nice Bridge (US 301) the Key Activities Baltimore, 2401 Hawkins Bridge, including the waters of the Assistance for Small Entities Point Road, Baltimore, Maryland Anacostia River downstream from the Under section 213(a) of the Small 21226–1791, between 9 a.m. and 3 p.m., Highway 50 Bridge. This rule also Business Regulatory Enforcement Monday through Friday, except Federal establishes a safety zone encompassing Fairness Act of 1996 (Pub. L. 104–121), holidays. a portion of the upper Chesapeake Bay, we want to assist small entities in FOR FURTHER INFORMATION CONTACT: and the Chesapeake & Delaware Canal, understanding this rule so that they can Lieutenant Dulani Woods, Coast Guard from a line drawn between Swan Point better evaluate its effects on them and Activities Baltimore, at (410) 576–2513. and North Point and the Maryland and participate in the rulemaking process.
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Small businesses may send comments to health or risk to safety that may ■ 2. Add temporary § 165.T05–019 to on the actions of Federal employees disproportionately affect children. read as follows: who enforce or otherwise determine Indian Tribal Governments compliance with Federal regulations to § 165.T05–019 Safety zone; Ice Conditions, Upper Potomac River, Upper Chesapeake the Small Business and Agriculture This rule does not have tribal implications under Executive Order Bay, and Chesapeake & Delaware Canal, Regulatory Enforcement Ombudsman Maryland. and the Regional Small Business 13175, Consultation and Coordination with Indian Tribal Governments, (a) Location. (1) The following area is Regulatory Fairness Boards. The a safety zone: All waters located on the Ombudsman evaluates these actions because it does not have a substantial direct effect on one or more Indian upper Chesapeake Bay and Chesapeake annually and rates each agency’s and Delaware Canal, from a line drawn responsiveness to small business. If you tribes, on the relationship between the Federal government and Indian tribes, between Swan Point (located at position wish to comment on actions by ° ′ ″ or on the distribution of power and latitude 39 08 42 N, longitude employees of the Coast Guard, call 1– ° ′ ″ responsibilities between the Federal 076 16 44 W) and North Point (located 888–REG–FAIR (1–888–743–3247). ° ′ ″ government and Indian tribes. We invite at position latitude 39 11 43 N, ° ′ ″ Collection of Information your comments on how this rule might longitude 076 26 34 W) and the Maryland and Delaware state lines This rule calls for no new collection impact tribal governments, even if that (located along longitude 075°46′46″ W), of information under the Paperwork impact may not constitute a ‘‘tribal near Chesapeake City, Maryland. Reduction Act of 1995 (44 U.S.C. 3501– implication’’ under the Order. (2) All waters located on the upper 3520). Energy Effects Potomac River bounded by the Harry W. Federalism We have analyzed this rule under Nice Bridge (US 301) upstream to the A rule has implications for federalism Executive Order 12211, Actions Key Bridge, including the waters of the under Executive Order 13132, Concerning Regulations That Anacostia River downstream from the Federalism, if it has a substantial direct Significantly Affect Energy Supply, Highway 50 Bridge to the confluence effect on State or local governments and Distribution, or Use. We have with the Potomac River. (b) Regulations. (1) All vessels would either preempt State law or determined that it is not a ‘‘significant transiting the regulated area in the impose a substantial direct cost of energy action’’ under that order because Upper Potomac River, except vessels compliance on them. We have analyzed it is not a ‘‘significant regulatory action’’ with steel hulls are required to comply this rule under that Order and have under Executive Order 12866 and is not with the general regulations governing determined that this rule does not have likely to have a significant adverse effect safety zones in 33 CFR 165.23 of this implications for federalism. on the supply, distribution, or use of energy. It has not been designated by the part. Unfunded Mandates Reform Act Administrator of the Office of (2) All vessels transiting the regulated The Unfunded Mandates Reform Act Information and Regulatory Affairs as a area in the Upper Chesapeake Bay and of 1995 (2 U.S.C. 1531–1538) requires significant energy action. Therefore, it the Chesapeake and Delaware Canal, Federal agencies to assess the effects of does not require a Statement of Energy except vessels with steel hulls, keel hull their discretionary regulatory actions. In Effects under Executive Order 13211. coolers or an upper and lower intake, and a minimum of 3000 total shaft particular, the Act addresses actions Environment that may result in the expenditure by a horsepower are required to comply with State, local or tribal government, in the We have considered the the general regulations governing safety aggregate, or by the private sector of environmental impact of this rule and zones in 33 CFR 165.23 of this part. (3) Coast Guard assets enforcing this $100,000,000 or more in any one year. concluded that, under figure 2–1, safety zone can be contacted on VHF- Though this rule will not result in such paragraph (34)(g), of Commandant FM marine band radio, channels 13 and expenditure, we do discuss the effects of Instruction M16475.1D, this rule is 16. The Captain of the Port can be this rule elsewhere in this preamble. categorically excluded from further environmental documentation. A contacted on VHF–FM marine band Taking of Private Property ‘‘Categorical Exclusion Determination’’ radio channel 16 or at (410) 576–2693. (c) Definitions. This rule will not effect a taking of is available in the docket where Captain of the Port means the private property or otherwise have indicated under ADDRESSES. Commander, Coast Guard Activities taking implications under Executive List of Subjects in 33 CFR Part 165 Baltimore or any Coast Guard Order 12630, Governmental Actions and Harbors, Marine safety, Navigation commissioned, warrant or petty officer Interference with Constitutionally (water), Reporting and record keeping who has been authorized by the Captain Protected Property Rights. requirements, Security measures, of the Port to act on his behalf. Civil Justice Reform Waterways. Shaft horsepower means a measure of the actual mechanical energy per unit This rule meets applicable standards ■ For the reasons discussed in the time delivered to a turning shaft. in sections 3(a) and 3(b)(2) of Executive preamble, the Coast Guard amends 33 CFR part 165 as follows: Steel Hull vessel means only vessels Order 12988, Civil Justice Reform, to with steel hulls. minimize litigation, eliminate PART 165—REGULATED NAVIGATION (d) Effective period. This section is ambiguity, and reduce burden. AREAS AND LIMITED ACCESS AREAS effective from January 25, 2004, to Protection of Children March 15, 2004. ■ 1. The authority citation for part 165 We have analyzed this rule under continues to read as follows: Dated: January 25, 2004. Executive Order 13045, Protection of Curtis A. Springer, Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Captain, U.S. Coast Guard, Captain of the Children from Environmental Health chapter 701; 50 U.S.C. 191, 195; 33 CFR Port, Baltimore, Maryland. Risks and Safety Risks. This rule is not 1.05–1(g), 6.04–1, 6.04–6, and 160.5; Pub. L. an economically significant rule and 107–295, 116 Stat. 2064; Department of [FR Doc. 04–4482 Filed 2–27–04; 8:45 am] does not concern an environmental risk Homeland Security Delegation No. 0170.1. BILLING CODE 4910–15–P
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ENVIRONMENTAL PROTECTION hydrogen chloride, oxides of nitrogen, conduct tests of air pollution sources; AGENCY carbon monoxide, lead, cadmium, and require owners or operators of mercury, and dioxins and stationary sources to install, maintain 40 CFR Part 62 dibenzofurans. and use emission monitoring devices [SC–200409(a); FRL–7628–5] Section 129(b)(2) of the Act requires and to make periodic reports to the States to submit to EPA for approval of state, and to make such data available to Approval and Promulgation of State State Plans that implement and enforce the public. Plan for Designated Facilities and the EG. State Plans must be at least as SC DHEC cites the following Pollutants: South Carolina protective as the EG, and become references for the legal authority: The Federally enforceable upon approval by South Carolina Statues SC Code Secs. AGENCY: Environmental Protection EPA. The procedures for adoption and 48–1–20, –50(23) regarding adoption of Agency (EPA). submittal of State Plans are codified in emission standards and limitations; SC ACTION: Direct final rule. 40 CFR part 60, subpart B. EPA Code Sec. 48–1–50(1), (3), (4), (5), (11) originally promulgated the subpart B and Secs. 48–1–120, –130, –210, –320, SUMMARY: The EPA is approving provisions on November 17, 1975. EPA –330 regarding the enforcement of revisions to sections 111(d)/129 plan amended subpart B on December 19, applicable laws, regulations, and submitted by the South Carolina 1995, to allow the subparts developed standards, and seek injunctive relief; SC Department of Health and under section 129 to include Code Sec. 48–1–290 regarding Environmental Control (SC DHEC) for specifications that supersede the general abatement of pollutant emissions on an the State of South Carolina on April 12, provisions in subpart B regarding the emergency basis; SC Code Sec. 48–1– 2002, for implementing and enforcing schedule for submittal of State Plans, 50(5), (10) and Secs. 48–1–100, –110 the Emissions Guidelines (EG) the stringency of the emission regarding the prevention of construction applicable to existing Commercial and limitations, and the compliance or modification where emissions will Industrial Solid Waste Incineration schedules. prevent attainment or maintenance of a (CISWI) Units that Commenced This action approves the State Plan national standard; SC Code Sec. 48–1– Construction On or Before November submitted by SC DHEC for the State of 50(10), (20), (22), (24) regarding 30, 1999. South Carolina to implement and obtaining information necessary to DATES: This direct final rule is effective enforce subpart DDDD, as it applies to determine whether air pollution sources April 30, 2004 without further notice, existing CISWI units only. are in compliance, including authority unless EPA receives adverse comment II. Discussion to require record keeping and to make by March 31, 2004. If adverse comment inspections and conduct tests of air is received, EPA will publish a timely SC DHEC submitted to EPA on April pollution sources; and SC Code Secs. withdrawal of the direct final rule in the 12, 2002, the following in their 111(d)/ 48–1–50(22), –270 regarding Federal Register and inform the public 129 State Plan for implementing and requirements for owners or operators of that the rule will not take effect. enforcing the EG for existing CISWIs stationary sources to install, maintain under their direct jurisdiction in the ADDRESSES: Comments may be and use emission monitoring devices State of South Carolina: An inventory of submitted by mail to: Joydeb Majumder, and to make periodic reports to the emissions for affected CISWI units; A Air Toxics Assessment and state, and to make such data available to compliance schedule, emissions Implementation Section, Air Toxics and the public. limitations, operator training and Monitoring Branch, Air, Pesticides and SC DHEC has adopted 40 CFR 60, qualification requirements, a Toxics Management Division, U.S. subpart DDDD, by reference into R.61– management plan, performance testing, Environmental Protection Agency, 62.60—South Carolina Designated record keeping, and operating limits for Region 4, 61 Forsyth Street, SW, Facility Plan and New Source affected CISWI units; Provision for State Atlanta, Georgia 30303–8960. Performance Standards, all emission progress reports; South Carolina’s legal Comments may also be submitted standards and limitations applicable to authority to carry out section 111(d)/129 electronically, or through hand existing CISWI units. These standards State Plan requirements and delivery/courier. Please follow the and limitations have been approved as identification of enforcement detailed instructions described in being at least as protective as the mechanisms; A record of Public sections IV.B.1. through 3. of the Federal requirements contained in Hearing; and their Final Regulation for subpart DDDD for existing CISWI units. SUPPLEMENTARY INFORMATION section. existing CISWI units. SC DHEC submitted compliance FOR FURTHER INFORMATION CONTACT: The approval of the South Carolina schedule information including a note Joydeb Majumder, at (404) 562–9121 or State Plan is based on finding that: (1) of clarification for existing CISWIs via electronic mail at SC DHEC provided adequate public under their jurisdiction in the State of [email protected]. notice of public hearings for the EG for South Carolina. The clarification SUPPLEMENTARY INFORMATION: existing CISWIs, and (2) SC DHEC also regarding the compliance schedule demonstrated legal authority to adopt indicated that SC DHEC conducted an I. Background emission standards and limitations; extensive review of its inventory of On December 1, 2000, pursuant to enforce applicable laws, regulations, sources to determine whether or not any sections 111 and 129 of the Clean Air and standards, and seek injunctive of these sources meet the applicability Act (Act), EPA promulgated new source relief; abate pollutant emissions on an criteria set forth in the rules. The result performance standards (NSPS) emergency basis; prevent construction of the review indicated that existing applicable to new CISWIs and EG or modification where emissions will CISWI units in South Carolina that meet applicable to existing CISWIs. The prevent attainment or maintenance of a the definition of a CISWI are air curtain NSPS and EG are codified at 40 CFR national standard; obtain information incinerators. The emissions guidelines, part 60, subparts CCCC and DDDD, necessary to determine whether air 40 CFR 60 subpart DDDD, have few respectively. Subparts CCCC and DDDD pollution sources are in compliance, requirements for air curtain regulate the following: Particulate including authority to require record incinerators. Among the most matter, opacity, sulfur dioxide, keeping and to make inspections and significant requirements of the rules
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with respect to air curtain incinerators If the EPA receives such comments, 3. Electronic Access. You may access is a requirement to meet a 10 percent then EPA will publish a document this Federal Register document opacity limit. SC DHEC has confirmed withdrawing the final rule and electronically through the that all air curtain incinerators readily informing the public that the rule will Regulation.gov Web site located at achieve a 10 percent opacity limit by not take effect. All public comments http://www.regulations.gov where you simply adopting good operating received will then be addressed in a can find, review, and submit comments practices. This portion of the Plan has subsequent final rule based on the on Federal rules that have been been reviewed and approved as meeting proposed rule. The EPA will not published in the Federal Register, the the Federal requirements for existing institute a second comment period. Government’s legal newspaper, and are CISWI units. Parties interested in commenting should open for comment. SC DHEC submitted an emissions do so at this time. If no such comments For public commenters, it is inventory of all designated pollutants are received, the public is advised that important to note that EPA’s policy is for existing CISWI units under their this rule will be effective on April 30, that public comments, whether jurisdiction in the State of South 2004 and no further action will be taken submitted electronically or in paper, Carolina. This portion of the Plan has on the proposed rule. Please note that if will be made available for public been reviewed and approved as being at we receive adverse comment on an viewing at the EPA Regional Office, as least as protective as Federal amendment, paragraph, or section of EPA receives them and without change, requirements for existing CISWI units. this rule and if that provision may be unless the comment contains SC DHEC includes its legal authority severed from the remainder of the rule, copyrighted material, CBI, or other to require owners and operators of we may adopt as final those provisions information whose disclosure is facilities to maintain records and report of the rule that are not the subject of an restricted by statute. When EPA to their Agency the nature and amount adverse comment. identifies a comment containing of emissions and any other information copyrighted material, EPA will provide that may be necessary to enable their IV. General Information a reference to that material in the Agency to judge the compliance status version of the comment that is placed in A. How Can I Get Copies of This of the facilities in the State Plan. In the the official public rulemaking file. The Document and Other Related State Plan, SC DHEC also submits its entire printed comment, including the Information? legal authority to conduct periodic copyrighted material, will be available inspection and testing and provisions to 1. The Regional Office has established at the Regional Office for public report applicable emissions standards an official public rulemaking file inspection. and emissions data to the general available for inspection at the Regional public. B. How and To Whom Do I Submit Office. EPA has established an official Comments? The State Plan outlines the authority public rulemaking file for this action to meet the requirements of monitoring, under SC–200409. The official public You may submit comments electronically, by mail, or through hand record keeping, reporting, and file consists of the documents delivery/courier. To ensure proper compliance assurance. This portion of specifically referenced in this action, receipt by EPA, identify the appropriate the Plan has been reviewed and any public comments received, and rulemaking identification number by approved as being at least as protective other information related to this action. including the text ‘‘Public comment on as Federal requirements for existing Although a part of the official docket, proposed rulemaking SC–200409’’ in CISWI units. the public rulemaking file does not SC DHEC will provide progress the subject line on the first page of your include Confidential Business reports of plan implementation updates comment. Please ensure that your Information (CBI) or other information to the EPA on an annual basis. These comments are submitted within the whose disclosure is restricted by statute. progress reports will include the specified comment period. Comments The official public rulemaking file is the required items pursuant to 40 CFR part received after the close of the comment collection of materials that is available 60, subpart B. This portion of the plan period will be marked ‘‘late.’’ EPA is not for public viewing at the Regulatory has been reviewed and approved as required to consider these late Development Section, Air Planning meeting the Federal requirement for comments. Branch, Air, Pesticides and Toxics State Plan reporting. 1. Electronically. If you submit an Management Division, U.S. electronic comment as prescribed III. Final Action Environmental Protection Agency, below, EPA recommends that you This action approves the State Plan Region 4, 61 Forsyth Street, SW, include your name, mailing address, submitted by SC DHEC for the State of Atlanta, Georgia 30303–8960. EPA and an e-mail address or other contact South Carolina to implement and requests that if at all possible, you information in the body of your enforce subpart DDDD, as it applies to contact the contact listed in the FOR comment. Also include this contact existing CISWI units only. The EPA is FURTHER INFORMATION CONTACT section to information on the outside of any disk publishing this rule without prior schedule your inspection. The Regional or CD ROM you submit, and in any proposal because the Agency views this Office’s official hours of business are cover letter accompanying the disk or as a noncontroversial submittal and Monday through Friday, 9 to 3:30, CD ROM. This ensures that you can be anticipates no adverse comments. excluding Federal holidays. identified as the submitter of the However, in the proposed rules section 2. Copies of the State submittal and comment and allows EPA to contact you of this Federal Register publication, EPA’s technical support document are in case EPA cannot read your comment EPA is publishing a separate document also available for public inspection due to technical difficulties or needs that will serve as the proposal to during normal business hours, by further information on the substance of approve the SIP revision should adverse appointment at the State Air Agency. your comment. EPA’s policy is that EPA comments be filed. This rule will be South Carolina Department of Health will not edit your comment, and any effective April 30, 2004 without further and Environmental Control, Bureau of identifying or contact information notice unless the Agency receives Air Quality Control, 2600 Bull Street, provided in the body of a comment will adverse comments by March 31, 2004. Columbia, South Carolina 29201. be included as part of the comment that
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is placed in the official public docket. hours of business are Monday through V. Statutory and Executive Order If EPA cannot read your comment due Friday, 9:00 to 3:30 excluding federal Reviews to technical difficulties and cannot holidays. Under Executive Order 12866 (58 FR contact you for clarification, EPA may C. How Should I Submit CBI to the 51735, October 4, 1993), this action is not be able to consider your comment. Agency? not a ‘‘significant regulatory action’’ and i. E-mail. Comments may be sent by therefore is not subject to review by the electronic mail (e-mail) to Do not submit information that you Office of Management and Budget. For [email protected] please consider to be CBI electronically to EPA. this reason, this action is also not include the text ‘‘Public comment on You may claim information that you subject to Executive Order 13211, proposed rulemaking SC–200409’’ in submit to EPA as CBI by marking any ‘‘Actions Concerning Regulations That the subject line. EPA’s e-mail system is part or all of that information as CBI (if Significantly Affect Energy Supply, not an ‘‘anonymous access’’ system. If you submit CBI on disk or CD ROM, Distribution, or Use’’ (66 FR 28355, May you send an e-mail comment directly mark the outside of the disk or CD ROM 22, 2001). This action merely approves without going through Regulations.gov, as CBI and then identify electronically state law as meeting Federal EPA’s e-mail system automatically within the disk or CD ROM the specific requirements and imposes no additional captures your e-mail address. E-mail information that is CBI). Information so addresses that are automatically requirements beyond those imposed by marked will not be disclosed except in state law. Accordingly, the captured by EPA’s e-mail system are accordance with procedures set forth in included as part of the comment that is Administrator certifies that this rule 40 CFR part 2. will not have a significant economic placed in the official public docket. In addition to one complete version of ii. Regulation.gov. Your use of impact on a substantial number of small 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 Regulations.gov at rule approves pre-existing requirements information claimed as CBI must be http://www.regulations.gov, then select under state law and does not impose submitted for inclusion in the official Environmental Protection Agency at the any additional enforceable duty beyond top of the page and use the go button. public regional rulemaking file. If you that required by state law, it does not The list of current EPA actions available submit the copy that does not contain contain any unfunded mandate or for comment will be listed. Please CBI on disk or CD ROM, mark the significantly or uniquely affect small 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). means EPA will not know your identity, the public file and available for public This rule also does not have tribal e-mail address, or other contact inspection without prior notice. If you implications because it will not have a information unless you provide it in the have any questions about CBI or the substantial direct effect on one or more body of your comment. procedures for claiming CBI, please Indian tribes, on the relationship iii. Disk or CD ROM. You may submit consult the person identified in the FOR between the Federal Government and comments on a disk or CD ROM that FURTHER INFORMATION CONTACT section. Indian tribes, or on the distribution of you mail to the mailing address D. What Should I Consider as I Prepare power and responsibilities between the identified in Section 2, directly below. My Comments for EPA? Federal Government and Indian tribes, These electronic submissions will be as specified by Executive Order 13175 accepted in WordPerfect, Word or ASCII You may find the following (65 FR 67249, November 9, 2000). This file format. Avoid the use of special suggestions helpful for preparing your action also does not have Federalism characters and any form of encryption. comments: implications because it does not have 2. By Mail. Send your comments to: 1. Explain your views as clearly as substantial direct effects on the States, Joydeb Majumder, Air Toxics possible. on the relationship between the national Assessment and Implementation 2. Describe any assumptions that you government and the States, or on the Section, Air Toxics and Monitoring used. distribution of power and Branch Air, Pesticides and Toxics 3. Provide any technical information responsibilities among the various Management Division, U.S. and/or data you used that support your levels of government, as specified in Environmental Protection Agency, views. Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely Region 4, 61 Forsyth Street, SW., 4. If you estimate potential burden or approves a state rule implementing a Atlanta, Georgia 30303–8960. Please costs, explain how you arrived at your Federal standard, and does not alter the include the text ‘‘Public comment on estimate. proposed rulemaking SC–200409’’ in relationship or the distribution of power the subject line on the first page of your 5. Provide specific examples to and responsibilities established in the comment. illustrate your concerns. Clean Air Act. This rule also is not 3. By Hand Delivery or Courier. 6. Offer alternatives. subject to Executive Order 13045 Deliver your comments to: Joydeb 7. Make sure to submit your ‘‘Protection of Children from Majumder, Air Toxics Assessment and comments by the comment period Environmental Health Risks and Safety Implementation Section, Air Toxics and deadline identified. Risks’’ (62 FR 19885, April 23, 1997), Monitoring Branch, Air, Pesticides and 8. To ensure proper receipt by EPA, because it is not economically Toxics Management Division, U.S. identify the appropriate regional file/ significant. Environmental Protection Agency, rulemaking identification number in the In reviewing SIP submissions, EPA’s Region 4, 61 Forsyth Street, SW, subject line on the first page of your role is to approve state choices, Atlanta, Georgia 30303–8960. Such response. It would also be helpful if you provided that they meet the criteria of deliveries are only accepted during the provided the name, date, and Federal the Clean Air Act. In this context, in the Regional Office’s normal hours of Register citation related to your absence of a prior existing requirement operation. The Regional Office’s official comments. for the State to use voluntary consensus
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standards (VCS), EPA has no authority Dated: February 17, 2004. United States Court of Appeals for the to disapprove a SIP submission for J. I. Palmer, Jr., appropriate circuit. Any petition for failure to use VCS. It would thus be Regional Administrator, Region 4. review shall be filed within 60 days inconsistent with applicable law for ■ Chapter I, title 40 of the Code of from the date this notice appears in the EPA, when it reviews a SIP submission, Federal Regulation is amended as Federal Register, pursuant to section to use VCS in place of a SIP submission follows: 307 of the Act. that otherwise satisfies the provisions of ADDRESSES: You may review copies of the Clean Air Act. Thus, the PART 62—[AMENDED] the final order, the petition, and other requirements of section 12(d) of the supporting information at the EPA 1. The authority citation for part 62 Region 2 Office, 290 Broadway, New National Technology Transfer and continues to read as follows: Advancement Act of 1995 (15 U.S.C. York, New York 10007–1866. If you Authority: 42 U.S.C. 7401 et seq. 272 note) do not apply. This rule does wish to examine these documents, you should make an appointment at least 24 not impose an information collection Subpart PP—South Carolina hours before visiting day. Additionally, burden under the provisions of the the final order for the Al Turi Landfill ■ 2. Subpart PP is amended by adding an Paperwork Reduction Act of 1995 (44 is available electronically at: http:// undesignated center heading and U.S.C. 3501 et seq.). www.epa.gov/region07/programs/artd/ § 62.10190 to read as follows: The Congressional Review Act, 5 air/title5/petitiondb/petitions/ U.S.C. section 801 et seq., as added by AIR EMISSIONS FROM COMMERCIAL al_turi_decision2002.pdf. the Small Business Regulatory AND INDUSTRIAL SOLID WASTE FOR FURTHER INFORMATION CONTACT: Enforcement Fairness Act of 1996, INCINERATION (CISWI) UNITS— Steven Riva, Chief, Permitting Section, generally provides that before a rule SECTION 111(d)/129 PLAN Air Programs Branch, Division of may take effect, the agency § 62.10190 Identification of Sources. Environmental Planning and Protection, promulgating the rule must submit a The Plan applies to existing EPA, Region 2, 290 Broadway, 25th rule report, which includes a copy of Floor, New York, New York 10007– Commercial and Industrial Solid Waste 1866, telephone (212) 637–4074. the rule, to each House of the Congress Incineration Units that Commenced and to the Comptroller General of the Construction On or Before November SUPPLEMENTARY INFORMATION: The Act United States. EPA will submit a report 30, 1999. affords EPA a 45-day period to review, containing this rule and other required and object to as appropriate, operating information to the U.S. Senate, the U.S. [FR Doc. 04–4461 Filed 2–27–04; 8:45 am] permits proposed by State permitting House of Representatives, and the BILLING CODE 6560–50–P authorities. Section 505(b)(2) of the Act Comptroller General of the United authorizes any person to petition the States prior to publication of the rule in EPA Administrator within 60 days after ENVIRONMENTAL PROTECTION the expiration of this review period to the Federal Register. A major rule AGENCY cannot take effect until 60 days after it object to the State operating permit if EPA has not done so. Petitions must be is published in the Federal Register. 40 CFR Part 70 This action is not a ‘‘major rule’’ as based only on objections to the permit [Regional Docket Nos. II–2002–13–A; FRL– defined by 5 U.S.C. section 804(2). that were raised with reasonable 7627–6] specificity during the public comment Under section 307(b)(1) of the Clean period provided by the State, unless the Air Act, petitions for judicial review of Clean Air Act Operating Permit petitioner demonstrates that it was this action must be filed in the United Program; Petition for Objection to impracticable to raise these issues States Court of Appeals for the State Operating Permit for the Al Turi during the comment period or the appropriate circuit by April 30, 2004. Landfill grounds for the issues arose after this Filing a petition for reconsideration by AGENCY: Environmental Protection period. the Administrator of this final rule does Agency (EPA). On October 4, 2002, the EPA received a petition from NYPIRG, requesting that not affect the finality of this rule for the ACTION: Notice of final order on a purposes of judicial review nor does it petition to object to a State operating EPA object to the issuance of the title V extend the time within which a petition permit. operating permit for Al Turi Landfill. for judicial review may be filed, and The petition raises issues regarding the shall not postpone the effectiveness of SUMMARY: This document announces permit application, the permit issuance such rule or action. This action may not that the EPA Administrator has process, and the permit itself. NYPIRG be challenged later in proceedings to responded to a citizen petition asking asserts that: (1) the permit does not enforce its requirements. (See section EPA to object to an operating permit comply with 40 CFR part 70 because the 307(b)(2).) issued to a facility by the New York permit’s expiration limits the effective State Department of Environmental date of many permit conditions; and (2) List of Subjects in 40 CFR Part 62 Conservation (NYSDEC). Specifically, the final permit fails to correct the Administrator has partially granted deficiencies noted in NYPIRG’s Environmental protection, and partially denied the petition comments to NYSDEC on the draft Al Administrative practice and procedure, submitted by the New York Public Turi permit, including that (i) the Air pollution control, Aluminum, Interest Research Group (NYPIRG) to permit is based on an inadequate permit Fertilizers, Fluoride, Intergovernmental object to the State operating permit application in violation of 40 CFR relations, Paper and paper products issued to the following facility: Al Turi 70.5(c); (ii) the permit is not supported industry, Phosphate, Reporting and Landfill in Goshen, NY. by an adequate statement of basis as recordkeeping requirements, Sulfur Pursuant to section 505(b)(2) of the required by 40 CFR 70.7(a)(5); (iii) the oxides, Sulfuric acid plants, Waste Clean Air Act (Act), Petitioner may seek permit fails to specify whether or not treatment and disposal. judicial review of those portions of the the facility must submit an accidental petition which EPA denied in the release plan under section 112(r) of the
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CAA, 42 U.S.C. 7412(r); (iv) the permit petition on the Al Turi Landfill. The ‘‘other control devices,’’ that the distorts the annual compliance order explains the reasons behind EPA’s requirements for the enclosed certification requirement of section conclusion that the NYSDEC must combustors apply to these engines, and 114(a)(3) of the CAA, 42 U.S.C. reopen the permit to: (1) Include the that there are no ‘‘other control devices’’ 7414(a)(3), and 40 CFR 70.6(c)(5); (v) the New York State Implementation Plan in use for control of landfill gas permit does not require prompt (SIP) version of the provision that emissions from this landfill. The order reporting of all deviations from permit allows the NYSDEC Commissioner to also explains the reasons for denying requirements as mandated by 40 CFR excuse certain unavoidable start-up, NYPIRG’s remaining claims. In 70.6(a)(3)(iii)(B); (vi) the permit’s maintenance, and malfunction conjunction with the reopening, EPA startup/shutdown, malfunction, violations per criteria set in 6 N.Y.C.R.R. has directed NYSDEC to add Maximum maintenance, and upset provision section 201.5; (2) clarify how the Achievable Control Technology (MACT) violates 40 CFR part 70; (vii) the permit requirement to maintain and repair requirements and to re-examine whether has an inadequate compliance schedule or not the landfill and the gas emission control equipment applies to in violation of 40 CFR 70.5(c)(8) and conversion facility must be treated as a the equipment located at the 70.6(c)(3); and (viii) the permit does not single source for non-attainment New neighboring gas conversion facility; (3) assure compliance with all applicable Source Review, Prevention of requirements as mandated by 40 CFR clarify how the requirement regarding Significant Deterioration, and title V 70.1(b) and 70.6(a)(1) because many reintroduction of air contaminants from applicability purposes. individual permit conditions lack an air control device to outside air Dated: February 20, 2004. adequate periodic monitoring and are applies to the control equipment at the not practically enforceable. neighboring gas conversion facility; and Kathleen C. Callahan, On January 30, 2004, the (4) clarify that the internal combustion Acting Regional Administrator, Region 2. Administrator issued an order partially engines serving as control devices are [FR Doc. 04–4463 Filed 2–27–04; 8:45 am] granting and partially denying the ‘‘enclosed combustors’’ rather than BILLING CODE 6560–50–P
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Proposed Rules Federal Register Vol. 69, No. 40
Monday, March 1, 2004
This section of the FEDERAL REGISTER used to help draft a proposed rule on in comments submitted on the ANPRM. contains notices to the public of the proposed trans fat. The IOM/NAS’s dietary reference intake issuance of rules and regulations. The DATES: Submit written or electronic (DRI) 2002 report on macronutrients purpose of these notices is to give interested comments by April 15, 2004. (Ref. 2) did not establish an estimated persons an opportunity to participate in the average requirement (EAR), an adequate rule making prior to the adoption of the final ADDRESSES: Submit written comments rules. to the Division of Dockets Management intake (AI), or an acceptable (HFA–305), Food and Drug macronutrient distribution range Administration, 5630 Fishers Lane, rm. (AMDR) for trans fat because the DEPARTMENT OF HEALTH AND 1061, Rockville, MD 20852. Submit presence in the diet meets no known HUMAN SERVICES electronic comments to http:// nutritional need, hence there are no DRI www.fda.gov/dockets/ecomments. values that can be readily used as the Food and Drug Administration FOR FURTHER INFORMATION CONTACT: Julie basis for a trans fat daily value (DV). Schrimpf, Center for Food Safety and Therefore, to establish a DV for trans fat, 21 CFR Part 101 Applied Nutrition (HFS–830), Food and the 2003 report suggests the use of food Drug Administration, 5100 Paint Branch composition data, menu modeling, and [Docket No. 2003N–0076] Pkwy., College Park, MD 20740–3835, data from dietary surveys to estimate 301–436–1450, FAX: 301–436–2636. minimum intakes consistent with Food Labeling: Trans Fatty Acids in SUPPLEMENTARY INFORMATION: nutritionally adequate and health- Nutrition Labeling; Consumer promoting diets for diverse populations. Research to Consider Nutrient Content I. Background It specifically suggests estimating and Health Claims and Possible In the Federal Register of July 11, minimal trans fat intake levels via menu Footnote or Disclosure Statements; 2003 (68 FR 41507), FDA issued an modeling and then further evaluating Reopening of the Comment Period ANPRM to solicit information and data them against achievable health- that potentially could be used to promoting diets (identified in dietary AGENCY: Food and Drug Administration, establish new nutrient content claims survey data) in order to arrive at HHS. about trans fatty acids (trans fat); to appropriate recommendations for the ACTION: Advanced notice of proposed establish qualifying criteria for trans fat intake of trans fat. We are requesting rulemaking, reopening of comment in current nutrient content claims for comment on the approach period. saturated fatty acids (saturated fat) and recommended in the 2003 report to cholesterol, lean and extra lean claims, estimate minimum trans fat intakes SUMMARY: The Food and Drug and health claims that contain a within a nutritionally adequate North Administration (FDA) is reopening for message about cholesterol-raising lipids; American diet and use this value to 45 days the comment period for an and, in addition, to establish disclosure establish a DV for trans fat. advanced notice of proposed rule and disqualifying criteria to help The 2003 report also recommends that making (ANPRM) published in the consumers make heart-healthy food saturated fat and trans fat amounts be Federal Register of July 11, 2003 (68 FR choices. We (FDA) also requested listed on separate lines, but that one 41507), in which FDA is requesting comments on whether we should numerical value for the percent DV be information and data that potentially consider statements about trans fat, included in the nutrition facts panel for could be used to establish new nutrient either alone or in combination with these two nutrients together. The 2003 content claims about trans fatty acids saturated fat and cholesterol, as a report recognizes that trans fat and (trans fat); to establish qualifying criteria footnote in the nutrition facts panel or saturated fat are chemically distinct and for trans fat in current nutrient content as a disclosure statement in conjunction acknowledges that research claims for saturated fatty acids and with claims to enhance consumers demonstrates different physiological cholesterol, lean and extra lean claims, understanding about such cholesterol- effects among the fatty acids; however, and health claims that contain a raising lipids and how to use the both trans fat and saturated fat raise message about cholesterol-raising lipids; information to make healthy food total and low density lipoprotein (LDL) and, in addition, to establish disclosure choices. The comment period was open cholesterol levels, which are potential and disqualifying criteria to help until October 9, 2003. contributors to coronary heart disease consumers make heart-healthy food Since the end of the previous risk. We are requesting comment about choices. Since publication of the comment period, the IOM/NAS issued a the development of a joint DV for ANPRM on July 11, 2003, the Institute report entitled ‘‘Dietary Reference saturated and trans fats. If a joint DV for of Medicine of the National Academy of Intakes: Guiding Principles for Nutrition saturated and trans fats is pursued, we Science (IOM/NAS) issued a report Labeling and Fortification’’ (the 2003 are requesting comment about the use of entitled ‘‘Dietary Reference Intakes: report) in which the overarching goal is the same approach that the 2003 report Guiding Principles for Nutrition to have updated nutrition labeling that recommended for establishing a DV for Labeling and Fortification.’’ FDA is consumers can use to make informed trans fat (noted previously) to establish reopening the comment period to dietary choices (Ref. 1). In response to a new DV for saturated fat that would receive comments that consider the requests received in this docket, we are then be added to the DV for trans fat to information in the IOM/NAS report reopening the comment period to allow establish a new combined DV, or, specific to this ANPRM and trans fat interested persons the opportunity to alternatively, to directly establish a joint labeling. Information and data obtained consider the 2003 report and its DV for saturated and trans fats. from comments to this ANPRM may be discussion specific to trans fat labeling Additionally, we are requesting
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comment about how either a DV for http://www.gpoaccess.gov/fr/index.html both the acquired and relinquished trans fat or a joint DV for saturated and by browsing the ‘‘Table of Contents from property are subject to MACRS in the trans fats may affect the qualifying Back Issues’’ and select the publication hands of the acquiring taxpayer. The criteria for trans fat in trans fat nutrient date of Friday, July 11, 2003. text of those temporary regulations also content claims and qualifying criteria serves as the text of these proposed IV. References for saturated and trans fats in current regulations. This document also nutrient content claims for saturated fat The following references have been provides notice of a public hearing on and cholesterol, lean and extra lean placed on display in the Division of these proposed regulations and a partial claims, and health claims that contain a Dockets Management (see ADDRESSES) withdrawal of proposed regulations message about cholesterol-raising lipids and may be seen between 9 a.m. and 4 (REG–139499–02) published July 21, as well as disclosure and disqualifying p.m., Monday through Friday. FDA has 2003. criteria for saturated and trans fats to verified the Web site addresses, but is help consumers make healthy food not responsible for subsequent changes DATES: Written or electronic comments choices. to the Web sites after this document must be received by June 1, 2004. We are also requesting comment on publishes in the Federal Register. Outlines of topics to be discussed at the whether a DV for trans fat or joint DV 1. IOM/NAS 2003, ‘‘Dietary Reference public hearing scheduled for June 3, for saturated and trans fats would Intakes: Guiding Principles for Nutrition 2004, at 10 a.m. must be received by eliminate the necessity for considering a Labeling and Fortification,’’ National May 13, 2004. disclosure statement, in conjunction Academy Press, Washington DC with nutrient content or health claims, (Internet address: http://www.iom.edu/ ADDRESSES: Send submissions to concerning levels of saturated fat, trans report.asp?id=17117). CC:PA:LPD:PR (REG–106590–00), room fat, or cholesterol in a food or in the diet 2. IOM/NAS 2002, ‘‘Dietary Reference 5203, Internal Revenue Service, P.O. or a message about the role of such Intakes for Energy, Carbohydrate, Fiber, Box 7604, Ben Franklin Station, cholesterol-raising lipids in increasing Fat, Fatty Acids, Cholesterol, Protein, Washington, DC 20044. Alternatively, the risk of CHD. Further, we are and Amino Acids,’’ National Academy submissions may be hand-delivered requesting comment on whether a DV Press, Washington, DC (Internet address: Monday through Friday between the for trans fat or a joint DV for saturated http://www.iom.edu/ hours of 8 a.m. and 4 p.m. to and trans fats would eliminate the need report.asp?id=4340). CC:PA:LPD:PR (REG–106590–00), Courier’s Desk, Internal Revenue for a footnote about trans fat, either Dated: February 20, 2004. Service, 1111 Constitution Ave., NW., alone or in combination with saturated Jeffrey Shuren, fat and cholesterol. Washington, DC, or sent electronically, Information and data obtained from Assistant Commissioner for Policy. via the IRS Internet site at http:// comments and from consumer studies [FR Doc. 04–4504 Filed 2–27–04; 8:45 am] www.irs.gov/regs. The public hearing may be used to help draft a proposed BILLING CODE 4160–01–S will be held in the Auditorium, Internal rule on trans fat to do the following: (1) Revenue Building, 1111 Constitution Establish criteria for certain nutrient Avenue, NW., Washington, DC. content or health claims; (2) require the DEPARTMENT OF THE TREASURY FOR FURTHER INFORMATION CONTACT: use of a footnote, or other labeling Concerning the proposed regulations, approach, about one or more Internal Revenue Service Charles J. Magee, (202) 622–3110; cholesterol-raising lipids in the concerning submissions of comments, nutrition facts panel; and (3) develop a 26 CFR Part 1 the hearing, and/or to be placed on the DV for trans fat either alone or in [REG–106590–00, REG–138499–02] building access list to attend the combination with saturated fat for use RIN 1545–AX95; RIN 1545–BB05 hearing, Robin Jones, (202) 622–7180 with a joint percent DV for saturated (not toll-free numbers). and trans fat in the nutrition facts panel Depreciation of MACRS Property That to assist consumers in maintaining Is Acquired in a Like-Kind Exchange or SUPPLEMENTARY INFORMATION: healthy dietary practices. At a later date, as a Result of an Involuntary Background we will solicit comment on the Conversion remaining parts of the 2003 report. Temporary regulations in the rules AGENCY: Internal Revenue Service (IRS), and regulations section of this issue of II. How to Submit Comments Treasury. the Federal Register amend 26 CFR part Interested persons may submit to the ACTION: Notice of proposed rulemaking; 1 relating to section 168 of the Internal Division of Dockets Management (see notice of proposed rule making by cross- Revenue Code (Code). The temporary ADDRESSES) written or electronic reference to temporary regulations; regulations provide guidance under comments regarding this ANPRM. notice of public hearing; and partial section 168 on how to depreciate Submit a single copy of electonic withdrawal of proposed regulations. MACRS property acquired in a like-kind comments or two paper copies of any exchange under section 1031 or as a mailed comments, except that SUMMARY: In the rules and regulations result of an involuntary conversion individuals may submit one paper copy. section of this issue of the Federal under section 1033 when both the Comments are to be identified with the Register, the IRS is issuing temporary acquired and relinquished property are docket number found in brackets in the regulations relating to the depreciation subject to MACRS in the hands of the heading of this document. Received of property subject to section 168 of the acquiring taxpayer. comments may be seen in the Division Internal Revenue Code (MACRS of Dockets Management between 9 a.m. property). Specifically, the temporary The text of those regulations also and 4 p.m., Monday through Friday. regulations provide guidance on how to serves as the text of these proposed depreciate MACRS property acquired in regulations. The preamble to the III. Electronic Access a like-kind exchange under section 1031 temporary regulations explains the Persons with access to the Internet or as a result of an involuntary temporary regulations and these may obtain the ANPRM text or PDF at conversion under section 1033 when proposed regulations.
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Special Analyses Drafting Information (d) * * * It has been determined that this notice The principal authors of these (3) (The text of the proposed of proposed rulemaking is not a regulations are Alan H. Cooper, Office of amendment to § 1.168(d)–1(d)(3) is the significant regulatory action as defined the Chief Counsel (Small Business/Self same as the text of § 1.168(d)–1T(d)(3) in Executive Order 12866. Therefore, a Employed), and Charles J. Magee, Office published elsewhere in this issue of the regulatory assessment is not required. It of the Associate Chief Counsel Federal Register.) also has been determined that section (Passthroughs and Special Industries). Par. 4. Section 1.168(i)–0 is amended 553(b) of the Administrative Procedure However, other personnel from the IRS by revising the entries for § 1.168(i)– Act (5 U.S.C. chapter 5) does not apply and Treasury Department participated 1(d)(2), (e)(3)(i), (e)(3)(v) and (vi), (f)(1), to these regulations and, because these in their development. (f)(2), (f)(2)(i), (i), (j), and (l) to read as regulations do not impose on small follows: List of Subjects in 26 CFR Part 1 entities a collection of information § 1.168(i)–0 Table of contents for the requirement, the Regulatory Flexibility Income taxes, Reporting and general asset account rules. Act (5 U.S.C. chapter 6) does not apply. recordkeeping requirements. * * * * * Therefore, a Regulatory Flexibility Partial Withdrawal of Proposed § 1.168(i)–1 General asset accounts. Analysis is not required. Pursuant to Regulations section 7805(f) of the Internal Revenue * * * * * Code, this notice of proposed Under the authority of 26 U.S.C. 7805, (d) * * * rulemaking will be submitted to the §§ 1.168(a)–1 and 1.168(b)–1 of the (2) (The text of the proposed entry for Chief Counsel for Advocacy of the Small notice of proposed rulemaking (REG– § 1.168(i)–1(d)(2) is the same as the Business Administration for comment 138499–02) published in the Federal entry for § 1.168(i)–1T(d)(2) published on its impact on small business. Register on July 21, 2003 (68 FR 43047) elsewhere in this issue of the Federal are withdrawn. Comments and Public Hearing Register.) Proposed Amendments to the * * * * * Before these proposed regulations are Regulations (e) * * * adopted as final regulations, (3) * * * consideration will be given to any Accordingly, 26 CFR part 1 is proposed to be amended as follows: (i) (The text of the proposed entry for written comments (a signed original and § 1.168(i)–1(e)(3)(i) is the same as the eight (8) copies) or electronic comments PART 1—INCOME TAXES entry for § 1.168(i)–1T(e)(3)(i) published that are submitted timely to the IRS. The elsewhere in this issue of the Federal IRS and Treasury Department Paragraph 1. The authority citation Register.) specifically request comments on the for part 1 reads as follows: clarity of the proposed rules and how * * * * * they may be made easier to understand. Authority: 26 U.S.C. 7805 * * * (vi) (The text of the proposed entries All comments will be available for § 1.168(i)–1 also issued under 26 for § 1.168(i)–1(e)(3)(vi) is the same as public inspection and copying. U.S.C. 168(i)(4). the entries for § 1.168(i)–1T(e)(3)(vi) A public hearing has been scheduled Par. 2. Sections 1.168(a)–1 and published elsewhere in this issue of the for June 3, 2004, beginning at 10 a.m. in 1.168(b)–1 are added to read as follows: Federal Register.) the Auditorium of the Internal Revenue * * * * * § 1.168(a)–1 Modified accelerated cost (f) * * * Building, 1111 Constitution Avenue, recovery system. NW., Washington, DC. Due to building (f)(1) through (f)(2)(i) (The text of the (The text of this proposed section is proposed entries for § 1.168(i)–1(f)(1) security procedures, visitors must enter the same as the text of § 1.168(a)–1T(a) at the Constitution Avenue entrance. In through (f)(2)(i) is the same as the text and (b) published elsewhere in this of the entries for § 1.168(i)–1T(f)(1) addition, all visitors must present photo issue of the Federal Register.) identification to enter the building. through (f)(2)(i) published elsewhere in Because of access restrictions, visitors § 1.168(b)–1 Definitions. this issue of the Federal Register.) will not be admitted beyond the (The text of this proposed section is * * * * * immediate entrance area more than 30 the same as the text of § 1.168(b)–1T(a) (i) and (j) (The text of the proposed minutes before the hearing starts. For and (b)(1) published elsewhere in this entries for § 1.168(i)–1(i) and (j) is the information about having your name issue of the Federal Register.) same as the entries for § 1.168(i)–1T(i) placed on the building access list to Par. 3. Section 1.168(d)–1 is amended and (j) published elsewhere in this issue attend the hearing, see the FOR FURTHER to read as follows: of the Federal Register.) INFORMATION CONTACT section of this 1. Revising paragraph (b)(3)(i) and (ii). * * * * * preamble. 2. Adding paragraph (d)(3). (l) (The text of the proposed entry for The rules of 26 CFR 601.601(a)(3) The revision and addition read as § 1.168(i)–1(l) is the same as the entry apply to the hearing. Persons who wish follows: for § 1.168(i)–1T(l) published elsewhere to present oral comments at the hearing in this issue of the Federal Register.) must submit an outline of the topics to § 1.168(d)–1 Applicable conventions—half- year and mid-quarter conventions. Par. 5. Section 1.168(i)–1 is amended be discussed and the time to be devoted by revising paragraphs (c)(2)(ii)(E), to each topic (signed original and eight * * * * * (d)(2), (e)(3)(i), (e)(3)(iii)(B)(4), (e)(3)(vi), (8) copies) by May 13, 2004. A period (b) * * * (f)(1), (f)(2)(i), (i), (j), and (l) to read as of 10 minutes will be allotted to each (3) * * * follows: person for making comments. An (i) and (ii) (The text of the proposed agenda showing the scheduling of the amendment to § 1.168(d)–1(b)(3)(i) and § 1.168(i)–1 General asset accounts. speakers will be prepared after the (ii) is the same as the text of § 1.168(d)– * * * * * deadline for receiving outlines has 1T(b)(3)(i) and (ii) published elsewhere (c) * * * passed. Copies of the agenda will be in this issue of the Federal Register.) (2) * * * available free of charge at the hearing. * * * * * (ii) * * *
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(E) (The text of the proposed published elsewhere in this issue of the rulemaking would change the time the amendment to § 1.168(i)–1(c)(2)(ii)(E) is Federal Register.) U.S. 1 Bridge must open from May 1 the same as the text of § 1.168(i)– Par. 8. Section 1.168(k)–1 is added to through October 31, from a quarter past 1T(c)(2)(ii)(E) published elsewhere in read as follows: the hour to twenty minutes before the this issue of the Federal Register.) hour and also removes obsolete § 1.168(k)–1 Additional first year language from the regulations. This * * * * * depreciation deduction. (d) * * * action is expected to improve transits (a) through (f)(5)(ii)(F)(1) [Reserved]. (2) (The text of the proposed through the bridges across the Mystic For further guidance, see § 1.168(k)– amendment to § 1.168(i)–1(d)(2) is the River at Mystic, Connecticut. 1T(a) through (f)(5)(ii)(F)(1). same as the text of § 1.168(i)–1T(d)(2) (2) (The text of the proposed DATES: Comments must reach the Coast published elsewhere in this issue of the amendment to § 1.168(k)–1(f)(5)(ii)(F)(2) Guard on or before April 30, 2004. Federal Register.) is the same as the text of § 1.168(k)– ADDRESSES: You may mail comments to * * * * * 1T(f)(5)(ii)(F)(2) published elsewhere in Commander (obr), First Coast Guard (e) * * * this issue of the Federal Register.) District Bridge Branch, One South (3) * * * (f)(5)(ii)(G) through (f)(5)(iv) Street, Battery Park Building, New York, (i) (The text of the proposed [Reserved]. For further guidance, see New York, 10004, or deliver them to the amendment to § 1.168(i)–1(e)(3)(i) is the § 1.168(k)–1T(f)(5)(ii)(G) through same address between 7 a.m. and 3 same as the text of § 1.168(i)–1T(e)(3)(i) (f)(5)(iv). p.m., Monday through Friday, except, published elsewhere in this issue of the (v) (The text of the proposed Federal holidays. The telephone number Federal Register.) amendment to § 1.168(k)–1(f)(5)(v) is the is (212) 668–7165. The First Coast * * * * * same as the text of § 1.168(k)–1T(f)(5)(v) Guard District, Bridge Branch, (iii) * * * published elsewhere in this issue of the maintains the public docket for this (B) * * * Federal Register.) rulemaking. Comments and material (4) (The text of the proposed (f)(6) through (f)(9) [Reserved]. For received from the public, as well as amendment to § 1.168(i)– further guidance, see § 1.168(k)–1T (f)(6) documents indicated in this preamble as 1(e)(3)(iii)(B)(4) is the same as the text through (f)(9). being available in the docket, will of § 1.168(i)–1T(e)(3)(iii)(B)(4) published (g) Effective date. (1) (The text of the become part of this docket and will be elsewhere in this issue of the Federal proposed amendment to § 1.168(k)– available for inspection or copying at Register.) 1(g)(1) is the same as § 1.168(g)– the First Coast Guard District, Bridge * * * * * 1T(g)(1)(i) published elsewhere in this Branch, 7 a.m. to 3 p.m., Monday (e)(3)(vi) (The text of the proposed issue of the Federal Register.) through Friday, except Federal holidays. amendment to § 1.168(i)–1(e)(3)(vi) is (2) [Reserved]. For further guidance, FOR FURTHER INFORMATION CONTACT: John the same as the text of § 1.168(i)– see § 1.168(k)–1T(g)(2). W. McDonald, Project Officer, First 1T(e)(3)(vi) published elsewhere in this (3)(i) and (ii) (The text of the proposed Coast Guard District, (617) 223–8364. issue of the Federal Register.) amendment to § 1.168(k)–1(g)(3)(i) and * * * * * (ii) is the same as the text of § 1.168(k)– SUPPLEMENTARY INFORMATION: (f)(1) and (2) (The text of the proposed 1T(g)(3)(i) and (ii) published elsewhere Request for Comments amendment to § 1.168(i)–1(f)(1) and (2) in this issue of the Federal Register.) is the same as the text of § 1.168(i)– (g)(4) [Reserved]. For further We encourage you to participate in 1T(f)(1) and (2) published elsewhere in guidance, see § 1.168(k)–1T(g)(4). this rulemaking by submitting this issue of the Federal Register.) comments or related material. If you do Mark E. Matthews, so, please include your name and * * * * * Deputy Commissioner for Services and address, identify the docket number for (i) and (j) (The text of the proposed Enforcement. this rulemaking (CGD01–03–115), amendment to § 1.168(i)–1(i) and (j) is [FR Doc. 04–3993 Filed 2–27–04; 8:45 am] indicate the specific section of this the same as the text of § 1.168(i)–1T(i) BILLING CODE 4830–01–P document to which each comment and (j) published elsewhere in this issue applies, and give the reason for each of the Federal Register.) comment. Please submit all comments * * * * * DEPARTMENT OF HOMELAND and related material in an unbound (l) (The text of the proposed SECURITY format, no larger than 81⁄2 by 11 inches, amendment to § 1.168(i)–1(l) is the same suitable for copying. If you would like as the text of § 1.168(i)–1T(l)(1) through Coast Guard to know if they reached us, please (l)(3)(i) published elsewhere in this enclose a stamped, self-addressed issue of the Federal Register.) 33 CFR Part 117 postcard or envelope. We will consider Par. 6. Section 1.168(i)–5 is added to [CGD01–03–115] all comments and material received read as follows: during the comment period. We may RIN 1625–AA09 § 1.168(i)–5 Table of contents. change this proposed rule in view of them. (The text of this proposed section is Drawbridge Operation Regulations; the same as the text of § 1.168(i)–5T Mystic River, CT Public Meeting published elsewhere in this issue of the Federal Register.) AGENCY: Coast Guard, DHS. We do not now plan to hold a public Par. 7. Section 1.168(i)–6 is added to ACTION: Notice of proposed rulemaking. meeting. But you may submit a request read as follows: for a meeting by writing to the First SUMMARY: The Coast Guard proposes to Coast Guard District, Bridge Branch, at § 1.168(i)–6 Like-kind exchanges and change the drawbridge operating the address under ADDRESSES explaining involuntary conversions. regulations for the U.S. 1 Bridge, mile why one would be beneficial. If we (The text of this proposed section is 2.8, across the Mystic River at Mystic, determine that one would aid this the same as the text of § 1.168(i)–6T Connecticut. This notice of proposed rulemaking, we will hold one at a time
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and place announced by a later notice each hour as a result of the rail traffic only twenty minutes before the hour in the Federal Register. schedule. starting from 7:40 a.m. to 6:40 p.m. from Shifting the U.S. 1 Bridge opening May 1, through October 31. Background and Purpose period to twenty minutes before each Additionally, this proposed rule The U.S. 1 Bridge has a vertical hour instead of at a quarter past each would eliminate portions of the current clearance of 4 feet at mean high water hour was expected to permit marine text of 33 CFR 117.211(a)(3) since the and 7 feet at mean low water in the traffic to transit through both bridges same requirement is stated in the closed position. The existing with fewer delays resulting from rail regulations at 33 CFR 117.31. regulations, listed at 33 CFR 117.211(b), traffic. The period from November 1 through require the bridge to open on signal After the 2003 test deviation April 30, (b)(2), will not be changed, with a maximum delay of up to twenty concluded we reviewed the vehicular and will continue to require at least a minutes; except that: from May 1 traffic counts, bridge opening logs, and six-hour advance notice from 8 p.m. through October 31, from 7:15 a.m. to all the on-scene observations taken by through 4 a.m. for bridge openings 7:15 p.m., the draw need only open Coast Guard personnel. We determined, during the winter months. after review of all the above data, that once an hour, at quarter past the hour. Regulatory Evaluation From November 1 through April 30, the noontime bridge openings did not from 8 p.m. to 4 a.m., the draw must adversely affect vehicular traffic. This proposed rule is not a open on signal after a six-hour advance However, shifting the U.S. 1 Bridge ‘‘significant regulatory action’’ under notice is given. opening periods from a quarter past section 3(f) of Executive Order 12866, The Coast Guard received a complaint each hour to twenty minutes before each Regulatory Planning and Review, and in the spring of 2003, from a mariner hour did produce very satisfactory does not require an assessment of stating that the Mystic River U.S. 1 results by permitting marine traffic to potential costs and benefits under Bridge was not opening as required by transit through the two bridges with 6(a)(3) of that Order. The Office of the existing operation regulations at the fewer delays. As a result of the above Management and Budget has not designated 12:15 p.m. opening period. information the Coast Guard determined reviewed it under that Order. It is not The Coast Guard convened a meeting that the U.S. 1 Bridge opening schedule ‘‘significant’’ under the regulatory should be changed to require the U.S. 1 attended by the bridge owner, policies and procedures of the Bridge to open on signal at twenty Connecticut Department of Department of Homeland Security. minutes before each hour, instead of a Transportation, the Mystic Connecticut We expect the economic impact of quarter past each hour during the Chamber of Commerce, and several this proposed rule to be so minimal that summer months. commercial marine operators. It was a full Regulatory Evaluation, under the In addition, this proposed rule would regulatory policies and procedures of discovered at that meeting that the also eliminate the provision in the bridge owner was not opening the U.S. DHS, is unnecessary. existing regulations at § 117.211(b) that This conclusion is based on the fact 1 Bridge at 12:15 p.m. because they permits openings at the U.S. 1 Bridge to that the U.S. 1 Bridge will continue to believed that the operation regulations be delayed up to 20 minutes after a open for vessel traffic hourly at twenty had been changed in 1992; however, the request is given. There is no present minutes before the hour instead of Coast Guard only authorized a 90-day justification to delay marine traffic for quarter past each hour. test deviation in 1992, to help determine up to twenty minutes. Also, the if the elimination of the 12:15 p.m. provision in the existing regulations at Small Entities opening was a reasonable proposal. 33 CFR 117.211(a)(3), that requires the Under the Regulatory Flexibility Act The Mystic Connecticut Chamber of draw to open immediately for public (5 U.S.C. 601–612), we considered Commerce told the Coast Guard at the vessels of the United States, state and whether this proposed rule would have 2003 meeting, that they believed that local vessels used for public safety, and a significant economic impact on a opening the U.S. 1 Bridge during the vessels in emergency situations, will be substantial number of small entities. noontime period each day would cause eliminated from the regulations because The term ‘‘small entities’’ comprises severe vehicular traffic delays in it is now listed at 33 CFR 117.31, small businesses, not-for-profit downtown Mystic. Subpart (A), General Requirements. organizations that are independently The Coast Guard decided to conduct However, the provision that allows owned and operated and are not another temporary deviation for 90 days commercial vessels to transit dominant in their fields, and to determine if opening the U.S. 1 immediately at any time and the governmental jurisdictions with Bridge during the noontime period provision that allows bridge openings to populations of less than 50,000. would adversely affect vehicular traffic. be delayed up to eight minutes for the The Coast Guard certifies under That 90-day temporary deviation, passage of rail traffic, shall remain in section 5 U.S.C. 605(b), that this published at (68 FR 41716), was in effect. proposed rule would not have a effect from July 18, 2003 through significant economic impact on a October 15, 2003. Discussion of Proposal substantial number of small entities. In Addition, the Mystic Connecticut This proposed change would change This conclusion is based on the fact Chamber of Commerce, Marine Affairs the current operation schedule of the that the U.S. 1 Bridge will continue to Committee requested that the U.S. 1 U.S. 1 Bridge at Mystic, Connecticut. open hourly for vessel traffic at twenty Bridge opening times during the 2003 Currently, the U.S. 1 Bridge is required minutes before each hour instead of temporary test deviation be moved from to open on signal with a maximum quarter past each hour. a quarter past each hour to twenty delay of twenty minutes, with the If you think that your business, minutes before each hour to help marine exception of opening at a quarter past organization, or governmental traffic transit better through the U.S. 1 the hour from 7:15 a.m. to 7:15 p.m. jurisdiction qualifies as a small entity Bridge and the downstream railroad from May 1 through October 31. These and that this rule would have a bridge since the downstream railroad proposed changes would require the significant economic impact on it, bridge is more frequently closed to bridge to open on signal, without delay, please submit a comment (see marine traffic during the first half of with the exception of opening on signal ADDRESSES) explaining why you think it
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qualifies and how and to what degree a substantial direct effect on one or (3) Commercial vessels shall be this rule would economically affect it. more Indian tribes, on the relationship passed immediately at any time; between the Federal Government and however, the opening may be delayed Collection of Information Indian tribes, or on the distribution of up to eight minutes to allow trains, This proposed rule would call for no power and responsibilities between the which have entered the drawbridge new collection of information under the Federal Government and Indian tribes. block and are scheduled to cross the Paperwork Reduction Act of 1995 (44 bridge without stopping, to clear the Energy Effects U.S.C. 3501–3520). block. We have analyzed this proposed rule Federalism * * * * * under Executive Order 13211, Actions (b) The draw of the U.S. 1 Bridge, A rule has implications for federalism Concerning Regulations That mile 2.8, at Mystic, shall open on signal under Executive Order 13132, Significantly Affect Energy Supply, except: Federalism, if it has a substantial direct Distribution, or Use. We have (1) From May 1 through October 31, effect on State or local governments and determined that it is not a ‘‘significant from 7:40 a.m. to 6:40 p.m., the draw would either preempt State law or energy action’’ under that order because need only open hourly at twenty impose a substantial direct cost of it is not a ‘‘significant regulatory action’’ minutes before the hour. compliance on them. We have analyzed under Executive Order 12866 and is not * * * * * this proposed rule under that Order and likely to have a significant adverse effect have determined that it does not have on the supply, distribution, or use of Dated: February 17, 2004. implications for federalism. energy. It has not been designated by the John L. Grenier, Captain, U.S. Coast Guard, Acting Unfunded Mandates Reform Act Administrator of the Office of Information and Regulatory Affairs as a Commander, First Coast Guard District. The Unfunded Mandates Reform Act significant energy action. Therefore, it [FR Doc. 04–4489 Filed 2–27–04; 8:45 am] of 1995 (2 U.S.C. 1531–1538) requires does not require a Statement of Energy BILLING CODE 4910–15–P Federal agencies to assess the effects of Effects under Executive Order 13211. their discretionary regulatory actions. In particular, the Act addresses actions Environment ENVIRONMENTAL PROTECTION that may result in the expenditure by a We have analyzed this proposed rule AGENCY State, local, or tribal government, in the under Commandant Instruction aggregate, or by the private sector of M16475.1D, which guides the Coast 40 CFR Part 62 $100,000,000 or more in any one year. Guard in complying with the National [SC–200409(b); FRL–7628–6] Though this proposed rule would not Environmental Policy Act of 1969 result in such an expenditure, we do (NEPA) (42 U.S.C. 4321–4370f), and Approval and Promulgation of State discuss the effects of this rule elsewhere have concluded that there are no factors Plan for Designated Facilities and in this preamble. in this case that would limit the use of Pollutants: South Carolina Taking of Private Property a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this AGENCY: Environmental Protection This proposed rule would not effect a rule is categorically excluded, under Agency (EPA). taking of private property or otherwise figure 2–1, paragraph (32)(e), of the ACTION: Proposed rule. have taking implications under E.O. Instruction, from further environment 12630, Governmental Actions and SUMMARY: EPA proposes to approve the documentation because it has been section 111(d)/129 State Plan submitted Interference with Constitutionally determined that the promulgation of Protected Property Rights. by the South Carolina Department of operating regulations or procedures for Health and Environmental Control (SC Civil Justice Reform drawbridges are categorically excluded. DHEC) for the State of South Carolina This proposed rule meets applicable List of Subjects in 33 CFR Part 117 on April 12, 2002, for implementing and enforcing the Emissions Guidelines standards in sections 3(a) and 3(b)(2) of Bridges. Executive Order 12988, Civil Justice applicable to existing Commercial and Reform, to minimize litigation, Regulations Industrial Solid Waste Incinerators. The Plan was submitted by SC DHEC to eliminate ambiguity, and reduce For the reasons set out in the satisfy Federal Clean Air Act burden. preamble, the Coast Guard proposes to requirements. In the Final Rules Section amend 33 CFR part 117 as follows: Protection of Children of this Federal Register, the EPA is We have analyzed this proposed rule PART 117—DRAWBRIDGE approving the State’s SIP revision as a under Executive Order 13045, OPERATION REGULATIONS direct final rule without prior proposal Protection of Children from because the Agency views this as a Environmental Health Risks and Safety 1. The authority citation for part 117 noncontroversial submittal and Risks. This rule is not an economically continues to read as follows: anticipates no adverse comments. A significant rule and would not create an Authority: 33 U.S.C. 499; Department of detailed rationale for the approval is set environmental risk to health or risk to Homeland Security Delegation No. 0170.1; 33 forth in the direct final rule. If no safety that may disproportionately affect CFR 1.05–1(g); section 117.255 also issued significant, material, and adverse children. under the authority of Pub. L. 102–587, 106 comments are received in response to Stat. 5039. this rule, no further activity is Indian Tribal Governments 2. In § 117.211, revise paragraphs contemplated. If EPA receives adverse This proposed rule does not have (a)(3), (b) introductory text and (b)(1) to comments, the direct final rule will be tribal implications under Executive read as follows: withdrawn and all public comments Order 13175, Consultation and received will be addressed in a Coordination with Indian Tribal § 117.211 Mystic River. subsequent final rule based on this rule. Governments, because it would not have (a) * * * The EPA will not institute a second
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comment period on this document. Any also request comments on ways to make business entities. The purpose of the parties interested in commenting on this these regulations easier to read and review is to determine whether such document should do so at this time. understand. rules should be continued without DATES: Written comments must be DATES: Comments must be received by change, amended, or rescinded, received on or before March 31, 2004. June 1, 2004. consistent with the objectives of applicable statutes, to minimize any ADDRESSES: Comments may be ADDRESSES: Address written comments significant economic impact of the rules submitted by mail to: Joydeb Majumder, to the Dockets Management System, on a substantial number of such small Air Toxics Assessment and U.S. Department of Transportation, entities. Implementation Section, Air Toxics and Room PL–401, 400 Seventh Street, SW., Monitoring Branch, Air, Pesticides and Washington, DC 20590–0001. Identify B. Review Schedule Toxics Management Division, U.S. the docket number RSPA–04–17167 at The Department of Transportation Environmental Protection Agency, the beginning of your comments and (DOT) published its Semiannual Region 4, 61 Forsyth Street, SW, submit two copies. If you want to Regulatory Agenda on December 9, Atlanta, Georgia 30303–8960. receive confirmation of receipt of your 2002, listing in Appendix D (67 FR Comments may also be submitted comments, include a self-addressed, 74799) those regulations that each electronically, or through hand stamped postcard. You can also submit operating administration will review delivery/courier. Please follow the comments by e-mail by accessing the under section 610 during the next 12 detailed instructions described in the Dockets Management System on the months. Appendix D also contains direct final rule, SUPPLEMENTARY Internet at http://dms.dot.gov. or by fax DOT’s 10-year review plan for all of its INFORMATION (sections IV.B.1. through to (202) 366–3753. existing regulations. 3.) which is published in the Rules The Dockets Management System is The Research and Special Programs Section of this Federal Register. located on the Plaza Level of the Nassif Administration (RSPA, we) has divided FOR FURTHER INFORMATION CONTACT: Building at the Department of its Hazardous Materials Regulations Joydeb Majumder, at (404) 562–9121 or Transportation at the above address. (HMR; 49 CFR Parts 171–180) into 10 via electronic mail at You can review public dockets there groups by subject area. Each group will [email protected]. between the hours of 9 a.m. and 5 p.m., be reviewed once every 10 years, Monday through Friday, except Federal undergoing a two-stage process—an SUPPLEMENTARY INFORMATION: For holidays. In addition, you can review Analysis Year and Section 610 Review additional information see the direct comments by accessing the Dockets Year. For purposes of the review final rule which is published in the Management System at http:// announced in this notice, the Analysis Rules Section of this Federal Register. dms.dot.gov. year began in December 2002, Dated: February 17, 2004. Anyone is able to search the coincident with the Fall 2002 J. I. Palmer, Jr., electronic form of all comments publication of the Semiannual Regional Administrator, Region 4. received into any of our dockets by the Regulatory Agenda, and will conclude [FR Doc. 04–4462 Filed 2–27–04; 8:45 am] name of the individual submitting the in the fall of 2003. BILLING CODE 6560–50–P comment (or signing the comment, if During the Analysis Year, we will submitted on behalf of an association, analyze each of the rules in a given business, labor union, etc.). You may year’s group to determine whether any DEPARTMENT OF TRANSPORTATION review DOT’’s complete Privacy Act rule has a significant impact on a Statement in the Federal Register substantial number of small entities Research and Special Programs published on April 11, 2000 (65 FR and, thus, requires review in accordance Administration 19477) or you may visit http:// with section 610 of the Regulatory dms.dot.gov. Flexibility Act. In each fall’s Regulatory 49 CFR Parts 172, 173, 174, 175, 176, FOR FURTHER INFORMATION CONTACT: Agenda, we will publish the results of 177, and 178 Susan Gorsky, Office of Hazardous the analyses we completed during the Materials Standards, Research and previous year. For rules that have a [Docket No. RSPA–04–17167 (Notice No. negative finding, we will provide a short 04–02)] Special Programs Administration, U.S. Department of Transportation, explanation. For parts, subparts, or Regulatory Flexibility Act Section 610 telephone (202) 366–8553; or Donna other discrete sections of rules that do and Plain Language Reviews O’Berry, Office of Chief Counsel, have a significant impact on a Research and Special Programs substantial number of small entities, we AGENCY: Research and Special Programs Administration, U.S. Department of will announce that we will be Administration (RSPA), DOT. Transportation, telephone (202) 366– conducting a formal section 610 review ACTION: Notice of regulatory review; 4400. during the following 12 months. request for comments. The section 610 review will SUPPLEMENTARY INFORMATION: determine whether a specific rule SUMMARY: RSPA requests comments on I. Section 610 of the Regulatory should be revised or revoked to lessen the economic impact of its regulations Flexibility Act its impact on small entities. We will on small entities. As required by the consider: (1) The continued need for the Regulatory Flexibility Act and as A. Background and Purpose rule; (2) the nature of complaints or published in DOT’s Semi-Annual Section 610 of the Regulatory comments received from the public; (3) Regulatory Agenda, we are analyzing Flexibility Act of 1980 (Pub. L. 96–354), the complexity of the rule; (4) the extent the rules applicable to the as amended by the Small Business to which the rule overlaps, duplicates, transportation of explosives and of Regulatory Enforcement Fairness Act of or conflicts with other federal rules or hazardous materials in cylinders to 1996 (Pub. L. 104–121), requires with state or local government rules; identify requirements that may have a agencies to conduct periodic reviews of and (5) the length of time since the rule significant economic impact on a rules that have a significant economic has been evaluated or the degree to substantial number of small entities. We impact on a substantial number of small which technology, economic conditions,
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or other factors have changed in the area Review Year, we will publish the results The following table shows the 10-year affected by the rule. At the end of the of our review. analysis and review schedule:
RSPA SECTION 610 REVIEW PLAN—1999–2009
Analysis Review Title Regulation year year
Incident reports ...... §§ 171.15 and 171.16 ...... 1988 N/A Hazmat safety procedures ...... Parts 106 and 107 ...... 1999 N/A General Information, Regulations, and Definitions ...... Part 171. Carriage by Rail and Highway ...... Parts 174 and 177 ...... 2000 N/A Carriage by Vessel ...... Part 176 ...... 2001 N/A Radioactive Materials ...... Parts 172, 173, 174, 175, 176, 177, 178 ... 2002 2003 Explosives ...... Parts 172, 173, 174, 176, 177 ...... 2003 2004 Cylinders ...... Parts 172, 173, 174, 176, 177, 178, 180. Shippers—General Requirements for Shipments and Packagings Part 173 ...... 2004 2005 Specifications for Non-bulk Packagings ...... Part 178 ...... 2005 2006 Training and planning grants ...... Part 110. Specifications for Bulk Packagings ...... Parts 178, 179, 180 ...... 2006 2007 Hazardous Materials Table, Special Provisions, Hazardous Mate- Part 172 ...... 2007 2008 rials Communications, Emergency Response Information, and Training Requirements. Carriage by Aircraft ...... Part 175.
C. Regulations Under Analysis preliminary assessment of the rules in of hazardous materials in cylinders. The 49 CFR Parts 172, 173, 174, 176, 177, review will include the following parts During Year 6 (2003–2004), the 178, and 180 applicable to explosives and subparts applicable to the Analysis Year, we will conduct a transportation and to the transportation transportation of explosives:
Subpart Title
Part 172
Subpart B ...... Table of Hazardous Materials and Special Provisions. Subpart C ...... Shipping Papers. Subpart D ...... Marking. Subpart E ...... Labeling. Subpart F ...... Placarding.
Part 173
Subpart C ...... Definitions, Classification, and Packaging for Explosives.
Part 174
Subpart E ...... Class 1 (Explosive) Materials.
Part 176
Subpart G ...... Detailed Requirements for Class 1 (Explosive) Materials.
Part 177
Subpart B: Loading and Unloading: § 177.835 ...... Class 1 (explosive) Materials.
The review will include the following transportation of hazardous materials in parts and subparts applicable to the cylinders:
Subpart Title
Part 172
Subpart B ...... Table of Hazardous Materials and Special Provisions. Subpart C ...... Shipping Papers. Subpart D ...... Marking. Subpart E ...... Labeling. Subpart F ...... Placarding.
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Subpart Title
Part 173
Subpart B: § 173.40 ...... General packaging requirements for toxic materials packaged in cylinders. Subpart E ...... Non-bulk Packaging for Hazardous Materials Other than Class 1 and Class 7. Subpart G ...... Gases; Preparation and Packaging.
Part 174
Subpart F ...... Detailed Requirements for Class 2 (Gases) Materials.
Part 176
Subpart H ...... Detailed Requirements for Class 2 (Compressed Gas) Materials.
Part 177
Subpart B: Loading and Unloading: § 177.840 ...... Class 2 (gases) Materials § 177.841 ...... Division 6.1 (poisonous) and Division 2.3 (poisonous gas) materials.
Part 178
Subpart C ...... Specifications for Cylinders.
Part 180
Subpart C ...... Qualification, Maintenance, and Use of Cylinders.
We are seeking comments on whether them easily. Examples of plain language language reviews of the HMR over a 10- any requirements for explosives techniques include: year period on a schedule consistent transportation or the transportation of (1) Undesignated center headings to with the section 610 review schedule. hazardous materials in cylinders in cluster related sections within subparts. Thus, our review of requirements in Parts 172, 173, 174, 176, 177, and 178 (2) Short words, sentences, Parts 172, 173, 174, 176, 177, and 178 have a significant impact on a paragraphs, and sections to speed up applicable to the transportation of substantial number of small entities. reading and enhance understanding. explosives and of hazardous materials ‘‘Small entities’’ include small (3) Sections as questions and answers to provide focus. in cylinders will also include a plain businesses, not-for-profit organizations language review to determine if the that are independently owned and (4) Personal pronouns to reduce regulations can be reorganized and/or operated and are not dominant in their passive voice and draw readers into the rewritten to make them easier to read, fields, and governmental jurisdictions writing. with populations under 50,000. If your (5) Tables to display complex understand, and use. We encourage business or organization is a small information in a simple, easy-to-read interested persons to submit draft entity and if any of the transportation format. regulatory language that clearly and requirements applicable to the For an example of a rule drafted in simply communicates regulatory transportation of explosives or cylinders plain language, you can refer to RSPA’s requirements, and other in Parts 172, 173, 174, 176, 177, and 178 final rule entitled ‘‘Revised and recommendations, such as putting has a significant economic impact on Clarified Hazardous Materials Safety information in tables or consolidating your business or organization, please Rulemaking and Program Procedures,’’ regulatory requirements, that may make submit a comment explaining how and which was published June 25, 2002 (67 the regulations easier to use. FR 42948). This final rule revised and to what degree these rules affect you, clarified the hazardous materials safety Issued in Washington, DC on February 23, the extent of the economic impact on rulemaking and program procedures by 2004 under authority delegated in 49 CFR your business or organization, and why rewriting 49 CFR Part 106 and Subpart Part 106. you believe the economic impact is A of Part 107 in plain language and Robert A. McGuire, significant. creating a new part 105 that contains Associate Administrator for Hazardous II. Plain Language definitions and general procedures. Materials Safety Research and Special A. Background and Purpose B. Review Schedule Programs Administration. [FR Doc. 04–4401 Filed 2–27–04; 8:45 am] Plain language helps readers find In conjunction with our section 610 requirements quickly and understand reviews, we will be performing plain BILLING CODE 4910–60–P
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Notices Federal Register Vol. 69, No. 40
Monday, March 1, 2004
This section of the FEDERAL REGISTER the collection of information unless it received after this deadline will not be contains documents other than rules or displays a currently valid OMB control considered for funding. proposed rules that are applicable to the number. FOR FURTHER INFORMATION CONTACT: Greg public. Notices of hearings and investigations, The following notice was committee meetings, agency decisions and Crosby; National Program Leader; inadvertently published in the Federal Cooperative State Research, Education, rulings, delegations of authority, filing of Register on February 24, 2004 (Volume petitions and applications and agency and Extension Service; U.S. Department statements of organization and functions are 69, Number 36) pg. 8369–8376: of Agriculture; STOP 2210; 1400 examples of documents appearing in this Farm Service Agency Independence Avenue, SW.; section. Title: Request for Electronic Loan Washington, DC 20250–2210; Deficiency Payment Services. Telephone: (202) 401–6050; Fax: (202) OMB Control Number: 0560–0220. 401–1706; E-mail: DEPARTMENT OF AGRICULTURE [email protected]. Ruth Brown, Submission for OMB Review; Departmental Information Collection Correction Comment Request; Correction Clearance Officer. 1. In the Federal Register of December February 25, 2004. [FR Doc. 04–4455 Filed 2–27–04; 8:45 am] 1, 2003, in FR Doc. 03–29761, on page The Department of Agriculture has BILLING CODE 3410–01–M 67135, in the third column, correct the submitted the following information paragraph entitled ‘‘New Position’’ to collection requirement(s) to OMB for read: review and clearance under the DEPARTMENT OF AGRICULTURE 1. New Position Paperwork Reduction Act of 1995, Cooperative State Research, Public Law 104–13. Comments This is an application from a state Education, and Extension Service regarding (a) whether the collection of where a new Geospatial Extension information is necessary for the proper Decision Support, Education, and Specialist position has been created (a performance of the functions of the Workforce Development Through state other than the ten listed in the agency, including whether the Geospatial Extension Specialists Program Description portion of this information will have practical utility; Program: Amendment to the Fiscal notice). New Position applications may (b) the accuracy of the agency’s estimate Year 2004 Request for Applications request a maximum of $100,000 per year of burden including the validity of the and Request for Input for up to three (3) years. methodology and assumptions used; (c) 2. On page 67136, in the second ways to enhance the quality, utility and AGENCY: Cooperative State Research, column, correct the first paragraph to clarity of the information to be Education, and Extension Service, read: collected; (d) ways to minimize the USDA. GES programs have been established burden of the collection of information ACTION: Notice of fiscal year 2004 in ten states over the last three years. on those who are to respond, including request for applications; and request for These programs, in Alabama, Arizona, through the use of appropriate input; correction and extension of Connecticut, Mississippi, Nebraska, automated, electronic, mechanical, or deadline. New Hampshire, North Dakota, other technological collection SUMMARY: This notice corrects the fiscal Oklahoma, Utah and Virginia, are techniques or other forms of information partnerships between land-grant technology should be addressed to: Desk year (FY) 2004 Request for Applications and Request for Input for the Decision institutions and the NASA SGC within Officer for Agriculture, Office of the states. Geospatial Extension Information and Regulatory Affairs, Support, Education, and Workforce Development through Geospatial Specialist positions are located within Office of Management and Budget the regular Cooperative Extension (OMB), Pamela_Beverly_ Extension Specialists (GES) Program _ published at 68 FR 67133, December 1, Service (CES) structure in each OIRA [email protected] or participating state, and provide fax (202) 395–5806 and to Departmental 2003. This correction removes Ohio from the list of states that have already technical support to CES agents and Clearance Office, USDA, OCIO, Mail clients (as do other extension Stop 7602, Washington, DC 20250– established GES Programs permitting eligible entities to receive GES Program specialists). They are eligible for tenure 7602. Comments regarding these or other comparable professional information collections are best assured funds to establish new GES positions in Ohio. Furthermore, this notice extends appointment, and are expected to draw of having their full effect if received on existing expertise available through within 30 days of this notification. the deadline for receipt of applications to April 1, 2004. the land-grant system, SGC, and the Copies of the submission(s) may be network of NASA Principal DATES: This amendment extends the obtained by calling (202) 720-6746. Investigators. An agency may not conduct or original deadline for receipt of sponsor a collection of information applications as set forth previously in Done at Washington, DC, this 25th day of unless the collection of information the RFA published on December 1, 2003 February 2004. displays a currently valid OMB control (68 FR 67133). Applications submitted Colien Hefferan, number and the agency informs in response to the FY 2004 RFA for the Administrator, Cooperative State Research, potential persons who are to respond to GES Program must be received by close Education, and Extension Service. the collection of information that such of business on April 1, 2004 (5 p.m. [FR Doc. 04–4594 Filed 2–27–04; 8:45 am] persons are not required to respond to eastern standard time). Applications BILLING CODE 3410–22–P
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DEPARTMENT OF AGRICULTURE require that State agencies report on the Dated: February 3, 2004. coupon inventories of coupon issuers, Allen Garr, Food and Nutrition Service bulk storage points, and claims Acting Forest Supervisor. collection points. The reporting is done [FR Doc. 04–4446 Filed 2–27–04; 8:45 am] Agency Information Collection on Form FNS–250, Food Coupon BILLING CODE 3410–11–M Activities: Proposed Collection; Accountability Report. These reports Comment Request; FNS–250, Food must be submitted to the Food and Coupon Accountability Report Nutrition Service monthly. State DEPARTMENT OF AGRICULTURE AGENCY: Food and Nutrition Service, agencies must review the reports for Forest Service USDA. accuracy, completeness and ACTION: Notice. reasonableness. Supporting documentation must be included when Colville National Forest, WA; Growden Dam and Sherman Creek Restoration SUMMARY: In accordance with the appropriate and the reports must reach Paperwork Reduction Act of 1995, this FNS no later than 90 days following the AGENCY: Forest Service, USDA. notice invites the general public and end of each report month. The FNS–250 ACTION: Notice of intent to prepare an other public agencies to comment on report reflects beginning inventories, environmental impact statement. proposed information collection end-of-month inventories, receipt of contained in form FNS–250, Food coupons, transfers of coupons, coupons SUMMARY: The Forest Service, USDA, Coupon Accountability Report. returned to inventory, and credits. Once will prepare an environmental impact DATES: Written comments must be all of the States become implemented in statement (EIS) on a proposal to remove submitted on or before April 30, 2004. the EBT Program and coupons are Growden Dam and improve trout habitat on approximately 3 miles of Sherman ADDRESSES: Send comments and phased out, this form will become Creek. Growden Dam was built in 1937 requests for copies of this information obsolete. by the Civilian Conservation Corp as a collection to: Lizbeth Silbermann, Affected Public: State and local recreational pond. It serves no Branch Chief, Electronic Benefit government employees or contractors. irrigation, hydropower, or flood control Transfer Branch, Benefit Redemption Estimated Number of Respondents: purpose. The pond has filled in with Division, Food and Nutrition Service, 246. sediment and poses a safety risk if it U.S. Department of Agriculture, 3101 Estimated Number of Responses per washes out. The Proposed Action will Park Center Drive, Alexandria, VA respondent: 12. be in compliance with the 1988 Colville 22302. National Forest Land and Resource Comments are invited on: (a) Whether Estimated Time per Response: 3 Management Plan (Forest Plan) as the proposed collection of information hours. amended, which provides the overall is necessary for the proper performance Estimated Total Annual Burden: guidance for management of this area. of the functions of the agency, including 8,856 hours annually. The Proposed Action is within the whether the information will have Dated: February 18, 2004. Sherman Creek drainage on the Three practical utility; (b) the accuracy of the Roberto Salazar, Rivers Ranger District. The project area agency’s estimate of the burden of the Administrator. would be located from 12 to 16 miles proposed collection of information, west of Kettle Falls, Ferry County, including the validity of the [FR Doc. 04–4442 Filed 2–27–04; 8:45 am] Washington along State Highway 20. methodology and assumptions used; (c) BILLING CODE 3410–30–P Project implementation is scheduled for ways to enhance the quality, utility, and fiscal year 2005. The Colville National clarity of the information to be DEPARTMENT OF AGRICULTURE Forest invites written comments and collected; and (d) ways to minimize the suggestions on the scope of the analysis. burden of the collection of information Forest Service The agency will give notice of the full on those who are to respond, including environmental analysis and decision- through the use of appropriate Lost Granite Squirrel, Colville National making process so interested and automated, electronic, mechanical, or Forest, Pend Oreille and Stevens affected people may be able to other technological collection Counties, WA participate and contribute in the final techniques or other forms of information decision. technology. AGENCY: Forest Service, USDA. DATES: Comments concerning the scope All responses to this notice will be ACTION: Cancellation notice. summarized and included in the request of the analysis must be received by March 26, 2004. The draft for OMB approval. All comments will SUMMARY: On February 28, 2002, a environmental impact statement is also become a matter of public record. Notice of Intent (NOI) to prepare an expected August, 2004 and the final FOR FURTHER INFORMATION CONTACT: environmental impact statement for Lost environmental impact statement is Lizbeth Silbermann, (703) 305–2523. Granite Squirrel was published in the expected November 2004. SUPPLEMENTARY INFORMATION: Federal Register (67 FR 9248). Since the Title: Food Coupon Accountability project proposed action has been ADDRESSES: Send written comments and Report. postponed, and funding situations have suggestions concerning this proposal to OMB Number: 0584–0009. changed, the 2002 NOI is hereby Sherri Schwenke, District Ranger, Three Form Number: FNS–250. rescinded. Rivers District, 255 West 11th, Kettle Expiration Date: 08/31/2004. Falls, WA 99141. Comments may be Type of Request: Revision of a FOR FURTHER INFORMATION CONTACT: submitted electronically by sending currently approved collection. Lynn Kaney, District Ranger, or Amy them to comments-pacificnorthwest- Abstract: Section 7(d) of the Food Dillon, Interdisciplinary Team Leader, [email protected]. Comments Stamp Act of 1977, as amended, (7 315 North Warren, Newport, may also be sent by FAX (509–738– U.S.C.2016(d)) and 7 CFR 274.4(b)(1) of Washington 99156 (phone 509–447– 7701). Include your name and mailing the Food Stamp Program regulations 7300). address with your comments so
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documents pertaining to this project Two areas showed up as the main Service has listed these species as may be mailed to you. contributors to high temperatures. These sensitive. One of the main populations FOR FURTHER INFORMATION CONTACT: For are Growden Dam and the lower reach occurs just below the dam in Lane further information, mail of the South Fork of Sherman Creek. Creek. This population does not have correspondence to Sherri Schwenke, Above the influence of the dam, the access to the prime habitat found above District Ranger, Three Rivers District, maximum water temperature was 15.5 the dam. 255 West 11th, Kettle Falls, WA 99141 degrees C in 1999. At the outlet of the This project is designed to maintain (phone 509–738–7700), or to Karen dam the maximum water temperature or restore fully functional and stable Honeycutt, Project Leader, 765 South was 18 degrees C during the same time. riparian and aquatic systems. The Forest Main Street, Colville, WA 99114, (phone South Fork of Sherman Creek adds Plan has goals of high quality aquatic 509–684–7000 or e-mail another 2 degrees C to this, which habitat, water, and riparian resources [email protected]). Information brought the maximum water (Forest Plan Record of Decision Page 4, about the project will be kept up to date temperature to 20 degrees C. and Forest Plan page 4–2). The INFISH on the Colville National Forest Web site Removing the dam would restore Forest Plan Amendment has goals of at http://www.fs.fed.us/r6/colville/. sediment and bed load transport from maintaining or restoring stream channel above Growden to below Growden. The SUPPLEMENTARY INFORMATION: integrity, channel processes, and dam also blocks the bed load transport. sediment regime, and diversity and Purpose and Need for Action This has caused portions of the productivity of native and desired non- downstream channel to degrade and Growden Dam was built in 1937 as a native plant communities (Inland Native detach from the floodplain. The stream recreational pond. By 1953, the pond Fish Strategy Attachment A, pages A–1, is no longer able to store wood in these had filled with sediment. The dam is A–2). areas. The flows are faster through these not used for irrigation, flood control, or areas, causing the debris to be washed Proposed Action hydropower. The Growden Dam and out. Bank erosion is increasing in these Sherman Creek Restoration project is The Growden Dam and Sherman areas because of the lack of woody Creek Restoration project is a proposal proposed to meet specific purposes and debris and floodplain connectivity. to remove the Growden Dam and restore needs. Eroding banks are between 5 to 60 feet approximately 3 miles of fish habitat There is a need to reduce the safety high. Even though there is sediment downstream of the dam. These proposed risk from a dam failure. At the time of coming in from the banks, gravels for actions include: removal of Growden construction, the pond was 20 feet deep spawning are limited. The gravels are Dam; restoring the channel and valley at the dam and approximately 6 acres. being either trapped by the dam or bottom behind the dam to pre-dam In the early 1950’s, the Sherman Creek flushed through because of lack of elevations; removing sediment deposits Highway was constructed. During structure to store the gravels. construction of the highway, the dam There is a need to increase sediment from behind the dam and creating a filled with sediment in three years. This storage downstream of Growden to terrace with part of the sediment and turned the pond into a wetland. The accept new sediment and bedload. In taking the rest to the Lane Creek pit; sediment buried the cleanout structure. 1998, Sherman Creek was surveyed for restoration of Lane Creek pit with The outlet structure is a drop structure. habitat parameters. Large woody debris sediment from behind the dam; The dam has a high risk of failure and and the number of pools were low. This improving fish habitat and sediment would cause severe downstream damage was caused both by a stream cleanout in storage on approximately 3 miles of if it washed out. 1969 and 1970 and by the dam blocking stream below the dam; riparian The Washington Department of bed load transport. The downstream vegetation thinning to get the material Ecology’s Dam Safety Section surveyed channel has downcut and detached needed to the stream restoration. the dam in 1991. Their analysis revealed from the floodplain. The stream is no Possible Alternatives that under extreme flood conditions, the longer able to store wood and sediment dam does not meet current Dam Safety in these areas. The flows are faster Possible alternatives include Section Standards. Should a dam failure through these areas, causing the debris alteration of the dam to allow for flow occur, two permanent residences and to be washed out. Without the debris the over the dam. This may include creating several vacation cabins would be stream is not able to store sediment. The an emergency spillway on one side of inundated. The dam almost washed out stream is also not able to reach the the dam or reducing the height of the in the flood of 1998. This would have larger floodplain that existed before the dam to the level of the current substrate. caused extensive damage to the channel channel downcut. The floodplain is the Lead and Cooperating Agencies and highway. Approximately 8 miles of most desirable place for sediment stream would be affected. There are also deposition. Even with substantial efforts The Ferry Conservation District, the 3 bridges that would probably wash out. to remove the sediment and restore the Washington Department of Ecology, and There is a Washington State Department historic channel, there will be a short the U.S. Department of Transportation of Fish and Wildlife hatchery at the term pulse of sediment delivered to the Federal Highway Administration are mouth of Sherman Creek. A dam breach downstream reaches. The increase in cooperating agencies for this project. would cause significant damage to the flood plain and stream bank roughness Responsible Official hatchery. created by LWD (large woody debris) There is also a need to reduce placement will collect and facilitate Sherri Schwenke, District Ranger, downstream stream temperatures to routing of excess sediment generated by Three Rivers District, 255 West 11th, meet Washington State Water Quality dam decommissioning. Kettle Falls, WA 99141 (phone 509– temperature standards. Currently as the Removal of the dam will restore fish 738–7700). stream flows through the wetland the passage through the Growden Reach. Nature of Decision To Be Made maximum water temperatures exceed The drop structure is a barrier to fish state standards. In 1999, the Washington movement. Redband trout and The responsible official will decide Department of Ecology funded a westslope cutthroat trout populations which, if any, of the alternatives will be temperature study on Sherman Creek. are present in the watershed. The Forest implemented. This entails in what way
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the Growden Dam will be noxious weeds are a problem and that criteria established by WAC 173–201A decommissioned to meet the purpose weed spread should be prevented. In for in water work (e.g., changes in and need. The responsible official will response to this concern, the Colville turbidity from sediment disturbances). also decide what type of restoration will National Forest implemented a policy: Section 404 Permit from the Corps of occur on the lower three miles of ‘‘Noxious Weeds Prevention Engineers under 33 U.S.C. 1344 is habitat. Her decision and rationale for Guidelines’’ in November 1999. Because required since the project includes the decision will be documented in the these guidelines will be incorporated discharge or excavation of dredged or record of decision, which will be subject into all action alternatives, there is not fill material waterward of the ordinary to Forest Service Appeal Regulations (36 expected to be a need to develop high water mark in waters of the United CFR part 215). alternatives that directly respond to this States, including wetlands; and concern. Potential for noxious weed mechanized land clearing in waters of Scoping Process spread will be measured by the acres of the United States, including wetlands. The scoping process will include the bare soil and miles of roaded access Comment Requested following: Identify and clarify issues; created or closed. identify key issues to be analyzed in The Confederated Tribes of the The Forest Service is seeking depth; explore alternatives based on Colville Reservation have reserved information, comments, and assistance themes which will be derived from hunting, fishing, and gathering rights on from other agencies, organizations, issues recognized during scoping the ‘‘North Half Reservation,’’ which Indian Tribes, and individuals who may activities; and identify potential includes the Growden Dam and be interested in or affected by the environmental effects of the Proposed Sherman Creek Restoration project area. Proposed Action. This input will be Action and alternatives. A range of These rights are regarded by tribal used in preparation of the draft EIS. alternatives will be considered, members as cultural, ceremonial, and Your comments are appreciated including a No-Action alternative. spiritual subsistence. The primary throughout the analysis process. concern in the Sherman Creek Comments received in response to Preliminary Issues watershed is the downstream fisheries this notice, including names and The issues related to the Growden as potentially affected by aquatic health. addresses of those who comment, will Dam and Sherman Creek Restoration To date, there have been no public be considered part of the public record project include safety, reducing stream comments regarding Tribal concerns, on this Proposed Action and will be temperatures, restoring bedload other than those already listed above. available for public inspection. transport, cultural resource damage, fish The Growden Dam and Sherman Comments submitted anonymously will passage, noxious weeds, tribal concerns, Creek Restoration project area is an be accepted and considered; however, destruction of wetland and beaver important recreation area on the Three those who submit anonymous habitat, and recreation. Rivers Ranger District. The area has one comments will not have standing to Safety is the largest issue with the developed campground, paved access, appeal the subsequent decision under dam. The risk of dam failure must be two miles of paved hiking trails, and 36 CFR part 215. Additionally, pursuant reduced. The reduction in dam failure two developed trailhead/day use areas. to 7 CFR 1.27(d), any person may risk would be measured by the amount The area is used for berry picking, request the agency to withhold a of dam removed. hunting, dispersed camping, fishing, submission from the public record by Sherman Creek exceeds the state driving for pleasure, and a variety of showing how the Freedom of standard for temperature. Growden Dam other recreational activities. Information Act (FOIA) permits such is suspected to be one of two main confidentiality. Persons requesting such causes. Removal of Growden Dam may Permits or Licenses Required confidentiality should be aware that bring temperatures back into state Hydraulic Project Approval from the under the FOIA, confidentiality may be standards. This will be measured by the Washington Department of Fish and granted in only very limited amount of stream channel improved and Wildlife under 75.20 RCW is required circumstances, such as to protect trade the amount of wetland remaining since the project includes construction secrets. The Forest Service will inform behind the dam. of other work, that: will use, divert, the requester of the agency’s decision Growden Dam has blocked most obstruct, or change the natural flow or regarding the request for confidentiality, bedload from the lower reach of bed of fresh water of the state. This and where the request is denied, the Sherman Creek. This has caused includes all construction or other work agency will return the submission and streambank erosion and stream waterward and over the ordinary high notify the requester that the comments degradation, which has led to poor fish water line, including dry channels, and may be resubmitted with or without habitat. Improvement will be measured may include projects landward of the name and address within a specified by the amount of bedload allowed ordinary high water line (e.g., activities number of days. through the dam site and the amount of outside the ordinary high water line that Early Notice of Importance of Public stream reconnected to the floodplain. will directly impact fish life and habitat, Growden Dam is located on a Civilian falling trees into streams or lakes, etc.). Participation in Subsequent Conservation Corp (CCC) era site. The Section 401 Water Quality Environmental Review dam was built by the CCC. The dam is Certification from the Washington A draft environmental impact being evaluated for historical Department of Ecology under 33 U.S.C. statement will be prepared for comment. significance. The amount of alteration to 1341 is needed since a federal approval The comment period on the draft the site is at issue. is required for a project by the Corps of environmental impact statement will be There is no fish passage around the Engineers. 45 days from the date the dam. The best fish habitat is found in Approval to Allow Temporary Environmental Protection Agency the reaches above the dam. Opening this Exceedance of Water Quality Standards publishes the notice of availability in access up to the rest of the fish from the Washington Department of the Federal Register. population will improve the fisheries. Ecology is required, under 90.48 RCW, The Forest Service believes, at this Noxious weeds are a major concern; since the project may result in a early stage, it is important to give there appears to be agreement that temporary exceedance of water quality reviewers notice of several court rulings
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related to public participation in the DEPARTMENT OF AGRICULTURE under the United States Grain Standards environmental review process. First, Act, as amended (Act): reviewers of draft environmental impact Forest Service Champaign-Danville Grain Inspection statements must structure their Departments, Inc. (Champaign); participation in the environmental Northwest Sacramento Provincial Detroit Grain Inspection Service, Inc. review of the proposal so that it is Advisory Committee (SAC PAC) (Detroit); meaningful and alerts an agency to the AGENCY: Forest Service, USDA. Eastern Iowa Grain Inspection and reviewer’s position and contentions. Weighing Service, Inc. (Eastern Iowa); ACTION: Notice of meeting. Vermont Yankee Nuclear Power Corp. v. Enid Grain Inspection Company, Inc. NRDC, 435 U.S. 519, 553 (1978). Also, SUMMARY: The Northwest Sacramento (Enid); environmental objections that could be Provincial Advisory Committee (PAC) Keokuk Grain Inspection Service raised at the draft environmental impact will meet on March 31, 2004, at the (Keokuk); and statement stage but that are not raised Camden House in Whiskeytown Michigan Grain Inspection Services, until after completion of the final National Park, California. The purpose Inc. (Michigan). environmental impact statement may be of the meeting is to discuss issues EFFECTIVE DATE: April 1, 2004. waived or dismissed by the courts. City relating to implementing the Northwest ADDRESSES: USDA, GIPSA, Janet M. of Angoon v. Hodel, 803 F.2d 1016, Forest Plan. 1022 (9th Cir. 1986) and Wisconsin Hart, Chief, Review Branch, Compliance DATES: The meeting will be held March Division, STOP 3604, Room 1647–S, Heritages, Inc. v. Harris, 490 F. Supp. 31, 2004. 1334, 1338 (E.D. Wis. 1980). Because of 1400 Independence Avenue, SW., Location: The meeting will be held in Washington, DC 20250–3604. these court rulings, it is very important the Camden House at Whiskeytown FOR FURTHER INFORMATION CONTACT: that those interested in this proposed National Park, CA. action participate by the close of the 45 Janet M. Hart at 202–720-8525, e-mail day comment period so that substantive FOR FURTHER INFORMATION CONTACT: Julie [email protected]. Nelson, Committee Coordinator, USDA, comments and objections are made SUPPLEMENTARY INFORMATION: This available to the Forest Service at a time Shasta-Trinity National Forest, 3644 Avtech Parkway, Redding CA, 96002 action has been reviewed and when it can meaningfully consider them determined not to be a rule or regulation and respond to them in the final (530) 226–2429; or by e-mail: [email protected]. as defined in Executive Order 12866 environmental impact statement. and Departmental Regulation 1512–1; To assist the Forest Service in SUPPLEMENTARY INFORMATION: The therefore, the Executive Order and identifying and considering issues and meeting is open to the public. Departmental Regulation do not apply concerns on the proposed action, Opportunity will be provided for public to this action. comments on the draft environmental input and individuals will have the In the September 2, 2003, Federal impact statement should be as specific opportunity to address the Committee at Register (68 FR 52178), GIPSA asked as possible. It is also helpful if that time. persons interested in providing official comments refer to specific pages or Dated: February 23, 2004. services in the geographic areas chapters of the draft statement. J. Sharon Heywood, assigned to the official agencies named Comments may also address the above to submit an application for adequacy of the draft environmental Forest Supervisor. [FR Doc. 04–4511 Filed 2–27–04; 8:45 am] designation. Applications were due by impact statement or the merits of the October 1, 2003. BILLING CODE 3410–FK–M alternatives formulated and discussed in Champaign, Detroit, Eastern Iowa, the statement. Reviewers may wish to Enid, Keokuk, and Michigan were the refer to the Council on Environmental DEPARTMENT OF AGRICULTURE sole applicants for designation to Quality Regulations for implementing provide official services in the entire the procedural provisions of the [03–03–S] area currently assigned to them, so National Environmental Policy Act at 40 Grain Inspection, Packers and GIPSA did not ask for additional CFR 1503.3 in addressing these points. comments on them. Comments received, including the Stockyards Administration; GIPSA evaluated all available names and addresses of those who Designation for the Champaign (IL), information regarding the designation comment, will be considered part of the Detroit (MI), Eastern Iowa (IA), Enid criteria in section 7(f)(l)(A) of the Act public record on this proposal and will (OK), Keokuk (IA), and Michigan (MI) and, according to section 7(f)(l)(B), be available for public inspection. Areas determined that Champaign, Detroit, (Authority: 40 CFR 1501.7 and 1508.22; AGENCY: Grain Inspection, Packers and Eastern Iowa, Enid, Keokuk, and Forest Service Handbook 1909.15, Section Stockyards Administration, USDA. Michigan are able to provide official 21) ACTION: Notice. services in the geographic areas Dated: February 6, 2004. specified in the September 2, 2003, Rick Brazell, SUMMARY: Grain Inspection, Packers and Federal Register, for which they Forest Supervisor. Stockyards Administration (GIPSA) applied. Interested persons may obtain [FR Doc. 04–4447 Filed 2–27–04; 8:45 am] announces designation of the following official services by calling the telephone BILLING CODE 3410–11–M organizations to provide official services numbers listed below.
Official agency Headquarters location and telephone Designation start–end
Champaign ...... Champaign, IL—(217) 398–0723 ...... 4/01/2004–3/31/2007 Additional locations: Hoopston, IL, and Terre Haute, IN ...... Detroit ...... Emmet, MI—(810) 395–2105 ...... 4/01/2004–3/31/2007 Eastern Iowa ...... Davenport, IA—(563) 322–7140 ...... 4/01/2004–3/31/2007 Additional locations: Dubuque and Muscatine, IA; Gulfport, IL ......
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Official agency Headquarters location and telephone Designation start–end
Enid ...... Enid, OK—(580) 233–1121 ...... 4/01/2004–3/31/2007 Additional location: Catoosa, OK ...... Keokuk ...... Keokuk, IA—(319) 524–6482 ...... 4/01/2004–3/31/2007 Additional location: Havana, IL ...... Michigan ...... Marshall, MI—(269) 781–2711 ...... 4/01/2004–3/31/2007 Additional locations: Cairo, OH, and Carrollton, MI ......
Authority: Pub. L. 94–582, 90 Stat. 2867, (GIPSA) is asking persons interested in made available for public inspection at as amended (7 U.S.C. 71 et seq.). providing official services in the areas Room 1647–S, 1400 Independence Donna Reifschneider, served by these agencies to submit an Avenue, SW., during regular business Administrator, Grain Inspection, Packers and application for designation. GIPSA is hours. also asking for comments on the quality Stockyards Administration. FOR FURTHER INFORMATION CONTACT: [FR Doc. 04–4416 Filed 2–27–04; 8:45 am] of services provided by these currently Janet M. Hart at 202–720–8525, e-mail designated agencies: Amarillo Grain BILLING CODE 3410–EN–P [email protected]. Exchange, Inc. (Amarillo); Cairo Grain Inspection Agency, Inc. (Cairo); SUPPLEMENTARY INFORMATION: This DEPARTMENT OF AGRICULTURE Louisiana Department of Agriculture Action has been reviewed and and Forestry (Louisiana); North Carolina determined not to be a rule or regulation Grain Inspection, Packers and Department of Agriculture (North as defined in Executive Order 12866 Stockyards Administration Carolina); D. R. Schaal Agency, Inc. and Departmental Regulation 1512–1; (Schaal); and Wisconsin Department of therefore, the Executive Order and [04–01–A] Agriculture, Trade and Consumer Departmental Regulation do not apply to this Action. Opportunity for Designation in the Protection (Wisconsin). Section 7(f)(1) of the United States Amarillo (TX), Cairo (IL), Louisiana, DATES: Applications and comments Grain Standards Act, as amended (Act), North Carolina, Belmond (IA), and must be postmarked or electronically authorizes GIPSA’s Administrator to Wisconsin Areas, and Request for dated on or before April 1, 2004. designate a qualified applicant to Comments on the Official Agencies ADDRESSES: provide official services in a specified Serving These Areas Submit applications and comments to USDA, GIPSA, Janet M. area after determining that the applicant AGENCY: Grain Inspection, Packers and Hart, Chief, Review Branch, Compliance is better able than any other applicant Stockyards Administration, USDA. Division, STOP 3604, Room 1647–S, to provide such official services. ACTION: Notice. 1400 Independence Avenue, SW., Section 7(g)(1) of the Act provides Washington, DC 20250–3604; FAX 202– that designations of official agencies SUMMARY: The designations of the 690–2755. If an application is submitted shall end not later than triennially and official agencies listed below will end in by FAX, GIPSA reserves the right to may be renewed according to the September 2004. Grain Inspection, request an original application. All criteria and procedures prescribed in Packers and Stockyards Administration applications and comments will be section 7(f) of the Act.
1. CURRENT DESIGNATIONS BEING ANNOUNCED FOR RENEWAL
Designation Designation Official agency Main office start end
Amarillo ...... Amarillo, TX ...... 12/01/2001 9/30/2004 Cairo ...... Cairo, IL ...... 10/01/2001 9/30/2004 Louisiana ...... Baton Rouge, LA ...... 10/01/2001 9/30/2004 North Carolina ...... Raleigh, NC ...... 10/01/2001 9/30/2004 Schaal ...... Belmond, IA ...... 12/01/2001 9/30/2004 Wisconsin ...... Madison, WI ...... 12/01/2001 9/30/2004
a. Pursuant to section 7(f)(2) of the Cottle County lines; the western Beaver, Beckham, Cimarron, Ellis, Act, the following geographic area, in Childress County line north to U.S. Harper, Roger Mills, and Texas the States of Oklahoma and Texas, is Route 287; U.S. Route 287 northwest to Counties, Oklahoma. assigned to Amarillo. Donley County; the southern Donley b. Pursuant to section 7(f)(2) of the In Texas: and Armstrong County lines west to Act, the following geographic area, in Bounded on the North by the Texas- Prairie Dog Town Fork of the Red River; the States of Illinois, Kentucky, and Oklahoma State line to the eastern Clay Prairie Dog Town Fork of the Red River Tennessee, is assigned to Cairo. County line; northwest to State Route 217; State Bounded on the East by the eastern Randolph County (southwest of State Clay, Archer, Throckmorton, Route 217 west to FM 1062; FM 1062 Route 150 from the Mississippi River Shackelford, and Callahan County lines; west to U.S. Route 385; U.S. Route 385 north to State Route 3); Jackson County Bounded on the South by the north to Oldham County; the southern (southwest of State Route 3 southeast to southern Callahan, Taylor, and Nolan Oldham County line; the western State Route 149; State Route 149 east to County lines; Oldham, Hartley, and Dallam County State Route 13; State Route 13 southeast Bounded on the West by the western lines. to U.S. Route 51; U.S. Route 51 south to Nolan, Fisher, Stonewall, King, and Union County); and Alexander,
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Johnson, Hardin, Massac, Pope, Pulaski, 2. A. V. Tischer and Son, Inc.: West ACTION: Notice of advisory committee and Union Counties, Illinois. Bend Elevator Co., Algona, Kossuth meeting. Ballard, Calloway, Carlisle, Fulton, County; Stateline Coop, Burt, Kossuth Graves, Hickman, Livingston, Lyon, County; Gold-Eagle, Goldfield, Wright SUMMARY: Pursuant to the Federal Marshall, McCracken, and Trigg County; and North Central Coop, Advisory Committee Act (5 U.S.C. App. Counties, Kentucky. Holmes, Wright County. II), this constitutes notice of the upcoming meeting of the Grain Benton, Dickson, Henry, Houston, f. Pursuant to section 7(f)(2) of the Inspection Advisory Committee (‘‘the Humphreys, Lake, Montgomery, Obion, Act, the following geographic area, the Committee’’). Stewart, and Weakley Counties, entire State of Wisconsin, except those Tennessee. export port locations within the State, is DATES: May 4, 2004, 7:30 a.m. to 5 p.m.; Cairo’s assigned geographic area does assigned to Wisconsin. and May 5, 2004, 7:30 a.m. to 12 p.m. not include the following grain elevator 2. Opportunity for designation. ADDRESSES: The advisory committee inside Cairo’s area which has been and Interested persons, including Amarillo, meeting will take place at the Embassy will continue to be serviced by the Cairo, Louisiana, North Carolina, Suites Hotel—Kansas City Country Club following official agency: Memphis Schaal, and Wisconsin are hereby given Plaza, 220 West 43rd Street, Kansas Grain Inspection Service: Cargill, Inc., the opportunity to apply for designation City, MO. Tiptonville, Lake County, Tennessee. to provide official services in the Requests to address the Committee at c. Pursuant to section 7(f)(2) of the geographic areas specified above under the meeting or written comments may Act, the following geographic area, the the provisions of section 7(f) of the Act be sent to: entire State of Louisiana, except those and section 800.196(d) of the Administrator, GIPSA, U.S. export port locations within the State regulations issued thereunder. Department of Agriculture, 1400 which are serviced by GIPSA, is Designation in the specified geographic Independence Avenue, SW., STOP assigned to Louisiana. areas is for the period beginning October 3601, Washington, DC 20250–3601. d. Pursuant to section 7(f)(2) of the 1, 2004, and ending September 30, 2007. Requests and comments may also be Act, the following geographic area, the Persons wishing to apply for faxed to (202) 205–9237. entire State of North Carolina, except designation should contact the FOR FURTHER INFORMATION CONTACT: Ms. those export port locations within the Compliance Division at the address Terri Henry, (202) 205–8281 State which are serviced by GIPSA, is listed above for forms and information, (telephone); (202) 205–9237 (facsimile). assigned to North Carolina. or obtain applications at the GIPSA Web SUPPLEMENTARY INFORMATION: The e. Pursuant to section 7(f)(2) of the site, http://www.usda.gov/gipsa/ purpose of the Committee is to provide Act, the following geographic area, in oversight/parovreg.htm. advice to the Administrator of the Grain the State of Iowa, is assigned to Schaal. Inspection, Packers and Stockyards Bounded on the North by the northern 3. Request for Comments. GIPSA also Administration with respect to the Kossuth County line from U.S. Route is publishing this notice to provide implementation of the U.S. Grain 169; the northern Winnebago, Worth, interested persons the opportunity to Standards Act (7 U.S.C. 71 et seq.). and Mitchell County lines; present comments on the quality of The agenda will include financial Bounded on the East by the eastern services for the Amarillo, Cairo, status, general program plans, and grain Mitchell County line; the eastern Floyd Louisiana, North Carolina, Schaal, and end-use functionality research. County line south to B60; B60 west to Wisconsin official agencies. In Public participation will be limited to T64; T64 south to State Route 188; State commenting on the quality of services, written statements, unless permission is Route 188 south to C33; commenters are encouraged to submit received from the Committee Chairman Bounded on the South by C33 west to pertinent data including information on to orally address the Committee. The T47; T47 north to C23; C23 west to S56; the timeliness, cost, and scope of meeting will be open to the public. S56 south to C25; C25 west to U.S. services provided. All comments must Persons with disabilities who require Route 65; U.S. Route 65 south to State be submitted to the Compliance alternative means of communication of Route 3; State Route 3 west to S41; S41 Division at the above address. program information or related south to C55; C55 west to Interstate 35; Applications, comments, and other accommodations should contact Terri Interstate 35 southwest to the southern available information will be considered Henry, at the telephone number listed Wright County line; the southern Wright in determining which applicant will be above. County line west to U.S. Route 69; U.S. designated. Route 69 to C54; C54 west to State Route Authority: Pub. L. 94–582, 90 Stat. 2867, Donna Reifschneider, 17; and as amended (7 U.S.C. 71 et seq.). Administrator. Bounded on the West by State Route Donna Reifschneider, [FR Doc. 04–4415 Filed 2–27–04; 8:45 am] 17 north to the southern Kossuth BILLING CODE 3410–EN–P County line; the Kossuth County line Administrator, Grain Inspection, Packers and west to U.S. Route 169; U.S. Route 169 Stockyards Administration. north to the northern Kossuth County [FR Doc. 04–4417 Filed 2–27–04; 8:45 am] DEPARTMENT OF AGRICULTURE line. BILLING CODE 3410–EN–P Schaal’s assigned geographic area Natural Resources Conservation does not include the following grain Service DEPARTMENT OF AGRICULTURE elevators inside Schaal’s area which have been and will continue to be Don˜ a Ana Arroyo Watershed, Don˜ a Grain Inspection, Packers and Ana County, NM serviced by the following official Stockyards Administration agencies: AGENCY: Natural Resources 1. Central Iowa Grain Inspection Advisory Committee Meeting Conservation Service, USDA. Service, Inc.: Agvantage F.S., Chapin, ACTION: Notice of a finding of no Franklin County; and Farmers’ Coop AGENCY: Grain Inspection, Packers and significant impact. Society, Rockwell, Cerro Gordo County. Stockyards Administration, USDA.
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SUMMARY: Pursuant to Section 102(2)(c) DEPARTMENT OF AGRICULTURE NRCS made available to the public a of the National Environmental Policy Draft Environmental Assessment (EA) Act of 1969; the Council on Natural Resources Conservation that analyzed the impacts of the Environmental Quality Regulations (40 Service proposed rule on the quality of the human environment. The Draft EA was CFR Part 1500); and the Natural Notice of Availability of finding of no Resources Conservation Service Rules (7 prepared on a National Programmatic significant impact and Supplement to basis. NRCS was of the preliminary CFR Part 650); the Natural Resources the environmental assessment for the Conservation Service, U.S. Department opinion, based on the results of the Environmental Quality Incentives Draft EA, that implementation of EQIP of Agriculture, gives notice that an Program environmental impact statement is not would have no significant impact on the being prepared for the rehabilitation of AGENCY: Natural Resources quality of the human environment, two dams (South and North Fork dams) Conservation Service, USDA. particularly when focusing on the significant adverse impacts which and their disposal system in the Don˜ a ACTION: Notice of availability of finding NEPA is intended to help decision Ana Arroyo Watershed. of no significant impact and Supplement to the environmental makers avoid and mitigate; therefore, FOR FURTHER INFORMATION CONTACT: assessment for the Environmental NRCS also made a Draft FONSI Rosendo Trevin˜ o III; State Quality Incentives Program. available to the public at that time. Conservationist; Natural Resources NRCS indicated that it would accept Conservation Service; 6200 Jefferson, SUMMARY: The Natural Resources comments on the Draft EA and Draft NE.; Albuquerque, NM 87109–3734; Conservation Service (NRCS), has FONSI through the mail or via the telephone 505–761–4400. prepared a Supplement to the internet until March 12, 2003. Environmental Quality Incentives On May 30, 2003, NRCS published in SUPPLEMENTARY INFORMATION: The Program (EQIP) Environmental the Federal Register the final rule environmental assessment (EA) of this Assessment (EA) consistent with the implementing EQIP, as amended (68 FR Federally assisted action indicates that National Environmental Policy Act of 32337 (May 30, 2003)), and at that time the project will not cause significant 1969, as amended. The Supplement was provided the public with notice of the local, regional, or national effects on the prepared as a means of amending the availability of the Final EA and FONSI. human environment. As a result of these Final EQIP EA to correct the record and In the Final EA, NRCS stated that it findings, Rosendo Trevin˜ o III, State address comments received on the draft ‘‘received no comments on the draft EA Conservationist, has determined that the EQIP EA but not acknowledged in the or draft FONSI.’’ In fact, however, NRCS preparation and review of an final EQIP EA. Upon review of the had received a comment letter on the environmental impact statement are not information in the Supplement to the Draft EA. NRCS misplaced these needed for this project. EQIP EA, the Chief of NRCS made a comments and they were not considered Finding of No Significant Impact The project purpose is flood damage during formulation of the final EA that (FONSI) and the determination was was prepared to comply with the prevention. The action includes the made that no environmental impact rehabilitation of two floodwater retaring National Environmental Policy Act of statement is required to support 1969, as amended (NEPA). The error dames and their common disposal National implementation of EQIP. was discovered after the EA and FONSI system. The Notice of a Finding of No FOR FURTHER INFORMATION: Copies of the were made available to the public. To Significant Impact (FONSI) has been Supplement to the EQIP EA and the ensure the comments received forwarded to the Environmental FONSI, or additional information on appropriate consideration as part of the Protection Agency; various Federal, matters related to this Federal Register NEPA process, NRCS made a state, and local agencies; and interested Notice can be obtained by contacting determination to correct the record and parties. A limited number of copies of one of the following individuals at the address the comments by issuing a the FONSI are available to fill single addresses and telephone numbers supplement to the Final EQIP EA. copy requests at the above address. shown below: NEPA requires that Federal agencies Basic data developed during the EA are Mr. Melvin Womack, Conservation prepare Environmental Impact on file and may be reviewed by Incentives Team Leader, Conservation Statements (EISs) for major Federal contacting Rosendo Trevin˜ o III. No Operations Division, NRCS, U.S. actions significantly affecting the administrative action on Department of Agriculture, PO Box quality of the human environment. In implementation of the proposed action 2890, Room 5239-S, Washington, DC addition, the Council on Environmental will be taken until 30 days after the date 20013–2890. Telephone: (202) 720– Quality (CEQ) regulations implementing of publication in the Federal Register. 0907. NEPA (40 CFR parts 1500–1508) require Ms. Andre´ DuVarney, National Dated: February 20, 2004. Federal agencies to prepare EAs to assist Environmental Coordinator, in determining whether there is a need ˜ Rosendo Trevino, Ecological Sciences Division, NRCS, to prepare an EIS for actions that have State Conservationist. U.S. Department of Agriculture, PO not been categorically excluded from [FR Doc. 04–4460 Filed 2–27–04; 8:45 am] Box 2890, Room 6158-S, Washington, NEPA. NRCS has reviewed the BILLING CODE 3410–16–P DC 20013–2890. Telephone: (202) comments on the Draft EQIP EA to 720–4925. determine whether the comments SUPPLEMENTARY INFORMATION: To provide new information that would implement EQIP, as amended by the lead NRCS to find that publication of Farm Security and Rural Investment Act the final rule to implement EQIP on a of 2002, Pub. L. 107–71 (May 13, 2002) National basis may result in the (‘‘the 2002 Act’’), the NRCS published significant adverse impacts that NEPA is in the Federal Register a proposed rule intended to help decision makers avoid with requests for comments (68 FR 6655 and mitigate; and thus, whether an EIS (February 10, 2003). At the same time, should be prepared.
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Upon review of the information in the DATES: You may submit completed no later than April 30, 2004, to be Supplement to the EQIP EA, the Chief applications for grants on paper or eligible for FY 2004 grant funding. Late found that no new information was electronically according to the following applications are not eligible for FY 2004 provided in the comments to indicate deadlines: grant funding. NRCS should address additional issues • Paper copies must be postmarked • Electronic copies must be received or alternatives in the EA or that alters and mailed, shipped, or sent overnight by April 30, 2004, to be eligible for FY discussions in the Final EA of the no later than April 30, 2004, to be 2004 grant funding. Late applications potential effects of the program from a eligible for FY 2004 grant funding. Late are not eligible for FY 2004 grant National perspective. The Chief of applications are not eligible for FY 2004 funding. NRCS further found, after considering grant funding. • RUS will examine applications for • the information in the comments and Electronic copies must be received items that would disqualify them from the Supplement, the program will not by April 30, 2004, to be eligible for FY consideration if the applications are result in a significant impact on the 2004 grant funding. Late applications submitted on paper by March 31, 2004. quality of the human environment, are not eligible for FY 2004 grant You may submit applications for FY particularly when focusing on the funding. 2004 combination loan-grants and loans • significant adverse impacts which RUS will examine applications for at any time. items that would disqualify them from NEPA is intended to help Items in Supplementary Information decisionmakers avoid and mitigate. consideration if the applications are I. Funding Opportunity: Brief Introduction to Therefore, a FONSI was issued and the submitted on paper by March 31, 2004. You may submit applications for FY the DLT Program determination was made that no EIS is II. Award Information: Available Funds, required to support National 2004 combination loan-grants and loans at any time. Minimum and Maximum Amounts implementation of EQIP. III. Eligibility Information: Who Is Eligible, Copies of the Supplement to the EA ADDRESSES: You may obtain application What Kinds of Projects Are Eligible, What and FONSI may be reviewed at the guides and materials for all DLT Criteria Determine Basic Eligibility following location: Conservation programs via the Internet at the DLT IV. Application and Submission Information: Operations Division, NRCS, U.S. Web site: http://www.usda.gov/rus/ Where to Get Application Materials, What Department of Agriculture, Room 5239– telecom/dlt/dlt.htm. You may also Constitutes a Completed Application, How request application guides and materials and Where to Submit Applications, S, Washington, DC 20013–2890. The Deadlines, Items That Are Eligible documents may also be accessed on the from RUS by contacting the DLT Branch at (202) 720–0413. V. Application Review Information: Internet at http://www.nrcs.usda.gov/ Considerations and Preferences, Scoring programs/Env_Assess/EQIP/EQIP.html Submit completed paper applications Criteria, Review Standards, Selection for grants, combination loan-grants or Information Signed in Washington, DC on February 9, loans to the Rural Utilities Service, U.S. 2004. VI. Award Administration Information: Department of Agriculture, 1400 Award Notice Information, Award Bruce I. Knight, Independence Ave., SW., Room 2845, Recipient Reporting Requirements Chief, Natural Resources Conservation STOP 1550, Washington, DC 20250– VII. Agency Contacts: Web, Phone, Fax, E- Service. 1550. Applications should be marked Mail, Contact Name [FR Doc. 04–4459 Filed 2–27–04; 8:45 am] ‘‘Attention: Director, Advanced Services I. Funding Opportunity BILLING CODE 3410–16–P Division, Telecommunications Program.’’ Distance learning and telemedicine Submit electronic grant or loans and grants are specifically DEPARTMENT OF AGRICULTURE combination loan-grant applications at designed to provide access to education, http://www.grants.gov (Grants.gov), training and health care resources for Rural Utilities Service following the instructions you find on people in rural America. The Distance Learning and Telemedicine (DLT) Announcement of Grant and Loan that Web site. Program (administered by the DLT Application Deadlines and Funding FOR FURTHER INFORMATION CONTACT: Branch of the Rural Utilities Service Levels Orren E. Cameron, III, Director, Advanced Services Division, Rural (RUS)) funds the use of advanced AGENCY: Rural Utilities Service, USDA. Utilities Service, U.S. Department of telecommunications technologies to ACTION: Notice of solicitation of Agriculture, telephone: (202) 720–0413, help communities meet those needs. applications. fax: (202) 720–1051. The grants, which are awarded through competitive process, may be SUPPLEMENTARY INFORMATION: SUMMARY: The Rural Utilities Service used to fund telecommunications, (RUS) announces its Distance Learning Overview computer networks and related and Telemedicine (DLT) Program grant Federal Agency: Rural Utilities advanced technologies. application window for funding during Service (RUS). Applications for loans and fiscal year (FY) 2004. In addition, RUS Funding Opportunity Title: Distance combination loan-grants are not announces the minimum and maximum Learning and Telemedicine Loans and competitively scored. In addition to the amounts for DLT grants, combination Grants. items listed for grants, loans and loan-grants and loans applicable for the Announcement Type: Initial combination loan-grants may be used to fiscal year. The DLT Program regulation announcement. fund construction of necessary (7 CFR 1703, subparts D, E, F and G) has Catalog of Federal Domestic transmission facilities on a technology- not changed, but this Notice appears in Assistance (CFDA) Number: 10.855. neutral basis. Examples of such facilities a new format, as mandated by a policy Dates: You may submit completed include satellite uplinks, microwave directive issued by the Office of Federal applications for grants on paper or towers and associated structures, T–1 Financial Management (OFFM) of the electronically according to the following lines, DS–3 lines, and other similar Office of Management and Budget deadlines: facilities. Loan funds may also be used (OMB), published in the Federal • Paper copies must be postmarked to obtain mobile units and for some Register on June 23, 2003. and mailed, shipped, or sent overnight building construction. Please see 7 CFR
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1703, subparts D, E, F and G for b. RUS will execute loan documents grant assistance (see 7 CFR 1703.121 specifics. appropriate to the project prior to any and paragraph IV.G of this notice). This notice has been formatted to advance of funds with successful Greater amounts of eligible matching conform to a policy directive issued by applicants. contributions may increase an the Office of Federal Financial B. DLT grants, combination loan- applicant’s score (see 7 CFR Management (OFFM) of the Office of grants and loans cannot be renewed. 1703.126(b)(4) and paragraph V.B.2.d of Management and Budget (OMB), Award documents specify the term of this notice). published in the Federal Register on each award. Applications to extend b. Combination loan-grants and loans June 23, 2003. This notice does not existing projects are welcomed (grant do not require matching contributions. change the DLT Program regulation (7 applications must be submitted during 2. The DLT program is designed to CFR 1703, subparts D, E, F, and G). the application window) and will be flow the benefits of distance learning evaluated as new applications. II. Award Information and telemedicine to residents of rural A. Available Funds III. Eligibility Information America (see 7 CFR 1703.103(a)(2)). Therefore, in order to be eligible, A. Who Is Eligible for Grants, 1. General applicants must propose to use the Combination Loan-Grants and Loans? financial assistance to: The Administrator has determined (See 7 CFR 1703.103) that the following amounts are available a. Operate a rural community facility; for grants, combination loan-grants and 1. Only entities legally organized as or one of the following are eligible for DLT loans in FY 2004 under 7 CFR b. Deliver distance learning or 1703.101(g). financial assistance: a. An incorporated organization or telemedicine services to entities that 2. Grants partnership, operate a rural community facility or to residents of rural areas, at rates a. $15 million is available for grants. b. An Indian tribe or tribal Under 7 CFR 1703.124, the organization, as defined in 25 U.S.C. calculated to ensure that the benefit of Administrator has determined the 450b (b) and (c), the financial assistance is passed maximum amount of an application for c. A State or local unit of government, through to such entities or to residents a grant in FY 2004 is $500,000 and the d. A consortium, as defined in 7 CFR of rural areas. minimum amount of a grant is $50,000. 1703.102, or 3. If a loan applicant is a b. Assistance instrument: RUS will e. Other legal entity, including a telecommunications or electric borrower execute grant documents appropriate to private corporation organized on a for- under the Rural Electrification Act of the project prior to any advance of funds profit or not-for profit basis. 1936 (7 U.S.C. 901–950aa, et seq.), they with successful applicants. 2. Individuals are not eligible for DLT may either pass the loan along to an financial assistance directly. entity that will fulfill paragraph III.B.2 3. Combination Loan-Grants 3. Electric and telecommunications of this notice; or acquire, install, extend a. $110 million is available for borrowers under the Rural or improve a distance learning or combination loan-grants ($100 million Electrification Act of 1936 (7 U.S.C. telemedicine facility. Please see 7 CFR in loans paired with $10 million in 950aaa et seq.) are not eligible for grants 1703.101(f). or combination loan-grants. They are, grants, i.e., $100 loan: $10 grant ratio). 4. Rurality. a. All projects that Under 7 CFR 1703.133, the however, eligible for loans (see 7 CFR 1703.101(f)). applicants propose to fund with RUS Administrator has determined the financial assistance must meet a maximum amount of an application for B. What Are the Basic Eligibility minimum rurality threshold, to ensure a combination loan-grant in FY 2004 is Requirements for a Project? that benefits from the projects flow to $10 million and the minimum amount 1. Required matching contributions rural residents. The minimum eligibility of a combination loan-grant is $50,000. score is 20 points. Please see paragraphs b. RUS will execute grant and loan (grants only). See paragraphs IV.B.2.b IV.B.2.g and V.B.2 of this notice. In documents appropriate to the project and IV.B.2.g of this notice for addition, please see 7 CFR prior to any advance of funds with information on documentation of 1703.126(a)(2) for an explanation of the successful applicants. matching contributions. Please see 7 CFR 1703.125(g) for the requirement. rurality scoring and eligibility criterion. 4. Loans a. Grant applicants must demonstrate b. Each application must apply the a. $200 million is available for loans. a matching contribution, in cash or in following criteria to each of its end-user Under 7 CFR 1703.143, the kind (new, non-depreciated items), of at sites, and hubs that are also proposed as Administrator has determined the least fifteen (15) percent of the total end-user sites, in order to determine a maximum amount of an application for amount of RUS financial assistance rurality score. The rurality score is the a loan in FY 2004 is $10 million and the requested. Matching contributions must average of all end-user sites’ rurality minimum amount of a loan is $50,000. be used for eligible purposes of DLT scores.
Criterion Character Population DLT points
Exceptionally Rural Area ...... Area not within a city, village or borough ...... ≤5000 ...... 45 Rural Area ...... Incorporated or unincorporated area ...... >5000 and ≤10,000 ...... 30 Mid-Rural Area ...... Incorporated or unincorporated area ...... >10,000 and ≤20,000 ...... 15 Urban Area ...... Incorporated or unincorporated area ...... >20,000 ...... 0
c. Grants only: The rurality score is 5. Projects located in areas covered by Program. Please see 7 CFR also one of the competitive scoring the Coastal Barrier Resources Act (16 1703.123(a)(11) for grants, 7 CFR criteria applied to grant applications. U.S.C. 3501 et seq.) are not eligible for 1703.132(a)(5) for combination loan- any financial assistance from the DLT
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grants and 7 CFR 1703.142(b)(3) for not change the requirements for a and the application guides provide loans. completed application for any form of specific guidance on each of the items C. See paragraph IV.B of this notice DLT financial assistance specified in the in the table. for a discussion of the items that make DLT Program regulation. 2. The DLT application guides and up a completed application. You may a. When the table refers to a narrative, ancillary materials provide all necessary also refer to 7 CFR 1703.125 for it means a written statement, forms and sample worksheets. completed grant application items, 7 description or other written material 3. While the table in paragraph IV.B.6 CFR 1703.134 for completed prepared by the applicant, for which no of this notice includes all items of a combination loan-grant application form exists. RUS recognizes that each completed application for each program, items, and 7 CFR 1703.144 for project is unique and requests narratives RUS may ask for additional or clarifying completed loan application items. of varying complexity to allow information if the submitted item(s) do applicants to fully explain their request not fully address a criterion or other IV. Application and Submission for financial assistance. provision. RUS will communicate with Information b. When documentation is requested, applicants if the need for additional A. Where to get application it means letters, certifications, legal information arises. information. Application guides, copies documents or other third party of necessary forms and samples, and the documentation that provide evidence 4. Submit the required application DLT Program regulation are available that the applicant meets the listed items in the listed order. from these sources: requirement. For example, to confirm 5. DUNS Number (new for FY 2004). 1. The Internet: http://www.usda.gov/ Enterprise Zone (EZ) designations, As required by the OMB, all applicants rus/telecom/dlt/dlt.htm, or http:// applicants use various types of for grants or combination loan-grants www.grants.gov. documents, such as letters from must now supply a Dun and Bradstreet 2. The DLT Branch of RUS for paper appropriate government bodies and Data Universal Numbering System copies of these materials: (202) 720– copies of appropriate USDA Web pages. (DUNS) number when applying. The 0413. Leveraging documentation sometimes Standard Form 424 (SF–424) contains a B. What constitutes a completed include letters of commitment from field for you to use when supplying application? 1. Detailed information on other funding sources, or other your DUNS number. Obtaining a DUNS each item in the table in paragraph documents specifying in-kind number costs nothing and requires a IV.B.6 of this notice can be found in the donations. Evidence of legal existence is short telephone call to Dun and sections of the DLT Program regulation sometimes proven by applicants who Bradstreet. Please see the DLT Web site listed in the table, and the appropriate submit articles of incorporation. None of or Grants.gov for more information on DLT application guide(s). Applicants the foregoing examples is intended to how to obtain a DUNS number or how are strongly encouraged to read and limit the types of documentation that to verify your organization’s number. apply both the regulation and the may be submitted to fulfill a 6. Table of Required Elements of a application guide(s). This notice does requirement. DLT program regulations Completed Application, by Program:
Required items by application type Application item Grants Combination loan-grants Loans (7 CFR 1703.125 and CFR (7 CFR 1703.134 and 7 (7 CFR 1703.144 1703.126) CFR 1703.135) and 7 CFR 1703.145)
SF–424, completely filled out (Application for Federal As- Yes ...... Yes ...... Yes. sistance form). Executive Summary (narrative) ...... Yes ...... Yes ...... Yes. Objective Scoring Worksheet ...... Yes ...... No ...... No. Rural Calculation Table ...... Yes ...... Yes ...... Yes. National School Lunch Program Determination ...... Yes ...... No ...... No. EZ/EC or Champion Communities designation ...... Yes (documentation) ...... No ...... No. Documented Need for Services/Benefits Derived from Yes (narrative & documenta- No ...... No. Services. tion, if necessary). Innovativeness of the Project ...... Yes (narrative & documenta- No ...... No. tion). Budget (table or other appropriate format) ...... Yes ...... Yes ...... Yes. Leveraging Evidence and Funding Commitments from All Yes (documentation) ...... Yes (no leveraging evidence Yes (no leveraging Sources. required). evidence required). Financial Information/Sustainability (narrative) ...... Yes ...... Yes ...... Yes. Pro Forma Financial Data ...... No ...... Yes (documentation) ...... Yes (documentation). Ability to execute a note with maturity > 1 year ...... No ...... Yes (documentation) ...... Yes (documentation). Revenue/expense reports and balance sheet (table or No ...... Yes for educational institu- Yes for educational other appropriate format). tions/consortia. (docu- institutions/con- mentation). sortia. (documenta- tion). Income statement and balance sheet (table or other ap- No ...... Yes for medical institutions/ Yes for medical insti- propriate format). consortia. (documentation). tutions/consortia. (documentation). Balance sheet (table or other appropriate format) for a No ...... Yes (documentation) ...... Yes (documentation). partnership, corporation, company, other entity; or con- sortia of such entities. Property list (collateral)/adequate security ...... No ...... Yes (documentation) ...... Yes (documentation). Depreciation schedule ...... No ...... Yes (documentation) ...... Yes (documentation). Revenue Source(s) for each hub and end-user site ...... No ...... Yes (documentation) ...... Yes (documentation).
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Required items by application type Application item Grants Combination loan-grants Loans (7 CFR 1703.125 and CFR (7 CFR 1703.134 and 7 (7 CFR 1703.144 1703.126) CFR 1703.135) and 7 CFR 1703.145)
Economic analysis of rates—if applicant proposes to pro- No ...... Yes (documentation) ...... Yes (documentation). vide services to another entity. System/Project Cost Effectiveness (narrative & docu- Yes ...... No ...... No. mentation). Telecommunications System Plan (narrative & docu- Yes ...... Yes ...... Yes. mentation; maps or diagrams, if appropriate). Proposed Scope of Work (narrative or other appropriate Yes ...... Yes ...... Yes. format). Statement of Experience (narrative 3-page, single-spaced Yes ...... Yes ...... Yes. limit). Consultation with the USDA State Director, Rural Devel- Yes ...... No ...... No. opment (documentation). Application conforms with State Strategic Plan per USDA Yes ...... No ...... No. State Director, Rural Development, (if plan exists) (doc- umentation). Certifications: Equal Opportunity and Nondiscrimination ...... Yes ...... Yes ...... Yes. Architectural Barriers ...... Yes ...... Yes ...... Yes. Flood Hazard Area Precautions ...... Yes ...... Yes ...... Yes. Uniform Relocation Assistance and Real Property Acquisi- Yes ...... Yes ...... Yes. tion Policies Act of 1970. Drug-Free Workplace ...... Yes ...... Yes ...... Yes. Debarment, Suspension, and Other Responsibility Mat- Yes ...... Yes ...... Yes. ters—Primary Covered Transactions. Lobbying for Contracts, Grants, Loans, and Cooperative Yes ...... Yes ...... Yes. Agreements. Non Duplication of Services ...... Yes ...... Yes ...... Yes. Environmental Impact/Historic Preservation. Certification ...... Yes ...... Yes ...... Yes. Questionnaire ...... No ...... Yes, if project involves con- Yes, if project in- struction. volves construction. Federal Obligations on Delinquent Debt ...... Yes ...... Yes ...... Yes. Evidence of Legal Authority to Contract with the Govern- Yes ...... Yes ...... Yes. ment (documentation). Evidence of Legal Existence (documentation) ...... Yes ...... Yes ...... Yes. Supplemental Information (if any) (narrative, documenta- Optional ...... Optional ...... Optional. tion or other appropriate format).
C. How many copies of an application spoc.html for an updated listing of State (ii) A legible mail receipt with the are required? 1. Applications submitted government points of contact. date of mailing stamped by the USPS; or on paper (grants, combination loan- D. How and where to submit an (iii) A dated shipping label, invoice, grants and loans): a. Submit the original application. Grant and combination or receipt from a commercial carrier. c. application and two (2) copies to RUS. loan-grant applications may be Due to screening procedures at the b. Submit one (1) additional copy to the submitted on paper or electronically. Department of Agriculture, packages State government point of contact (if RUS cannot accept electronic loan arriving via the USPS are irradiated, one has been designated) at the same applications at this time; please submit which can damage the contents. RUS time as you submit the application to loan applications on paper. encourages applicants to consider the RUS. See http://www.whitehouse.gov/ 1. Submitting applications on paper impact of this procedure in selecting omb/grants/spoc.html for an updated (grants, combination loan-grants or their application delivery method. 2. Electronically submitted listing of State government points of loans). applications (applies only to grants and contact or contact the DLT branch. a. Address paper applications for combination loan-grants). 2. Electronically submitted grants, combination loan-grants or loans a. Applications will not be accepted applications (grants and combination to the Rural Utilities Service, U.S. via facsimile machine transmission or loan-grants): Department of Agriculture, 1400 electronic mail. Independence Ave., SW., Room 2845, a. The additional paper copies for b. Electronic applications for grants or STOP 1550, Washington, DC 20250– combination loan-grants will be RUS specified in 7 CFR 1703.128(c) and 1550. Applications should be marked 7 CFR 1703.136(b) are not necessary if accepted if submitted through the ‘‘Attention: Director, Advanced Services Federal government’s Grants.gov you submit the application Division, Telecommunications initiative at http://www.grants.gov. electronically through Grants.gov. Program.’’ c. If you want RUS to review your b. Submit one (1) copy to the State b. For grants only: paper applications application for items that would government point of contact (if one has must show proof of mailing or shipping disqualify it for further been designated) at the same time as consisting of one of the following: consideration(see paragraph V.D of this you submit the application to RUS. See (i) A legibly dated U.S. Postal Service notice), please do not use Grants.gov. http://www.whitehouse.gov/omb/grants/ (USPS) postmark; Submit your application on paper.
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Grants.gov does not yet support such post their grant opportunities at 3. RUS will examine applications for pre-application reviews. Grants.gov, beginning with FY 2004. items that would disqualify them from d. How to use Grants.gov: (i) Navigate You can find more information on e- consideration if the applications are your Web browser to http:// grants at http://www.usda.gov/rus/ submitted on paper by March 31, 2004. www.grants.gov. telecom/dlt/dlt.htm and http:// 4. Applications for FY 2004 (ii) Follow the instructions on that www.grants.gov. combination loan-grants (paper or Web site to find grant or combination (i) Central Contractor Registry. In electronic) and loans (paper only) may loan-grant information. addition to the DUNS number now be submitted at any time. (iii) Download a copy of an required of all grant applicants, application package. submitting an application through F. Intergovernmental Review. All DLT (iv) Complete the package off-line. Grants.gov requires that you list your programs are subject to Executive Order (v) Upload and submit the application organization in the Central Contractor 12372, ‘‘Intergovernmental Review of via the Grants.gov Web site. Registry (CCR). Setting up a CCR listing Federal Programs.’’ As stated in e. Grants.gov contains full (a one-time procedure with annual paragraph IV.C of this notice, a copy of instructions on all required passwords, updates) takes up to five business days, a DLT grant or combination loan-grant credentialing and software. so RUS strongly recommends that you application must be submitted to the f. RUS encourages applicants who obtain your organization’s DUNS State single point of contact if one has wish to apply through Grants.gov to number and CCR listing well in advance been designated. Please see http:// submit their applications in advance of of the deadline specified in this notice. www.whitehouse.gov/omb/grants/ the deadline, in the case of grants. (ii) Credentialing and authorization of spoc.html to determine whether your g. If a system problem occurs or you applicants. Grants.gov will also require state has a single point of contact. have technical difficulties with an some one-time credentialing and online G. Funding Restrictions. 1. Eligible electronic application, please use the authentication procedures. These customer support resources available at purposes. a. End-user sites may receive procedures may take several business financial assistance; hub sites (rural or the Grants.gov Web site. days to complete, further emphasizing h. New information for FY 2004 grant non-rural) may also receive financial the need for early action to complete the assistance if they are necessary to and combination loan-grant sign-up, credentialing and authorization applications. The Distance Learning and provide DLT services to end-user sites. procedures at Grants.gov before you Please see 7 CFR 1703.101(h). Telemedicine Branch of RUS now offers submit an application at that Web site. applicants the opportunity to submit E. Deadlines. 1. Grants only: Paper b. To fulfill the policy goals laid out grant (and combination loan-grant) applications must be postmarked and for the DLT Program in 7 CFR 1703.101, applications online through Grants.gov mailed, shipped, or sent overnight no the following table lists purposes for (http://www.grants.gov). The Web site is later than April 30, 2004, to be eligible financial assistance and whether each part of the Government-wide e- for FY 2004 grant funding. Late purpose is eligible for the assistance. Government project under the applications are not eligible for FY 2004 Please consult the application guide(s) President’s Management Agenda. In grant funding. and the regulations (7 CFR 1703.102 for addition to online application 2. Electronic grant applications must definitions, in combination with the submission, Grants.gov offers applicants be received by April 30, 2004, to be portions of the regulation cited in the a fully searchable database of Federal eligible for FY 2004 funding. Late table for each type of financial grant opportunities. All Federal grant- applications are not eligible for FY 2004 assistance) for detailed requirements for making organizations are required to grant funding. the items in the table.
Grants (7 CFR 1703.121 and 7 Combination loan-grants (7 CFR Loans (7 CFR 1703.141) and 7 CFR 1703.123) 1703.131 and 7 CFR 1703.132) CFR 1703.142)
Lease or purchase of eligible DLT Yes—equipment only ...... Yes ...... Yes. equipment and facilities. Acquire instructional programming Yes ...... Yes ...... Yes. Technical assistance, develop in- Yes, not to exceed 10% of the Yes, not to exceed 10% of the fi- Yes, not to exceed 10% of the fi- structional programming, engi- grant. nancial assistance. nancial assistance. neering or environmental studies. Medical or education equipment or No ...... Yes ...... Yes. facilities necessary to the project. Vehicles using distance learning or No ...... Yes ...... Yes. telemedicine technology to de- liver services. Teacher-student links located at No, if this is the sole project ob- Yes, if linking is part of a broader Yes, if linking is part of a broader the same facility. jective. DLT network that meets other DLT network that meets other combination loan-grant pur- loan purposes. poses. Links between medical profes- No, if this is the sole project ob- Yes, if linking is part of a broader Yes, if linking is part of a broader sionals located at the same facil- jective. DLT network that meets other DLT network that meets other ity. combination loan-grant pur- loan purposes. poses. Site development or building alter- No ...... Yes, if the activity meets other Yes, if the activity meets other ation. combination loan-grant pur- loan purposes. poses. Land or building purchase ...... No ...... Yes, if the activity meets other Yes, if necessary to the overall combination loan-grant pur- project and incidental to the poses. loan amount.
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Grants (7 CFR 1703.121 and 7 Combination loan-grants (7 CFR Loans (7 CFR 1703.141) and 7 CFR 1703.123) 1703.131 and 7 CFR 1703.132) CFR 1703.142)
Building construction...... No ...... Yes, if the activity meets other Yes, if necessary to the overall combination loan-grant pur- project and incidental to the poses. loan amount. Acquiring telecommunications No ...... Yes, if other telecommunications Yes, if other telecommunications transmission facilities. carriers will not install in a rea- carriers will not install in a rea- sonable time period & at an sonable time period & at an economically viable cost to the economically viable cost to the project. project. Salaries, wages, benefits for med- No ...... No ...... No. ical or educational personnel. Salaries/administrative expenses No ...... No ...... No. of applicant or project. Recurring project costs or oper- No (equipment leases are eligible) No (equipment & facility leases Yes, for the first two years after ating expenses. are eligible). approval (leases are not recur- ring project costs). Equipment to be owned by the Yes ...... Yes ...... Yes. LEC or other telecommuni- cations service provider, if the provider is the applicant. Duplicate distance learning or tele- No ...... No ...... No. medicine services. Any project that, for its success, No ...... No ...... No. depends on additional DLT fi- nancial assistance or other fi- nancial assistance that is not as- sured. Application preparation costs ...... No ...... No ...... No. Other project costs not covered in No ...... No ...... Yes, for the first two years of the regulation. operation. Costs & facilities providing dis- No ...... No ...... Yes; financial assistance amount tance learning broadcasting. directly proportional to the dis- tance learning portion of use. Reimburse applicant or others for No ...... No ...... No. costs incurred prior to RUS’’ re- ceipt of completed application.
2. Eligible Equipment & Facilities. listed below. Combination loan-grants e. Level of innovation demonstrated Please see 7 CFR 1703.102 for and loan applications are not scored by the project (up to 15 points). definitions of eligible equipment, competitively. However, they are f. System cost-effectiveness (up to 35 eligible facilities and evaluated on the basis of technical, points). telecommunications transmission financial, economic and other criteria. g. Project overlap with Empowerment facilities as used in the table above. Please see paragraph IV.B.2.g of this Zone, Enterprise Communities or notice for the items that will be Champion Communities designations V. Application Review Information evaluated for a combination loan-grant (up to 15 points). A. Special Considerations or Preferences or loan application, and paragraph C. Review Standards V.B.3.b. of this notice for a brief listing 1. American Samoa, Guam, Virgin of evaluation standards. 1. Grants. In addition to the scoring Islands, and Northern Mariana Islands 2. Grant application scoring criteria criteria that rank applications against applications are exempt from the (total possible points: 235) See 7 CFR each other, RUS evaluates grant matching requirement up to a match 1703.125 for the items that will be applications for possible awards on the amount of $200,000 (see 48 U.S.C. reviewed during scoring, and 7 CFR following items, according to 7 CFR 1469a; 91 Stat. 1164). 1703.126 for scoring criteria. 1703.127: 2. Related Preferences: 7 CFR a. Need for services proposed in the a. Financial feasibility. 1703.112 directs that an RUS application, and the benefits that will be b. Technical considerations. If the telecommunications borrower will derived if the application receives a application contains flaws that would receive expedited consideration and grant (up to 55 points). prevent the successful implementation, determination of a loan application or b. Rurality of the proposed service operation or sustainability of a project, advance under the Rural Electrification area (up to 45 points). RUS will not award a grant. Act of 1936 (7 U.S.C. 901–950aa, et seq.) c. Percentage of students eligible for c. Other aspects of proposals that if the loan funds in question are to be the National School Lunch Program contain inadequacies that would used in conjunction with a DLT grant, (NSLP) in the proposed service area undermine the ability of the project to loan or combination loan-grant (See 7 (demonstrates economic need of the comply with the policies of the DLT CFR 1737 for loans and 7 CFR 1744 for area) (up to 35 points). Program. advances). d. Leveraging resources above the 2. Combination loan-grants and loans. required matching level (up to 35 a. RUS evaluates applications’ B. Criteria points). Please see paragraph III.B.1.a of financial feasibility using the following 1. Grant applications are scored this notice for a brief explanation of information. Please see paragraph IV.B.g competitively and subject to the criteria matching contributions. of this of this notice for the items that
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constitute a completed combination of funds. Please see 7 CFR 1703.135 for must provide annual performance loan-grant or loan application. Also, see combination loan-grant application activity reports to RUS until the project 7 CFR 1703 Subpart F for combination processing and selection; and 7 CFR is complete and the funds are expended. loan-grants and 7 CFR 1703 Subpart G 1703.145 for loan application processing A final performance report is also for loans: and selection. required; the final report may serve as (i) Applicant’s financial ability to the last annual report. The final report VI. Award Administration Information compete the project; must include an evaluation of the (ii) Project feasibility; A. Award Notices success of the project in meeting DLT (iii) Applicant’s financial information; RUS recognizes that each funded Program objectives. See 7 CFR 1703.107. (iv) Projects sustainability; project is unique, and therefore may 2. Financial reporting. All recipients (v) Ability to repay the loan portion attach conditions to different projects’ of DLT financial assistance must of a combination loan-grant, including award documents. provide an annual audit, beginning with revenue sources; 1. Grants. RUS generally notifies the first year a portion of the financial (vi) Collateral for which the applicant applicants whose projects are selected assistance is expended. Audits are has perfected a security interest; and for awards by faxing an award letter. governed by United States Department (vii) Adequate security for a loan or RUS follows the award letter with a of Agriculture audit regulations. Please the loan portion of a combination loan- grant agreement that contains all the see 7 CFR 1703.108. grant. terms and conditions for the grant. An VII. Agency Contacts b. Services to be provided by the applicant must execute and return the project. grant agreement, accompanied by any A. Web site: http://www.usda.gov/rus/ c. Project cost. additional items required by the grant telecom/dlt/dlt.htm. The RUS’ DLT Web d. Project design. agreement, within 120 days of the site maintains up-to-date resources and e. Other characteristics. selection date. contact information for DLT programs. D. As a courtesy, RUS will examine, 2. Combination loan-grants and loans. B. Phone: 202–720–0413. provide comment, and return a. RUS generally sends a letter C. Fax: 202–720–1051. applications that include items that defining the characteristics of a loan (or D. E-mail: [email protected]. would disqualify them from further the loan portion of a combination loan- E. Main point of contact: Orren E. consideration for modification, if the grant) such as the term, interest rate and Cameron, III, Director, Advanced applications are submitted by March 31, any conditions on the loan. An Services Division, Rural Utilities 2004. If you want RUS to examine your applicant must communicate agreement Service, U.S. Department of Agriculture. application in this manner, please with the characteristics of the loan to Dated: February 23, 2004. submit your application on paper. RUS before a loan or combination loan- Grants.gov does not currently support Hilda Gay Legg, grant moves into the approval process. Administrator, Rural Utilities Service. this kind of pre-application review. b. After receiving the applicant’s [FR Doc. 04–4322 Filed 2–27–04; 8:45 am] E. Selection Process agreement on the loan characteristics, RUS supplies an approval letter to the BILLING CODE 3410–15–P 1. Grants. Grant applications are applicant. Loan documents (and a grant ranked by final score, and by agreement, if applicable) are then sent application purpose (education or by RUS. The applicant has 120 days to DEPARTMENT OF COMMERCE medical). RUS selects applications sign and return the documents, along based on those rankings, subject to the with any additional material required by Economic Development Administration availability of funds. RUS may allocate the loan or grant documents. grant awards between medical and Notice of Petitions by Producing Firms educational purposes, but is not B. Administrative and National Policy Requirements for Determination of Eligibility To required to do so. In addition, RUS has Apply for Trade Adjustment the authority to limit the number of The items listed in paragraph IV.B.2.g Assistance applications selected in any one State of this notice, and the DLT Program during a fiscal year. See 7 CFR regulation, application guides and AGENCY: Economic Development 1703.127. accompanying materials implement the Administration (EDA), Commerce. 2. Combination loan-grants and loans. appropriate administrative and national ACTION: To give all interested parties an Based on the review standards listed policy requirements. opportunity to comment. above and in the DLT Program regulation, RUS will process successful C. Reporting Petitions have been accepted for filing loan applications on a first-in, first-out 1. Performance reporting. All on the dates indicated from the firms basis, dependent upon the availability recipients of DLT financial assistance listed below.
LIST OF PETITION ACTION BY TRADE ADJUSTMENT ASSISTANCE FOR PERIOD JANUARY 22, 2004–FEBRUARY 20, 2004
Date petition Firm name Address accepted Product
Cord Master Engineering Co., Inc ...... 1544 Curran Highway, North Adams, 1/28/2004 Power supply cords. MA 01247. Tillmann Tool & Die, Inc ...... 821 Buffalo Avenue, Breckenridge, MN 1/29/2004 Plastic injection molds and mold com- 56520. ponents. Helena Industries, Inc...... 1325 Helena Avenue, Helena, MT 2/2/2004 Briefcases. 59601.
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LIST OF PETITION ACTION BY TRADE ADJUSTMENT ASSISTANCE FOR PERIOD JANUARY 22, 2004–FEBRUARY 20, 2004— Continued
Date petition Firm name Address accepted Product
Denton Vacuum, LLC ...... 1259 North Church Street, Moorestown, 2/2/2004 Self-contained cold & ultra-fine grain NJ 08057. sputter coaters; evaporation, sput- tering and high vacuum carbon evap- orator systems; multi-cathode DC/RF magnetron sputter systems; and other thin film depositions systems. Minnesota Dehydrated Vegetables, Inc 915 Omland Avenue North, Fosston, 2/2/2004 Dried carrots. MN 56542. Gourmet Foods, Inc ...... 367 Persimmon Hill Lane, Lampe, MO 2/4/2004 Berry and honey products. 65681. Pro-Safe Professional Linens, Inc. dba 1240 Pitkin Avenue, Grand Junction, 2/6/2004 Disposable infection control protective ProSafe Products. CO 81501. covers. RAM Fabricating Corporation ...... 412 Wavel Street, Syracuse, NY 13206 2/9/2004 Metal tubing assemblies and parts. Chanticleer Pottery ...... 711 West Russell Street, Ironton, MO 2/10/2004 Hand made pottery. 63650. Cornerstone Steel Inc...... 925 Hastings Avenue, Searcy, AR 2/10/2004 Steel, bridge sections. 72145. Eagle Electronics, Inc ...... 1735 Mitchell Boulevard, Schaumburg, 2/10/2004 Multi-layer printed circuit boards. IL 60193. PlaySmart, Inc ...... 107 North Missouri Ave., Sedalia, MO 2/10/2004 Soft playground equipment. 65301. Stern Leach Company ...... 49 Pearl Street, Attleboro, MA 02703 ... 2/10/2004 Silver flat, wire, and tubing stock and grains/solder. Sunline Coach Company, Inc ...... 245 South Muddy Creek Rd., Denver, 2/11/2004 Towable travel trailers. PA 17517. Billet Industries, Inc ...... 247 Campbell Road, York, PA 17402 ... 2/17/2004 Machinery parts for the pump and ma- terial handling industries. MEKanize, Inc...... 1420 Quail Lake Loop, Colorado 2/19/2004 Industrial robots. Springs, CO 80906. Stylex, Inc...... 740 Coopertown Road, Delanco, NJ 2/19/2004 Office seating including task, executive, 08075. conference and stack. O’Neil & Associates, Inc...... 495 Byers Road, Miamisburg, OH 2/29/2004 Technical, scientific and professional 45342. books.
The petitions were submitted Dated: February 23, 2004. regulations of the Board (15 CFR part pursuant to section 251 of the Trade Act Anthony J. Meyer, 400). It was formally filed on February of 1974 (19 U.S.C. 2341). Consequently, Coordinator, Trade Adjustment and 20, 2004. the United States Department of Technical Assistance. The Turbomeca facility (11 acres, 200 Commerce has initiated separate [FR Doc. 04–4423 Filed 2–27–04; 8:45 am] employees) is located at 2709 Forum investigations to determine whether BILLING CODE 3510–24–P Drive, Grand Prairie, Texas. The facility increased imports into the United States will be used for the repair and of articles like or directly competitive maintenance of helicopter engines (HTS DEPARTMENT OF COMMERCE with those produced by each firm 8411.81 duty-free). Components and contributed importantly to total or Foreign-Trade Zones Board materials sourced from abroad partial separation of the firm’s workers, (representing 100% of all parts used in or threat thereof, and to a decrease in [Docket 4–2004] the manufacturing process) include: O- Rings and seals, maintenance manuals, sales or production of each petitioning Foreign-Trade Zone 39—Dallas/Fort mechanical fittings, unions, sleeves and firm. Any party having a substantial Worth, TX, Application for Subzone, couplings, connection hardware, interest in the proceedings may request Turbomeca U.S.A. (Helicopter Engine springs, tools for assembly, engines and a public hearing on the matter. A Repair and Maintenance); Grand request for a hearing must be received Prairie, TX engine kits, parts of engines, fuel and oil by Trade Adjustment Assistance, Room pumps, filters and filter elements, 7315, Economic Development An application has been submitted to valves, gears, electrical switches, control Administration, U.S. Department of the Foreign-Trade Zones Board (the boxes, electrical wiring and harness, Commerce, Washington, DC 20230, no Board) by the Dallas/Fort Worth measuring tools, fuel control units, later than the close of business of the International Airport, grantee of FTZ 39, pressure transmitters, parts of fuel tenth calendar day following the requesting special-purpose subzone control units, fire detectors, speed publication of this notice. The Catalog status for the manufacturing and sensing devices, electrical test warehousing facilities of Turbomeca equipment (duty rate ranges from duty- of Federal Domestic Assistance official U.S.A. (Turbomeca), located in Grand free to 9%) and bearings (HTS 8482.10 program number and title of the Prairie, Texas. The application was and 8482.50, duty rate ranges from 5.8– program under which these petitions are submitted pursuant to the provisions of 9%). The application indicates that submitted is 11.313, Trade Adjustment the Foreign-Trade Zones Act, as bearings would be admitted in Assistance. amended (19 U.S.C. 81a–81u), and the privileged-foreign status.
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FTZ procedures would exempt respondent burden, invites the general practical utility; (b) the accuracy of the Turbomeca from Customs duty public and other Federal agencies to agency’s estimate of the burden payments on the foreign components take this opportunity to comment on (including hours and cost) of the used in export production. Some 25 proposed and/or continuing information proposed collection of information; (c) percent of the plant’s shipments are collections, as required by the ways to enhance the quality, utility, and exported. On its domestic sales, Paperwork Reduction Act of 1995, clarity of the information to be Turbomeca would be able to choose the Public Law 104–13 (44 U.S.C. collected; and (d) ways to minimize the duty rates during Customs entry 3506(c)(2)(A)). burden of the collection of information procedures that apply to engines (duty- DATES: Written comments must be on respondents, including through the free) for the foreign inputs noted above. submitted on or before April 30, 2004. use of automated collection techniques The request indicates that the savings or other forms of information ADDRESSES: Direct all written comments from FTZ procedures would help technology. to Diana Hynek, Departmental improve the plant’s international Paperwork Clearance Officer, Comments submitted in response to competitiveness. Department of Commerce, Room 6625, this notice will be summarized and/or In accordance with the Board’s included in the request for OMB regulations, a member of the FTZ staff 14th and Constitution Avenue, NW., Washington, DC 20230. approval of this information collection; has been appointed examiner to they will also become a matter of public FOR FURTHER INFORMATION CONTACT: investigate the application and report to record. the Board. Requests for additional information or Public comment is invited from copies of the information collection Dated: February 24, 2004. interested parties. Submissions (original instrument(s) and instructions should Madeleine Clayton, and 3 copies) shall be addressed to the be directed to Marna Dove, BISA ICB Management Analyst, Office of the Chief Board’s Executive Secretary at one of Liaison, Department of Commerce, Information Officer. the following addresses: Room 6622, 14th & Constitution [FR Doc. 04–4419 Filed 2–27–04; 8:45 am] 1. Submissions Via Express/Package Avenue, NW., Washington, DC 20230. BILLING CODE 3510–33–P Delivery Services: Foreign-Trade-Zones SUPPLEMENTARY INFORMATION: Board, U.S. Department of Commerce, Franklin Court Building—Suite 4100W, I. Abstract DEPARTMENT OF COMMERCE 1099 14th St. NW., Washington, DC The SCL Procedure authorizes 20005; or multiple shipments of items from the International Trade Administration 2. Submissions Via the U.S. Postal U.S. or from approved consignees Antidumping or Countervailing Duty Service: Foreign-Trade-Zones Board, abroad who are approved in advance by Order, Finding, or Suspended U.S. Department of Commerce, FCB— BIS to conduct the following activities: Investigation; Opportunity to Request Suite 4100W, 1401 Constitution Ave. servicing, support services, stocking Administrative Review NW., Washington, DC 20230. spare parts, maintenance, capital The closing period for their receipt is expansion, manufacturing, support AGENCY: Import Administration, April 30, 2004. Rebuttal comments in scientific data acquisition, reselling and International Trade Administration, response to material submitted during reexporting in the form received, and Department of Commerce. the foregoing period may be submitted other activities as approved on a case- during the subsequent 15-day period (to by-case basis. ACTION: Notice of opportunity to request May 17, 2004). administrative review of antidumping or A copy of the application and II. Method of Collection countervailing duty order, finding, or accompanying exhibits will be available Submitted on forms. suspended investigation. for public inspection at the Office of the III. Data Foreign-Trade Zones Board’s Executive Background Secretary at the first address listed OMB Number: 0694–0089. Each year during the anniversary above, and at the U.S. Department of Form Number: BIS–748P and BIS– month of the publication of an Commerce Export Assistance Center, 752P. antidumping or countervailing duty 2000 E. Lamar Boulevard, Suite 430, Type of Review: Regular submission order, finding, or suspension of Arlington, Texas 76006. for extension of a currently approved collection. investigation, an interested party, as Dated: February 20, 2004. Affected Public: Individuals, defined in section 771(9) of the Tariff Dennis Puccinelli, businesses or other for-profit and not- Act of 1930, as amended (the Act), may Executive Secretary. for-profit institutions. request, in accordance with section [FR Doc. 04–4495 Filed 2–27–04; 8:45 am] Estimated Number of Respondents: 351.213(2002) of the Department of BILLING CODE 3510–DS–P 10. Commerce (the Department) Estimated Time Per Response: 27 Regulations, that the Department hours per response. conduct an administrative review of that DEPARTMENT OF COMMERCE Estimated Total Annual Burden antidumping or countervailing duty Hours: 1,017. order, finding, or suspended Bureau of Industry and Security Estimated Total Annual Cost: No investigation. Special Comprehensive License start-up or capital expenditures. Opportunity to Request a Review IV. Request for Comments ACTION: Notice and request for Not later than the last day of March comments. Comments are invited on: (a) Whether 2004, interested parties may request the proposed collection of information administrative review of the following SUMMARY: The Department of is necessary for the proper performance orders, findings, or suspended Commerce, as part of its continuing of the functions of the agency, including investigations, with anniversary dates in effort to reduce paperwork and whether the information shall have March for the following periods:
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Period
Antidumping Duty Proceeding Bangladesh: Cotton Shop Towels, A–538–802 ...... 3/1/03–2/29/04 Brazil: Certain Hot-Rolled Carbon Steel Flat Products, A–351–828 ...... 3/1/03–2/29/04 Canada: Iron Construction Castings, A–122–503 ...... 3/1/03–2/29/04 France: Brass Sheet & Strip, A–427–602 ...... 3/1/03–2/29/04 Stainless Steel Bar, A–427–820 ...... 3/1/03–2/29/04 Germany: Brass Sheet & Strip, A–428–602 ...... 3/1/03–2/29/04 Stainless Steel Bar, A–428–830 ...... 3/1/03–2/29/04 India: Sulfanilic Acid, A–533–806 ...... 3/1/03–2/29/04 Italy: Brass Sheet & Strip, A–475–601 ...... 3/1/03–2/29/04 Stainless Steel Bar, A–475–829 ...... 3/1/03–2/29/04 Japan: Stainless Steel Butt-Weld Pipe Fittings, A–588–702 ...... 3/1/03–2/29/04 Republic of Korea: Stainless Steel Bar, A–580–847 ...... 3/1/03–2/29/04 Russia: Silicon Metal, A–821–817 ...... 6/22/02–2/29/04 Spain: Stainless Steel Bar, A–469–805 ...... 3/1/03–2/29/04 Taiwan: Light-Walled Welded Rectangular Carbon Steel Tubing, A–583–803 ...... 3/1/03–2/29/04 Thailand: Circular Welded Carbon Steel Pipes & Tubes, A–549–502 ...... 3/1/03–2/29/04 The People’s Republic of China: Chloropicrin, A–570–002 ...... 3/1/03–2/29/04 Glycine, A–570–836 ...... 3/1/03–2/29/04 United Kingdom: Stainless Steel Bar, A–412–822 ...... 3/1/03–2/29/04 Countervailing Duty Proceeding France: Brass Sheet and Strip, C–427–603 ...... 1/1/03–12/31/03 India: Sulfanilic Acid, C–533–807 ...... 1/1/03–12/31/03 Iran: In-Shell Pistachios Nuts, C–507–501 ...... 1/1/03–12/31/03 Italy: Stainless Steel Bar, C–475–830 ...... 1/1/03–12/31/03 Pakistan: Cotton Shop Towels, C–535–001 ...... 1/1/03–12/31/03 Turkey: Welded Carbon Steel Pipes and Tubes, C–489–502 ...... 1/1/03–12/31/03 Suspension Agreements None.
In accordance with section 351.213(b) intermediate firms are involved. The or suspended investigation listed in this of the regulations, an interested party as public should be aware of this notice and for the period identified defined by section 771(9) of the Act may clarification in determining whether to above, the Department will instruct the request in writing that the Secretary request an administrative review of Customs Service to assess antidumping conduct an administrative review. For merchandise subject to antidumping or countervailing duties on those entries both antidumping and countervailing findings and orders. See also the Import at a rate equal to the cash deposit of (or duty reviews, the interested party must Administration web site at bond for) estimated antidumping or specify the individual producers or www.ia.ita.doc.gov. countervailing duties required on those exporters covered by an antidumping Six copies of the request should be entries at the time of entry, or finding or an antidumping or submitted to the Assistant Secretary for withdrawal from warehouse, for countervailing duty order or suspension Import Administration, International consumption and to continue to collect agreement for which it is requesting a Trade Administration, Room 1870, U.S. the cash deposit previously ordered. review, and the requesting party must Department of Commerce, 14th Street & This notice is not required by statute state why it desires the Secretary to Constitution Avenue, NW., Washington, but is published as a service to the review those particular producers or DC 20230. The Department also asks international trading community. exporters. If the interested party intends parties to serve a copy of their requests for the Secretary to review sales of to the Office of Antidumping/ Dated: February 23, 2004. merchandise by an exporter (or a Countervailing Enforcement, Attention: Holly A. Kuga, producer if that producer also exports Sheila Forbes, in room 3065 of the main Acting Deputy Assistant Secretary, Group II merchandise from other suppliers) Commerce Building. Further, in for Import Administration. which were produced in more than one accordance with section 351.303(f)(l)(i) [FR Doc. 04–4493 Filed 2–27–04; 8:45 am] country of origin and each country of of the regulations, a copy of each BILLING CODE 3510–DS–P origin is subject to a separate order, then request must be served on every party the interested party must state on the Department’s service list. specifically, on an order-by-order basis, The Department will publish in the DEPARTMENT OF COMMERCE which exporter(s) the request is Federal Register a notice of ‘‘Initiation intended to cover. of Administrative Review of International Trade Administration As explained in Antidumping and Antidumping or Countervailing Duty Countervailing Duty Proceedings: Order, Finding, or Suspended Initiation of Five-Year (‘‘Sunset’’) Assessment of Antidumping Duties, 69 Investigation’’ for requests received by Reviews FR 23954 (May 6, 2003), the Department the last day of March 2004. If the has clarified its practice with respect to Department does not receive, by the last AGENCY: Import Administration, the collection of final antidumping day of March 2004, a request for review International Trade Administration, duties on imports of merchandise where of entries covered by an order, finding, Department of Commerce.
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ACTION: Notice of Initiation of Five-Year FOR FURTHER INFORMATION CONTACT: relevant to the Department’s conduct of (‘‘Sunset’’) Reviews. Hilary E. Sadler, Esq. or Martha Douthit, sunset reviews is set forth in the Office of Policy, Import Administration, Department’s Policy Bulletin 98.3— SUMMARY: In accordance with section International Trade Administration, Policies Regarding the Conduct of Five- 751(c) of the Tariff Act of 1930, as U.S. Department of Commerce at (202) Year (‘‘Sunset’’) Reviews of amended (‘‘the Act’’), the Department of 482–4340 or 5050, or Mary Messer, Antidumping and Countervailing Duty Commerce (‘‘the Department’’) is Office of Investigations, U.S. Orders; Policy Bulletin, 63 FR 18871 automatically initiating five-year International Trade Commission at (202) (April 16, 1998) (‘‘Sunset Policy (‘‘sunset’’) reviews of the antidumping 205–3193. Bulletin’’). duty orders listed below. The SUPPLEMENTARY INFORMATION: Initiation of Reviews International Trade Commission (‘‘the Background Commission’’) is publishing The Department’s procedures for the In accordance with 19 CFR concurrently with this notice its notice conduct of sunset reviews are set forth 351.218(c), we are initiating sunset of Institution of Five-Year Review, in 19 CFR 351.218. Guidance on reviews of the following antidumping which covers these same orders. methodological or analytical issues duty orders:
DOC Case No. ITC Case No. Country Product
A–570–101 ...... 731–TA–101 ...... China ...... Greige Polyester Print Cloth. A–570–002 ...... 731–TA–130 ...... China ...... Chloropicrin.
Filing Information proprietary information under APO can conduct of sunset reviews.1 Please be found at 19 CFR 351.304–306. consult the Department’s regulations at As a courtesy, we are making 19 CFR part 351 for definitions of terms Information Required From Interested information related to sunset and for other general information Parties proceedings, including copies of the concerning antidumping and Department’s regulations regarding Domestic interested parties (defined countervailing duty proceedings at the sunset reviews (19 CFR 351.218) and in 19 CFR 351.102(b) and section Department. Sunset Policy Bulletin, the Department’s 771(9)(C), (D), (E), (F), and (G) of the Act This notice of initiation is being schedule of sunset reviews, case history ) wishing to participate in these sunset published in accordance with section information (i.e., previous margins, duty reviews must respond not later than 15 751(c) of the Act and 19 CFR 351.218(c). absorption determinations, scope days after the date of publication in the Dated: February 24, 2004. language, import volumes), and service Federal Register of the notice of lists, available to the public on the James J. Jochum, initiation by filing a notice of intent to Assistant Secretary, Import Administration. Department’s sunset Internet Web site at participate. The required contents of the [FR Doc. 04–4498 Filed 2–27–04; 8:45 am] the following address: ‘‘http:// notice of intent to participate are set ia.ita.doc.gov/sunset/’’. forth at 19 CFR 351.218(d)(1)(ii). In BILLING CODE 3310–DS–P All submissions in these sunset accordance with the Department’s reviews must be filed in accordance regulations, if we do not receive a notice DEPARTMENT OF COMMERCE with the Department’s regulations of intent to participate from at least one regarding format, translation, service, domestic interested party by the 15-day International Trade Administration and certification of documents. These deadline, the Department will rules can be found at 19 CFR 351.303. automatically revoke the order without (A–588–046) further review. See 19 CFR Also, we suggest that parties check the Notice of Initiation of Antidumping 351.218(d)(1)(iii). Department’s sunset Web site for any Duty Changed Circumstances Review: updates to the service list before filing If we receive an order-specific notice Polychloroprene Rubber from Japan any submissions. The Department will of intent to participate from a domestic make additions to and/or deletions from interested party, the Department’s AGENCY: Import Administration, the service list provided on the sunset regulations provide that all parties International Trade Administration, website based on notifications from wishing to participate in the sunset Department of Commerce. parties and participation in these review must file complete substantive ACTION: Notice of Initiation of reviews. Specifically, the Department responses not later than 30 days after Antidumping Duty Changed will delete from the service list all the date of publication in the Federal Circumstances Review. parties that do not submit a substantive Register of the notice of initiation. The response to the notice of initiation. required contents of a substantive SUMMARY: In accordance with section Because deadlines in a sunset review response, on an order-specific basis, are 751(b) of the Tariff Act of 1930, as are, in many instances, very short, we set forth at 19 CFR 351.218(d)(3). Note amended, (the Act) and 19 CFR 351.216 urge interested parties to apply for that certain information requirements (2003), Showa Denko K.K. (SDK) access to proprietary information under differ for respondent and domestic parties. Also, note that the Department’s 1 A number of parties commented that these administrative protective order (‘‘APO’’) interim-final regulations provided insufficient time immediately following publication in information requirements are distinct for rebuttals to substantive responses to a notice of the Federal Register of the notice of from the International Trade initiation, 19 CFR 351.218(d)(4). Public comments initiation of the sunset review. The Commission’s information can be viewed at http://www.ia.ita.doc.gov/sunset/ requirements. Please consult the index.html. As provided in 19 CFR 351.302(b), the Department’s regulations on submission Department will consider individual requests for of proprietary information and Department’s regulations for extension of that five-day deadline based upon a eligibility to receive access to business information regarding the Department’s showing of good cause.
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requested that the Department of shows changed circumstances sufficient with 19 CFR 351.221(b)(4) and 19 CFR Commerce (the Department) conduct an to warrant a review. See 19 CFR 351.221(c)(3)(i). This notice will set expedited changed circumstances 351.216(d). forth the factual and legal conclusions review of the antidumping duty finding In antidumping duty changed upon which our preliminary results are on polychloroprene rubber (PR) from circumstances reviews involving a based and a description of any action Japan. In response to this request, the successor–in-interest determination, the proposed based on those results. Department is initiating a changed Department typically examines several Pursuant to 19 CFR 351.221(b)(4)(ii), circumstances review of the above– factors including, but not limited to, interested parties will have an referenced finding. changes in: (1) management; (2) opportunity to comment on the EFFECTIVE DATE: March 1, 2004. production facilities; (3) supplier preliminary results of review. In relationships; and (4) customer base. FOR FURTHER INFORMATION CONTACT: Zev accordance with 19 CFR 351.216(e), the See Brass Sheet and Strip from Canada: Primor, AD/CVD Enforcement, Group II, Department will issue the final results Notice of Final Results of Antidumping of its antidumping duty changed Office 4, Import Administration, Administrative Review, 57 FR 20460, International Trade Administration, circumstances review not later than 270 20462 (May 13, 1992) (Canadian Brass). days after the date on which the review U.S. Department of Commerce, 14th While no single factor or combination of Street and Constitution Avenue, NW, is initiated. factors will necessarily be dispositive, During the course of this antidumping Washington, DC 20230; telephone (202) the Department generally will consider 482–4114. duty changed circumstances review, we the new company to be the successor to will not change the cash deposit SUPPLEMENTARY INFORMATION: the predecessor company if the resulting requirements for the merchandise Background operations are essentially the same as subject to review. The cash deposit will those of the predecessor company. See, only be altered, if warranted, pursuant On December 6, 1973, the Department e.g., Industrial Phosphoric Acid from to the final results of this review. of Treasury published in the Federal Israel: Final Results of Changed This notice of initiation is in Register (38 FR 33593) the antidumping Circumstances Review, 59 FR 6944, accordance with sections 751(b)(1) of finding on PR from Japan. On January 6945 (February 14, 1994), and Canadian the Act and 19 CFR 351.221(b)(1). 14, 2004, SDK submitted a letter stating Brass, 57 FR 20460. Thus, if the record that they are the successor–in-interest to evidence demonstrates that, with Dated: February 23, 2004. Showa DDE Manufacturing K.K. (SDEM) respect to the production and sale of the James J. Jochum, and DDE Japan Kabushiki Kaisha (DDE subject merchandise, the new company Assistant Secretary for Import Japan) (collectively, SDEM/DDE Japan) operates as the same business entity as Administration. and, as such, entitled to receive the the predecessor company, the [FR Doc. 04–4496 Filed 2–27–04; 8:45 am] same antidumping treatment as these Department may assign the new BILLING CODE 3510–DS–S companies have been accorded. company the cash deposit rate of its Accordingly, SDK requested that the predecessor. See, e.g., Fresh and Chilled Department conduct an expedited Atlantic Salmon from Norway: Final DEPARTMENT OF COMMERCE changed circumstances review of the Results of Changes Circumstances International Trade Administration antidumping duty finding on PR from Antidumping Duty Administrative Japan pursuant to section 751(b)(1) of Review, 64 FR 9979, 9980 (March 1, [A–351–824] the Act and 19 CFR 351.221(c)(3)(ii) of 1999). Although SDK submitted the Department’s regulations. information indicating, allegedly, that Silicomanganese From Brazil: Extension of Time Limit for Final Scope of Review with respect to subject merchandise, it operates in the same manner as its Results of Antidumping Duty Imports covered by this review are predecessor, SDEM/DDE Japan, the Administrative Review shipments of PR, an oil resistant Department has determined that the synthetic rubber also known as AGENCY: Import Administration, submitted information is deficient and International Trade Administration, polymerized chlorobutadiene or is currently in the process of collecting Department of Commerce. neoprene, currently classifiable under supplemental information. items 4002.41.00, 4002.49.00, Concerning SDK’s request that the ACTION: Notice of extension of time limit 4003.00.00 of the Harmonized Tariff Department conduct an expedited for final results of antidumping duty Schedule of the United States (HTSUS). antidumping duty changed administrative review. HTSUS item numbers are provided for circumstances review, the Department SUMMARY: The Department of Commerce convenience and customs purpose. The has determined that it would be is extending the time limit for the final Department’s written description of the inappropriate to expedite this action by results of the administrative review of scope remains dispositive. combining the preliminary results of the antidumping duty order on review with this notice of initiation, as Initiation of Antidumping Duty silicomanganese from Brazil. The final permitted under 19 CFR Changed Circumstances Review results of this review are now due no 351.221(c)(3)(ii). Because the submitted later than March 16, 2004. Pursuant to section 751(b)(1) of the record supporting SDK’s claims is Act, the Department will conduct a deficient, the Department finds that an EFFECTIVE DATE: March 1, 2004. changed circumstances review upon expedited proceeding is impracticable. FOR FURTHER INFORMATION CONTACT: receipt of information concerning, or a Therefore, the Department is not issuing Brian Ellman, (202) 482–4852, or Katja request from an interested party for a the preliminary results of its Kravetsky, (202) 482–0108, AD/CVD review of, an antidumping duty finding antidumping duty changed Enforcement 3, Import Administration, which shows changed circumstances circumstances review at this time. International Trade Administration, sufficient to warrant a review of the The Department will publish in the U.S. Department of Commerce, 14th order. Information submitted by SDK Federal Register a notice of preliminary Street and Constitution Ave., NW, regarding a change in ownership of the results of antidumping duty changed Washington, DC 20230. prior SDEM/DDE Japan joint venture circumstances review, in accordance SUPPLEMENTARY INFORMATION:
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Background original Certificate was published in the Amada America Inc., Buena Park, CA; On October 27, 2003, the Department Federal Register on May 22, 1987 (52 Atlas Technologies Inc., Fenton, MI; of Commerce (the Deparment) published FR 19371). ATS Workholding, Inc., Anaheim, CA; the preliminary results of the FOR FURTHER INFORMATION CONTACT: Automation Specialties, Inc., Howell, administrative review of the Jeffrey Anspacher, Director, Office of MI; antidumping duty order on Export Trading Company Affairs, Automation Tool Company, Cookeville, silicomanganese from Brazil. See International Trade Administration, TN; Silicomanganese from Brazil: (202) 482–5131, (this is not a toll free Baublys Control Laser, Orlando, FL; Preliminary Results of Antidumping number) or by E-mail at Beaumont Machine, Inc., Milford, OH; Duty Administrative Review, 68 FR [email protected]. Better Engineering, Mfg., Inc., Baltimore, MD; 61185. We invited parties to comment SUPPLEMENTARY INFORMATION: Title III of on our preliminary results. We received Bock Workholding Inc., Mars, PA; the Export Trading Company Act of Bosch Rexroth-Electric Drives & Cntrls, comments from both the petitioner and 1982 (15 U.S.C. 4001–21) authorizes the the respondent. Currently, the final Hoffman Estates, IL; Secretary of Commerce to issue Export Brinkman International Group, Inc., results of this administrative review are Trade Certificates of Review. The due no later than February 24, 2004. Rochester, NY; regulations implementing Title III are Buck Forkardt Inc., Portage, MI; Extension of Time Limit for Final found at 15 CFR part 325 (2003). Carboloy Inc., Detroit, MI; Results of Review The Office of Export Trading Cedarberg Industries, Inc., Eagan, MN; Company Affairs (‘‘OETCA’’) is issuing Section 751(a)(3)(A) of the Tariff Act Chick Workholding Solutions, Inc., this notice pursuant to 15 CFR 325.6(b), of 1930, as amended (the Act), provides Warrendale, PA; which requires the Department of that the Department will issue the final Cincinnati Grinding Technologies, Commerce to publish a summary of a results of an administrative review Middletown, OH; Certificate in the Federal Register. within 120 days after the date on which CNC Engineering, Inc., Enfield, CT; Under section 305(a) of the Act and 15 the preliminary results were published. Coe Press Equipment Corp., Sterling CFR 325.11(a), any person aggrieved by It provides further that, if it is not Heights, MI; the Secretary’s determination may, practicable to complete the review Columbus McKinnon for the activities within 30 days of the date of this notice, within the 120–day period, the of its Positech Division, Laurens, IA; bring an action in any appropriate Department may extend the period by Control Gaging, Inc., Ann Arbor, MI; district court of the United States to set 60 days. CRI, Centerless Rebuilders, Inc., aside the determination on the ground This review involves complex cost Chesterfield Township, MI; that the determination is erroneous. issues, such as high inflation, and the Curran Manu. Corp. for the activities of Department needs additional time to Description of Amended Certificate its Royal Products Division, consider the arguments raised by the Hauppauge, NY; The Association for Manufacturing Cutting Edge Optronics, Inc., Saint parties after the preliminary results of Technology’s (‘‘AMT’’) original review. For these reasons, the Charles, MO; certificate was issued on May 19, 1987 Cyril Bath Company, Monroe, NC; Department has determined that it is not (52 FR 19371, May 22, 1987) and lastly practicable to complete the final results Daco Jaw Company, Milwaukee, WI; amended on March 1, 2002 (67 FR Daewoo Heavy Industries, America within the time limits mandated by 12524 , March 19, 2002). Corp., West Caldwell, NJ; section 751(a)(3)(A) of the Act. AMT’s Certificate has been amended Detroit Edge Tool Company, Detroit, MI; Therefore, in accordance with that as follows: DiManco, Inc., Utica, NY; section, the Department is extending the (1) The following companies have Dorian Tool International, East Bernard, time limit for completion of the final been added as ‘‘Members’’ of the TX; results by 21 days. The final results of Certificate within the meaning of Doringer Cold Saws, Inc., Gardena, CA; review are now due no later than March section 325.2(l) of the Regulations (15 DP Technology Corp. /ESPRIT, 16, 2004. CFR 325.2(l)): Camarillo, CA; Dated: February 23, 2004. A & A Manufacturing Company, Inc., DS Technology (USA) Inc., Cincinnati, Jeffrey May, New Berlin, WI; OH; Deputy Assistant Secretary for Import Abbott Workholding Products, Eagle Machine Tools, Inc., Fort Administration, Group I. Manhattan, KS; Lauderdale, FL; [FR Doc. 04–4494 Filed 2–27–02; 8:45 am] Action SuperAbrasive Products, Eimeldingen Corporation, Indianapolis, BILLING CODE 3510–DS–S Brimfield, OH; IN; Acu-Rite, Jamestown; NY; Eitel Presses, Inc., Orwigsburg, PA; Adept Technology Inc., Livermore, CA; EMAG L.L.C., Farmington Hills, MI; DEPARTMENT OF COMMERCE Agie Charmilles Group, Charlotte, NC; Enerpac., Milwaukee, WI; Ahaus Tool and Engineering, Inc., Engis Corporation, Wheeling, IL; International Trade Administration Richmond, IN; Eriez Magnetics, Erie, PA; Airflow Systems, Inc., Dallas, TX; ExxonMobil Lubricants & Petrol Spec Export Trade Certificate of Review Airtronics Gage & Machine Co., Elgin, Co., Fairfax, VA; ACTION: Notice of issuance of an IL; Fagor Automation Corporation, Elk amended export trade certificate of Allen-Brady Co./Rockwell Automation, Grove Village, IL; review, application No. 87–17A04. Milwaukee, WI; FANUC Robotics America, Inc., Allied Machine & Engineering Corp., Rochester Hills, MI; SUMMARY: The Department of Commerce Dover, OH; Fred V. Fowler Co., Inc., Newton, MA; has issued an amended Export Trade Aloris Tool Technology Co., Inc., GE Fanuc Automation Americas, Inc., Certificate of Review (‘‘Certificate’’) to Clifton, NJ; Charlottesville VA; The Association for Manufacturing AltaMAR Laser and Control, Fridley, Gibbs & Associates, Moorpark, CA; Technology. Notice of issuance of the MN; Giddings & Lewis LLC, Fon DU Lac, WI;
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Russell T. Gillman, Inc.—An SKF Co., Nook Industries, Inc., Cleveland, OH; Suburban Tool, Inc., Auburn Hills, MI; Grafton, WI; Northfield Precision Instrument Corp., Suhner Manufacturing Inc., Rome, GA; Gleason Corporation, Rochester, NY; Island Park, NY; Systems Engineering Company Inc., Govro-Nelson Company, St. Clair, MI; NorthTech Workholding, Inc., Milwaukee, WI; Gudel Lineartec, Inc., Ann Arbor, MI; Schaumburg, IL; T2K—Tooling 2000, Redmond, WA; Guhring, Inc., Brookfield, WI; Norwalk Innovation, Inc., Shelton, CT; Telesis Technologies, Inc., Circleville, Hangsterfer’s Laboratories, Inc., Mantua, Novellus Systems, Inc., Chandler, AZ; OH; NJ; Novi Precision Products, Inc., Brighton, The Timken Company, Torrington, CT; Hansford Parts And Products, Macedon, MI; Thomson Industries, Inc., Port NY; NSK Precision America Inc., Washington, NY; Heller Machine Tools, Troy, MI; Bloomingdale, IL; Tri-Cam, Inc., Rockford, IL; Helmel Engineering Products, Inc., Nuvonyx Inc., Bridgeton, MO; Tri-Turn Technologies, Inc., Euclid, OH; Niagara Falls, NY; Penn United Technology, Inc., Troyke Manufacturing Co., Cincinnati, Hines Industries, Inc., Ann Arbor, MI; Saxonburg, PA; OH; Hoffmann Filter Corporation, Brighton, Phillips Corporation, Columbia, MD; TRU TECH Systems, Inc., Mount MI; PIA Group, Cincinnati, OH; Clemens, MI; Huron Machine Products, Inc., Fort Pines Manufacturing, Westlake, OH; Ultra-Grip International, Inc., Walled Lauderdale, FL; Polymer Sealing Solutions for the Lake, MI; INA USA, Corp., Fort Mill, SC; activities of its Seals Division, Fort Unist, Inc., Grand Rapids, MI; Inductoheat, Inc., Madison Heights, MI; Wayne, IN; Vektek, Inc., Elwood, KS; Ingersoll Cutting Tool Company, Positrol, Inc., Cincinnati, OH; Vermont Machine Tool Corp., Rockford, IL; PowerHold Incorporated, Middlefield, Springfield, VT; Ingersoll Production Systems, Rockford, CT; Vibro/Dynamics Corporation, IL; P R C Laser, Landing, NJ; Broadview, IL; Innovative Products & Equip., Inc., Precision Industries Corporation, VX Corporation, Palm Bay, FL; Lowell, MA; Elkhart, IN; O. S. Walker Company, Worcester, MA; Intelitek, Manchester, NH; Preco Laser Systems, LLC, Somerset, Walter Waukesha, Inc., Waukesha, WI. Jensen Fabricating Engineers, Inc., WI; (2) The following companies have Berlin, CT; Premier Tooling Systems, Grand Blanc, been deleted as ‘‘Members’’ of the Jet Edge, Saint Michael, MN; MI; Certificate within the meaning of Kalamazoo Machine Tool, Portage, MI; Pressure Island, Davidson, NC; section 325.2(l) of the Regulations (15 KAPP Technologies, Boulder, CO; PRIMA North America, Inc., Chicopee, CFR 325.2(l)): Kennametal Inc.—World Headquarters, MA; Latrobe, PA; QPAC-Quality Products & Concepts, Alliance Automation Systems Komet of America, Inc., Schaumburg, Lansing, MI; ATS Carolina IL; Quality Vision International Inc., ATS Michigan Koolant Koolers, Inc., Kalamazoo, MI; Rochester, NY; ATS Ohio KPT/Kaiser Precision Tooling, Inc., Elk Quantronix Corporation, East Setauket, ATS Oregon Grove Village, IL; NY; ATS Southwest Lexair/Production Dynamics, Lexington, Ranshoff, Inc., Cincinnati, OH; BHS-Torin Inc. KY; Raycon Corporation, Ann Arbor, MI; Blue Valley Machine and Manufacturing Littell, Addison, IL; Royal Machine & Tool Corporation, Co. LNS America, Inc., Cincinnati, OH; Berlin, CT; Bridgeport Machines, Inc. Logansport Matsumoto Co., Inc., Saint-Gobain Abrasives, Inc., Worcester, Cargill Detroit Corp. Logansport, IN; MA; Cone-Blanchard Machine Co. Lovejoy Tool Company, Inc., W.J. Savage Co. for the activities of its Centro-Metalcut Inc. Springfield, VT; Savage Saws Division, Knoxville, TN; Dustvent Inc. Mahr Federal Inc., Providence, RI; Schunk, Inc., Morrisville, NC; Dynetics Corporation Maintenance Service Corp., Milwaukee, Scientific Technologies, Inc., Fremont, Eagle Eaton Leonard Inc. WI; CA; Edgetek Machine Corp. Mass Finishing, Inc., Delano, MN; Sescoi USA, Inc., Southfield, MI; Evana Automation Inc. Mastercam/CNC Software, Inc., Tolland, SGS Tool Company, Munroe Falls, OH; E.W. Bliss Company CT; Siemens Energy & Automation, Inc., Elk Gallmeyer & Livingston Company Master Chemical Corporation, Grove Village, IL; Goss & De Leeuw Machine Company, Perrysburg, OH; SMW Systems, Inc., Santa Fe Springs, The Master Work-Holding, Inc., Morganton, CA; Grav-I-Flo Corp. NC; Sortimat Technology L.P., Schaumburg, Griffin Automation Mate Precision Tooling, Anoka, MN; IL; Hansvedt EDM Division MDSI, Ann Arbor, MI; Southwestern Industries, Inc., Rancho Hegenscheidt Corporation Mestek Inc., Westfield, MA; Dominguez, CA; Heim Corp. Michigan Custom Machines, SSD Control Technology, Inc., South Herman Williams Company, Inc. Farmington Hills, MI; Bend, IN; Hertlein Special Tool Co., Inc. Micro Centric Corporation, Plainview, The L.S. Starrett Co., Athol, MA; Hitachi Seiki USA NY; The Precise Corporation, Racine, WI; HR Krueger Machine Tool Inc. MIDACO Corp., Elk Grove Village, IL; Tyler Machinery Co., Inc., for the Hybco Products, Inc. M&M Precision Systems Corporation, activities of its MBD Machines Div., Hyd-Mech Inc. West Carrollton, OH; Warsaw, IN; Komatus Cutting Technologies Monsanto Enviro-Chem Systems, Inc., Stellram, La Vergne, TN; Manufacturing Technology, Inc. Chesterfield, MO; S-T Industries, Inc., St. James, MN; (California)
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Masco Machine, Inc. America Corporation (OAC)’’; ‘‘RMT subject merchandise requested that the Morey Machinery Design & Technologies’’ to ‘‘RMT Technology’’; Department conduct an administrative Manufacturing (used to be Morey ‘‘Seneca Falls Technology Group’’ to review. Additionally, on July 31, 2003, Machinery Mfg. Corp.) ‘‘Seneca Falls Tech Grp—Machine Petitioners requested that the Motch Corporation Blders Division’’; ‘‘SMS Group Inc.’’ to Department conduct an administrative Onsrud Machine Corp. ‘‘Saginaw Machine Systems’’; ‘‘Strippit, review of TKAST. On August 22, 2003, P S Group Inc.’’ to ‘‘Strippit/LVD’’; ‘‘UNOVA Inc.’’ the Department published a notice of R & B Machine Tool Co. to ‘‘UNOVA Industrial Automation initiation of an administrative review of Redin Corporation Systems’’; ‘‘Wilton Machinery’’ to the antidumping duty order on stainless Robert Bosch Corporation for the ‘‘WMH Tool Group’’. steel sheet and strip in coils, for the activities of its Surf/Tran Division Dated: February 18, 2004. period July 1, 2002 through June 30, Sout Bend Lathe Corp. Jeffrey Anspacher, 2003. See Initiation of Antidumping and Taurus Products, Inc. Countervailing Duty Administrative TCE Corporation Director, Office of Export Trading Company Affairs. Reviews and Requests for Revocation in The National Acme Company Part, 68 FR 50750 (August 22, 2003). [FR Doc. 04–4440 Filed 2–27–04; 8:45 am] Wesel Manufacturing Co. The preliminary results of this Wisconsin Machine Tool Corp. BILLING CODE 3510–DR–P administrative review are currently due Xermac, Inc. no later than April 1, 2004. (3) The listings of the following DEPARTMENT OF COMMERCE Extension of Time Limit for Preliminary ‘‘Members’’ have been changed: Results ‘‘ABB Flexible Automation Systems, International Trade Administration Inc.’’ to ‘‘ABB Inc.-Mfg & Consumer A–475–824 Pursuant to section 751(a)(3)(A) of the Industries Grp’’; ‘‘Advanced Assembly Act, and section 351.213(h)(2) of the Automation, Inc.’’ to ‘‘DT Industries’’; Notice of Extension of Time Limit of Department’s regulations, the ‘‘The Beckwood Corporation’’ to the Preliminary Results of Department may extend the deadline for ‘‘Beckwood Press Company’’; ‘‘The Antidumping Duty Administrative completion of the preliminary results of Bodine Corporation’’ to ‘‘Bodine Review: Stainless Steel Sheet and a review if it determines that it is not Assembly and Test Systems’’; Strip in Coils from Italy practicable to complete the preliminary ‘‘Broaching Machine Specialties’’ to results within the statutory time limit of ‘‘Broaching Machine Specialties Co.’’; AGENCY: Import Administration, 245 days from the date on which the ‘‘Brown & Sharpe Manufacturing Co.’’ to International Trade Administration, review was initiated. Due to the ‘‘Brown & Sharpe, Inc.’’; ‘‘Capco, Inc.’’ Department of Commerce. complexity of issues present in this to ‘‘Capco Machinery Systems, Inc.’’; ACTION: Notice of extension of time limit administrative review, such as home ‘‘Chas. G Allen Co.’’ to ‘‘Chas. G Allen of the preliminary results of the market affiliated downstream sales, and Co., Inc.’’; ‘‘The Cincinnati Gilbert antidumping duty administrative review complicated cost accounting issues, the Mach. Tool Co. L.L.C.’’ to ‘‘The of stainless steel sheet and strip in coils Department has determined that it is not Cincinnati Gilbert Mach. Tool Co.’’; from Italy. practicable to complete this review ‘‘Crankshaft Machine Group’’ to ‘‘CMG’’; within the original time period provided ‘‘Dake’’ to ‘‘Dake-JSJ Corporation’’; SUMMARY: The Department of Commerce in section 751(a)(3)(A) of the Act and ‘‘Denford Machine Tools, USA, Inc.’’ to (‘‘the Department’’) is extending the section 351.213(h)(2) of the ‘‘Denford Inc.’’; ‘‘DT Industries, Inc.’’ to time limit of the preliminary results of Department’s regulations. Therefore, we ‘‘DT Industries’’; ‘‘ESAB L–TEC Cutting the antidumping duty administrative are extending the due date for the Systems’’ to ‘‘ESAB Cutting Systems’’; review of stainless steel sheet and strip preliminary results by 60 days, until no ‘‘Fayscott Co.’’ to ‘‘Fayscott LLC’’; ‘‘The in coils from Italy. later than May 31, 2003. The final Gem City Engineering Co.’’ to ‘‘GCE EFFECTIVE DATE: March 1, 2004. results continue to be due 120 days after Technologies’’; ‘‘Hess Engineering, Inc.’’ FOR FURTHER INFORMATION CONTACT: the publication of the preliminary to ‘‘Hess Industries, Inc.’’; ‘‘Industrial Jonathan Herzog, AD/CVD Enforcement, results. Metal Products Corp.’’ to ‘‘IMPCO Group III, Office 9, Import Dated: February 9, 2004. Machine Tools’’; ‘‘Kingsbury Machine Administration, International Trade Joseph A. Spetrini, Tool Corporation’’ to ‘‘Kingsbury Administration, U.S. Department of Corporation’’; ‘‘Kleer-Flo Company’’ to Commerce, 14th Street and Constitution Deputy Assistant Secretary for Import Administration, Group III. ‘‘KLEENTEC/KLEERFLO’’; ‘‘Lapmaster Avenue, NW, Washington DC 20230; International’’ to ‘‘Lapmaster telephone: (202) 482–4271. [FR Doc. 04–4497 Filed 2–27–04; 8:45 am] BILLING CODE 3510–DS–S International-US’’; ‘‘Livernois SUPPLEMENTARY INFORMATION: Engineering’’ to ‘‘Outokumpu Livernois Background Engineering LLC’’; ‘‘Milacron, Inc.’’ to DEPARTMENT OF COMMERCE ‘‘Milicron, Inc.-Headquarters’’; ‘‘Miyano On July 2, 2003, the Department Machinery USA Inc.’’ to ‘‘Miyano published a notice of opportunity to International Trade Administration Machinery Inc.’’; ‘‘Moline Tool request an administrative review of the Company, Inc.’’ to ‘‘Moline Tool’’; antidumping duty order on stainless North American Free Trade Agreement ‘‘Murata Wiedemann, Inc.’’ to ‘‘Murata steel sheet and strip in coils from Italy. (NAFTA), Article 1904 Binational Panel Machinery USA, Inc.-Machine Tools’’; See Antidumping or Countervailing Reviews: Notice of Termination of ‘‘National Broach & Machine Co.’’ to Duty Order, Finding, or Suspended Panel Review ‘‘Nachi Machining Technology Investigation; Opportunity to Request Company’’; ‘‘Newcor, Inc.’’ to ‘‘Newcor Administrative Review, 68 FR 39511 AGENCY: NAFTA Secretariat, United Bay City’’; ‘‘New Nine Inc., d/b/a GWI (July 2, 2003). On July 31, 2003, States Section, International Trade Engineering’’ to ‘‘GWI Engineering, Thyssen Krupp Acciai Speciali S.p.A. Administration, Department of Inc.’’; ‘‘Okuma, Inc.’’ to ‘‘Okuma (‘‘TKAST’’), an Italian producer of Commerce.
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ACTION: Notice of Consent Motion to DEPARTMENT OF COMMERCE the February 19, 2004 notice incorrectly Terminate the Panel Review of the final states the closing date for applications affirmative countervailing duty Minority Business Development for the Minority Business Development determination made by the International Agency. Center (MBDC) program. MBDA Trade Administration, respecting [Docket No.: 000724217–4069–09] publishes this notice to clarify that the Carbon and Certain Alloy Steel Wire closing date for competitive Rod from Canada (Secretariat File No. Solicitation of Applications for the applications for the MBDC program is USA–CDA–2002–1904–08). Minority Business Development Center March 12, 2004, as published in the (MBDC) Program original Federal Register Notice on February 11, 2004 (69 FR 6642). SUMMARY: Pursuant to the Notice of AGENCY: Minority Business Consent Motion to Terminate the Panel Development Agency. Dated: February 24, 2004. Glenn Clark, Review by the complainants, the panel ACTION: Notice. review is terminated as of February 25, Budget Officer, Minority Business 2004. A panel has been appointed to SUMMARY: The Minority Business Development Agency. this panel review and has consented to Development Agency publishes this [FR Doc. 04–4439 Filed 2–27–04; 8:45 am] this motion. Pursuant to Rule 71(2) of notice to clarify that the closing date for BILLING CODE 3510–21–P the Rules of Procedure for Article 1904 competitive applications for the Binational Panel Review, this panel Minority Business Development Center review is terminated. (MBDC) Program is March 12, 2004, as DEPARTMENT OF COMMERCE published in the original Federal FOR FURTHER INFORMATION CONTACT: Register Notice on February 11, 2004. National Institute of Standards and Technology Caratina L. Alston, United States DATES: The closing date for applications Secretary, NAFTA Secretariat, Suite for each MBDC project is March 12, [Docket No.: 04129029–4029–01] 2061, 14th and Constitution Avenue, 2004. Washington, DC 20230, (202) 482–5438. MBDA anticipates that awards for the Voluntary Product Standard (PS) 20– 99, American Softwood Lumber SUPPLEMENTARY INFORMATION: Chapter MBDC program will be made with a Standard 19 of the North American Free-Trade start date of April 1, 2004. Completed applications for the MBDC program Agreement (‘‘Agreement’’) establishes a AGENCY: National Institute of Standards must be (1) mailed (USPS postmark) to mechanism to replace domestic judicial and Technology, Commerce. the address below; or (2) received by review of final determinations in ACTION: MBDA no later than 5 p.m. Eastern Request for Comments. antidumping and countervailing duty Standard Time. Applications cases involving imports from a NAFTA SUMMARY: The National Institute of postmarked later than the closing date Standards and Technology (NIST) is country with review by independent or received after the closing date and binational panels. When a Request for requesting comments on Voluntary time will not be considered. Product Standard (PS) 20–99, American Panel Review is filed, a panel is ADDRESSES: Applicants must submit one Softwood Lumber Standard. This established to act in place of national signed original plus two (2) copies of standard serves the procurement and courts to review expeditiously the final the application. Completed application regulatory needs of numerous Federal, determination to determine whether it packages must be submitted to: Office of State, and local government agencies by conforms with the antidumping or Business Development, Minority providing for uniform, industry-wide countervailing duty law of the country Business Development Center Program grade-marking and inspection that made the determination. Office, Office of Executive Secretariat, requirements for softwood lumber. The Under Article 1904 of the Agreement, HCHB, Room 5063, Minority Business implementation of the standard also which came into force on January 1, Development Agency, U.S. Department allows for uniform labeling and auditing 1994, the Government of the United of Commerce, 14th Street and of treated-wood panels and, through a States, the Government of Canada and Constitution Avenue, NW., Washington, Memorandum of Understanding with the Government of Mexico established DC 20230. the U.S. Department of Agriculture, Rules of Procedure for Article 1904 If the application is hand-delivered by labeling and auditing of wood packaging Binational Panel Reviews (‘‘Rules’’). the applicant or his/her representative, materials for international trade. As part one signed original plus two (2) copies These Rules were published in the of a five year review process, NIST is of the application must be delivered to Federal Register on February 23, 1994 seeking public comment and invites Room 1874, which is located at (59 FR 8686). The panel review in this interested parties to review the standard Entrance #10, 15th Street, NW., between and submit comments. matter was requested and terminated Pennsylvania and Constitution pursuant to these Rules. DATES: Written comments regarding PS Avenues. 20–99 should be submitted to the Dated: February 24, 2004. FOR FURTHER INFORMATION CONTACT: For Standards Coordination and Conformity Caratina L. Alston, further information, contact the MBDA Group, Standards Services Division, United States Secretary, NAFTA Secretariat. National Enterprise Center (NEC) for the NIST, no later than May 17, 2004. [FR Doc. 04–4422 Filed 2–27–04; 8:45 am] geographic service area in which the ADDRESSES: An electronic copy (in PDF) BILLING CODE 3510–GT–P project will be located or visit MBDA’s of the standard, PS 20–99, can be Minority Business Internet Portal obtained at the following Web site (MBDA Portal) at http://www.mbda.gov. http://ts.nist.gov/docvps. Printed copies SUPPLEMENTARY INFORMATION: On may be obtained from the address February 19, 2004, MBDA published a below. Written comments on the Federal Register Notice revising the standard should be submitted to Ms. funding level for the MBDC program (69 JoAnne Overman, Standards FR 7725). Due to an inadvertent error, Coordination and Conformity Group,
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Standards Services Division, NIST, 100 DEPARTMENT OF COMMERCE http://www.ofa.noaa.gov/∼amd/ Bureau Drive, Stop 2150, Gaithersburg, SOLINDEX.HTML. MD 20899–2150; fax (301) 975–5414. National Oceanic and Atmospheric Electronic Access Electronic comments may be submitted Administration via e-mail to [email protected]. [Docket No. 030602141–4026–06; 061703A] The full funding announcement for each program is available via Web site FOR FURTHER INFORMATION CONTACT: Ms. RIN 0648–ZB55 http://www.ofa.noaa.gov/∼amd/ JoAnne Overman, Standards SOLINDEX.HTML or by contacting the Coordination and Conformity Group, Availability of Grant Funds for Fiscal program official identified below. These Standards Services Division, National Year 2004; Republication announcements will also be available Institute of Standards and Technology, through FedGrants at http:// telephone: (301) 975–4037; fax: (301) Editorial Note: Due to numerous errors, www.fedgrants.gov. 975–5414, e-mail: this document is being reprinted in its [email protected]. entirety. It was originally printed in the NOAA Project Competitions Federal Register on Thursday, February 12, SUPPLEMENTARY INFORMATION: Under 2004, at 69 FR 6942–6946. This third omnibus notice describes Department of Commerce procedures funding opportunities for the following AGENCY: National Oceanic and established in Title 15 Code of Federal NOAA discretionary grant programs: Atmospheric Administration (NOAA), Regulations Part 10, Procedures for the Department of Commerce (DOC). National Marine Fisheries Service Development of Voluntary Product Standards, and administered by NIST, ACTION: Omnibus Notice Announcing 1. Right Whale Research Grants Program the American Lumber Standard the Availability of Grant Funds for (RWRGP) Fiscal Year 2004. Committee acts as the Standing Summary Description: The North Committee for PS 20–99, American SUMMARY: The National Oceanic and Atlantic right whale is among the Softwood Lumber Standard, and is Atmospheric Administration (NOAA) world’s most endangered cetaceans. The responsible for maintaining, revising, announces a third availability of grant population is believed to number only and interpreting the standard. The funds for Fiscal Year 2004. This notice about 300 individuals and appears to be Committee is comprised of producers, provides the general public program and declining. The lack of recovery is due in distributors, users, and others with an application information related to the part to high mortality from human interest in the standard. Agency’s competitive grant offerings, sources, notably fishing gear Voluntary Product Standard (PS) 20– and it contains the information about entanglements and vessel collisions. A 99 establishes standard sizes and those programs required to be published Recovery Plan is in effect, and requirements for developing and in the Federal Register. It should be conservation of this species is a high coordinating the lumber grades of the noted that additional program initiatives priority for NOAA Fisheries. Research various species of softwood lumber, the unanticipated at the time of the directed at facilitating such assignment of design values, and the publication of this notice may be conservation or to provide monitoring of preparation of grading rules applicable announced through both subsequent the population’s status and health, is to each species. Its provisions include Federal Register notices and the NOAA also a high priority for the agency. The implementation of the standard through Web site: http://www.ofa.noaa.gov/ RWRGP is conducted by NOAA to an accreditation and certification ∼amd/SOLINDEX.HTML. provide Federal assistance to eligible program; establishment of principal DATES: Proposals must be received by researchers for: (1) Detection and trade classifications and lumber sizes the date and time indicated under each tracking of right whales; (2) behavior of for yard, structural, and factory/shop program listing in the SUPPLEMENTARY right whales in relation to ships; (3) use; classification, measurement, INFORMATION section. relationships between vessel speed, size grading, and grade-marking of lumber; or design with whale collisions; (4) ADDRESSES: Proposals must be modeling of ship traffic along the definitions of terms and procedures to submitted to the addresses listed in the provide a basis for the use of uniform Atlantic coast; (5) population SUPPLEMENTARY INFORMATION section for monitoring and assessment studies; (6) methods in the grading inspection, each program. measurement, and description of reproduction, health and genetic FOR FURTHER INFORMATION CONTACT: softwood lumber; commercial names of For studies; (7) development of a the principal softwood species; a copy of the full funding opportunity Geographic Information System definitions of terms used in describing announcement and/or application kit, database or other system designed to standard grades of lumber; and please contact the person listed as the investigate predictive modeling of right commonly used industry abbreviations. information contact under each program whale distribution in relation to or access it via NOAA’s Web site: http:/ The standard also includes the ∼ environmental variables; (8) habitat organization and functions of the /www.ofa.noaa.gov/ amd/ quality studies including food quality American Lumber Standard Committee, SOLINDEX.HTML. and pollutant levels; and (9) any other the Board of Review, and the National SUPPLEMENTARY INFORMATION: work relevant to the recovery of North Grading Rule Committee. NOAA published its first omnibus Atlantic right whales. All public comments will be reviewed notice announcing the availability of Funding Availability: This solicitation and considered. The American Lumber grant funds for both projects and announces that a maximum of $2.0M Standard Committee and NIST will fellowships/scholarships/internships for may be available for distribution under revise the standard accordingly. Fiscal Year 2004 in the Federal Register the FY 2004 RWRGP, in award amounts on June 30, 2003 (68 FR 38678). The to be determined by the proposals and Dated: February 20, 2004. evaluation criteria and selection available funds. Applicants are hereby Hratch G. Semerjian, procedures contained in the June 30, given notice that funds have not yet Deputy Director. 2003, omnibus notice are applicable to been appropriated for this program. [FR Doc. 04–4443 Filed 2–27–04; 8:45 am] this solicitation. For a copy of the June There is no guarantee that sufficient BILLING CODE 3510–13–P 30, 2003, omnibus notice, please go to: funds will be available to make awards
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for all qualified projects. The exact experiences for students and consideration in the review process amount of funds that may be awarded professional development opportunities with cash being the preferred method of will be determined in pre-award for teachers in the area of environmental contribution. negotiations between the applicant and education. Intergovernmental Review: NOAA representatives. Publication of Funding Availability: This solicitation Applications under this program are not this notice does not oblige NOAA to announces that approximately $400,000 subject to Executive Order 12372, award any specific project or to obligate may be available for FY 2004 in award ‘‘Intergovernmental Review of Federal any available funds. There is no set amounts to be determined by the Programs.’’ minimum or maximum amount for any proposals and available funds. It is 2. Bay Watershed Education & Training award, and there is no limit on the anticipated that approximately 10 grants (B–WET) Program, Monterey Bay number of applications that can be will be awarded with these funds. Watershed submitted by the same researcher during About $200,000 will be for proposals the 2004 competitive grant cycle. that provide opportunities for students Summary Description: The B–WET However, there are insufficient funds to to participate in a ‘‘meaningful’’ outdoor grant program is a competitively based award financial assistance to every experience. About $200,000 will be for program that supports existing applicant. If an application for a proposals that provide opportunities for environmental education programs, financial assistance award is selected for professional development in the area of fosters the growth of new programs, and funding, NOAA/NMFS has no environmental education for teachers. encourages the development of obligation to provide any additional Proposals may be submitted for up to 3 partnerships among environmental funding in connection with that award years. However, funds will be made education programs throughout the in subsequent years. available for only a 12-month award Monterey Bay watershed. Funded Statutory Authority: 16 U.S.C. 1380. period. The Pacific Services Center may projects provide ‘‘meaningful’’ outdoor CFDA: 11.472, Unallied Science review the grants funded under this experiences for students and Programs. announcement pending submission of professional development opportunities Application Deadline: Proposals must successful proposals subject to technical for teachers in the area of environmental be postmarked by 5 p.m. eastern time on and panel review, adequate progress on education. April 12, 2004. previous award(s) and/or site visits, and Funding Availability: This solicitation Address for Submitting Proposals: available funding. announces that approximately $475,000 NOAA Fisheries Right Whale Grants Statutory Authority: 33 U.S.C. 883d, may be available in FY 2004 in award Program, Protected Species Branch, 15 U.S.C. 1540. amounts to be determined by the Northeast Fisheries Science Center, 166 CFDA: 11.473, Coastal Services proposals and available funds. It is Water Street, Woods Hole, MA 02543, Center. anticipated that approximately 15 grants Application Deadline: Proposals must 508–495–2316. will be awarded with these funds. be received by 5 p.m. Pacific time on Information Contact(s): Dr. Phillip J. About $250,000 will be for proposals March 29, 2004. Clapham, Northeast Fisheries Science that provide opportunities for students Center, 166 Water Street, Woods Hole, Address for Submitting Proposals: Monterey Bay National Marine to participate in a ‘‘meaningful’’ outdoor MA 02543, 508 495–2316, e-mail experience. About $225,000 will be for [email protected]. Sanctuary Office; 299 Foam Street, Monterey, CA 93940. Facsimile proposals that provide opportunities for Eligibility: Eligible applicants are professional development in the area of individuals, institutions of higher transmissions and electronic mail submission of proposals will not be environmental education for teachers. education, other nonprofits, commercial Proposals may be submitted for up to 3 organizations, international accepted. Information Contact: Seaberry years. However, funds will be made organizations, foreign governments, Nachbar, phone 831–647–4201, fax 831– available for only a 12-month award organizations under the jurisdiction of 647–4250, Internet at period and any renewal of the award foreign governments, and State, local [email protected]. period will depend on submission of a and Indian tribal governments. Federal Eligibility: Eligible applicants for both successful proposal subject to technical agencies, or employees of Federal areas of interest (‘‘meaningful outdoor and panel review, adequate progress on agencies are not eligible to apply. experience’’ and professional previous award(s), and available Cost Sharing Requirements: No cost development in the area of funding to renew the award. The NMSP sharing is required under this program. environmental education for teachers) may renew the grants funded under this Applications under this program are are K-through-12 public and announcement pending submission of subject to Executive Order 12372, independent schools and school successful proposals subject to technical ‘‘Intergovernmental Review of Federal systems, institutions of higher and panel reviews, adequate progress on Programs.’’ education, commercial and nonprofit previous award(s) and/or site visits, and National Ocean Service organizations, State or local government available funding. agencies, and Indian tribal governments. Statutory Authority: 15 U.S.C. 1440. 1. Bay Watershed Education & Training Applicants that are not eligible are CFDA: 11.429, Marine Sanctuary (B–WET) Program, Hawaiian Islands individuals and Federal agencies. Program. Summary Description: The B–WET Cost Sharing Requirements: No cost Application Deadline: Proposals must grant program is a competitively based sharing is required under this program; be received by 5 p.m. Pacific time on program that supports existing however, the Pacific Services Center March 29, 2004. environmental education programs, strongly encourages applicants to share Address for Submitting Proposals: fosters the growth of new programs, and as much of the costs of the award as Monterey Bay National Marine encourages the development of possible. Funds from other Federal Sanctuary Office; 299 Foam Street, partnerships among environmental awards may not be considered matching Monterey, CA 93940. Facsimile education programs throughout the funds. The nature of the contribution transmissions and electronic mail Hawaiian Islands. Funded projects (cash versus in-kind) and the amount of submission of proposals will not be provide ‘‘meaningful’’ outdoor matching funds will be taken into accepted.
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Information Contact: Seaberry (2) Development of a nationally Hobson Avenue, Charleston, South Nachbar, phone 831–647–4201, fax 831– consistent inventory system for Carolina 29405–2413 to the attention of 647–4250, Internet at geospatial data at the state level. Violet Legette, room 218. [email protected]. (3) Increasing education and research Information Contact(s): For Eligibility: Eligible applicants for both opportunities in the application of CIS administrative questions on all five areas of interest (‘‘meaningful outdoor and remote-sensing technologies to program priorities, contact Violet experiences’’ and professional coastal resource management, with Legette, NOAA CSC, 2234 South development in the area of emphasis on recruiting under- Hobson Avenue, Room 218, Charleston, environmental education for teachers) represented minorities. South Carolina 29405–2413, or by are K-through-12 public and (4) Incorporation of seagrass into the phone at 843–740–1222, or by fax 843– independent schools and school monitoring of the health of special 740–1232, or via Internet at systems, institutions of higher management areas. [email protected]. For technical (5) Pilot projects supporting the Data education, commercial and nonprofit questions on program priorities (1), (2), Management and Communications organizations, State or local government and (3), contact Hamilton Smillie, component of the Integrated Ocean agencies, and Indian tribal governments. NOAA CSC, 2234 South Hobson Observing System. Avenue, Room 153, Charleston, South Applicants that are not eligible are NOAA/CSC will give sole attention to individuals and Federal agencies. Carolina 29405–2413, or by phone at individual proposals that address one or 843–740–1192, or by fax 843–740–1315, Cost Sharing Requirements: No cost more of the program priorities described or via Internet at sharing is required under this program; above. Proposals must clearly specify [email protected]. For however, the National Marine Sanctuary which program priority is being technical questions on program priority Program strongly encourages applicants addressed. A proposal must contain (4), contact Pace Wilber, NOAA CSC, to share as much of the costs of the tasks that address each element listed 2234 South Hobson Avenue, Room award as possible. Funds from other for the priority chosen. All awards will 234B, Charleston, South Carolina Federal awards may not be considered be in the form of a cooperative 29405–2413, or by phone at 843–740– matching funds. The nature of the agreement, which allows the NOAA/ 1235, or by fax 843–740–1315, or via contribution (cash versus in-kind) and CSC to have substantial involvement in Internet at [email protected]. For the amount of matching funds will be the projects in addition to providing technical questions on program priority taken into consideration in the review funds. Applicants must propose a role (5), contact Anne Ball, NOAA CSC, 2234 process with cash being the preferred for the NOAA/CSC that constitutes the South Hobson Avenue, Room 211, method of contribution. substantial involvement listed for that Charleston, South Carolina 29405–2413, Intergovernmental Review: priority. or by phone at 843–740–1229, or by fax Applications under this program are not The names, affiliations, and phone 843–740–1315, or via Internet at subject to Executive Order 12372, numbers of relevant NOAA/CSC [email protected]. ‘‘Intergovernmental Review of Federal personnel are provided below. Eligibility: Eligible applicants are Programs.’’ Prospective applicants should institutions of higher education, communicate with these focal points to 3. FY2004 Coastal Services Center hospitals, other non-profits, commercial ensure the role specified for the NOAA/ organizations, foreign governments, Technical Assistance for Coastal CSC is practicable. Focal points cannot Managers Program organizations under the jurisdiction of assist in the conceptual design of the foreign governments, international Summary Description: The Technical project nor can they help with the organizations, and State, local and Assistance for Coastal Managers design of specific elements included in Indian tribal governments. Federal program represents an NOAA/CSC effort a proposal. agencies or institutions are not eligible to improve the use of monitoring data Funding Availability for FY2004: This to receive Federal assistance under this and geospatial information and funding opportunity announces that announcement. technology in coastal management approximately $1,750,000 will be Cost Sharing Requirements: None. through collaborative work with available through this announcement for Intergovernmental Review: members of the coastal management fiscal year 2004 for cooperative Applications under this program are community that have expertise in agreements. Proposals should be subject to Executive Order 12372, community planning and resource prepared assuming a total budget of no ‘‘Intergovernmental Review of Federal management. These activities will more than $500,000 for priorities (1) and Programs.’’ engage coastal managers from multiple (4), and $125,000 for priorities (2), (3), and (5). It is expected that one award Office of Oceanic and Atmospheric organizations and levels of government Research and improve the management of coastal will be made for priority areas (1) resources by applying geospatial through (4) and up to three awards for 1. NOAA Educational Partnership knowledge, practices, and principles to priority (5), depending on availability of Program With Minority Serving new approaches for managing coastal funds. Institutions: Environmental Statutory Authority: 16 U.S.C. 1456c resources. The Technical Assistance for Entrepreneurship Program and 33 U.S.C 1442. Coastal Managers program contributes CFDA: 11.473, Coastal Services Summary Description: The goal of the to other efforts at the NOAA/CSC and is Center. National Oceanic and Atmospheric designed to complement those efforts. Application Deadline: Applicants Administration Educational Partnership Five program priorities will be targeted applying for Federal assistance under Program with Minority Serving as a result of this announcement. They the Technical Assistance for Coastal Institutions (EPP/MSI) is to strengthen are: Managers Program, must submit their the capacity of Minority Serving (1) Increasing coordination and applications by 5 p.m. local time March Institutions to foster student careers, planning between local land trusts, 15, 2004. entrepreneurship opportunities and State agencies, and regional planning Address for Submitting Proposals: advanced academic degrees in sciences agencies within New England. Coastal Services Center, 2234 South directly related to NOAA’s mission. The
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Environmental Entrepreneurship Intergovernmental Review: The Department of Commerce Pre- Program is designed to support Applications under this program are not Award Notification Requirements for education and training programs to subject to Executive Order 12372, Grants and Cooperative Agreements engage students in applying the ‘‘Intergovernmental Review of Federal The Department of Commerce Pre- necessary skills, tools, methods and Programs.’’ Award Notification Requirements for technologies in sciences directly related Limitation of Liability Grants and Cooperative Agreements to NOAA’s mission. This includes contained in the Federal Register notice fostering educational opportunities in In no event will NOAA or the of October 1, 2001 (66 FR 49917), as coastal, oceanic, atmospheric, Department of Commerce be responsible amended by the Federal Register notice environmental sciences, and remote for proposal preparation costs if these published on October 30, 2002 (67 FR sensing technology, coupled with programs fail to receive funding or are 66109), are applicable to this training in economics, marketing, solicitation. product development, and services to cancelled because of other agency create jobs, businesses, and economic priorities. Publication of this Paperwork Reduction Act development opportunities. The announcement does not oblige NOAA to This document contains collection-of- Environmental Entrepreneurship award any specific project or to obligate information requirements subject to the Program promotes partnerships with any available funds. Paperwork Reduction Act (PRA). The MSIs, NOAA and the public-private National Environmental Policy Act use of Standard Forms 424, 424A, 424B, sector. (NEPA) SF–LLL, and CD–346 has been approved Funding Availability: Subject to by Office of Management and Budget appropriations, approximately $3 NOAA must analyze the potential (OMB) under the respective control million will be available for the environmental impacts, as required by numbers (0348–0043, 0348–0044, 0348– Environmental Entrepreneurship the National Environmental Policy Act 0040, 0348–0046, and 0605–0001). Program competition in 2004. Proposals (NEPA), for applicant projects or Notwithstanding any other provision of are limited to a total of $500,000 for a proposals which are seeking NOAA law, no person is required to respond to, maximum of three years and Federal funding opportunities. Detailed nor shall any person be subject to a approximately six proposals will be information on NOAA compliance with penalty for failure to comply with, a funded. NEPA can be found at the following collection of information subject to the Statutory Authority: 15 U.S.C. 1540. NOAA NEPA Web site: http:// requirements of the PRA unless that CFDA: 11.481 Educational www.nepa.noaa.gov/, including our collection of information displays a Partnership Program with Minority NOAA Administrative Order 216–6 for currently valid OMB control number. Serving Institutions. NEPA, http://www.nepa.noaa.gov/ Executive Order 12866 Application Deadline: Proposals must NAO216_6_TOC.pdf, and the Council be received by 5 p.m. eastern time on This notice has been determined to be March 15, 2004. on Environmental Quality not significant for purposes of Executive Address for Submitting Applications: implementation regulations, http:// Order 12866. ceq.eh.doe.gov/nepa/regs/ceq/ NOAA EPP/MSI: Environmental _ Executive Order 13132 (Federalism) Entrepreneurship Program, National toc ceq.htm. Consequently, as part of an Oceanic and Atmospheric applicant’s package, and under their It has been determined that this notice Administration, Room 10725, SSMC3, description of their program activities, does not contain policies with 1315 East-West Highway, Silver Spring, applicants are required to provide federalism implications as that term is MD 20910. Facsimile transmissions and detailed information on the activities to defined in Executive Order 13132. electronic mail submission of proposals be conducted, locations, sites, species Administrative Procedure Act/ will not be accepted. and habitat to be affected, possible Regulatory Flexibility Act construction activities, and any Information Contact: Jewel G. Linzey, Prior notice and an opportunity for environmental concerns that may exist Program Manager, Environmental public comment are not required by the Entrepreneurship Program, (301) 713– (e.g., the use and disposal of hazardous Administrative Procedure Act or any 9437, ext. 118, facsimile (301) 713– or toxic chemicals, introduction of non- other law for rules concerning public 9465, e-mail Jewel.Griffin- indigenous species, impacts to property, loans, grants, benefits, and [email protected]. endangered and threatened species, contracts (5 U.S.C. 553(a)(2)). Because Eligibility: Minority Serving aquaculture projects, and impacts to notice and opportunity for comment are Institutions eligible to submit proposals coral reef systems). not required pursuant to 5 U.S.C. 553 or include institutions of higher education In addition to providing specific any other law, the analytical identified by the Department of information that will serve as the basis requirements of the Regulatory Education as: for any required impact analyses, Flexibility Act (5 U.S.C. 601 et seq.) are (i) Historically black colleges and inapplicable. Therefore, a regulatory universities, applicants may also be requested to assist NOAA in drafting of an flexibility analysis has not been (ii) Hispanic-serving institutions, prepared. (iii) Tribal colleges and universities, environmental assessment, if NOAA (iv) Alaska Native or Native Hawaiian determines an assessment is required. Dated: February 5, 2004. serving institutions Applicants will also be required to John J. Kelly, Jr., on the most recent ‘‘2003 United States cooperate with NOAA in identifying Deputy Under Secretary of Commerce for Department of Education Accredited and implementing feasible measures to Oceans and Atmosphere, National Oceanic Post-Secondary Minority Institutions’’ reduce or avoid any identified adverse and Atmospheric Administration. list: http://www.ed.gov/about/offices/ environmental impacts of their [FR Doc. 04–3083 Filed 2–11–04; 8:45 am] list/ocr/edlite-minorityinst.html. proposal. The failure to do so shall be Editorial Note: Due to numerous errors, Cost Sharing Requirements: There is grounds for the denial of an application. this document is being reprinted in its no cost-sharing requirement. entirety. It was originally printed in the
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Federal Register on Thursday, February 12, of bluefin tuna and marlin landings ACTION: Receipt of application for 2004, at 69 FR 6942–6949. estimates previously reported to ICCAT. modification. [FR Doc. R4–3083 Filed 2–27–04; 8:45 am] The Advisory Committee will meet SUMMARY BILLING CODE 1505–01–D again in an open session on March 16 : Notice is hereby given that and 17, 2004, to receive and discuss the NMFS, Southeast Region, 9721 information on (1) the 2003 ICCAT Executive Center Drive, North, St. DEPARTMENT OF COMMERCE meeting results and U.S. Petersburg, Florida 33702–2449, has implementation of ICCAT decisions; (2) requested a modification to scientific National Oceanic and Atmospheric 2003 ICCAT and NMFS research and research Permit No. 1260. Administration monitoring activities; (3) 2004 DATES: Written comments or requests for [I.D. 021904B] Commission activities; (4) the Atlantic a public hearing must be received on or Tunas Convention Act required before March 31, 2004. Advisory Committee to the U.S. consultation on the identification of ADDRESSES: The modification request Section to the International countries that are diminishing the and related documents are available for Commission for the Conservation of effectiveness of ICCAT; (5) the results of review upon written request or by Atlantic Tunas (ICCAT); Spring the meetings of the Committee’s Species appointment in the following offices: Species Working Group Meeting Working Groups; and (6) other matters Permits, Conservation and Education relating to the international Division, Office of Protected Resources, AGENCY: National Marine Fisheries management of ICCAT species. The NMFS, 1315 East-West Highway, Room Service (NMFS), National Oceanic and public will have access to the open 13705, Silver Spring, MD 20910; phone Atmospheric Administration (NOAA), sessions of the meeting, but there will (301)713–2289; fax (301)713–0376; and Commerce. be no opportunity for public comment. Southeast Region, NMFS, 9721 ACTION: Notice of public meeting. The Advisory Committee will go into Executive Center Drive North, St. Petersburg, FL 33702–2432; phone SUMMARY: The Advisory Committee to executive session during part of the (727)570–5301; fax (727)570–5320. the U.S. Section to ICCAT announces its afternoon of March 15, 2004, to discuss Written comments or requests for a spring meeting from March 15 to 17, sensitive information relating to public hearing must be submitted to the 2004. The Advisory Committee will upcoming international negotiations. In Chief, Permits, Conservation and hold a workshop on the first day of the addition, the Committee will meet in its Education Division, F/PR1, Office of spring meeting, March 15, 2004, to Species Working Groups for a portion of Protected Resources, NMFS, 1315 East- discuss the upcoming ICCAT the afternoon of March 16 and morning West Highway, Room 13705, Silver intersessional meeting on integrated and of March 17, 2004. These sessions are Spring, MD 20910. Those individuals coordinated management of Atlantic not open to the public, but the results requesting a hearing should set forth the bluefin tuna. Following the workshop, of the species working group specific reasons why a hearing on this the Advisory Committee will meet with discussions will be reported to the full particular modification request would its Species Working Group Technical Advisory Committee during the be appropriate. Advisors on March 16 and 17, 2004. Committee’s morning open session on March 17. Comments may be submitted by DATES: The open sessions of the facsimile to (301)713–0376, provided Committee meeting will be held on Special Accommodations the facsimile is confirmed by hard copy March 15, 2004, from 8:30 a.m. to 12 The meeting location is physically submitted by mail and postmarked no p.m., on March 16, 2004, from 8:30 a.m. later than the closing date of the to 12 p.m., and on March 17, 2004, from accessible to people with disabilities. Requests for sign language comment period. They may also be 8:30 a.m. to 9 a.m and from 10:30 a.m. submitted by e-mail. The mailbox to 12:30 a.m.. Closed sessions will be interpretation or other auxiliary aids should be directed to Erika Carlsen at address for providing e-mail comments held on March 15, 2004, from 1:30 p.m. is [email protected]. to approximately 6 p.m., on March 16, (301) 713–2276 at least 5 days prior to the meeting date. Include in the subject line of the e-mail 2004, from 1:30 p.m. to approximately comment the following document 6 p.m., and on March 17, 2004, from 9 Dated: February 24, 2004. identifier: File No. 1260 Modification. a.m. to 10:30 p.m. Bruce C. Morehead, FOR FURTHER INFORMATION CONTACT: ADDRESSES: The meeting will be held at Acting Director, Office of Sustainable Patrick Opay, (301)713–1401 or Ruth the Holiday Inn Hotel, 8777 Georgia Fisheries, National Marine Fisheries Service. Johnson, (301)713–2289. Avenue, Silver Spring, Maryland 20910. [FR Doc. 04–4516 Filed 2–27–04; 8:45 am] SUPPLEMENTARY INFORMATION: The FOR FURTHER INFORMATION CONTACT: BILLING CODE 3510–22–S subject modification request to Permit Erika Carlsen at (301) 713–2276. No. 1260, issued on June 29, 2001 (66 SUPPLEMENTARY INFORMATION: The DEPARTMENT OF COMMERCE FR 34621) is requested under the Advisory Committee to the U.S. Section authority of the Endangered Species Act to ICCAT will meet in an open session National Oceanic and Atmospheric of 1973, as amended (16 U.S.C. 1531 et on March 15, 2004, for a workshop to Administration seq.) and the regulations governing the receive and discuss information on the taking, importing, and exporting of upcoming ICCAT intersessional on [I.D. 021804A] endangered and threatened species (50 integrated and coordinated management CFR 222–226). of Atlantic bluefin tuna, including Endangered Species; Permit File No. Permit No. 1260 authorizes the permit Atlantic bluefin tuna stock composition; 1260 holder to take loggerhead (Caretta a historical review of Atlantic bluefin caretta), leatherback (Dermochelys tuna management; and the 2001 ICCAT AGENCY: National Marine Fisheries coriacea), Kemp’s ridley (Lepidochelys report on bluefin tuna mixing. In Service (NMFS), National Oceanic and kempii), hawksbill (Eretmochelys addition, the Committee will receive Atmospheric Administration (NOAA), imbricata), green (Chelonia mydas) and information on the results of the review Commerce. olive ridley (Lepidochelys olivacea) sea
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turtles for scientific research. The Sustainable Fisheries, Northeast Region, ADDRESSES: Comments on this notice permit holder requests authorization to NOAA Fisheries (Assistant Regional may be submitted by e-mail. The increase the number of sea turtles that Administrator), has determined that an mailbox address for providing e-mail can be sampled after they are application for EFPs contains all of the comments is [email protected]. Include incidentally captured during separately required information and warrants in the subject line of the e-mail authorized trawl, bottom longline and further consideration. The Assistant comment the following document pelagic longline resource assessment Regional Administrator is considering identifier: ‘‘Comments on Maine Halibut cruises. The permit holder proposes to the impacts of the activities to be EFP Proposal.’’ Written comments take an additional 14 loggerhead and six authorized under the EFPs with respect should be sent to Patricia A. Kurkul, Kemp’s ridley sea turtles and also to the Northeast (NE) Multispecies Regional Administrator, NMFS, requests authorization to take nine Fishery Management Plan (FMP). Northeast Regional Office, One leatherback, six green and six hawksbill However, further review and Blackburn Drive, Gloucester, MA 01930. sea turtles during the cruises. The consultation may be necessary before a Mark the outside of the envelope applicant proposes to handle, flipper final determination is made to issue ‘‘Comments on Maine Halibut EFP tag, measure and release all turtles EFPs. Therefore, NMFS announces that Proposal.’’ Comments may also be sent associated with these cruises. None of the Assistant Regional Administrator via facsimile to (978) 281–9135. the activities authorized under this proposes to issue EFPs in response to an Copies of the Draft 2004 Amended modification are expected to result in application submitted by the Maine Environmental Assessment (EA) mortality. The research will be Department of Marine Resources (Maine Prepared for the Experimental Halibut conducted in waters of the Atlantic DMR). These EFPs would allow six Fishery in Groundfish Closed Areas in Ocean and Gulf of Mexico during the commercial longline or tub trawl vessels the Eastern Gulf of Maine are available remainder of the permit which expires to conduct fishing operations that are from the Northeast Regional Office at June 30, 2006. otherwise restricted by the regulations the same address. Dated: February 20, 2004. governing the fisheries of the FOR FURTHER INFORMATION CONTACT: Carrie W. Hubard, Northeastern United States. The EFPs Susan Chinn, Fishery Management Acting Chief, Permits, Conservation and would allow for exemptions from the Specialist, 978–281–9218. Education Division, Office of Protected FMP as follows: Six federally permitted Resources, National Marine Fisheries Service. vessels would be allowed to fish for, SUPPLEMENTARY INFORMATION: Maine [FR Doc. 04–4515 Filed 2–27–04; 8:45 am] land, and possess Atlantic halibut DMR submitted an application on BILLING CODE 3510–22–S (Hippoglossus hippoglossus) in excess December 19, 2003, to conduct an of the allowable landing and possession experimental Atlantic halibut fishery limit specified at 50 CFR 648.86(c) using up to six commercial longline and DEPARTMENT OF COMMERCE within a portion of the Gulf of Maine tub trawl vessels in a portion of the Regulated Mesh Area (GOM RMA); GOM RMA. The proposed experiment is National Oceanic and Atmospheric a continuation of experimental fisheries Administration these vessels would be allowed to possess temporarily Atlantic halibut less conducted by Maine DMR in 2000, [I.D. 022504A] than the minimum size requirement of 2001, 2002, and 2003 the fifth in a series 36 inches (91.4 cm) specified at of at least five anticipated studies aimed Magnuson-Stevens Act Provisions; § 648.83(a)(1) for purposes of collecting at collecting biological information to be General Provisions for Domestic scientific information; and these vessels used in the long-term management of Fisheries; Application for Exempted would be granted access to GOM Rolling this species. As with the prior studies, Fishing Permits (EFPs) Closure Area IV (June 1–June 30). this year’s application proposes to collect data on the distribution, relative AGENCY: National Marine Fisheries Regulations under the Magnuson- abundance, migration, stock definition, Service (NMFS), National Oceanic and Stevens Act require publication of this mortality rates, stock size, yield, and Atmospheric Administration (NOAA), notification to provide interested parties other significant biological reference Commerce. the opportunity to comment on points for Atlantic halibut. ACTION: Notification of a proposal for applications for proposed EFPs. EFPs to conduct experimental fishing; The proposed 2004 experimental request for comments. DATES: Comments on this notification fishery would take place from May 1 to must be received at the appropriate June 30, 2004, or 60 days concurrent SUMMARY: NMFS announces that the address or fax number (see ADDRESSES) from the start date, in a portion of the Assistant Regional Administrator for on or before March 16, 2004. GOM RMA defined as follows:
Area point N. Latitude W. Latitude
HAL 1 ...... Mainland Maine Coastline 69°00″ HAL 2 ...... 43°12.3″ 69°00″ HAL 3 ...... 43°58.3″ 67°21.5″ HAL 41 ...... Mainland Maine Coastline Mainland Maine Coastline and U.S./Canada Maritime and U.S./Canada Maritime Boundary Boundary 1Between points HAL 3 and HAL 4, the area follows the U.S./Canada maritime boundary.
Participating vessels would be limited to a maximum of 700 hooks per Each of the six vessels would be authorized to use only traditional boat, and would be restricted to using limited to a total allowable catch (TAC) longline or tub trawl gear during the only circle hooks no smaller than 14⁄0 of 50 halibut, with no possession or experiment. These vessels would be in size. landing limit prior to reaching this
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amount. Once the TAC is reached by an technologies, along with the current and information about the product to the individual vessel, that vessel would be potential future uses by industry and RFID reader via radio waves. 3 restricted to possessing and landing no government. Panelists will include The Department of Commerce’s forum more than four legal-sized halibut per researchers, market analysts, and on wireless sensor technologies is being day. The maximum number of Atlantic industry and government users. The held at a critical time when companies halibut that could be harvested as part second panel will address public policy are actively debating the design and of this study would be 500, the same issues facing sensor technologies such implementation of sensor applications number authorized to be harvested in as spectrum use, privacy and security, worldwide.4 By holding this event, the the 2003 experimental fishery. and intellectual property. Panelists will Department of Commerce will increase The EA prepared for the 2002 halibut include representatives from companies awareness of sensor technology experimental fishery and the 2003 and government, as well as public applications, their potential future Supplement to the 2002 EA, prepared policy analysts. economic impact, and public policy for the 2003 halibut experimental issues they may raise. DATES: The Wireless Sensor Technology fishery, concluded that the activities Public Participation: The panel conducted under the 2002 and 2003 Forum will be held from 9 a.m. to 1:15 p.m. on Thursday, April 1, 2004. discussions will be open to the public EFPs were consistent with the goals and and press on a first-come, first-served objectives of the FMP and would have ADDRESSES: The forum on wireless basis. Space is limited. Due to security no negative environmental impacts sensor technologies will be held at the requirements and to facilitate entry to including impacts to Essential Fish U.S. Department of Commerce, 1401 the Department of Commerce building, Habitat, marine mammals, and Constitution Avenue, NW., Auditorium, attendees must present photo protected species. A Draft 2004 Washington, DC. (Entrance to the identification and/or a U.S. Government Amended Environmental Assessment Department of Commerce is on 14th building pass, if applicable, and should (EA) Prepared for the Experimental Street between Constitution and arrive at least one-half hour ahead of the Halibut Fishery in Groundfish Closed Pennsylvania avenues.) panel sessions. The public meeting is Areas in the Eastern Gulf of Maine has FOR FURTHER INFORMATION CONTACT: physically accessible to people with been prepared that analyzes the impacts Wendy Lader, Office of Policy Analysis disabilities. Any member of the public of the proposed 2004 experimental and Development, NTIA, at (202) 482– wishing to attend and requiring special fishery on the human environment. The 1880, or electronic mail: services, such as sign language draft Amended EA determines that the [email protected]. Please direct interpretation or other ancillary aids, proposed experimental fishery to collect should contact Wendy Lader at (202) biological and ecological information on media inquiries to the Office of Public Affairs, NTIA, at (202) 482–7002. 482–1880 or at [email protected] at Atlantic halibut will not significantly least three (3) days prior to the meeting. affect the quality of the human SUPPLEMENTARY INFORMATION: Sensor environment. applications stand to transform the way Dated: February 24, 2004. Kathy D. Smith, Authority: 16 U.S.C. 1801 et seq. business is conducted by yielding greater efficiencies and by reducing Chief Counsel, National Telecommunications Peter H. Fricke, costs for the retail, manufacturing, and Information Administration. Acting Director, Office of Sustainable security, shipping and transportation [FR Doc. 04–4420 Filed 2–27–04; 8:45 am] Fisheries, National Marine Fisheries Service. industries by billions of dollars. These BILLING CODE 3510–60–P [FR Doc. 04–4517 Filed 2–27–04; 8:45 am] industries currently use limited radio BILLING CODE 3510–22–S frequency identification (RFID) technology in security systems, COMMODITY FUTURES TRADING tollbooths, gasoline pumps, electronic COMMISSION DEPARTMENT OF COMMERCE ear tags for livestock, antitheft devices, toys and other products.1 Market Agency Information Collection National Telecommunications and analysts project that sensor technologies Activities: Notice of Intent To Renew Information Administration will be the next billion-dollar market for Collection 3038–0055, Privacy of Consumer Financial Information Wireless Sensor Technology Forum the information technology industry, with current RFID projects and services AGENCY: Commodity Futures Trading AGENCY: National Telecommunications generating $1 billion annually, but Commission. and Information Administration, United potentially growing to $7 billion by States Patent and Trademark Office, 2008.2 ACTION: Notice. Technology Administration, U.S. According to the RFID Journal, RFID SUMMARY: The Commodity Futures Department of Commerce. is a generic term used to describe Trading Commission (CFTC) is ACTION: Notice of public meeting. technologies that use radio waves to announcing an opportunity for public SUMMARY: The Department of automatically identify objects and comment on the proposed collection of Commerce’s National consumer goods and products. RFID certain information by the agency. Telecommunications and Information uses several methods to identify such Under the Paperwork Reduction Act of Administration (NTIA), United States items. One such method employs an 1995 (PRA), 44 U.S.C. 3501 et seq., Patent and Trademark Office (USPTO), RFID reader, which can process serial and Technology Administration (TA) numbers stored on a microchip attached 3 See RFID Journal, Frequently Asked Questions available at http://www.rfidjournal.com/article/ will host a half-day forum on sensor to an antenna (collectively known as the RFID tag). The RFID chip transmits articleview/207. technologies, entitled ‘‘From RFID to 4 In 2003, the Department of Defense and Wal- Smart Dust: The Expanding Market for Mart Stores Inc. each announced requirements for Wireless Sensor Technologies.’’ The 1 See Scientific American, ‘‘RFID: A Key to suppliers to include passive-tracking RFID tags on Automating Everything,’’ pp. 56–65 (January 2004). product shipments by 2005. Wal-Mart projects the first panel will address the future 2 See ‘‘RFID: Investing in the Next Multi-Billion implementation of RFID tags to generate $8.4 billion market for sensor technologies by Dollar I.T. Opportunity,’’ Precursor Advisors in annual cost savings. See ‘‘Case Study: Wal-Mart’s examining a variety of wireless sensor (January 12, 2003). Race for RFID,’’ CIO Insight (January 8, 2004).
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Federal agencies are required to publish Privacy of Consumer Financial collection of information to evaluate (1) notice in the Federal Register Information OMB Control No. 3038– the causes of residential fires and (2) the concerning each proposed collection of 0055—Extension role of smoke alarms, sprinklers, and information, and to allow 60 days for Section 124 of the Commodity fire extinguishers in those fires. The comment in response to the notice. This Futures Modernization Act of 2000 Commission now announces that it is notice solicits comments on (‘‘CFMA’’) amends the Commodity submitting to the Office of Management requirements relating to information Exchange Act (the ‘‘Act’’) and adds a and Budget a request for approval of collected to assist the Commission in new section 5g to the Act to make the that collection of information. the prevention of market manipulation. Commission a Federal functional The collection of information consists DATES: Comments must be submitted on regulator for purposes of applying the of a random digit dialing telephone or before April 30, 2004. provisions of Title V, Subtitle A of the survey to identify households that had ADDRESSES: Comments may be mailed to Gramm-Leach-Bliley Act (‘‘GLB Act’’) a fire within the previous three months. Tribue Bland, Division of Clearing and addressing consumer privacy to any Data collection will take place over a 12- Intermediary Oversight, U.S. futures commission merchant, month period and will identify Commodity Futures Trading commodity trading advisor, commodity consumer products involved in fire Commission, 1155 21st Street, NW., pool operator or introducing broker that causes. The information will help CPSC Washington, DC 20581. is subject to the Commission’s and its federal partners, the U.S. Fire Administration and the Centers for FOR FURTHER INFORMATION CONTACT: jurisdiction with respect to any Disease Control and Prevention, to focus Tribue Bland, (202) 418–5466; FAX financial activity. In general, Title V efforts to reduce residential fire losses. (202) 418–5536; e-mail: [email protected]. requires financial institutions to provide notice to consumers about the Additional Information About the SUPPLEMENTARY INFORMATION: Under the institution’s privacy policies and PRA, Federal agencies must obtain Request for Approval of a Collection of practices, to restrict the ability of a Information approval from the Office of Management financial institution to share nonpublic and Budget (OMB) for each collection of personal information about consumers Agency address: Consumer Product information they conduct or sponsor. to non-affiliated third parties, and to Safety Commission, Washington, DC ‘‘Collection of information’’ is defined permit consumers to prevent the 20207. in 44 U.S.C. 3502(3) and 5 CFR institution from disclosing nonpublic 1320.3(c) and includes agency requests Title of information collection: personal information about them to Residential Fire Survey. or requirements that members of the certain non-affiliated third parties by public submit reports, keep records, or ‘‘opting out’’ of that disclosure. This Type of request: Approval of a provide information to a third party. rule implements the mandates of collection of information. Section 3506(c)(2)(A) of the PRA, 44 Section 124 and Title V of the GLB Act. General description of respondents: Section 3506(c)(2)(A), requires Federal The Commission estimates the burden Households that have had a fire within Agencies to provide a 60-day notice in of this collection of information as the previous three months. the Federal Register concerning each follows: Estimated number of respondents: proposed collection of information, 82,000. including each proposed extension of an Estimated Annual Reporting Burden existing collection of information, Number of Respondents: 4,128. Estimated average number of hours before submitting the collection to OMB Total Annual Responses: 317,414. per respondent: 0.05 hours (3 minutes). for approval. To comply with this Hours per Response: .27. Estimated number of hours for all requirement, the CFTC is publishing Total Annual Hours: 85,690. respondents: 4,400 hours. notice of the proposed collection of Dated: February 23, 2004. Comments: Comments on this request information listed below. Jean A. Webb, for approval of an information With respect to the following collection should be sent within 30 days collection of information, the CFTC Secretary of the Commission. [FR Doc. 04–4445 Filed 2–27–04; 8:45 am] of publication of this notice to (1) Alex invites comments on: Hunt, Desk Officer, Office of • BILLING CODE 6351–01–M Whether the proposed collection of Information and Regulatory Affairs, information is necessary for the proper Office of Management and Budget, performance of the functions of the Washington, DC 20503; telephone: (202) Commission, including whether the CONSUMER PRODUCT SAFETY 395–7860, and (2) the Office of the information will have a practical use; COMMISSION Secretary, Consumer Product Safety • The accuracy of the Commission’s Commission, Washington, DC 20207. estimate of the burden of the proposed Submission for OMB Review; Copies of this request for approval of collection of information, including the Comment Request—Residential Fire an information collection and validity of the methodology and Survey supporting documentation are available assumptions used; AGENCY: Consumer Product Safety • from Linda Glatz, Office of Planning and Ways to enhance the quality of, Commission. Evaluation, Consumer Product Safety usefulness, and clarity of the ACTION: Notice. Commission, Washington, DC 20207; information to be collected; and • telephone: (301) 504–7671, e-mail Ways to minimize the burden of SUMMARY: In the April 16, 2003, Federal [email protected]. collection of information on those who Register (68 FR 18599), the Consumer are to respond, including through the Product Safety Commission Dated: February 23, 2004. use of appropriate electronic, (Commission or CPSC) published a Todd A. Stevenson, mechanical, or other technological notice in accordance with provisions of Secretary, Consumer Product Safety collection techniques or other forms of the Paperwork Reduction Act of 1995 Commission. information technology, e.g., permitting (44 U.S.C. 3501–21) to announce the [FR Doc. 04–4414 Filed 2–27–04; 8:45 am] electronic submission of responses. agency’s intention to seek approval of a BILLING CODE 6355–01–P
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DEPARTMENT OF DEFENSE 1995 (44 U.S.C. Chapter 35) requires the SACD interventions affect social- that the Office of Management and emotional competence, school climate, Department of the Army Budget (OMB) provide interested positive and negative behavior, and Federal agencies and the public an early academic achievement? (2) For whom, Board of Visitors, United States opportunity to comment on information and under what conditions, are the Military Academy collection requests. OMB may amend or interventions effective? and (3) What is AGENCY: Department of the Army, DoD. waive the requirement for public the process by which the interventions ACTION: Notice of open meeting. consultation to the extent that public affect children’s behavior? Data participation in the approval process collection activities will include the SUMMARY: In accordance with section would defeat the purpose of the administration of surveys to children, 10(a)(2) of the Federal Advisory information collection, violate State or teachers, principals, and primary Committee Act (Pub. L. 92–463), Federal law, or substantially interfere caregivers; school observations, and announcement is made of the following with any agency’s ability to perform its school record abstractions over a three committee meeting: statutory obligations. The Leader, year period: from 2004–05 to 2006–07. Name of Committee: Board of Regulatory Information Management Visitors, United States Military Group, Office of the Chief Information Results from the evaluation will provide Academy. Officer, publishes that notice containing school districts and education Date: Wednesday, March 24, 2004. proposed information collection professionals with information they Place of Meeting: Veteran Affairs requests prior to submission of these need to make informed choices about Conference Room, Room 418, Senate requests to OMB. Each proposed which SACD interventions to adopt, and Russell Office Building, Washington, information collection, grouped by will offer policymakers rigorous DC. office, contains the following: (1) Type evidence for use in making decisions Start Time of Meeting: Approximately of review requested, e.g. new, revision, about program funding. 10 a.m. extension, existing or reinstatement; (2) Requests for copies of the submission FOR FURTHER INFORMATION CONTACT: Title; (3) Summary of the collection; (4) for OMB review; comment request may Lieutenant Colonel Edward C. Clarke, Description of the need for, and be accessed from http:// United States Military Academy, West proposed use of, the information; (5) edicsweb.ed.gov, by selecting the Point, NY 10996–5000, (845) 938–4200. Respondents and frequency of ‘‘Browse Pending Collections’’ link and SUPPLEMENTARY INFORMATION: Proposed collection; and (6) Reporting and/or by clicking on link number 2428. When Agenda: Organizational Meeting of the Recordkeeping burden. OMB invites you access the information collection, Board of Visitors. Review of the public comment. click on ‘‘Download Attachments ‘‘to Academic, Military and Physical Dated: February 24, 2004. view. Written requests for information Programs at the USMA. All proceedings Angela C. Arrington, should be addressed to Vivian Reese, are open. Leader, Regulatory Information Management Department of Education, 400 Maryland Luz D. Ortiz, Group, Office of the Chief Information Officer. Avenue, SW., Room 4050, Regional Army Federal Register Liaison Officer. Comments regarding burden and/or Office Building 3, Washington, DC [FR Doc. 04–4379 Filed 2–27–04; 8:45 am] the collection activity requirements 20202–4651 or to the e-mail address should be directed to Katrina Ingalls at BILLING CODE 3710–08–M [email protected]. Requests may also her e-mail address be electronically mailed to the Internet [email protected]. Individuals who address [email protected] or faxed to use a telecommunications device for the DEPARTMENT OF EDUCATION 202–708–9346. Please specify the deaf (TDD) may call the Federal complete title of the information Information Relay Service (FIRS) at 1– Submission for OMB Review; collection when making your request. Comment Request 800–877–8339. [FR Doc. 04–4501 Filed 2–27–04; 8:45 am] Institute of Education Sciences AGENCY: Department of Education. BILLING CODE 4000–01–P SUMMARY: The Leader, Regulatory Type of Review: New. Information Management Group, Office Title: Social and Character of the Chief Information Officer invites Development Research Program DEPARTMENT OF EDUCATION comments on the submission for OMB National Evaluation. Frequency: On Occasion. review as required by the Paperwork Affected Public: Submission for OMB Review; Reduction Act of 1995. Not-for-profit institutions; Individuals Comment Request DATES: Interested persons are invited to or household. submit comments on or before March Reporting and Recordkeeping Hour AGENCY: Department of Education. 31, 2004. Burden: SUMMARY: The Leader, Regulatory ADDRESSES: Written comments should Responses: 22,196. Burden Hours: 15,339. Information Management Group, Office be addressed to the Office of Abstract: The Social and Character of the Chief Information Officer invites Information and Regulatory Affairs, Development (SACD) National comments on the submission for OMB Attention: Melanie Kadlic, Desk Officer, Evaluation will evaluate the success of review as required by the Paperwork Department of Education, Office of seven school-based interventions Reduction Act of 1995. Management and Budget, 725 17th designed to promote positive social and Street, NW., Room 10235, New DATES: Interested persons are invited to character development among submit comments on or before March Executive Office Building, Washington, elementary school children. The 31, 2004. DC 20503 or should be electronically research will determine, through mailed to the Internet address ADDRESSES: Written comments should _ randomized field trials, whether one or Melanie [email protected]. more program interventions produce be addressed to the Office of SUPPLEMENTARY INFORMATION: Section meaningful effects. The study’s three Information and Regulatory Affairs, 3506 of the Paperwork Reduction Act of primary research questions are: (1) Do Attention: Melanie Kadlic, Desk Officer,
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Department of Education, Office of to arrive at a statistical estimate of the Street, NW., Room 10235, New Management and Budget, 725 17th number of non-Title IV institutions. Executive Office Building, Washington, Street, NW., Room 10235, New Requests for copies of the submission DC 20503 or should be electronically Executive Office Building, Washington, for OMB review; comment request may mailed to the Internet address DC 20503 or should be electronically be accessed from http:// [email protected]. mailed to the Internet address edicsweb.ed.gov, by selecting the SUPPLEMENTARY INFORMATION: Section _ Melanie [email protected]. ‘‘Browse Pending Collections’’ link and 3506 of the Paperwork Reduction Act of by clicking on link number 2432. When 1995 (44 U.S.C. chapter 35) requires that SUPPLEMENTARY INFORMATION: Section you access the information collection, 3506 of the Paperwork Reduction Act of the Director of OMB provide interested click on ‘‘Download Attachments ‘‘to Federal agencies and the public an early 1995 (44 U.S.C. Chapter 35) requires view. Written requests for information that the Office of Management and opportunity to comment on information should be addressed to Vivian Reese, collection requests. The Office of Budget (OMB) provide interested Department of Education, 400 Maryland Federal agencies and the public an early Management and Budget (OMB) may Avenue, SW., Room 4050, Regional amend or waive the requirement for opportunity to comment on information Office Building 3, Washington, DC collection requests. OMB may amend or public consultation to the extent that 20202–4651 or to the e-mail address public participation in the approval waive the requirement for public [email protected]. Requests may also process would defeat the purpose of the consultation to the extent that public be electronically mailed to the Internet information collection, violate State or participation in the approval process address [email protected] or faxed to Federal law, or substantially interfere would defeat the purpose of the 202–708–9346. Please specify the with any agency’s ability to perform its information collection, violate State or complete title of the information statutory obligations. The Leader, Federal law, or substantially interfere collection when making your request. with any agency’s ability to perform its Comments regarding burden and/or Information Management Group, Office statutory obligations. The Leader, the collection activity requirements of the Chief Information Officer, Regulatory Information Management should be directed to Kathy Axt at her publishes this notice containing Group, Office of the Chief Information e-mail address [email protected]. proposed information collection Officer, publishes that notice containing Individuals who use a requests at the beginning of the proposed information collection telecommunications device for the deaf Departmental review of the information requests prior to submission of these (TDD) may call the Federal Information collection. Each proposed information requests to OMB. Each proposed Relay Service (FIRS) at 1–800–877– collection, grouped by office, contains information collection, grouped by 8339. the following: (1) Type of review office, contains the following: (1) Type requested, e.g., new, revision, extension, of review requested, e.g. new, revision, [FR Doc. 04–4502 Filed 2–27–04; 8:45 am] existing or reinstatement; (2) Title; (3) extension, existing or reinstatement; (2) BILLING CODE 4000–01–P Summary of the collection; (4) Title; (3) Summary of the collection; (4) Description of the need for, and proposed use of, the information; (5) Description of the need for, and DEPARTMENT OF EDUCATION proposed use of, the information; (5) Respondents and frequency of Respondents and frequency of Notice of Proposed Information collection; and (6) Reporting and/or collection; and (6) Reporting and/or Collection Requests Recordkeeping burden. ED invites Recordkeeping burden. OMB invites public comment. The Department of public comment. AGENCY: Department of Education. Education is especially interested in ACTION: Notice of proposed information public comment addressing the Dated: February 24, 2004. collection requests. following issues: (1) Is this collection Angela C. Arrington, necessary to the proper functions of the Leader, Regulatory Information Management SUMMARY: The Leader, Regulatory Department; (2) will this information be Group, Office of the Chief Information Officer. Information Management, Office of the processed and used in a timely manner; Institute of Education Sciences Chief Information Officer, invites (3) is the estimate of burden accurate; comments on the proposed information (4) how might the Department enhance Type of Review: New. collection requests as required by the the quality, utility, and clarity of the Title: Integrated Postsecondary Paperwork Reduction Act of 1995. information to be collected; and (5) how Education Data System (IPEDS) DATES: An emergency review has been might the Department minimize the Minimum Data Set (MDS). requested in accordance with the Act burden of this collection on Frequency: One time. (44 U.S.C. Chapter 3507 (j)), since respondents, including through the use Affected Public: Businesses or other public harm is reasonably likely to of information technology. for-profit; Not-for-profit institutions. result if normal clearance procedures Dated: February 24, 2004. Reporting and Recordkeeping Hour are followed. Approval by the Office of Angela C Arrington, Burden: Responses: 13,000. Burden Management and Budget (OMB) has Hours: 1,827. been requested by March 5, 2004. A Leader, Regulatory Information Management, Office of the Chief Information Officer. Abstract: IPEDS is a system of surveys regular clearance process is also designed to collect basic data from beginning. Interested persons are Office of Special Education and postsecondary institutions in the US. To invited to submit comments on or before Rehabilitative Services date, the main focus of IPEDS has been April 30, 2004. Type of Review: New. Title IV institutions, but institutions ADDRESSES: Written comments Title: Assurances for the Protection that do not participate in these federal regarding the emergency review should and Advocacy for Assistive Technology student financial aid programs are be addressed to the Office of (PAAT) Program. becoming an increasingly important Information and Regulatory Affairs, Abstract: This document will be used source of educational opportunity in the Attention: Melanie Kadlic, Desk Officer: by grantees to request funds to carry out country. But their scope and nature are Department of Education, Office of the PAAT program. PAAT is mandated not well known. This survey is designed Management and Budget; 725 17th by the Assistive Technology Act of
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1998, to provide protection and DEPARTMENT OF EDUCATION must receive your comments on or advocacy services to individuals with before March 31, 2004. disabilities for the purposes of assisting Privacy Act of 1974; System of The Department filed a report in the acquisition, utilization, or Records; What Works Clearinghouse describing the system of records covered maintenance of assistive technology or (18–13–06) by this notice with the Chair of the assistive technology services. Senate Committee on Governmental AGENCY: Institute of Education Sciences, Affairs, the Chair of the House Additional Information: Section 102 Department of Education. Committee on Government Reform, and of the Assistive Technology Act of 1998 ACTION: Notice of a new system of the Administrator of the Office of (Act) requires that the Secretary make a records. Information and Regulatory Affairs, grant to an entity in each State to OMB, on February 25, 2004. This support protection and advocacy SUMMARY: In accordance with the system of records will become effective services through the systems established Privacy Act of 1974, as amended at the later date of—(1) the expiration of to provide protection and advocacy (Privacy Act), the U.S. Department of the 40-day period for OMB review on services under the Developmental Education (the Department or ED) April 5, 2004 or (2) March 31, 2004, Disabilities Assistance and Bill of Rights publishes this notice of a new system of unless the system of records needs to be Act of 2000 (DD Act), for the purposes records for the Institute of Education changed as a result of public comment of assisting in the acquisition, Sciences (IES or the Institute) ‘‘What or OMB review. Works Clearinghouse’’ (WWC or utilization, or maintenance of assistive ADDRESSES: Address all comments about Clearinghouse). The Clearinghouse is a technology or assistive technology this system of records to Nancy Loy, web-based system that will maintain a services for individuals with Ph.D., Contracting Officer’s Technical national registry of educational disabilities. Representative (COR), What Works interventions—educational programs, Clearinghouse, U.S. Department of Frequency: Periodically. products, and practices that are claimed Education, Institute of Education to enhance important student outcomes. Affected Public: Not-for-profit Sciences, 555 New Jersey Avenue, NW., In particular, the Clearinghouse will institutions; State, Local, or Tribal suite 504, Washington, DC 20208. If you assess and report on the strength of Gov’t, SEAs or LEAs. prefer to send comments through the research-based evidence of the Reporting and Recordkeeping Hour Internet, use the following address: effectiveness of these educational Burden: [email protected]. You must include programs. Responses: 56. the term ‘‘What Works Clearinghouse’’ The Institute anticipates that the in the subject line of the electronic Burden Hours: 9. Clearinghouse will gather personal comment. Requests for copies of the proposed information in two ways. First, the During and after the comment period, Clearinghouse will be collecting information collection request may be you may inspect all public comments identifying information from members accessed from http://edicsweb.ed.gov, about this notice in suite 504, 555 New of the public when— by selecting the ‘‘Browse Pending Jersey Avenue, NW., Washington, DC, 1. The public voluntarily and Collections’’ link and by clicking on between the hours of 8 a.m. and 4:30 anonymously suggests studies, p.m., Eastern time, Monday through link number 2469. When you access the interventions, and topics for WWC information collection, click on Friday of each week except Federal review, and provides optional contact holidays. ‘‘Download Attachments’’ to view. information. Written requests for information should 2. The public voluntarily subscribes Assistance to Individuals With be addressed to Vivian Reese, to receive e-mail updates about new Disabilities in Reviewing the Department of Education, 400 Maryland information on the WWC Web site. Rulemaking Record Avenue, SW., Room 4050, Regional In both cases, access to contact On request, we will supply an Office Building 3, Washington, DC information will be restricted to appropriate aid, such as a reader or 20202–4651 or to the e-mail address authorized WWC staff on a need-to- print magnifier, to an individual with a [email protected]. Requests may also know basis. In the case of e-mail disability who needs assistance to be electronically mailed to the Internet addresses, this information will only be review the comments or other address [email protected] or faxed to available to the Web site administrator. documents in the public rulemaking 202–708–9346. Please specify the Second, evaluators—individuals and record for this notice. If you want to complete title of the information organizations—may use the Web site to schedule an appointment for this type of collection when making your request. voluntarily submit contact information aid, please contact the person listed Comments regarding burden and/or and information about their services and under FOR FURTHER INFORMATION the collection activity requirements, experience in evaluating educational CONTACT. contact Sheila Carey at her e-mail programs. The purpose of this FOR FURTHER INFORMATION CONTACT: address [email protected]. information is to create a public listing Nancy Loy. Telephone: (202) 208–3680. Individuals who use a to assist people in identifying those If you use a telecommunications device evaluators who are potentially qualified telecommunications device for the deaf for the deaf (TDD), you may call the to conduct rigorous studies of the (TDD) may call the Federal Information Federal Information Relay Service effectiveness of education programs. Relay Service (FIRS) at 1–800–877– (FIRS) at 1–800–877–8339. Interested evaluators will sign a letter 8339. Individuals with disabilities may giving their written permission for this obtain this document in an alternative [FR Doc. 04–4503 Filed 2–27–04; 8:45 am] information to be used in the registry. format (e.g., Braille, large print, BILLING CODE 4000–01–P DATES: The Department seeks comment audiotape, or computer diskette) on on the new system of records described request to the contact person listed in this notice, in accordance with the under FOR FURTHER INFORMATION requirements of the Privacy Act. We CONTACT.
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SUPPLEMENTARY INFORMATION: 18–13–06 Finally, evaluators may use the Web site to voluntarily submit contact Introduction SYSTEM NAME: information—name, work mailing and The Privacy Act (5 U.S.C. 552a(e)(4)) What Works Clearinghouse (WWC) e-mail addresses, phone number— requires the Department to publish in Database. together with information about their the Federal Register this notice of a new SECURITY CLASSIFICATION: services and experience, if they would system of records maintained by the None. like this information to be included in Department. The Department’s the public-access, web-based registry of regulations implementing the Privacy SYSTEM LOCATION: evaluators. Act are contained in the Code of Federal Aspen Systems Corporation, 2277 This notice does not cover records, Regulations (CFR) in 34 CFR part 5b. Research Boulevard, Rockville, MD including but not limited to letters, e- The Privacy Act applies to a record 20850. mails, and facsimiles, sent by about an individual that contains individuals to the Secretary, Deputy CATEGORIES OF INDIVIDUALS COVERED BY THE individually identifiable information Secretary, Senior Officers, such as the SYSTEM: that is retrieved by a unique identifier Director of IES, for whom the associated with each individual, such as This web-based system will maintain Department controls responses to these a name or social security number. The a national registry of educational inquiries. Further, this notice does not information about each individual is interventions—educational programs, cover the official correspondence files of called a ‘‘record’’ and the system, products, and practices that are claimed IES, specifically the hard copies of whether manual or computer-based, is to enhance important student outcomes. official documents and electronic called a ‘‘system of records.’’ The In particular, the WWC will assess and images of certain incoming and outgoing Privacy Act requires each agency to report on the strength of research-based documents. publish notices of systems of records in evidence of the effectiveness of these the Federal Register and to prepare educational programs. AUTHORITY FOR MAINTENANCE OF THE SYSTEM: reports to OMB whenever the agency There are two categories of Education Sciences Reform Act of publishes a new or altered system of individuals covered by the system. First, 2002, Pub. L. 107–279 (2002), sections records. Each agency is also required to the WWC will be collecting identifying 172(a)(2) and (3). send copies to the Chair of the Senate information from members of the public Committee on Governmental Affairs and if the public voluntarily and PURPOSE(S): the Chair of the House Committee on anonymously suggests studies, This system of records is maintained Government Reform. These reports are interventions, and topics for WWC to provide the WWC with the means to: intended to permit an evaluation of the review, and provides optional contact 1. Contact members of the public who probable or potential effect of the information. The WWC will also collect suggest a study, intervention, or topic proposal on the privacy or other rights information from the public if an for review and who choose voluntarily of individuals. individual voluntarily subscribes to to provide optional contact information, receive e-mail updates about new if their suggestions need clarification. Electronic Access to This Document information on the WWC Web site. 2. Send e-mail updates about new You may view this document, as well Second, evaluators—individuals and information on the WWC Web site to as other Department of Education organizations—may use the Web site to subscribers. documents published in the Federal voluntarily submit contact information 3. Provide contact information for Register, in text or Adobe Portable and information about their services and evaluators who wish to have their Document Format (PDF) on the Internet experience in evaluating educational services, experience, and contact at the following site: http://www.ed.gov/ programs. The purpose of this information included in the public- news/fedregister. information is to create a public listing access, web-based registry of evaluators. To use PDF you must have Adobe to assist people in identifying those Acrobat Reader, which is available free evaluators who are potentially qualified ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES OF USERS AND at this site. If you have questions about to conduct rigorous studies of the THE PURPOSES OF SUCH USES: using PDF, call the U.S. Government effectiveness of education programs. Printing Office (GPO), toll-free, at 1– The Department may disclose CATEGORIES OF RECORDS IN THE SYSTEM: 888–293–6498; or in the Washington, information contained in a record in DC, area at (202) 512–1530. For members of the public who this system of records under the routine suggest a study, intervention, or topic uses listed in this system of records Note: The official version of this document for WWC review, and choose to provide without the consent of the individual if is the document published in the Federal the disclosure is compatible with the Register. Free Internet access to the official contact information, the form will edition of the Federal Register and the Code include name, title, organization, purposes for which the record was of Federal Regulations is available on GPO mailing address, e-mail address, phone collected. These disclosures may be access at: http://www.gpoaccess.gov/nara/ number, URL and comments. The made on a case-by-case basis or, if the index.html. individual will be able to choose Department has complied with the whether or not to submit any contact computer matching requirements of the Dated: February 25, 2004. information at all, provide just a contact Privacy Act, under a computer matching Grover J. Whitehurst, name and e-mail address, or give more agreement. Director, Institute of Education Sciences. detailed contact information, including 1. Freedom of Information Act (FOIA) For reasons discussed in the title, organization, mailing address, Advice Disclosure. The Department may preamble, the Director of the Institute of phone number, URL, or comments. disclose records to the Department of Education Sciences (IES or the Institute) For members of the public who Justice (DOJ) and OMB if the of the U.S. Department of Education (the voluntarily subscribe to receive e-mail Department concludes that disclosure is Department or ED) publishes a notice of updates from the WWC Web site, an desirable or necessary in determining a new system of records to read as automated system will collect and retain whether particular records are required follows: the e-mail addresses of subscribers. to be disclosed under the FOIA.
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2. Disclosure to the DOJ. The determines that disclosure of certain voluntarily submitted by evaluators Department may disclose records to the records to a party, counsel, about their services and experience, as DOJ to the extent necessary for representative or witness is relevant and well as contact information, after the obtaining DOJ advice on any matter necessary to the litigation or ADR, the evaluators have signed a letter giving relevant to an audit, inspection, or other Department may disclose those records their written permission for this inquiry related to the programs covered as a routine use to the party, counsel, information to be used in the registry. by this system. representative or witness. The data are retrieved by searching by 3. Contract Disclosure. If the 5. Research Disclosure. The record number, type of suggestion, Department contracts with an entity for Department may disclose records to a study author, title, reference type, the purposes of performing any function researcher if an appropriate official of publisher, topic, type of intervention, that requires disclosure of records in the Department determines that the and organization. this system to employees of the individual or organization to which the The data for the evaluator registry will contractor, the Department may disclose disclosure would be made is qualified to be searchable on the WWC public- the records to those employees. Before carry out specific research related to access Web site by topic, type of entering into a contract, the Department functions or purposes of this system of research, geographic area, study title, shall require the contractor to maintain records. The official may disclose intervention title, years of experience, Privacy Act safeguards as required records from this system of records to and contact information. under 5 U.S.C. 552a(m) with respect to that researcher solely for the purpose of SAFEGUARDS: the records in the system. carrying out that research related to the 4. Litigation and Alternative Dispute functions or purposes of this system of Access to this system will be Resolution (ADR) Disclosures. records. The researcher shall be restricted to authorized WWC (a) Introduction. In the event that one required to maintain Privacy Act contractors, subcontractors, consultants, of the parties described in (a)(i) through safeguards with respect to the disclosed and ED employees on a need-to-know (v) is involved in litigation or ADR, or records. basis. Authorized users of this system has an interest in litigation or ADR, the 6. Congressional Member Disclosure. will enter a unique user ID as well as Department may disclose certain The Department may disclose a password to enter the system. They records to the parties described in information to a Member of Congress will be required to change their paragraphs (b), (c), and (d) of this from the record of an individual in passwords periodically, and they will routine use under the conditions response to an inquiry from the Member not be allowed to repeat old passwords. specified in those paragraphs: made at the written request of that Any individual who attempts to log in (i) The Department, or any of its individual. The Member’s right to the to the system three times and fails will components; or information is no greater than the right be locked out of the system. Access after (ii) Any Department employee in his of the individual who requested it. that time requires intervention by the or her official capacity; or 7. Enforcement Disclosure. In the system manager. (iii) Any Department employee in his event that information in this system of The computer system employed by or her official capacity if the DOJ has records indicates, either on its face or in the WWC offers a high degree of agreed or been requested to provide or connection with other information, a resistance to tampering and arrange for representation for the violation or potential violation of any circumvention. This security system employee; or applicable statute, regulation, or order limits data access to authorized WWC (iv) Any Department employee in his of a competent authority, the staff and controls individual users’ or her individual capacity if the Department may disclose the relevant ability to access and alter records within Department has agreed to represent the records to the appropriate agency, the system. employee; or whether foreign, Federal, State, Tribal, All file servers, routers/hubs, tape (v) The United States if the or local, charged with the responsibility back-up stations, and communications Department determines that the of investigating or prosecuting that servers are located in secure rooms at litigation is likely to affect the violation or charged with enforcing or the subcontractor’s Headquarters site, Department or any of its components. implementing the statute, Executive and only authorized personnel have (b) Disclosure to the DOJ. If the order, rule, regulation, or order issued access via key or magnetic card. Department determines that disclosure pursuant thereto. All files will be password-protected of certain records to the DOJ is relevant and back-up files will be secured in a and necessary to litigation or ADR, and DISCLOSURES TO CONSUMER REPORTING locked area. Access to the data files and is compatible with the purpose for AGENCIES: software on the WWC site are controlled which the records were collected, the Not applicable to this system of through the Microsoft NT Server Department may disclose those records records. operating system by providing all staff as a routine use to the DOJ. POLICIES AND PRACTICES FOR STORING, with user accounts (user IDs). All secure (c) Adjudicative disclosures. If the RETRIEVING, ACCESSING, RETAINING, AND user accounts will require passwords Department determines that disclosure DISPOSING OF RECORDS IN THE SYSTEM: that must be changed every six months. of certain records to an adjudicative STORAGE: Passwords for ongoing data processing body before which the Department is The information in the tracking will be changed frequently, and users authorized to appear or to an individual system will be stored on a server will be blocked from gaining access to or entity designated by the Department maintained by the WWC subcontractor certain types of data and programs or otherwise empowered to resolve or staff. Records generated by the system based on their IDs and passwords. mediate disputes is relevant and will be maintained electronically on the RETENTION AND DISPOSAL: necessary to the litigation or ADR, the server. Department may disclose those records Records in this system will be as a routine use to the adjudicative RETRIEVABILITY: retained in accordance with the body, individual, or entity. The public will have access to the National Archives and Records (d) Parties, counsel, representatives searchable, web-based registry of Administration (NARA) General and witnesses. If the Department evaluators, containing information Records Schedule 20, Item 1.c which
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provides disposal authorization for DEPARTMENT OF ENERGY DEPARTMENT OF ENERGY electronic files and hard-copy printouts created to monitor system usage. Federal Energy Regulatory Federal Energy Regulatory Records will be deleted or destroyed Commission Commission when the agency determines they are no longer needed for administrative, legal, [Docket No. RP04–173–000] [Docket No. RP04–110–001] audit, or other operational purposes.
SYSTEM MANAGER AND ADDRESS: Dominion Transmission, Inc.; Notice of El Paso Natural Gas Company; Notice of Compliance Filing Contracting Officer’s Representative Proposed Changes in FERC Gas Tariff (COR), What Works Clearinghouse, U.S. February 24 2004. February 24, 2004. Department of Education, Institute of Education Sciences, 555 New Jersey Take notice that on February 20, 2004, Take notice that on February 20, 2004, Avenue, NW., suite 504, Washington, Dominion Transmission, Inc. (DTI) El Paso Natural Gas Company (El Paso) DC 20208. tendered for filing as part of its FERC tendered for filing as part its FERC Gas Gas Tariff, Third Revised Volume No. 1, Tariff, Second Revised Volume No. 1A, NOTIFICATION PROCEDURE: First Revised Sheet No. 1159, with an with an effective date of February 13, If you wish to determine whether a effective date of March 1, 2004. 2004: record exists about you in the system of Sub 1st Revised Original Sheet No. 287A records, provide the system manager DTI states that the purpose of this Substitute Original Sheet No. 287B with your name or e-mail address. Your filing is to remove the five-year term Substitute Second Revised Sheet No. 353 request for notification must also meet matching cap from its right-of-first refusal tariff provisions. the requirements of the regulations in 34 El Paso states that the tariff sheets are CFR 5b.5, including proof of identity. Any person desiring to be heard or to being filed to implement certain You may also present your request in protest said filing should file a motion changes to the procedures for the re- person or make your request in writing to intervene or a protest with the designation of primary point changes in to the system manager at the above Federal Energy Regulatory Commission, compliance with the Commission’s address. 888 First Street, NE., Washington, DC February 5, 2004, Order in this RECORD ACCESS PROCEDURES: 20426, in accordance with sections proceeding. Request to access a record also must 385.214 or 385.211 of the Commission’s Any person desiring to protest said reasonably specify the record contents rules and regulations. All such motions filing should file a protest with the sought and otherwise meet the or protests must be filed in accordance Federal Energy Regulatory Commission, requirements of the regulations in 34 with section 154.210 of the 888 First Street, NE., Washington, DC CFR 5b.5, including proof of identity. Commission’s regulations. Protests will 20426, in accordance with section be considered by the Commission in 385.211 of the Commission’s rules and CONTESTING RECORD PROCEDURES: determining the appropriate action to be regulations. All such protests must be If you wish to change the content of taken, but will not serve to make filed in accordance with section 154.210 a record in this system of records, you protestants parties to the proceedings. of the Commission’s regulations. must contact the system manager at the Any person wishing to become a party Protests will be considered by the above address and follow the steps must file a motion to intervene. This Commission in determining the outlined in the NOTIFICATION PROCEDURE filing is available for review at the appropriate action to be taken, but will section. Requests to amend a record Commission in the Public Reference not serve to make protestants parties to must also reasonably identify the the proceedings. This filing is available record, specify the information being Room or may be viewed on the Commission’s Web site at http:// for review at the Commission in the contested, provide in writing your Public Reference Room or may be reasons for requesting the change, and www.ferc.gov using the eLibrary. Enter the docket number excluding the last viewed on the Commission’s Web site at otherwise meet the regulations in 34 http://www.ferc.gov using the eLibrary CFR 5b.7. three digits in the docket number field to access the document. For assistance, link. Enter the docket number excluding RECORD SOURCE CATEGORIES: please contact FERC Online Support at the last three digits in the docket number field to access the document. Information in this system is obtained [email protected] or toll- For assistance, please contact FERC from members of the public and free at (866) 208–3676, or TTY, contact Online Support at evaluators who voluntarily provide (202) 502–8659. The Commission [email protected] or toll- information. The primary way for the strongly encourages electronic filings. public and evaluators to contact the free at (866) 208–3676, or TTY, contact See, 18 CFR 385.2001(a)(1)(iii) and the (202) 502–8659. The Commission WWC is electronically through the instructions on the Commission’s Web WWC Web site, although they also strongly encourages electronic filings. site under the e-Filing link. could contact the WWC by telephone, See 18 CFR 385.2001(a)(1)(iii) and the by mail, or in person. Magalie R. Salas, instructions on the Commission’s Web site under the e-Filing link. SYSTEM EXEMPTED FROM CERTAIN PROVISIONS Secretary. OF THE PRIVACY ACT: [FR Doc. E4–429 Filed 2–27–04; 8:45 am] Magalie R. Salas, None. BILLING CODE 6717–01–P Secretary. [FR Doc. 04–4514 Filed 2–27–04; 8:45 am] [FR Doc. E4–428 Filed 2–27–04; 8:45 am] BILLING CODE 4000–01–P BILLING CODE 6717–01–P
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DEPARTMENT OF ENERGY DEPARTMENT OF ENERGY DEPARTMENT OF ENERGY
Federal Energy Regulatory Federal Energy Regulatory Federal Energy Regulatory Commission Commission Commission [Docket No. RP04–172–000] [Docket No. RP96–320–063] [Docket No. RP03–470–002] Tennessee Gas Pipeline Company; Gulf South Pipeline Company, LP; Southern Star Central Gas Pipeline, Notice of Discontinuation of Supply Notice of Negotiated Rate Filing Inc.; Notice of Compliance Filing Area Volumetric Surcharge
February 24, 2004. February 24, 2004. February 23, 2004. Take notice that on February 20, 2004, Take notice that on February 18, 2004, Take notice that on February 18, 2004, Southern Star Central Gas Pipeline, Inc. Tennessee Gas Pipeline Company Gulf South Pipeline Company, LP (Gulf (Southern Star) tendered for filing as (Tennessee) tendered for filing tariff South) filed with the Commission a part of its FERC Gas Tariff, Original sheets to discontinue its Supply Area contract between Gulf South and The Volume No. 1, the tariff sheets listed Volumetric Surcharge. Tennessee City of Vicksburg, MS, Contract No. below to become effective November 1, requests an effective date of February 1, 30336, for disclosure of a recently 2003: 2004. negotiated rate transaction. Gulf South Tennessee states that pursuant to Fourth Revised Sheet No. 244 requests an effective date of April 1, Fourth Revised Sheet No. 246 Article XXV of the General Terms and 2004. Conditions of its FERC Gas Tariff, Fifth Southern Star states that the tariff Gulf South states that it has served Revised Volume No. 1, Tennessee sheets filed herewith are being recovers take or pay transition costs copies of this filing upon all parties on submitted to incorporate the approved through a combination of demand and the official service list. alternative cash-out pricing index into volumetric surcharges. Tennessee Any person desiring to be heard or to the applicable currently effective tariff explains that pursuant to Article XXV, protest said filing should file a motion sheets. The alternative pricing section 4.3 of the Tariff, Tennessee is to to intervene or a protest with the mechanism was accepted as of May 15, discontinue the Supply Area Volumetric Federal Energy Regulatory Commission, 2003, by Commission Letter Order dated Surcharge at the end of a month in 888 First Street, NE., Washington, DC February 11, 2004. which the balance in the Supply Area 20426, in accordance with Sections Southern Star states that copies of the Volumetric Transition Cost subaccount 385.214 or 385.211 of the Commission’s tariff sheets are being mailed to declines to zero. Tennessee states that Rules and Regulations. All such motions Southern Star’s jurisdictional customers during the production month of January or protests must be filed in accordance and interested State commissions. 2004, the balance in the Supply Area with Section 154.210 of the Any person desiring to protest said Volumetric Transition Cost subaccount Commission’s Regulations. Protests will filing should file a protest with the declined to zero. Consequently, be considered by the Commission in Federal Energy Regulatory Commission, Tennessee is discontinuing the Supply Area Volumetric Surcharge effective determining the appropriate action to be 888 First Street, NE., Washington, DC February 1, 2004. Tennessee indicates taken, but will not serve to make 20426, in accordance with section 385.211 of the Commission’s rules and that, pursuant to Article XXV, section protestants parties to the proceedings. regulations. All such protests must be 4.3 of the Tariff, the surcharge will be Any person wishing to become a party filed in accordance with section 154.210 reinstated if the balance in the must file a motion to intervene. This of the Commission’s regulations. subaccount later becomes positive. filing is available for review at the Protests will be considered by the Any person desiring to be heard or to Commission in the Public Reference Commission in determining the protest said filing should file a motion Room or may be viewed on the appropriate action to be taken, but will to intervene or a protest with the Commission’s Web site at http:// not serve to make protestants parties to Federal Energy Regulatory Commission, www.ferc.gov using the eLibrary. Enter the proceedings. This filing is available 888 First Street, NE., Washington, DC the docket number excluding the last for review at the Commission in the 20426, in accordance with sections three digits in the docket number field Public Reference Room or may be 385.214 or 385.211 of the Commission’s to access the document. For assistance, viewed on the Commission’s Web site at rules and regulations. All such motions please contact FERC Online Support at http://www.ferc.gov using the eLibrary or protests must be filed in accordance [email protected] toll-free link. Enter the docket number excluding with section 154.210 of the at (866) 208–3676, or TTY, contact (202) the last three digits in the docket Commission’s regulations. Protests will 502–8659. The Commission strongly number field to access the document. be considered by the Commission in encourages electronic filings. See, 18 For assistance, please contact FERC determining the appropriate action to be CFR 385.2001(a)(1)(iii) and the Online Support at taken, but will not serve to make instructions on the Commission’s web [email protected] or toll- protestants parties to the proceedings. site under the e-Filing link. free at (866) 208–3676, or TTY, contact Any person wishing to become a party (202) 502–8659. The Commission must file a motion to intervene. This Magalie R. Salas, strongly encourages electronic filings. filing is available for review at the Secretary. See 18 CFR 385.2001(a)(1)(iii) and the Commission in the Public Reference [FR Doc. E4–423 Filed 2–27–04; 8:45 am] instructions on the Commission’s Web Room or may be viewed on the Commission’s Web site at http:// BILLING CODE 6717–01–P site under the e-Filing link. www.ferc.gov using the eLibrary. Enter Magalie R. Salas, the docket number excluding the last Secretary. three digits in the docket number field [FR Doc. E4–426 Filed 2–27–04; 8:45 am] to access the document. For assistance, BILLING CODE 6717–01–P please contact FERC Online Support at
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[email protected] or toll- and Restated Radial Lines Agreement 8. Midwest Independent Transmission free at (866) 208–3676, or TTY, contact (Amended Agreement) between SCE System Operator, Inc. and Ameren (202) 502–8659. The Commission and Reliant Energy Mandalay, Inc. Services Company strongly encourages electronic filings. (Reliant). SCE states that the Amended [Docket No. ER04–571–000] See 18 CFR 385.2001(a)(1)(iii) and the Agreement reflects the replacement of Take notice that on February 19, 2004, instructions on the Commission’s Web three Coupling Capacitor Voltage the Midwest Independent Transmission site under the e-Filing link. Transformers at SCE’s Santa Clara System Operator, Inc. (Midwest ISO) Substation related to the radial line Magalie R. Salas, and Ameren Services Company, as agent connecting Reliant’s gas fired generating for Union Electric Company, d/b/a Secretary. facility to the California Independent AmerenUE (AmerenUE), tendered for [FR Doc. E4–420 Filed 2–27–04; 8:45 am] System Operator Controlled Grid at filing an Agreement for the Provision of BILLING CODE 6717–01–P SCE’s Santa Clara Substation. Transmission Service to Bundled Retail SCE states that copies of this filing Load between the Midwest ISO and were served upon the Public Utilities DEPARTMENT OF ENERGY AmerenUE (the Service Agreement). Commission of the State of California The Midwest ISO states that the Service Federal Energy Regulatory and Reliant. Agreement establishes a contractual Commission Comment Date: March 10, 2004. framework that allows AmerenUE to [Docket No. ER04–220–002, et al.] 5. El Paso Electric Company provide bundled electric service to its Missouri retail customers during a five- [Docket No. ER04–567–000] NEO California Power LLC, et al.; year transitional period while Electric Rate and Corporate Filings Take notice that on February 18, 2004, permitting the company to comply with El Paso Electric Company (EPE) Order No. 2000 through its participation February 23, 2004. pursuant to a November 6 Settlement in the Midwest ISO. The following filings have been made Agreement between EPE and Public Midwest ISO states that copies of this with the Commission. The filings are Service Company of New Mexico, EPE filing were served upon all parties. listed in ascending order within each tendered for filing revisions to Schedule Comment Date: March 5, 2004. docket classification. 7 of its Open Access Transmission Tariff 9. Southern California Edison Company 1. NEO California Power LLC to include hourly firm point-to-point transmission service. EPE seeks an [Docket No. ER04–572–000] [Docket No. ER04–220–002] effective date of April 19, 2004, for the Take notice that on February 19, 2004, Take notice that on February 19, 2004, proposed revisions. Southern California Edison Company NEO California Power LLC (NEO Comment Date: March 10, 2004. (SCE) tendered for filing revised rate California) tendered for filing corrected sheets to Rate Schedule FERC Nos. 112, rate schedule sheets for the Must-Run 6. Florida Power & Light Company 113, 421, and 342. The revisions to Service Agreement (RMR Agreement) [Docket No. ER04–568–000] these rate sheets are made pursuant to between NEO California and the Take notice that on February 18, 2004, a letter agreement (Letter Agreement) California Independent System Operator Florida Power & Light Company (FPL) and various contract amendments Corporation (California ISO), which, tendered for filing an executed between SCE and the State of California according to NEO California, reflect the amendment to the Interconnection & Department of Water Resources (CDWR effective date approved by the Federal Operation Agreement between FPL and (Parties, collectively)) which provide for Energy Regulatory Commission’s Blue Heron Energy Center, LLC. FPL a reduction to CDWR’s loss obligation to January 21, 2004, letter order. requests that this amendment be made SCE, and resolve a longstanding billing Comment Date: March 11, 2004. effective February 6, 2004. dispute between the Parties. SCE 2. Dominion Retail, Inc. Comment Date: March 10, 2004. respectfully requests an effective date of January 1, 2002. [Docket No. ER04–249–001] 7. Midwest Independent Transmission SCE states that copies of this filing Take notice that on February 18, 2004, System Operator, Inc. were served upon the Public Utilities Dominion Retail, Inc. (Dominion Retail) [Docket No. ER04–569–000] Commission of the State of California, filed a revised market-based rate tariff to CDWR and the California Independent incorporate the Market Behavior Rules Take notice that on February 18, 2004, System Operator Corporation. established by the Commission in its Midwest Independent Transmission Comment Date: March 11, 2004. order issued on November 17, 2003, in System Operator, Inc. (Midwest ISO) 10. Consolidated Edison Company of Docket No. EL01–118–000. tendered for filing Notices of New York, Inc. Comment Date: March 10, 2004. Cancellation for the Adams-Columbia Electric Cooperative, Central Wisconsin [Docket No. ER04–573–000] 3. Pure Energy Electric Cooperative, Kiel Electric Take notice that on February 19, 2004, [Docket No. ER04–452–001] Utility, Prairie du Sac Electric & Water Consolidated Edison Company of New Take notice that on February 18, 2004, Utility and Rock County Electric York, Inc. (Con Edison) tendered for Pure Energy submitted for filing a rate Cooperative Ancillary Service filing on Open Access Transmission revised schedule conforming to the Agreements under the Midwest ISO Tariff, FERC Electric Tariff, First Commission’s Order 614. FERC Electric Tariff, Second Revised, Revised Volume No. 1 (superseding Comment Date: March 10, 2004. Volume No. 1, pursuant to sections Original Volume No. 1). Con Edison 35.15 and 131.53 of the Commission’s 4. Southern California Edison Company states that the filing proposes non- regulations, 18 CFR 35.15 and 131.53 substantive revisions to Con Edison’s [Docket No. ER04–566–000] (2002). current Open Access Transmission Take notice that on February 18, 2004, Midwest ISO states that a copy of this Tariff, including reformatting in Southern California Edison Company filing was served on all parties. compliance with Order No. 614. (SCE) tendered for filing the Amended Comment Date: March 10, 2004. Comment Date: March 11, 2004.
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11. Basin Electric Power Cooperative interventions may be filed electronically tendered for filing an original and six [Docket No. NJ04–2–001] via the Internet in lieu of paper; see 18 copies of an errata to the revised Exhibit CFR 385.2001(a)(1)(iii) and the B accepted in the Commission’s Take notice that on February 18, 2004, instructions on the Commission’s Web December 17, 2003, Letter Order. Basin Electric Power Cooperative (Basin site under the ‘‘e-Filing’’ link. The Wisconsin Electric states that the Electric) tendered for filing Substitute Commission strongly encourages purpose of the errata is to modify an First Revised Sheet No. 7 in its non- electronic filings. inadvertent/incorrect rate schedule jurisdictional open-access transmission designation contained in the tariff reciprocity tariff, FERC Electric Tariff, Magalie R. Salas, sheets submitted along with the Original Volume No. 1 (West-Side Secretary. September 8 filing, as well as a related OATT) correcting errors in the table of [FR Doc. E4–419 Filed 2–27–04; 8:45 am] reference to same contained in the contents that was contained in Basin BILLING CODE 6717–01–P transmittal letters submitted along with Electric’s January 20, 2004, filing Wisconsin Electric’s September 8 and (January 20th Filing) in compliance Supplemental filings. Wisconsin with Standardization of Generator DEPARTMENT OF ENERGY Electric requests that the Commission Interconnection Agreements and allow Exhibit B’s November 7, 2003, Procedures, Order No. 2003, FERC Stats. Federal Energy Regulatory effective date, which was established in & Regs. ¶ 31,146, 104 FERC ¶ 61,103 Commission the Commission’s December 17, 2003, (2003). Basin Electric respectfully [Docket No. ER00–1857–002, et al.] Letter Order, to remain undisturbed. requests that the Commission allow the Comment Date: March 4, 2004. revised sheet to become effective Split Rock Energy LLC, et al.; Electric January 20, 2004, the same effective date Rate and Corporate Filings 4. PJM Interconnection L.L.C. that it requested in its January 20th [Docket No. ER04–46–001 Filing. February 20, 2004. Basin Electric states that copies of the The following filings have been made Take notice that on February 17, 2004, filing were served upon customers with the Commission. The filings are PJM Interconnection L.L.C. (PJM) under the West-Side OATT, persons on listed in ascending order within each submitted for filing a substitute the Commission’s official service list in docket classification. interconnection service agreement (ISA) among PJM, Motiva Enterprises, L.L.C., this proceeding, and upon the Public 1. Split Rock Energy LLC Service Company of Colorado, the Iowa and Delmarva Power & Light Company Utilities Board, the Minnesota Public [Docket No. ER00–1857–002] d/b/a Connectiv Power Delivery Utilities Commission, the Montana Take notice that on February 17, 2004, pursuant to the Commission’s Order Public Service Commission, the Split Rock Energy LLC (Split Rock) dated November 24, 2003, in Docket No. Nebraska Public Service Commission, tendered for filing its triennial review in ER04–46–000. the North Dakota Public Utilities compliance with the Commission’s Comment Date: March 9, 2004. Commission, the South Dakota Public Order dated June 20, 2000, in Docket 5. PJM Interconnection, L.L.C. Utilities Commission, and the Wyoming No. ER00–1857–000. [Docket No. ER04–302–001] Public Service Commission. Comment Date: March 9, 2004. Comment Date: March 10, 2004. Take notice that on February 17, 2004, 2. Naniwa Energy LLC PJM Interconnection, L.L.C. (PJM) Standard Paragraph [Docket No. ER01–457–002] submitted for filing a substitute Any person desiring to intervene or to Take notice that on February 17, 2004, interconnection service agreement protest this filing should file with the Naniwa Energy LLC (Naniwa) tendered among PJM, U.S. General Services Federal Energy Regulatory Commission, for filing (1) an updated market power Administration, White Oak Federal 888 First Street, NE., Washington, DC analysis, and (2) an amendment to its Research Center, and Potomac Electric 20426, in accordance with rules 211 and market-based rate tariff to adopt the Power Company pursuant to the 214 of the Commission’s rules of Commission’s new Market Behavior Commission’s Order dated February 12, practice and procedure (18 CFR 385.211 Rules. 2004, in Docket No. ER04–302–000. PJM and 385.214). Protests will be Comment Date: March 9, 2004. states that copies of this filing were considered by the Commission in served upon persons designated on the 3. Wisconsin Electric Power Company determining the appropriate action to be official service list compiled by the taken, but will not serve to make [Docket No. ER03–1313–002] Secretary in this proceeding and the protestants parties to the proceeding. Take notice that on February 17, 2004, parties to the agreements. Any person wishing to become a party Wisconsin Electric Power Company Comment Date: March 9, 2004. must file a motion to intervene. All such (Wisconsin Electric) tendered its refund 6. Metropolitan Edison Company motions or protests should be filed on report in compliance with the Pennsylvania Electric Company or before the comment date, and, to the Commission’s December 17, 2003, Letter extent applicable, must be served on the Order, which accepted Wisconsin [Docket No. ER04–372–001] applicant and on any other person Electric’s September 8, 2003 Take notice that on February 12, 2004, designated on the official service list. (hereinafter, September 8 filing), Metropolitan Edison Company and This filing is available for review at the revision to Exhibit B of First [sic] Pennsylvania Electric Company Commission or may be viewed on the Revised Power Sales Agreement (collectively, MetEd/Penelec) tendered Commission’s Web site at http:// (hereinafter, Exhibit B) between for filing a revised Original Sheet No. 1 www.ferc.gov, using the ‘‘FERRIS’’ link. Wisconsin Electric and Wisconsin to its proposed Market-Based Rate Enter the docket number excluding the Public Power, Inc. (hereinafter, WPPI), Power Sales Tariff (the Tariff), which last three digits in the docket number as amended by Wisconsin Electric’s was submitted on December 31, 2003. filed to access the document. For October 22, 2003, supplemental filing MetEd/Penelec also ask that the revised assistance, call (202) 502–8222 or TTY, (hereinafter, Supplemental filing). Original Sheet No. 1 be substituted for (202) 502–8659. Protests and Additionally, Wisconsin Electric the one submitted on December 31,
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2001, and that the Tariff, as so modified, 9. Michigan Electric Transmission Commission an Amendment to the be permitted to become effective on Company LLC Power Contract Between SEGCO, December 17, 2003. [Docket No. ER04–562–000] Alabama, and Georgia (FERC Rate Comment Date: March 4, 2004. Schedule SEGCO No. 1) (Power Take notice that on February 17, 2004, Contract). The purpose of the 7. Arizona Public Service Company Michigan Electric Transmission Amendment is to revise the Power Company LLC (METC) tendered for [Docket No. ER04–560–000] Contract to specifically address the filing an Interconnection Facilities parties’ responsibilities regarding Take notice that on February 17, 2004, Agreement (IFA) between METC and Arizona Public Service Company (APS) regulated emissions allowances (e.g., Wolverine Power Supply Cooperative, Sulfur Dioxide (SO2) and Nitrous Oxide tendered a filing with the Commission Inc. METC requests an effective date of a Notice of Cancellation of the (NOX) emissions allowances). IFA of January 21, 2004. Comment Date: March 9, 2004. transmission service agreement among Comment Date: March 9, 2004. Arizona Public Service Company, 13. Alabama Electric Marketing, LLC 10. Southern Company Services, Inc. Southern California Edison Company, [Docket No. ER04–570–000] and United States of America, Bureau of [Docket No. ER04–563–000] Take notice that on January 5, 2004, Indian Affairs on Behalf of The Take notice that on February 17, 2004, Alabama Electric Marketing, LLC (AEM) Colorado River Indian Irrigation Project. Southern Company Services, Inc., (SCS) submitted for filing to the Commission APS states that copies of this filing on behalf of Alabama Power Company, revisions to its Rate Schedule FERC No. were supplied to Southern California Georgia Power Company, Gulf Power 1 including conforming provisions to Edison Company, and United States of Company, Mississippi Power Company, the Commission’s policy on affiliate America, Bureau of Indian Affairs on and Savannah Electric and Power transactions and reassignment of Behalf of The Colorado River Indian Company (collectively Southern transmission. Irrigation Project, the Arizona Companies), submitted for filing one Comment Date: February 27, 2004. Corporation Commission, and the long-term firm transmission service California Public Utilities Commission. agreement under the Open Access 14. International Transmission Comment Date: March 9, 2004. Transmission Tariff of Southern Company Companies (FERC Electric Tariff, Fourth 8. Virginia Electric and Power [Docket No. ES04–14–000] Revised Volume No. 5) (Tariff) between Company Take notice that on February 13, 2004, Calpine Energy Services, LP and International Transmission Company, [Docket No. ER04–561–000] Southern Companies. The agreement is (International Transmission) tendered Take notice that on February 16, 2004, designated Service Agreement No. 466 for filing an application seeking Virginia Electric and Power Company under Southern Companies’ Tariff. authority to issue securities in the (Dominion Virginia Power) tendered for Comment Date: March 9, 2004. amount of $50 million, as more fully filing the following amended service 11. Wayne White Counties Electric described in the application. agreements for Sempra Energy Trading Cooperative International Transmission has Corp under the Company’s Open Access requested an exemption from the Transmission Tariff, FERC Electric [Docket No. ER04–564–000] Commission’s competitive bidding and Tariff, Second Revised Volume No. 5, to Take notice that on February 17, 2004, negotiated placement requirements. Eligible Purchasers dated June 7, 2000. Wayne-White Counties Electric International Transmission has further 1. Eighth Amended Service Cooperative (Wayne-White) tendered for requested the Commission to issue an Agreement for Firm Point-To-Point filing two proposed rate changes to its order no later than March 31, 2004. Transmission Service designated Eighth Rate Schedule FERC No. 2, the Comment Date: March 5, 2004. Operations Agreement Between Wayne- Revised Service Agreement No. 253 15. Morgan Energy Center, LLC under the Company’s FERC Electric White Counties Electric Cooperative and Tariff, Second Revised Volume No. 5; the City of Fairfield, Illinois (Fairfield). [Docket Nos. QF01–84–001 and EL04–83– The first change reflects an agreed-upon 000] 2. Eighth Amended Service alteration of the capacity charge billing Agreement for Non-Firm Point-To-Point Take notice that on February 17, 2004, determinant that was made on January Transmission Service designated Eighth Morgan Energy Center, LLC (Applicant) 1, 2001, and which had the effect of Revised Service Agreement No. 49 tendered for filing a petition for limited reducing charges to Fairfield. The under the Company’s FERC Electric waiver of the Commission’s efficiency second change is a rate increase with a Tariff, Second Revised Volume No. 5; standard for a topping-cycle proposed effective date of January 1, 3. Ninth Amended Service Agreement cogeneration facility. 2004, that would increase revenues from Comment Date: March 9, 2004. for Firm Point-To-Point Transmission jurisdictional sales and service by Standard Paragraph Service designated Ninth Revised $656,786 based on the 12-month period Service Agreement No. 253 under the ending December 31, 2003. Any person desiring to intervene or to Company’s FERC Electric Tariff, Second Wayne-White states that a copy of the protest this filing should file with the Revised Volume No. 5; filing has been served upon the City of Federal Energy Regulatory Commission, 4. Ninth Amended Service Agreement Fairfield. 888 First Street, NE., Washington, DC for Non-Firm Point-To-Point Comment Date: March 9, 2004. 20426, in accordance with rules 211 and Transmission Service designated Ninth 214 of the Commission’s rules of 12. Southern Company Services, Inc.. Revised Service Agreement No. 49 practice and procedure (18 CFR 385.211 under the Company’s FERC Electric [Docket No. ER04–565–000] and 385.214). Protests will be Tariff, Second Revised Volume No. 5. Take notice that on February 17, 2004, considered by the Commission in Dominion Virginia Power respectfully Southern Electric Generating Company determining the appropriate action to be requests an effective date of January 17, (SEGCO), Alabama Power Company taken, but will not serve to make 2003. (Alabama), and Georgia Power Company protestants parties to the proceeding. Comment Date: March 9, 2004. (Georgia) tendered for filing with the Any person wishing to become a party
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must file a motion to intervene. All such DEPARTMENT OF ENERGY Environmental Conservation, Trout motions or protests should be filed on Unlimited, U.S. Department of the or before the comment date, and, to the Federal Energy Regulatory Interior, Fish and Wildlife Service, and extent applicable, must be served on the Commission U.S. Department of the Interior, applicant and on any other person [Project No. 2474–004] National Park Service a settlement designated on the official service list. agreement on the resolution of issues This filing is available for review at the Oswego River Project; Notice of related to the licensing proceeding for Commission or may be viewed on the Settlement Agreement and Soliciting the Oswego River Project. The Commission’s Web site at http:// Comments settlement includes measures for www.ferc.gov, using the ‘‘FERRIS’’ link. enhancing aquatic habitat, fish Enter the docket number excluding the February 24, 2004. movement and fishing opportunities, last three digits in the docket number Take notice that following settlement riparian vegetation, wetland and filed to access the document. For agreement has been filed with the wildlife, and recreational access. In assistance, call (202) 502–8222 or TTY, Commission and is available for public addition, the settlement includes an (202) 502–8659. Protests and inspection. agreement among the parties to modify interventions may be filed electronically a. Type of Application: Settlement the terms and conditions of the via the Internet in lieu of paper; see 18 agreement on resolution of issues upstream Oswego Falls Project, No. CFR 385.2001(a)(1)(iii) and the related to licensing of the Oswego River 5984, license so that it will be instructions on the Commission’s Web Project. compatible with the various protection, site under the ‘‘e-Filing’’ link. The b. Project No.: P–2474–004. mitigation, and enhancement measures Commission strongly encourages c. Date filed: February 19, 2004. pertaining to the Oswego River Project. electronic filings. d. Applicant: Erie Boulevard, L.P. Erie intents to file an application to e. Name of Project: Oswego River amend the license for the Oswego Falls Magalie R. Salas, Project. Project within 90 days of the date of the f. Location: On the Oswego River in Secretary. settlement agreement. Oswego County, New York. [FR Doc. E4–422 Filed 2–27–04; 8:45 am] l. A copy of the settlement agreement g. Filed Pursuant to: Rule 602 of the BILLING CODE 6717–01–P is available for review at the Commission’s rules of practice and Commission in the Public Reference procedure, 18 CFR 385.602 Room or may be viewed on the DEPARTMENT OF ENERGY h. Applicant Contact: Jerry L. Sabattis, Reliant Energy, 225 Greenfield Parkway, Commission’s Web site at http:// Federal Energy Regulatory Suite 201, Liverpool, New York, 13088, www.ferc.gov using the ‘‘eLibrary’’ link. Commission (315) 413–2787. Enter the docket number excluding the FERC Contact: John Costello, (202) last three digits in the docket number [Project No. 12062–001] 502–6119, [email protected]. field to access the document. For j. Deadline for Filing Comments: 20 assistance, contact FERC Online Symbiotics, LLC; Notice of Surrender Support at of Preliminary Permit days from the issuance date of this notice; reply comments are due 30 days [email protected] or toll- February 23, 2004. from the issuance date of this notice. free at 1–866–208–3676, or TTY, (202) Take notice that Symbiotics, LLC, All documents (original and eight 502–8659. A copy is also available for permittee for the proposed Sun River copies) should be filed with: Magalie R. inspection and reproduction at the Diversion Hydroelectric Project, has Salas, Secretary, Federal Energy address in item h above. requested that its preliminary permit be Regulatory Commission, 888 First You may also register online at http:/ terminated. The permit was issued on Street, NE., Washington, DC 20426. /ferc.gov/docs-filing/esubscription.asp September 28, 2001, and would have The Commission’s rules of practice to be notified via email of new filings expired on August 31, 2004. The require all interveners filing documents and issuances related to this or other proposed project would have been with the Commission to serve a copy of pending projects. For assistance, contact located on an existing federally-owned that document on each person on the FERC Online Support. dam administered by the U.S. Bureau of official service list for the Project. Magalie R. Salas, Reclamation, on the Sun River in Teton Further, if an intervener files comments Secretary. or documents with the Commission County, Montana. [FR Doc. E4–424 Filed 2–27–04; 8:45 am] The permittee filed the request on relating to the merits of an issue that BILLING CODE 6717–01–P February 13, 2004, and the preliminary may affect the responsibilities of a permit for Project No. 12062 shall particular resource agency, they must remain in effect through the 30th day also serve a copy of the document on DEPARTMENT OF ENERGY after issuance of this notice unless that that resource agency. day is a Saturday, Sunday, or holiday as Comments may be filed electronically Federal Energy Regulatory described in 18 CFR 385.2007, in which via the Internet in lieu of paper. The Commission case the permit shall remain in effect Commission strongly encourages through the first business day following electronic filings. See 18 CFR [Project No. 2194–020] that day. New applications involving 385.2001(a)(1)(iii) and the instructions this project site, to the extent provided on the Commission’s Web site (http:// FPL Energy Maine Hydro LLC; Notice for under 18 CFR part 4, may be filed www.ferc.gov) under the ‘‘e-Filing’’ link. of Application Accepted for Filing a on the next business day. k. Reliant Energy filed on behalf of Soliciting Motions To Intervene and Erie Boulevard, L.P. (Erie) and the Protest Magalie R. Salas, Adirondack Mountain Club, Izaak Secretary. Walton League, New York Rivers February 24, 2004. [FR Doc. E4–421 Filed 2–27–04; 8:45 am] United, New York State Conservation Take notice that the following BILLING CODE 6717–01–P Council, New York State Department of hydroelectric application has been filed
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with the Commission and is available (MW); and (4) appurtenant facilities. Issue Acceptance Letter—February 2004 for public inspection. The average annual generation is 18,850 Additional Information Due—December 2004 a. Type of Application: New major MWh. The dam and existing project Issue Scoping Document—January 2005 license. facilities are owned by the applicant. Notice that application is ready for environmental analysis—March 2005 b. Project No.: P–2194–020. m. A copy of the application is c. Date Filed: June 30, 2003. available for review at the Commission Final amendments to the application d. Applicant: FPL Energy Maine in the Public Reference Room or may be must be filed with the Commission no Hydro LLC. viewed on the Commission’s Web site at later than 30 days from the issuance e. Name of Project: Bar Mills http://www.ferc.gov using the eLibrary date of the notice of ready for Hydroelectric Project. link. Enter the docket number excluding environmental analysis. f. Location: On the Saco River, in the the last three digits in the docket Towns of Buxton and Hollis, York Magalie R. Salas, number field to access the document. Secretary. County, Maine. The project would use For assistance, contact FERC Online [FR Doc. E4–430 Filed 2–27–04; 8:45 am] no Federal lands. Support at g. Filed Pursuant to: Federal Power [email protected] or toll- BILLING CODE 6717–01–P Act, 16 U.S.C. 791 (a)–825(r). free at 1–866–208–3676, or for TTY, h. Applicant Contact: Mr. F. Allen (202) 502–8659. A copy is also available Wiley, Vice President, FPL Energy DEPARTMENT OF ENERGY for inspection and reproduction at the Maine Hydro LLC, 160 Capitol Street, address in item h. above. Augusta, Maine 04330, or call (207) Federal Energy Regulatory You may also register online at http:/ 623–8413. Commission /www.ferc.gov/esubscribenow.htm to be i. FERC Contact: Ed Lee, [Docket No. RP03–625–000] [email protected] or call (202) 502–6082. notified via email of new filings and j. Deadline for Filing Motions to issuances related to this or other Chandeleur Pipe Line Company; Intervene and Protest: 60 days from the pending projects. For assistance, contact Notice of Technical Conference issuance date of this notice. FERC Online Support. All documents (original and eight n. Anyone may submit a protest or a February 24, 2004. copies) should be filed with: Magalie R. motion to intervene in accordance with Take notice that a technical Salas, Secretary, Federal Energy the requirements of rules of practice and conference will be held on Thursday, Regulatory Commission, 888 First procedure, 18 CFR 385.210, 385.211, March 4, 2004 at 10 a.m., in a room to Street, NE., Washington, DC 20426. and 385.214. In determining the be designated at the Federal Energy The Commission’s rules of practice appropriate action to take, the Regulatory Commission, 888 First and procedure require all intervenors Commission will consider all protests Street, NE., Washington, DC 20426. filing Docket No. P–2194–020 filed, but only those who file a motion The purpose of the conference is to documents with the Commission to to intervene in accordance with the address Chandeleur Pipe Line serve a copy of that document on each Commission’s rules may become a party Company’s (Chandeleur) Section 4 rate person whose name appears on the to the proceeding. Any protests or increase filed on September 30, 2003.1 official service list for the project. motions to intervene must be received Chandeleur should be prepared to Further, if an intervenor files comments on or before the specified deadline date discuss all relevant cost and throughput or documents with the Commission for the particular application. issues, as well as its responses to staff’s relating to the merits of an issue that All filings must (1) bear in all capital data request dated December 12, 2003. may affect the responsibilities of a letters the title ‘‘PROTEST’’ or All parties and staff are permitted to particular resource agency, they must ‘‘MOTION TO INTERVENE’’; (2) set attend. forth in the heading the name of the also serve a copy of the document on Magalie R. Salas, applicant and the project number of the that resource agency. Secretary. Motions to intervene and protests and application to which the filing requests may be filed electronically via responds; (3) furnish the name, address, [FR Doc. E4–427 Filed 2–27–04; 8:45 am] the Internet in lieu of paper. The and telephone number of the person BILLING CODE 6717–01–P Commission strongly encourages protesting or intervening; and (4) otherwise comply with the requirements electronic filings. See CFR 385.200 (a) DEPARTMENT OF ENERGY (1) (iii) and the instructions on the of 18 CFR 385.2001 through 385.2005. Commission’s Web site (http:// Agencies may obtain copies of the Federal Energy Regulatory www.ferc.gov) under the ‘‘e-Filing’’ link. application directly from the applicant. Commission k. This application has been accepted, A copy of any protest or motion to but is not ready for environmental intervene must be served upon each [Docket No. RM98–1–000] analysis at this time. representative of the applicant specified l. The Bar Mills Hydro Project in the particular application. Records Governing Off-the-Record consists of the following existing o. Procedural Schedule and Final Communications; Public Notice facilities: (1) A 400-foot-long by 25-foot- Amendments: The application will be February 24, 2004. high dam, with 6.75 foot-high processed according to the following This constitutes notice, in accordance flashboards, and a 90 to 200 foot wide Hydro Licensing Schedule. Revisions to with 18 CFR 385.2201(b), of the receipt by 725 foot long power canal; (2) the 5.3 the schedule will be made as of exempt and prohibited off-the-record mile long impoundment, which has a appropriate. The Commission staff communications. surface area of 263 acres at the normal proposes to issue one environmental Order No. 607 (64 FR 51222, full pond elevation of 148.5 feet above assessment rather than issue a draft and September 22, 1999) requires mean sea level; (3) a powerhouse final EA. Comments, terms and Commission decisional employees, who containing two 2.25 megawatts conditions, recommendations, generating units with total installed prescriptions, and reply comments, if 1 Order Accepting and Suspending Tariff Sheet generating capacity of 4.5 megawatts any, will be addressed in the EA. Su.
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make or receive an exempt or prohibited made in a prohibited off-the-record CFR 1501.6, made under 18 CFR off-the-record communication relevant communication, and may request that 385.2201(e)(1)(v). to the merit’s of a contested on-the- the Commission place the prohibited The following is a list of prohibited record proceeding, to deliver a copy of communication and responses thereto and exempt communications recently the communication, if written, or a in the decisional record. The received in the Office of the Secretary. summary of the substance of any oral Commission will grant such a request The communications listed are grouped communication, to the Secretary. only when it determines that fairness so by docket numbers. These filings are Prohibited communications will be requires. Any person identified below as included in a public, non-decisional file available for review at the Commission having made a prohibited off-the-record in the Public Reference Room or may be associated with, but not a part of, the communication shall serve the decisional record of the proceeding. viewed on the Commission’s Web site at document on all parties listed on the Unless the Commission determines that http://www.ferc.gov using the eLibrary official service list for the applicable the prohibited communication and any (FERRIS) link. Enter the docket number responses thereto should become a part proceeding in accordance with rule excluding the last three digits in the of the decisional record, the prohibited 2010, 18 CFR 385.2010. docket number field to access the off-the-record communication will not Exempt off-the-record document. For assistance, please contact be considered by the Commission in communications will be included in the FERC, Online Support at reaching its decision. Parties to a decisional record of the proceeding, [email protected] or toll proceeding may seek the opportunity to unless the communication was with a free at (866) 208–3676, or for TTY, respond to any facts or contentions cooperating agency as described by 40 contact (202) 502–8659.
Docket No. Date filed Presenter or requester
Prohibited 1. Project No. 2342–000 ...... 2–19–04 Rodney Parker. 2. Project No. 2342–000 ...... 2–19–04 Erika Parker. 3. Project No. 2342–000 ...... 2–20–04 Maureen Russell. 4. RP00–469–004, et al...... 2–19–04 David McCallum. 5. RP00–469–004, et al...... 2–20–04 David McCallum. Exempt 1. ER04–316–000 ...... 2–20–04 Hon. Zoe Lofgren, Hon. Mike Honda, Hon. George Miller, Hon. Cal Dooley, Hon. Ellen Tauscher. 2. ER04–316–000 ...... 2–20–04 Hon. John Doolittle. 3. Project Nos. 2576–022 and 2597–019 ...... 2–23–04 Hon. Nancy L. Johnson.
Magalie R. Salas, OMB regulations, the Agency may Agency, 1200 Pennsylvania Ave., NW., Secretary. continue to conduct or sponsor the Washington, DC 20460; telephone [FR Doc. E4–425 Filed 2–27–04; 8:45 am] collection of information while this number: (202) 564–4113; fax number: BILLING CODE 6717–01–P submission is pending at OMB. This ICR (202) 564–0050; e-mail address: describes the nature of the information [email protected]. collection and its estimated burden and cost. SUPPLEMENTARY INFORMATION: EPA has ENVIRONMENTAL PROTECTION submitted the following ICR to OMB for DATES: AGENCY Additional comments may be review and approval according to the submitted on or before March 31, 2004. [OECA–2003–0035; FRL–7628–1] procedures prescribed in 5 CFR 1320.12. ADDRESSES: Submit your comments, On May 19, 2003 (68 FR 27059), EPA Agency Information Collection referencing docket ID number OECA– sought comments on this ICR pursuant Activities; Submission for OMB Review 2003–0035, to (1) EPA online using to 5 CFR 1320.8(d). EPA received no and Approval; Comment Request; EDOCKET (our preferred method), by e- comments. NESHAP for Pharmaceuticals mail to [email protected], or by mail EPA has established a public docket Production, EPA ICR Number 1781.03, to: EPA Docket Center, Environmental for this ICR under Docket ID Number OMB Control Number 2060–0358 Protection Agency, Enforcement and OECA–2003–0035, which is available Compliance Docket and Information AGENCY: Environmental Protection for public viewing at the Enforcement Center (ECDIC), Mail Code 2201T, 1200 and Compliance Docket and Information Agency (EPA). Pennsylvania Ave., NW., Washington, ACTION: Notice. Center in the EPA Docket Center (EPA/ DC 20460, and (2) OMB at: Office of DC), EPA West, Room B102, 1301 Information and Regulatory Affairs, SUMMARY: In compliance with the Constitution Ave., NW., Washington, Paperwork Reduction Act, this Office of Management and Budget DC. The EPA Docket Center Public document announces that an (OMB), Attention: Desk Officer for EPA, Reading Room is open from 8:30 a.m. to Information Collection Request (ICR) 725 17th Street, NW., Washington, DC 4:30 p.m., Monday through Friday, has been forwarded to the Office of 20503. excluding legal holidays. The telephone Management and Budget (OMB) for FOR FURTHER INFORMATION CONTACT: number for the Reading Room is (202) review and approval. This is a request Learia Williams, Compliance 566–1744, and the telephone number for to renew an existing approved Assessment and Media Programs the Enforcement and Compliance collection. This ICR is scheduled to Division, Office of Compliance, Mail Docket and Information Center is: (202) expire on February 29, 2004. Under Code 2223A, Environmental Protection 566–1752. An electronic version of the
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public docket is available through EPA and records are essential in determining Changes in the Estimates: There is a Dockets (EDOCKET) at http:// compliance, and in general, are required decrease of 3,147 hours in the total www.epa.gov/edocket. Use EDOCKET to of all sources subject to NESHAP. The estimated hour burden currently submit or view public comments, access required notifications are used to inform identified in the OMB Inventory of the index listing of the contents of the the Agency or delegated authority when Approved ICR Burdens. The decrease in public docket, and to access those a source becomes subject to the hour burden from the most recently documents in the public docket that are standard. The reviewing authority may approved ICR is due to a decrease in the available electronically. When in the then inspect the source to check if the number of sources. Our data indicates system, select ‘‘search,’’ then key in the pollution control devices are properly that there are approximately 101 docket ID number identified above. installed and operated, and that the sources, including one new source due Any comments related to this ICR standard is being met. to reconstruction. should be submitted to EPA and OMB Any owner or operator subject to the Dated: February 19, 2004. within 30 days of this notice. EPA’s provisions of this part will maintain a policy is that public comments, whether file of these measurements, and retain Oscar Morales, submitted electronically or in paper, the file for at least five years following Director, Collection Strategies Division. will be made available for public the date of such measurements, [FR Doc. 04–4466 Filed 2–27–04; 8:45 am] viewing in EDOCKET as EPA receives maintenance reports, and records. BILLING CODE 6560–50–P them and without change, unless the Performance tests reports are needed as comment contains copyrighted material, they are the Agency’s record of a Confidential Business Information (CBI), source’s initial capability to comply ENVIRONMENTAL PROTECTION or other information whose public with the emission standard, and serve as AGENCY disclosure is restricted by statute. When a record of the operating conditions [OECA–2003–0038; FRL–7627–9] EPA identifies a comment containing under which compliance was achieved. copyrighted material, EPA will provide Any agency may not conduct or Agency Information Collection a reference to that material in the sponsor, and a person is not required to Activities; Submission to OMB for version of the comment that is placed in respond to, a collection of information Review and Approval; Comment EDOCKET. The entire printed comment, unless it displays a currently valid OMB Request; NSPS for Secondary Brass including the copyrighted material, will Control Number. The OMB Control and Bronze Production, Primary be available in the public docket. Numbers for EPA’s regulations are listed Copper Smelters, Primary Zinc Although identified as an item in the in 40 CFR part 9 and 48 CFR chapter 15, Smelters, Primary Lead Smelters, official docket, information claimed as and are identified on the form and/or Primary Aluminum Reduction Plants CBI, or whose disclosure is otherwise instrument, if applicable. and Ferroalloy Production Facilities restricted by statute, is not included in Burden Statement: The annual public (40 CFR Part 60, Subparts M, P, Q, R, the official public docket, and will not reporting and recordkeeping burden for S and Z) (Renewal), EPA ICR Number be available for public viewing in this collection of information are 1604.07, OMB Control Number 2060– EDOCKET. For further information estimated to average 250 hours per 0110 about the electronic docket, see EPA’s response. Burden means the total time, Federal Register notice describing the effort, or financial resources expended AGENCY: Environmental Protection electronic docket at 67 FR 38102 (May by persons to generate, maintain, retain, Agency (EPA). 31, 2002), or go to http://www.epa.gov/ or disclose or provide information to or ACTION: Notice. edocket. for a Federal agency. This includes the SUMMARY: In compliance with the Title: NESHAP for Pharmaceuticals time needed to review instructions; to Paperwork Reduction Act, this Production (40 CFR part 63, subpart develop, acquire, install, and utilize document announces that an GGG), OMB Control Number 2060– technology and systems for the purposes Information Collection Request (ICR) 0358, EPA ICR Number 1781.03. of collecting, validating, and verifying has been forwarded to the Office of Abstract: The National Emission information, processing and Standards for Hazardous Air Pollutants Management and Budget (OMB) for maintaining information, and disclosing review and approval. This is a request (NESHAP), were proposed on April 2, and providing information; to adjust the 1997 and promulgated on September 21, to renew an existing approved existing ways to comply with any collection. This ICR is scheduled to 1998. These standards apply to the previously applicable instructions and facilities in Pharmaceuticals Production expire on February 29, 2004. Under requirements; to train personnel to be OMB regulations, the Agency may that are major sources of hazardous air able to respond to a collection of pollutants (HAP). The affected facility continue to conduct or sponsor the information; to search data sources; to collection of information while this includes all pharmaceutical complete and review the collection of manufacturing operations, which submission is pending at OMB. This ICR information; and to transmit or describes the nature of the information includes process vents, storage tanks, otherwise disclose the information. equipment components, and wastewater collection and its estimated burden and Respondents/Affected Entities: cost. systems commencing construction or Pharmaceuticals Production Plants. reconstruction after the date of the Estimated Number of Respondents: DATES: Additional comments may be proposal. In general, all NESHAP 101. submitted on or before March 31, 2004. requires initial notifications, Frequency of Response: Quarterly, ADDRESSES: Submit your comments, performance tests, and periodic reports. semiannually and on occasion. referencing docket ID number OECA– Owners or operators are required to Estimated Total Annual Hour Burden: 2003–0038, to (1) EPA online using maintain records of the occurrence and 158,179 hours. EDOCKET (our preferred method), by duration of any startup, shutdown, or Estimated Total Annual Costs: email to [email protected], or by malfunction in the operation of an $10,015,020 which includes $4,400 mail to: EPA Docket Center, affected facility, or any period during annualized capital/startup costs, $4,158 Environmental Protection Agency, which the monitoring system is annual O&M costs and $10,006,462 Enforcement and Compliance Docket inoperative. These notifications, reports, Labor costs for Respondents. and Information Center, Mail Code
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2201T, 1200 Pennsylvania Avenue, EDOCKET. The entire printed comment, to: (1) Identify the sources subject to the NW., Washington, DC 20460, and (2) including the copyrighted material, will standard; (2) ensure initial compliance OMB at: Office of Information and be available in the public docket. with emission limits; and (3) verify Regulatory Affairs, Office of Although identified as an item in the continuous compliance with the Management and Budget (OMB), official docket, information claimed as standard. Attention: Desk Officer for EPA, 725 CBI, or whose disclosure is otherwise An agency may not conduct or 17th Street, NW., Washington, DC restricted by statute, is not included in sponsor, and a person is not required to 20503. the official public docket, and will not be available for public viewing in respond to, a collection of information FOR FURTHER INFORMATION CONTACT: unless it displays a currently valid OMB Marı´a Malave´, Compliance Assessment EDOCKET. For further information about the electronic docket, see EPA’s control number. The OMB control and Media Programs Division, Mail numbers for EPA’s regulations in 40 Code 2223A, Office of Compliance, Federal Register notice describing the electronic docket at 67 FR 38102 (May CFR are listed in 40 CFR part 9 and are Environmental Protection Agency, 1200 identified on the form and/or Pennsylvania Avenue, NW., 31, 2002), or go to http://www.epa.gov/ instrument, if applicable. Washington, DC 20460; telephone edocket. number: (202) 564–7027; fax number: Title: NSPS for Secondary Brass and Burden Statement: The annual public (202) 564–0050; email address: Bronze Production, Primary Copper reporting and recordkeeping burden for [email protected]. Smelters, Primary Zinc Smelters, this collection of information is Primary Lead Smelters, Primary estimated to average 169 hours per SUPPLEMENTARY INFORMATION: EPA has Aluminum Reduction Plants and submitted the following ICR to OMB for response. Burden means the total time, Ferroalloy Production Facilities. (40 effort, or financial resources expended review and approval according to the CFR part 60, subparts M, P, Q, R, S and by persons to generate, maintain, retain, procedures prescribed in 5 CFR 1320.12. Z) (Renewal) On May 19, 2003 (68 FR 27059), EPA Abstract: New Source Performance or disclose or provide information to or sought comments on this ICR pursuant Standards (NSPS) for Secondary Brass for a Federal agency. This includes the to 5 CFR 1320.8(d). EPA received no and Bronze Production Plants, Primary time needed to review instructions; comments. Copper Smelters, Primary Lead develop, acquire, install, and utilize EPA has established a public docket Smelters, Primary Zinc Smelters, technology and systems for the purposes for this ICR under Docket ID Number Primary Aluminum Reduction Plants of collecting, validating, and verifying OECA–2003–0038, which is available and Ferroalloy Production Plants were information, processing and for public viewing at the Enforcement developed to ensure that air emissions maintaining information, and disclosing and Compliance Docket and Information from these facilities do not cause and providing information; adjust the Center in the EPA Docket Center (EPA/ ambient concentrations of particulate existing ways to comply with any DC), EPA West, Room B102, 1301 matter and certain gases to exceed levels previously applicable instructions and Constitution Avenue, NW., Washington, that may reasonably be anticipated to requirements; train personnel to be able DC. The EPA Docket Center Public endanger public health and the to respond to a collection of Reading Room is open from 8:30 a.m. to environment. Owners or operators of all information; search data sources; 4:30 p.m., Monday through Friday, affected facilities subject to NSPS must complete and review the collection of excluding legal holidays. The telephone notify EPA of dates for startup, information; and transmit or otherwise number for the Reading Room is (202) construction or modification, initial and disclose the information. 566–1744, and the telephone number for repeat of performance tests, the Enforcement and Compliance performance test results, demonstration Respondents/Affected Entities: Docket and Information Center is (202) of a continuous monitoring system Secondary brass and bronze production 566–1752. An electronic version of the (except for brass and bronze facilities), plants, primary copper smelters, public docket is available through EPA and of any physical or operational primary zinc smelters, primary lead Dockets (EDOCKET) at http:// change that may increase the emission smelters, primary aluminum reduction www.epa.gov/edocket. Use EDOCKET to rate. In addition, primary copper, lead, plants, and ferroalloy production submit or view public comments, access and zinc smelters and ferroalloy plants facilities. the index listing of the contents of the are required to submit semiannually Estimated Number of Respondents: public docket, and to access those reports of excess emissions and 18. documents in the public docket that are monitoring system performance, and Frequency of Response: Semiannual available electronically. When in the aluminum reduction plants must report and annual. system, select ‘‘search,’’ then key in the excess emissions in each monthly docket ID number identified above. performance test. Ferroalloy plants must Estimated Total Annual Hour Burden: Any comments related to this ICR also report any product change. 4,914 hours. should be submitted to EPA and OMB Facilities must maintain records of Estimated Total Annual Cost: within 30 days of this notice. EPA’s performance test results, monitoring of $443,000, includes $0 annualized policy is that public comments, whether operations and systems performance, capital, $132,000 annual O&M costs, submitted electronically or in paper, and of any startup, shutdown, and and $311,000 annual labor costs. will be made available for public malfunction. Specifically, primary viewing in EDOCKET as EPA receives smelters, aluminum reduction and Changes in the Estimates: There is a them and without change, unless the ferroalloy production plants have daily decrease of 437 hours in the total comment contains copyrighted material, or monthly recordkeeping requirements estimated burden currently identified in CBI, or other information whose public for certain operating parameters. In the OMB inventory of approved ICR disclosure is restricted by statute. When order to ensure compliance with the burdens. This decrease in burden is due EPA identifies a comment containing standards, adequate recordkeeping and primarily to a decrease of the estimated copyrighted material, EPA will provide reporting is necessary. This information total number of sources subject to a reference to that material in the is required for all sources subject to several of the NSPS standards addressed version of the comment that is placed in NSPS standards and enables the Agency by this ICR.
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Dated: February 20, 2004. SUPPLEMENTARY INFORMATION: EPA has Information requested includes: prices Oscar Morales, submitted the following ICR to OMB for for the supplies/services requested, Director, Collection Strategies Division. review and approval according to the information on past performance, [FR Doc. 04–4467 Filed 2–27–04; 8:45 am] procedures prescribed in 5 CFR 1320.12. technical and cost information, and BILLING CODE 6560–50–P On September 10, 2003, (68 FR 53368), general financial and organizational EPA ICR No. 1038.11, EPA sought information. Information provided by comments on this ICR pursuant to 5 vendors in response to an RFP/IFB is ENVIRONMENTAL PROTECTION CFR 1320.8(d). EPA received no used to evaluate which vendor will AGENCY comments. provide the best product in terms of EPA has established a public docket quality, timeliness and price. Response [OAR–2003–0170, FRL–7627–8] for this ICR under Docket ID No. OAR– to IFBs/RFPs are required to be 2003–0170, which is available for public considered for a contract award. The Agency Information Collection viewing at the Air and Radiation Docket legal authority for this collection is 41 Activities; Submission to OMB for in the EPA Docket Center (EPA/DC), U.S.C. 253, contractor confidential Review and Approval; Comment EPA West, Room B102, 1301 business information submitted in Request; Invitation for Bids and Constitution Ave., NW., Washington, connection with an IFB or RFP response Request for Proposals (IFBs and RFPs) DC. The EPA Docket Center Public is protected from public release in EPA ICR Number 1038.11, OMB Reading Room is open from 8:30 a.m. to accordance with 40 CFR 2.201 et seq. Control Number 2030–0006 4:30 p.m., Monday through Friday, An agency may not conduct or excluding legal holidays. The telephone sponsor, and a person is not required to AGENCY: Environmental Protection number for the Reading Room is (202) respond to, a collection of information Agency (EPA). 566–1744, and the telephone number for unless it displays a currently valid OMB ACTION: Notice. the Air and Radiation Docket is (202) control number. The OMB control 566–1742. An electronic version of the numbers for EPA’s regulations in 40 SUMMARY: In compliance with the public docket is available through EPA CFR are listed in 40 CFR part 9 and are Paperwork Reduction Act (44 U.S.C. Dockets (EDOCKET) at http:// identified on the form and/or 3501 et seq.), this document announces www.epa.gov/edocket. Use EDOCKET to instrument, if applicable. that an Information Collection Request submit or view public comments, access Burden Statement: The annual public (ICR) has been forwarded to the Office the index listing of the contents of the reporting and record keeping burden for of Management and Budget (OMB) for public docket, and to access those this collection of information is review and approval. This is a request documents in the public docket that are estimated to average 8 hours per to renew an existing approved available electronically. Once in the response for IFBs and 251 hours per collection. This ICR is scheduled to system, select ‘‘search,’’ then key in the response for RFPs. Burden means the expire on February 29, 2004. Under docket ID number identified above. total time, effort, or financial resources OMB regulations, the Agency may Any comments related to this ICR expended by persons to generate, continue to conduct or sponsor the should be submitted to EPA and OMB maintain, retain, or disclose or provide collection of information while this within 30 days of this notice. EPA’s information to or for a Federal agency. submission is pending at OMB. This ICR policy is that public comments, whether This includes the time needed to review describes the nature of the information submitted electronically or in paper, instructions; develop, acquire, install, collection and its estimated burden and will be made available for public and utilize technology and systems for cost. viewing in EDOCKET as EPA receives the purposes of collecting, validating, DATES: Additional comments may be them and without change, unless the and verifying information, processing submitted on or before March 31, 2004. comment contains copyrighted material, and maintaining information, and ADDRESSES: Submit your comments, CBI, or other information whose public disclosing and providing information; referencing docket ID number OAR– disclosure is restricted by statute. When adjust the existing ways to comply with 2003–0170, to (1) EPA online using EPA identifies a comment containing any previously applicable instructions EDOCKET (our preferred method), by copyrighted material, EPA will provide and requirements; train personnel to be email to [email protected], or by a reference to that material in the able to respond to a collection of mail to: EPA Docket Center, U.S. version of the comment that is placed in information; search data sources; Environmental Protection Agency, Air EDOCKET. The entire printed comment, complete and review the collection of and Radiation Docket and Information including the copyrighted material, will information; and transmit or otherwise Center, Mail Code 6102T, 1200 be available in the public docket. disclose the information. Pennsylvania Avenue, NW., Although identified as an item in the Respondents/Affected Entities: Large Washington, DC 20460–0001; and (2) official docket, information claimed as and small businesses performing OMB at: Office of Information and CBI, or whose disclosure is otherwise contracts for the agency. Regulatory Affairs, Office of restricted by statute, is not included in Estimated Number of Respondents: Management and Budget (OMB), the official public docket, and will not 981. Attention: Desk Officer for EPA, 725 be available for public viewing in Frequency of Response: On occasion. 17th Street, NW., Washington, DC EDOCKET. For further information Estimated Total Annual Hour Burden: 20503. about the electronic docket, see EPA’s 219,015. Federal Register notice describing the Estimated Total Annual Cost for IFBs FOR FURTHER INFORMATION CONTACT: electronic docket at 67 FR 38102 (May and RFPs: $14,251,635.00, includes $0 Patrick Murphy, OAM, 3802R, 31, 2002), or go to http://www.epa.gov/ annualized capital or O&M costs. Environmental Protection Agency, 1200 edocket. Changes in the Estimates: There is a Pennsylvania Avenue, NW., Title: Invitation for Bids and Request decrease of 27,512 hours in the total Washington, DC 20460–0001; telephone for Proposals (IFBs and RFPs). estimated burden currently identified in number: (202) 564–4382; fax number Abstract: EPA requires contractors to the OMB Inventory of Approved ICR (202) 565–2551; email address: submit information in order to be Burdens. This decrease is due to a [email protected]. considered for the award of a contract. decrease in the number of proposals
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anticipated as a result of Government- 703/308–8433, e-mail address: Abstract: Section 3004 of the wide contract reform measures. There [email protected]. Resource Conservation and Recovery are also smaller adjustments in the time Act (RCRA), as amended, requires that required to complete each submission SUPPLEMENTARY INFORMATION: EPA has EPA develop standards for hazardous due to increased use of and submitted the following ICR to OMB for waste treatment, storage, and disposal as improvements in technology. review and approval according to the may be necessary to protect human procedures prescribed in 5 CFR 1320.12. health and the environment. Dated: February 2, 2004. On August 28, 2003 (68 FR 51773), EPA Oscar Morales, Subsections 3004(d), (e), and (g) require sought comments on this ICR pursuant EPA to promulgate regulations that Director, Collection Strategies Division. to 5 CFR 1320.8(d). EPA received no prohibit the land disposal of hazardous [FR Doc. 04–4468 Filed 2–27–04; 8:45 am] comments. waste unless it meets specified BILLING CODE 6560–50–P EPA has established a public docket treatment standards described in for this ICR under Docket ID No. RCRA– subsection 3004(m). 2003–0020, which is available for public The regulations implementing these ENVIRONMENTAL PROTECTION viewing at the RCRA Docket in the EPA requirements are codified in the Code of AGENCY Docket Center (EPA/DC), EPA West, Federal Regulations (CFR) Title 40, part [RCRA–2003–0020, FRL–7627–7] Room B102, 1301 Constitution Ave., 268. EPA requires that facilities NW., Washington, DC. The EPA Docket maintain the data outlined in this ICR Agency Information Collection Center Public Reading Room is open so that the Agency can ensure that land- Activities; Submission to OMB for from 8:30 a.m. to 4:30 p.m., Monday disposed waste meets the treatment Review and Approval; Comment through Friday, excluding legal standards. EPA strongly believes that Request; Land Disposal Restrictions holidays. The telephone number for the the recordkeeping requirements are (Renewal), EPA ICR Number 1442.18, Reading Room is (202) 566–1744, and necessary for the agency to fulfill its OMB Control Number 2050–0085 the telephone number for the RCRA congressional mandate to protect human AGENCY: Environmental Protection Docket is (202) 566–0270. An electronic health and the environment. Agency (EPA). version of the public docket is available An agency may not conduct or through EPA Dockets (EDOCKET) at sponsor, and a person is not required to ACTION: Notice. http://www.epa.gov/edocket. Use respond to, a collection of information SUMMARY: In compliance with the EDOCKET to submit or view public unless it displays a currently valid OMB Paperwork Reduction Act (44 U.S.C. comments, access the index listing of control number. The OMB control 3501 et seq.), this document announces the contents of the public docket, and to numbers for EPA’s regulations in 40 that an Information Collection Request access those documents in the public CFR are listed in 40 CFR part 9 and are (ICR) has been forwarded to the Office docket that are available electronically. identified on the form and/or of Management and Budget (OMB) for Once in the system, select ‘‘search,’’ instrument, if applicable. review and approval. This is a request then key in the docket ID number Burden Statement: The annual public to renew an existing approved identified above. reporting and recordkeeping burden for collection. This ICR is scheduled to Any comments related to this ICR this collection of information is expire on February 29, 2004. Under should be submitted to EPA and OMB estimated to average 6 hours per OMB regulations, the Agency may within 30 days of this notice. EPA’s response. Burden means the total time, continue to conduct or sponsor the policy is that public comments, whether effort, or financial resources expended collection of information while this submitted electronically or in paper, by persons to generate, maintain, retain, submission is pending at OMB. This ICR will be made available for public or disclose or provide information to or describes the nature of the information viewing in EDOCKET as EPA receives for a Federal agency. This includes the collection and its estimated burden and them and without change, unless the time needed to review instructions; cost. comment contains copyrighted material, develop, acquire, install, and utilize DATES: Additional comments may be CBI, or other information whose public technology and systems for the purposes submitted on or before March 31, 2004. disclosure is restricted by statute. When of collecting, validating, and verifying information, processing and ADDRESSES: Submit your comments, EPA identifies a comment containing maintaining information, and disclosing referencing docket ID number RCRA– copyrighted material, EPA will provide and providing information; adjust the 2003–0020, to (1) EPA online using a reference to that material in the existing ways to comply with any EDOCKET (our preferred method), by e- version of the comment that is placed in previously applicable instructions and mail to [email protected], or EDOCKET. The entire printed comment, requirements; train personnel to be able by mail to: EPA Docket Center, including the copyrighted material, will to respond to a collection of Environmental Protection Agency, be available in the public docket. information; search data sources; RCRA Docket Information Center, Although identified as an item in the complete and review the collection of 5303T, 1200 Pennsylvania Ave., NW., official docket, information claimed as information; and transmit or otherwise Washington, DC 20460, and (2) OMB at: CBI, or whose disclosure is otherwise restricted by statute, is not included in disclose the information. Office of Information and Regulatory Respondents/Affected Entities: the official public docket, and will not Affairs, Office of Management and Business and government. Budget (OMB), Attention: Desk Officer be available for public viewing in Estimated Number of Respondents: for EPA, 725 17th Street, NW., EDOCKET. For further information 129,584. Washington, DC 20503. about the electronic docket, see EPA’s Frequency of Response: On occasion. FOR FURTHER INFORMATION CONTACT: Federal Register notice describing the Estimated Total Annual Hour Burden: Peggy Vyas, Office of Solid Waste, electronic docket at 67 FR 38102 (May 822,708. 5302W, Environmental Protection 31, 2002), or go to http://www.epa.gov/ Estimated Total Annual Cost: Agency, 1200 Pennsylvania Ave., NW., edocket. $108,980,482 which includes $31,703 Washington, DC 20460; telephone Title: Land Disposal Restrictions annualized capital and $59,851,735 number: 703/308–5477, fax number: (Renewal). O&M costs.
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Changes in the Estimates: There is a to a particular entity, consult the person access and protection of TSCA CBI decrease of 359,904 hours in the total listed under FOR FURTHER INFORMATION under existing contracts. estimated burden currently identified in CONTACT. DSS has stated that from a technical the OMB Inventory of Approved ICR performance standpoint, no changes in B. How Can I Get Copies of this Burdens. This decrease is due to a support of management personnel are Document and Other Related envisioned as a result of the merger. decrease in the respondent universe, as Documents? well as decreases in the burden From a contractual point of view, assumptions. 1. Docket. EPA has established an Dyncorp represents that it will continue The assumptions for the burden official public docket for this action contracting with EPA as the same legal associated with understanding the under docket identification (ID) number entity - DSS. The merger between DSS’s regulations, calculated when the OPPT–2003–0004. The official public parent company (Dyncorp) and CSC is regulations were new, have been revised docket consists of the documents intended to make Dyncorp a CSC after consultations with respondents. specifically referenced in this action, company. any public comments received, and Dated: February 20, 2004. At all times during this corporate other information related to this action. acquisition or merger, all contractor Oscar Morales, Although a part of the official docket, employees were trained and cleared for Director, Collection Strategies Division. the public docket does not include CBI access to TSCA CBI. In addition, all [FR Doc. 04–4470 Filed 2–27–04; 8:45 am] or other information whose disclosure is employees had signed and remained BILLING CODE 6560–50–P restricted by statute. The official public subject to the standard non-disclosure docket is the collection of materials that agreements required of all such persons is available for public viewing at the working with TSCA CBI. ENVIRONMENTAL PROTECTION EPA Docket Center, Rm. B102-Reading Aside from providing this notice, EPA AGENCY Room, EPA West, 1301 Constitution is not immediately engaging in any [OPPT–2003–0004; FRL–7346–2] Ave., NW., Washington, DC. The EPA other action. In the next 6 months, EPA Docket Center is open from 8:30 a.m. to expects that there will be an effort to Access to Confidential Business 4:30 p.m., Monday through Friday, modify the existing contracts with EPA Information by Dyncorp Systems and excluding legal holidays. The EPA and when this occurs, there will be a Solutions LLC and its Successor, Docket Center Reading Room telephone series of actions intended to effectuate Computer Sciences Corporation number is (202) 566–1744 and the this, including notices, as required telephone number for the OPPT Docket, under existing regulations. AGENCY: Environmental Protection which is located in EPA Docket Center, Agency (EPA). is (202) 566–0280. List of Subjects ACTION: Notice. 2. Electronic access. You may access Environmental protection, this Federal Register document Confidential business information. SUMMARY: The purpose of this notice is electronically through the EPA Internet Dated: February 23, 2004. to inform the public that EPA has under the ‘‘Federal Register’’ listings at recently learned of a corporate merger/ http://www.epa.gov/fedrgstr/. Sandra Wilkins, acquisition involving a contractor An electronic version of the public Acting Director, Information Management cleared for TSCA CBI access. EPA’s docket is available through EPA’s Division, Office of Pollution Prevention and Toxics. contractor, Dyncorp Systems and electronic public docket and comment Solutions LLC (DSS) requires access to system, EPA Dockets. You may use EPA [FR Doc. 04–4471 Filed 2–27–04; 8:45 am] CBI submitted to EPA under all sections Dockets at http://www.epa.gov/edocket/ BILLING CODE 6560–50–S of TSCA, to perform successfully the to submit or view public comments, duties specified under existing access the index listing of the contents ENVIRONMENTAL PROTECTION contracts. of the official public docket, and to AGENCY FOR FURTHER INFORMATION CONTACT: access those documents in the public Colby Lintner, Regulatory Coordinator, docket that are available electronically. [OPPT–2003–0004; FRL–7345–6] Environmental Assistance Division Although not all docket materials may (7408M), Office of Pollution Prevention be available electronically, you may still Access to Confidential Business and Toxics, Environmental Protection access any of the publicly available Information by Geologics Corporation Agency, 1200 Pennsylvania Ave., NW., docket materials through the docket AGENCY: Environmental Protection Washington, DC 20460; telephone facility identified in Unit I.B.1. Once in Agency (EPA). the system, select ‘‘search,’’ then key in number: (202) 554–1404; e-mail address: ACTION: Notice. TSCA–[email protected]. the appropriate docket ID number. SUPPLEMENTARY INFORMATION: II. What Action is the Agency Taking? SUMMARY: EPA has authorized its contractor Geologics Corporation, of I. General Information EPA has recently been informed that Alexandria, VA, access to information the parent company to EPA contractor A. Does this Notice Apply to Me? which has been submitted to EPA under Dyncorp Systems and Solutions LLC all sections of the Toxic Substances This action is directed to the public (DSS), finalized a merger agreement Control Act (TSCA). Some of the in general. This action may, however, be with Computer Sciences Corporation information may be claimed or of interest to those persons who are or (CSC) of El Segundo, California. determined to be Confidential Business may be required to conduct testing of In the coming months, the DSS Information (CBI). chemical substances under TSCA. Since contracts will be amended to reflect the other entities may also be interested, the change of status in the contractor. Until DATES: Access to the confidential data Agency has not attempted to describe all that time, EPA continues to hold DSS, will occur no sooner than March 8, the specific entities that may be affected and its successor, CSC, responsible for 2004. by this action. If you have any questions performance, including adherence to all FOR FURTHER INFORMATION CONTACT: regarding the applicability of this action rules and procedures providing for the Colby Lintner, Regulatory Coordinator,
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Environmental Assistance Division Although not all docket materials may Dated: February 23, 2004. (7408M), Office of Pollution Prevention be available electronically, you may still Sandra Wilkins, and Toxics, Environmental Protection access any of the publicly available Acting Director, Information Management Agency, 1200 Pennsylvania Ave., NW., docket materials through the docket Division, Office of Pollution Prevention and Washington, DC 20460; telephone facility identified in Unit I.B.1. Once in Toxics. number: (202) 554–1404; e-mail address: the system, select ‘‘search,’’ then key in [FR Doc. 04–4472 Filed 2–27–04; 8:45 am] TSCA–[email protected]. the appropriate docket ID number. BILLING CODE 6560–50–S SUPPLEMENTARY INFORMATION: II. What Action is the Agency Taking? I. General Information ENVIRONMENTAL PROTECTION Under Contract Number AGENCY A. Does this Notice Apply to Me? GS00K97AFD2140, Order Number 4W– This action is directed to the public 1277–YBSW, Geologics Corporation of [FRL–7628–7] in general. This action may, however, be 5285 Shawnee Road, Suite 210, of interest to those persons who are or Office of Environmental Justice Alexandria, VA will assist EPA in Hazardous Substances Research may be required to conduct testing of gathering data on the New Chemicals chemical substances under TSCA. Since Small Grants Program—Application Program (NCP), that will help it to Guidance for FY 2004 other entities may also be interested, the assess the Program in fulfillment of Agency has not attempted to describe all objectives set out in the Government AGENCY: Environmental Protection the specific entities that may be affected Performance and Results Act (GPRA). Agency (EPA). by this action. If you have any questions The work will lead to the development ACTION: Notice. regarding the applicability of this action of results-based performance goals and to a particular entity, consult the person measures as opposed to output-based SUMMARY: The purpose of this grant listed under FOR FURTHER INFORMATION measures now used to monitor results program is to provide financial CONTACT. assistance to affected local community- obtained through the NCP. based organizations to support projects B. How Can I Get Copies of this In accordance with 40 CFR 2.306(j), Document and Other Related that examine issues related to a EPA has determined that under Contract Documents? community’s exposure to multiple Number GS00K97AFD2140, Order environmental harms and risks. Projects 1. Docket. EPA has established an Number 4W–1277–YBSW, Geologics must be of a research nature only, i.e., official public docket for this action Corporation will require access to CBI survey, research, collecting and under docket identification (ID) number submitted to EPA under all sections of analyzing data which will be used to OPPT–2003–0004. The official public TSCA, to perform successfully the expand scientific knowledge or docket consists of the documents duties specified under the contract. understanding of the subject studied. specifically referenced in this action, The EPA’s grant regulations define any public comments received, and Geologics personnel will be given information submitted to EPA under all ‘‘research’’ as ‘‘the systematic study other information related to this action. directed toward fuller scientific sections of TSCA. Some of the Although a part of the official docket, knowledge or understanding of the information may be claimed or the public docket does not include CBI subject studied,’’ 40 CFR 30.2(dd). determined to be CBI. or other information whose disclosure is Research activities under this grant restricted by statute. The official public EPA is issuing this notice to inform program do not include ‘‘development’’ docket is the collection of materials that all submitters of information under all as defined in 40 CFR 30.2 (dd). The EPA is available for public viewing at the sections of TSCA, that the Agency may has interpreted ‘‘research’’ to include EPA Docket Center, Rm. B102-Reading provide Geologics Corporation access to studies that extend to socioeconomic, Room, EPA West, 1301 Constitution these CBI materials on a need-to-know institutional, and public policy issues, Ave., NW., Washington, DC. The EPA basis only. All access to TSCA CBI as well as the ‘‘natural’’ sciences. Docket Center is open from 8:30 a.m. to under this contract will take place at Research projects need not be limited to 4:30 p.m., Monday through Friday, EPA Headquarters. Geologics personnel academic studies. EPA intends for the excluding legal holidays. The EPA will be required to adhere to all results of these research projects to be Docket Center Reading Room telephone provisions of EPA’s TSCA Confidential disseminated to members of the affected number is (202) 566–1744 and the Business Information Security Manual. local community. Funds can be used to telephone number for the OPPT Docket, develop a new activity or substantially which is located in EPA Docket Center, Clearance for access to TSCA CBI improve the quality of existing programs is (202) 566–0280. under Contract Number that have a direct impact on affected 2. Electronic access. You may access GS00K97AFD2140, Order Number 4W– local community residents. this Federal Register document 1277–YBSW may continue until DATES: The application must be electronically through the EPA Internet September 30, 2004. Access will under the ‘‘Federal Register’’ listings at delivered by close of business Friday, commence no sooner than March 8, April 30, 2004, to the appropriate EPA http://www.epa.gov/fedrgstr/. 2004. An electronic version of the public regional office (listed in section VII) or docket is available through EPA’s Geologics personnel have signed date stamped by courier service or electronic public docket and comment nondisclosure agreements and will be postmarked by the U.S. Postal Service system, EPA Dockets. You may use EPA briefed on appropriate security by midnight Friday, April 30, 2004. Dockets at http://www.epa.gov/edocket/ procedures before they are permitted ADDRESSES: For specific application to submit or view public comments, access to TSCA CBI. delivery please contact the appropriate access the index listing of the contents List of Subjects EPA regional office listed in section VII of the official public docket, and to of the application guidance. access those documents in the public Environmental protection, FOR FURTHER INFORMATION CONTACT: docket that are available electronically. Confidential business information. Sheila Lewis, Senior Program Analyst,
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EPA Office of Environmental Justice, Environmental Justice Defined Under contamination from drinking water, or (202) 564–0152. the Environmental Justice Hazardous contamination resulting from the SUPPLEMENTARY INFORMATION: Substances Research Small Grants consumption of fish or other subsistence Program food. These situations may occur in I. Funding Opportunity Description Environmental justice is the fair urban, suburban, rural or tribal settings. II. Award Information A more holistic approach to III. Eligibility Information treatment and meaningful involvement IV. Application and Submission Information of all people regardless of race, color, environmental protection goes beyond V. Application Review Information national origin, or income with respect setting limits for individual pollutants VI. Award Administration Information to the development, implementation, and facilities in isolation. Information VII. Agency Contact(s) and enforcement of environmental laws, must take into account the multiple VIII. Other Information regulations, and policies. Fair treatment impacts of all pollutants in the means that no one group of people, environment. In environmentally Translations Available including racial, ethnic, or overburdened low-income, minority or A Spanish translation of this socioeconomic groups, should bear a tribal communities, a focus on the application is available at 1–800–952– disproportionate share of the negative impacts from multiple environmental 6215. It can also be downloaded from environmental consequences resulting harms and risks can greatly assist the http://www.epa.gov/complicance/ from industrial, municipal, and communities in understanding their recent/ej.html. commercial operations or the execution environmental issues and developing of Federal, State, local, and tribal more effective solutions to their Section I—Funding Opportunity environmental programs and policies. environmental and/or public health Description Meaningful involvement means that: (a) concerns. Scope of the Environmental Justice The potentially affected community Grant funds shall be used to support Hazardous Substances Research Small residents have an appropriate research activities that examine issues Grant Program opportunity to participate in decisions related to a community’s exposure to about a proposed activity that will affect multiple environmental harms and In its 1992 report entitled, their environment and/or health; (b) the risks. Projects must be of a research ‘‘Environmental Equity: Reducing Risk public’s contribution can influence the nature only, i.e., survey, research, for All Communities,’’ the EPA found regulatory agency’s decision; (c) the collecting and analyzing data which that minority and/or low-income concerns of all participants involved will be used to expand scientific populations may experience will be considered in the decision- knowledge or understanding of the disproportionate exposure to making process; and (d) the decision- subject studied. Research projects, environmental harms and risks. The makers seek out and facilitate the however, need not be limited to EPA established the Office of involvement of those potentially academic studies. The EPA has Environmental Justice (OEJ) in 1992 to affected. interpreted ‘‘research’’ to include help, among other things, these studies that extend to socioeconomic, communities identify and assess Purpose of the Environmental Justice institutional, and public policy issues pollution sources, to implement Hazardous Substances Research Small and the ‘‘natural’’ sciences. Projects may environmental awareness and training Grants Program include the following activities: (1) programs for affected local community The purpose of this grant program is Research related to the detection, residents, and to work with community to provide financial assistance to assessment, and evaluation of the effects stakeholders to devise strategies for eligible affected local community-based on and risks to human health from environmental and/or public organizations that are working on or hazardous substances and the detection improvements. plan to carry out projects to address of hazardous substances in the In June of 1993, OEJ was delegated environmental and/or public health environment; (2) design and grant authority to solicit, select, assist, concerns. Funds can be used to develop demonstrate field methods, practices, and evaluate environmental justice- a new activity or substantially improve and techniques, including assessment of related projects, and to disseminate the quality of existing programs that environmental and ecological information on the projects’ content and have a direct impact on affected local conditions and analysis of effectiveness. FY 1994 marked the first communities. All awards will be made environmental and public health year of what is now called the in the form of a $25,000 grant not to problems; (3) identification and Environmental Justice Hazardous exceed one year. assessment of multiple environmental Substances Research Small Grants The OEJ, which manages the Agency’s harms and risks and/or public health Program. The chart below shows how national Environmental Justice concerns in the community; (4) case the grant monies have been distributed Hazardous Substances Research Small studies on practices and techniques for since FY 1994. Grants Program, is soliciting grant detecting and effectively responding to applications for projects intended to hazardous substance contamination; Dollar Number of examine issues related to a community’s and (5) identification of institutional Fiscal year amount awards exposure to multiple environmental and public policy barriers to detecting, 1994 ...... 500,000 71 harms and risks. Issues of assessing and evaluating hazardous 1995 ...... 3,000,000 175 environmental justice often involve substance contamination in 1996 ...... 2,800,000 152 multiple sources of contamination, their communities. Research cannot relate to 1997 ...... 2,700,000 139 cumulative impacts on the environment, contamination from petroleum products 1998 ...... 2,500,000 123 and their effect on human health. Some in accordance with the definition of 1999 ...... 1,455,000 95 of these sources may include multiple hazardous substances indicated in the 2000 ...... 899,000 61 industrial facilities and the various Comprehensive Environmental 2001 ...... 1,300,000 88 contaminants they emit, environmental Response, Compensation, and Liability 2002 ...... 1,113,000 73 2003 ...... 920,000 55 hazards at the workplace or home, Act (CERCLA), section 101(14). Projects transportation-related pollution, that involve incidental petroleum
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contamination that is ‘‘mixed’’ with • Outcomes or lessons learned in fits each of those requirements in the other contaminants may be considered affected local communities are application. An applicant must be a on a case-by-case basis. Any training transferred to other similarly situated nonprofit organization as demonstrated activities must be limited to training in communities; and through designation by the Internal research techniques. Funding under this • Enhanced community Revenue Service as a section 501(c)(3) assistance program is not available for understanding of environmental and organization or through incorporation as general organizational support, capacity public health information systems and a nonprofit organization under building, program development or other general information on pollution in the applicable State law in order to receive activities unrelated to research. community. Federal funds under this grant program. Section II—Award Information Individuals; universities; State, local, Goal for Research Projects and tribal governments; water districts In addition to the special research The total amount of funding available or similar entities; large non- requirements for grants under CERCLA for this program is approximately governmental organizations such as outlined above, the application must $500,000 in grant funds to eligible national environmental groups; include a description of how the organizations (pending availability of environmental justice networks; or research projects will examine and funds). All awards will be made in the organizations that are not located in the address the issue of multiple form of a Federal grant, each award in affected communities where the projects environmental harms and risks. an amount of $25,000, to be used over are located are not eligible to receive Please note: A Quality Assurance Plan a one-year period. Activities must be Federal funds under this grant program. (QAP) must be submitted to your EPA completed and funds spent within the 2. Cost Sharing or Matching: None Project Officer prior to the beginning of one year period specified in the grant required. the research for projects that include award. Project start dates will depend 3. Types of Projects Eligible for scientific research and/or data on the grant award date (most projects Funding: The OEJ, which manages the begin in August or September). The collection. Agency’s national Environmental Justice recipient organization is responsible for Hazardous Substances Research Small Anticipated Accomplishments the successful completion of the project. Grants Program, is soliciting grant (Performance Measures) for the EPA will consider only one application applications for projects intended to Environmental Justice Hazardous per applicant for any given project. examine issues related to a community’s Substances Research Small Grants However, applicants that previously exposure to multiple environmental Program received small grant funds may submit harms and risks. Issues of an application for a separate project. As required by 40 CFR 30.60, environmental justice often involve Additionally, the Environmental Justice anticipated accomplishments must be multiple sources of contamination, their Hazardous Substances Research Small stated. The overarching goal of the cumulative impacts on the environment, Grants Program is a competitive grant Environmental Justice Hazardous and their effect on human health. Some program. Every application for FY 2004 Substances Research Small Grants of these sources may include multiple will be evaluated based on the merits of Program is to build the capacity of the industrial facilities and the various the proposed project in comparison to affected local communities to address contaminants they emit, environmental other FY 2004 applications. Applicants strategically the multiple environmental hazards at the workplace or home, may not receive Federal funding from harms and risks that impact the transportation-related pollution, more than one source for the same contamination from drinking water, or environment and/or health of the project. contamination resulting from the residents. consumption of fish or other subsistence The following criteria will be used by Section III—Eligibility Information food. These situations may occur in EPA to measure the success of the 1. Eligible Applicants: Affected local urban, suburban, rural or tribal settings. overall program. These criteria are for community-based community A more holistic approach to the evaluation of the grant program as organizations. An affected local environmental protection goes beyond a whole and each grantee should community-based organization (LCBO) setting limits for individual pollutants consider these criteria as they develop is defined for this grant program as an and facilities in isolation. Information their own project performance entity/organization that is (1) at the must take into account the multiple measures: most basic level of the organizational impacts of all pollutants in the 1. Documentation and identification hierarchy such as a grassroots group/ environment. In environmentally of the local environmental and/or public neighborhood organization that is not overburdened low-income, minority or health issues; affiliated with a larger national, regional tribal communities, a focus on the 2. Development of mechanisms to or state organization; (2) located in the impacts from multiple environmental share lessons learned from the process; same area as the environmental and/or harms and risks can greatly assist the and public health problem that is described communities in understanding their 3. Identification of tangible in the application and where the environmental issues and developing environmental and/or health benefits. residents of the affected community more effective solutions to their Consistent with the factors EPA will reside; (3) focused primarily on environmental and/or public health use, the following measures will be used addressing the environmental and/or concerns. to evaluate the success of the public health problems of the residents Projects may include the following Environmental Justice Hazardous of the affected community; and (4) activities: (1) Research related to the Substances Research Small Grants comprised primarily of members of the detection, assessment, and evaluation of Program, including, but not limited to: affected community. ‘‘Affected’’ is the effects on and risks to human health • Significant improvement in the defined as being in the locale which is from hazardous substances and the quality of life issues for the affected influenced or altered by the detection of hazardous substances in the local communities is achieved; environmental/public health problem. environment; (2) design and • Community capacity is significantly An applicant must meet all of the above demonstrate field methods, practices, improved for program participants; requirements and must explain how it and techniques, including assessment of
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environmental and ecological Section IV—Application and 1. Environmental and/or public health conditions and analysis of Submission Information concerns to be addressed by the project; environmental and public health 1. Address to Request Applications: 2. The community/target audience; problems; (3) identification and Application guidance is available upon and 3. The program goal(s) that the project assessment of multiple environmental request by contacting your regional will meet and how it will meet it. harms and risks and/or public health office listed in section VII or on the concerns in the affected community; (4) b. A concise introduction that states: EPA’s Web site at http://www.epa.gov/ 1. The nature of the organization (i.e., case studies on practices and techniques compliance/environmentaljustice/ for detecting and effectively responding how long it has been in existence and grants/index.html. how the applicant meets the definition to hazardous substance contamination; 2. Content and Form of Application of an affected local community-based and (5) identification of institutional Submission: Proposals from eligible and public policy barriers to detecting, organization); organizations must have the following: 2. How the organization has been assessing and evaluating hazardous (1) The Application for Federal successful in the past; substance contamination in affected Assistance (SF 424) is the official form communities. 3. The purposes of the project; required for all Federal grants that 4. Detailed characteristics of the Examples of Projects—Involving requests basic information about the affected community/target audience ‘‘Multiple Environmental Harms and grantee and the proposed project. The (racial, ethnic and socioeconomic); Risks’’ in the Community applicant must submit the original 5. Projects completion plans/time application form, and one copy, signed The following projects are provided frames, and by a person duly authorized by the 6. Expected results. for illustrative purposes only and are governing board of the applicant. Please C. A concise project description that not intended to reflect all of the possible complete part 10 of the SF 424 form, describes the activities the organization types of projects eligible under this ‘‘Catalog of Federal Domestic Assistance will undertake to examine and address grant program. Number’’ with the following the issue of multiple environmental Project Example No. 1 information: 66.604—Environmental harms and risks in the target Justice Hazardous Substances Research This project focuses on hazardous community. Small Grants Program. Grant applicants substances research. Youth project d. A conclusion discussing how the are required to provide a Dun and applicant will evaluate and measure the participants will: (1) Receive training to Bradstreet (D&B) Data Universal success of the project, including help them research what substances are Numbering System (DUNS) number anticipated benefits and challenges in being transported on trains; (2) identify when applying for Federal grants. implementing the project. hazardous substances through visual Organizations can receive a DUNS e. Anticipated accomplishments must and video recordings of placards on number in one day, at no cost, by calling be stated along with a set of trains and through contact with Union the dedicated toll-free DUNS Number performance measures for how you will Pacific representatives; (3) analyze request line at 1–866–705–0025. determine the overall success of your recorded data and input it into a The Web site where an organization project at meeting those computer database; (4) research the can obtain a DUNS number is: http:// accomplishments. (Refer to page 4 for a potential effects of a spill or accident www.dnb.com. This is a new discussion of how EPA will measure the involving each substance and what the requirement from the Office of success of the overall grant program.) implications are for the surrounding Management and Budget for grants, (5) An appendix with resumes of up neighborhood; (5) research what actions effective October 1, 2003. See Appendix to three key personnel who will be community members should take in the B for a copy of this form and a significantly involved in the project. event of a spill or accident; (6) compile completed sample. (6) Nonprofit Status. The applicant results and make findings available for (2) The Federal Standard Form (SF must provide documentation of the presentations; (7) publish the results in 424A) which provides information on organization’s nonprofit status. a bound report; and (8) keep a journal your budget. For the purposes of this (7) Other Submission Requirements: of activities that can be used as a model grant program, complete only the non- Please list the title of the project and by youth organizations nationwide shaded areas of SF 424A. amount of funding provided by EPA for conducting research in their own (3) Detailed Budget estimates should any other grants or cooperative neighborhoods. support your work plan narrative. See agreements from EPA in the last three Project Example No. 2 Appendix B for a sample of a budget years. detail. Applications that do not include all The project involves research, (4) A work plan narrative of the applicable information listed above, will investigations, experiments, proposal is not to exceed five (5) pages. not be considered for an award. demonstrations, surveys and studies A work plan narrative describes the Applications that propose projects that relating to the causes, extent, applicant’s proposed project. The pages are inconsistent with the EPA’s prevention, reduction and elimination of the work plan must be letter size (81⁄2 statutory authority for this program or or control of pollution of the water and × 11 inches), with normal type size (12 the activity for the program are air, which is impacted by urban characters per inch), and at least 1 inch ineligible for funding and will not be industrialization and toxic wastes. Local margins. evaluated. high school and college students will The work plan narrative is one of the 3. Submission Dates and Times: The learn how to conduct river research and most important aspects of your full application package must be date report their findings. The purpose of the application and (assuming that all other stamped by courier service or project is to teach students research required materials are submitted) will postmarked by the U. S. Postal Service techniques and how to communicate be used as the primary basis for by midnight, Friday, April 30, 2004. Use their findings. The project will provide selection. Work plans must be the appropriate EPA regional office information through community submitted as follows; address listed in section VII. newsletters, river tours, and a. A one-page summary that identifies 4. Confidentiality and presentations to other stakeholders. the following: Intergovernmental Review:
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Confidentiality: Please mark any revised to meet the threshold on the evaluation criteria outlined information in the proposal that you requirements. above. consider confidential. EPA will follow B. Scoring Criteria. Applications After the individual projects are the procedures at 40 CFR part 2 if meeting the threshold criteria will be scored, the EPA regional officials will information marked confidential is scored by an EPA Review Panel, compare the best applications and make requested from the Agency under the consisting of regional staff, and selected final recommendations. Additional Freedom of Information Act. according to the following criteria. The factors that the EPA will take into Intergovernmental Review: Your corresponding points next to each account include geographic and application to this EPA program may be criterion are the weights EPA will use socioeconomic balance, diverse nature subject to your State’s to score the applications. Points will of the projects, cost, past performance intergovernmental review process and/ range depending on how well the and projects whose benefits can be or the consultation requirements of applicant meets the given criterium. sustained after the grant is completed. section 204, Demonstration Cities and Please note that certain sections are Regional Administrators will select the Metropolitan Development Act. See 40 given greater weight than others. The final grants. Please note that this is a CFR part 29 for details. Check with your application will be scored based on the very competitive grant program. Limited State’s Single Point of Contact to following evaluation criteria: funding is available and EPA expects to determine your requirements. Some (1) The extent to which the work plan receive many grant applications. States do not require this review. narrative clearly and effectively Therefore, the Agency cannot fund all Applicants from American Samoa, describes the following: (35 points) applications. A listing of other EPA Guam, Puerto Rico, and the U.S. Virgin a. An environmental and/or public grant programs may be found in the Islands should also check with their health concerns related to the multiple Catalog of Federal Domestic Assistance. Single Point of Contact. A list of the environmental harms and risks affecting This publication is available on the States’ Single Point of Contact is a community. (20) Internet at www.cfda.gov and at local available at http://www.whitehouse.gov/ b. The target community being served libraries, colleges, or universities. omb/grants/spoc.html. (e.g., demographics, socioeconomic 3. Anticipated Announcement and 5. Are There Any Restrictions on the characteristics, geographic location, Award Dates: Use of the Federal Funds? Yes. EPA etc.). (5) February 27, 2004. FY 2004 c. The nature of the organization (i.e., grant funds can only be used for the Environmental Justice Hazardous how the applicant meets the definition purposes set forth in the grant Substances Research Small Grants of an affected local community-based agreement, and be consistent with the Program Application Guidance is organization). (10) statutory authority for the award. Grant available on www.fedgrants.gov and (2) The extent to which the proposal funds from this program cannot be used http://www.epa.gov/compliance/ includes the following: (40 points) for matching funds for other Federal environmentaljustice/grants/ a. Specific realistic goals and ej_smgrants.html. Hard copies are grants, lobbying, or intervention in objectives that deal with the Federal regulatory or adjudicatory available upon request. environmental justice issue(s). (15) February 27, 2004, to April 30, 2004. proceedings. In addition, the recipient b. A well-conceived strategy to may not use these Federal assistance Eligible grant recipients develop and achieve the goals and objectives. (15) complete their applications. funds to sue the Federal government or c. A description of partnering or any other government entity. Refer to 40 April 30, 2004. The application must participating community organizations, be date stamped by courier service or CFR 30.27, entitled ‘‘Allowable Costs’’ universities and local governments. (see Appendix C). The scope of postmarked by the U.S. Postal Service Describe how they will participate in by midnight, Friday, April 30, 2004. environmental justice grants may not the project and explain the strategies for include construction, promotional items May 4, 2004, to July 30, 2004. EPA cooperation and communication with program officials review and evaluate (e.g., T-shirts, buttons, hats), and the identified organizations or furniture purchases. Applicants may not applications and select grant finalists. governments. (10) July 30, 2004, to September 30, 2004. receive funding from more than one (3) The extent to which the project Applicants will be contacted by the source for the same project. clearly and effectively discusses how Region if their applications are being the applicant will evaluate the success Section V—Application Review considered for funding. Additional of the project including appropriate Information information may be required from the qualitative and quantitative measures. finalists, as indicated in section IV. The 1. Evaluation Criteria: All (15 points) EPA regional grants offices will process applications will be reviewed and (4) The extent to which the project grants and make awards. scored according to the following has participants who are well qualified September 30, 2004. EPA expects to criteria: to conduct the proposed project based announce the FY 2004 Environmental A. Threshold Criteria. Applications on a demonstrated record of success in Justice Hazardous Substances Research that do not include all items list in their area of expertise? (10 points) section IV, 2. Content and Form of (Attention: The qualifications of the Small Grants recipients. Application Submission, will not be recipient’s Project Manager is subject to Section VI—Award Administration considered for an award and will not be approval by the EPA Project Officer.) Information scored. Additionally, applications that 2. Review and Selection Process: The propose projects that are inconsistent EPA regional offices will review, 1. Award Notices with the EPA’s statutory authority for evaluate, and select grant recipients. After all applications are received, this program or the activity for the Applications will be screened to ensure acknowledgments will be mailed to program are ineligible for funding and that they meet all eligibility and applicants. Once applications have been will not be scored. Regional offices will threshold requirements described in recommended for funding, the EPA contact applicants whose proposals do sections II–IV. Applications which meet Regions will notify the finalists and not meet the threshold requirements to the threshold requirements will be request any additional information determine whether the proposal can be scored by regional review panels based necessary to complete the award
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process. The finalists will be required to Secondary: Tasha Frazier (212) 637– Secondary: Nate Lau (415) 972–3839, complete additional government 3861, [email protected]. [email protected]. application forms before receiving a Region 3 Delaware, District of Columbia, Region 10 Alaska, Idaho, Oregon, grant, such as the EPA Form SF–424B Maryland, Pennsylvania, Virginia, West Washington (Assurances—Non-Construction Virginia Programs) and EPA Form 5700–49, the Primary Contact: Cecilia A. Contreras Certification Regarding Debarment, Primary Contact: Reginald Harris (215) (206) 553–2899, Suspension, and Other Responsibility 814–2988, [email protected], [email protected], USEPA Matters. The Federal government USEPA Region 3 (3DA00), 1650 Arch Region 10 (CRE–164), 1200 Sixth requires all grantees to certify and Street, Philadelphia, PA 19103–2029. Avenue, Seattle, WA 98101. assure that they will comply with all Region 4 Alabama, Florida, Georgia, Secondary: Susanne Salcido (206) 553– applicable Federal laws, regulations, Kentucky, Mississippi, North Carolina, 1687, [email protected]. and requirements. The designated EPA South Carolina, Tennessee Section VIII—Other Information official or their designees will notify Primary Contact: Elvie Barlow (404) those applicants whose projects are not How Can I Receive Information on the 562–9650, [email protected], selected for funding. Fiscal Year 2005 (October 1, 2004 to USEPA Region 4, 61 Forsyth Street, September 30, 2005) Environmental 2. Reporting Atlanta, GA 30303–8960. Justice Hazardous Substances Research Unless specified in the award, all Secondary: Cynthia Peurifoy (404) 562– Small Grants Program? 9649, [email protected]. recipients must submit final reports for If you wish to be placed on the EPA approval within ninety (90) days of Region 5 Illinois, Indiana, Michigan, national mailing list to receive the end of the project period. Specific Minnesota, Ohio, Wisconsin information on the FY 2005 report requirements (e.g., Quarterly or Primary Contact: Margaret Millard (312) Environmental Justice Hazardous Semiannual Progress Reports, a Final 353–1440, [email protected], Substances Research Small Grants Technical Report and a Financial Status USEPA Region 5 (DM7J), 77 West Program, e-mail your request along with Report) will be described in the award Jackson Boulevard, Chicago, IL your name, organization, address, and agreement. The EPA will collect, 60604–3507. phone number to [email protected] review, and disseminate grantees’ final Secondary: Alan Walts (312) 353–8894, or mail your request along with your reports to serve as models. [email protected]. name, organization, address, and phone For further information about this number to: U.S. Environmental program, please visit the EPA’s Web site Region 6 Arkansas, Louisiana, New Protection Agency, Environmental at http://www.epa.gov/compliance/ Mexico, Oklahoma, Texas Justice Hazardous Substances Research environmentaljustice/grants/ Primary Contact: Shirley Quinones Small Grants Program (2201A), FY 2005 _ ej smgrants.html. (214) 665–2713, Grants Mailing List, 1200 Pennsylvania Section VII—Agency Contact(s) [email protected], USEPA Avenue, NW., Washington, DC 20460, 1 Region 6, Fountain Place, 13th Floor, (800) 962–6215. When and Where Must Applications Be 1445 Ross Avenue (RA–D), Dallas, If you wish to receive information on Submitted? Texas 75202–2733. local Environmental Justice programs, The applicant must submit/mail one Secondary Contact: Nelda Perez (214) you may mail or email your request signed original application with 665–2209, [email protected]. along with your name, organization, required attachments and one copy to address, and phone number to the Region 7 Iowa, Kansas, Missouri, the primary contact at the respective appropriate regional office listed above. Nebraska EPA regional office listed below. The Thank you for your interest in the application must be date stamped by Primary Contact: Pamela K. Johnson Environmental Justice Hazardous courier service or postmarked by the (913) 551–7480, Substances Research Small Grants U.S. Postal Service by midnight, Friday, [email protected], USEPA Program. April 30, 2004. Region 7, 901 North 5th Street Dated: February 24, 2004. (RGAD/ECO), Kansas City, KS 66101. Regional Contact Names and Addresses Linda K. Smith, Secondary: Monica Espinosa (913) 551– Acting Director, Office of Environmental Region 1 Connecticut, Maine, 7058, [email protected]. Justice. Massachusetts, New Hampshire, Rhode Region 8 Colorado, Montana, North [FR Doc. 04–4465 Filed 2–27–04; 8:45 am] Island, Vermont Dakota, South Dakota, Utah, Wyoming BILLING CODE 6560–50–P Primary Contact: Kathy Castagna (617) Primary Contact: Nancy Reish (303) 918–1429, 312–6040, [email protected], [email protected], USEPA ENVIRONMENTAL PROTECTION USEPA Region 8 (8ENF–EJ), 999 18th AGENCY Region 1 (RAA), One Congress Street, Suite 300, Denver, CO 80202– Street—11th Floor, Boston, MA 2466. [FRL–7628–4] 02203–0001. Secondary: Jean Belille (303) 312–6556, Inventory of U.S. Greenhouse Gas Secondary Contact: Davina Wysin (617) [email protected]. 918–1020, [email protected]. Emissions and Sinks: 1990–2002 Region 9 Arizona, California, Hawaii, AGENCY: Environmental Protection Region 2 New Jersey, New York, Puerto Nevada, American Samoa, Guam Rico, U.S. Virgin Islands Agency (EPA). Primary Contact: Karen Henry (415) ACTION: Notice of document availability Primary Contact: Terry Wesley (212) 972–3844, [email protected], and request for comments. 637–5027, [email protected], USEPA Region 9 CMD–1, 75 USEPA Region 2, 290 Broadway, 26th Hawthorne Street, San Francisco, CA SUMMARY: The Draft Inventory of U.S. Floor, New York, NY 10007. 94105. Greenhouse Gas Emissions and Sinks:
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1990–2002 is available for public ENVIRONMENTAL PROTECTION B. How Can I Get Copies of this review. Annual U.S. emissions for the AGENCY Document and Other Related Information? period of time from 1990–2002 are [OPPT–2004–0074; FRL–7346–5] summarized and presented by source 1. Docket. EPA has established an category and sector. The inventory Approval of Test Marketing Exemption official public docket for this action contains estimates of carbon dioxide for a Certain New Chemical under docket identification (ID) number (CO2), methane (CH4), nitrous oxide OPPT–2004–0074. The official public AGENCY: Environmental Protection (N2O), hydrofluorocarbons (HFC), docket consists of the documents perfluorocarbons (PFC), and sulfur Agency (EPA). specifically referenced in this action, ACTION: hexafluoride (SF6) emissions. The Notice. any public comments received, and other information related to this action. inventory also includes estimates of SUMMARY: This notice announces EPA’s carbon sequestration in U.S. forests. The approval of an application for test Although a part of the official docket, technical approach used in this report to marketing exemption (TME) under the public docket does not include estimate emissions and sinks for section 5(h)(1) of the Toxic Substances Confidential Business Information (CBI) greenhouse gases is consistent with the Control Act (TSCA) and 40 CFR 720.38. or other information whose disclosure is methodologies recommended by the EPA has designated this application as restricted by statute. The official public Intergovernmental Panel on Climate TME–04–01. The test marketing docket is the collection of materials that Change (IPCC) and reported in a format conditions are described in the TME is available for public viewing at the consistent with the United Nations application and in this notice. EPA Docket Center, Rm. B102-Reading Framework Convention on Climate Room, EPA West, 1301 Constitution DATES: Approval of this TME is effective Ave., NW., Washington, DC. The EPA Change (UNFCCC) reporting guidelines. February 24, 2004. Comments, Docket Center is open from 8:30 a.m. to The Inventory of U.S. Greenhouse Gas identified by docket ID number OPPT– 4:30 p.m., Monday through Friday, Emissions and Sinks is the latest in a 2004–0074 and the TME number, must excluding legal holidays. The EPA series of annual U.S. submissions to the be received on or before March 16, 2004. Docket Center Reading Room telephone Secretariat of the UNFCCC. ADDRESSES: Comments may be number is (202) 566–1744 and the DATES: To ensure your comments are submitted electronically, by mail, or telephone number for the OPPT Docket, considered for the final version of the through hand delivery/courier. Follow which is located in EPA Docket Center, document, please submit your the detailed instructions as provided in is (202) 566–0280. Unit I. of the SUPPLEMENTARY comments by March 31, 2004. However, 2. Electronic access. You may access INFORMATION. comments received after that date will this Federal Register document still be welcomed and be considered for FOR FURTHER INFORMATION CONTACT: For electronically through the EPA Internet the next edition of this report. general information contact: Colby under the ‘‘Federal Register’’ listings at Lintner, Regulatory Coordinator, http://www.epa.gov/fedrgstr/. ADDRESSES: Comments should be Environmental Assistance Division An electronic version of the public submitted to Mr. Leif Hockstad at: (7408M), Office of Pollution Prevention docket is available through EPA’s Environmental Protection Agency, and Toxics, Environmental Protection electronic public docket and comment Clean Air Markets Division (6204J), Agency, 1200 Pennsylvania Ave., NW., system, EPA Dockets. You may use EPA 1200 Pennsylvania Ave., NW., Washington, DC 20460–0001; telephone Dockets at http://www.epa.gov/edocket/ Washington, DC 20460, Fax: (202) 343– number: (202) 554–1404; e-mail address: to submit or view public comments, 2356. You are welcome and encouraged [email protected]. access the index listing of the contents to send an e-mail with your comments For technical information contact: of the official public docket, and to to [email protected]. Adella Watson, Chemical Control access those documents in the public Division (7405M), Office of Pollution docket that are available electronically. FOR FURTHER INFORMATION CONTACT: Mr. Prevention and Toxics, Environmental Although not all docket materials may Leif Hockstad, Environmental Protection Agency, 1200 Pennsylvania be available electronically, you may still Protection Agency, Office of Air and Ave., NW., Washington, DC 20460– access any of the publicly available Radiation, Office of Atmospheric 0001; telephone number: (202) 564– docket materials through the docket Programs, Clean Air Markets Division, 9364; e-mail address: facility identified in Unit I.B.1. Once in (202) 343–9432, [email protected]. [email protected]. the system, select ‘‘search,’’ then key in the appropriate docket ID number. SUPPLEMENTARY INFORMATION: The draft SUPPLEMENTARY INFORMATION: Certain types of information will not report can be obtained by visiting the I. General Information be placed in the EPA Dockets. U.S. EPA’s global warming site at Information claimed as CBI and other http://www.epa.gov/globalwarming/ A. Does this Action Apply to Me? information whose disclosure is publications/emissions/. This action is directed in particular to restricted by statute, which is not Dated: February 23, 2004. the chemical manufacturer and/or included in the official public docket, Jeff Holmstead, importer who submitted the TMEs to will not be available for public viewing EPA. This action may, however, be of in EPA’s electronic public docket. EPA’s Assistant Administrator, Office of Air and interest to the public in general. Since policy is that copyrighted material will Radiation. other entities may also be interested, the not be placed in EPA’s electronic public [FR Doc. 04–4469 Filed 2–27–04; 8:45 am] Agency has not attempted to describe all docket but will be available only in BILLING CODE 6560–50–P the specific entities that may be affected printed, paper form in the official public by this action. If you have any questions docket. To the extent feasible, publicly regarding the applicability of this action available docket materials will be made to a particular entity, consult the available in EPA’s electronic public technical person listed under FOR docket. When a document is selected FURTHER INFORMATION CONTACT. from the index list in EPA Dockets, the
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system will identify whether the 1. Electronically. If you submit an 2. By mail. Send your comments to: document is available for viewing in electronic comment as prescribed in this Document Control Office (7407M), EPA’s electronic public docket. unit, EPA recommends that you include Office of Pollution Prevention and Although not all docket materials may your name, mailing address, and an e- Toxics (OPPT), Environmental be available electronically, you may still mail address or other contact Protection Agency, 1200 Pennsylvania access any of the publicly available information in the body of your Ave., NW., Washington, DC 20460– docket materials through the docket comment. Also include this contact 0001. facility identified in Unit I.B.1. EPA information on the outside of any disk 3. By hand delivery or courier. Deliver intends to work towards providing or CD ROM you submit, and in any your comments to: OPPT Document electronic access to all of the publicly cover letter accompanying the disk or Control Office (DCO) in EPA East Bldg., available docket materials through CD ROM. This ensures that you can be Rm. 6428, 1201 Constitution Ave., NW., EPA’s electronic public docket. identified as the submitter of the Washington, DC. Attention: Docket ID For public commenters, it is comment and allows EPA to contact you Number OPPT–2004–0074 and the TME important to note that EPA’s policy is in case EPA cannot read your comment number. The DCO is open from 8 a.m. that public comments, whether due to technical difficulties or needs to 4 p.m., Monday through Friday, submitted electronically or in paper, further information on the substance of excluding legal holidays. The telephone will be made available for public your comment. EPA’s policy is that EPA number for the DCO is (202) 564–8930. viewing in EPA’s electronic public will not edit your comment, and any docket as EPA receives them and D. How Should I Submit CBI to the identifying or contact information Agency? without change, unless the comment provided in the body of a comment will contains copyrighted material, CBI, or be included as part of the comment that Do not submit information that you other information whose disclosure is is placed in the official public docket, consider to be CBI electronically restricted by statute. When EPA and made available in EPA’s electronic through EPA’s electronic public docket identifies a comment containing public docket. If EPA cannot read your or by e-mail. You may claim copyrighted material, EPA will provide comment due to technical difficulties information that you submit to EPA as a reference to that material in the and cannot contact you for clarification, CBI by marking any part or all of that version of the comment that is placed in EPA may not be able to consider your information as CBI (if you submit CBI EPA’s electronic public docket. The comment. on disk or CD ROM, mark the outside entire printed comment, including the i. EPA Dockets. Your use of EPA’s of the disk or CD ROM as CBI and then copyrighted material, will be available electronic public docket to submit identify electronically within the disk or in the public docket. comments to EPA electronically is CD ROM the specific information that is Public comments submitted on EPA’s preferred method for receiving CBI). Information so marked will not be computer disks that are mailed or comments. Go directly to EPA Dockets disclosed except in accordance with delivered to the docket will be at http://www.epa.gov/edocket/, and procedures set forth in 40 CFR part 2. transferred to EPA’s electronic public follow the online instructions for In addition to one complete version of docket. Public comments that are the comment that includes any mailed or delivered to the docket will be submitting comments. Once in the system, select ‘‘search,’’ and then key in information claimed as CBI, a copy of scanned and placed in EPA’s electronic the comment that does not contain the public docket. Where practical, physical docket ID number OPPT–2004–0074. The system is an ‘‘anonymous access’’ information claimed as CBI must be objects will be photographed, and the submitted for inclusion in the public photograph will be placed in EPA’s system, which means EPA will not know your identity, e-mail address, or docket and EPA’s electronic public electronic public docket along with a docket. If you submit the copy that does brief description written by the docket other contact information unless you provide it in the body of your comment. not contain CBI on disk or CD ROM, staff. mark the outside of the disk or CD ROM ii. E-mail. Comments may be sent by clearly that it does not contain CBI. C. How and to Whom Do I Submit e-mail to [email protected], Attention: Information not marked as CBI will be Comments? Docket ID Number OPPT–2004–0074 included in the public docket and EPA’s and the TME number. In contrast to The notice of receipt was published electronic public docket without prior EPA’s electronic public docket, EPA’s e- late in the 45–day review period; notice. If you have any questions about mail system is not an ‘‘anonymous however, an opportunity to submit CBI or the procedures for claiming CBI, access’’ system. If you send an e-mail comments is being offered at this time. please consult the technical person You may submit comments comment directly to the docket without listed under FOR FURTHER INFORMATION electronically, by mail, or through hand going through EPA’s electronic public CONTACT. delivery/courier. To ensure proper docket, EPA’s e-mail system receipt by EPA, identify the appropriate automatically captures your e-mail E. What Should I Consider as I Prepare docket ID number and the TME number address. E-mail addresses that are My Comments for EPA? in the subject line on the first page of automatically captured by EPA’s e-mail You may find the following your comment. Please ensure that your system are included as part of the suggestions helpful for preparing your comments are submitted within the comment that is placed in the official comments: specified comment period. Comments public docket, and made available in 1. Explain your views as clearly as received after the close of the comment EPA’s electronic public docket. possible. period will be marked ‘‘late.’’ EPA is not iii. Disk or CD ROM. You may submit 2. Describe any assumptions that you required to consider these late comments on a disk or CD ROM that used. comments. If you wish to submit CBI or you mail to the mailing address 3. Provide copies of any technical information that is otherwise protected identified in Unit I.C.2. These electronic information and/or data you used that by statute, please follow the instructions submissions will be accepted in support your views. in Unit I.D. Do not use EPA Dockets or WordPerfect or ASCII file format. Avoid 4. If you estimate potential burden or e-mail to submit CBI or information the use of special characters and any costs, explain how you arrived at the protected by statute. form of encryption. estimate that you provide.
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5. Provide specific examples to accompanying each shipment must state TME–04–02. The test marketing illustrate your concerns. that the use of the substance is restricted conditions are described in the TME 6. Offer alternative ways to improve to that approved in the TME. In application and in this notice. the notice or collection activity. addition, the applicant shall maintain DATES: Approval of this TME is effective 7. Make sure to submit your the following records until 5 years after February 24, 2004. comments by the deadline in this the date they are created, and shall FOR FURTHER INFORMATION CONTACT: For document. make them available for inspection or general information contact: Colby 8. To ensure proper receipt by EPA, copying in accordance with section 11 Lintner, Regulatory Coordinator, be sure to identify the docket ID number of TSCA: Environmental Assistance Division assigned to this action and the TME 1. Records of the quantity of the TME (7408M), Office of Pollution Prevention number in the subject line on the first substance produced and the date of and Toxics, Environmental Protection page of your response. You may also manufacture. Agency, 1200 Pennsylvania Ave., NW., provide the name, date, and Federal 2. Records of dates of the shipments Washington, DC 20460–0001; telephone Register citation. to each customer and the quantities number: (202) 554–1404; e-mail address: supplied in each shipment. [email protected]. II. What is the Agency’s Authority for 3. Copies of the bill of lading that Taking this Action? For technical information contact: accompanies each shipment of the TME Adella Watson, CCD (7405M), Office of Section 5(h)(1) of TSCA and 40 CFR substance. Pollution Prevention and Toxics, 720.38 authorizes EPA to exempt V. What was EPA’s Risk Assessment for Environmental Protection Agency, 1200 persons from premanufacture this TME? Pennsylvania Ave., NW., Washington, notification (PMN) requirements and DC 20460–0001; telephone number: permit them to manufacture or import EPA identified no significant health (202) 564–9364; e-mail new chemical substances for test or environmental concerns for the test address:[email protected]. marketing purposes, if the Agency finds market substance. Therefore, the test SUPPLEMENTARY INFORMATION: that the manufacture, processing, market activities will not present any distribution in commerce, use, and unreasonable risk of injury to human I. General Information disposal of the substances for test health or the environment. A. Does this Action Apply to Me? marketing purposes will not present an VI. Can EPA Change Its Decision on this This action is directed in particular to unreasonable risk of injury to health or TME in the Future? the environment. EPA may impose the chemical manufacturer and/or restrictions on test marketing activities Yes. The Agency reserves the right to importer who submitted the TME to and may modify or revoke a test rescind approval or modify the EPA. This action may, however, be of marketing exemption upon receipt of conditions and restrictions of an interest to the public in general. Since new information which casts significant exemption should any new information other entities may also be interested, the doubt on its finding that the test that comes to its attention cast Agency has not attempted to describe all marketing activity will not present an significant doubt on its finding that the specific entities that may be affected unreasonable risk of injury. these test marketing activities will not by this action. If you have any questions present any unreasonable risk of injury regarding the applicability of this action III. What Action is the Agency Taking? to human health or the environment. to a particular entity, consult the technical person listed under FOR EPA has approved the above- List of Subjects referenced TME. EPA has determined FURTHER INFORMATION CONTACT. that test marketing the new chemical Environmental protection, Test marketing exemptions. B. How Can I Get Copies of this substance, under the conditions set out Document and Other Related in the TME application and in this Dated: February 24, 2004. Information? notice, will not present any Miriam Wiggins-Lewis, unreasonable risk of injury to health or 1. Docket. EPA has established an Acting Chief, New Chemicals Prenotice official public docket for this action the environment. Management Branch, Office of Pollution Prevention and Toxics. under docket identification (ID) number IV. What Restrictions Apply to this OPPT–2004–0075. The official public [FR Doc. 04–4473 Filed 2–27–04; 8:45 am] TME? docket consists of the documents BILLING CODE 6560–50–S The test market time period, specifically referenced in this action, production volume, number of any public comments received, and customers, and use must not exceed ENVIRONMENTAL PROTECTION other information related to this action. specifications in the application and AGENCY Although a part of the official docket, this notice. All other conditions and the public docket does not include [OPPT–2004–0075; FRL–7347–5] restrictions described in the application Confidential Business Information (CBI) and in this notice must also be met. or other information whose disclosure is Approval of Test Marketing Exemption restricted by statute. The official public TME–04–01 for a Certain New Chemical Date of Receipt: December 30, 2003. docket is the collection of materials that Notice of Receipt: February 9, 2004 AGENCY: Environmental Protection is available for public viewing at the (69 FR 5980) (FRL–7344–2). Agency (EPA). EPA Docket Center, Rm. B102-Reading Applicant: CBI. ACTION: Notice. Room, EPA West, 1301 Constitution Chemical: (G) Soy polyol. Ave., NW., Washington, DC. The EPA Use: (G) Polyurethanes market. SUMMARY: This notice announces EPA’s Docket Center is open from 8:30 a.m. to Production Volume: CBI. approval of an application for test 4:30 p.m., Monday through Friday, Number of Customers: CBI. marketing exemption (TME) under excluding legal holidays. The EPA Test Marketing Period: CBI. section 5(h)(1) of the Toxic Substances Docket Center Reading Room telephone The following additional restrictions Control Act (TSCA) and 40 CFR 720.38. number is (202) 566–1744 and the apply to this TME. A bill of lading EPA has designated this application as telephone number for the OPPT Docket,
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which is located in EPA Docket Center, Notice of Receipt: February 9, 2004 FEDERAL COMMUNICATIONS is (202) 566–0280. (69 FR 5980) (FRL–7344–2). COMMISSION 2. Electronic access. You may access Applicant: Ilford Imaging USA. Sprint Corporation’s Petition for this Federal Register document Chemical: 1H-pyrazole-3-carboxylic Designation as an Eligible electronically through the EPA Internet acid, 4-[[5- [[4, 6-bis[(3 Telecommunications Carrier in North under the ‘‘Federal Register’’ listings at sulphopropyl)thio]-1,3,5-triazin-2- Carolina http://www.epa.gov/fedrgstr/. yl]amino] -2-sulphophenyl]azo]-1-(2,5- An electronic version of the public dichloro-4-sulphophenyl)-4,5-dihydro- AGENCY: Federal Communications docket is available through EPA’s 5-oxo-,pentsodium salt. Commission. electronic public docket and comment Use: dye formulated in water-based ACTION: Notice; solicitation of system, EPA Dockets. You may use EPA ink for use in inkjet printer cartridges. comments. Dockets at http://www.epa.gov/edocket/ Production Volume: 500 kilograms/yr. to submit or view public comments, Number of Customers: 12. SUMMARY: In this document, the access the index listing of the contents Wireline Competition Bureau sought of the official public docket, and to Test Marketing Period: 5 months. comment on the Sprint Corporation’s access those documents in the public The following additional restrictions (Sprint) petition. Sprint is seeking docket that are available electronically. apply to this TME. A bill of lading designation as an eligible Although not all docket materials may accompanying each shipment must state telecommunications carrier (ETC) to be available electronically, you may still that the use of the substance is restricted receive federal universal service support access any of the publicly available to that approved in the TME. In in the portions of its licensed service docket materials through the docket addition, the applicant shall maintain area in North Carolina served by non- facility identified in Unit I.B.1. Once in the following records until 5 years after rural incumbent local exchange carriers. the system, select ‘‘search,’’ then key in the date they are created, and shall DATES: Comments are due on or before the appropriate docket ID number. make them available for inspection or March 11, 2004. Reply comments are copying in accordance with section 11 II. What is the Agency’s Authority for due on or before March 25, 2004. of TSCA: Taking this Action? ADDRESSES: 1. Records of the quantity of the TME Federal Communications Section 5(h)(1) of TSCA and 40 CFR substance produced and the date of Commission, 445 Twelfth Street, SW., 720.38 authorizes EPA to exempt manufacture. Washington, DC 20554. See persons from premanufacture SUPPLEMENTARY INFORMATION for further 2. Records of dates of the shipments filing instructions. notification (PMN) requirements and to each customer and the quantities permit them to manufacture or import supplied in each shipment. FOR FURTHER INFORMATION CONTACT: Thomas Buckley, Attorney, Wireline new chemical substances for test 3. Copies of the bill of lading that marketing purposes, if the Agency finds Competition Bureau, accompanies each shipment of the TME Telecommunications Access Policy that the manufacture, processing, substance. distribution in commerce, use, and Division, (202) 418–7400, TTY (202) disposal of the substances for test V. What was EPA’s Risk Assessment for 418–0484. marketing purposes will not present an this TME? SUPPLEMENTARY INFORMATION: This is a unreasonable risk of injury to health or EPA identified no significant health summary of the Commission’s public the environment. EPA may impose or environmental concerns for the test notice, CC Docket No. 96–45, DA 04–27, restrictions on test marketing activities market substance. Therefore, the test released January 8, 2004. On November and may modify or revoke a test market activities will not present any 5, 2003, Sprint on behalf of its Wireless marketing exemption upon receipt of unreasonable risk of injury to human Division filed with the Commission a new information which casts significant health or the environment. petition pursuant to section 214(e)(6) of doubt on its finding that the test the of the Communications Act of 1934, marketing activity will not present an VI. Can EPA Change Its Decision on this as amended, seeking designation as an unreasonable risk of injury. TME in the Future? ETC in the portions of its licensed service area in North Carolina served by III. What Action is the Agency Taking? Yes. The Agency reserves the right to non-rural incumbent local exchange rescind approval or modify the EPA approves the above-referenced carriers. Sprint contends that: the North conditions and restrictions of an TME. EPA has determined that test Carolina Utilities Commission (North exemption should any new information marketing the new chemical substance, Carolina Commission) has provided an that comes to its attention cast under the conditions set out in the TME affirmative statement that it does not significant doubt on its finding that the application and in this notice, will not regulate commercial mobile radio test marketing activities will not present present any unreasonable risk of injury service (CMRS) carriers; Sprint satisfies any unreasonable risk of injury to to health or the environment. all the statutory and regulatory human health or the environment. IV. What Restrictions Apply to this prerequisites for ETC designation; and TME? List of Subjects designating Sprint as an ETC will serve the public interest. Environmental protection, Test The test market time period, We note that Sprint must provide a marketing exemptions. production volume, number of copy of its petition to the North Carolina customers, and use must not exceed Dated: February 24, 2004. Commission. The Commission will also specifications in the application and Miriam Wiggins-Lewis, send a copy of this public notice to the this notice. All other conditions and Acting Chief, New Chemicals Prenotice North Carolina Commission by restrictions described in the application Management Branch, Office of Pollution overnight express mail to ensure that and in this notice must also be met. Prevention and Toxics. the North Carolina Commission is TME–04–02 [FR Doc. 04–4474 Filed 2–27–04 8:45 am] notified of the notice and comment Date of Receipt: January 12, 2004. BILLING CODE 6560–50–S period.
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Pursuant to §§ 1.415 and 1.419 of the be addressed to the Commission’s Number of Petitions Filed: 2. Commission’s rules, 47 CFR 1.415, Secretary, Marlene H. Dortch, Office of Marlene H. Dortch, 1.419, interested parties may file the Secretary, Federal Communications comments as follows: comments are due Commission. Secretary. [FR Doc. 04–4454 Filed 2–27–04; 8:45 am] on or before March 11, 2004, and reply Parties also must send three paper BILLING CODE 6712–01–M comments are due on or before March copies of their filing to Sheryl Todd, 25, 2004. Comments may be filed using Telecommunications Access Policy the Commission’s Electronic Comment Division, Wireline Competition Bureau, FEDERAL RESERVE SYSTEM Filing System (ECFS) or by filing paper Federal Communications Commission, copies. See Electronic Filing of 445 12th Street, SW., Room 5–B540, [Docket No. OP–1184] Documents in Rulemaking Proceedings, Washington, DC 20554. In addition, 63 FR 24121, May 1, 1998. commenters must send diskette copies Privacy Act of 1974; Notice of Comments filed through the ECFS can to the Commission’s copy contractor, Amendment of System of Records be sent as an electronic file via the Qualex International, Portals II, 445 Internet to http://www.fcc.gov/e-file/ AGENCY: Board of Governors of the 12th Street, SW., Room CY–B402, ecfs.html. Generally, only one copy of Federal Reserve System. Washington, DC 20054. an electronic submission must be filed. ACTION: Notice: amendment of systems If multiple docket or rulemaking Pursuant to § 1.1206 of the of records. numbers appear in the caption of this Commission’s rules, 47 CFR 1.1206, this SUMMARY: In accordance with the proceeding, however, commenters must proceeding will be conducted as a Privacy Act, the Board of Governors of transmit one electronic copy of the permit-but-disclose proceeding in the Federal Reserve System (Board) is comments to each docket or rulemaking which ex parte communications are amending one system of records, number referenced in the caption. In permitted subject to disclosure. entitled Consumer Complaint completing the transmittal screen, Federal Communications Commission. Information System (BGFRS–18), and commenters should include their full Sharon Webber, removing another system of records, name, U.S. Postal Service mailing entitled Financial Disclosure Reports address, and the applicable docket or Deputy Chief, Wireline Competition Bureau, and Outside Business Interests rulemaking number. Parties may also Telecommunications Access Policy Division. Applications (BGFRS–19). We invite submit an electronic comment by [FR Doc. 04–2241 Filed 2–27–04; 8:45 am] public comment on this publication. Internet e-mail. To get filing instructions BILLING CODE 6712–01–P for e-mail comments, commenters DATES: Comment must be received on or should send an e-mail to before March 31, 2004.
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SUPPLEMENTARY INFORMATION: These two CATEGORIES OF RECORDS IN THE SYSTEM: relevant and necessary to a proceeding systems have not been updated for These records primarily consist of in which the Board, any Board several years. The system entitled complaints regarding state-chartered employee in his or her official capacity, Financial Disclosure Reports and member banks, as well as other financial any Board employee in his or her Outside Business Interests Applications institutions, individuals, or individual capacity represented by the (BGFRS–19) covers records contained in organizations that are subject to federal Department of Justice or the Board, or OGE/GOVT–1 and OGE/GOVT–2, banking supervision. The records may the United States is a party or has an which are government-wide systems contain the name and address of an interest; that are maintained by the Office of individual or organization that referred f. A congressional office when the Government Ethics. Accordingly, the a matter to the Board. Information in information is relevant to an inquiry Board’s system is being removed as these records includes the made at the request of the individual duplicative and unnecessary. complainant’s name; the name of the about whom the record is maintained; The Consumer Complaints financial institution that is the subject of g. Contractors, agents, or volunteers Information system is being amended to the complaint; the subject matter of the performing or working on a contract, clarify that records maintained in the complaint; and the Board’s response to service, cooperative agreement, or job system pertain only to the complainant the complaint. Supporting records for the Board; and do not include investigatory records include, but are not limited to, h. Third parties when mandated or regarding the institution subject to the documents supplied by the authorized by statute; or complaint. The system has also been complainant. If the complaint concerns i. The National Archives and Records amended to include appropriate routine an institution that is not subject to Administration in connection with uses. supervision by the Board, the record records management inspections and its In accordance with 5 U.S.C. 552a(r), a may consist of a referral letter to the role as Archivist. appropriate supervisory agency. report of these amended systems of POLICIES AND PRACTICES FOR STORING, records is being filed with the President PURPOSE: RETRIEVING, ACCESSING, RETAINING AND of the Senate, the Speaker of the House DISPOSING OF RECORDS IN THE SYSTEM: of Representatives, and the Director of These files permit the Board to STORAGE: the Office of Management and Budget. perform its responsibilities under the These amendments will become Federal Reserve Act, the Federal Trade These records are stored in electronic effective on April 12, 2004, without Commission Act, and other consumer or printed form. further notice, unless the Board protection laws to respond to consumer complaints and inquiries regarding RETRIEVABILITY: publishes a notice to the contrary in the Files are retrievable by consumer Federal Register. practices by banks and other financial institutions supervised by the Board. name or as appropriate. Accordingly, the system of records entitled Financial Disclosure Reports AUTHORITY FOR MAINTENANCE OF THE SYSTEM: SAFEGUARDS: and Outside Business Interests Section 11 of the Federal Reserve Act Access to and use of these records is Applications (BGFRS–19) is removed, (12 U.S.C. 248(a)); Section 5 of the Bank restricted to authorized personnel only. and the system of records entitled Holding Company Act (12 U.S.C. 1844); RETENTION AND DISPOSAL: Consumer Complaint Information and Section 18(f) of the Federal Trade (BGFRS–18) is amended as follows. Commission Act (15 U.S.C. 57a(f)). Records are retained for five years. SYSTEM MANAGER AND ADDRESS: BGFRS–18 ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES OF USERS AND Director, Division of Consumer and SYSTEM NAME: THE PURPOSES OF SUCH USES: Community Affairs, Board of Governors Consumer Complaint Information. Information maintained in this system of the Federal Reserve System, 20th and may be disclosed to: Constitution, NW., Washington, DC SECURITY CLASSIFICATION: a. A Board-regulated entity that is the 20551. None. subject of a complaint or inquiry; NOTIFICATION PROCEDURE: b. Third parties to the extent SYSTEM LOCATION: necessary to obtain information that is Inquiries should be sent to the Board of Governors of the Federal relevant to the resolution of a complaint Secretary of the Board, Board of Reserve System, 20th and Constitution or inquiry; Governors of the Federal Reserve Avenue, NW., Washington, DC 20551; c. The appropriate governmental, System, 20th and Constitution Avenue, and the twelve Federal Reserve Banks, tribal, self-regulatory, or professional NW., Washington, DC 20551. The located in Boston, MA; New York, NY; organization if the information is request should contain the individual’s Philadelphia, PA; Cleveland, OH; relevant to a known or suspected name, name of the bank that was the Richmond, VA; Atlanta, GA; Chicago, violation of a law or licensing standard subject of the complaint, and date of the IL; St. Louis, MO; Minneapolis, MN; within that organization’s jurisdiction; complaint. Kansas City, MO; Dallas, TX; and San d. The appropriate governmental, RECORD ACCESS PROCEDURES: Francisco, CA. tribal, self-regulatory, or professional Same as ‘‘Notification procedure’’ organization if that entity has above. CATEGORIES OF INDIVIDUALS COVERED BY THE jurisdiction over the subject matter of SYSTEM: the complaint or inquiry, or the entity CONTESTING RECORD PROCEDURES: Persons who have filed consumer that is the subject of the complaint or Same as ‘‘Notification procedure’’ complaints with the Federal Reserve inquiry; above. Board or the Federal Reserve Banks, or e. The Department of Justice, a court, whose complaint to another agency has an adjudicative body, a party in RECORD SOURCE CATEGORIES: been referred to the Federal Reserve litigation, or a witness if the Board Person(s) who initiates complaint (or Board for review. determines that the information is his or her representative, which may
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include a member of Congress or an 417) (the 1984 amendments), which CYTOXAN is an alkylating agent used attorney); appropriate federal, state, or authorized the approval of duplicate to treat various types of cancer. It local regulatory and enforcement versions of drug products approved interferes with the growth of cancer agencies; and institutions or individuals under an ANDA procedure. ANDA cells, which are eventually destroyed. that are the subject of the complaint. sponsors must, with certain exceptions, On January 4, 1984, Bristol received show that the drug for which they are approval for a new formulation of SYSTEMS EXEMPTED FROM CERTAIN PROVISIONS seeking approval contains the same CYTOXAN, cyclophosphamide OF THE ACT: active ingredient in the same strength lyophilized, under NDA 12–142 058. None. and dosage form as the ‘‘listed drug,’’ Bristol’s lyophilized formulation was By order of the Board of Governors of the which is typically a version of the drug approved on the basis of a showing of Federal Reserve System, acting through the that was previously approved under a bioequivalence to the previously Secretary of the Board under delegated new drug application (NDA). Sponsors approved formulation. No additional authority, February 24, 2004. of ANDAs do not have to repeat the clinical trials were required to Jennifer J. Johnson, extensive clinical testing otherwise demonstrate the safety or effectiveness Secretary of the Board. necessary to gain approval of an NDA. of cyclophosphamide lyophilized. [FR Doc. 04–4444 Filed 2–27–04; 8:45 am] The only clinical data required in an ANDAs were approved before the time BILLING CODE 6210–01–P ANDA are data to show that the drug the cyclophosphamide lyophilized that is the subject of the ANDA is formulation was approved. These bioequivalent to the listed drug. ANDAs referenced cyclophosphamide DEPARTMENT OF HEALTH AND The 1984 amendments include what for injection. Bristol discontinued HUMAN SERVICES is now section 505(j)(7) of the Federal marketing cyclophosphamide for Food, Drug, and Cosmetic Act (21 injection, 2 g vials, in 1997. Food and Drug Administration U.S.C.355(j)(7)), which requires FDA to Cyclophosphamide for injection was publish a list of all approved drugs. moved from the prescription drug [Docket No. 01P–0333] FDA publishes this list as part of the product list to the ‘‘Discontinued Drug Determination That Cytoxan ‘‘Approved Drug Products With Product List’’ section of the Orange Therapeutic Equivalence Evaluations,’’ (Cyclophosphamide for Injection), 2 Book in May 1997. which is generally known as the On July 26, 2001, ASTA Medica, Inc., Gram Vials (NDA 12–142 054), Was Not ‘‘Orange Book.’’ Under § 314.162 (21 submitted a citizen petition (Docket No. Withdrawn From Sale for Reasons of CFR 314.162), drugs are withdrawn 01P–0333/CP1) to FDA under 21 CFR Safety or Effectiveness from the list if the agency withdraws or 10.30 requesting that the agency AGENCY: Food and Drug Administration, suspends approval of the drug’s NDA or determine whether CYTOXAN, HHS. ANDA for reasons of safety or cyclophosphamide for injection, 2 g ACTION: Notice. effectiveness, or if FDA determines that vials, was withdrawn from sale for the listed drug was voluntarily reasons of safety or effectiveness. This SUMMARY: The Food and Drug withdrawn from sale by the sponsor for determination not only affects whether Administration (FDA) has determined reasons of safety or effectiveness. an ANDA may be submitted and that although Bristol Myers Squibb Regulations also provide that the approved under §§ 314.122 and 314.161 (Bristol) has discontinued marketing agency must determine whether a listed using CYTOXAN, cyclophosphamide CYTOXAN, 2 gram (g) vials drug was withdrawn from sale for for injection, 2 g, as the reference listed (cyclophosphamide for injection), this reasons of safety or effectiveness before drug, but also affects whether the formulation was not withdrawn from an ANDA that refers to that listed drug agency is required to initiate withdrawal sale for reasons of safety and may be approved (§ 314.161(a)(1) (21 proceedings for the ANDAs that effectiveness. As a result of this CFR 314.161(a)(1))). If the agency reference cyclophosphamide for determination, approved abbreviated determines that a listed drug was injection and were approved before its new drug applications (ANDAs) for withdrawn for reasons of safety or market withdrawal. cyclophosphamide for injection that effectiveness, the drug must be removed The agency has determined that referenced Bristol’s cyclophosphamide from the list of approved drug products, Bristol did not withdraw for injection will not be removed from and ANDAs referencing that drug may cyclophosphamide for injection from the market. Because Bristol has not be approved (§ 314.162). Under sale for reasons of safety or supplemented its CYTOXAN NDA and § 314.161(a)(2), the agency must also effectiveness. Three grounds support the obtained approval for a new determine whether a listed drug was agency’s finding. First, Bristol continues formulation, cyclophosphamide withdrawn from sale for reasons of to market cyclophosphamide lyophilized, any unapproved ANDAs safety or effectiveness if ANDAs that lyophilized (which is pharmaceutically seeking to reference CYTOXAN as a referred to the listed drug have already and therapeutically equivalent to reference listed drug must reference the been approved prior to its market Bristol’s withdrawn cyclophosphamide currently approved formulation, withdrawal. If the agency determines for injection) in a variety of strengths. cyclophosphamide lyophilized. that a listed drug was withdrawn from FDA has no reason to believe that sale for reasons of safety or cyclophosphamide lyophilized has a FOR FURTHER INFORMATION CONTACT: effectiveness, and there are approved different safety or effectiveness profile Howard P. Muller, Center for Drug ANDAs that reference that listed drug, than cyclophosphamide for injection, Evaluation and Research (HFD–7), Food FDA will initiate a proceeding to and required Bristol to conduct no and Drug Administration, 5600 Fishers determine whether the suspension of clinical trials (other than bioequivalence Lane, Rockville, MD 20855, 301–594– the ANDAs is also required (21 CFR trials) to support the formulation 2041. 314.153(b)). change. Second, the petitioner SUPPLEMENTARY INFORMATION: In 1984, On August 30, 1982, Bristol received identified no adverse event data or other Congress enacted the Drug Price approval for CYTOXAN information suggesting that Bristol Competition and Patent Term (cyclophosphamide for injection), 2 g withdrew cyclophosphamide for Restoration Act of 1984 (Public Law 98– vials, under NDA 12–142 054. injection from sale as a result of safety
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or effectiveness concerns. Third, FDA Frequently Asked Questions section of The meeting will be held at the NIH, has independently evaluated relevant the Preview, programs may be 9000 Rockville Pike, Bethesda, literature and internal agency data for withdrawn from competition. Based on Maryland, Building 31C, Conference possible postmarketing reports final Fiscal Year 2004 appropriations Room 10. Attendance will be limited to associated with cyclophosphamide for and a redirection of priorities, HRSA space available. In the interest of injection, and has found no information hereby withdraws the following security, NIH has instituted stringent that would indicate this product was programs and announcements from procedures for entrance into the withdrawn for reasons of safety or Fiscal Year 2004 competition: building by non-government employees. effectiveness. HRSA–04–021 Bioterrorism Training Persons without a government I.D. will After considering the citizen petition and Curriculum Development need to show a photo I.D. and sign-in at and reviewing its records, FDA (BTCDP). the security desk upon entering the determines that, for the reasons outlined HRSA–04–028 Radiation Exposure building. above, Bristol’s cyclophosphamide for Screening and Education Program On March 1 and until noon on March injection was not withdrawn from sale (RESEP). 2, the meeting will be open to the for reasons of safety or effectiveness. HRSA–04–036 National Health Center public. Sessions will include: Federal Thus, FDA will not initiate proceedings Technical Assistance Cooperative Conflict of Interest Policies; HHS to suspend the approvals of ANDAs Agreements (NAT). Conflict of Interest Policies, NIH referencing cyclophosphamide for HRSA–04–046 Telehealth Resource Conflict of Interest Policies and injection. However, because Bristol has Centers Cooperative Agreement Procedures, and there will be time set supplemented its CYTOXAN NDA and Program (TRCCP). aside for oral presentations by the obtained approval for a new HRSA–04–049 Title III: Early public. Any person wishing to make a formulation, cyclophosphamide Intervention Services Planning Grants presentation should notify Charlene lyophilized, any unapproved ANDAs (EISPG). French, Office of Science Policy, seeking to reference CYTOXAN (NDA HRSA–04–052 Maternal and Child National Institutes of Health, Building 1, 12–142 054) must reference the Health Minority Research Room 103, Bethesda, Maryland 20892, currently approved formulation. Infrastructure Support Program telephone 301–496–2122 by February Dated: February 15, 2004. (RMIN). 26, 2004 or by e-mail: Jeffrey Shuren, HRSA–04–061 Partnership for [email protected]. Assistant Commissioner for Policy. Information and Communication (PIC) Oral comments will be limited to 5 [FR Doc. 04–4505 Filed 2–27–04; 8:45 am] Cooperative Agreement Program. minutes. Due to time constraints, only BILLING CODE 4160–01–S HRSA–04–074 Best Practices to Increase one representative from each Organ Donation (HIP). organization will be allotted time or oral These cancellations will be effective testimony. The number of speakers and DEPARTMENT OF HEALTH AND immediately upon publication of this the time allotment may also be limited HUMAN SERVICES Federal Register notice. HRSA will not by the number of presentations. The accept any FY 2004 competitive opportunity to speak will be based on a Health Resources and Services applications for these funding first come first served basis. All requests Administration opportunities, and any applications to present oral comments should Cancellation of Grant Opportunities previously submitted will be returned to include the name, address, telephone Previously Announced in the HRSA the respective applicants. Further number, and business or professional Preview on September 4, 2003 (68 FR information about HRSA programs will affiliation of the interested party, and 52632) be provided through the HRSA Preview should indicate the areas of interest or at the HRSA Home page at http:// issue to be addressed. Please provide, if AGENCY: Health Resources and Services www.hrsa.gov. possible, an electronic copy of your Administration (HRSA), HHS. Dated: February 24, 2004. comments. ACTION: Notice of cancellation. Elizabeth M. Duke, Any person attending the meeting Administrator. who has not registered to speak in SUMMARY: The Health Resources and advance of the meeting will be allowed Services Administration (HRSA) [FR Doc. 04–4506 Filed 2–27–04; 8:45 am] BILLING CODE 4165–15–P to make a brief oral statement during the announces the cancellation of eight time set aside for public comment, if grant opportunities that were initially time permits and at the discretion of the published in the (September 4, 2003 (68 DEPARTMENT OF HEALTH AND co-chairs. FR 52632)) Federal Register notice of HUMAN SERVICES availability of competitive grant funds Individuals who plan to attend the meeting and need special assistance, for numerous HRSA programs. National Institutes of Health such as sign language interpretation or EFFECTIVE DATE: March 1, 2004. Office of the Director; Notice of other reasonable accommodations, FOR FURTHER INFORMATION CONTACT: Gail Meeting should notify Charlene French in Lipton, Director, Division of Grants advance of the meeting at the address Policy, Office of Financial Policy and The Office of the Director, National listed earlier in this notice. Oversight, Telephone (301) 443–6509. Institutes of Health (NIH), announces a Dated: February 19, 2004. (This is not a toll-free number). meeting of the NIH Blue Ribbon Panel SUPPLEMENTARY INFORMATION: The HRSA on Conflict of Interest Policies, a LaVerne Stringfield, Preview is a comprehensive listing of working group of the Advisory Director, Office of Federal Advisory HRSA competitive grant programs Committee to the Director, NIH. The Committee Policy. scheduled for award in Fiscal Year meeting is scheduled for March 1–2, [FR Doc. 04–4528 Filed 2–26–04; 11:15 am] 2004. However, as indicated in the 2004, beginning at 8:30 a.m. each day. BILLING CODE 4140–01–M
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DEPARTMENT OF HOUSING AND Housing, Department of Housing and appropriate automated collection URBAN DEVELOPMENT Urban Development, 451 7th Street, techniques or other forms of information SW., Room 4116, Washington, DC technology; e.g., permitting electronic [Docket No. FR–4910–N–05] 20410–5000. submission of responses. Notice of Proposed Information FOR FURTHER INFORMATION CONTACT: This notice also lists the following Collection for Public Comment; Sherry F. McCown, (202) 708–0614, information: Financial Standards for Housing extension 7651. (This is not a toll-free Title of Proposal: Financial Standards Agency-Owned Insurance Entities number). for Housing Agency-Owned Insurance SUPPLEMENTARY INFORMATION: The Entities. AGENCY: Office of the Assistant Department will request an extension of Secretary for Public and Indian and submit the proposed information OMB Control Number: 2577–0186. Housing, HUD. collection to OMB for review, as Description of the Need for the ACTION: Notice. required by the Paperwork Reduction Information and Proposed Use: Housing Authorities (HAs) can purchase SUMMARY: Act of 1995 (44 U.S.C. chapter 35, as HUD will submit the proposal insurance coverage when purchased for collection of information described amended). This notice is soliciting comments from a nonprofit insurance entity owned below to the Office of Management and from members of the public and affected and controlled by HAs which are Budget (OMB) for review, as required by agencies concerning the proposed approved by HUD. HA-owned insurance the Paperwork Reduction Act. The collection of information to: (1) Evaluate entities must submit certain Department will request this previously whether the proposed collection of documentation to HUD and also submit approved information collection be information is necessary for the proper audit and actuarial reviews to HUD. extended, and is soliciting public performance of the functions of the comments on the subject proposal. Agency Form Numbers, if Applicable: agency, including whether the Members of Affected Public: Business DATES: Comments Due Date: April 30, information will have practical utility; or other for-profit, State, local or tribal 2004. (2) evaluate the accuracy of the agency’s government. ADDRESSES: Interested persons are estimate of the burden of the proposed invited to submit comments regarding collection of information; (3) enhance Estimation of the Total Number of this proposal. Comments should refer to the quality, utility, and clarity of the Hours Needed to Prepare the the proposal by name and/or OMB information to be collected; and (4) Information Collection Including Control number and should be sent to: minimize the burden of the collection of Number of Respondents, Frequency of Sherry F. McCown, Acting Reports information on those who are to Response, and Hours of Response: Liaison Officer, Public and Indian respond, including through the use of Frequency of Submission: Annually.
Number of re- × Frequency re- × Hours per re- spondents sponse sponse = Burden hours
Reporting Burden ...... 19 1 10 190
Total Estimated Burden Hours: 190. SUMMARY: The recently enacted FHA annually, commencing in 2004, for a Status of the Proposed Information Multifamily Loan Limit Adjustment Act number of programs under the Act. Collection: Extension. of 2003 made adjustments to certain Accordingly, on November 1, 2003 (68 maximum mortgage amount limits. This FR 65724), HUD published notice of the Authority: Section 3506 of the Paperwork notice advises of HUD adjustment of basic statutory mortgage limits for Reduction Act of 1995, 44 U.S.C. chapter 35, as amended. these mortgage limits consistent with multifamily housing programs. the new law. Subsequently, enactment of the FHA Dated: February 24, 2004. EFFECTIVE DATE: January 1, 2004. Multifamily Loan Limit Adjustment Act Michael Liu, of 2003 (section 302 of Pub. L. 108–186, FOR FURTHER INFORMATION CONTACT: Assistant Secretary for Public and Indian approved December 16, 2003) Housing. Michael McCullough, Director, Office of established ‘‘catch-up adjustments’’ to Multifamily Development, Department [FR Doc. 04–4479 Filed 2–27–04; 8:45 am] two programs under the Act. Under of Housing and Urban Development, BILLING CODE 4210–33–P section 302(c), captioned ‘‘Catch-up 451 Seventh Street, SW., Washington, Adjustments to Certain Maximum DC 20410–8000, telephone (202) 708– Mortgage Amount Limits,’’ the DEPARTMENT OF HOUSING AND 1142 (this is not a toll-free number). adjustments affect the following URBAN DEVELOPMENT Hearing-or speech-impaired individuals sections of the Act: (1) Section may access this number through TTY by 207(c)(3)(A) (12 U.S.C. 1713(c)(3)(A)); calling the toll-free Federal Information [Docket No. FR–4902–N–01] and (2) section 213(b)(2)(A) (12 U.S.C. Relay Service at (800) 877–8339. 1715e(b)(2)(A)). Adjustments to Statutory Mortgage SUPPLEMENTARY INFORMATION: The FHA The new dollar amounts in these Limits for Sections 207 and 213 of the Downpayment Simplification Act of sections have been adjusted by HUD National Housing Act Multifamily 2002 (Pub. L. 107–326, approved according to the FHA Downpayment Housing Programs December 4, 2002) amended the Simplification Act of 2002, using the National Housing Act (the Act) (12 Federal Reserve Board’s adjustment of AGENCY: Office of the Assistant U.S.C. 1701 et seq.) by adding a new the $400 figure in the Home Ownership Secretary for Housing—Federal Housing section 206A (12 U.S.C. 1712a). Under and Equity Protection Act of 1994 Commissioner, HUD. section 206A, maximum mortgage (HOEPA) (Pub. L. 103–325, approved amounts (collectively referred to as September 23, 1994). The adjustment of ACTION: Notice. ‘‘dollar amounts’’) shall be adjusted the dollar amounts has been calculated
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using the percentage change in the SUPPLEMENTARY INFORMATION: Section $100,000, and indemnify HUD on 13 Consumer Price Index for All Urban 202(c)(5) of the National Housing Act FHA-insured loans. Consumers (CPI–U) as applied by the (12 U.S.C. 1708(c)(5) requires that HUD Cause: The Board took this action Federal Reserve Board for purposes of publish a description of and the cause based on the following violation of the above-described HOEPA adjustment. for administrative action against a HUD- HUD/FHA requirements in the The percentage change in the CPI–U approved mortgagee by HUD’s origination of HUD/FHA insured loans is 2.22 percent and the effective date of Mortgagee Review Board. In compliance where ACMS failed to obtain and the HOEPA adjustment is January 1, with the requirements of section properly analyze necessary documents 2004. The dollar amounts have been 202(c)(5), this notice advises of to determine the financial capacity of a adjusted correspondingly and have an administrative actions that have been nonprofit borrower. effective date of January 1, 2004. taken by the Mortgagee Review Board 4. BancFirst Corporation, Oklahoma The adjusted dollar amounts for (Board) from December 2001 through City, OK [Docket No. 02–2152–MR] calendar year 2004 are as follows: September 2003. Action: Settlement Agreement signed Basic Statutory Mortgage Limits for 1. Acclaim Mortgage Incorporated, on March 24, 2003. Without admitting Calendar Year 2004 Denver, CO [Docket No. 02–1959–MR] fault or liability, BancFirst Corporation Multifamily Loan Program Action: Settlement Agreement signed (BFC) agreed to pay an administrative • on May 29, 2003. Without admitting payment in the amount of $9,000. Section 213—Cooperatives fault or liability, Acclaim Mortgage Cause: The Board took this action Incorporated (AMI) agreed to pay a civil based as a result of BFC’s failure to Bedrooms Non-elevator Elevator money penalty in the amount of perform property inspections on HUD/ 0 ...... $42,121 44,849 $44,900. FHA-insured multifamily projects. Cause: The Board took this action 1 ...... 48,565 50,813 5. Bank of New York, New York, NY 2 ...... 58,572 61,787 based on the following violations of the [Docket No. 02–1963–MR] 3 ...... 74,971 79,932 HUD’s Federal Housing Administration 4+ ...... 83,521 87,741 (FHA) requirements in the origination of Action: Settlement Agreement signed HUD/FHA-insured loans where AMI: on January 31, 2003. Without admitting • Section 207 ‘‘Manufactured Home failed to perform Quality Control fault or liability, Bank of New York Parks reviews in compliance with HUD/FHA (BNY) agreed to pay an administrative Per Space $17,847 requirements; failed to file annual payment in the amount of $36,000. Dated: February 20, 2004. reports regarding loan application Cause: The Board took this action as John C. Weicher, activity as required by HUD/FHA a result of BNY’s failure to perform property inspections on HUD/FHA- Assistant Secretary for Housing-Federal requirements; and failed to pay all of its Housing Commissioner. own operating expenses in compliance insured multifamily projects. [FR Doc. 04–4481 Filed 2–27–04; 8:45 am] with HUD/FHA requirements. 6. District of Columbia Housing Finance BILLING CODE 4210–27–P 2. Allied Home Mortgage Capital Agency, Washington, DC [Docket No. Corporation, Houston, TX [Docket No. 03–3025–MR] 01–1465–MR] Action: Settlement Agreement signed DEPARTMENT OF HOUSING AND Action: Settlement Agreement signed on May 13, 2003. Without admitting URBAN DEVELOPMENT on August 13, 2003. Without admitting fault or liability, District of Columbia [Docket No. FR–4914–N–02] fault or liability, Allied Home Mortgage Housing Finance Agency (DCHFA) Capital Corporation (AMCC) agreed to agreed to pay an administrative Mortgagee Review Board; pay an administrative payment in the payment in the amount of $3,000. Administrative Actions amount of $50,000. Cause: The Board took this action as Cause: The Board took this action a result of DCHFA’s failure to perform AGENCY: Office of the Assistant a property inspection on one HUD/FHA- Secretary for Housing-Federal Housing based on the following violations of the insured multifamily project. Commissioner, HUD. HUD/FHA requirements in the origination of HUD/FHA-insured loans 7. Empire Funding Corporation, Austin, ACTION: Notice. where AMCC: engaged in improper TX [Docket No. 99–974–MR] SUMMARY: In compliance with section branch operations because the Action: Settlement Agreement signed 202(c) of the National Housing Act, this employment agreements violated HUD/ on August 7, 2002. Without admitting notice advises of the cause and FHA requirements; allowed a loan fault or liability, Empire Funding description of administrative actions officer to originate a HUD/FHA-insured Corporation (EFC) agreed to forever taken by HUD’s Mortgagee Review loan in which the person was both the forfeit its HUD/FHA Title I approval and Board against HUD-approved loan officer and real estate agent; and liquidate its assets in accordance with a mortgagees. allowed the origination of HUD/FHA loans to occur in an office space that federal bankruptcy court approved FOR FURTHER INFORMATION CONTACT: D. was not clearly identified as an office of liquidation plan. HUD agreed not to Jackson Kinkaid, Secretary to the AHMCC. pursue civil money penalties. Mortgagee Review Board, 451 Seventh Cause: The Board took this action Street, SW., Washington, DC 20410– 3. Atlantic Coast Mortgage Services, based on the following violations of 8000, telephone: (202) 708–3041 Pleasantville, NJ [Docket No. 02–1913– HUD/FHA requirements in the extension 3574 (this is not a toll-free MR] origination of FHA-insured Title I number). Hearing- or speech-impaired Action: Settlement Agreement signed property improvement loans where EFC: individuals may access this telephone on March 21, 2003. Without admitting Failed to re-approve dealers in a timely number through TTY by calling the toll- fault or liability, Atlantic Coast manner and funded Title I loans from free Federal Information Relay Mortgage Services (ACMS) agreed to pay non-approved dealers; and failed to Information Service at 1–800–877–8339. a civil money penalty in the amount of ensure that detailed descriptions of the
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proposed improvements were provided purposes; failed to include all of the 13. First Eastern Mortgage Corporation, to the borrowers. borrower’s debts when calculating the Andover, MA [Docket No. 02–1905–MR] total fixed payment-to-income 8. Evans Mortgage Corporation, Action: Settlement Agreement signed Edmond, OK [Docket No. 01–1565–MR] qualifying ratios; failed to ensure that a on April 1, 2003. Without admitting mortgagor met a minimum required fault or liability, First Eastern Mortgage Action: Settlement Agreement signed investment because the loan exceeded Corporation (FEMC) agreed to pay an on June 11, 2002. Without admitting the maximum mortgage amount; failed administrative payment in the amount fault or liability, Evans Mortgage to resolve discrepancies in of $171,000, and indemnify HUD on 49 Corporation (EMC) agreed to pay a civil documentation used to process, HUD/FHA-insured loans. money penalty in the amount of $10,000 underwrite and approve HUD/FHA Cause: The Board took this action and refund excessive fees charged to loans; failed to satisfy requirements based on the following violations of mortgagors. established by the Direct Endorsement HUD/FHA requirements in the Cause: The Board took this action underwriter prior to closing; failed to origination of HUD/FHA insured loans based on the following violations of verify the borrower’s stability of income where FEMC: Failed to obtain and HUD/FHA requirements in the or employment for the recent two full properly analyze necessary documents origination of HUD/FHA insured loans to determine the financial capacity of a where EMC: Failed to file annual reports years; approved borrowers with non-profit borrower; charged borrowers regarding loan application activity as delinquent and/or poor credit histories; fees not permitted by HUD/FHA; and required by HUD/FHA requirements; and charged fees to HUD/FHA failed to identify the lender credits on failed to maintain and implement a borrowers that were not specifically the Good Faith Estimate and the HUD– Quality Control Plan in compliance permitted by HUD/FHA. 1 Settlement Statement. with HUD requirements; allowed non- 11. Financial Mortgage Corporation, FHA approved entities to originate loans Fort Washington, PA [Docket No. 00– 14. First Nationwide Mortgage that were registered with HUD as 1106–MR] Corporation, Frederick, MD [Docket though they had been originated by No. 02–2149–MR] EMC employees; paid referral fees to Action: Settlement Agreement signed Action: Settlement Agreement signed non-employees; signed false lender on April 17, 2002. Without admitting on May 1, 2003. Without admitting fault certifications contained in the addenda fault or liability, Financial Mortgage or liability, First Nationwide Mortgage to the Uniform Residential Loan Corporation (FMC) agreed to pay a civil Corporation (FNMC) agreed to pay an Application; and charged unallowable money penalty in the amount of $1,000 administrative payment in the amount and/or excessive fees to FHA borrowers and indemnify HUD for one loan. of $12,000. not specifically permitted by HUD/FHA. Cause: The Board took this action Cause: The Board took this action as 9. Federal National Mortgage based on the following violations of a result of FNMC’s failure to perform Association, Washington, DC [Docket HUD/FHA requirements in the property inspections on HUD/FHA- No. 03–3026–MR] origination of HUD/FHA-insured loans insured multifamily projects. Action: Settlement Agreement signed where FMC: Used falsified or conflicting 15. Firstrust Savings Bank, on May 8, 2003. Without admitting fault documentation to approve a HUD/FHA Philadelphia, PA [Docket No. 03–3086– or liability, Federal National Mortgage mortgagor, and failed to properly verify MR] income to approve a HUD/FHA Association (FNMA) agreed to pay an Action: Settlement Agreement signed mortgagor. administrative payment in the amount on June 30, 2003. Without admitting of $6,000. 12. First Colony Mortgage Corporation, fault or liability, Firstrust Savings Bank Cause: The Board took this action as Orem, UT [Docket No. 01–1566–MR] (FSB) agreed to pay an administrative a result of FNMA’s failure to perform payment in the amount of $6,000. property inspections on HUD/FHA- Action: Settlement Agreement signed Cause: The Board took this action as insured multifamily projects. on March 14, 2003. Without admitting a result of FSB’s failure to perform 10. Fidelity Bank and Trust Company, fault or liability, First Colony Mortgage property inspections on HUD/FHA- Baton Rouge, LA [Docket No. 01–1580– Corporation (FCMC) agreed to pay a insured multifamily projects. civil money penalty in the amount of MR] 16. Flagstar Bank, F.S.B., Troy, MI $49,500, indemnify HUD on two FHA- [Docket No. 02–1948–MR] Action: On June 25, 2002, the Board insured loans, and buydown the over- issued a letter to Fidelity Bank and insured amount in one loan. Action: On March 7, 2003 the Board Trust Company (FBTC) withdrawing its issued a letter of reprimand to Flagstar HUD/FHA-approval and imposing a Cause: The Board took this action Bank, F.S.B. civil money penalty in the amount of based on the following violations of Cause: The Board took this action $93,500. HUD/FHA requirements in the after a jury found that Flagstar Bank had Cause: The Board took this action origination of HUD/FHA insured loans violated sections 805 and 818 of the Fair based on the following violations of where FCMC: Accepted loans originated Housing Act (42 U.S.C. 3605 and 3617), HUD/FHA requirements in the by personnel not employed or not and corresponding regulations origination of HUD/FHA insured loans exclusively employed by FCMC; failed promulgated by HUD pertaining to where FBTC: Failed to adopt, maintain to properly verify the source and mortgage lending, 24 CFR 100.120 to and implement a quality control plan in adequacy of funds for the down 100.130. compliance with HUD requirements; payment and/or closing costs; failed to failed to adequately verify the source properly verify and analyze income; 17. GMAC Mortgage Corporation, and sufficiency of funds used for the failed to ensure property eligibility for Horsham, PA [Docket No. 01–1596–MR] down payment, loan closing, or to HUD/FHA mortgage insurance; and Action: Settlement Agreement signed satisfy loan approval conditions; failed closed a loan in excess of the maximum on April 28, 2003. Without admitting to properly verify and/or calculate the allowable insurance amount resulting in fault or liability, GMAC Mortgage mortgagor’s income used for qualifying an over-insured loan. Corporation (GMACMC) agreed to pay
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an administrative payment in the and 1999; failed to prevent a senior origination of HUD/FHA-insured loans amount of $91,000 and indemnify HUD corporate officer to actively work as a where KBMC: Accepted fees for real on 26 HUD/FHA-insured loans. real estate broker; and failed to separate estate settlement services when either Cause: The Board took this action its office space from another entity and no or nominal services were provided; based on the following violations of clearly identify itself to the public. failed to properly verify the source and HUD/FHA requirements in the adequacy of funds used for the down origination of HUD/FHA insured loans 20. Infinity Mortgage Company, payment and/or closing costs; failed to where GMACMC: Failed to identify Murray, UT [Docket No. 01–1574–MR] properly verify, analyze, and calculate and/or resolve false or conflicting Action: Settlement Agreement signed income used to qualify mortgagors; documentation prior to approving HUD/ on May 6, 2002. Without admitting fault failed to properly consider and verify FHA mortgagors; failed to ensure that or liability, Infinity Mortgage Company liabilities of the mortgagor and/or non- the mortgagor made the minimum (IMC) agreed to pay a civil money purchasing spouse; failed to properly required investment in the property; penalty in the amount of $6,500. document mortgagor’s credit histories; failed to adequately verify the source of Cause: The Board took this action failed to properly document that funds for mortgagor’s down payment based on the following violations of the judgments were paid-off or that the and/or closing costs; failed to ensure HUD/FHA requirements in the creditor was willing to subordinate the that verifications and other supporting origination of HUD/FHA insured loans judgments to the insured mortgages; documents did not pass through the where IMC: Failed to establish a proper failed to update expired credit hands of an interested third party; failed loan correspondent/sponsor documents; and failed to provide to obtain and analyze the terms and relationship with a lender; failed to compensating factors for ratios conditions of the real estate transaction maintain and implement a quality exceeding HUD/FHA standards. and to consider the acquisition cost of control plan; and, failed to file annual 23. Kiddco Mortgage Company, recently acquired properties in the reports regarding FHA loan application Cincinnati, OH [Docket No. 01–1578– underwriting of the loans; failed to activity. MR] submit closed loans form endorsement 21. Investors Mortgage Funding within 60 days after loan closing as Action: On February 28, 2003, the Incorporated, Sacramento, CA [Docket required; permitted an employee, who Board issued a letter to Kiddco Mortgage No. 01–1486–MR] was also a party to the transaction, to be Company (KMC) withdrawing its HUD/ involved in the loan processing; failed Action: Settlement Agreement signed FHA approval and imposing a civil to retain pertinent loan file documents; on April 17, 2002. Without admitting money penalty in the amount of permitted cash back to a mortgagor fault or liability Investors Mortgage $167,875. receiving a homebuyer’s assistance Funding Incorporated (IMFI) agreed to a Cause: The Board took this action grant; and failed to properly evaluate voluntary withdrawal of its HUD/FHA based on the following violations of effective income. lender approval and pay a civil money HUD/FHA requirements in the penalty in the amount of $40,000. origination of HUD/FHA insured loans 18. Highland Mortgage Company, Cause: The Board took this action where KMC: Falsified documentation or Birmingham, AL [Docket No. 03–3089– based on the following violations of the conflicting information to originate and MR] HUD/FHA requirements in the obtain mortgage insurance; failed to Action: Settlement Agreement signed origination of HUD/FHA insured loans document the borrower’s source of on June 30, 2003. Without admitting where IMFI: Failed to implement and funds used for downpayment or closing fault or liability, Highland Mortgage maintain a quality control plan in costs; used faxed copies of documents to Company (HMC) agreed to pay an compliance with HUD requirements; originate loans; failed to perform administrative payment in the amount failed to file annual reports regarding satisfactory credit analysis; failed to of $12,000. loan application activity as required by ensure that mortgagors met their Cause: The Board took this action as HUD/FHA requirements; permitted non- minimum required investment; failed to a result of HMC’s failure to perform FHA approved branch offices to ensure that the requirements for high property inspections on HUD/FHA- originate and process HUD/FHA- loan-to-value, new construction loans insured multifamily projects. insured loans; employed loan officers were met; failed to remit Up-Front that were not exclusive employees; and Mortgage Insurance Premiums to HUD 19. Imperial Lenders Corporation, used non-employees to originate and within 15 days from the date of the loan Miami, FL [Docket No. 01–1623–MR] process HUD/FHA mortgage loans. closing; failed to file annual reports Action: Settlement Agreement signed regarding FHA loan application activity on June 24, 2003. Without admitting 22. KB Home Mortgage Company, f/k/a as required by HUD/FHA for 1995 fault or liability, Imperial Lenders Kaufman and Broad Mortgage through 2000; failed to ensure that an Corporation (ILC) agreed to pay a civil Company, Woodland Hills, CA [Docket employee did not act as both Loan money penalty in the amount of No. 01–1594–MR] Officer and Direct Endorsement $18,000. Action: Settlement Agreement signed Underwriter on HUD/FHA loans; Cause: The Board took this action on January 30, 2003. Without admitting accepted loan applications from non- based on the following violations of the fault or liability, KB Home Mortgage employees; failed to ensure that their HUD/FHA requirements where ILC: Company (KBMC) (fka Kaufman and employees worked exclusively for the Failed to prevent individuals who were Broad Mortgage Company) agreed to pay lender and did not maintain other not on the employee list to participate an administrative payment in the employment in the mortgage or real in the origination of HUD/FHA insured amount of $146,000, indemnify HUD on estate industry; failed to ensure that loans by interviewing applicants; failed 15 HUD/FHA-insured loans, and pay loans involving employees of KMC were to establish, maintain and implement a HUD for losses associated with HUD/ properly processed; failed to ensure that Quality Control Plan in compliance FHA insurance claims. loan verification documents did not with HUD/FHA requirements; failed to Cause: The Board took this action pass through the hands of an interested file annual reports regarding FHA loan based on the following violations of third party; failed to provide evidence application activity for the years 1998 HUD/FHA requirements in the that all parties to the loan transactions
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were checked against HUD’s Limited and failed to identify sales within 12 insured loans; failed to file annual Denial of Participation (LDP) listing and months on appraisals. reports regarding FHA loan application the government-wide Government activity; and failed to display or 26. M & T Mortgage Corporation, Services Administration (GSA) maintain a fair housing poster at the Buffalo, NY [Docket No. 01–1602–MR] Excluded Parties Listing System; failed main office or at a branch office. to maintain fidelity bond coverage and Action: Settlement Agreement signed errors and omissions insurance; paid on July 17, 2002. Without admitting 29. Mortgage Partners Incorporated, fees on behalf of borrowers which ere fault or liability, M & T Mortgage San Diego, CA [Docket No. 01–1531– not permitted by HUD/FHA; and failed Corporation (MTMC) agreed to pay an MR] to maintain and implement a quality administrative payment in the amount Action: Settlement Agreement signed control plan in compliance with HUD/ of $118,000. on April 1, 2003. Without admitting FHA requirement. Cause: The Board took this action fault or liability, Mortgage Partners based on the following violations of 24. Lend-Mor Capital Corporation, Incorporated (MPI) agreed to pay a civil HUD/FHA requirements in the money penalty in the amount of Garden City, NY [Docket No. 01–1361– origination of HUD/FHA insured loans MR] $44,500. where MTMC: Failed to obtain the Cause: The Board took this action Action: Settlement Agreement signed required exhibits and/or execute based on the following violations of on July 17, 2002. Without admitting documents prior to disbursing funds HUD/FHA requirements in the fault or liability, Lend-Mor Capital from the 203(k) rehabilitation escrow origination of HUD/FHA insured loans Corporation (LMCC) agreed to pay a account; disbursed contingency funds to where MPI: Failed to maintain and civil money penalty in the amount of borrowers without the required repair implement a Quality Control Plan in $28,500 and indemnify HUD on eight inspection; failed to take appropriate compliance with HUD requirements; HUD/FHA-insured loans. action when the rehabilitation period failed to file annual reports regarding Cause: The Board took this action expired and the borrowers failed to FHA loan application activity as based on the following violations of complete the rehabilitation within the HUD/FHA requirements in the required by HUD requirements; allowed required time frame; and failed to prohibited branch arrangements; and origination of HUD/FHA-insured loans arrange for a final inspection on each of where LMCC: Failed to maintain and allowed dual employment of two loan the loans that were being placed in officers. implement a Quality Control Plan in foreclosure. compliance with HUD requirements; 30. New York Housing Finance Agency, failed to verify documentation used to 27. Mortgage Amenities Corporation, New York, NY [Docket No. 03–3011– qualify borrowers in compliance with Lincoln, RI [Docket No. 02–1906–MR] MR] HUD requirements; failed to determine Action: Settlement Agreement signed Action: Settlement Agreement signed whether the borrower met minimum on July 24, 2003. Without admitting on March 3, 2003. Without admitting cash investment requirements; failed to fault or liability, Mortgage Amenities fault or liability, New York Housing verify the source and adequacy of funds Corporation (MAC) agreed to pay an Finance Agency (NYHFA) agreed to pay for the downpayment and/or closing administrative payment in the amount an administrative payment in the costs; did not provide adequate of $175,000, and indemnify HUD on 56 amount of $57,000. significant compensating factors to FHA-insured loans. justify the approval of the mortgage loan Cause: The Board took this action Cause: The Board took this action as with ratios exceeding FHA guidelines; based on the following violations of a result of NYHFA’s failure to perform and failed to explain irregularities in the HUD/FHA requirements in the property inspections on HUD/FHA- appraisal report. origination of HUD/FHA insured loans insured multifamily projects. where MAC: Failed to obtain and 25. Loan Correspondents Incorporated, 31. North Carolina Housing Finance properly analyze the documents d/b/a Capital Funding Group, Costa Agency, Raleigh, NC [Docket No. 03– necessary to determine the financial Mesa, CA [Docket No. 00–1349–MR] 3109–MR] capacity of a non-profit borrower; Action: Settlement Agreement signed charged borrowers fees not permitted by Action: Settlement Agreement signed on November 6, 2002. Without HUD/FHA; failed to identify the lender on June 30, 2003. Without admitting admitting fault or liability, Loan credits on the Good Faith Estimate and fault or liability, North Carolina Correspondents Incorporated (LCI), d/b/ HUD–1 Settlement Statement; and failed Housing Finance Agency (NCHFA) a Capital Funding Group, agreed to pay to implement and maintain a Quality agreed to pay an administrative a civil money penalty in the amount of Control Plan in compliance with HUD/ payment in the amount of $3,000. $24,000. FHA requirements. Cause: The Board took this action as Cause: The Board took this action a result of NCHFA’s failure to perform based on the following violations of 28. Mortgage Factory Incorporated, a property inspection on one HUD/FHA- HUD/FHA requirements in the Houston, TX [Docket No. 02–1956–MR] insured multifamily project. origination of HUD/FHA insured loans Action: Settlement Agreement signed 32. Omega Financial Services where LCI: failed to maintain and on April 4, 2003. Without admitting Incorporated, Whittier, CA [Docket No. implement a Quality Control Plan in fault or liability, Mortgage Factory 01–1490–MR] accordance with HUD requirements; Incorporated (MFI) agreed to pay a civil failed to file annual reports regarding money penalty in the amount of Action: On December 5, 2001 the loan application activity in accordance $200,000. Board issued Omega Financial Services with HUD requirements; used falsified Cause: The Board took this action Incorporated (OFSI) a letter documentation and/or conflicting based on the following violations of withdrawing its FHA approval. On information in originating HUD/FHA- HUD/FHA requirements in the April 17, 2002 the Department entered insured loans; failed to adequately origination of HUD/FHA-insured loans into a Settlement Agreement with OFSI document the source of funds used for where MFI: Used prohibited third party in which, without admitting fault or the down payment and closing costs; originators to originate HUD/FHA- liability, they agreed to pay a civil
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money penalty in the amount of 36. Sterling Capital Mortgage Company, adequate compensating factors; failed to $30,000. Houston, TX [Docket No. 02–1910–MR] properly document factors to justify the Cause: The Board took this action Action: Settlement Agreement signed approval of a mortgagor with based on the following violations of on September 29, 2003. Without unacceptable credit history; failed to HUD/FHA requirements in the admitting fault or liability, Sterling clarify or document important file origination of HUD/FHA insured loans Capital Mortgage Company (SCMC) discrepancies; closed loans in excess of where OFSI: failed to maintain and agreed to indemnify HUD on 44 HUD/ the maximum allowable amount implement a quality control plan in FHA-insured loans and pay HUD an resulting in over-insured mortgages; failed to document that dwellings compliance with HUD requirements; administrative payment in the amount insured under section 221(d)(2) used falsified documentation and/or of $25,000. conflicting information in originating Cause: The Board took this action conformed to the standards of local housing codes; and failed to comply nine loans; negotiated employment based on the following violations of with escrow procedures for deferred agreements which did not conform to HUD/FHA requirements in the repairs. HUD requirements; and failed to notify origination of HUD/FHA-insured loans HUD of its change of address and where SCMC: used falsified 38. Sun American Mortgage Company, change of officers. documentation and/or conflicting Mesa, AZ [Docket No. 00–1328–MR] 33. PFC Corporation, McLean, VA information in originating loans and Action: Settlement Agreement signed [Docket No. 03–3018-MR] obtained HUD/FHA mortgage insurance; on September 6, 2002. Without allowed loans to be originated by admitting fault or liability, Sun Action: Settlement Agreement signed personnel not employed or not American Mortgage Company (SAMC) on June 30, 2003. Without admitting exclusively employed by SCMC; agreed to pay an administrative fault or liability, PFC Corporation violated HUD regulations governing payment to the Department in the (PFCC) agreed to pay an administrative conflict of interest; failed to adequately amount of $50,000 and indemnify payment in the amount of $30,000. verify the amount and/or stability of nineteen FHA-insured mortgages. Cause: The Board took this action as effective income; failed to adequately Cause: The Board took this action a result of PFCC’s failure to perform verify the source and/or adequacy of based on the following violations of property inspections on HUD/FHA- funds used to close loan transactions; HUD/FHA requirements in the insured multifamily projects. omitted and/or understated mortgagor origination of HUD/FHA insured loans liabilities in loan qualifications; failed where SAMC: permitted interested third 34. Priority Mortgage Incorporated, Las to adequately confirm the identity of parties to conduct the face to face Vegas, NV [Docket No. 00–1338–MR] mortgagors and obtain credit reports for interview; failed to identify and resolve Action: On March 19, 2002, the Board all name variances; failed to reconcile conflicting or inaccurate information sent a letter to Priority Mortgage deficiencies in appraisal reports; closed obtained in connection with mortgagor’s Incorporated (PMI) withdrawing its loans in excess of the maximum applications; failed to follow HUD/FHA HUD/FHA approval for a period of five allowable mortgage amount resulting in requirements and prudent lending years. over-insured mortgages; failed to practices by permitting a loan officer to reconcile important file discrepancies; Cause: The Board took this action originate loans involving a real estate charged mortgagors prohibited fees; and based on the following violations of the firm owned by members of the loan failed to verify mortgagors’ Social HUD/FHA requirements in the officer’s family; knowingly submitted Security numbers. origination of HUD/FHA-insured loans loans to HUD/FHA for insurance where PMI: failed to maintain and 37. Summit Mortgage Corporation, containing false information; closed implement a quality control plan in Houston, TX [Docket No. 01–1524–MR] loans on properties owned by HUD in compliance with HUD requirements; which the lender charged the Action: Settlement Agreement signed Department financing and/or closing failed to file annual reports regarding on March 5, 2003. Without admitting FHA loan application activity as costs that exceeded reasonable and fault or liability, Summit Mortgage customary costs in the areas in which required by HUD’s requirements; failed Company (SMC) agreed to pay a civil to have mortgagors certify their the properties were located; and failed money penalty in the amount of to properly implement a quality control statements explaining derogatory credit; $88,000, and indemnify HUD on 28 failed to ensure that mortgagors did not program in compliance with HUD/FHA FHA-insured loans for five years. requirements. sign blank documents; and failed to Cause: The Board took this action obtain gift letters in compliance with based on the following violations of 39. Swan Investments International HUD’s requirements. HUD/FHA requirements in the Incorporated, d/b/a International 35. Rhode Island Housing Mortgage origination of HUD/FHA-insured loans Mortgage Corporation, Covina, CA Finance Corporation, Providence, RI including where SMC: failed to verify [Docket No. 01–1542–MR] [Docket No. 02–2154–MR] the source of funds used for closing Action: Settlement Agreement signed costs, earnest money deposits and/or on June 18, 2002. Without admitting Action: Settlement Agreement signed pay off debts; used inaccurate or fault or liability, Swan Investments on April 3, 2003. Without admitting unstable income to qualify the International Incorporated (SIII) agreed fault or liability, Rhode Island Housing mortgagors; used inaccurate or unstable to pay a civil money penalty in the Mortgage Finance Corporation income to qualify the mortgagors; failed amount of $40,000 and indemnify HUD (RIHMFC) agreed to pay an to adequately document the mortgagor’s on one HUD/FHA-insured mortgage. administrative payment in the amount income; omitted mortgagor liabilities Cause: The Board took this action of $30,000. and/or the liabilities of the non- based on the following violations of the Cause: The Board took this action as purchasing spouse in loan HUD/FHA requirements in the a result of RIHMFC’s failure to perform qualifications; approved loans for origination of HUD/FHA insured loans property inspections on HUD/FHA- ineligible borrowers; approved loans in where SIII: Failed to maintain and insured multifamily projects. excess of benchmark ratios without implement a quality control plan in
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compliance with HUD requirements; 10(a)(1)(B) of the Endangered Species Commission; 1 to be assured of failed to file annual reports regarding Act of 1973 (16 U.S.C. 1539), as consideration, the deadline for FHA loan application activity as amended, Preble’s meadow jumping responses is April 20, 2004. Comments required by HUD’s requirements; mouse (Zapus hudsonius preblei), on the adequacy of responses may be executed a Real Estate Broker pursuant to the terms of the filed with the Commission by May 14, Agreement with its loan officers that is ‘‘Environmental Assessment/Habitat 2004. For further information not in compliance with HUD Conservation Plan for Issuance of an concerning the conduct of this review requirements; allowed non-employees Endangered Species Section 10(a)(1)(B) and rules of general application, consult to originate HUD/FHA mortgage loans; Permit for the Incidental Take of the the Commission’s Rules of Practice and and failed to ensure that its employees Preble’s Meadow Jumping Mouse Procedure, part 201, subparts A through work exclusively for SIII. (Zapus hudsonius preblei) for a Portion E (19 CFR part 201), and part 207, of the Meadows Property in Douglas subparts A, D, E, and F (19 CFR part 40. Western Fidelity Mortgage County, Colorado.’’ 207). Company, Salt Lake City, UT [Docket Notice is hereby given that on No. 01–1585–MR] DATES: Effective: March 1, 2004. February 17, 2004, as authorized by the FOR FURTHER INFORMATION CONTACT: Action: Settlement Agreement signed provisions of the Endangered Species Megan Spellacy (202–205–3190) or on January 27, 2003. Without admitting Act, the Service issued a permit (TE– Mary Messer (202–205–3193), Office of fault or liability, Western Fidelity 064965–0) to the above named party Investigations, U.S. International Trade Mortgage Company (WFMC) agreed to subject to certain conditions set forth Commission, 500 E Street SW., pay a civil money penalty in the amount therein. The permit was granted only Washington, DC 20436. Hearing- of $100,000, indemnify HUD on 28t after the Service determined that it was impaired persons can obtain FHA-insured mortgages. applied for in good faith, that granting information on this matter by contacting Cause: The Board took this action the permit would not be to the the Commission’s TDD terminal on 202– based on the following violations of the disadvantage of the threatened species, 205–1810. Persons with mobility HUD/FHA requirements in the and that it would be consistent with the impairments who will need special origination of HUD/FHA insured loans purposes and policy set forth in the assistance in gaining access to the where WFMC: Failed to establish an Endangered Species Act, as amended. Commission should contact the Office FHA approved loan correspondent/ Additional information on this permit of the Secretary at 202–205–2000. sponsor relationship; failed to properly action may be requested by contacting General information concerning the verify the source and/or adequacy of the Colorado Field Office, 755 Parfet Commission may also be obtained by funds for the down payment and/or Street, Suite 361, Lakewood, Colorado accessing its Internet server (http:// closing costs; failed to properly verify 80215, telephone (303) 275–2370 www.usitc.gov). The public record for and analyze income; failed to ensure between the hours of 7 a.m. and 4:30 this review may be viewed on the property eligibility for HUD/FHA p.m. weekdays. Commission’s electronic docket (EDIS) mortgage insurance; and failed to ensure at http://edis.usitc.gov. creditworthiness and the use of Dated: February 17, 2004. acceptable qualifying ratios. Ralph O. Morgenweck, SUPPLEMENTARY INFORMATION: Regional Director, Region 6. Background.—On March 22, 1984, the Dated: February 20, 2004. [FR Doc. 04–4448 Filed 2–27–04; 8:45 am] Department of Commerce issued an John C. Weicher, antidumping duty order on imports of BILLING CODE 4310–55–P Assistant Secretary for Housing-Federal chloropicrin from China (49 FR 10691). Housing Commissioner, Chairman, Mortgagee Following five-year reviews by Review Board. Commerce and the Commission, [FR Doc. 04–4418 Filed 2–27–04; 8:45 am] INTERNATIONAL TRADE effective April 14, 1999, Commerce BILLING CODE 4210–27–P COMMISSION issued a continuation of the antidumping duty order on imports of [Investigation No. 731–TA–130 (Review)] chloropicrin from China (64 FR 42655, DEPARTMENT OF THE INTERIOR August 5, 1999). The Commission is Chloropicrin from China now conducting a second review to Fish and Wildlife Service determine whether revocation of the AGENCY: United States International order would be likely to lead to Issuance of Permit for Incidental Take Trade Commission. continuation or recurrence of material of Threatened Species for a Portion of ACTION: Institution of a five-year review injury to the domestic industry within the Meadows Property, Douglas concerning the antidumping duty order a reasonably foreseeable time. It will County, CO investigation on chloropicrin from assess the adequacy of interested party AGENCY: Fish and Wildlife Service, China. responses to this notice of institution to Interior. determine whether to conduct a full SUMMARY: The Commission hereby gives ACTION: Notice of issuance of permit for review or an expedited review. The notice that it has instituted a review Commission’s determination in any incidental take of endangered species. pursuant to section 751(c) of the Tariff SUMMARY: On December 18, 2002, a Act of 1930 (19 U.S.C. 1675(c)) (the Act) 1 No response to this request for information is notice was published in the Federal to determine whether revocation of the required if a currently valid Office of Management antidumping duty order on chloropicrin and Budget (OMB) number is not displayed; the Register (67 FR 77507), that an OMB number is 3117–0016/USITC No. 04–5–082, application had been filed with the U.S. from China would be likely to lead to expiration date June 30, 2005. Public reporting Fish and Wildlife Service (Service) continuation or recurrence of material burden for the request is estimated to average 7 jointly by the Castle Rock Development injury. Pursuant to section 751(c)(2) of hours per response. Please send comments the Act, interested parties are requested regarding the accuracy of this burden estimate to Company and Castle Rock Land the Office of Investigations, U.S. International Trade Company, LLC, for a permit to to respond to this notice by submitting Commission, 500 E Street, SW., Washington, DC incidentally take, under section the information specified below to the 20436.
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expedited review will be based on the original investigation for purposes of 19 2004. All written submissions must facts available, which may include CFR 201.15 and 18 U.S.C. 207, the post conform with the provisions of sections information provided in response to this employment statute for Federal 201.8 and 207.3 of the Commission’s notice. employees. Former employees may seek rules and any submissions that contain Definitions.—The following informal advice from Commission ethics BPI must also conform with the definitions apply to this review: officials with respect to this and the requirements of sections 201.6 and (1) Subject Merchandise is the class or related issue of whether the employee’s 207.7 of the Commission’s rules. The kind of merchandise that is within the participation was ‘‘personal and Commission’s rules do not authorize scope of the five-year review, as defined substantial.’’ However, any informal filing of submissions with the Secretary by the Department of Commerce. consultation will not relieve former by facsimile or electronic means, except (2) The Subject Country in this review employees of the obligation to seek to the extent permitted by section 201.8 is China. approval to appear from the of the Commission’s rules, as amended, (3) The Domestic Like Product is the Commission under its rule 201.15. For 67 FR 68036 (November 8, 2002). Also, domestically produced product or ethics advice, contact Carol McCue in accordance with sections 201.16(c) products which are like, or in the Verratti, Deputy Agency Ethics Official, and 207.3 of the Commission’s rules, absence of like, most similar in at 202–205–3088. each document filed by a party to the characteristics and uses with, the Limited disclosure of business review must be served on all other Subject Merchandise. In its original proprietary information (BPI) under an parties to the review (as identified by determination and its expedited five- administrative protective order (APO) either the public or APO service list as year review determination, the and APO service list.—Pursuant to appropriate), and a certificate of service Commission defined the Domestic Like section 207.7(a) of the Commission’s must accompany the document (if you Product as chloropicrin. rules, the Secretary will make BPI (4) The Domestic Industry is the U.S. are not a party to the review you do not submitted in this review available to need to serve your response). producers as a whole of the Domestic authorized applicants under the APO Like Product, or those producers whose Inability to provide requested issued in the review, provided that the information.—Pursuant to section collective output of the Domestic Like application is made no later than 21 Product constitutes a major proportion 207.61(c) of the Commission’s rules, any days after publication of this notice in interested party that cannot furnish the of the total domestic production of the the Federal Register. Authorized product. In its original determination information requested by this notice in applicants must represent interested the requested form and manner shall and its expedited five-year review parties, as defined in 19 U.S.C. 1677(9), determination, the Commission defined notify the Commission at the earliest who are parties to the review. A possible time, provide a full explanation the Domestic Industry as all domestic separate service list will be maintained producers of chloropicrin. of why it cannot provide the requested by the Secretary for those parties information, and indicate alternative (5) An Importer is any person or firm authorized to receive BPI under the engaged, either directly or through a forms in which it can provide APO. equivalent information. If an interested parent company or subsidiary, in Certification.—Pursuant to section party does not provide this notification importing the Subject Merchandise into 207.3 of the Commission’s rules, any (or the Commission finds the the United States from a foreign person submitting information to the manufacturer or through its selling Commission in connection with this explanation provided in the notification agent. review must certify that the information inadequate) and fails to provide a Participation in the review and public is accurate and complete to the best of complete response to this notice, the service list.—Persons, including the submitter’s knowledge. In making Commission may take an adverse industrial users of the Subject the certification, the submitter will be inference against the party pursuant to Merchandise and, if the merchandise is deemed to consent, unless otherwise section 776(b) of the Act in making its sold at the retail level, representative specified, for the Commission, its determination in the review. consumer organizations, wishing to employees, and contract personnel to Information To Be Provided in participate in the review as parties must use the information provided in any Response to This Notice of Institution: file an entry of appearance with the other reviews or investigations of the As used below, the term ‘‘firm’’ includes Secretary to the Commission, as same or comparable products which the any related firms. provided in section 201.11(b)(4) of the Commission conducts under Title VII of (1) The name and address of your firm Commission’s rules, no later than 21 the Act, or in internal audits and or entity (including World Wide Web days after publication of this notice in investigations relating to the programs address if available) and name, the Federal Register. The Secretary will and operations of the Commission telephone number, fax number, and E- maintain a public service list containing pursuant to 5 U.S.C. Appendix 3. mail address of the certifying official. the names and addresses of all persons, Written submissions.—Pursuant to (2) A statement indicating whether or their representatives, who are parties section 207.61 of the Commission’s your firm/entity is a U.S. producer of to the review. rules, each interested party response to the Domestic Like Product, a U.S. union Former Commission employees who this notice must provide the information or worker group, a U.S. importer of the are seeking to appear in Commission specified below. The deadline for filing Subject Merchandise, a foreign producer five-year reviews are reminded that they such responses is April 20, 2004. or exporter of the Subject Merchandise, are required, pursuant to 19 CFR 201.15, Pursuant to section 207.62(b) of the a U.S. or foreign trade or business to seek Commission approval if the Commission’s rules, eligible parties (as association, or another interested party matter in which they are seeking to specified in Commission rule (including an explanation). If you are a appear was pending in any manner or 207.62(b)(1)) may also file comments union/worker group or trade/business form during their Commission concerning the adequacy of responses to association, identify the firms in which employment. The Commission is the notice of institution and whether the your workers are employed or which are seeking guidance as to whether a second Commission should conduct an members of your association. transition five-year review is the ‘‘same expedited or full review. The deadline (3) A statement indicating whether particular matter’’ as the underlying for filing such comments is May 14, your firm/entity is willing to participate
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in this review by providing information of U.S. imports and, if known, an products; and the level of competition requested by the Commission. estimate of the percentage of total U.S. among the Domestic Like Product (4) A statement of the likely effects of imports of Subject Merchandise from produced in the United States, Subject the revocation of the antidumping duty the Subject Country accounted for by Merchandise produced in the Subject order on the Domestic Industry in your firm’s(s’) imports; Country, and such merchandise from general and/or your firm/entity (b) the quantity and value (f.o.b. U.S. other countries. specifically. In your response, please port, including antidumping and/or (11) (Optional) A statement of discuss the various factors specified in countervailing duties) of U.S. whether you agree with the above section 752(a) of the Act (19 U.S.C. commercial shipments of Subject definitions of the Domestic Like Product 1675a(a)) including the likely volume of Merchandise imported from the Subject and Domestic Industry; if you disagree subject imports, likely price effects of Country; and with either or both of these definitions, subject imports, and likely impact of (c) the quantity and value (f.o.b. U.S. please explain why and provide imports of Subject Merchandise on the port, including antidumping and/or alternative definitions. Domestic Industry. countervailing duties) of U.S. internal consumption/company transfers of Authority: This review is being conducted (5) A list of all known and currently under authority of title VII of the Tariff Act operating U.S. producers of the Subject Merchandise imported from the of 1930; this notice is published pursuant to Domestic Like Product. Identify any Subject Country. section 207.61 of the Commission’s rules. known related parties and the nature of (9) If you are a producer, an exporter, By order of the Commission. the relationship as defined in section or a trade/business association of 771(4)(B) of the Act (19 U.S.C. producers or exporters of the Subject Issued: February 23, 2004. 1677(4)(B)). Merchandise in the Subject Country, Marilyn R. Abbott, (6) A list of all known and currently provide the following information on Secretary to the Commission. operating U.S. importers of the Subject your firm’s(s’) operations on that [FR Doc. 04–4500 Filed 2–27–04; 8:45 am] Merchandise and producers of the product during calendar year 2003 BILLING CODE 7020–02–P Subject Merchandise in the Subject (report quantity data in pounds and Country that currently export or have value data in U.S. dollars, landed and exported Subject Merchandise to the duty-paid at the U.S. port but not INTERNATIONAL TRADE United States or other countries since including antidumping or COMMISSION countervailing duties). If you are a 1997. [Investigation No. 731–TA–101 (Review)] (7) If you are a U.S. producer of the trade/business association, provide the Domestic Like Product, provide the information, on an aggregate basis, for Greige Polyester/Cotton Printcloth following information on your firm’s the firms which are members of your From China operations on that product during association. calendar year 2003 (report quantity data (a) Production (quantity) and, if AGENCY: United States International in pounds and value data in U.S. known, an estimate of the percentage of Trade Commission. dollars, f.o.b. plant). If you are a union/ total production of Subject Merchandise ACTION: Institution of a five-year review worker group or trade/business in the Subject Country accounted for by concerning the antidumping duty order association, provide the information, on your firm’s(s’) production; and on greige polyester/cotton printcloth an aggregate basis, for the firms in (b) the quantity and value of your from China. which your workers are employed/ firm’s(s’) exports to the United States of which are members of your association. Subject Merchandise and, if known, an SUMMARY: The Commission hereby gives (a) Production (quantity) and, if estimate of the percentage of total notice that it has instituted a review known, an estimate of the percentage of exports to the United States of Subject pursuant to section 751(c) of the Tariff total U.S. production of the Domestic Merchandise from the Subject Country Act of 1930 (19 U.S.C. 1675(c)) (the Act) Like Product accounted for by your accounted for by your firm’s(s’) exports. to determine whether revocation of the firm’s(s’) production; (10) Identify significant changes, if antidumping duty order on greige (b) the quantity and value of U.S. any, in the supply and demand polyester/cotton printcloth from China commercial shipments of the Domestic conditions or business cycle for the would be likely to lead to continuation Like Product produced in your U.S. Domestic Like Product that have or recurrence of material injury. plant(s); and occurred in the United States or in the Pursuant to section 751(c)(2) of the Act, (c) the quantity and value of U.S. market for the Subject Merchandise in interested parties are requested to internal consumption/company the Subject Country after 1997, and respond to this notice by submitting the transfers of the Domestic Like Product significant changes, if any, that are information specified below to the produced in your U.S. plant(s). likely to occur within a reasonably Commission; 1 to be assured of (8) If you are a U.S. importer or a foreseeable time. Supply conditions to consideration, the deadline for trade/business association of U.S. consider include technology; responses is April 20, 2004. Comments importers of the Subject Merchandise production methods; development on the adequacy of responses may be from the Subject Country, provide the efforts; ability to increase production filed with the Commission by May 14, following information on your firm’s(s’) (including the shift of production 2004. For further information operations on that product during facilities used for other products and the calendar year 2003 (report quantity data use, cost, or availability of major inputs 1 No response to this request for information is in pounds and value data in U.S. into production); and factors related to required if a currently valid Office of Management and Budget (OMB) number is not displayed; the dollars). If you are a trade/business the ability to shift supply among OMB number is 3117–0016/USITC No. 04–5–083, association, provide the information, on different national markets (including expiration date June 30, 2005. Public reporting an aggregate basis, for the firms which barriers to importation in foreign burden for the request is estimated to average 7 are members of your association. markets or changes in market demand hours per response. Please send comments regarding the accuracy of this burden estimate to (a) The quantity and value (landed, abroad). Demand conditions to consider the Office of Investigations, U.S. International Trade duty-paid but not including include end uses and applications; the Commission, 500 E Street, SW., Washington, DC antidumping or countervailing duties) existence and availability of substitute 20436.
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concerning the conduct of this review absence of like, most similar in officials with respect to this and the and rules of general application, consult characteristics and uses with, the related issue of whether the employee’s the Commission’s Rules of Practice and Subject Merchandise. In its original participation was ‘‘personal and Procedure, part 201, subparts A through determination, the Commission defined substantial.’’ However, any informal E (19 CFR part 201), and part 207, the Domestic Like Product as greige consultation will not relieve former subparts A, D, E, and F (19 CFR part polyester/cotton printcloth in chief employees of the obligation to seek 207). value of cotton. In its expedited five- approval to appear from the DATES: Effective March 1, 2004. year review determination, the Commission under its rule 201.15. For FOR FURTHER INFORMATION CONTACT: Commission defined the Domestic Like ethics advice, contact Carol McCue Megan Spellacy (202–205–3190) or Product as the same as Commerce’s Verratti, Deputy Agency Ethics Official, Mary Messer (202–205–3193), Office of scope, i.e., greige polyester/cotton at 202–205–3088. Limited disclosure of business Investigations, U.S. International Trade printcloth of chief weight cotton. (4) The Domestic Industry is the U.S. proprietary information (BPI) under an Commission, 500 E Street SW., producers as a whole of the Domestic administrative protective order (APO) Washington, DC 20436. Hearing- Like Product, or those producers whose and APO service list.—Pursuant to impaired persons can obtain collective output of the Domestic Like section 207.7(a) of the Commission’s information on this matter by contacting Product constitutes a major proportion rules, the Secretary will make BPI the Commission’s TDD terminal on 202– of the total domestic production of the submitted in this review available to 205–1810. Persons with mobility product. In its original determination, authorized applicants under the APO impairments who will need special the Commission defined the Domestic issued in the review, provided that the assistance in gaining access to the Industry as all domestic producers of application is made no later than 21 Commission should contact the Office greige polyester/cotton printcloth in days after publication of this notice in of the Secretary at 202–205–2000. chief value of cotton. In its expedited the Federal Register. Authorized General information concerning the five-year review determination, the applicants must represent interested Commission may also be obtained by Commission defined the Domestic parties, as defined in 19 U.S.C. 1677(9), accessing its Internet server (http:// Industry as all domestic producers of who are parties to the review. A www.usitc.gov). The public record for greige polyester/cotton printcloth of separate service list will be maintained this review may be viewed on the chief weight cotton. by the Secretary for those parties Commission’s electronic docket (EDIS) (5) An Importer is any person or firm authorized to receive BPI under the at http://edis.usitc.gov. engaged, either directly or through a APO. SUPPLEMENTARY INFORMATION: parent company or subsidiary, in Certification.—Pursuant to section Background.—On September 16, importing the Subject Merchandise into 207.3 of the Commission’s rules, any 1983, the Department of Commerce the United States from a foreign person submitting information to the issued an antidumping duty order on manufacturer or through its selling Commission in connection with this imports of greige polyester/cotton agent. review must certify that the information printcloth from China (48 FR 41614). Participation in the review and public is accurate and complete to the best of Following five-year reviews by service list.—Persons, including the submitter’s knowledge. In making Commerce and the Commission, industrial users of the Subject the certification, the submitter will be effective April 26, 1999, Commerce Merchandise and, if the merchandise is deemed to consent, unless otherwise issued a continuation of the sold at the retail level, representative specified, for the Commission, its antidumping duty order on imports of consumer organizations, wishing to employees, and contract personnel to greige polyester/cotton printcloth from participate in the review as parties must use the information provided in any China (64 FR 42661, August 5, 1999). file an entry of appearance with the other reviews or investigations of the The Commission is now conducting a Secretary to the Commission, as same or comparable products which the second review to determine whether provided in section 201.11(b)(4) of the Commission conducts under Title VII of revocation of the order would be likely Commission’s rules, no later than 21 the Act, or in internal audits and to lead to continuation or recurrence of days after publication of this notice in investigations relating to the programs material injury to the domestic industry the Federal Register. The Secretary will and operations of the Commission within a reasonably foreseeable time. It maintain a public service list containing pursuant to 5 U.S.C. Appendix 3. will assess the adequacy of interested the names and addresses of all persons, Written submissions.—Pursuant to party responses to this notice of or their representatives, who are parties section 207.61 of the Commission’s institution to determine whether to to the review. rules, each interested party response to conduct a full review or an expedited Former Commission employees who this notice must provide the information review. The Commission’s are seeking to appear in Commission specified below. The deadline for filing determination in any expedited review five-year reviews are reminded that they such responses is April 20, 2004. will be based on the facts available, are required, pursuant to 19 CFR 201.15, Pursuant to section 207.62(b) of the which may include information to seek Commission approval if the Commission’s rules, eligible parties (as provided in response to this notice. matter in which they are seeking to specified in Commission rule Definitions.—The following appear was pending in any manner or 207.62(b)(1)) may also file comments definitions apply to this review: form during their Commission concerning the adequacy of responses to (1) Subject Merchandise is the class or employment. The Commission is the notice of institution and whether the kind of merchandise that is within the seeking guidance as to whether a second Commission should conduct an scope of the five-year review, as defined transition five-year review is the ‘‘same expedited or full review. The deadline by the Department of Commerce. particular matter’’ as the underlying for filing such comments is May 14, (2) The Subject Country in this review original investigation for purposes of 19 2004. All written submissions must is China. CFR 201.15 and 18 U.S.C. 207, the post conform with the provisions of sections (3) The Domestic Like Product is the employment statute for Federal 201.8 and 207.3 of the Commission’s domestically produced product or employees. Former employees may seek rules and any submissions that contain products which are like, or in the informal advice from Commission ethics BPI must also conform with the
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requirements of sections 201.6 and specifically. In your response, please (b) the quantity and value (f.o.b. U.S. 207.7 of the Commission’s rules. The discuss the various factors specified in port, including antidumping and/or Commission’s rules do not authorize section 752(a) of the Act (19 U.S.C. countervailing duties) of U.S. filing of submissions with the Secretary 1675a(a)) including the likely volume of commercial shipments of Subject by facsimile or electronic means, except subject imports, likely price effects of Merchandise imported from the Subject to the extent permitted by section 201.8 subject imports, and likely impact of Country; and of the Commission’s rules, as amended, imports of Subject Merchandise on the (c) the quantity and value (f.o.b. U.S. 67 FR 68036 (November 8, 2002). Also, Domestic Industry. port, including antidumping and/or in accordance with sections 201.16(c) (5) A list of all known and currently countervailing duties) of U.S. internal and 207.3 of the Commission’s rules, operating U.S. producers of the consumption/company transfers of each document filed by a party to the Domestic Like Product. Identify any Subject Merchandise imported from the review must be served on all other known related parties and the nature of Subject Country. parties to the review (as identified by the relationship as defined in section (9) If you are a producer, an exporter, either the public or APO service list as 771(4)(B) of the Act (19 U.S.C. or a trade/business association of appropriate), and a certificate of service 1677(4)(B)). producers or exporters of the Subject must accompany the document (if you (6) A list of all known and currently Merchandise in the Subject Country, are not a party to the review you do not operating U.S. importers of the Subject provide the following information on need to serve your response). Merchandise and producers of the your firm’s(s’) operations on that Inability to provide requested Subject Merchandise in the Subject product during calendar year 2003 information.—Pursuant to section Country that currently export or have (report quantity data in square yards 207.61(c) of the Commission’s rules, any exported Subject Merchandise to the and value data in U.S. dollars, landed interested party that cannot furnish the United States or other countries after and duty-paid at the U.S. port but not information requested by this notice in 1997. including antidumping or the requested form and manner shall (7) If you are a U.S. producer of the countervailing duties). If you are a notify the Commission at the earliest Domestic Like Product, provide the trade/business association, provide the possible time, provide a full explanation following information on your firm’s information, on an aggregate basis, for of why it cannot provide the requested operations on that product during the firms which are members of your information, and indicate alternative calendar year 2003 (report quantity data association. forms in which it can provide in square yards and value data in U.S. (a) Production (quantity) and, if equivalent information. If an interested dollars, f.o.b. plant). If you are a union/ known, an estimate of the percentage of party does not provide this notification worker group or trade/business total production of Subject Merchandise (or the Commission finds the association, provide the information, on in the Subject Country accounted for by explanation provided in the notification an aggregate basis, for the firms in your firm’s(s’) production; and inadequate) and fails to provide a which your workers are employed/ complete response to this notice, the (b) the quantity and value of your which are members of your association. Commission may take an adverse firm’s(s’) exports to the United States of (a) Production (quantity) and, if inference against the party pursuant to Subject Merchandise and, if known, an known, an estimate of the percentage of section 776(b) of the Act in making its estimate of the percentage of total total U.S. production of the Domestic determination in the review. exports to the United States of Subject Information to Be Provided in Like Product accounted for by your Merchandise from the Subject Country Response to This Notice of Institution: firm’s(s’) production; accounted for by your firm’s(s’) exports. As used below, the term ‘‘firm’’ includes (b) the quantity and value of U.S. (10) Identify significant changes, if any related firms. commercial shipments of the Domestic any, in the supply and demand (1) The name and address of your firm Like Product produced in your U.S. conditions or business cycle for the or entity (including World Wide Web plant(s); and Domestic Like Product that have address if available) and name, (c) the quantity and value of U.S. occurred in the United States or in the telephone number, fax number, and E- internal consumption/company market for the Subject Merchandise in mail address of the certifying official. transfers of the Domestic Like Product the Subject Country after 1997, and (2) A statement indicating whether produced in your U.S. plant(s). significant changes, if any, that are your firmentity is a U.S. producer of the (8) If you are a U.S. importer or a likely to occur within a reasonably Domestic Like Product, a U.S. union or trade/business association of U.S. foreseeable time. Supply conditions to worker group, a U.S. importer of the importers of the Subject Merchandise consider include technology; Subject Merchandise, a foreign producer from the Subject Country, provide the production methods; development or exporter of the Subject Merchandise, following information on your firm’s(s’) efforts; ability to increase production a U.S. or foreign trade or business operations on that product during (including the shift of production association, or another interested party calendar year 2003 (report quantity data facilities used for other products and the (including an explanation). If you are a in square yards and value data in U.S. use, cost, or availability of major inputs unionworker group or tradebusiness dollars). If you are a trade/business into production); and factors related to association, identify the firms in which association, provide the information, on the ability to shift supply among your workers are employed or which are an aggregate basis, for the firms which different national markets (including members of your association. are members of your association. barriers to importation in foreign (3) A statement indicating whether (a) The quantity and value (landed, markets or changes in market demand your firmentity is willing to participate duty-paid but not including abroad). Demand conditions to consider in this review by providing information antidumping or countervailing duties) include end uses and applications; the requested by the Commission. of U.S. imports and, if known, an existence and availability of substitute (4) A statement of the likely effects of estimate of the percentage of total U.S. products; and the level of competition the revocation of the antidumping duty imports of Subject Merchandise from among the Domestic Like Product order on the Domestic Industry in the Subject Country accounted for by produced in the United States, Subject general andor your firmentity your firm’s(s’) imports; Merchandise produced in the Subject
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Country, and such merchandise from Act. Parties that filed entries of INTERNATIONAL TRADE other countries. appearance in the preliminary phase of COMMISSION (11) (OPTIONAL) A statement of the investigation need not enter a [USITC SE–04–005] whether you agree with the above separate appearance for the final phase definitions of the Domestic Like Product of the investigation. Industrial users, Government in the Sunshine Act and Domestic Industry; if you disagree and, if the merchandise under Meeting with either or both of these definitions, investigation is sold at the retail level, please explain why and provide representative consumer organizations AGENCY: United States International alternative definitions. have the right to appear as parties in Trade Commission. Authority: This review is being conducted Commission antidumping and DATES: March 8, 2004. under authority of title VII of the Tariff Act countervailing duty investigations. The ORIGINAL TIME: 11 a.m. of 1930; this notice is published pursuant to Secretary will prepare a public service NEW TIME: 10:30 a.m. section 207.61 of the Commission’s rules. list containing the names and addresses PLACE: Room 101, 500 E Street, SW., By order of the Commission. of all persons, or their representatives, Washington, DC 20436, Telephone: Issued: February 23, 2004. who are parties to the investigation. (202) 205–2000. Marilyn R. Abbott, Background STATUS: Open to the public. Secretary to the Commission. In accordance with 19 CFR [FR Doc. 04–4499 Filed 2–27–04; 8:45 am] On January 8, 2004, a petition was 201.35(d)(1), the Commission has BILLING CODE 7020–02–P filed with the Commission and determined to change the time for the Commerce by Mercury Marine, a meeting of March 8, 2004 from 11 a.m. division of Brunswick Corp., Fond du to 10:30 a.m. INTERNATIONAL TRADE Lac, WI, alleging that an industry in the COMMISSION By order of the Commission: United States is materially injured and Issued: February 26, 2004. [Investigation No. 731–TA–1069 threatened with material injury by Marilyn R. Abbott, (Preliminary)] reason of LTFV imports of outboard Secretary to the Commission. engines and powerheads from Japan. Outboard Engines From Japan [FR Doc. 04–4630 Filed 2–26–04; 2:13 pm] Accordingly, effective January 8, 2004, BILLING CODE 7020–02–P Determination the Commission instituted antidumping duty investigation No. 731–TA–1069 On the basis of the record 1 developed in the subject investigation, the United (Preliminary). DEPARTMENT OF LABOR States International Trade Commission Notice of the institution of the (Commission) determines, pursuant to Commission’s investigation and of a Occupational Safety and Health section 733(a) of the Tariff Act of 1930 public conference to be held in Administration (19 U.S.C. 1673b(a)) (the Act), that there connection therewith was given by Changes to State Plans: Approval of is a reasonable indication that an posting copies of the notice in the Office Oregon State Standards industry in the United States is of the Secretary, U.S. International materially injured by reason of imports Trade Commission, Washington, DC, AGENCY: Occupational Safety and Health from Japan of outboard engines and and by publishing the notice in the Administration (OSHA), Labor. powerheads, provided for in subheading Federal Register of January 14, 2004 (69 ACTION: Notice of approval of Oregon 8407.21.00 of the Harmonized Tariff FR 2158). The conference was held in State standards. Schedule of the United States, that are Washington, DC, on January 29, 2004, alleged to be sold in the United States and all persons who requested the SUMMARY: The Occupational Safety and at less than fair value (LTFV). opportunity were permitted to appear in Health Administration (OSHA) is Commencement of Final Phase person or by counsel. approving amendments to 18 standards Investigation promulgated by the Oregon Department The Commission transmitted its of Consumer and Business Services Pursuant to § 207.18 of the determination in this investigation to pursuant to its OSHA-approved State Commission’s rules, the Commission the Secretary of Commerce on February Plan. These amendments differ from the also gives notice of the commencement 23, 2004. The views of the Commission equivalent Federal standards of the final phase of its investigation. are contained in USITC Publication amendments but have been determined The Commission will issue a final phase 3673 (March 2004), entitled Outboard to be ‘‘at least as effective’’; no concerns notice of scheduling, which will be Engines from Japan: Investigation No. or objections have been brought to published in the Federal Register as 731–TA–1069 (Preliminary). OSHA’s attention regarding them. provided in § 207.21 of the Issued: February 24, 2004. EFFECTIVE DATE: March 1, 2004. Commission’s rules, upon notice from FOR FURTHER INFORMATION CONTACT: the Department of Commerce By order of the Commission. (Commerce) of an affirmative Marilyn R. Abbott, Barbara Bryant, Director, Office of State Programs, Directorate of Cooperative preliminary determination in the Secretary to the Commission. investigation under section 733(b) of the and State Programs, Occupational Safety [FR Doc. 04–4424 Filed 2–27–04; 8:45 am] and Health Administration, Room N– Act, or, if the preliminary determination BILLING CODE 7020–02–P is negative, upon notice of an 3700, 200 Constitution Avenue, NW., affirmative final determination in that Washington, DC 20210, telephone (202) investigation under section 735(a) of the 693–2244. You may access Oregon’s standards on-line, using the Oregon 1 The record is defined in § 207.2(f) of the standards references noted below, by Commission’s Rules of Practice and Procedure (19 going to www.osha.gov/fso/osp/ CFR 207.2(f)). index.html and selecting ‘‘Oregon.’’ You
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will be directed to Oregon OSHA’s Web Z, Construction (OAR 437–003–1000); TABLE 1: OREGON AIR CONTAMI- site. and Division 4/Z, Agriculture (OAR NANTS: DIFFERENCES FROM FED- SUPPLEMENTARY INFORMATION: 437–004–9000) between November 1993 ERAL—Continued and September 2001 under OR–OSHA I. Introduction Administrative Orders 17–1993, 5–1997, Lower PEL: Emery, 2-Ethoxyethanol A. Background 6–1997, 4–2001 and 9–2001. (When a (Cellosolve), Furfuryl Alcohol, Glass (Fi- brous or dust), Isophrone, Isopropyl Ether, Part 1953 of title 29, Code of Federal 1992 court decision required Federal Methylcyclohexanol, Methylcyclohexanone, Regulations, prescribes procedures OSHA to vacate its 1989 air Octane, Pentane, Stoddard Solvent, under section 18 of the Occupational contaminants standard, Oregon re- Organo Mercury and Toluene Safety and Health Act of 1970 adopted its old air contaminants rules Added ceiling value: Acetic Anhydride (hereinafter called the Act) by which the instead of OSHA’s pre-1989 standard. Shorter duration level: Carbon Disulfide Occupational Safety and Health When Federal OSHA adopted a revised Administration will review and approve standard in 1993, Oregon adopted some 2. Bloodborne Pathogens—Needlestick standards promulgated pursuant to a of the Federal changes but retained a Devices State plan which has been approved in number of its State-initiated provisions.) In response to a Federal standard accordance with section 18(c) of the Act The State air contaminants standards for change, the State has submitted a State and 29 CFR part 1902. On December 28, general industry and construction standard amendment on needlestick 1972, notice was published in the contain Permissible Exposure Limits devices comparable to 29 CFR Federal Register (37 FR 28628) of the (PELs) for 70 chemicals for which 1910.1030, Occupational Exposure to approval of the Oregon plan and the OSHA does not have a PEL, lower PELs Bloodborne Pathogens (66 FR 5318, adoption of subpart D to part 1952 for 13, and additional ceiling limits or January 18, 2001). The State amendment containing the decision and a was adopted September 14, 2001, description of the State’s plan. Section shorter duration levels for two chemicals. Oregon’s air contaminants effective October 18, 2001, under OR– 1953.4(b)(1) provides that when a OSHA Administrative Order 10–2001, standard for agriculture contains a significant change in the Federal and is located in Division 2/Z at OAR program would have an adverse impact shorter list of chemicals, though with 437–002–1910.1030. Oregon’s standard on the ‘‘at least as effective’’ status of the same PELs. (See Table 1.) was previously adopted by reference the State program if a parallel State and contains only two differences added program modification were not made, TABLE 1: OREGON AIR CONTAMI- in 2001, both concerning added State adoption of a change in response NANTS: DIFFERENCES FROM FED- requirements for medical sharps. The to the Federal program change shall be ERAL State-initiated rule at OAR 437–002– required. The Oregon plan provides for 1030 requires employee involvement in adoption of State standards which are at Industries covered: includes Construction as an annual review of safer medical least as effective as comparable Federal well as General Industry, plus a shorter list devices, and requires employee training standards promulgated under section 6 of chemicals for Agriculture. (Federal in the use of safer medical devices of the Act. The Oregon plan also OSHA covers only General Industry.) before they are used. OAR 437–002– provides for the adoption of Federal Added PEL: Abate, Acetylene, Allyl Glycidyl 1035 requires that any employer who is Ether (AGE), Alundum, Asphalt, Boron standards as State standards by required to maintain an Exposure reference. Oregon’s standards, whether Tribromide, Butane, Butyl Lactate, Calcium Arsenate, Caprolactam, Corundum, Cyan- Control Plan must maintain a sharps identical to the Federal or different, are injury log. (Under 29 CFR part 1904 adopted pursuant to State law (ORS ogen, Dibrom, 2-N-Dibutylaminoethanol, Dichloroacetylene, Dichloroethyl Ether, Federal OSHA excludes small 654.025(2), ORS 656.726(3) and ORS Dicyclohexylmethane Diisocyanate, employers or those in low-hazard SICs 183.335). OSHA has reviewed and Dicyclohexylmethane 4,4-Diisocyanate, from recordkeeping requirements, determined that amendments to the Diethylene Triamine, Diisobutyl Ketone, including sharps injuries.) following Oregon standards, while not Dinitrobenzene, Diphenylene, identical to the Federal, are ‘‘at least as Diisocyanate, Diphenylamine, Diquat, Eth- 3. Concrete and Masonry Construction effective’’ as required by section ane, Ethyl Mercaptan, Ethylene, Ethylene On its own initiative, the State 1953.5(a) and have not been the subject Glycol Particulate, Ethylene Glycol, Germa- adopted a change to the Concrete and of any complaints, objections, or nium Tetrahydride, Hexachlorocyclopentadiene, Masonry Construction standard. The controversy brought to OSHA’s State repealed 29 CFR 1926.706(a)(2), attention with regard to their Hexafluoracetone, Hexamethylene Diisocyanate, 1,6 Hexamethylene (5) and (b) and adopted OAR 437–003– effectiveness or burden on interstate Diisocyanate Based Adduct, 1,6 0706 and additional definitions in OAR commerce (section 1953.6(c)). Hexamethylene Diisocyanate, Hydrogen, 437–003–0017 of Division 3/Q. The B. Standards Approved Indene, Indium, Iron Pentacarbonyl, Iron State amendment was adopted on Salts, Isophorone Diisocyanate, Mercury, January 30, 2003, and effective April 30, 1. Air Contaminants Methane, Methylacrylonitrile, Methyl Bro- 2003, under OR–OSHA Administrative In response to revision of the Federal mide, Methyl 2-Cyanoacrylate, Order 1–2003. The State standard was Methylcyclopentadienyl, Methyl Demeton, Air Contaminants standard for general Methyl Mercaptan, Methyl Parathion, Meth- originally approved on December 12, industry, 29 CFR 1910.1000, as yl Silicate, Mineral Wool Fiber, MOCA, 1989 (54 FR 51089). Major differences published in the Federal Register (58 Naphthalene Diisocyanate, Nicotine, Ni- from the Federal standard are: (1) The FR 35338) on June 30, 1993, with trous Oxide, Parafin Wax Fume, State addresses limited access zones for corrections on July 27, 1993 (58 FR Phenothiazine, Phenylphosphine, Pro- reinforced and non-reinforced walls 40191), and August 4, 1997 (62 FR pargyl Alcohol, Propylene Glycol separately. For non-reinforced walls the 42018), Oregon adopted comparable Monomethyl Ether, RDX, Rosin Core Sol- State standard is the same as the changes as well as State-initiated der Pyrolysis Products, Subtilisins, Sulfur Federal. For reinforced walls, the changes to its Air Contaminants Tetrafluoride, Tin Oxide, Toluene limited access zone for the State Diisocyanate, Trimethyl Benzene, Tung- standards in Division 2/Z, General OSH sten, Vinyl Bromide standard extends away from the wall a Rules (OAR 437–002–0382); Division 3/ distance equal to the height of the grout
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pour plus 4 feet. This allows the limited Operations and replaced it with a note standards at 29 CFR 1926.602. Oregon’s access zone to be extended as the wall directing the reader to OAR 437–002– standard was previously approved by gains height. The Federal standard 0161(5), on emergency eyewash and OSHA on July 17, 1987 (52 FR 27077). requires the limited access zone to shower facilities, in Division 2/K, The new rule adds equipment and extend away from the wall a distance Medical and First Aid. The State operator requirements for personnel equal to the height of the wall to be amendment was adopted and effective platforms on lift trucks when there are constructed plus 4 feet. (2) The State on May 30, 2002, under OR–OSHA no controls at the platform. It was also requires the additional safeguard of Administrative Order 4–2002. The adopted and effective May 26, 1999, monitoring wind speeds and removing original State standard was identical to under Administrative Order 6–1999. employees when winds exceed 34 mph. the OSHA standard. The State now has 9. Material Handling and Storage— (3) The State and Federal standards additional and more specific Slings have the same criteria for when bracing requirements for emergency eyewash is required. However, where bracing is and shower facilities, i.e., the location On its own initiative, the State has required, the State requires the requirements for the equipment; the adopted a change related to Slings in employer to have a Registered requirement to follow the Division 2/N, Material Handling and Professional Engineer design a bracing manufacturer’s instructions for Storage, comparable to 29 CFR system or follow the requirements in installation and the manufacturer’s 1910.184. This amendment revises the OAR 437–003–0706(4). The Federal criteria for water pressure, flow rate and chain sling requirement at OAR 437– standard requires walls to be adequately testing; and allowing an alternative 002–0235 to allow other types of chains braced. (4) Additional definitions were eyewash solution with the support of a for lifting in processes where the use of adopted in OAR 437–003–0017. physician board-certified in alloy chains is more hazardous. ophthalmology, toxicology or Oregon’s Material Handling and Storage 4. Construction/Electrical occupational medicine. standard was previously approved on On its own initiative, the State August 25, 2000 (65 FR 51857). The adopted a new rule, OAR 437–003– 7. Electric Power Generation, State amendment was adopted and 0404, Branch circuits for ground-fault Transmission and Distribution—Brush effective on October 26, 2001, under circuit interrupters (GFCI), in Division Chipping OR-OSHA Administrative Order 12– 3/K, Construction/Electrical, to replace On its own initiative, the State 2001. 29 CFR 1926.404(b)(1). The State adopted a change to the Brush Chipping 10. Medical Services and First Aid standard is patterned after the 2002 requirements contained in the Electric edition of the National Electrical Code Power Generation, Transmission and On its own initiative, the State has section 527.6. The State standard was Distribution standards for General adopted amendments at OAR 437–022– adopted on May 30, 2002, and effective Industry (OAR 437 Division 2/R) and for 0161 (in Division 2/K) comparable to 29 August 5, 2002, under OR–OSHA Construction (OAR 437 Division 3/V), CFR 1910.151, Medical Services and Administrative Order 5–2002. The State comparable to 29 CFR 1910.269 and First Aid. Oregon’s standard was standard does not contain the two 1926.950. To promote consistency in previously approved on March 16, 1976 exceptions allowed in the Federal Oregon OSHA’s requirements, the State (41 FR 11087). The current amendments standard addressing portable and consolidated the various rules from each were adopted and effective February 3, vehicle mounted generators and work in division into one rule that applies to all 1993, and January 28, 2000, under fixed industrial establishments. employees operating chippers. The Administrative Orders 2–1993 and 1– General Industry standard at OAR 437– 2000. Differences include changed 5. Control of Hazardous Energy 002–1910.269(r)(2) was repealed and definitions, a requirement for employers (Lockout/Tagout) OAR 437–002–0310(6) (located in Tree to determine the first aid supplies On its own initiative the State and Shrub Services and referenced required at the workplace based upon adopted a change to its Control of under Electric Power Generation) was the intended use and types of injuries Hazardous Energy (Lockout/Tagout) adopted; and in Construction, OAR that may occur, clearer criteria for standard at OAR 437–002–1910.147 in 437–003–0660 and 437–003–0730 eyewash and showers, alternate eye Division 2/J. The new State-initiated through 0765 were repealed and OAR treatment when approved by a specified rule at OAR 437–002–0154, Individual 437–003–0707 was adopted. The State physician, and a requirement to follow Locks, adds a requirement for the user brush chipping standard has additional information on the Material Safety Data (authorized employee) to have the only requirements not contained in the Sheets or the manufacturer’s direction key or the only combination to each OSHA standards, such as strength for treating contamination of the eye or lock. Oregon’s Control of Hazardous requirements for the knife guards, body. Energy standard was previously adopted having a coworker in the immediate 11. Ornamental Tree and Shrub Services by reference (except for a broader scope) vicinity when feeding the chipper, and and approved on April 26, 1991 (56 FR chipper feeding requirements. The State In response to Federal comments, the 19383). The State amendment was standard was previously approved on State has submitted changes to its adopted and effective October 26, 2001, August 25, 2000 (65 FR 51855). The independent Ornamental Tree and under OR–OSHA Administrative Order State amendments were adopted and Shrub Services standard in Division 2/ 12–2001. Oregon’s standard covers all effective April 6, 2001, under OR– R at OAR 437–002–0301, adopted and employers, while the federal standard OSHA Administrative Order 5–2001. effective February 16, 1996, under OR- (29 CFR 1910.147) exempts OSHA Administrative Order 1–1996. 8. Material Handling Equipment— construction, agriculture and maritime The State’s new Tree and Shrub Personnel Platforms employment. Services standard had been adopted The State has adopted a State- December 21, 1990 and effective 6. Dipping and Coating Operations initiated rule for Personnel Platforms at February 1, 1991, under Administrative On its own initiative, the State OAR 437–003–0094 amending Oregon’s Order 27–1990. It excludes agricultural repealed OAR 437–002–1910.124(g)(2) adoption by reference in Division 3/O of crops and crop services, but includes in Division 2/H on Dipping and Coating the Material Handling Equipment line clearance and telecommunication
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line clearance activities contained in 29 1999, under OR–OSHA Administrative CFR 1910.261(c)(9). The standard CFR 1910.268(q). Order 10–1999. Differences from the contains additional requirements Federal standard include: The standards previously approved by OSHA 12. Personal Protective Equipment were re-written in clearer language and concerning employee training, blow a. On its own initiative the State has added coverage of reinforced plastic lines, exhaust systems for chlorine and adopted a standard for High Visibility ladders to the portable ladders chlorine dioxide, and handling sodium Garments. The State’s submittal adds provisions. Detailed language on the chlorate. Differences from the Federal OAR 437–002–0128 to requirements in design and construction of ladders was standard effective since 1995 are: the Division 2/I, General Industry Personal replaced with the requirement that the State requires employers to follow Protective Equipment, and adds OAR ladders meet the respective ANSI 1910.147, Control of Hazardous Energy; 437–003–0128 to Division 3/C, standard. Basic use and care updates the referenced ANSI standards Construction. The State standard was requirements are grouped by type of to the most recent editions; and adds adopted November 7, 2000 and effective ladder rather than the material from some ANSI standards not contained in April 1, 2001, under OR–OSHA which it is made. Fixed ladder the Federal standard. The most recent Administrative Order 10–2000. OSHA requirements were changed to meet the ANSI standards reflect more current does not have a similar standard in the newest edition of ANSI for fixed ladders industry practices. 29 CFR 1910 General Industry standards (A 14.3–1992), which changes the 16. Signs, Signals and Barricades and the OSHA construction standard at requirements for landing platforms, 29 CFR 1926.201(a)(4) only applies to cages and climbing safety devices. In response to a Federal standard flaggers, whereas the State standard change, the State submitted a State applies to any employee exposed to 14. Powered Industrial Trucks standard amendment comparable to 29 hazards caused by moving vehicles. On its own initiative, the State has CFR 1926.200, .201 and .202, Accident b. On its own initiative, the State has adopted a re-codification and Prevention Signs and Tags, Signaling adopted a change to its General Industry amendment of the State standard for and Barricades, as published in the and Agriculture personal protective Powered Industrial Trucks, OAR 437– Federal Register on September 12, 2002 equipment requirements when working 02–1910.178 (in Division 2/N), adopted (67 FR 57736). The State did not adopt on or over water. OSHA does not have August 20, 1993, and effective the Federal provisions at 1926.200(g)(2), a similar standard for General Industry November 1, 1993, under Traffic Signs, 1926.201, Signaling, and or Agriculture. The new General Administrative Order 13–1993. The 1926.202, Barricades, and instead Industry amendment in Division 2/I at State repealed OAR 437–63, Powered amended its Division 3/G, OAR 437– OAR 437–002–0139 and 1139 reflects Industrial Trucks, in its entirety, and 003–0420, Traffic Control construction current practices and technology, and adopted by reference the Federal standard, which includes rules for the Agriculture amendment in Division standard at 29 CFR 1910.178, except for signaling and the use of flaggers and for 4/I at OAR 437–004–1070 and 1075 1910.178(e)(1), Safety Guards on High using barricades for protection of restores and updates standards that Lift Rider Trucks. This section was workers. The State also revised Division were erroneously left out during a replaced with previously approved OAR 2/N, General Industry rules for previous rewrite of the standard. Both 437–63–260(1), which was also Commercial and Industrial Vehicles require persons working on or over amended and re-codified as OAR 437– standard, OAR 437–002–0223(23), water to wear personal flotation devices. 002–227(1)(a), (b), and (c). Instead of Warning Devices, to reflect the same The State amendments were adopted adopting OSHA’s requirement for an updated language requiring adequate January 18, 2001, and effective March 1, overhead guard on high lift rider trucks and appropriate traffic controls as found 2001, under OR–OSHA Administrative to be manufactured in accordance with in the Construction standard. The State Order 1–2001. a 1969 ANSI standard, Oregon’s amendments were adopted and effective c. The State also adopted a change in standard contains specific requirements on January 30, 2003, under OR–OSHA Division 2/I that added notes clarifying for these guards. Administrative Order 2–2003. the application of the hazard assessment Differences are: The State has adopted 15. Pulp, Paper and Paperboard Mills and training requirements, and added a the same rules for general industry, requirement at OAR 437–002–0137(3) On its own initiative, the State has while the Federal standard lacks a for leg protection when using chain adopted standard amendments at OAR companion rule for general industry. saws. OSHA does not have a similar 437–002–312 (in Division 2/R) The State requires conformance with the standard for General Industry. The State comparable to 29 CFR 1910.261, Pulp, Millenium Edition, December 2000, of amendments were adopted and effective Paper and Paperboard Mills. Oregon’s the Manual of Uniform Traffic Control on October 26, 2001, under OR–OSHA original standard received OSHA Devices (MUTCD) while Federal OSHA Administrative Order 12–2001. Oregon’s approval (42 FR 38026) on July 26, also allows the option of complying Personal Protective Equipment standard 1977, and was re-codified and approved with the September 3, 1993, revision of was previously approved on July 31, (52 FR 27077) on July 17, 1987. The the 1988 MUTCD. 1995 (60 FR 36009). current amendments were adopted on November 4, 1994 (effective January 3, 17. Spray Finishing 13. Portable and Fixed Ladders 1995), and January 14, 2001 (effective On its own initiative, the State On its own initiative, the State has February 5, 2001), under OR–OSHA submitted changes to its Spray repealed its standard for extension Administrative Orders 7–1994 and 2– Finishing standard. The State removed ladders, portable wood and metal 2001. The 2001 change was a corrective OAR 437–002–1910.94(c) and OAR ladders, and fixed ladders comparable amendment that made one provision 437–002–1910.107 on spray finishing to 29 CFR 1910.25—1910.26, and identical to the Federal: Oregon and replaced them with OAR 437–002– adopted new standards in Division 2/D removed one paragraph, at OAR 437– 0107, Spray Finishing, in Division 2/H. at OAR 437–002–0026, Portable 002–0312(4)(j)(C), which makes the The purpose of the change was to Ladders, and OAR 437–002–0027, Fixed State’s requirement at OAR 437–002– consolidate the two rules in one place Ladders. The State’s repeal and 312(4)(j) concerning worker entry into and make the rules easier to understand. adoption were effective September 10, chip and sawdust bins identical to 29 The amendment was adopted and
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effective on April 21, 2003, under OR– 437–002–0316 concerning tree trimming III. Location of Basic State Plan OSHA Administrative Order 3–2003. electrical hazards. Current differences Documentation The State standards at 1910.94(c) and are: The general Medical Services and 1910.107 had previously been adopted First Aid requirements contained in Copies of basic State plan by reference with additional State OAR 437–002–0161 are referenced documentation are maintained at the requirements and approved on August rather than adopting the specific following locations; specific documents 25, 2000 (65 FR 51857). OSHA has requirements contained in are available upon request, including a determined the following differences 1910.268(b)(3); the employer must make copy of these State standards and between the State and Federal a complete evaluation of the work comparison to the Federal standards. standards: The State standard combines location before work is performed; all Contact the Office of the Regional the requirements for spraying flammable equipment, tools and safety devices Administrator, Occupational Safety and or combustible materials and materials must be installed, used and operated in Health Administration, 1111 Third that are not flammable or combustible accordance with the manufacturer’s Avenue, Suite 715, Seattle, Washington into one standard. The State also has recommendations and operating 98101–3212, (206) 553–5930, fax (206) kept some of its previously approved instructions; safety straps must be 553–6499; Oregon Occupational Safety rules that were not part of the Federal lashed around the top rung of ladders and Health Division, Department of standard. Language was also added that when ladder hooks are used; there are Consumer and Business Services, allows for alternatives to certain standards for use of chain saws; Salem, Oregon 97310, (503) 378–3272, requirements when written employees operating cranes and fax (503) 947–7461; and the Office of authorization is obtained from the local derricks must be trained in accordance State Programs, Occupational Safety and fire authority. The State has additional with OAR 437–002–0229(2); there are Health Administration, 200 Constitution definitions such as ‘‘infrequent and of standards addressing fiber optic/light Avenue, NW., Room N3700, short duration’’, ‘‘non-combustible wave transmission; and additional Washington, DC 20210, (202) 693–2244, materials’’ and ‘‘overspray’’. The State definitions. fax (202) 693–1671. Oregon’s current standard requires all employees engaged II. Decision standards are posted on the State’s Web in spray finishing operations to be site at www.cbs.state.or.us/external/ provided with and wear respiratory After review, OSHA has determined osha/standards/standards.htm. An protection unless exhaust ventilation is that the State standards amendments for electronic copy of this Federal Register provided and reduces employee Air Contaminants; notice is available on OSHA’s Web site, exposure to any material or finish or its BloodbornePathogens—Needlestick www.osha.gov. solvent to below the PEL. The State Devices; Concrete and Masonry standard considers spray booths Construction; Construction/Electrical; IV. Public Participation constructed in accordance with the Control of Hazardous Energy (Lockout/ Oregon Building Codes Division to be in Tagout); Dipping and Coating Under 29 CFR 1953.3(e), the Assistant compliance with the standards. The Operations; Electric Power Generation, Secretary may prescribe alternative State adopted the more current Transmission and Distribution—Brush procedures to expedite the review consensus industry standards such as Chipping; Material Handling process or for other good cause which may be consistent with applicable laws. requiring a 41⁄2-inch metal deflector on Equipment—Personnel Platforms; the upper outer edge of the spray booth, Material Handling and Storage—Slings; The Assistant Secretary finds that good which is the current requirement in the Medical Services and First Aid; cause exists for not publishing the supplement to the Oregon State Plan as Uniform Fire Code, rather than the 21⁄2- Ornamental Tree and Shrub Services; inch deflector required by OSHA. The Personal Protective Equipment; Portable a proposed change and making the standard was also written in language and Fixed Ladders; Powered Industrial Regional Administrator’s approval that is easier to understand. Trucks; Pulp, Paper and Paperboard effective upon publication for the Mills; Signs, Signals and Barricades; following reasons: 18. Telecommunications Spray Finishing; and 1. The standard amendments are as In response to Federal comments, the Telecommunications are at least as effective as the Federal standards which State has submitted changes to its effective as the comparable Federal were promulgated in accordance with Telecommunications standard in standards and/or compliance policies, Federal law, including meeting Division 2/R comparable to 29 CFR as required by section 18(c)(2) of the Act requirements for public participation. 1910.168, adopted and effective April and 29 CFR 1902.3(c) and 1953.5(a). 30, 1999, under OR–OSHA OSHA has received no comments, 2. The standard amendments were Administrative Order 3–1999. The State complaints or concerns about these adopted in accordance with the had previously adopted by reference on different State standards either as to procedural requirements of State law August 4, 1993, effective October 1, their effectiveness in comparison to the and further opportunity for public 1993 (Administrative Order 11–1993), Federal standards or as to their comment is unnecessary in light of the most of 29 CFR 1910.268, conformance with the product clause non-controversial nature of the Telecommunications. An Oregon- requirements of section 18(c)(2) of the standards. initiated rule at OAR 437–002–0316 Act. (A different State standard This notice is issued pursuant to covered seven Telecommunications applicable to a product which is section 18 of the Occupational Safety provisions not adopted, as well as some distributed or used in interstate and Health Act of 1970, Pub. L. 91–596, additional State requirements. In commerce must be required by 84 Stat. 6108 (29 U.S.C. 667). response to Federal comments, the State compelling local conditions and not Signed in Seattle, Washington, this 28th adopted by reference two of the federal unduly burden interstate commerce.) day of January, 2004. Telecommunications provisions, OSHA, therefore, approves these concerning rubber insulating equipment standards; however, the right to Richard S. Terrill, and tree trimming electrical hazards, reconsider this approval is reserved Regional Administrator. that were not adopted in 1993, and should substantial objections be [FR Doc. 04–4450 Filed 2–27–04; 8:45 am] repealed a provision and Note in OAR submitted to the Assistant Secretary. BILLING CODE 4510–26–P
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NATIONAL AERONAUTICS AND the meeting be held on these dates to applied for a partially exclusive patent SPACE ADMINISTRATION accommodate the scheduling priorities license to practice the invention of the key participants. described and claimed in NASA Case [Notice (04–033)] No. KSC–12386 entitled ‘‘Wireless Michael F. O’Brien, NASA Advisory Council, Space Instrumentation System and Power Assistant Administrator for External Management Scheme Therefore,’’ which Science Advisory Committee, Sun- Relations, National Aeronautics and Space Earth Connection Advisory Administration. is assigned to the United States of America as represented by the Subcommittee Meeting [FR Doc. 04–4411 Filed 2–27–04; 8:45 am] Administrator of the National AGENCY: National Aeronautics and BILLING CODE 7510–01–P Aeronautics and Space Administration. Space Administration (NASA). Written objections to the prospective ACTION: Notice of meeting. NATIONAL AERONAUTICS AND grant of a license should be sent to SPACE ADMINISTRATION Randall M. Heald, Assistant Chief SUMMARY: The National Aeronautics and Counsel/Patent Counsel at John F. Space Administration announces a [Notice (04–035)] Kennedy Space Center. forthcoming meeting of the NASA DATES: Responses to this Notice must be Advisory Council (NAC), Space Science Notice of Prospective Patent License received by March 16, 2004. Advisory Committee (SScAC), Sun- FOR FURTHER INFORMATION CONTACT: Earth Connection Advisory AGENCY: National Aeronautics and Randall M. Heald, Assistant Chief Subcommittee (SECAS). Space Administration. Counsel/Patent Counsel, John F. DATES: Wednesday, March 10, 2004, ACTION: Notice of prospective patent license. Kennedy Space Center, Mail Code: CC– 8:30 a.m. to 5:30 p.m., Thursday, March A, Kennedy Space Center, FL 32899, 11, 2004, 8:30 a.m. to 5 p.m., and SUMMARY: NASA hereby gives notice telephone (321) 867–7214. Friday, March 12, 2004, 8:30 a.m. to that Laura Lee Desrosiers Curtis LLC of Robert M. Stephens, Noon. McLean, Virginia, has applied for a Deputy General Counsel. ADDRESSES: National Aeronautics and partially exclusive patent license to Space Administration, 300 E Street, practice the invention described and [FR Doc. 04–4412 Filed 2–27–04; 8:45 am] SW., Room 9H40, Washington, DC claimed in NASA Case No. KSC–12386 BILLING CODE 7510–01–P 20546. entitled ‘‘Wireless Instrumentation System and Power Management Scheme FOR FURTHER INFORMATION CONTACT: Dr. NATIONAL SCIENCE FOUNDATION Barbara Giles, Code SS, National Therefore,’’ which is assigned to the Aeronautics and Space Administration, United States of America as represented by the Administrator of the National NSF-NASA—Astronomy and Washington, DC 20546, (202) 358–1762, Astrophysics Advisory Committee [email protected]. Aeronautics and Space Administration. Written objections to the prospective #13883; Notice of Meeting SUPPLEMENTARY INFORMATION: The grant of a license should be sent to In accordance with the Federal meeting will be open to the public up Randall M. Heald, Assistant Chief to the capacity of the room. The agenda Advisory Committee Act (Pub. L. 92– Counsel/Patent Counsel at John F. 463, as amended), the National Science for the meeting includes the following Kennedy Space Center. topics: Foundation announces the following DATES: Responses to this Notice must be meeting: —Sun-Earth Connection Overview received by March 16, 2004. Name: NSF-NASA Astronomy and —New Space Vision, Budget, Priorities Astrophysics Advisory Committee —Reports from Sun-Earth Connection FOR FURTHER INFORMATION CONTACT: Randall M. Heald, Assistant Chief (#13883). Management Operations Working Date and Time: March 8, 2004, 12–1 Group Counsel/Patent Counsel, John F. Kennedy Space Center, Mail Code: CC– p.m. —Living with a Star Program Update Place: National Science Foundation, —Sun-Earth Connection Roadmap/ A, Kennedy Space Center, FL 32899, telephone (321) 867–7214. 4201 Wilson Blvd., Arlington, VA Strategic Plan 22230, via teleconference. Attendees will be requested to sign a Dated: February 23, 2004. Type of Meeting: Open. register and to comply with NASA Robert M. Stephens, Contact Person: Dr. G. Wayne Van security requirements, including the Deputy General Counsel. Citters, Director, Division of presentation of a valid picture ID, before [FR Doc. 04–4413 Filed 2–27–04; 8:45 am] Astronomical Sciences, Suite 1045, receiving an access badge. Foreign BILLING CODE 7510–01–P National Science Foundation, 4201 nationals attending this meeting will be Wilson Blvd., Arlington, VA 22230. required to provide the following Telephone: 703–292–4908. information: full name; gender; date/ NATIONAL AERONAUTICS AND Purpose of Meeting: To provide place of birth; citizenship; visa/green SPACE ADMINISTRATION advice and recommendations to the card information (number, type, National Science Foundation (NSF) and expiration date); passport information [Notice (04–034)] the National Aeronautics and Space (number, country, expiration date); Notice of Prospective Patent License Administration (NASA) on issues employer/affiliation information (name within the field of astronomy and of institution, address, country, phone); AGENCY: National Aeronautics and astrophysics that are of mutual interest title/position of attendee. To expedite Space Administration. and concern to the two agencies. admittance, attendees can provide ACTION: Notice of prospective patent Agenda: To review and discuss a draft identifying information in advance by license. of the committee’s March 2004 report. contacting Barbara Giles via e-mail at Reason for Late Notice: Difficulty in [email protected] or by telephone SUMMARY: NASA hereby gives notice scheduling committee member at (202) 358–1762. It is imperative that that Nivis LLC of Atlanta, GA, has participation.
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Dated: February 24, 2004. in preparing a suitable record for area cranes unless the handling system Susanne E. Bolton, review. is designed to be single failure proof). Committee Management Officer. All correspondence, documents, and The modified L–3 crane is the single- [FR Doc. 04–4437 Filed 2–27–04; 8:45 am] other materials shall be filed with failure-proof crane designed by Ederer BILLING CODE 7555–01–M Judges Rosenthal and Cole in Incorporated in accordance with the accordance with 10 CFR 2.1203. Their NRC-approved report, EDR–1, ‘‘Generic addresses are: Licensing Topical Report.’’ The Administrative Judge Alan S. Rosenthal, upgrade, with its increased lifting NUCLEAR REGULATORY Presiding Officer, capacity, will provide for use of a new, COMMISSION Atomic Safety and Licensing Board heavier dry fuel storage cask system Panel, which, due to dimensional changes, [Docket No. 70–143–MLA–3 and ASLBP No. U.S. Nuclear Regulatory Commission, results in elimination of the impact 04–820–05–MLA] Washington, DC 20555–0001 limiting pad previously installed in the Administrative Judge Richard F. Cole. spent fuel pool to protect the pool Nuclear Fuel Services, Inc.; Special Assistant. structure from postulated transfer cask Designation Of Presiding Officer Atomic Safety and Licensing Board drop accidents during dry fuel storage Pursuant to delegation by the Panel. operations. The 15-ton auxiliary hoist of Commission, see 37 FR 28710 U.S. Nuclear Regulatory Commission. the spent fuel pool crane is not (December 29, 1972), and the Washington, DC 20555–0001 upgraded to be single-failure-proof and Commission’s regulations, see 10 CFR Issued in Rockville, Maryland, this 24th continues to be bounded by existing 2.1201, 2.1207, notice is hereby given day of February, 2004. cask drop accident analyses in Section that (1) a single member of the Atomic G. Paul Bollwerk III, 14.11 of the FSAR. Safety and Licensing Board Panel is Chief Administrative Judge, Atomic Safety Before issuance of the proposed designated as Presiding Officer to rule and Licensing Board Panel. license amendment, the Commission on petitions for leave to intervene and/ [FR Doc. E4–432 Filed 2–27–04; 8:45 am] will have made findings required by the Atomic Energy Act of 1954, as amended or requests for hearing; and (2) upon BILLING CODE 7590–01–P making the requisite findings in (the Act), and the Commission’s accordance with 10 CFR 2.1205(h), the regulations. Presiding Officer will conduct an NUCLEAR REGULATORY Within 60 days after the date of adjudicatory hearing in the following COMMISSION publication of this notice, the licensee proceeding: Nuclear Fuel Services, Inc., may file a request for a hearing with Erwin, Tennessee, (Material License [Docket No 50–255] respect to issuance of the amendment to Amendment-3). Nuclear Management Company, LLC; the subject facility operating license and The hearing will be conducted Notice of Consideration of Issuance of any person whose interest may be pursuant to 10 CFR part 2, subpart L, of Amendment to Facility Operating affected by this proceeding and who the Commission’s regulations, ‘‘Informal License and Opportunity for a Hearing wishes to participate as a party in the Hearing Procedures for Adjudications in proceeding must file a written request Materials and Operator Licensing The U.S. Nuclear Regulatory for a hearing and a petition for leave to Proceedings.’’ This proceeding concerns Commission (the Commission) is intervene. Requests for a hearing and a two requests for hearing submitted on considering issuance of an amendment petition for leave to intervene shall be February 2, 2004, one from Friends of to Facility Operating License No. DPR– filed in accordance with the the Nolichucky River Valley, Inc., the 20, issued to Nuclear Management Commission’s ‘‘Rules of Practice for State of Franklin Group of the Sierra Company, LLC (the licensee), for Domestic Licensing Proceedings’’ in 10 Club, the Oak Ridge Environmental operation of the Palisades Plant located CFR part 2. Interested persons should Peace Alliance, and the Tennessee in Covert Township, Van Buren County, consult a current copy of 10 CFR 2.309, Environmental Council, and the second Michigan. which is available at the Commission’s from Kathy Helms-Hughes. These The proposed amendment would add PDR, located at One White Flint North, petitions were filed in response to an a paragraph to Section 2C of the Public File Area 01F21, 11555 Rockville NRC staff December 17, 2003, notice of operating license authorizing the Pike (first floor), Rockville, Maryland. receipt of a request by Nuclear Fuel licensee to update the final safety Publicly available records will be Services, Inc. (NFS) to amend its 10 CFR analysis report (FSAR) to reflect a accessible from the Agencywide part 70 license to authorize processing change in the licensing basis for the Documents Access and Management operations in the Oxide Conversion handling of heavy loads using the main System’s (ADAMS) Public Electronic Building and the Effluent Processing hoist of the fuel pool building crane (L– Reading Room on the Internet at the Building at the NFS Blended Low- 3 crane). The revised licensing basis is NRC Web site, http://www.nrc.gov/ Enriched Uranium Complex in Erwin, based upon the upgrading or re- reading-rm/doc-collections/cfr/. If a Tennessee. The notice of receipt of evaluation of the lifting capacity of the request for a hearing or petition for amendment request and opportunity for L–3 crane main hoist, bridge, trolley, leave to intervene is filed by the above a hearing were published in the Federal and the supporting structure from 100 date, the Commission or a presiding Register on December 24, 2003 (68 FR tons to 110 tons, and the incorporation officer designated by the Commission or 74653). and crediting of single-failure-proof by the Chief Administrative Judge of the The Presiding Officer in this technology meeting the requirements of Atomic Safety and Licensing Board proceeding is Administrative Judge NUREG–0554, ‘‘Single-Failure-Proof Panel, will rule on the request and/or Alan S. Rosenthal. Pursuant to the Cranes for Nuclear Power Plants’’ and petition; and the Secretary or the Chief provisions of 10 CFR 2.722, 2.1209, NUREG–0612, ‘‘Control of Heavy Loads Administrative Judge of the Atomic Administrative Judge Richard F. Cole at Nuclear Power Plants.’’ (NUREG– Safety and Licensing Board will issue a has been appointed to assist the 0612 requires analyses of postulated notice of a hearing or an appropriate Presiding Officer in taking evidence and load drop accidents from spent fuel pool order.
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As required by 10 CFR 2.309, a contention or jointly designate with the which is available for public inspection petition for leave to intervene shall set sponsoring requester/petitioner a at the Commission’s PDR, located at forth with particularity the interest of representative who shall have the One White Flint North, File Public Area the petitioner/requester in the authority to act for the requesters/ O1 F21, 11555 Rockville Pike (first proceeding, and how that interest may petitioners with respect to that floor), Rockville, Maryland. Publicly be affected by the results of the contention. available records will be accessible from proceeding. The petition should Each contention should be given a the Agencywide Documents Access and specifically explain the reasons why separate numeric or alpha designation Management System’s (ADAMS) Public intervention should be permitted with within one of the following groups: (1) Electronic Reading Room on the Internet particular reference to the following Technical (primarily related to safety at the NRC Web site, http:// general requirements: (1) The name, concerns); (2) environmental; or (3) www.nrc.gov/reading-rm/adams.html. address and telephone number of the miscellaneous. Persons who do not have access to requester or petitioner; (2) the nature of Those permitted to intervene become ADAMS or who encounter problems in the requester’s/petitioner’s right under parties to the proceeding, subject to any accessing the documents located in the Act to be made a party to the limitations in the order granting leave to ADAMS, should contact the NRC PDR proceeding; (3) the nature and extent of intervene, and have the opportunity to Reference staff by telephone at 1–800– the requester’s/petitioner’s property, participate fully in the conduct of the 397–4209, 301–415–4737, or by e-mail financial, or other interest in the hearing. to [email protected]. proceeding; and (4) the possible effect of A request for a hearing or a petition for leave to intervene must be filed by: Dated at Rockville, Maryland, this 24th day any decision or order which may be of February 2004. entered in the proceeding on the (1) First class mail addressed to the For the Nuclear Regulatory Commission. requester’s/petitioner’s interest. The Office of the Secretary of the petition must also identify the specific Commission, U.S. Nuclear Regulatory Darl S. Hood, contentions which the petitioner/ Commission, Washington, DC 20555– Senior Project Manager, Section I, Project requester seeks to have litigated at the 0001, Attention: Rulemaking and Directorate III, Division of Licensing Project proceeding. Adjudications Staff; (2) courier, express Management, Office of Nuclear Reactor Each contention must consist of a mail, and expedited delivery services: Regulation. specific statement of the issue of law or Office of the Secretary, Sixteenth Floor, [FR Doc. E4–433 Filed 2–27–04; 8:45 am] fact to be raised or controverted. In One White Flint North, 11555 Rockville BILLING CODE 7590–01–P addition, the petitioner/requester shall Pike, Rockville, Maryland, 20852, provide a brief explanation of the bases Attention: Rulemaking and for the contention and a concise Adjudications Staff; (3) E-mail NUCLEAR REGULATORY statement of the alleged facts or expert addressed to the Office of the Secretary, COMMISSION opinion which support the contention U.S. Nuclear Regulatory Commission, [Docket Nos. 50–498 and 50–499] and on which the petitioner intends to [email protected]; or (4) rely in proving the contention at the facsimile transmission addressed to the STP Nuclear Operating Company, et hearing. The petitioner must also Office of the Secretary, U.S. Nuclear al.; South Texas Project, Units 1 and 2; provide references to those specific Regulatory Commission, Washington, Notice of Withdrawal of Application sources and documents of which the DC, Attention: Rulemakings and Regarding Proposed Corporate petitioner is aware and on which the Adjudications Staff at (301) 415–1101, Restructuring petitioner intends to rely to establish verification number is (301) 415–1966. those facts or expert opinion. The A copy of the request for hearing and The U.S. Nuclear Regulatory petition must include sufficient petition for leave to intervene should Commission (the Commission) has information to show that a genuine also be sent to the Office of the General granted the request of STP Nuclear dispute exists with the applicant on a Counsel, U.S. Nuclear Regulatory Operating Company (the licensee) to material issue of law or fact. Commission, Washington, DC 20555– withdraw the September 29, 2003, Contentions shall be limited to matters 0001, and it is requested that copies be application for an order under section within the scope of the amendment transmitted either by means of facsimile 50.80 of Title 10 of the Code of Federal under consideration. The contention transmission to 301–415–3725 or by Regulations (10 CFR) approving the must be one which, if proven, would email to [email protected]. A indirect transfer of Facility Operating entitle the petitioner/requester to relief. copy of the request for hearing and Licenses Nos. NPF–76 and NPF–80 for A petitioner/requester who fails to file petition for leave to intervene should South Texas Project (STP), Units 1 and such a petition/request that satisfies also be sent to the attorney for the 2, respectively, to the extent held by these requirements with respect to at licensee, Jonathan Rogoff, Vice Texas Genco, LP (Texas Genco). STP, least one contention will not be President Counsel and Secretary, Units 1 and 2, are located in Matagorda permitted to participate as a party. Nuclear Management Company, LLC, County, Texas. If two or more requesters/petitioners 700 First Street, Hudson, WI 54016. The Commission had previously seek to co-sponsor a contention, the Nontimely requests and/or petitions issued a Notice of Consideration of requesters/petitioners shall jointly and contentions will not be entertained Approval of Application and designate a representative who shall absent a determination by the Opportunity for a Hearing in the have the authority to act for the Commission or the presiding officer of Federal Register on November 5, 2003 requesters/petitioners with respect to the Atomic Safety and Licensing Board (68 FR 62641). However, by letter dated that contention. If a requester/petitioner that the petition, request and/or the January 29, 2004, the licensee withdrew seeks to adopt the contention of another contentions should be granted based on the proposed change. sponsoring requester/petitioner, the a balancing of the factors specified in 10 For further details with respect to this requester/petitioner who seeks to adopt CFR 2.309(a)(1)(i)–(viii). action, see the application for the contention must either agree that the For further details with respect to this amendment dated September 29, 2003, sponsoring requester/petitioner shall act action, see the application for and the licensee’s withdrawal letter as the representative with respect to that amendment dated January 29, 2004, dated January 29, 2004, which withdrew
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the application for license amendment. from the home page. A printed copy 21, 2004, the American Stock Exchange Documents may be examined, and/or may be requested at no charge at 415/ LLC (the ‘‘Amex’’ or ‘‘Exchange’’) filed copied for a fee, at the NRC’s Public 561–5414 or [email protected], or with the Securities and Exchange Document Room (PDR), located at One by writing the Presidio Trust, P.O. Box Commission (‘‘Commission’’) the White Flint North, Public File Area O1 29052, San Francisco, CA 94129–0052. proposed rule change as described in F21, 11555 Rockville Pike (first floor), The EA may also be reviewed in the Items I, II, and III below, which Items Rockville, Maryland. Publicly available Trust’s library on the Presidio at 34 have been prepared by Amex. On records will be accessible electronically Graham Street, San Francisco, CA. January 30, 2004, the Exchange filed from the Agencywide Documents Public Review and Comment Period: Amendment No. 1 to the proposed rule Access and Management Systems Before finalizing the PHSH EA, the change.3 On February 12, 2004, the (ADAMS) Public Electronic Reading Trust invites the interested public to Exchange filed Amendment No. 2 to the Room on the Internet at the NRC Web review the document and provide proposed rule change.4 Amex has filed site, http://www.nrc.gov/reading-rm/ comment. Written comments may be the proposed rule change as a ‘‘non- adams/html. Persons who do not have submitted to John Pelka, NEPA controversial’’ rule change under Rule access to ADAMS or who encounter Compliance Coordinator at 415/561– 19b–4(f)(6) under the Act,5 which problems in accessing the documents 2790 (fax), [email protected], or renders the proposal effective upon located in ADAMS, should contact the the address below, and must be filing with the Commission. The NRC PDR Reference staff by telephone transmitted or delivered no later than Commission is publishing this notice to at 1–800–397–4209, or 301–415–4737 or April 30, 2004. Please be aware that all solicit comments on the proposed rule by email to [email protected]. written comments and information change, as amended, from interested Dated at Rockville, Maryland, this 13th day submitted will be made available to the persons. of February, 2004. public, including, without limitation, I. Self-Regulatory Organization’s For the Nuclear Regulatory Commission. any postal address, e-mail address, phone number or other information Statement of the Terms of Substance of William D. Reckley, the Proposed Rule Change Acting Chief, Section 1, Project Directorate contained in each submission. IV, Division of Licensing Project Management, Additional public notice in the Federal The Amex proposes to make technical Office of Nuclear Reactor Regulation. Register, on the Trust’s Web site and/or amendments to the Exchange’s recently [FR Doc. E4–431 Filed 2–27–04; 8:45 am] in written newsletters to those on the approved enhanced corporate BILLING CODE 7590–01–P Trust’s public mailing list will governance requirements to: (i) Amend announce the date, location and details sections 121A, 121B(2)(c), 802(a), and of a hearing for the public to provide 809(b) of the Amex Company Guide to PRESIDIO TRUST oral comment on the PHSH EA. reference small business issuers rather Following the close of the public review than small business filers, and (ii) insert Public Health Service Hospital, The period on April 30, 2004, the Trust will in section 809 of the Amex Company Presidio of San Francisco (Presidio), consider and respond to any written or Guide the date of Commission approval CA; Notice of Availability of oral comments in the final PHSH EA. and certain effective dates based on the Environmental Assessment and FOR FURTHER INFORMATION CONTACT: John date of approval. Below is the text of the Scheduling of Public Comment Period Pelka, NEPA Compliance Coordinator, proposed rule change. Proposed new the Presidio Trust, 34 Graham Street, language is in italics; proposed ACTION: The Presidio Trust (Trust) P.O. Box 29052, San Francisco, CA deletions are in brackets. announces the availability for review of 94129–0052, 415/561–5300. * * * * * the Environmental Assessment (EA) for the Public Health Service Hospital Dated: February 24, 2004. American Stock Exchange Company (PHSH) project and the scheduling of a Karen A. Cook, Guide General Counsel. review period for the public to provide Section 121. INDEPENDENT comment on the PHSH EA. The EA, [FR Doc. 04–4449 Filed 2–27–04; 8:45 am] DIRECTORS AND AUDIT COMMITTEE prepared in accordance with the BILLING CODE 4310–4R–P provisions of the National A. Independent Director Environmental Policy Act (NEPA) (42 Each listed company must have a U.S.C. 4321 et seq.), evaluates the SECURITIES AND EXCHANGE sufficient number of independent environmental impacts of rehabilitating COMMISSION directors on its Board of Directors (1) and reusing historic buildings in the [Release No. 34–49295; File No. SR–Amex– such that at least a majority of such PHSH district of the Presidio. The Trust 2004–06] directors are independent directors is inviting public review and comment (subject to the exceptions set forth in on the PHSH EA until April 30, 2004. Self-Regulatory Organizations; Notice section 801 and, with respect to small Public scoping comments were solicited of Filing and Immediate Effectiveness business [filers] issuers, section as noticed in the Federal Register on of Proposed Rule Change and 121B(2)(c)), and (2) to satisfy the audit September 9, 2003 (68 FR 53205–6) and Amendments No. 1 and 2 by the committee requirement set forth below. again on November 12, 2003 (68 FR American Stock Exchange LLC ‘‘Independent director’’ means a person 64151–2). Relating to Small Business Issuers other than an officer or employee of the
Materials Available to the Public: The February 23, 2004. 3 See Letter from Claudia Crowley, Vice PHSH EA is being provided to agencies, Pursuant to section 19(b)(1) of the President, Listing Qualifications, Amex, to Nancy organizations and individuals who have Securities Exchange Act of 1934 Sanow, Assistant Director, Division of Market expressed an interest in the NEPA (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 Regulation, Commission, dated January 29, 2004. process for the PHSH project. The EA 4 See Letter from Claudia Crowley, Vice notice is hereby given that on January President, Listing Qualifications, Amex, to Nancy may be viewed at or downloaded from Sanow, Assistant Director, Division of Market the Trust’s Web site at http:// 1 15 U.S.C. 78s(b)(1). Regulation, Commission, dated February 11, 2004. www.presidio.gov, following the link 2 17 CFR 240.19b–4. 5 17 CFR 240.19b–4(f)(6).
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company or any parent or subsidiary. inconsistent with Rule 10A–3 under the II. Self-Regulatory Organization’s No director qualifies as independent Securities Exchange Act of 1934, if the Statement of the Purpose of, and unless the Board of Directors company would be required to change Statutory Basis for, the Proposed Rule affirmatively determines that the a director who would normally not Change director does not have a material stand for election in such annual In its filing with the Commission, the relationship with the listed company meeting, the company may continue Amex included statements concerning that would interfere with the exercise of such director in office until the second the purpose of and basis for the independent judgment. In addition, annual meeting after the date specified proposed rule change and discussed any audit committee members must also above, but no later than December 31, comments it received on the proposed comply with the requirements set forth 2005. rule change. The text of these statements in paragraph B(2) below. The following (b) Companies that have listed or will may be examined at the places specified is a non-exclusive list of persons who be listed in conjunction with their in Item IV below. The Amex has shall not be considered independent: initial public offering shall be afforded prepared summaries, set forth in (a) through (g)—No change. exemptions from all board composition sections A, B, and C below, of the most B. Audit Committee: requirements consistent with the significant aspects of such statements. (1)—No change. exemptions afforded in Rule 10A–3 A. Self-Regulatory Organization’s (2) Composition under the Securities Exchange Act of Statement of the Purpose of, and (a) and (b)—No change. 1934. That is, for each applicable (c) Small Business [Filers] Issuers— Statutory Basis for, the Proposed Rule committee that the company establishes Small Business Issuers [that file reports Change (i.e., nominating and/or compensation) under] (as defined in SEC Regulation S– the company shall have one 1. Purpose B) are subject to all requirements independent member at the time of specified in this Section, except that On December 1, 2003 the Commission listing, a majority of independent such issuers are only required to approved comprehensive enhancements members within 90 days of listing and maintain a Board of Directors comprised to the corporate governance all independent members within one of at least 50% independent directors, requirements applicable to listed year. Such companies will be required and an Audit Committee of at least two companies in order to promote to meet the majority independent board members, comprised solely of accountability, transparency and requirement (or 50% independent in the independent directors who also meet integrity by such companies, including case of a small-business [filer] issuer) the requirements of Rule 10A–3 under the changes required by Commission within one year of listing. It should be 6 the Securities Exchange Act of 1934. Rule 10A–3 with respect to listed noted however, that investment company audit committees.7 In order to Section 802. BOARD OF DIRECTORS companies are not afforded these provide consistency between certain (a) At least a majority of the directors exemptions under Rule 10A–3 under provisions of Amex requirements and on the Board of Directors of each listed the Securities Exchange Act of 1934. Rule 10A–3 with respect to small company must be independent directors Companies emerging from bankruptcy business issuers, the Exchange is as defined in Section 121A, except for or which have ceased to be controlled proposing to revise Section 121B(2)(c) of (i) a controlled company (see Section companies will be required to meet the the Amex Company Guide to reference 801(a)), and (ii) a Small Business [filer] majority independent board small business issuers rather than small Issuer (see Section 121B(2)(c)). requirement (or 50% independent in the business filers. Section 121B(2)(c) of the (b) through (e)—No change. case of a small-business [filer] issuer) Amex Company Guide provides a within one year. Companies may choose limited exception from certain of new Section 809. EFFECTIVE DATES/ not to establish a compensation or requirements. Specifically, such TRANSITION nomination committee and may rely companies are subject to the enhanced (a) In order to permit listed companies instead upon a majority of independent corporate governance requirements, to make necessary adjustments in the directors to discharge responsibilities except that they are only required to course of their regular annual meeting under Part 8. have a board of directors comprised of schedule, to the extent not inconsistent (c) Companies transferring from other at least 50% independent directors, with Rule 10A–3 under the Securities markets with a substantially similar rather than a majority, and must have an Exchange Act of 1934, Sections 802–805 requirement shall be afforded the audit committee of at least two, rather (other than Section 802(d)), as well as balance of any grace period afforded by than three, independent directors. Small the corresponding changes to Section the other market. Companies business companies are required to fully 121, are effective as set forth below. transferring from other markets that do comply with Rule 10A–3. During the transition period between not have a substantially similar Rule 10A–3 provides a later effective December 1, 2003 and the applicable requirement shall be afforded one year date for small business issuers than is effective date, listed companies must from the date of listing, to the extent not available for other listed companies. comply with Section 121 as in effect inconsistent with Rule 10A–3 under the The Amex states that the proposed immediately prior to December 1, 2003 Securities Exchange Act of 1934. change to Section 121B(2)(c) of the Amex Company Guide will provide (see Commentary .01). (d) Section 807 is effective June 1, consistency between these two • July 31, 2005 for foreign private 2004. provisions. Further, by limiting the issuers and small business issuers (as (e) Section 808 and the amendments defined in Rule 12b–2 under the applicability of section 121B(2)(c) of the to Sections 110, 120, 401, 402 and 610 Amex Company Guide to small business Securities Exchange Act of 1934); and are effective December 31, 2003. • For all other listed companies, by filers, the provision provides a the earlier of: (1) The listed company’s (f) The amendments to Section 1009 first annual shareholders meeting after and the adoption of Section 802(d) are 6 17 CFR 240.10A–3. effective December 1, 2003. 7 See Securities Exchange Act Release No. 48863 March 15, 2004; or (2) October 31, 2004. (December 1, 2003), 68 FR 68432 (December 8, In the case of a company with a Commentary—No change. 2003) (order approving File No. SR–Amex–2003– staggered board, to the extent not * * * * * 65).
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disincentive for small business section 19(b)(3)(A) of the Act 10 and Commission may summarily abrogate companies to voluntarily provide the subparagraph (f)(6) of Rule 19b–4 such rule change if it appears to the greater disclosure required pursuant to thereunder.11 Commission that such action is Regulation S–K. The limited exception Consequently, because the foregoing necessary or appropriate in the public for small business companies is proposed rule change: (1) Does not interest, for the protection of investors, intended to provide narrow relief for significantly affect the protection of or otherwise in furtherance of the smaller companies in view of the investors or the public interest, (2) does purposes of the Act.14 difficulties that such issuers may face in not impose any significant burden on recruiting independent directors. competition, and (3) by its terms does IV. Solicitation of Comments not become operative for 30 days after Companies that choose to provide Interested persons are invited to the date of this filing, or such shorter enhanced disclosure should not be submit written data, views, and time as the Commission may designate, penalized in this regard. arguments concerning the proposed rule The Exchange is also proposing to if consistent with the protection of change, as amended, including whether make conforming changes in Sections investors and the public interest, and the proposed rule change is consistent 121A, 802(a), and 809(b) and to amend the self-regulatory organization has with the Act. Persons making written Section 809 of the Amex Company given the Commission written notice of submissions should file six copies Guide to insert the effective date of its intent to file the proposed rule thereof with the Secretary, Securities Commission approval of the new change, along with a brief description and Exchange Commission, 450 Fifth corporate governance standards and and text of the proposed rule change, at Street, NW., Washington, DC 20549– related effective dates. least five business days prior to the date of filing of the proposed rule change, it 0609. Comments may also be submitted 2. Statutory Basis has become effective pursuant to electronically at the following e-mail The Amex believes that the proposed Section 19(b)(3)(A) of the Act and Rule address: [email protected]. All rule change, as amended, is consistent 19b–4(f)(6) thereunder. comment letters should refer to File No. with Section 6(b) of the Act 8 in general Pursuant to Rule 19b–4(f)(6)(iii),12 a SR–Amex–2004–06 . This file number and furthers the objectives of Section proposed ‘‘non-controversial’’ rule should be included on the subject line 6(b)(5) of the Act,9 in particular in that change does not become operative for 30 if e-mail is used. To help the it is designed to prevent fraudulent and days after the date of filing, or such Commission process and review your manipulative acts and practices, to shorter time as the Commission may comments more efficiently, comments promote just and equitable principles of designate if consistent with the should be sent in hardcopy or by e-mail trade, to foster cooperation and protection of investors and the public but not by both methods. Copies of the coordination with persons engaged in interest. The Amex has requested that submission, all subsequent facilitating transactions in securities, to the Commission waive the 30-day amendments, all written statements remove impediments to and perfect the operative delay. with respect to the proposed rule mechanism of a free and open market The Commission believes that change that are filed with the and a national market system, to protect waiving the 30-day operative delay is Commission, and all written investors and the public interest and is consistent with the protection of communications relating to the not designed to permit unfair investors and the public interest. The proposed rule change between the discrimination between customers, revision contained in the proposed rule Commission and any person, other than issuers, brokers, or dealers. change relating to small business issuers those that may be withheld from the would provide consistency between the public in accordance with the B. Self-Regulatory Organization’s treatment afforded to such entities provisions of 5 U.S.C. 552, will be Statement on Burden on Competition under Amex’s enhanced corporate available for inspection and copying at The Exchange does not believe that governance listing standards and the the Commission’s Public Reference the proposed rule change, as amended, provisions of those standards that were Room. Copies of such filing will also be will impose any burden on competition. adopted to comply with Rule 10A–3. available for inspection and copying at Acceleration of the operative date will the principal office of the Amex. All C. Self-Regulatory Organization’s ease implementation of the new rules. submissions should refer to the File No. Statement on Comments on the The other revisions contained in the SR–Amex–2004–06 and should be Proposed Rule Change Received From proposed rule change are non- submitted by March 22, 2004. Members, Participants, or Others substantive. For these reasons, the For the Commission, by the Division The Exchange did not receive any Commission designates the proposed of Market Regulation, pursuant to written comments on the proposed rule rule change, as amended, to be effective delegated authority.15 change. and operative upon filing with the Commission.13 Margaret H. McFarland, III. Date of Effectiveness of the At any time within 60 days of the Deputy Secretary. Proposed Rule Change and Timing for filing of the proposed rule change, the Commission Action [FR Doc. 04–4430 Filed 2–27–04; 8:45 am] BILLING CODE 8010–01–P The proposed rule change has been 10 15 U.S.C. 78s(b)(3)(A). 11 filed by the Amex as a ‘‘non- 17 CFR 240.19b–4(f)(6). 12 14 For purposes of calculating the 60-day controversial’’ rule change pursuant to 17 CFR 240.19b–4(f)(6)(iii). 13 For the purposes only of accelerating the abrogation period, the Commission considers the operative date of this proposal, the Commission has period to commence on February 12, 2004, the date 8 15 U.S.C. 78f(b). considered the proposed rules impact on efficiency, that the Exchange filed Amendment No. 2. 9 15 U.S.C. 78f(b)(5). competition, and capital formation. 15 U.S.C. 78c(f). 15 17 CFR 200.30–3(a)(12).
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SECURITIES AND EXCHANGE established policies and procedures and the most significant aspects of such COMMISSION applicable auditing standards are being statements. followed; or [Release No. 34–49302; File No. SR–Amex– (ii) is enrolled in a peer review A. Self-Regulatory Organization’s 2003–86] program and within 18 months receives Statement of the Purpose of, and a peer review that meets acceptable Statutory Basis for, the Proposed Rule Self-Regulatory Organizations; Notice Change of Filing of Proposed Rule Change and guidelines. Amendment No. 1 Thereto by the (b) The following guidelines are 1. Purpose acceptable for the purposes of Sec. 605: American Stock Exchange LLC To Currently, section 605 of the Amex (i) the peer review should be Amend Section 605 of the Exchange’s Company Guide requires Amex listed comparable to AICPA standards Company Guide Relating to the companies to be audited by an included in Standards for Performing on Requirements Applicable to Listed independent public accountant that Peer Reviews, codified in the AICPA’s Company Auditors participates in a peer review program, SEC Practice Section Reference Manual; (ii) the peer review program should be i.e., an external quality control review February 23, 2004. by an independent public accountant Pursuant to section 19(b)(1) of the subject to oversight by an independent body comparable to the organizational that determines whether the auditor’s Securities Exchange Act of 1934 system of quality control is in place and (‘‘Act’’),1 and Rule 19b–4 thereunder,2 structure of the Public Oversight Board as codified in the AICPA’s SEC Practice operating effectively and whether notice is hereby given that on October established policies and procedures and 3, 2003, the American Stock Exchange Section Reference Manual; and (iii) the administering entity and the applicable auditing standards are being LLC (‘‘Amex’’ or ‘‘Exchange’’) filed with followed. In practice, section 605 of the the Securities and Exchange independent oversight body of the peer review program must, as part of their Amex Company Guide requires that the Commission (‘‘Commission’’ or ‘‘SEC’’) auditor either be a member of the the proposed rule change as described rules of procedure, require the retention of the peer review working papers for 90 American Institute of Certified Public in items I, II and III below, which items Accountants (‘‘AICPA’’) SEC Practice have been prepared by the Exchange. days after acceptance of the peer review report and allow the Exchange access to Section, which subjects the auditor to On January 22, 2004, the Exchange the AICPA peer review program, or be submitted an amendment to the those working papers.] A listed company must be audited by enrolled in a peer review program with proposed rule change.3 The Commission comparable standards. is publishing this notice to solicit an independent public accountant that is registered, as required, with the Pursuant to the Sarbanes-Oxley Act of comments on the proposed rule change, 2002 (‘‘Sarbanes-Oxley Act’’), the Public as amended, from interested persons. Public Company Accounting Oversight Board (‘‘PCAOB’’). Company Accounting Oversight Board I. Self-Regulatory Organization’s Commentary (‘‘PCAOB’’) was created to regulate Statement of the Terms of Substance of .01 In evaluating the eligibility of an accounting firms that prepare and issue the Proposed Rule Change issuer which has applied for listing, the audit reports on public companies that are either required to file reports with The Exchange proposes to amend Exchange will only consider financial statements provided in connection with the Commission or that have filed a section 605 of the Amex Company registration statement for a public Guide with respect to the requirements the application and relied upon to demonstrate compliance by the offering of securities (together, ‘‘public applicable to listed company auditors. companies’’). The Sarbanes-Oxley Act The text of the proposed rule change, as applicant, if such financial statements were audited or reviewed, as required by further provides that 180 days after the amended, is set forth below. Text in Commission determines that the PCAOB brackets indicates material to be applicable SEC requirements, by an independent public accountant that is capable of carrying out its deleted, and text in italics indicates responsibilities, accounting firms that material to be added. was, at the time of issuance of such financial statements, either registered are not registered with PCAOB would be * * * * * with the PCAOB, or, for financial prohibited from preparing or issuing audit reports on public companies. In American Stock Exchange LLC statements issued prior to the time the accordance with recently approved Company Guide auditor was required to register with PCAOB rules, U.S. accounting firms PCAOB, enrolled in the American Sec. 605 [Peer Review] Auditor were required to register by October 22, Institute of Certified Public Accountants Requirements 2003.4 (‘‘AICPA’’) or equivalent peer review [(a) A listed company must be audited Accordingly, the Exchange proposes program. by an independent public accountant to revise section 605 of the Amex that: * * * * * Company Guide to specify that Amex (i) has received an external quality II. Self-Regulatory Organization’s listed companies must be audited by an control review by an independent Statement of the Purpose of, and accounting firm registered, as required, public accountant (‘‘peer review’’) that Statutory Basis for, the Proposed Rule with the PCAOB. New commentary to determines whether the auditor’s system Change section 605 would also clarify that, in of quality control is in place and evaluating the eligibility of an issuer In its filing with the Commission, the operating effectively and whether which has applied for listing, the Exchange included statements Exchange would only consider financial concerning the purpose of and basis for 1 15 U.S.C. 78s(b)(1). statements provided in connection with 2 the proposed rule change and discussed 17 CFR 240.19b–4. the application and relied upon to 3 any comments it received on the See letter from Eric Van Allen, Assistant General demonstrate compliance by the Counsel, Amex, to Nancy Sanow, Assistant proposed rule change. The text of these applicant, if such financial statements Director, Division of Market Regulation, statements may be examined at the Commission, dated January 21, 2004, replacing Form 19b–4 in its entirety (‘‘Amendment No. 1’’). places specified in item IV below. The 4 Pursuant to PCAOB rules, foreign public In Amendment No. 1, the Amex made technical Exchange has prepared summaries, set accounting firms have been granted an additional changes to its proposed rule text and discussion. forth in sections A, B, and C below, of 180 days to register (i.e., until April 19, 2004).
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were audited or reviewed, as required C. Self-Regulatory Organization’s For the Commission, by the Division of by applicable Commission Statement on Comments on the Market Regulation, pursuant to delegated 8 requirements, by an independent public Proposed Rule Change Received from authority. accountant that was, at the time of Members, Participants or Others Margaret H. McFarland, issuance of such financial statements, Deputy Secretary. No written comments were solicited either registered with the PCAOB, or, for [FR Doc. 04–4435 Filed 2–27–04; 8:45 am] or received with respect to the proposed financial statements issued prior to the rule change. BILLING CODE 8010–01–P time the auditor was required to register with PCAOB, enrolled in the AICPA or III. Date of Effectiveness of the equivalent peer review program. Proposed Rule Change and Timing for SECURITIES AND EXCHANGE COMMISSION In evaluating either the initial or Commission Action continued listing eligibility of an issuer, Within 35 days of the date of the Exchange would consider the extent [Release No. 34–49300; File No. SR–BSE– publication of this notice in the Federal 2004–07] to which any PCAOB regulatory finding Register or within such longer period (i) or action, a modified or adverse peer as the Commission may designate up to Self-Regulatory Organizations; Notice review opinion, or other regulatory 90 days of such date if it finds such of Filing and Order Granting issue with respect to a listed company’s longer period to be appropriate and Accelerated Approval of Proposed auditor raises concerns with respect to publishes its reasons for so finding or Rule Change and Amendment No. 1 the reliability or integrity of the (ii) as to which the Exchange consents, Thereto by the Boston Stock company’s financial statements. As the Commission will: Exchange, Inc. Relating to the warranted, the Exchange would take (A) By order approve such proposed Extension of a Linkage Fee Pilot action pursuant to its general authority rule change, or Program to exclude issuers raising public interest (B) Institute proceedings to determine concerns from listing (i.e., sections 101 whether the proposed rule change February 23, 2004. and 1003(f)(iii) of the Amex Company should be disapproved. Pursuant to section 19(b)(1) of the Guide) to either deny the listing Securities Exchange Act of 1934 application or delist the issuer.5 In IV. Solicitation of Comments (‘‘Act’’),1 and Rule 19b–4 thereunder,2 determining whether a public interest Interested persons are invited to notice is hereby given that on February concern exists, the Exchange would submit written data, views, and 11, 2004, the Boston Stock Exchange, consider the substance of the issue(s) arguments concerning the foregoing, Inc. (‘‘Exchange’’ or ‘‘BSE’’) filed with raised, the independent accountant’s including whether the proposed rule the Securities and Exchange response, including whether corrective change, as amended, is consistent with Commission (‘‘Commission’’) the action was taken, as well as any follow- the Act. Persons making written proposed rule change as described in up review or action by PCAOB or submissions should file six copies Items I and II below, which Items have AICPA. thereof with the Secretary, Securities been prepared by the Exchange. On and Exchange Commission, 450 Fifth February 20, 2004, the BSE filed 2. Statutory Basis Street, NW., Washington, DC 20549– Amendment No. 1 to the proposed rule 3 The Exchange believes that the 0609. Comments may also be submitted change. The Commission is publishing proposed rule change is consistent with electronically at the following e-mail this notice to solicit comments on the section 6(b) of the Act 6 in general, and address: [email protected]. All proposed rule change, as amended, from interested persons and is approving the furthers the objectives of section 6(b)(5) comment letters should refer to File No. proposed rule change, as amended, on of the Act 7 in particular, because it is SR–Amex–2003–86. This file number an accelerated basis, until July 31, 2004. designed to prevent fraudulent and should be included on the subject line manipulative acts and practices, to if e-mail is used. To help the I. Self-Regulatory Organization’s promote just and equitable principles of Commission process and review your Statement of the Terms of Substance of trade, to foster cooperation and comments more efficiently, comments the Proposed Rule Change coordination with persons engaged in should be sent in hard copy or by e-mail facilitating transactions in securities, to but not by both methods. Copies of the The BSE proposes to extend the remove impediments to and perfect the submission, all subsequent current pilot program applicable to amendments, all written statements Options Intermarket Linkage mechanism of a free and open market 4 and a national market system, and, in with respect to the proposed rule (‘‘Linkage’’) fees for six months until general, to protect investors and the change that are filed with the July 31, 2004. public interest, and is not designed to Commission, and all written The proposed fee schedule is permit unfair discrimination between communications relating to the available at the Exchange and at the customers, issuers, brokers, or dealers. proposed rule change between the Commission. Commission and any person, other than B. Self-Regulatory Organization’s those that may be withheld from the 8 17 CFR 200.30–3(a)(12). Statement on Burden on Competition public in accordance with the 1 15 U.S.C. 78s(b)(1). provisions of 5 U.S.C. 552, will be 2 17 CFR 240.19b–4. The Exchange believes that the available for inspection and copying in 3 See letter from John A. Boese, Assistant Vice proposed rule change will impose no the Commission’s Public Reference President, Legal and Compliance, BSE, to Nancy J. burden on competition. Sanow, Assistant Director, Commission, dated Room. Copies of such filing will also be February 19, 2004 (‘‘Amendment No. 1’’). In available for inspection and copying at Amendment No. 1, the Exchange made technical 5 Any such action would be subject to appropriate the principal office of the Exchange. All corrections to the proposed rule change. appeal procedures as set forth in Part 12 of the submissions should refer to file number 4 See Exchange Act Release No. 49066 (January Amex Company Guide. 13, 2004), 69 FR 2773 (January 20, 2004) (SR–BSE– 6 15 U.S.C. 78f(b). SR–Amex–2003–86 and should be 2003–17) (Approving Linkage fees on a pilot basis 7 15 U.S.C. 78f(b)(5). submitted by March 22, 2004. to expire January 31, 2004).
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II. Self-Regulatory Organization’s for the trade-through that caused the S communications relating to the Statement of the Purpose of, and order to be sent. proposed rule change between the Statutory Basis for, the Proposed Rule The BSE now proposes to extend the Commission and any person, other than Change pilot program to July 31, 2004, and have those that may be withheld from the the requested extension applied public in accordance with the In its filing with the Commission, the retroactively to February 1, 2004, in provisions of 5 U.S.C. 552, will be BSE included statements concerning the order to remain consistent with the available for inspection and copying in purpose of, and basis for, the proposed other options exchanges concerning the Commission’s Public Reference rule change and discussed any these fees. The Exchange notes that BOX Room. Copies of such filing will also be comments it received on the proposed did not commence trading until available for inspection and copying at rule change. The text of these statements February 6, 2004, and therefore the the principal office of the Exchange. All may be examined at the places specified Linkage fees would not be applicable submissions should be submitted by in Item III below. The Exchange has until that date. March 22, 2004. prepared summaries, set forth in Sections A, B, and C below, of the most 2. Statutory Basis IV. Commission’s Findings and Order Granting Accelerated Approval of significant aspects of such statements. The Exchange believes that the Proposed Rule Change and Amendment A. Self-Regulatory Organization’s proposal is consistent with section 6(b) 7 No. 1 Statement of the Purpose of, and of the Act, in general, and section 8 After careful consideration, the Statutory Basis for, the Proposed Rule 6(b)(4), in particular, in particular, in Commission finds that the proposed Change that it provides for the equitable allocation of reasonable dues, fees, and rule change, as amended, is consistent 1. Purpose other charges among its members. with the requirements of the Act and the rules and regulations thereunder, The BSE proposes to extend the B. Self-Regulatory Organization’s applicable to a national securities current pilot program for the Statement on Burden on Competition exchange,9 and, in particular, with the effectiveness of its Linkage fees on its The Exchange does not believe that requirements of section 6(b) of the Act 10 Boston Options Exchange (‘‘BOX’’) the proposed rule change will impose and the rules and regulations facility through July 31, 2004. BOX’s any burden on competition that is not thereunder. The Commission finds that current fee structure for Principal (‘‘P’’) necessary or appropriate in furtherance the proposed rule change, as amended, and Principal Acting as Agent (‘‘P/A’’) of the purposes of the Act. is consistent with section 6(b)(4) of the orders 5 executed on BOX is operating Act,11 which requires that the rules of under a pilot program which expired on C. Self-Regulatory Organization’s the Exchange provide for the equitable January 31, 2004.6 Because all Linkage Statement on Comments on the allocation of reasonable dues, fees, and Orders received by BOX are for the Proposed Rule Change Received From other charges among its members and account of a market maker on another Members, Participants or Others other persons using its facilities. The exchange, the fees applicable to P and No written comments were solicited Commission believes that the extension P/A Orders would be the same as fees or received with respect to the proposed of the Exchange’s Linkage fee pilot applicable to market makers on other rule change. program until July 31, 2004 will give the exchanges that submit orders to BOX Exchange and the Commission outside of Linkage. The side of a BOX III. Solicitation of Comments opportunity to evaluate whether such trade opposite an inbound P or P/A Interested persons are invited to fees are appropriate. order would be billed normally as any submit written data, views and The BSE has requested that the other BOX trade. Also, consistent with arguments concerning the foregoing, Commission approve the extension of the Linkage Plan, no fees would be including whether the proposed rule the pilot retroactively to February 1, charged to a party sending a Satisfaction change is consistent with the Act. 2004. The Commission notes that BOX request (‘‘S’’ order) to BOX. However, a Persons making written submissions did not commence trading until fee would be charged to the BOX should file six copies thereof with the February 6, 2004 and, therefore, the Options Participant that was responsible Secretary, Securities and Exchange Linkage fees would not be applicable Commission, 450 Fifth Street, NW., until that date. The Commission 5 Under the Options Intermarket Linkage Plan Washington, DC 20549–0609. believes that applying the fees (‘‘Plan’’ or ‘‘Linkage Plan’’) and Chapter XII of the Comments may also be submitted retroactively will enable BOX to charge BOX Rules, which tracks the language of the Plan, electronically at the following e-mail fees for Linkage Orders in a manner a ‘‘Linkage Order’’ means an Immediate or Cancel order routed through the Linkage as permitted address: [email protected]. All consistent with the charges for Linkage under the Plan. There are three types of Linkage comment letters should refer to File No. fees imposed pursuant to the rules of orders: SR–BSE–2004–07. This file number the other options exchanges, which (i) ‘‘P/A Order,’’ which is an order for the should be included on the subject line were previously approved by the principal account of a Market Maker (or equivalent Commission. entity on another Participant Exchange that is if e-mail is used. To help the authorized to represent Public Customer orders), Commission process and review your The Commission finds good cause, 12 reflecting the terms of a related unexecuted Public comments more efficiently, comments pursuant to section 19(b)(2) of the Act, Customer order for which the specialist is acting as should be sent in hardcopy or by e-mail for approving the proposed rule change, agent; but not by both methods. Copies of the as amended, prior to the thirtieth day (ii) ‘‘P Order,’’ which is an order for the principal after the date of publication of the account of a market maker (or equivalent entity on submission, all subsequent another Participant exchange) and is not a P/A amendments, all written statements notice of the filing thereof in the Order; and with respect to the proposed rule (iii) ‘‘Satisfaction Order,’’ which is an order sent change that are filed with the 9 In approving this rule, the Commission notes through the Linkage to notify a Participant that it has considered its impact on efficiency, Exchange of a Trade-Through and to seek Commission, and all written competition, and capital formation. 15 U.S.C. 78c(f). satisfaction of the liability arising from that Trade- 10 15 U.S.C. 78f(b). Through. 7 15 U.S.C. 78f(b). 11 15 U.S.C. 78f(b)(4). 6 See supra note 4. 8 15 U.S.C. 78f(b)(4). 12 15 U.S.C. 78s(b)(2).
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Federal Register. The Commission BSECC’s liability in order to maintain a members. Rather, BSECC is seeking to believes that granting accelerated consistent approach with the Boston clarify, by eliminating inconsistencies approval of the proposed rule change Stock Exchange’s (‘‘BSE’’) recently and providing succinct language, and to will allow the Exchange to implement approved proposed rule change enhance its position which it holds with its existing pilot program for Linkage clarifying BSE’s liability with respect to respect to liability on the part of its fees as the BSE and the Commission its members’ contractual obligations.3 members. consider the appropriateness of Linkage These changes being made by BSECC: fees. (1) Clarify in Rule II, Section 1, that III. Discussion BSECC’s clearing fund is to make good Section 17A(b)(3)(F) of the Act V. Conclusion losses suffered by BSECC without the requires that the rules of a clearing It is therefore ordered, pursuant to losses of its members having priority; agency be designed to assure the section 19(b)(2) of the Act,13 that the (2) Eliminate a provision in Rule II, safeguarding of securities and funds proposed rule change (SR–BSE–2004– Section 5(e), which allows the retained which are in the custody or control of 07), as amended, is hereby approved on earnings of BSECC to be used to satisfy the clearing agency or for which it is an accelerated basis for a pilot period to any loss or liability resulting from a responsible.5 The Commission finds expire on July 31, 2004. BSECC member’s default; that BSECC’s proposed rule change is For the Commission, by the Division of (3) Eliminate language in Rule III, consistent with this requirement Market Regulation, pursuant to delegated Section 3(a), stating that BSECC because it will clarify and enhance authority.14 guarantees settlement of all trades BSECC’s Rules so that it can better Margaret H. McFarland, executed on the floor of BSE; 4 protect itself and its members from the Deputy Secretary. (4) Amend Rule III, Section 3(e), to risk of default. make BSECC loans to members to [FR Doc. 04–4429 Filed 2–27–04; 8:45 am] complete settlement with the National IV. Conclusion BILLING CODE 8010–01–P Securities Clearing Corporation On the basis of the foregoing, the (‘‘NSCC’’) discretionary, not automatic. Commission finds that the proposed SECURITIES AND EXCHANGE The current automatic loan provision is rule change is consistent with the COMMISSION inconsistent with the purpose of the requirements of the Act and in proposed rule change that members will particular Section 17A of the Act and [Release No. 34–49305; File No. SR– be solely liable for their transactions the rules and regulations thereunder. BSECC–2003–01] and that BSECC is not the ultimate It is therefore ordered, pursuant to guarantor for its members; Self-Regulatory Organizations; Boston Section 19(b)(2) of the Act, that the (5) Amend Rule XI, Section 3, to proposed rule change (File No. SR– Stock Exchange Clearing Corporation; increase the maximum fine for any Order Approving Proposed Rule BSECC–2003–01) be and hereby is offense of BSECC Rules from $1,000 to approved. Change To Clarify Liability and $5,000 and increase from $5,000 to Clearing Agency Services $30,000 the amount that fines imposed For the Commission by the Division of Market Regulation, pursuant to delegated February 23, 2004. in the last six months must exceed authority.6 before BSECC is required to give the Margaret H. McFarland, I. Introduction member notice of its right to appeal; and On May 29, 2003, the Boston Stock (6) Strengthen BSECC’s Deputy Secretary . Exchange Clearing Corporation indemnification clause found in Rule [FR Doc. 04–4433 Filed 2–27–04; 8:45 am] (‘‘BSECC’’) filed with the Securities and XII, Section 6, by stating that each BILLING CODE 8010–01–P Exchange Commission (‘‘Commission’’) member will remain ‘‘solely proposed rule change SR–BSECC–2003– responsible’’ and liable for its 01 pursuant to Section 19(b)(1) of the transactions; The proposed rule change SECURITIES AND EXCHANGE Securities Exchange Act of 1934 also deletes all references to Boston COMMISSION (‘‘Act’’).1 On July 21, 2003, August 25, Representative Broker/Dealer Accounts, [Release No. 34–49304; File No. SR–BSE– 2003, and September 12, 2003, BSECC BSE Service Corporation, and 2002–06] amended the proposed rule change. Institutional Members. Such references Notice of the proposal was published in are no longer applicable as they relate Self-Regulatory Organizations; Boston the Federal Register on January 13, to services or lines of business in which Stock Exchange; Order Approving 2004.2 No comment letters were BSECC is no longer involved. Also, Proposed Rule Change To Clarify received. For the reasons discussed BSECC has in various places added Exchange Liability below, the Commission is approving the references to NSCC due to the merger of February 23, 2004. proposed rule change. NSCC and The Depository Trust I. Introduction II. Description Company. BSECC is not making these On September 26, 2002, the Boston The purpose of the proposed rule amendments in response to any recent Stock Exchange (‘‘BSE’’) filed with the change is to delete or amend certain or perceived action by any of its Securities and Exchange Commission sections of the BSECC Rules to clarify (‘‘Commission’’) proposed rule change BSECC’s liability and clearing agency 3 The Commission approved a companion SR–BSE–2002–06 pursuant to section services. proposed rule change filed by the Boston Stock BSECC is seeking to make several Exchange to amend various Articles of its 19(b)(1) of the Securities Exchange Act 1 changes to its Rules as they pertain to Constitution and sections of its Rules to clarify the of 1934 (‘‘Act’’). On November 5, 2002, liability of the exchange with respect to its May 29, 2003, and July 21, 2003, BSE members’ contractual obligations. Securities amended the proposed rule change. 13 Id. Exchange Act Release No. 49304 (February 23, 14 17 CFR 200.30–3(a)(12). 2004), [File No. SR–BSE–2002–06]. 1 15 U.S.C. 78s(b)(1). 4 BSE guarantees exchange trades until they are 5 15 U.S.C. 78q–1(b)(3)(F). 2 Securities Exchange Act Release No. 49027 accepted by the National Securities Clearing 6 17 CFR 200.30–3(a)(12). (January 6, 2004), 69 FR 2027. Corporation. 1 15 U.S.C. 78s(b)(1).
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Notice of the proposal was published in exclusively linked to conducting notice hereby is given that on December the Federal Register on January 13, transactions in the buying and selling of 31, 2003, the Chicago Stock Exchange, 2004.2 No comment letters were equity securities. Inc. (‘‘CHX’’ or ‘‘Exchange’’) filed with received. For the reasons discussed the Securities and Exchange III. Discussion below, the Commission is approving the Commission (‘‘SEC’’ or ‘‘Commission’’) proposed rule change. Section 6(b)(5) of the Act requires that the proposed rule change as described the rules of a national securities in Items I, II and III below, which Items II. Description exchange be designed to promote just have been prepared by the Exchange. The purpose of the proposed rule and equitable principles of trade, to On February 19, 2004, the Exchange change is to amend certain sections of foster cooperation and coordination filed Amendment No. 1 to the proposed the BSE Constitution and Rules to with persons engaged in regulating, rule change.3 The Commission is clarify BSE’s liability with respect to its clearing, settling, processing publishing this notice to solicit members’ contractual obligations.3 information with respect to, and comments on the proposed rule change, In particular, BSE is modifying facilitating transactions in securities, to as amended, from interested persons. Articles XII and XIII of its Constitution remove impediments to and perfect the to insure that any BSE member who is mechanism of a free and open market I. Self-Regulatory Organization’s a party to a transaction remains solely and a national market system, and, in Statement of the Terms of Substance of liable for the transaction. This language general, to protect investors and the the Proposed Rule Change is consistent with similar language and public interest and are not designed to The Exchange proposes to amend its approaches of other exchanges in permit unfair discrimination between membership dues and fees schedule (the limiting the liability of an exchange customers, issuers, brokers, or dealers.5 ‘‘Fee Schedule’’), effective January 1, with respect to contracts entered into by The Commission finds that BSE’s 2004, to clarify the applicability of members.4 In Article XIII of its proposed rule change is consistent with certain Fee Schedule provisions relating Constitution, the BSE is also adding these requirements because it clarifies to transaction fees, and establish a certain language from the BSECC BSE’s liability with respect to its schedule of maximum monthly Participant Hypothecation Agreement. members’ contractual obligations. transaction fees for certain agency The provision to be inserted into the IV. Conclusion orders executed through a CHX floor Constitution would prevent BSE from broker. becoming a de facto guarantor of an On the basis of the foregoing, the Below is the text of the proposed rule insolvent member’s contractual Commission finds that the proposed change. Proposed new language is obligations. rule change is consistent with the italicized; proposed deletions are in BSE is amending other sections of its requirements of the Act and in [brackets]. particular section 6(b)(5) of the Act and Rules consistent with this theme. * * * * * Chapter III, ‘‘Comparisons—Liability on the rules and regulations thereunder. Contracts,’’ Section 4, ‘‘Failures to It is therefore ordered, pursuant to Membership Dues and Fees Compare,’’ now states that BSE shall section 19(b)(2) of the Act, that the proposed rule change (File No. SR– F. Transaction and Order Processing have no liability to any of the original Fees parties to a contract entered into by a BSE–2002–06) be and hereby is member. Chapter VI, ‘‘Failure to Fulfill approved. 1–3. No change to text. Contracts,’’ Section 1, ‘‘Closing For the Commission by the Division of 4. Transaction Fees. Contracts,’’ now makes it clear that no Market Regulation, pursuant to delegated a. Market orders sent via MAX, except action taken by BSE in closing or authority.6 agency orders executed through floor assisting to close a contract entered into Margaret H. McFarland, brokers—No charge. by a BSE member shall have the effect Deputy Secretary. b. All orders sent via MAX in Tape B of transferring any liability related to [FR Doc. 04–4434 Filed 2–27–04; 8:45 am] eligible issues or in the stocks comprising the Standard & Poor’s 500 that contract to BSE. Chapter VI, Section BILLING CODE 8010–01–P 2, ‘‘Notice of Closing Contracts,’’ echoes Stock Price Index, except agency orders this approach for instances in which executed through floor brokers—No BSE takes action to attempt to close a SECURITIES AND EXCHANGE charge. contract on behalf of a member in COMMISSION c. No change to text default. None of these changes are in d. [Through June 30, 2001, all orders [Release No. 34–49297; File No. SR–CHX– that are executed during the E-Session] response to any recent circumstance. 2003–39] They are only aimed at clarifying BSE’s Reserved for future use—[No charge.] unique position in relation to assisting Self-Regulatory Organizations; Notice e. In Nasdaq/NM securities, agency its members in other contractual matters of Filing and Immediate Effectiveness executions executed through a floor of a Proposed Rule Change and broker and market maker execution— 2 Securities Exchange Act Release No. 49026 Amendment No. 1 Thereto by the $.0025 per share (up to a maximum of (January 6, 2004), 69 FR 2026. Chicago Stock Exchange, Inc. Relating $100 per side), subject to the fee 3 The Commission approved a companion to Membership Dues and Fees reduction described in (i), below[.] and proposed rule change filed by the Boston Stock the fee cap described in (j) below. Exchange Clearing Corporation (‘‘BSECC’’) to amend various sections of its Rules as they pertain February 23, 2004. f. In Dual Trading System issues, to BSECC’s liability in order to maintain a Pursuant to Section 19(b)(1) of the agency executions executed through a consistent approach with the changes approved in Securities Exchange Act of 1934 this filing. Securities Exchange Act Release No. (‘‘Act’’),1 and Rule 19b–4 thereunder,2 3See facsimile from Ellen J. Neely, Senior Vice 49305 (February 23, 2004), [File No. SR–BSECC– President & General Counsel, CHX, to A. Michael 2003–01]. Pierson, Attorney, and Marisol Rubecindo, Law 5 4 See, e.g., New York Stock Exchange Rules 137 15 U.S.C. 78f(b)(5). Clerk, Division of Market Regulation (‘‘Division’’), and 142; Chicago Stock Exchange Rules, Article 6 17 CFR 200.30–3(a)(12). Commission, dated February 19, 2004 XXV, Rule 11; and Philadelphia Stock Exchange 115 U.S.C. 78s(b)(1). (‘‘Amendment No. 1’’). Amendment No. 1 replaced Rule 254. 217 CFR 240.19b–4. the proposed rule change in its entirety.
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floor Broker and market maker A. Self-Regulatory Organization’s Thus, the proposed rule change does not Executions—$.0035 per share (up to a Statement of the Purpose of, and impose any new transaction fees. maximum of $100 per side), subject to Statutory Basis for, the Proposed Rule To preserve the CHX’s competitive the fee reduction described in (i), Change position with respect to MAX agency below[. (Effective January 1, 2001)] and 1. Purpose orders executed through a CHX floor the fee cap described in (j) below. g. All other MAX orders, except The Exchange proposes to amend broker, the Fee Schedule is also being agency orders executed through floor Section F (‘‘Transactions and Order amended to incorporate a monthly brokers. Processing Fees’’) of the Fee Schedule, maximum transaction fee schedule for * * * * * effective January 1, 2004, by clarifying order-sending firms that meet certain h. The monthly maximum for the applicability of certain Fee Schedule monthly volume thresholds. The CHX transaction fees for orders sent via provisions relating to transaction fees, believes that the proposed transaction MAX, except agency orders executed and establishing a schedule of fee schedule represents a reasonable through floor brokers, is $10,000 or, if maximum monthly transaction fees for balance between the need to maintain a less, $.40 per 100 average monthly gross certain agency orders executed through competitive pricing structure and the round lot shares. a CHX floor broker. need to assess a reasonable transaction i. No change to text Order-sending firms, which are fee when the assistance of a floor broker j. The transaction fees set forth in members of the Exchange,4 generally is required.8 In addition, the CHX Sections F.4(e) and (f) shall be subject route agency orders to the CHX via the believes that the transaction fee to the following monthly maximums: Exchange’s Midwest Automated maximums represent a reasonable (i) If the order-sending firm has routed Execution system, commonly referred to allocation of transaction fees, chiefly an average of 7,000–9,999 executed as the MAX’’ system.5 The Exchange because the maximums apply to benefit round lot orders per day in a given currently does not assess its order- the order-sending firms that route month to the Exchange via the MAX sending firms a transaction fee for most significant levels of order flow to the system, a maximum of $40,000 for that orders sent through MAX and executed CHX, which generates increased month; by specialists.6 If an agency order is (ii) If the order-sending firm has revenues for the CHX. The CHX also routed by MAX to a CHX floor broker believes that the maximums are fair to routed an average of 10,000–12,499 for execution, however, such order is executed round lot orders per day in a all members because they are available assessed a transaction fee in accordance to any order-sending firm that chooses given month to the Exchange via the with Section F.4(e) and (f). The to meet the volume thresholds. MAX system, a maximum of $35,000 for Exchange is proposing changes to that month; Sections F.4(a), (b), (g) and (h) of the Fee 2. Statutory Basis (iii) If the order-sending firm has Schedule to clarify the applicability of routed an average of 12,500–15,000 a transaction fee to MAX agency orders The Exchange believes that the executed round lot orders per day in a executed through a CHX floor broker.7 proposed rule change, as amended, is given month to the Exchange via the consistent with the provisions of MAX system, a maximum of $30,000 for 4 Telephone conversation between Kathleen M. Section 6(b) of the Act,9 in general, and that month; Boege, Vice President and Associate General Section 6(b)(4) of the Act,10 in (iv) If the order-sending firm has Counsel, CHX, and Lisa N. Jones, Special Counsel, particular, in that it provides for the routed an average of more than 15,000 Division, Commission (February 17, 2004). 5 equitable allocation of reasonable dues, executed round lot orders per day in a At the order-sending firm’s request, however, an agency order routed through the MAX system may fees and other charges among its given month to the Exchange via the be sent directly to a CHX floor broker for handling. members. MAX system, a maximum of $25,000 for 6 See CHX Schedule of Membership Dues and that month. Fees at Section F.4(a)–(c). Sections (b) and (c) of smaller orders to floor brokers via MAX. The k. An order-sending firm will not be Section F.4 were added to clarify that orders in proposed amendment would add Section F.4(j) to eligible for any of the transaction fee Tape B eligible issues, in the stock of the Standard establish new transaction fee maximums for MAX- & Poor’s 500 Stock Price Index, and in Nasdaq/NMS delivered, floor broker-assisted orders, based on the caps or reductions set forth in Section securities are not assessed a transaction fee when number of MAX orders routed to the CHX by the F.4 if the number of orders cancelled sent through MAX and executed by a specialist. order-sending firm. This change will permit order- during the subject month by the member Telephone conversation between Ellen J. Neely, sending firms that route a large number of small firm exceeds 50% of the member firm’s CHX, A. Michael Pierson, and Marisol Rubecindo, orders to qualify for a transaction fee cap. The CHX Division, Commission (February 23, 2004). believes that the clarifying provisions of the total CHX executions for the month. 7 To summarize the interplay between the amendment are necessary to avoid disputes as to * * * * * provisions of Section F.4, as a general rule, the the applicability of existing provisions imposing Exchange notes that most orders sent via MAX and transaction fees and providing for caps. The II. Self-Regulatory Organization’s executed by the MAX system are not subject to a Exchange notes that no order-sending firm would Statement of the Purpose of, and transaction fee. See Sections F.4(a), (b), (c), and (g). qualify for both the fee cap in F.4(j) and the fee Statutory Basis for, the Proposed Rule Telephone conversation between Ellen J. Neely, reduction in F.4(i) because, if an order-sending firm Change CHX, A. Michael Pierson, and Marisol Rubecindo, had sufficient numbers of MAX-delivered orders to Division, Commission (February 23, 2004). Orders qualify for the fee cap in (j), the proposed cap In its filing with the Commission, the that are sent via MAX and require the assistance of would prevent it from generating monthly charges a CHX floor broker, however, are assessed a sufficient to qualify for the fee reduction in (i). Exchange included statements transaction fee, to compensate for the costs 8 The Exchange is also proposing Section F.4(k) concerning the purpose of, and basis for, associated with the floor broker’s services. See to the Fee Schedule to provide that the monthly the proposed rule change and discussed Sections F.4(e), (f) and proposed amendments to transaction fee caps are not available to an order- Section F.4(a), (b) and (g). Section F.4 also any comments it received on the sending firm that cancels a number of orders that establishes monthly maximum aggregate transaction proposed rule change. The text of these fees. According to the Exchange, Section F.4(h) has exceeds 50% of the firm’s CHX executions during statements may be examined at the always been interpreted as a cap on MAX order the month. The CHX believes that this limitation is places specified in Item IV below. The transaction fees other than the fees for MAX- an appropriate means of deterring abusive Exchange has prepared summaries, set delivered, floor broker-assisted orders. Section cancellation practices because repetitive F.4(i) provides for fee reductions applicable to floor cancellations are extremely disruptive to floor forth in Sections A, B and C below, of broker-assisted orders, but is based on total shares members and to the CHX’s automated systems. the most significant aspects of such traded, thus rendering the fee reductions largely 9 15 U.S.C. 78(f)(b). statements. unavailable to order-sending firms that route 10 15 U.S.C. 78f(b)(4).
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B. Self-Regulatory Organization’s SR–CHX–2003–39. The file number SECURITIES AND EXCHANGE Statement of Burden on Competition should be included on the subject line COMMISSION The Exchange does not believe that if e-mail is used. To help the Commission process and review your [Release No. 34–49298; File No. SR–CHX– the proposed rule change, as amended, 2004–01] will impose any burden on competition. comments more efficiently, comments should be sent in hardcopy or by e-mail Self-Regulatory Organizations; Notice C. Self-Regulatory Organization’s but not by both methods. Copies of the of Filing of a Proposed Rule Change Statement on Comments Regarding the submission, all subsequent and Amendment No. 1 Thereto by the Proposed Rule Change Received from amendments, all written statements Chicago Stock Exchange, Inc. Relating Members, Participants or Others with respect to the proposed rule to Membership Dues and Fees No written comments were either change that are filed with the solicited or received with respect to the Commission, and all written February 23, 2004. proposed rule change, as amended. communications relating to the Pursuant to Section 19(b)(1) of the proposed rule change, as amended, Securities Exchange Act of 1934 III. Date of Effectiveness of the (‘‘Act’’),1 and Rule 19b–4 thereunder,2 between the Commission and any Proposed Rule Change and Timing for notice hereby is given that on January person, other than those that may be Commission Action 21, 2004, the Chicago Stock Exchange, withheld from the public in accordance The foregoing proposed rule change, Inc. (‘‘CHX’’ or ‘‘Exchange’’) filed with with the provisions of 5 U.S.C. 552, will the Securities and Exchange as amended, has become effective be available for inspection and copying pursuant to Section 19(b)(3)(A)(ii) 11 of Commission (‘‘SEC’’ or ‘‘Commission’’) in the Commission’s Public Reference the Act, and Rule 19b–4(f)(2) 12 the proposed rule change as described Room. Copies of such filing will also be thereunder, because it establishes or in Items I, II and III below, which Items changes a due, fee or other charge available for inspection and copying at have been prepared by the Exchange. imposed by the Exchange. At any time the principal office of the Exchange. All On February 19, 2004, the Exchange within 60 days of the filing of such rule submissions should refer to the File No. filed Amendment No. 1 to the proposed change, the Commission may summarily SR–CHX–2003–39 and should be rule change.3 The Commission is abrogate such proposed rule change if it submitted by March 22, 2004. publishing this notice to solicit appears to the Commission that such For the Commission, by the Division of comments on the proposed rule change, action is necessary or appropriate in the Market Regulation, pursuant to delegated as amended, from interested persons. public interest, for the protection of authority.14 I. Self-Regulatory Organization’s investors, or otherwise in furtherance of Margaret H. McFarland, Statement of the Terms of Substance of 13 the purposes of the Act. Deputy Secretary. the Proposed Rule Change III. Solicitation of Comments [FR Doc. 04–4508 Filed 2–27–04; 8:45 am] The Exchange proposes to amend its Interested persons are invited to BILLING CODE 8010–01–P membership dues and fees schedule (the submit written data, views and ‘‘Fee Schedule’’), effective retroactively arguments concerning the foregoing, as of November 1, 2003,4 to clarify the including whether the proposal, as applicability of certain Fee Schedule amended, is consistent with the Act. provisions relating to transaction fees, Persons making written submissions and establish a schedule of maximum should file six copies thereof with the monthly transaction fees for certain Secretary, Securities and Exchange agency orders executed through a CHX Commission, 450 Fifth Street NW., floor broker. Washington, DC 20549–0609. Below is the text of the proposed rule Comments may also be submitted change. Proposed new language is electronically at the following e-mail italicized; proposed deletions are in address: [email protected]. All [brackets]. comment letters should refer to File No. * * * * *
MEMBERSHIP DUES AND FEES
F. Transaction and Order Processing Fees 1–3. No change to text. 4. Transaction Fees. a. Market orders sent via MAX, except agency orders executed through No charge. floor brokers. b. All orders sent via MAX in Tape B eligible issues or in the stocks com- No charge. prising the Standard & Poor’s 500 Stock Price Index, except agency or- ders executed through floor brokers.
11 15 U.S.C. 78s(b)(3)(A)(ii). 1 15 U.S.C. 78s(b)(1). 4 On December 31, 2003, the Exchange filed an 12 15 CFR 240.19b–4(f)(2). 2 17 CFR 240.19b–4. identical amendment to the Fee Schedule, as 13 See 15 U.S.C. 78s(b)(3)(C). For purposes of 3 See facsimile from Ellen J. Neely, Senior Vice immediately effective. See SR–CHX–2003–39. calculating the 60-day abrogation period, the President & General Counsel, CHX, to A. Michael Because the Exchange also seeks to apply the Fee Pierson, Attorney, and Marisol Rubecindo, Law Commission considers the period to commence on Schedule amendments on a retroactive basis (i.e., to Clerk, Division of Market Regulation (‘‘Division’’), the months of November and December, 2003), the February 19, 2004, the date the CHX filed Commission, dated February 19, 2004 Exchange is submitting this proposal for notice and Amendment No. 1. (‘‘Amendment No. 1’’). Amendment No. 1 replaced 14 17 CFR.200.30–3(a)(12). the proposed rule change in its entirety. comment.
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MEMBERSHIP DUES AND FEES—Continued c. No change to text. d. [Through June 30, 2001, all orders that are executed during the E-Ses- [No charge.] sion] Reserved for future use. e. In Nasdaq/NM securities, agency executions executed through a floor $.0025 per share (up to a maximum of broker and market maker executions. $100 per side), subject to the fee reduc- tion described in (i), below[.] and the fee cap described in (j) below. f. In Dual Trading System issues, agency executions executed through a $.0035 per share (up to a maximum of floor Broker and market maker Executions. $100 per side), subject to the fee reduc- tion described in (i), below[. (Effective January 1, 2001)] and the fee cap de- scribed in (j) below. g. All other MAX orders, except agency orders executed through floor bro- kers.
******* h. The monthly maximum for transaction fees for orders sent via MAX, except agency orders executed through floor brokers, is $10,000 or, if less, $.40 per 100 average monthly gross round lot shares. i. No change to text j. The transaction fees set forth in Sections F.4(e) and (f) shall be subject to the following monthly maximums: (i) If the order-sending firm has routed an average of 7,000–9,999 executed round lot orders per day in a given month to the Exchange via the MAX system, a maximum of $40,000 for that month; (ii) If the order-sending firm has routed an average of 10,000–12,499 executed round lot orders per day in a given month to the Exchange via the MAX system, a maximum of $35,000 for that month; (iii) If the order-sending firm has routed an average of 12,500–15,000 executed round lot orders per day in a given month to the Exchange via the MAX system, a maximum of $30,000 for that month; (iv) If the order-sending firm has routed an average of more than 15,000 executed round lot orders per day in a given month to the Exchange via the MAX system, a maximum of $25,000 for that month. k. An order-sending firm will not be eligible for any of the transaction fee caps or reductions set forth in Section F.4 if the number of orders cancelled during the subject month by the member firm exceeds 50% of the member firm’s total CHX executions for the month. *******
II. Self-Regulatory Organization’s Order-sending firms, which are executed through a CHX floor broker.8 Statement of the Purpose of, and members of the Exchange,5 generally Statutory Basis for, the Proposed Rule route agency orders to the CHX via the 8 To summarize the interplay between the Change Exchange’s Midwest Automated provisions of Section F.4, as a general rule, the Exchange notes that most orders sent via MAX and In its filing with the Commission, the Execution system, commonly referred to executed by the MAX system are not subject to a Exchange included statements as the MAX system.6 The Exchange transaction fee. See Sections F.4(a), (b), (c) and (g). currently does not assess its order- Telephone conversation between Ellen J. Neely, concerning the purpose of, and basis for, CHX, A. Michael Pierson, and Marisol Rubecindo, the proposed rule change and discussed sending firms a transaction fee for most Division, Commission (February 23, 2004). Orders any comments it received on the orders sent through MAX and executed that are sent via MAX and require the assistance of proposed rule change. The text of these by specialists.7 If an agency order is a CHX floor broker, however, are assessed a transaction fee, to compensate for the costs statements may be examined at the routed by MAX to a CHX floor broker associated with the floor broker’s services. See places specified in Item IV below. The for execution, however, such order is Sections F.4(e), (f) and proposed amendments to Exchange has prepared summaries, set assessed a transaction fee in accordance Section F.4(a), (b) and (g). Section F.4 also forth in Sections A, B and C below, of establishes monthly maximum aggregate transaction with Section F.4(e) and (f). The fees. According to the Exchange, Section F.4(h) has the most significant aspects of such Exchange is proposing changes to always been interpreted as a cap on MAX order statements. Sections F.4(a), (b), (g) and (h) of the Fee transaction fees other than the fees for MAX- delivered, floor broker-assisted orders. Section A. Self-Regulatory Organization’s Schedule to clarify the applicability of F.4(i) provides for fee reductions applicable to floor Statement of the Purpose of, and a transaction fee to MAX agency orders broker-assisted orders, but is based on total shares Statutory Basis for, the Proposed Rule traded, thus rendering the fee reductions largely unavailable to order-sending firms that route 5 Telephone conversation between Kathleen M. Change smaller orders to floor brokers via MAX. The Boege, Vice President and Associate General Exchange is proposing to add Section F.4(j) to Counsel, CHX, and Lisa N. Jones, Special Counsel, 1. Purpose establish new transaction fee maximums for MAX- Division, Commission (February 17, 2004). delivered, floor broker-assisted orders, based on the The Exchange proposes to amend 6 At the order-sending firm’s request, however, an number of MAX orders routed to the CHX by the Section F (‘‘Transactions and Order agency order routed through the MAX system may order-sending firm. This change will permit order- Processing Fees’’) of the Fee Schedule, be sent directly to a CHX floor broker for handling. sending firms that route a large number of small effective November 1, 2003, by 7 CHX Schedule of Membership Dues and Fees at orders to qualify for a transaction fee cap. The CHX clarifying the applicability of certain Section F.4(a)–(c). Sections (b) and (c) of Section believes that the clarifying provisions of the F.4 were added to clarify that orders in Tape B amendment are necessary to avoid disputes as to Fee Schedule provisions relating to eligible issues, in the stock of the Standard & Poor’s the applicability of existing provisions imposing transaction fees, and establishing a 500 Stock Price Index, and in Nasdaq/NMS transaction fees and providing for caps. The schedule of maximum monthly securities are not assessed a transaction fee when Exchange notes that no order-sending firm would transaction fees for certain agency sent through MAX and executed by a specialist. qualify for both the fee cap in F.4(j) and the fee Telephone conversation between Ellen J. Neely, reduction in F.4(i) because, if an order-sending firm orders executed through a CHX floor CHX, A. Michael Pierson, and Marisol Rubecindo, had sufficient numbers of MAX-delivered orders to broker. Division, Commission (February 23, 2004). Continued
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P=’9662’≤Thus, the proposed in the assessment of any additional fees should be sent in hardcopy or by e-mail rule change does not impose any new against any CHX member. but not by both methods. Copies of the transaction fees. submission, all subsequent 2. Statutory Basis To preserve the CHX’s competitive amendments, all written statements position with respect to MAX agency The Exchange believes that the with respect to the proposed rule orders executed through a CHX floor proposed rule change, as amended, is change that are filed with the broker, the Fee Schedule is also being consistent with the provisions of Commission, and all written amended to incorporate a monthly Section 6(b) of the Act,11 in general, and communications relating to the maximum transaction fee schedule for Section 6(b)(4) of the Act,12 in proposed rule change, as amended, order-sending firms that meet certain particular, in that it provides for the between the Commission and any monthly volume thresholds. The CHX equitable allocation of reasonable dues, person, other than those that may be believes that the proposed transaction fees and other charges among its withheld from the public in accordance fee schedule represents a reasonable members. with the provisions of 5 U.S.C. 552, will be available for inspection and copying balance between the need to maintain a B. Self-Regulatory Organization’s in the Commission’s Public Reference competitive pricing structure and the Statement of Burden on Competition need to assess a reasonable transaction Room. Copies of such filing will also be fee when the assistance of a floor broker The Exchange does not believe that available for inspection and copying at is required.9 In addition, the CHX the proposed rule change, as amended, the principal office of the Exchange. All believes that the transaction fee will impose any burden on competition. submissions should refer to the File No. maximums represent a reasonable C. Self-Regulatory Organization’s SR–CHX–2004–01 and should be submitted by March 22, 2004. allocation of transaction fees, chiefly Statement on Comments Regarding the because the maximums apply to benefit Proposed Rule Change Received From For the Commission, by the Division of the order-sending firms that route Members, Participants or Others Market Regulation, pursuant to delegated significant levels of order flow to the authority.13 CHX, which generates increased No written comments were either Margaret H. McFarland, revenues for the CHX. The CHX also solicited or received with respect to the Deputy Secretary. proposed rule change, as amended. believes that the maximums are fair to [FR Doc. 04–4509 Filed 2–27–04; 8:45 am] all members because they are available III. Date of Effectiveness of the BILLING CODE 8010–01–P to any order-sending firm that chooses Proposed Rule Change and Timing for to meet the volume thresholds. Commission Action As noted above, the Exchange is SECURITIES AND EXCHANGE Within 35 days of the date of proposing to apply the Fee Schedule COMMISSION publication of this notice in the Federal changes on a retroactive basis, to Register or within such other period (i) [Release No. 34–49306; File No. SR–NASD– November 1, 2003. The Exchange as the Commission may designate up to 2004–018] believes that this relief is appropriate 90 days of such date if it finds such because during the months of November Self-Regulatory Organizations; Notice longer period to be appropriate and and December, the Exchange had noted of Filing of Proposed Rule Change and publishes its reasons for so finding or a need for additional clarity regarding Amendment No. 1 Thereto by the (ii) as to which the Exchange consents, transaction fees for MAX agency orders National Association of Securities the Commission will: executed through a CHX floor broker, Dealers, Inc. To Amend the Procedures (A) By order approve the proposed and was engaged in an effort to draft for Review of Nasdaq Listing rule change, or appropriate Fee Schedule provisions for Determinations (B) institute proceedings to determine approval by the Exchange’s Finance whether the proposed rule change Committee and Board of Governors.10 February 23, 2004. should be disapproved. According to the Exchange, if the Fee Pursuant to Section 19(b)(1) of the Schedule amendments are applied, III. Solicitation of Comments Securities Exchange Act of 1934 (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 retroactively, to the months of Interested persons are invited to November and December, 2003, there notice is hereby given that on January submit written data, views and 28, 2004, the National Association of are Exchange order-sending member arguments concerning the foregoing, firms that would be eligible for a Securities Dealers, Inc. (‘‘NASD’’), including whether the proposal, as through its subsidiary, the Nasdaq Stock transaction fee credit. In addition, amended, is consistent with the Act. according to the Exchange the Market, Inc. (‘‘Nasdaq’’), filed with the Persons making written submissions Securities and Exchange Commission retroactive application of the Fee should file six copies thereof with the (‘‘Commission’’) the proposed rule Schedule amendments would not result Secretary, Securities and Exchange change as described in Items I, II, and Commission, 450 Fifth Street NW., III below, which Items have been qualify for the fee cap in (j), the proposed cap Washington, DC 20549–0609. would prevent it from generating monthly charges prepared by Nasdaq. On February 20, sufficient to qualify for the fee reduction in (i). Comments may also be submitted 2004, Nasdaq submitted Amendment 9 The Exchange is also proposing Section F.4(k) electronically at the following e-mail No. 1 to the proposal,3 which replaced to the Fee Schedule to provide that the monthly address: [email protected]. All the original proposal in its entirety. The transaction fee caps are not available to an order- comment letters should refer to File No. Commission is publishing this notice to sending firm that cancels a number of orders that exceeds 50% of the firm’s CHX executions during SR–CHX–2004–01. The file number the month. The CHX believes that this limitation is should be included on the subject line 13 17 CFR.200.30–3(a)(12). an appropriate means of deterring abusive if e-mail is used. To help the 1 15 U.S.C. 78s(b)(1). cancellation practices; repetitive cancellations are Commission process and review your 2 17 CFR 240.19b–4. extremely disruptive to floor members and to the comments more efficiently, comments 3 See letter from Mary M. Dunbar, Vice President CHX’s automated systems. and Deputy General Counsel, Nasdaq, to Katherine 10 These provisions included the maximum A. England, Division of Market Regulation, transaction fee schedule for order-sending firms 11 15 U.S.C. 78(f)(b). Commission, dated February 20, 2004 that meet certain monthly volume thresholds. 12 15 U.S.C. 78f(b)(4). (‘‘Amendment No. 1’’).
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solicit comments on the proposed rule of the original Panel Decision or lose summaries, set forth in Sections A, B, change from interested persons. jurisdiction over the matter. If the and C below, of the most significant Listing Council calls a Panel Decision aspects of such statements. I. Self-Regulatory Organization’s for review on the same issue that the Statement of the Terms of Substance of A. Self-Regulatory Organization’s issuer has requested reconsideration by Statement of the Purpose of, and the Proposed Rule Change the Listing Qualifications Panel, the Nasdaq is filing a proposed rule Listing Council, in its discretion, may Statutory Basis for, the Proposed Rule change to amend the procedures for assert jurisdiction over the Panel Change review of listing determinations. Below Decision or may permit the Listing 1. Purpose is the text of the proposed rule change, Qualifications Panel to proceed with the The purpose of the proposed rule as amended. Proposed new language is reconsideration. change is to amend several of Nasdaq’s underlined; proposed deletions are in (b) An issuer may request that the procedures for review of listing brackets. Listing Council reconsider a Listing determinations as described below. * * * * * Council Decision only upon the basis that a mistake of material fact existed at Listing Qualifications Panel Deadlocks 4800. Procedures for Review of Nasdaq the time of the Listing Council Decision. NASD Rule 4840(a) requires that all Listing Determinations The issuer’s request shall be made Listings Qualifications Panel hearings within seven calendar days of the date 4830. The Listing Qualifications Panel be conducted by at least two persons of issuance of the Listing Council (a)–(c) No change Decision. If the Listing Council grants an designated by the Nasdaq Board of (d) If, following the hearing, the issuer’s reconsideration request, the Directors. Nasdaq’s practice is to Listing Qualifications Panel cannot Listing Council shall issue a modified conduct such hearings before Listing reach an unanimous decision regarding decision within 15 calendar days Qualifications Panels comprised of two the matter under review, a Panel following the issuance of the original members. Based on comments from Decision shall not be issued and the Listing Council Decision or lose Commission staff regarding the need for issuer shall be notified of this jurisdiction over the matter. specific procedures to address a Listing circumstance. Thereafter, the issuer (c) The Listing Qualifications Panel Qualifications Panel deadlock, Nasdaq shall be provided an additional hearing and the Listing Council may correct proposes to amend NASD Rule 4830 to before a Listing Qualifications Panel clerical or other non-substantive errors address such situations. composed of three persons who did not in their respective decisions either on Specifically, if the Listing participate in the previous hearing. The their own motion or at the request of an Qualifications Panel is unable to agree issuer may determine whether the issuer. on a Panel Decision, the issuer will be hearing will be conducted based on the notified immediately and afforded the written record or an oral hearing, 4880. Delivery of Documents opportunity for a new hearing before an whether in person or by telephone. The Delivery of any document under this entirely new Listing Qualifications issuer may submit any documents or Rule 4800 Series by an issuer or by the Panel comprised of three members. The other written material in support of its Association may be made by hand issuer will have the opportunity to request for review, including any delivery to the designated address, [or] select whether the new hearing will be information not available at the time of by facsimile to the designated facsimile by written submission, telephone, or in the initial hearing before the Listing number and overnight courier to the person. All documents from the original Qualifications Panel. There shall be no designated address, or by e-mail if the record will be retained for the new fee for the new hearing. issuer consents to such method of Listing Qualifications Panel’s delivery. Delivery will be considered consideration. In addition, the issuer 4845. Reconsideration by the Listing timely if hand delivered prior to the and Nasdaq staff will be afforded the Qualifications Panel and the Listing and relevant deadline or upon being e- opportunity to supplement the record Hearing Review Council mailed or faxed and/or sent by on review, including any information (a) An issuer may request that the overnight courier service prior to the that was not available at the time of the Listing Qualifications Panel reconsider a relevant deadline. If an issuer has not first hearing before the Listing Panel Decision only upon the basis that specified a facsimile number or street Qualifications Panel. There will be no a mistake of material fact existed at the address, delivery will be made to the additional fee for the new hearing before time of the Panel Decision. The issuer’s last known facsimile number and street the Listing Qualifications Panel because request shall be made within seven address. If an issuer is represented by such a fee would be inequitable to calendar days of the date of issuance of counsel or a representative, delivery issuers as a Listing Qualifications Panel the Panel Decision. An issuer’s request will be made to the counsel or deadlock is not within an issuer’s for reconsideration shall not stay a representative. control. Listing Qualifications Panel delisting * * * * * determination unless the Listing Reconsideration of Listing Qualifications Panel issues a written I. Self-Regulatory Organization’s Qualifications Panel and Listing Council determination staying the delisting prior Statement of the Purpose of, and Decisions to the scheduled date for delisting. An Statutory Basis for, the Proposed Rule Nasdaq believes that, in certain issuer’s request for reconsideration shall Change situations, it is appropriate for the not toll the time period set forth in Rule In its filing with the Commission, Listing Qualifications Panel or the 4840(b) for the issuer to initiate the Nasdaq included statements concerning Nasdaq Listing and Hearing Review Listing Council’s review of the Panel the purpose of and basis for the Council (‘‘Listing Council’’) to have an Decision. If the Listing Qualifications proposed rule change and discussed any opportunity to reconsider their decision. Panel grants an issuer’s reconsideration comments it received on the proposed Therefore, Nasdaq proposes to adopt a request, the Listing Qualifications Panel rule change. The text of these statements rule that sets forth the procedures and shall issue a modified decision within may be examined at the places specified circumstances under which such 15 calendar days following the issuance in Item IV below. Nasdaq has prepared reconsiderations can be made.
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Nasdaq proposes to allow issuers to Council Decision must be issued within necessary or appropriate in furtherance request that the Listing Qualifications 15 calendar days of the original Listing of the purposes of the Act. Panel or the Listing Council reconsider Council Decision. If the Listing Council C. Self-Regulatory Organization’s a prior decision when there is a mistake does not issue a modified decision Statement on Comments on the of material fact in the decision. Under within that time period, the Listing Proposed Rule Change Received From this standard, reconsideration would be Council will lose jurisdiction over the Members, Participants, or Others appropriate only if the issuer can matter so that parallel proceedings with demonstrate that the original decision the NASD Board are avoided.5 Nasdaq neither solicited nor received was based on the Listing Qualifications Lastly, Nasdaq proposes to allow both written comments with respect to the Panel or Listing Council’s the Listing Qualifications Panel and the proposed rule change. misunderstanding or lack of knowledge Listing Council to correct clerical and III. Date of Effectiveness of the of a material fact that was in existence other non-substantive errors in a Proposed Rule Change and Timing for at the time of the decision. For example, decision, either on their own initiative Commission Action reconsideration of a decision would be or at the request of an issuer. appropriate if the Listing Qualifications Within 35 days of the date of Delivery of Documents Via E-mail Panel delisted an issuer based on its publication of this notice in the Federal failure to meet the shareholders’ equity NASD Rule 4880 provides that the Register or within such longer period (i) listing standard, not realizing that, prior delivery of documents in connection as the Commission may designate up to to the decision, the issuer had increased with the review of listing 90 days of such date if it finds such its shareholders’ equity by completing a determinations may be made by hand or longer period to be appropriate and private placement. Reconsideration of a by facsimile and overnight courier. Over publishes its reasons for so finding, or Listing Qualifications Panel or Listing the past several years, Nasdaq has (ii) as to which the self-regulatory Council decision would not be granted received numerous requests from organization consents, the Commission for any material fact that occurs after the issuers to submit documents via e-mail will: decision. as it is a more cost effective and (A) by order approve such proposed Under the proposed rule, issuers expeditious form of delivery. rule change; or would be required to apply for In response to such requests, Nasdaq (B) institute proceedings to determine reconsideration within seven calendar proposes to amend Rule 4880 to include whether the proposed rule change days of the date of issuance of the e-mail as an allowable method of should be disapproved. Listing Qualifications Panel or Listing service. Thus, issuers would have the Council decision. A request for option of delivering documents by IV. Solicitation of Comments reconsideration would not stay a Panel hand, facsimile and overnight courier, Interested persons are invited to delisting determination, unless the or e-mail.6 Nasdaq would continue to Panel were to issue a written submit written data, views and deliver documents to issuers only by arguments concerning the foregoing, determination staying the delisting prior facsimile and overnight delivery unless to the scheduled date for the delisting. including whether the proposal is an issuer specifically consents to receive consistent with the Act. Persons making Likewise, a request for reconsideration delivery by e-mail. of a Panel Decision would not toll the written submissions should file six 15-calendar-day period for appealing 2. Statutory Basis copies thereof with the Secretary, Securities and Exchange Commission, such a decision to the Listing Council Nasdaq believes that the proposed that is set forth in NASD Rule 4840(b). 450 Fifth Street NW., Washington, DC rule change, as amended, is consistent 20549–0609. Comments may also be As such, issuers that request with the provisions of Section 15A(b)(6) reconsideration of a Panel Decision submitted electronically at the following of the Act 7 in that the proposal is must also appeal the Panel Decision e-mail address: [email protected]. designed to prevent fraudulent and within the 15-day period provided in All comment letters should refer to File manipulative acts and practices and to the Rule if they wish the Listing Council No. SR–NASD–2004–018. The file protect investors and the public interest. to review the decision. number should be included on the In situations where reconsideration is Nasdaq believes that the proposed rule subject line if e-mail is used. To help the granted by the Listing Qualifications change is designed to improve the Commission process and review your Panel, a revised Panel Decision must be procedures applicable to the review of comments more efficiently, comments issued within 15 calendar days of the listing determinations as well as to should be sent in hardcopy or by e-mail original Panel Decision. If the Listing provide greater transparency to these but not by both methods. Copies of the Qualifications Panel does not issue a procedures. submission, all subsequent modified decision within that time B. Self-Regulatory Organization’s amendments, all written statements period, the Listing Qualifications Panel Statement on Burden on Competition with respect to the proposed rule will lose jurisdiction over the matter so change that are filed with the that parallel proceedings with the Nasdaq does not believe that the Commission, and all written Listing Council are avoided.4 proposed rule change would result in communications relating to the Where reconsideration is granted by any burden on competition that is not proposed rule change between the the Listing Council, a revised Listing Commission and any person, other than 5 NASD Rule 4850 provides that the NASD Board those that may be withheld from the may call a Listing Council Decision for review not 4 If the Listing Council has called a matter for later than the next NASD Board meeting that is 15 public in accordance with the review on the same issue that the issuer has provisions of 5 U.S.C. 552, will be requested reconsideration, the Listing Council can calendar days or more following the date of the claim jurisdiction over the matter and there will be Listing Council Decision. available for inspection and copying in no further consideration of the issue by the Listing 6 As with documents sent via facsimile and the Commission’s Public Reference Qualifications Panel. Issuers do not have the ability overnight courier, delivery of a document sent by Room. Copies of such filing will also be e-mail would be considered timely under NASD to determine whether the Listing Qualifications available for inspection and copying at Panel or the Listing Council has jurisdiction over Rule 4880 if it were sent prior to the relevant a matter that has been called for review by the deadline. the principal office of Nasdaq. All Listing Council. 7 15 U.S.C. 78o–3(b)(6). submissions should refer to the File No.
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SR–NASD–2004–018 and should be may be examined at the places specified issued by Merrill Lynch and will not be submitted by March 22, 2004. in Item IV below. Nasdaq has prepared secured by collateral. The Notes will For the Commission, by the Division of summaries, set forth in Sections A, B, rank equally with all of Merrill Lynch’s Market Regulation, pursuant to delegated and C below, of the most significant other unsecured and unsubordinated authority.8 aspects of such statements. debt. The Notes will be issued in Margaret H. McFarland, A. Self-Regulatory Organization’s denominations of whole units (‘‘Unit’’), Deputy Secretary. Statement of the Purpose of, and with each Unit representing a single [FR Doc. 04–4427 Filed 2–27–04; 8:45 am] Statutory Basis for, the Proposed Rule Note. The original public offering price BILLING CODE 8010–01–P Change will be $10 per Unit. The Notes will have a term to maturity of seven years. 1. Purpose The Notes will not pay interest and are SECURITIES AND EXCHANGE Nasdaq proposes to list and trade the not subject to redemption either by COMMISSION Notes, the return on which is based Merrill Lynch or at the option of any [Release No. 34–49301; File No. SR–NASD– upon the Dow Jones Industrial Average beneficial owner before maturity.5 2004–030] (‘‘DJIA’’) and for protection of 97% of the principal.3 At maturity, a beneficial owner will Self-Regulatory Organizations; Notice Under NASD Rule 4420(f), Nasdaq be entitled to receive a payment on the of Filing and Order Granting may approve for listing and trading Notes based on the value of the DJIA, Accelerated Approval of a Proposed innovative securities that cannot be but not less than $9.70 per Unit Rule Change by National Association readily categorized under traditional (‘‘Minimum Redemption Amount’’). of Securities Dealers, Inc. Relating to listing guidelines.4 Nasdaq proposes to Thus, the Notes provide investors the the Listing and Trading of 97% list the Notes for trading under NASD opportunity to obtain returns based on Protected Notes Linked to the Dow Rule 4420(f). the DJIA and they provide for the return Jones Industrial Average Description of the Notes of at least 97% of the principal amount per Unit. February 23, 2004. The Notes are a series of senior non- Pursuant to section 19(b)(1) of the convertible debt securities that will be Any payment that a beneficial owner Securities Exchange Act of 1934 may be entitled to receive in addition to (‘‘Act’’),1 and Rule 19b–4 thereunder,2 3 The DJIA is a price-weighted index published by the Minimum Redemption Amount (the notice is hereby given that on February Dow Jones & Company, Inc. A component stock’s ‘‘Supplemental Redemption Amount’’) weight in the DJIA is based on its price per share will depend entirely on: (a) The relation 17, 2004, the National Association of rather than the total market capitalization of the Securities Dealers, Inc. (‘‘NASD’’ or issuer of that component stock. The DJIA is of the average of the values of the DJIA ‘‘Association’’), through its subsidiary, designed to provide an indication of the composite at the close of the market on five price performance of 30 common stocks of business days shortly before the The Nasdaq Stock Market, Inc. corporations representing a broad cross-section of (‘‘Nasdaq’’), filed with the Securities U.S. industry. Nasdaq states that the corporations maturity of the Notes (the ‘‘Ending and Exchange Commission represented in the DJIA tend to be market leaders Value’’) and the closing value of the (‘‘Commission’’ or ‘‘SEC’’) the proposed in their respective industries, and their stocks are DJIA on the date the Notes are priced for typically widely held by individuals and rule change as described in Items I and institutional investors. The corporations currently initial sale to the public (the ‘‘Starting II below, which Items have been represented in the DJIA are incorporated in the U.S. Value’’), and (b) the Participation Rate, prepared by Nasdaq. The Commission is and its territories, and their stocks are traded on the which will be a fixed value determined New York Stock Exchange, Inc. (‘‘NYSE’’) and the publishing this notice to solicit Nasdaq. The component stocks in the DJIA are by Merrill Lynch on the date the Notes comments on the proposed rule change selected (and any changes are made) by the editors are priced for initial sale to the public from interested persons and is of the Wall Street Journal (‘‘WSJ’’). Changes to the and disclosed in the final prospectus approving the proposal on an stocks included in the DJIA tend to be made infrequently. Historically, most substitutions have supplement to be delivered in accelerated basis. been the result of mergers, but from time to time, connection with sales of the Notes. The I. Self-Regulatory Organization’s changes may be made to achieve what the editors Participation Rate is expected to be of the WSJ deem to be a more accurate 6 Statement of the Terms of the Substance representation of the broad market of the U.S. between 1.00 and 1.15. of the Proposed Rule Change industry. As of February 12, 2004, the market The Supplemental Redemption capitalization of the securities included in the DJIA Nasdaq proposes to list and trade 97% ranged from a high of $329.3 billion to a low of $8.4 Amount per Unit will equal: Protected Notes Linked to the billion. The average monthly trading volume for the last six months, as of the same date, ranged from Performance of the Dow Jones Industrial 5 The actual maturity date will be determined on Average (‘‘Notes’’) issued by Merrill a high of 24.6 million shares to a low of 3.0 million shares. The value of the DJIA is the sum of the the day the Notes are priced for initial sale to the Lynch & Co., Inc. (‘‘Merrill Lynch’’). primary market prices of each of the 30 common public. stocks included in the DJIA, divided by a divisor 6 The Participation Rate is a fixed percentage II. Self-Regulatory Organization’s that is designed to provide a meaningful continuity expected to be between 100% and 115%. Merrill Statement of the Purpose of, and in the value of the DJIA. In order to prevent certain Lynch will determine the Participation Rate on the Statutory Basis for, the Proposed Rule distortions related to extrinsic factors, the divisor day the Notes are priced, and it will be disclosed Change may be adjusted appropriately. The current divisor in the Prospectus and Nasdaq’s circular to of the DJIA is published daily in the WSJ and other members, describing this product. The exact value In its filing with the Commission, publications. Other statistics based on the DJIA may of the Participation Rate will be determined at Nasdaq included statements concerning be found in a variety of publicly available sources. Merrill Lynch’s discretion. Merrill expects but does The value of the index is publicly disseminated not guarantee that the Participation Rate will be the purpose of and basis for the every two seconds if the index value changes. proposed rule change and discussed any Telephone conversation between Alex Kogan, between 100% and 115% of the interest rate on the comments it received on the proposed Associate General Counsel, Nasdaq, and Florence E. Pricing Date. However, in no event, will the investor receive less than 97% of the principal rule change. The text of these statements Harmon, Senior Special Counsel, Division of Market Regulation (‘‘Division’’), Commission amount per Unit at maturity. Telephone (February 20, 2004). conversation between Alex Kogan, Associate 8 17 CFR 200.30–3(a)(12). 4 See Securities Exchange Act Release No. 32988 General Counsel, Nasdaq, and Florence E. Harmon, 1 15 U.S.C. 78s(b)(1). (September 29, 1993), 58 FR 52124 (October 6, Senior Special Counsel, Division, Commission 2 17 CFR 240.19b–4. 1993), (‘‘1993 Order’’). (February 20, 2004).
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Ending Value− Starting Value $10× × Participation Rate , Starting Value
but will not be less than zero. case of an issuer which is unable to making recommendations to the As a result, the DJIA will need to satisfy the income criteria set forth in customer. increase by a percentage between 2.61% paragraph (a)(1), Nasdaq generally will The Notes will be subject to Nasdaq’s and 3.00%, depending upon the actual require the issuer to have the following: continued listing criterion for other Participation Rate (and assuming that it (i) Assets in excess of $200 million and securities pursuant to NASD Rule Yis, as expected, in the range of 1.00 stockholders’ equity of at least $10 4450(c). Under this criterion, the and 1.15), in order for a beneficial million; or (ii) assets in excess of $100 aggregate market value or principal owner to be entitled to receive a total million and stockholders’ equity of at amount of publicly-held units must be amount at maturity equal to the least $20 million; at least $1 million. The Notes also must principal amount. If the value of the (B) There must be a minimum of 400 have at least two registered and active DJIA decreases or does not increase holders of the security, provided, market makers as required by NASD sufficiently, a beneficial owner will be however, that if the instrument is traded Rule 4310(c)(1). Nasdaq will also entitled to less than the principal in $1,000 denominations, there must be consider prohibiting the continued amount of $10 per Unit. In no event, a minimum of 100 holders; listing of the Notes if Merrill Lynch is (C) For equity securities designated however, will a beneficial owner be not able to meet its obligations on the pursuant to this paragraph, there must entitled to less than the Minimum Notes. Redemption Amount. be a minimum public distribution of The Notes are cash-settled in U.S. 1,000,000 trading units; and Rules Applicable to the Trading of the dollars and do not give the holder any (D) The aggregate market value/ Notes right to receive a portfolio security, principal amount of the security will be dividend payments or any other at least $4 million. Since the Notes will be deemed equity ownership right or interest in the In addition, Nasdaq notes that Merrill securities for the purpose of NASD Rule portfolio or index of securities Lynch satisfies the listed marketplace 4420(f), the NASD and Nasdaq’s existing comprising the DJIA. The Notes are requirement set forth in NASD Rule equity trading rules will apply to the designed for investors who want to 4420(f)(2).9 Lastly, pursuant to NASD Notes. First, pursuant to NASD Rule participate or gain exposure to the DJIA, Rule 4420(f)(3), prior to the 2310, ‘‘Recommendations to Customers while protecting 97% of the principal, commencement of trading of the Notes, (Suitability),’’ and NASD IM–2310–2, and who are willing to forego market Nasdaq will distribute a circular to ‘‘Fair Dealing with Customers,’’ NASD interest payments on the Notes during members providing guidance regarding members must have reasonable grounds the term of the Notes. The Commission compliance responsibilities and for believing that a recommendation to has previously approved the listing of requirements, including suitability a customer regarding the purchase, sale options on, and other securities the recommendations, and highlighting the or exchange of any security is suitable performance of which have been linked special risks and characteristics of the for such customer upon the basis of the to or based on, the DJIA.7 Notes. In particular, Nasdaq will advise facts, if any, disclosed by such customer As of February 12, 2004, the market members recommending a transaction as to his other security holdings and as capitalization of the securities included in the Notes to have reasonable grounds to his financial situation and needs.11 In in the DJIA ranged from a high of $329.3 for believing that the recommendation is addition, as previously described, billion to a low of $8.4 billion. The suitable for such customer upon the Nasdaq will distribute a circular to average monthly trading volume for the basis of the facts, if any, disclosed by members providing guidance regarding last six months, as of the same date, such customer as to his other security compliance responsibilities and ranged from a high of 24.6 million holdings and as to his financial requirements, including suitability shares to a low of 3.0 million shares. situation and needs. In addition, recommendations, and highlighting the pursuant to NASD Rule 2310(b),10 prior special risks and characteristics of the Criteria for Initial and Continued to the execution of a transaction in the Notes. Furthermore, the Notes will be Listing Notes that has been recommended to a subject to the equity margin rules. The Notes, which will be registered non-institutional customer, a member Lastly, the regular equity trading hours under Section 12 of the Act, will shall make reasonable efforts to obtain of 9:30 a.m. to 4 p.m. will apply to initially be subject to Nasdaq’s listing information concerning: (1) The transactions in the Notes. criteria for other securities under NASD customer’s financial status; (2) the Nasdaq represents that NASD’s Rule 4420(f). Specifically, under NASD customer’s tax status; (3) the customer’s surveillance procedures are adequate to Rule 4420(f)(1): investment objectives; and (4) such properly monitor the trading of the (A) The issuer shall have assets in other information used or considered to Notes. Specifically, NASD will rely on excess of $100 million and stockholders’ be reasonable by such member in its current surveillance procedures 8 equity of at least $10 million. In the governing equity securities, and will 9 NASD Rule 4420(f)(2) requires issuers of include additional monitoring on key 7 See Securities Exchange Act Release Nos. 46883 securities designated pursuant to this paragraph to (November 21, 2002), 67 FR 71216 (November 29, be listed on The Nasdaq National Market or the pricing dates. 2002) (approving the listing and trading of notes NYSE or be an affiliate of a company listed on The linked to the DJIA); 39525 (January 8, 1998), 63 FR Nasdaq National Market or the NYSE; provided, 11 NASD Rule 2310(b) requires members to make 2438 (January 15, 1998) (approving the listing and however, that the provisions of NASD Rule 4450 reasonable efforts to obtain information concerning trading of DIAMONDS Trust Units, portfolio will be applied to sovereign issuers of ‘‘other’’ a customer’s financial status, a customer’s tax depositary receipts based on the DJIA); and 39011 securities on a case-by-case basis. status, the customer’s investment objectives, and (September 3, 1997), 62 FR 47840 (September 11, 10 Telephone conversation between Alex Kogan, such other information used or considered to be 1997) (approving the listing and trading of options Associate General Counsel, Nasdaq, and Florence E. reasonable by such member or registered on the DJIA). Harmon, Senior Special Counsel, Division, representative in making recommendations to the 8 Merrill Lynch satisfies this listing criterion. Commission (February 20, 2004). customer.
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Disclosure and Dissemination of but not by both methods. Copies of the the public interest.17 The Commission Information submission, all subsequent believes that the Notes will provide Merrill Lynch will deliver a amendments, all written statements investors with the opportunity to obtain prospectus in connection with the with respect to the proposed rule returns based on the DJIA and they initial purchase of the Notes. The change that are filed with the provide for the return of at least 97% of procedure for the delivery of a Commission, and all written the principal amount per Unit. prospectus will be the same as Merrill communications relating to the Specifically, as described more fully Lynch’s current procedure involving proposed rule change between the above, if the value of the DJIA decreases primary offerings. In addition, Nasdaq Commission and any person, other than or does not increase sufficiently, a will issue a circular to NASD members those that may be withheld from the beneficial owner will be entitled to less explaining the unique characteristics public in accordance with the than the principal amount of $10 per and risks of the Notes. provisions of 5 U.S.C. 552, will be Unit. However, in no event will a available for inspection and copying in beneficial owner be entitled to less than 2. Statutory Basis the Commission’s Public Reference the Minimum Redemption Amount. Nasdaq believes that the proposed Room. Copies of such filing will also be The Notes are a series of senior non- rule change is consistent with the available for inspection and copying at convertible debt securities whose price provisions of section 15A of the Act,12 the principal office of the Exchange. All will be derived from and based upon the in general, and with section 15A(b)(6) of submissions should refer to the File No. value of the DJIA. In addition, as the Act,13 in particular, in that the SR–NASD–2004–030 and should be discussed more fully above, the Notes proposal is designed to prevent submitted by March 22, 2004. do not guarantee the total amount at fraudulent and manipulative acts and maturity equal to the principal amount. IV. Commission’s Findings and Order practices, to promote just and equitable Thus, if the DJIA has declined at Granting Accelerated Approval of principles of trade, to remove maturity, a beneficial owner may Proposed Rule Change impediments to and perfect the receive may receive 3% less than the mechanism of a free and open market Nasdaq requests that the Commission original public offering price of the and, in general, to protect investors and approve the proposal, on an accelerated Notes. Because the final rate of return the public interest. Specifically, the basis to accommodate the timetable of on the Notes is derivatively priced and proposed rule change will provide listing the Notes. The Commission notes based upon the performance of the 30 investors with another investment that it has previously approved the common stocks underlying the DJIA and vehicle based on the DJIA. listing of options on, and securities the because the Notes are debt instruments performance of which have been linked that do not guarantee a total return of B. Self-Regulatory Organization’s 14 principal, and because investors’ Statement on Burden on Competition to or based on, the DJIA. The Commission has also previously potential return is limited by the Nasdaq does not believe that the approved the listing of securities with a Participation Rate, there are several proposed rule change will result in any structure substantially the same as that issues regarding trading of this type of burden on competition that is not of the Notes.15 product. For the reasons discussed below, the Commission believes that necessary or appropriate in furtherance After careful consideration, the Nasdaq’s proposal adequately addresses of the purposes of the Act. Commission finds that the proposed the concerns raised by this type of C. Self-Regulatory Organization’s rule change is consistent with the product. Statement on Comments on the requirements of the Act and the rules First, the Commission notes that the Proposed Rule Change Received From and regulations thereunder, applicable protections of NASD Rule 4420(f) were Members, Participants, or Others to a national securities association, and, designed to address the concerns in particular, with the requirements of attendant to the trading of hybrid Written comments were neither 16 solicited nor received. section 15A(b)(6) of the Act in that it securities like the Notes.18 In particular, is designed to promote just and by imposing the hybrid listing III. Solicitation of Comments equitable principles of trade, to remove standards, heightened suitability for Interested persons are invited to impediments to and perfect the recommendations,19 and compliance submit written data, views and mechanism of a free and open market, requirements, noted above, the arguments concerning the foregoing, and, in general, to protect investors and Commission believes that Nasdaq has including whether the proposal is adequately addressed the potential consistent with the Act. Persons making 14 See supra note 7. problems that could arise from the written submissions should file six 15 See Securities Exchange Act Release Nos. hybrid nature of the Notes. The 48486 (September 11, 2003), 68 FR 54758 copies thereof with the Secretary, (September 18, 2003) (approving the listing and Commission notes that Nasdaq will Securities and Exchange Commission, trading of contingent principal protection notes distribute a circular to its membership 450 Fifth Street NW., Washington, DC linked to the S&P 500 Index); and 48152 (July 10, that provides guidance regarding 20549–0609. Comments may also be 2003), 68 FR 42435 (July 17, 2003) (approving the member firm compliance listing and trading of partial principal protected submitted electronically at the following notes linked to the S&P 500 Index). responsibilities and requirements, e-mail address: [email protected]. 16 15 U.S.C. 78o–3(b)(6). Pursuant to Section All comment letters should refer to File 15A(b)(6) of the Act, the Commission must 17 In approving the proposed rule, the No. SR–NASD–2004–030. The file predicate approval of Nasdaq trading for new Commission has considered the proposed rule’s impact on efficiency, competition, and capital number should be included on the derivate products upon a finding that the introduction of the product is in the public interest. formation. 15 U.S.C. 78c(f). subject line if e-mail is used. To help the Such a finding would be difficult with respect to 18 See 1993 Order, supra note 4. Commission process and review your a product that served no investment, hedging or 19 As discussed above, Nasdaq will advise comments more efficiently, comments other economic functions, because any benefits that members recommending a transaction in the Notes should be sent in hardcopy or by e-mail might be derived by market participants would to: (1) determine that the transaction is suitable for likely be outweighed by the potential for the customer; and (2) have a reasonable basis for manipulation, diminished public confidence in the believing that the customer can evaluate the special 12 15 U.S.C. 78o–3. integrity of the markets, and other valid regulatory characteristics of, and is able to bear the financial 13 15 U.S.C. 78o–3(6). concerns. risks of, the transaction.
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including suitability recommendations, incur position exposure. However, as deter as well as detect any potential and highlights the special risks and the Commission has concluded in manipulation. characteristics associated with the previous approval orders for the hybrid The Commission finds good cause for Notes. Specifically, among other things, instruments issued by broker-dealers,22 approving the proposed rule change, as the circular will indicate that the Notes the Commission believes that this amended, prior to the thirtieth day after do not guarantee a total return of concern is minimal given the size of the the date of publication of notice of filing principal at maturity, that the Notes issuance in relation to the net thereof in the Federal Register. The Participation Rate on the Notes is worth of Merrill Lynch. Commission believes that the Notes will expected to be between 100% and 115% Nasdaq also represents that index provide investors with an additional per unit,20 that the Notes will not pay value of the DJIA is publicly investment choice and that accelerated interest, and that the Notes will provide disseminate every two seconds if the approval of the proposal will allow exposure in the DJIA. The circular will index valuation changes. The investors to begin trading the Notes also explain Merrill Lynch’s calculation Commission finds that such public promptly. In addition, the Commission of the Notes’ Participation Rate. dissemination of the index valuation notes that it has previously approved Distribution of the circular should help will provide investors with timely and the listing and trading of similar Notes to ensure that only customers with an useful information concerning the value and other hybrid securities based on the understanding of the risks attendant to of their Notes. Index.23 Accordingly, the Commission the trading of the Notes and who are Finally, the Commission believes that believes that there is good cause, able to bear the financial risks the listing and trading of the proposed consistent with Sections 15A(b)(6) and associated with transactions in the Notes should not unduly impact the 19(b)(2) of the Act,24 to approve the Notes will trade the Notes. In addition, market for the securities underlying the proposal, on an accelerated basis. DJIA or raise manipulative concerns. In the Commission notes that Merrill V. Conclusion Lynch will deliver a prospectus in approving the product, the Commission connection with the initial purchase of recognizes that the DJIA is a price- It is therefore ordered, pursuant to the Notes. weighted index of 30 companies listed section 19(b)(2) of the Act,25 that the Second, the Commission notes that on Nasdaq and the NYSE. The proposed rule change (SR–NASD–2004– the final rate of return on the Notes Commission notes that the DJIA is 030) is hereby approved on an depends, in part, upon the individual determined, composed, and calculated accelerated basis. credit of the issuer, Merrill Lynch. To by the editors of the WSJ, and not a For the Commission, by the Division of some extent this credit risk is broker-dealer. As of February 12, 2004, Market Regulation, pursuant to delegated minimized by the NASD’s listing the market capitalization of the authority.26 standards in NASD Rule 4420(f), which securities included in the DJIA ranged Margaret H. McFarland, provide that only issuers satisfying from a high of $329.3 billion to a low Deputy Secretary. substantial asset and equity of $8.4 billion. The average monthly [FR Doc. 04–4428 Filed 2–27–04; 8:45 am] requirements may issue these types of trading volume for the last six months, BILLING CODE 8010–01–P hybrid securities. In addition, the as of the same date, ranged from a high NASD’s hybrid listing standards further of 24.6 million shares to a low of 3.0 require that the Notes have at least $4 million shares. Given the compositions SECURITIES AND EXCHANGE million in market value. Financial of the stocks underlying the DJIA, the COMMISSION information regarding Merrill Lynch, in Commission believes that the listing and trading of the Notes that are linked to [Release No. 34–49294; File No. SR–NSCC– addition to information concerning the 2003–15] issuers of the securities comprising the the DJIA, should not unduly impact the Index, will be publicly available.21 market for the underlying securities Self-Regulatory Organizations; Third, the Notes will be registered comprising the DJIA or raise National Securities Clearing under Section 12 of the Act. As noted manipulative concerns. As discussed Corporation; Order Approving above, the NASD’s and Nasdaq’s more fully above, the underlying stocks Proposed Rule Change To Implement existing equity trading rules will apply comprising the DJIA are well- Real-Time Trade Matching for Fixed to the Notes, which will be subject to capitalized, highly liquid stocks. Income Securities equity margin rules and will trade Moreover, the issuers of the underlying during the regular equity trading hours securities comprising the DJIA, are February 23, 2004. of 9:30 a.m. to 4 p.m. NASD subject to reporting requirements under I. Introduction Regulation’s surveillance procedures for the Act, and all of the component stocks the Notes will be the same as its current are either listed or traded on, or traded On June 27, 2003, the National surveillance procedures for equity through the facilities of, U.S. securities Securities Clearing Corporation securities, and will include additional markets. In addition, Nasdaq’s (‘‘NSCC’’) filed with the Securities and monitoring on key pricing dates. Nasdaq surveillance procedures should serve to Exchange Commission (‘‘Commission’’) represents that its surveillance proposed rule change SR–NSCC–2003– procedures are adequate to monitor 22 See, e.g., Securities Exchange Act Release Nos. 15 pursuant to section 19(b)(1) of the properly the grading of the Notes. 44913 (October 9, 2001), 66 FR 52469 (October 15, Securities Exchange Act of 1934 2001) (approving the listing and trading of notes (‘‘Act’’).1 Notice of the proposal was Fourth, the Commission has a issued by Morgan Stanley Dean Witter & Co. whose systemic concern that a broker-dealer, return is based on the performance of the Nasdaq- published in the Federal Register on such as Merrill Lynch, or a subsidiary 100 Index); 44483 (June 27, 2001), 66 FR 35677 January 16, 2004.2 No comment letters providing a hedge for the issuer will (July 6, 2001) (approving the listing and trading of notes issued by Merrill Lynch whose return is based 23 See supra note 15. on a portfolio of 20 securities selected from the 24 20 The actual Participation Rate date will be 15 U.S.C. 78o–3(b)(6) and 78s(b)(2). Amex Institutional Index); and 37744 (September 25 determined on the day the Notes are priced for 27, 1996), 61 FR 52480 (October 7, 1996) (approving 15 U.S.C. 78s(b)(2). initial sale to the public and disclosed in the final the listing and trading of notes issued by Merrill 26 17 CFR.200.30–3(a)(12). prospectus supplement. Lynch whose return is based on a weighted 1 15 U.S.C. 78s(b)(1). 21 The companies comprising the DJIA are portfolio of the Healthcare/Biotechnology industry 2 Securities Exchange Act Release No. 49051 reporting companies under the Act. securities). (January 12, 2004), 69 FR 2639.
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were received. For the reasons as ways in which participants can seller are within a net $2 difference for discussed below, the Commission is submit trade data and subsequent trades of $1 million or less or $2 per approving the proposed rule change. related trade processing instructions.9 million for trades greater than $1 With respect to output issued by NSCC, million.12 In addition, RTTM will II. Description initially upon implementation end-of- compare a trade if trade data matches in NSCC is seeking to implement a real- day reports will continue to be all respects, including contract amounts time trade matching system (‘‘RTTM’’) produced by FITS whereas intraday which have been compared pursuant to for certain NSCC-eligible corporate reports will be produced by RTTM. In the money tolerances, except for trade bonds, municipal bonds, and unit addition, NSCC will make output date. In this case, the earlier of the two investment trusts (‘‘NSCC debt available for interactive message users trade dates submitted will be used. securities’’).3 RTTM was implemented and RTTM Web users in those RTTM will not use the summarization in the fourth quarter of 2000 by the respective media. process used to compare trades former Government Securities Clearing The following is a summary of the key currently set forth in NSCC Procedure II, Corporation (‘‘GSCC’’),4 an NSCC proposed rule changes needed to Section D.1(e). affiliate, for the processing of implement RTTM: (5) NSCC’s rules and procedures will government securities transactions.5 It (1) References to ‘‘Contract Lists’’ will continue to provide that the submission was designed so that the platform could be replaced with references to ‘‘output’’ of a locked-in trade or a syndicate be used for other fixed income or to ‘‘information made available’’ by takedown trade results in a compared securities. Accordingly, it was NSCC to cover the additional types of trade. However, RTTM will provide implemented in 2002 for mortgage- output that could be generated by members on behalf of whom locked-in backed securities transactions processed RTTM. and syndicate takedown trades are by the former Mortgage Backed (2) References to the names of specific submitted (‘‘LI/ST contrasides’’) the Securities Clearing Corporation instructions that participants may option of submitting matching trade (‘‘MBSCC’’).6 The purpose of the submit to resolve uncompared trades details for their internal reconciliation proposed rule change is to implement (e.g., ‘‘Delete of Original Trade Input’’) purposes. In order to facilitate the RTTM for NSCC debt securities. RTTM will be replaced with general references participants’ internal reconciliation will eventually replace NSCC’s current to ‘‘appropriate instructions’’ to include process, RTTM has been designed to Fixed Income Transactions System similar instructions which have issue output that indicates a status of 7 (‘‘FITS’’). different names that may be submitted ‘‘unmatched’’ or ‘‘match request’’ upon The two areas of NSCC debt securities by interactive message users and RTTM 10 receipt of a locked-in or syndicate processing rules that require changes to Web users. takedown trade. Notwithstanding the (3) With respect to trades submitted implement RTTM are those governing output indicating unmatched and match for two-sided comparison processing, (1) inbound submissions to NSCC and request, the proposed rule changes make (2) NSCC’s reporting of information interactive message users, and RTTM clear that the submission of matching related to such submissions to Web users will be able to modify their trade data by LI/ST contrasides will participants. Specifically, interactive trades, subject to the timeframes and have no legal effect on the status of messages and the RTTM Web User requirements imposed by NSCC from locked-in and syndicate takedown Interface (‘‘RTTM Web’’) 8 will be added time-to-time and will also be able to trades as compared trades. In addition, remove an unmatched trade from notwithstanding that output is made 3 The proposed rule change does not apply to processing by sending an instruction debt securities transactions that are submitted to indicating that they do not agree with available by NSCC as a result of NSCC via its correspondent clearing service, by subsequent processing information regional exchanges/marketplaces, or through the terms of a trade that has been submitted against them.11 Locked-in submitted by LI/ST contrasides that are qualified securities depositories as defined in not specifically provided for in NSCC’s NSCC’s rules because such transactions will not be trade sources and syndicate managers processed by RTTM. that are interactive message users or rules and procedures, the proposed rule 4 On January 1, 2003, MBS Clearing Corporation RTTM Web users will also be able to changes make clear that such (‘‘MBSCC’’) was merged into GSCC and GSCC was submissions will have no legal effect renamed the Fixed Income Clearing Corporation modify their trade submissions. (‘‘FICC’’). The functions previously performed by (4) RTTM will accept cash and next- and that RTTM has been designed to GSCC are now performed by the Government day transactions for comparison-only accept such submissions for Securities Division of FICC, and the functions participants’ internal reconciliation previously performed by MBSCC are now processing. RTTM will add an intraday money tolerance pursuant to which purposes only. performed by the Mortgage-Backed Securities In addition to the above, NSCC is Division of FICC. Securities Exchange Act Release NSCC will compare a trade using the No. 47015 (December 17, 2002), 67 FR 78531 [File seller’s contract amount if the contract proposing the following additional Nos. SR–GSCC–2002–09 and SR–MBSCC–2002–01]. amounts submitted by the buyer and technical changes and corrections: 5 Securities Exchange Act Release No. 44946 (1) References to the ‘‘Automated (October 17, 2001), 66 FR 53816 [File No. SR– Bond System’’ (‘‘ABS’’) will be deleted GSCC–2001–01]. 9 Initially, RTTM will support the current batch 6 Securities Exchange Act Release No. 45563 method of data input. because ABS trades submitted by the (March 14, 2002), 67 FR 13389 [File No. SR– 10 For example, in the current version of NSCC’s New York Stock Exchange are locked-in MBSCC–2001–02]. procedures there is a reference to an instruction trades and are covered by provisions 7 In March 2003, the Commission approved called a ‘‘Delete of Original Trade Input’’ that is dealing with locked-in trades. In certain modifications to FITS in order that NSCC used by batch participants to delete uncompared could prepare its participants for the new RTTM trade data they have submitted. Interactive message addition, references to the ‘‘AMEX functionality. Securities Exchange Act Release No. users and RTTM Web users will use an instruction Order File System’’ will be deleted 47494 (March 13, 2003), 68 FR 13975 [File No. SR– called a ‘‘Cancel’’ to accomplish the same result. because that system is no longer NSCC–2003–10]. Therefore, references to ‘‘Delete of Original Trade operational. 8 The RTTM Web will replace NSCC’s PC Web Input’’ will be replaced by references to (2) Technical corrections will be made application for NSCC fixed income securities. ‘‘appropriate instruction’’ in order to cover the RTTM will be implemented in phases in 2004. equivalent interactive message and RTTM Web throughout the debt when-issued Participants will be notified of specific instruction. implementation dates by Important Notice. 11 RTTM Web users will also be able to 12 No changes are being proposed to NSCC’s Conversation with Nikki Poulos, Vice President and subsequently restore a trade to processing by existing end-of-day money tolerance currently Associate General Counsel, FICC (January 9, 2004). submitting the requisite instruction. contained in Procedure II, Section D.1(a).
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section of NSCC’s Procedure II, Section SECURITIES AND EXCHANGE the Secretary, PCX and at the E to clarify the submission requirements COMMISSION Commission. for a transaction to be treated as a when- [Release No. 34–49293; File No. SR–PCX– II. Self-Regulatory Organization’s issued transaction. It should be noted 2004–02] Statement of the Purpose of, and that due to the systems development Statutory Basis for, the Proposed Rule schedule, RTTM will not be available Self-Regulatory Organizations; Notice Change with respect to when-issued corporate of Filing and Immediate Effectiveness In its filing with the Commission, the debt securities transactions upon of Proposed Rule Change and PCX included statements concerning the implementation. NSCC will file a rule Amendment No. 1 Thereto by the Pacific Exchange, Inc. Relating to the purpose of and basis for the proposed change pursuant to Section 19(b)(3) of rule change and discussed any the Act and will notify members when Elimination of the Posting Period for an Application for Reinstatement comments it received on the proposed the service becomes available for these rule change. The text of these statements transactions. February 23, 2004. may be examined at the places specified (3) Technical corrections will be made Pursuant to section 19(b)(1) of the in item IV below. The PCX has prepared to the use of the term ‘‘settlement date’’ Securities Exchange Act of 1934 summaries, set forth in sections A, B, so that when referenced with upper case (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 and C below, of the most significant letters it means the settlement date as notice is hereby given that on January aspects of such statements. established by NSCC.13 28, 2004, the Pacific Exchange, Inc. A. Self-Regulatory Organization’s (‘‘PCX’’ or ‘‘Exchange’’), through its III. Discussion Statement of the Purpose of, and wholly owned subsidiary PCX Equities, Statutory Basis for, the Proposed Rule Inc. (‘‘PCXE’’), filed with the Securities Section 17A(b)(3)(F) of the Act Change and Exchange Commission requires that the rules of a clearing (‘‘Commission’’ or ‘‘SEC’’) the proposed 1. Purpose agency be designed to perfect the rule change as described in items I, II, As part of its ongoing efforts to mechanism of a national system for the and III below, which items have been enhance participation on ArcaEx, the prompt and accurate clearance and prepared by the Exchange. On February 14 PCX recently amended its rules to settlement of securities transactions. 18, 2004, the PCX amended the expedite the timeframe within which The Commission finds that NSCC’s proposed rule change.3 The PCX filed new ETP Holders may effect proposed rule change is consistent with the proposal pursuant to section transactions on the Exchange. On this requirement because it should 19(b)(3)(A) of the Act,4 and Rule 19b- September 24, 2003, the Exchange permit the accurate clearance and 4(f)(6) thereunder,5 which renders the eliminated its requirement that the settlement of securities by enabling proposal effective upon filing with the names of all new ETP applicants must NSCC to process fixed income trades Commission.6 The Commission is be published for 10 days in the more efficiently. publishing this notice to solicit Exchange’s Weekly Bulletin.7 The comments on the proposed rule change Exchange notes that although it IV. Conclusion from interested persons. eliminated the 10-day posting period for On the basis of the foregoing, the I. Self-Regulatory Organization’s new applicants, it maintains the 10-day posting period for applicants seeking Commission finds that the proposed Statement of the Terms of Substance of reinstatement to the Exchange pursuant rule change is consistent with the the Proposed Rule Change requirements of the Act and in to PCXE Rule 11.7. In order to make the The PCX proposes to amend its rules rules consistent, the Exchange is particular section 17A of the Act and governing the Archipelago Exchange proposing to amend PCXE Rule 11.7 to the rules and regulations thereunder. (‘‘ArcxEx’’), the equities trading facility eliminate the 10-day period during It is therefore ordered, pursuant to of PCXE, by amending PCXE Rule 11.7 which the Exchange must give section 19(b)(2) of the Act, that the to eliminate the 10-day period upon notification to all ETP Holders of an proposed rule change (File No. SR– which the Exchange must give application for reinstatement. NSCC–2003–15) be and hereby is notification to all Equity Trading Permit The Exchange’s current rules approved. (‘‘ETP’’) Holders of an application for governing reinstatement procedures for reinstatement. The text of the proposed ETP Holders and associated persons of For the Commission by the Division of rule change is available at the Office of ETP Holders are set forth in PCXE Rule Market Regulation, pursuant to delegated authority.15 11.7. Presently, PCXE Rule 11.7 1 15 U.S.C. 78s(b)(1). provides that upon sufficient proof of a Margaret H. McFarland, 2 17 CFR 240.19b–4. resolution of the problem or problems Deputy Secretary. 3 See letter from Steven B. Matlin, Regulatory responsible for such suspension, the Policy, PCX, to Nancy J. Sanow, Assistant Director, [FR Doc. 04–4432 Filed 2–27–04; 8:45 am] Division of Market Regulation (‘‘Division’’), Exchange shall notify in writing all ETP BILLING CODE 8010–01–P Commission, dated February 9, 2004 (‘‘Amendment Holders of the application for No. 1’’). In Amendment No. 1, the PCX provided reinstatement and that a meeting of the additional justification for its proposal under PCXE Board will be held not less than section 6(b)(3) of the Act and corrected the title of the proposed rule change. For purposes of 10 business days subsequent to such calculating the 60-day abrogation period, the notice. Historically, membership-based Commission considers the period to have exchanges in which members have commenced on February 18, 2004, the date the 13 For example, if a trade is executed on ownership and involvement in Exchange filed Amendment No. 1. September 15 with a contract settlement date of 4 15 U.S.C. 78s(b)(3)(A). determining who should be granted September 18 but the trade does not match until 5 17 CFR 240.19b–4(f)(6). access to their facilities used posting September 18 or later, NSCC will provide the 6 The PCX provided the Commission with notice Settlement Date. of its intent to file the proposed rule change on 7 See Securities Exchange Act Release No. 34– 14 15 U.S.C. 78q–1(b)(3)(F). January 21, 2004. See Rule 19b–4(f)(6)(iii). 17 CFR 48532 (September 24, 2003), 68 FR 56369 15 17 CFR 200.30–3(a)(12). 240.19b–4(f)(6)(iii). (September 30, 2003) (SR–PCX–2003–43).
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rules to notify members of parties necessary or appropriate in furtherance consistent with the protection of interested in joining the exchange. of the purposes of the Act. investors and the public interest,19 Consistent with the rationale of C. Self-Regulatory Organization’s because it will allow for a more efficient eliminating the requirement for new Statement on Comments on the and effective market operation by applicants, the Exchange believes that Proposed Rule Change Received From enabling Exchange access to new ETP because PCXE is a demutualized Members, Participants, or Others Holders in a more timely manner. For organization in which there are no this reason, the Commission designates Written comments on the proposed ownership or voting rights, the posting the proposed rule change to be effective rule change were neither solicited nor period is not a critical part of the and operative immediately. application or reinstatement process. received. At any time within 60 days after the Accordingly, the Exchange proposes to III. Date of Effectiveness of the filing of the proposed rule change, the amend PCXE Rule 11.7 to eliminate the Proposed Rule Change and Timing for Commission may summarily abrogate 10-day notification period. Commission Action The Exchange believes that the such rule change if it appears to the elimination of the posting process The proposed rule change has been Commission that such action is promotes a more efficient and effective filed by the Exchange as a ‘‘non- necessary or appropriate in the public market operation by enabling Exchange controversial’’ rule change pursuant to interest, for the protection of investors, section 19(b)(3)(A) of the Act 13 and access to ETP Holders in a more timely or otherwise in furtherance of the subparagraph (f)(6) of Rule 19b–4 manner. Due to the fact that ETP purposes of the Act. thereunder.14 Consequently, because the Holders are not involved in the foregoing proposed rule change: (1) application approval process, and IV. Solicitation of Comments Does not significantly affect the because the basis for the notification protection of investors or the public Interested persons are invited to process was to inform individuals who interest, (2) does not impose any submit written data, views and were involved in membership decisions significant burden on competition, and arguments concerning the foregoing, of the status of such applications, the (3) by its terms does not become including whether the proposed change, Exchange believes eliminating the operative for 30 days after the date of as amended, is consistent with the Act. posting period is merely an this filing, or such shorter time as the Persons making written submissions administrative change necessary to Commission may designate, if should file six copies thereof with the streamline the process of enabling ETP consistent with the protection of Holders access to the Exchange. Secretary, Securities and Exchange investors and the public interest, Commission, 450 Fifth Street, NW., 2. Statutory Basis provided that the self-regulatory Washington, DC 20549–0609. organization has given the Commission The Exchange believes that the Comments may also be submitted written notice of its intent to file the proposed rule change is consistent with electronically at the following e-mail proposed rule change, along with a brief section 6(b) of the Act,8 in general, and address: [email protected]. All description and text of the proposed further the objectives of section 6(b)(5),9 comment letters should refer to File No. rule change, at least five business days in particular, because it is designed to SR–PCX–2004–02. This file number prior to the date of filing of the promote just and equitable principles of proposed rule change, or such shorter should be included on the subject line trade, to foster cooperation and time as the Commission may designate, if e-mail is used. To help the coordination with persons engaged in it has become effective pursuant to Commission process and review your facilitating transactions in securities, section 19(b)(3)(A) of the Act 15 and comments more efficiently, comments and to remove impediments and perfect Rule 19b–4(f)(6) thereunder.16 should be sent in hard copy or by e-mail the mechanisms of a free and open Pursuant to Rule 19b–4(f)(6)(iii),17 a but not by both methods. Copies of the market and to protect investors and the proposed ‘‘non-controversial’’ rule submission, all subsequent public interest. Furthermore, the change does not become operative for 30 amendments, all written statements Exchange believes the elimination of days after the date of filing, or such with respect to the proposed rule this requirement is consistent with shorter time as the Commission may change that are filed with the section 6(b)(3) of the Act.10 While PCXE designate if consistent with the Commission, and all written is demutualized and therefore does not protection of investors and the public communications relating to the contain the traditional approval process interest. The PCX has requested that the proposed rule change between the for its applicants as a membership-based Commission waive the 30-day operative Commission and any person, other than exchange, the fair representation delay so that the proposed rule change requirements of section 6(b)(3) of the those that may be withheld from the 11 will become immediately effective upon public in accordance with the Act would still be satisfied after the filing.18 proposed rule change is approved provisions of 5 U.S.C. 552, will be The Commission believes that available for inspection and copying in through the ETP representative on the waiving the 30-day operative delay is PCX Board of Governors.12 the Commission’s Public Reference Section. Copies of such filing will also 13 15 U.S.C. 78s(b)(3)(A). B. Self-Regulatory Organization’s be available for inspection and copying Statement on Burden on Competition 14 17 CFR 240.19b–4(f)(6). 15 15 U.S.C. 78s(b)(3)(A). at the principal office of the Exchange. The Exchange does not believe that 16 17 CFR 240.19b–4(f)(6). All submissions should refer to File No. the proposed rule change will impose 17 17 CFR 240.19b–4(f)(6)(iii). SR–PCX–2004–02 and should be any burden on competition that is not 18 In its original filing, the PCX inadvertently submitted by March 22, 2004. requested that the Commission also waive the five- day pre-filing period. The PCX had, in fact, already 8 15 U.S.C. 78f(b). provided the Commission with the appropriate five- 9 19 15 U.S.C. 78f(b)(5). day pre-filing notice. Telephone call between For purposes of accelerating the operative date 10 15 U.S.C. 78f(b)(3). Steven B. Matlin, Regulatory Policy, PCX, and of this proposal, the Commission has considered 11 Id. David Hsu, Attorney, Division, Commission on the proposed rule’s impact on efficiency, 12 See Amendment No. 1, supra note 3. February 4, 2004. competition and capital formation. 15 U.S.C. 78c(f).
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For the Commission, by the Division of II. Self-Regulatory Organization’s In addition, the position and exercise Market Regulation, pursuant to delegated Statement of the Purpose of, and limits applicable to BKX will be 20 authority. Statutory Basis for, the Proposed Rule increased from 24,000 contracts to Margaret H. McFarland, Change 44,000 contracts in order to Deputy Secretary. accommodate the increased number of In its filing with the Commission, [FR Doc. 04–4431 Filed 2–27–04; 8:45 am] contracts outstanding. With the Amex included statements concerning BILLING CODE 8010–01–P exception of the position limit change, the purpose of and basis for the this procedure is similar to the one proposed rule change and discussed any comments it received on the proposed employed respecting equity options SECURITIES AND EXCHANGE where the underlying security is subject COMMISSION rule change. The text of these statements 7 may be examined at the places specified to a ten-for-one stock split. The trading [Release No. 34–49312; File No. SR–Phlx– in Item IV below. The Exchange has symbol will remain BKX. 2004–13] prepared summaries, set forth in In conjunction with the proposed Self-Regulatory Organizations; Notice Sections A, B, and C below, of the most split, the Exchange will list strike prices of Filing and Immediate Effectiveness significant aspects of such statements. surrounding the new lower Index value, pursuant to Phlx Rule 1101A. The of Proposed Rule Change by the A. Self-Regulatory Organization’s Exchange will announce the effective Philadelphia Stock Exchange, Inc. Statement of the Purpose of, and the date by way of an Exchange Relating to the Phlx/KBW Bank Index Statutory Basis for, the Proposed Rule memorandum to the membership, 10-for-1 Split Change which will also serve as notice of the February 24, 2004. 1. Purpose strike price and position limit changes. Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 The purpose of the proposed rule 2. Statutory Basis (‘‘Exchange Act’’),1 and Rule 19b–4 change is to attract additional liquidity The Exchange believes that its thereunder,2 notice is hereby given that to the BKX. A ten-for-one split, which proposal is consistent with Section 6(b) on February 17, 2004, the Philadelphia reduces the value of the Index, should have a positive effect on overall of the Act 8 in general, and furthers the Stock Exchange, Inc. (‘‘Phlx’’ or 9 ‘‘Exchange’’) filed with the Securities transaction volumes by making the objectives of Section 6(b)(5) in and Exchange Commission option premiums more attractive for particular, in that it is designed to (‘‘Commission’’) the proposed rule retail investors. By reducing the value of promote just and equitable principles of change as described in Items I, II, and the Index, investors will be able to trade, to remove impediments to and III below, which Items have been utilize the BKX as a trading vehicle perfect the mechanism of a free and prepared by the Exchange. The Phlx has while extending a smaller outlay of open market and a national market submitted the proposed rule change capital. This should attract additional system, and to protect investors and the under section 19(b)(3)(A) of the investors and, in turn, create a more public interest by establishing a lower Exchange Act 3 and Rule 19b–4(f)(6) active and liquid trading environment. Index value, which should, in turn, thereunder,4 which renders the proposal The Exchange began trading the BKX facilitate trading in BKX, creating a effective upon filing with the in 1992.6 As of January 30, 2004, the more liquid trading environment. The Commission. The Commission is Index value was 992.69 and the near- Exchange believes that reducing the publishing this notice to solicit month at-the-money call premium was value of the Index should not raise comments on the proposed rule change $16.25 per contract. The Exchange manipulation concerns and should not from interested persons. proposes to conduct a ‘‘ten-for-one cause adverse market impact because the Exchange will continue to employ I. Self-Regulatory Organization’s split’’ of the Index, such that the Index value would be reduced to one-tenth of its surveillance procedures and has Statement of the Terms of Substance of proposed an orderly procedure to the Proposed Rule Change its current value, or 99.27. In order to maintain economic equivalence, the achieve the Index split, including The Phlx proposes to reduce the value number of BKX contracts will be adequate prior notice to market of its Phlx/KBW Bank Index (‘‘Index’’) increased ten-fold, such that for each participants. option (‘‘BKX’’) to one-tenth its present BKX contract currently held, the holder value by multiplying by ten the base B. Self-Regulatory Organization’s would receive ten contracts at the Statement on Burden on Competition market divisor used to calculate the reduced value, each with a strike price Index. In addition, the position and equal to one-tenth of the original strike The Exchange does not believe that exercise limits applicable to the BKX price. For example, the holder of one the proposed rule change will impose (currently 24,000 contracts) will be BKX 990 call with a premium of $16.25 any inappropriate burden on increased to 44,000 contracts. The Index will receive ten BKX 99 calls with a competition. is a cash-settled, capitalization- premium of $1.63. weighted, narrow-based, A.M. settled 7 index composed of 24 geographically Customarily, the position and exercise limits Corp., Wells Fargo and Co., JP Morgan Chase & Co., would also be increased ten-fold in a ten-for-one diverse stocks representing national Wachovia Corp., Bank One Corporation, U.S. split until the expiration of the then-furthest-out money center banks and leading Bancorp, Washington Mutual, Fifth Third Bancorp, expiration month, after which time the position and regional institutions.5 FleetBoston Financial Corp., MBNA Corp., National exercise limits would revert back to their pre-split City Corp., Bank of New York Company, SunTrust levels. See, e.g., Securities Exchange Act Release Banks, Inc., BB&T Corp., PNC Financial Services, No. 42814 (May 23, 2000), 65 FR 35152 (June 1, 20 17 CFR 200.30–3(a)(12). Golden West Financial Corp., State Street Corp., 2000) (File No. SR–Phlx–00–11) (two-for-one split 1 15 U.S.C. 78s(b)(1). Keycorp, Mellon Financial Corporation, SouthTrust of index value resulted in a doubling of the 2 17 CFR 240.19b–4. Corp., Northern Trust Corp., Comerica, Inc., and applicable position and exercise limits). In the 3 15 U.S.C. 78s(b)(3)(A). Zion Bancorporation. present case, the position and exercise limits will 4 17 CFR 240.19b–4(f)(6). 6 See Securities Exchange Act Release No. 31145 not revert back to pre-split levels. 5 The Index is currently composed of the (September 3, 1992), 57 FR 41531 (September 10, 8 15 U.S.C. 78f(b). following stocks: Citigroup, Inc., Bank of America 1992) (File No. SR–Phlx–91–27). 9 15 U.S.C. 78f(b)(5).
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C. Self-Regulatory Organization’s in an orderly manner. Accordingly, the Securities and Exchange Commission Statement on Comments on the Commission designates the proposal to [Release No. 34–49311; File No. SR–Phlx– Proposed Rule Change Received From be operative immediately. 2003–72] Members, Participants or Others At any time within 60 days of the No written comments were either filing of such proposed rule change, the Self-Regulatory Organizations; solicited or received. Commission may summarily abrogate Philadelphia Stock Exchange, Inc.; Order Granting Approval of Proposed III. Date of Effectiveness of the such rule change if it appears to the Commission that such action is Rule Change To Reduce Strike Prices Proposed Rule Change and Timing for for Index Options Commission Action necessary or appropriate in the public interest, for the protection of investors, The Phlx has filed the proposed rule February 24, 2004. or otherwise in furtherance of the change pursuant to section 19(b)(3)(A) On December 4, 2003, the purposes of the Act.13 of the Act 10 and subparagraph (f)(6) of Philadelphia Stock Exchange, Inc. Rule 19b–4 thereunder.11 Because the IV. Solicitation of Comments (‘‘Phlx’’ or ‘‘Exchange’’) filed with the foregoing proposed rule change: (1) Securities and Exchange Commission Does not significantly affect the Interested persons are invited to (‘‘Commission’’), pursuant to Section protection of investors or the public submit written data, views, and 19(b)(1) of the Securities Exchange Act 1 interest; (2) does not impose any arguments concerning the foregoing, of 1934 (‘‘Act’’) and Rule 19b–4 2 significant burden on competition; and including whether the proposal is thereunder, a proposed rule change to (3) is not proposed to become operative consistent with the Act. Persons making amend Phlx Rule 1101A (‘‘Terms of for 30 days, or such shorter time as the written submissions should file six Option Contracts’’) to provide that strike 3 Commission may designate, and the copies thereof with the Secretary, price intervals for index options shall Phlx provided the Commission with Securities and Exchange Commission, be $2.50 for the three consecutive near- term months, $5 for the fourth month, written notice of its intent to file the 450 Fifth Street, NW., Washington, DC and $10 for the fifth month. The proposed rule change at least five 20549–0609. Comments may also be proposed rule change was published for business days prior to the filing date, submitted electronically at the following the proposed rule change has become comment in the Federal Register on e-mail address: [email protected]. January 21, 2004.4 The Commission effective pursuant to Section 19(b)(3)(A) All comment letters should refer to File of the Act and Rule 19b–4(f)(6) received no comments on the proposal. No. SR–Phlx–2004–13. The file number This order approves the proposed rule thereunder. should be included on the subject line A proposed rule change filed under change. if e-mail is used. To help the Rule 19b–4(f)(6) normally does not The Commission finds that the become operative prior to 30 days after Commission process and review your proposed rule change is consistent with the date of filing. However, Rule 19b– comments more efficiently, comments the requirements of the Act and the 4(f)(6)(iii) permits the Commission to should be sent in hardcopy or by e-mail rules and regulations thereunder designate a shorter time if such action but not by both methods. applicable to a national securities 5 is consistent with the protection of Copies of the submission, all exchange. In particular, the investors and the public interest. The subsequent amendments, all written Commission believes the proposal is Phlx has requested that the Commission statements with respect to the proposed consistent with Section 6(b)(5) of the 6 waive the 30-day operative delay to rule change that are filed with the Act which requires, among other things, that the Exchange’s rules be allow the proposed Index split and Commission, and all written designed to promote just and equitable corresponding increases in the position communications relating to the principles of trade, to remove and exercise limits applicable to BKX proposed rule change between the impediments to and perfect the options to occur without delay. Commission and any person, other than The Commission finds that waiving mechanism of a free and open market those that may be withheld from the and a national market system, and, in the 30-day operative delay is consistent public in accordance with the with the protection of investors and the general, to protect investors and the provisions of 5 U.S.C. 552, will be public interest.12 Specifically, the public interest. available for inspection and copying in Commission believes that allowing the The Commission believes that by the Commission’s Public Reference Phlx to implement the proposed ten-for- reducing strike price intervals to $2.50 one split of the Phlx/KBW Bank Index Room. Copies of such filing will also be strikes for three consecutive near-term will facilitate a more liquid trading available for inspection and copying at months, $5 for the fourth month, and environment and make the BKX product the principal office of the Exchange. All $10 for the fifth month, the proposed more accessible to investors. Waiving submissions should refer to the File No. rule change should increase the ability the 30-day operative delay will permit SR–Phlx–2004–13 and should be to trade an options series that is likely the Exchange community (specialists, submitted by March 22, 2004. to expire in-the-money. In addition, the Commission notes that the Exchange broker-dealers, and retail customers) a For the Commission, by the Division of has represented that there is sufficient full expiration month’s notice before the Market Regulation, pursuant to delegated changes specified in the proposal take authority.14 effect following the March 2004 1 15 U.S.C. 78s(b)(1). Margaret H. McFarland, 2 expiration date, and will assist Phlx in 17 CFR 240.19b–4. Deputy Secretary. 3 Index options traded on the Exchange are also implementing the proposed Index split [FR Doc. 04–4507 Filed 2–27–04; 8:45 am] known as sector index options. 4 See Securities Exchange Act Release No. 49074 10 15 U.S.C. 78s(b)(3)(A). BILLING CODE 8010–01–P (January 14, 2004), 69 FR 2959. 11 17 CFR 240.19b–4(f)(6). 5 In approving this proposed rule change, the 12 For purposes only of waiving the operative date Commission notes that it has considered the of this proposal, the Commission has considered proposed rule’s impact on efficiency, competition, the proposed rule’s impact on efficiency, 13 15 U.S.C. 78s(b)(3)(C). and capital formation. 15 U.S.C. 78c(f). competition, and capital formation. 15 U.S.C. 78c(f). 14 17 CFR.200.30–3(a)(12). 6 15 U.S.C. 78f(b)(5).
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Options Price Reporting Authority Investment, U.S. Small Business DEPARTMENT OF STATE (‘‘OPRA’’) system capacity to Administration, 409 Third Street, SW., Washington, DC 20416. accommodate the reduced strike price [Public Notice 4634] intervals. Dated: February 17, 2004. It is therefore ordered, pursuant to Jeffrey D. Pierson, Culturally Significant Objects Imported Section 19(b)(2) of the Act,7 that the Associate Administrator for Investment. for Exhibition Determinations: ‘‘The proposed rule change (SR–Phlx–2003– Cubist Paintings of Diego Rivera 72) is approved. [FR Doc. 04–4409 Filed 2–27–04; 8:45 am] BILLING CODE 8025–01–P Memory, Politics, Place’’ For the Commission, by the Division of Market Regulation, pursuant to delegated AGENCY: Department of State. authority.8 SMALL BUSINESS ADMINISTRATION Margaret H. McFarland, ACTION: Notice. Deputy Secretary. [Declaration of Disaster #P021] [FR Doc. 04–4510 Filed 2–27–04; 8:45 am] SUMMARY: Notice is hereby given of the State of Oregon following determinations: Pursuant to BILLING CODE 8010–01–P As a result of the President’s major the authority vested in me by the Act of disaster declaration for Public October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March SMALL BUSINESS ADMINISTRATION Assistance on February 19, 2004, the U.S. Small Business Administration is 27, 1978, the Foreign Affairs Reform and Elk Associates Funding Corp., activating its disaster loan program only Restructuring Act of 1998 (112 Stat. (License No. 02/02–5377); Notice for private non-profit organizations that 2681, et seq.; 22 U.S.C. 6501 note, et Seeking Exemption Under 312 of the provide essential services of a seq.), Delegation of Authority No. 234 of Small Business Investment Act, governmental nature. I find that Baker, October 1, 1999, Delegation of Authority Conflicts of Interest Benton, Clackamas, Clatsop, Columbia, No. 236 of October 19, 1999, as Deschutes, Douglas, Gilliam, Hood amended, and Delegation of Authority Notice is hereby given that Elk River, Jefferson, Lake, Lane, Lincoln, No. 257 of April 15, 2003 (68 FR 19875), Associates Funding Corp., 747 Third Linn, Malheur, Marion, Morrow, I hereby determine that the objects to be Avenue, New York, New York, 10017, a Multnomah, Polk, Sherman, Tillamook, included in the exhibition ‘‘The Cubist Federal Licensee under the Small Umatilla, Union, Wallowa, Wasco, and Paintings of Diego Rivera Memory, Business Investment Act of 1958, as Yamhill Counties in the State of Oregon Politics, Place,’’ imported from abroad amended (‘‘the Act’’), in connection constitute a disaster area due to for temporary exhibition within the with the financing of a small concern, damages caused by severe winter storms United States, are of cultural has sought an exemption under section occurring on December 26, 2003 and significance. The objects are imported 312 of the Act and section 107.730, continuing through January 14, 2004. pursuant to loan agreements with the Financings Which Constitute Conflicts Applications for loans for physical foreign owners. I also determine that the of Interest, of the Small Business damage as a result of this disaster may exhibition or display of the exhibit Administration (‘‘SBA’’) rules and be filed until the close of business on objects at the National Gallery of Art, regulations (13 CFR 107.730 (2003)). Elk April 19, 2004 at the address listed Washington, DC, from on or about April Associates Funding Corp. proposes to below or other locally announced 4, 2004, to on or about July 25, 2004, provide loans to Across the Town Cab locations: U.S. Small Business and at possible additional venues yet to Corp., 811 West Evergreen, Chicago, IL Administration, Disaster Area 4 Office, be determined, is in the national 60622. The financings are contemplated PO Box 419004, Sacramento, CA 95841– interest. Public notice of these for the purchase of taxi medallions and 9004. determinations is ordered to be taxi vehicles. The interest rates are: published in the Federal Register. The financings are brought within the purview of Sec. 107.730(a)(1) of the For physical damage Percent FOR FURTHER INFORMATION CONTACT: For Regulations because Mr. Charles further information, including a list of Goodbar III, Esq., an Associate of Elk Non-Profit Organizations Without the exhibit objects, contact Julianne Credit Available Elsewhere ...... 2.900 Simpson, Attorney-Adviser, Office of Associates Funding Corp., currently Non-Profit Organizations With owns greater than 10 percent of Across Credit Available Elsewhere ...... 4.875 the Legal Adviser, U.S. Department of the Town Cab Corp. and therefore, State, (telephone: 202/619–6529). The Across the Town Cab Corp. is The number assigned to this disaster address is U.S. Department of State, SA– considered an Associate of Elk for physical damage is P02111. 44, 301 4th Street, SW., Room 700, Associates Funding Corp. as defined in Washington, DC 20547–0001. (Catalog of Federal Domestic Assistance Sec. 105.50 of the regulations. Program Nos. 59008). Dated: February 19, 2004. Notice is hereby given that any Dated: February 20, 2004. interested person may submit written C. Miller Crouch, comments on the transaction, within 15 Cheri L. Cannon, Principal Deputy Assistant Secretary for days, to the Associate Administrator for Acting Associate Administrator for Disaster Educational and Cultural Affairs, Department Assistance. of State. 7 15 U.S.C. 78s(b)(2). [FR Doc. 04–4410 Filed 2–27–04; 8:45 am] [FR Doc. 04–4477 Filed 2–27–04; 8:45 am] 8 17 CFR 200.30–3(a)(12). BILLING CODE 8025–01–P BILLING CODE 4710–08–P
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DEPARTMENT OF STATE DEPARTMENT OF STATE of the room. Interested persons may seek information by writing to [Public Notice 4609] [Public Notice 4633 ] Lieutenant Junior Grade Mary Stewart, Shipping Coordinating Committee; Commandant (G–MSO–4), U.S. Coast Culturally Significant Objects Imported Notice of Meeting Guard Headquarters, 2100 Second for Exhibition Determinations: ‘‘Japan Street, SW., Room 1601, Washington, and Paris: Impressionism, The Shipping Coordinating DC 20593–0001 or by calling (202) 267– Committee (SHC) will conduct an open Postimpressionism and the Modern 2079. meeting at 9:30 a.m. on Tuesday, March Era’’ Dated: February 19, 2004. 23, 2004, in Room 2415 of the United States Coast Guard Headquarters Steven Poulin, AGENCY: Department of State. Building, 2100 2nd Street, SW., Executive Secretary, Shipping Coordinating Committee, U.S. Department of State. ACTION: Notice. Washington, DC 20593–0001. The primary purpose of the meeting is to [FR Doc. 04–4478 Filed 2–27–04; 8:45 am] SUMMARY: Notice is hereby given of the prepare for the 51st session of the BILLING CODE 4710–07–P following determinations: Pursuant to International Maritime Organization the authority vested in me by the Act of (IMO) Marine Environment Protection October 19, 1965 (79 Stat. 985; 22 U.S.C. Committee (MEPC) to be held at IMO DEPARTMENT OF THE TREASURY 2459), Executive Order 12047 of March Headquarters in London, England from March 29 to April 2, 2004. Submission for OMB Review; 27, 1978, the Foreign Affairs Reform and The primary matters to be considered Comment Request Restructuring Act of 1998 (112 Stat. include: 2681, et seq.; 22 U.S.C. 6501 note, et • Harmful aquatic organisms in February 20, 2004. seq.), Delegation of Authority No. 234 of ballast water; The Department of Treasury has October 1, 1999, Delegation of Authority • Recycling of ships; submitted the following public No. 236 of October 19, 1999, as • Prevention of air pollution from information collection requirement(s) to amended, and Delegation of Authority ships; OMB for review and clearance under the No. 257 of April 15, 2003 (68 FR 19875), • Consideration and adoption of Paperwork Reduction Action of 1995, I hereby determine that the objects to be amendments to mandatory instruments; Public Law 104–13. Copies of the • included in the exhibition ‘‘Japan and Harmful anti-fouling systems for submission(s) may be obtained by Paris: Impressionism, ships; calling the Treasury Bureau Clearance • Implementation of the International Postimpressionism and the Modern Officer listed. Comments regarding this Convention on Oil Pollution information collection should be Era,’’ imported from abroad for Preparedness, Response and Co- addressed to the OMB reviewer listed temporary exhibition within the United operation (OPRC) Convention and the and to the Treasury Department States, are of cultural significance. The OPRC-Hazardous Noxious Substance Clearance Officer, Department of the objects are imported pursuant to loan Protocol and relevant conference Treasury, Room 11000, 1750 agreements with the foreign owners. I resolutions; Pennsylvania Avenue, NW., • also determine that the exhibition or Identification and protection of Washington, DC 20220. display of the exhibit objects at the Special Areas and Particular Sensitive DATES: Written commens should be Honolulu Academy of Arts, Honolulu, Sea Areas; recieved on or before March 31, 2004 to • Inadequacy of reception facilities; Hawaii, from on or about April 7, 2004, be assured of consideration. to on or about June 6, 2004, and at • Promotion of implementation and possible additional venues yet to be enforcement of the International Internal Revenue Service (IRS) Convention on the Prevention of determined, is in the national interest. OMB Number: 1545–0755. Pollution from Ships, 1973, as modified Public notice of these determinations is Regulation Project Number: LR–53–83 by the Protocol of 1978 relating thereto ordered to be published in the Federal Final. (MARPOL 73/78) and related Register. Type of Review: Extension. instruments; Title: Related Group Election With FOR FURTHER INFORMATION CONTACT: For • Technical co-operation program; Respect to Qualified Investments in further information, including a list of • Interpretation and amendments of Foreign Base Company Shipping the exhibit objects, contact Wolodymyr MARPOL 73/78 and related instruments; Operations. R. Sulzynsky, the Office of the Legal • Description: The election described in Adviser, U.S. Department of State Future role of formal safety assessment and human element issues; the attached justification converted an (telephone: 202/619–5078). The address and annual election to an election effective is U.S. Department of State, SA–44, 301 • Work program of the Committee until revoked. The computational 4th Street, SW., Room 700, Washington, and subsidiary bodies. information required is necessary to DC 20547–0001. Please note that hard copies of assure that the U.S. shareholder Dated: February 20, 2004. documents associated MEPC 51 will not correctly reports any shipping income of C. Miller Crouch, be available at this meeting. Documents its controlled foreign corporations will be available in Adobe Acrobat which is taxable to that shareholder. Principal Deputy Assistant Secretary for format on CD–ROM. To requests Respondents: Business or other for- Educational and Cultural Affairs, Department profit. of State. documents please write to the address provided below, or request documents Estimated Number of Respondents: [FR Doc. 04–4476 Filed 2–27–04; 8:45 am] via the following Internet link: http:// 100. BILLING CODE 4710–08–P www.uscg.mil/hq/g-m/mso/mso4/ Estimated Burden Hours Respondent: mepc.html. 2 hours, 3 minutes. Members of the public may attend Frequency of Response: Other this meeting up to the seating capacity (nonrecurring).
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Estimated Total Reporting Burden: DEPARTMENT OF THE TREASURY determine if shareholders have included 205 hours. amounts in gross income. Submission for OMB Review; OMB Number: 1545–0768. Respondents: Business or other for- Comment Request profit. Regulation Project Number: EE–178– Estimated Number of Respondents/ 78 Final (TD 7898). February 23, 2004. Recordkeepers: 500. Type of Review: Extension. The Department of Treasury has Estimated Burden Hours Respondent/ Title: Employees’ Qualified submitted the following public Recordkeeper: information collection requirement(s) to Educational Assistance Programs. Recordkeeping—5 hr., 44 min. OMB for review and clearance under the Learning about the law or the form—53 Description: Respondents include Paperwork Reduction Act of 1995, employers who maintain education min. Public Law 104–13. Copies of the Preparing, copying, assembling, and assistance programs for their employees. submission(s) may be obtained by Information verifies that programs are sending the form to the IRS—1 hr., 1 calling the Treasury Bureau Clearance min. qualified and that employees may Officer listed. Comments regarding this Frequency of Response: On occasion. exclude educational assistance from information collection should be Estimated Total Reporting/ their gross incomes. addressed to the OMB reviewer listed Recordkeeping Burden: 3,830 hours. Respondents: business or other for- and to the Treasury Department profit, Individuals or households. OMB Number: 1545–0073. Clearance Officer, Department of the Form Number: IRS Form 1310. Estimated Number of Respondents/ Treasury, Room 11000, 1750 Type of Review: Extension. Recordkeepers: 5,200. Pennsylvania Avenue, NW., Title: Statement of Person Claiming Estimated Burden Hours Respondent/ Washington, DC 20220. Refund Due a Deceased Taxpayer. Recordkeeper: 7 minutes. DATES: Written comments should be Description: Form 1310 is used by a Frequency of Response: Annual. received on or before March 31, 2004 to claimant to secure payment of a refund Estimated Total Reporting/ be assured of consideration. on behalf of a deceased taxpayer. The Recordkeeping Burden: 615 hours. Internal Revenue Service (IRS) information enables IRS to send the refund to the correct person. OMB Number: 1545–1555. OMB Number: 1545–0044. Respondents: Individuals or Regulation Project Number: REG– Form Number: IRS Form 973. households. 115975–97 Final. Type of Review: Extension. Estimated Number of Respondents/ Type of Review: Extension. Title: Corporation Claim for Recordkeepers: 7,500. Deduction for Consent Dividends. Title: General rules for Making and Estimated Burden Hours Respondent/ Description: Corporations file Form Recordkeeper: Maintaining Qualified Electing Fund 973 to claim a deduction for dividends Elections. Recordkeeping—6 min. paid. If shareholders consent and IRS Learning about the law or the form—3 Description: The regulations provide approves, the corporation may claim a rules for making section 1295 elections min. deduction for dividends paid, which Preparing the form—15 min. and satisfying annual reporting reduces the corporation’s tax liability. Copying, assembling, and sending the requirements for such elections, IRS uses Form 973 to determine if form to the IRS—16 min. revoking section 1295 elections, and shareholders have included the Frequency of Response: On occasion. making retroactive section 1295 dividend in gross income. elections. Estimated Total Reporting/ Respondents: Business or other for- Recordkeeping Burden: 5,250 hours. Respondents: Business or other for- profit. OMB Number: 1545–0746. profit, Individuals or households, Not- Estimated Number of Respondents/ Regulation Project Number: LR–100– for-profit institutions. Recordkeepers: 500. 78 Final. Estimated Number of Respondents/ Estimated Burden Hours Respondent/ Type of Review: Extension. Recordkeepers: 1,290. Recordkeeper: Title: Creditability of Foreign Taxes. Estimated Burden Hours Respondent/ Recordkeeping—3 hr., 21 min. Description: The information needed Recordkeeper: 29 minutes. Learning about the law or the form—30 is a statement by the taxpayer that it has min. elected to apply the safe harbor formula Frequency of Response: Other (one- Preparing and sending the form to the time only). of section 1.901–2A(e) of the foreign tax IRS—34 min. credit regulations. This statement is Estimated Total Reporting/ Frequency of Response: On occasion. necessary in order that the IRS may Recordkeeping Burden: 623 hours. Estimated Total Reporting/ properly determine the taxpayer’s tax Clearance Officer: Glenn P. Kirkland, Recordkeeping Burden: 2,210 hours. liability. (202) 622–3428, Internal Revenue OMB Number: 1545–0045. Respondents: Business or other for- Service, Room 6411–03, 1111 Form Number: IRS Form 976. profit, Individuals or households, Constitution Avenue, NW., Washington, Type of Review: Extension. Farms. DC 20224. Title: Claim for Deficiency Dividends Estimated Number of Respondents: OMB Reviewer: Joseph F. Lackey, Jr., Deductions by a Personal Holding 110. (202) 395–7316, Office of Management Company, Regulated Investment Estimated Burden Hours Respondent: and Budget, Room 10235, New Company, or Real Estate Investment 3 hours. Executive Office Building, Washington, Trust. Frequency of Response: Other (non- DC 20503. Description: Form 976 is filed by recurring). corporations that wish to claim a Estimated Total Reporting Burden: 37 Lois K. Holland, deficiency dividend deduction. The hours. Treasury PRA Clearance Officer. deduction allows the corporation to OMB Number: 1545–1455. [FR Doc. 04–4452 Filed 2–27–04; 8:45 am] eliminate all or a portion of a tax Regulation Project Number: PS–80–93 BILLING CODE 4830–01–M deficiency. The IRS uses Form 976 to Final.
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Type of Review: Extension. Issue Committee will be held Friday, dollar. The increased rates are required Title: Rules for Certain Rental Real March 19, 2004, from 1 p.m. e.s.t. to 2 to be published in the Federal Register. Estate Activities. p.m. e.s.t. via a telephone conference The Social Security Administration Description: The regulation provides call. Individual comments will be has announced that there will be a 2.1 rules relating to the treatment of rental limited to 5 minutes. If you would like percent cost-of-living increase in Social real estate activities of certain taxpayers to have the TAP consider a written Security benefits. Therefore, applying under the passive activity loss and statement, please call 1–888–912–1227 the same percentage, the following rates credit limitations of Internal Revenue or 954–423–7977, or write Inez E. De for VA compensation and DIC programs Code section 469. Jesus, TAP Office, 1000 South Pine will be effective December 1, 2003: Respondents: Individuals or Island Rd., Suite 340, Plantation, FL households, Business or other for-profit. 33324. Due to limited conference lines, DISABILITY COMPENSATION (38 U.S.C. Estimated Number of Respondents: notification of intent to participate in 1114) 20,100. the telephone conference call meeting Estimated Burden Hours Respondent: must be made with Inez E. De Jesus. Ms. Disability evaluation Monthly 9 minutes. De Jesus can be reached at 1–888–912– (percent) rate Frequency of Response: On occasion. 1227 or 954–423–7977, or post Estimated Total Reporting Burden: comments to the Web site: http:// 10 ...... $106 3,015 hours. 20 ...... 205 www.improveirs.org. 30 ...... 316 Clearance Officer: Glenn P. Kirkland The agenda will include the following: 40 ...... 454 (202) 622–3428, Internal Revenue Various IRS issues. 50 ...... 646 Service, Room 6411–03, 1111 Dated: February 25, 2004. 60 ...... 817 Constitution Avenue, NW., Washington, Bernard Coston, 70 ...... 1,029 DC 20224. 80 ...... 1,195 Director, Taxpayer Advocacy Panel. OMB Reviewer: Joseph F. Lackey, Jr. 90 ...... 1,344 (202) 395–7316, Office of Management [FR Doc. 04–4486 Filed 2–27–04; 8:45 am] 100 ...... 2,239 and Budget, Room 10235, New BILLING CODE 4830–01–P Executive Office Building, Washington, (38 U.S.C. 1114(k) DC 20503. through (s)) Monthly rate DEPARTMENT OF VETERANS Lois K. Holland, AFFAIRS 38 U.S.C. 1114(k) ...... $82; $2,785; Treasury PRA Clearance Officer. $82; $3,907 [FR Doc. 04–4453 Filed 2–27–04; 8:45 am] Adjustments for Service-Connected 38 U.S.C. 1114(l) ...... $2,785 BILLING CODE 4830–01–P Benefits 38 U.S.C. 1114(m) ...... $3,073 38 U.S.C. 1114(n) ...... $3,496 AGENCY: Department of Veterans Affairs. 38 U.S.C. 1114(o) ...... $3,907 ACTION: Notice. DEPARTMENT OF THE TREASURY 38 U.S.C. 1114(p) ...... $3,907 38 U.S.C. 1114(r) ...... $1,677; $2,497 SUMMARY: As required by the Veterans’ 38 U.S.C. 1114(s) ...... $2,506 Internal Revenue Service Compensation Cost-of-Living Adjustment Act of 2003, Pub. L. 108– Open Meeting of the Taxpayer ADDITIONAL COMPENSATION FOR Advocacy Panel (TAP) Multilingual 147, the Department of Veterans Affairs DEPENDENTS (38 U.S.C. 1115(1) Initiative Issue (MLI) Committee Will Be (VA) is hereby giving notice of Conducted (Via Teleconference) adjustments in certain benefit rates. These adjustments affect the 38 U.S.C. 1115(1) Monthly rate AGENCY: compensation and dependency and Internal Revenue Service (IRS) 38 U.S.C. 1115(1)(A) ...... $127 Treasury. indemnity compensation (DIC) 38 U.S.C. 1115(1)(B) ...... $219; $65 ACTION: Notice. programs. 38 U.S.C. 1115(1)(C) ...... $86; $65 DATES: These adjustments are effective 38 U.S.C. 1115(1)(D) ...... $103 SUMMARY: An open meeting of the December 1, 2003, the date provided by 38 U.S.C. 1115(1)(E) ...... $241 Taxpayer Advocacy Panel (TAP) Pub. L. 108–147. 38 U.S.C. 1115(1)(F) ...... $202 Multilingual Initiative Issue (MLI) FOR FURTHER INFORMATION CONTACT: Paul Committee will be conducted (via Trowbridge, Consultant, Compensation teleconference). The Taxpayer CLOTHING ALLOWANCE (38 U.S.C. and Pension Service (212B), Veterans Advocacy Panel is soliciting public 1162)—$600 PER YEAR DIC TO A Benefits Administration, Department of comments, ideas, and suggestions on SURVIVING SPOUSE (38 U.S.C. Veterans Affairs, 810 Vermont Avenue, improving customer service at the 1311) NW., Washington, DC 20420, (202) 273– Internal Revenue Service. 7218. Pay grade Monthly rate DATES: The meeting will be held Friday, SUPPLEMENTARY INFORMATION: Section 2 March 19, 2004, from 1 p.m. e.s.t. to 2 of Pub. L. 108–147 provides for an E–1 ...... $967 p.m. e.s.t. increase in each of the rates in sections E–2 ...... 967 FOR FURTHER INFORMATION CONTACT: Inez 1114, 1115(1), 1162, 1311, 1313, and E–3 ...... 967 E. De Jesus at 1–888–912–1227, or 954– 1314 of title 38, United States Code. VA E–4 ...... 967 423–7977 E–5 ...... 967 is required to increase these benefit E–6 ...... 967 SUPPLEMENTARY INFORMATION: Notice is rates by the same percentage as E–7 ...... 1,000 hereby given pursuant to section increases in the benefit amounts payable E–8 ...... 1,056 10(a)(2) of the Federal Advisory under title II of the Social Security Act. E–91 ...... 1,102 Committee Act, 5 U.S.C. App. (1988) In computing increased rates in the W–1 ...... 1,022 that an open meeting of the Taxpayer cited title 38 sections, fractions of a W–2 ...... 1,063 Advocacy Panel Multilingual Initiative dollar are rounded down to the nearest W–3 ...... 1,094
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CLOTHING ALLOWANCE (38 U.S.C. DIC TO CHILDREN (38 U.S.C. 1313) represented by the Department of 1162)—$600 PER YEAR DIC TO A Veterans Affairs, and is available for SURVIVING SPOUSE (38 U.S.C. 38 U.S.C. 1313 Monthly rate licensing in accordance with 35 U.S.C. 1311)—Continued 207 and 37 CFR part 404 to achieve 38 U.S.C. 1313(a)(1) ...... $410 expeditious commercialization of 38 U.S.C. 1313(a)(2) ...... $590 Pay grade Monthly rate 38 U.S.C. 1313(a)(3) ...... $767 results of federally funded research and 38 U.S.C. 1313(a)(4) ...... $767; $148 development. Foreign patents are filed W–4 ...... 1,157 on selected inventions to extend market O–1 ...... 1,022 coverage for U.S. companies and may O–2 ...... 1,056 SUPPLEMENTAL DIC TO CHILDREN (38 also be available for licensing. O–3 ...... 1,130 U.S.C. 1314) O–4 ...... 1,195 FOR FURTHER INFORMATION CONTACT: O–5 ...... 1,316 Monthly Technical and licensing information on O–6 ...... 1,483 38 U.S.C. 1314 rate the invention may be obtained by O–7 ...... 1,602 writing to: Robert W. Potts, Department O–8 ...... 1,758 38 U.S.C. 1314(a) ...... $241 of Veterans Affairs, Director Technology O–9 ...... 1,881 38 U.S.C. 1314(b) ...... 410 O–102 ...... 2,063 Transfer Program, Office of Research 38 U.S.C. 1314(c) ...... 205 and Development (122TT) , 810 1 If the veteran served as sergeant major of Vermont Avenue, NW., Washington, DC the Army, senior enlisted advisor of the Navy, Dated: February 20, 2004. chief master sergeant of the Air Force, ser- 20420; fax: 202–254–0473; e-mail at geant major of the Marine Corps, or master Anthony J. Principi, [email protected]. Any request chief petty officer of the Coast Guard, the sur- Secretary of Veterans Affairs. for information should include the viving spouse’s monthly rate is $1,189. Number and Title for the relevant 2 [FR Doc. 04–4484 Filed 2–27–04; 8:45 am] If the veteran served as Chairman or Vice invention as indicated below. Issued Chairman of the Joint Chiefs of Staff, Chief of BILLING CODE 8320–01–P Staff of the Army, Chief of Naval Operations, patents may be obtained from the Chief of Staff of the Air Force, Commandant of Commissioner of Patents, U.S. Patent the Marine Corps, or Commandant of the DEPARTMENT OF VETERANS and Trademark Office, Washington, DC Coast Guard, the surviving spouse’s monthly rate is $2,213. AFFAIRS 20231. SUPPLEMENTARY INFORMATION: The Office of Research and Development DIC TO A SURVIVING SPOUSE (38 invention available for licensing is: U.S.C. 1311(A) THROUGH (D) Government Owned Invention International Patent Application No. Available for Licensing PCT/US03/27163 ‘‘Variable Compliance 38 U.S.C. 1311(a) through (d) Monthly Joystick with Compensation rate AGENCY: Office of Research and Algorithms.’’ Development. 38 U.S.C. 1311(a)(1) ...... $967 Dated: February 23, 2004. ACTION: 38 U.S.C. 1311(a)(2) ...... 208 Notice of government owned Anthony J. Principi, invention available for licensing. 38 U.S.C. 1311(b) ...... 241 Secretary, Department of Veterans Affairs. 38 U.S.C. 1311(c) ...... 241 SUMMARY: [FR Doc. 04–4485 Filed 2–27–04; 8:45 am] 38 U.S.C. 1311(d) ...... 115 The invention listed below is owned by the U.S. government as BILLING CODE 8320–01–P
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Part II
Department of Transportation Federal Motor Carrier Safety Administration
National Environmental Policy Act Implementing Procedures; Notice
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DEPARTMENT OF TRANSPORTATION Commission (ICC) to the Department Comments to the Draft Order when it was established in 1966 (49 We received two sets of comments to Federal Motor Carrier Safety U.S.C. 102 and 102 note). The FMCSA our draft Order—comments from the Administration also inherited additional functions Environmental Protection Agency (EPA) [Docket No. FMCSA–2002–14095] relating to registering motor carriers and comments signed by Public Citizen, operating in interstate and foreign International Brotherhood of Teamsters, National Environmental Policy Act commerce that had been carried out by California Labor Federation, and the Implementing Procedures the ICC before 1996 and by the FHWA Environmental Law Foundation. This from 1996–1999. latter comment will be referred to as the AGENCY: Federal Motor Carrier Safety When the FHWA assumed authority Public Citizen comment. Administration (FMCSA), DOT. over motor carrier licensing in 1996, it Public Citizen raised six issues ACTION: did not adopt the ICC’s environmental Notice of final Order. concerning the draft Order’s Appendix regulations because the FHWA had its 14, Air Quality Analysis. SUMMARY: The FMCSA is publishing its own. The FHWA’s environmental First, Public Citizen says Appendix 14 final Order on agency procedures for impact regulations at 23 CFR part 771, appears to be outdated. We have revised implementing the National which are primarily geared to highway and updated Appendix 14, Air Quality Environmental Policy Act of 1969 and urban mass transportation Analysis, to reflect current EPA (NEPA). Now that the FMCSA is a construction projects, contain a regulations and guidance as suggested separate agency within the Department categorical exclusion (CE) for the by Public Citizen. of Transportation (Department or DOT), promulgation of rules, regulations, and Second, Public Citizen stated that it has developed its own environmental directives (23 CFR 771.117(c)(17)). procedures for complying with NEPA, ‘‘rulemaking’’ is on the list of CEs with other pertinent environmental Draft Order respect to general conformity regulations, Executive Orders, statutes, On September 26, 2003, FMCSA determinations. Public Citizen states and laws to ensure that it actively published its proposal to implement that under the Ninth Circuit holding in incorporates environmental environmental procedures for carrying Public Citizen v. DOT, 316 F.3d 1002, considerations into informed out its responsibilities under NEPA (68 1030–31 (9th Cir. 2003), while the decisionmaking. FR 55713). We also solicited public process of developing and issuing comments on the draft procedures. regulations is exempt, the outcome of EFFECTIVE DATE: March 31, 2004. Our NEPA Order establishes a process the rulemaking process—the substantive FOR FURTHER INFORMATION CONTACT: Mr. for assessing environmental impacts, result of the rule’s implementation—is David Miller, Office of Policy, Plans, and for the preparation of not exempt. In that case, the court held and Regulations (MC–PR), (202) 366– Environmental Assessments (EAs), that FMCSA was required to prepare a 6408, or Mrs. Elaine Walls, Office of the Findings of No Significant Impacts conformity analysis for rules that it had Chief Counsel (MC–CC), (202) 366– (FONSIs), and Environmental Impact promulgated. Although the Supreme 0834, FMCSA, U.S. Department of Statements (EISs) for FMCSA actions. Court has granted the government’s Transportation, 400 Seventh St, SW., We will use this Order in conjunction petition for writ of certiorari in the case, Washington, DC 20590–0001. with NEPA, the Council on Public Citizen notes that FMCSA did SUPPLEMENTARY INFORMATION: Environmental Quality (CEQ) not ask the Supreme Court to review the regulations at 40 CFR parts 1500–1508, rulemaking holding. Public Citizen Background DOT Order 5610.1C, as amended, and believes FMCSA should clarify its The FMCSA was established within other pertinent environmental guidance to include and explain the the Department on January 1, 2000, regulations, Executive Orders, statutes, application of a requirement for pursuant to the Motor Carrier Safety and laws for consideration of conformity determinations in the Improvement Act of 1999 (Pub. L. 106– environmental impacts of FMCSA context of this holding and its planned 159, 113 Stat. 1748 (December 9, 1999)). actions. We will also use the Order, to practices. The FMCSA’s primary mission is to the fullest extent possible, to conduct Under the regulations promulgated by prevent commercial motor vehicle- analyses and consultations required by the EPA, we understand ‘‘rulemaking’’ related fatalities and injuries. FMCSA the environmental authorities noted is not subject to the Clean Air Act (CAA) activities contribute to ensuring safety above in conjunction with NEPA general conformity review requirement. in motor carrier operations through implementation to reduce redundancy, See 40 CFR 93.153(c)(2)(iii). Appendix strong enforcement of safety regulations; paperwork, time, and cost. 14, therefore, lists rulemaking as an targeting high-risk carriers and This FMCSA Order supplements DOT exempt activity (and not, as stated by commercial motor vehicle drivers; Order 5610.1C, as amended. It is Public Citizen, as a ‘‘categorical improving safety information systems important that persons using the exclusion’’). Moreover, EPA regulations and commercial motor vehicle FMCSA Order refer to those sections of establish threshold emission amounts technologies; strengthening commercial the DOT Order 5610.1C, as amended, for various pollutants, below which no motor vehicle equipment and operating and the CEQ regulations, which are conformity review is required (49 CFR standards; and increasing safety cross-referenced in this document. 93.153(b)). The Ninth Circuit Court awareness. To accomplish these Reference to the DOT Order will found that FMCSA did not properly activities, the FMCSA works with provide a wider perspective on the analyze whether Presidential rescission Federal, State, and local enforcement issues, as well as provide details that of the moratorium against cross-border agencies, the motor carrier industry, may prove applicable to certain projects truck operations would exceed that labor organizations, safety interest and actions. threshold. The United States has sought groups, and others. The FMCSA Order will apply to all Supreme Court review of that The majority of the functions FMCSA our actions, including the decision to determination, as well as the Ninth inherited from the FHWA are safety- conduct research activities, promulgate Circuit’s conclusion that the CAA related functions that were transferred regulations, award grants, and conduct general conformity review requirements from the former Interstate Commerce major acquisitions. apply to FMCSA rules implementing a
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presidential foreign policy decision. The addition to other criteria pollutants, and 4.g. Our justification for use of these Supreme Court has agreed to review the analysis of toxics should be included. two CEs was based on the approval of determination. Public Citizen believes it is incorrect similar category of actions or activity by In updating Appendix 14 of the for the agency to assert that ozone ‘‘is another agency. Because we have no Order, we have restated the EPA not a concern at the Federal action additional experience, specifically regulations regarding applicable level.’’ It also asserts that FMCSA’s FONSIs, to prove these actions meet the exemptions to the general conformity analysis must include ozone, particulate definition of a CE, we are, therefore, review requirement. In the future, we matter, and all other relevant impacts. removing them from our final Order. We have revised Appendix 14 so that will analyze the facts of a proposed Other Issues action on a case-by-case basis and rely conformity analyses will be shown for on all applicable laws, guidance, and all National Ambient Air Quality FMCSA has made a number of rulings from the Courts and EPA in Standards criteria pollutants. The changes to section D of chapter 1 of the applying the EPA regulations. Our discussion should not be limited to Order, which explains the applicability revised guidance in the Order conforms carbon monoxide only. of the Order. In paragraph 1, we have added language from § 1508.18 of CEQ’s to EPA’s general conformity rule and we EPA Comments will consider it to be our continuing NEPA regulations. This language In reference to Order’s Planning and responsibility to conduct general supplements and clarifies language from Early Coordination scoping section conformity review where warranted. § 1508.18 that appeared in the proposed (Chapter 2 section C.1.), EPA stated that Third, Public Citizen states that the Order, and explains that the Order does the wording for affected parties comparison for a conformity analysis is not apply to actions that the agency has published in the draft Order ‘‘may be between the existing State no discretion to withhold or condition misconstrued as limiting invitations to Implementation Plan (SIP) (or in the if those actions are in accordance with participate in the scoping process to specific statutory criteria and the agency absence of an SIP, a Federal governmental bodies only.’’ EPA lacks control and responsibility over the Implementation Plan (FIP)) and the believes the wording ‘‘known affected effects of the actions. This language is amended SIP (or FIP) to incorporate the private parties amongst the invitees’’ is modeled after similar language in NEPA Federal action. more appropriate. regulations of other DOT We have revised Appendix 14 to We have adopted EPA’s suggestions administrations. (Changes have been document the procedures for concerning the list of affected parties made to sections B.1. (Step 2), and D.1. determining conformity, as outlined in who must be notified in writing and of Chapter 2, and to Appendix 17 to EPA guidance and regulations. invited to participate in the NEPA conform to this addition to the Order.) Fourth, Public Citizen stated its belief process for all FMCSA actions not Finally, FMCSA has deleted the text that the last factor in the list of factors categorically excluded. We have citing rules of practice for certain of the draft Order is inconsistent with changed the final Order to include the agency proceedings as examples of the agency’s conformity responsibilities. phrase ‘‘known affected private parties enforcement actions that are not covered The last factor was ‘‘the estimate(s) in amongst the invitees.’’ by the Order, because these rules of tons per year for the year when the In reference to the Order’s practice are covered more appropriately maximum emissions are expected to Environmental Documentation section, by a Categorical Exclusion. occur.’’ EPA believes the wording is awkward. FMCSA has changed paragraph 2 of We have modified Appendix 14 so EPA suggested alternative wording for section D of Chapter 1 to reflect the that when a conformity determination is identifying extraordinary circumstances. original intent of the agency in necessary, emissions estimates will be FMCSA has changed the Order to proposing this paragraph—to make it developed in accordance with 40 CFR include EPA’s suggestion to describe clear that the scope of the Order’s 93.159(d)(2). extraordinary circumstances that coverage includes applications to Fifth, Public Citizen stated that it preclude the use of a CE. We have also FMCSA for grants and other similar believes the first full paragraph on page changed item 3.a.(2) to read ‘‘Has a actions, such as applications submitted 102 of the draft Order is inconsistent reasonable likelihood of promoting to the agency by States pursuant to the with the agency’s conformity obligations controversy regarding the potential for Motor Carrier Safety Assistance insofar as it limits the analysis of significant environmental effects (direct, Program. The broader language in the mitigation measures or offsets necessary indirect, and cumulative).’’ proposed Order, which was based on to achieve conformity to ‘‘’the extent In reference to the Order’s Appendix language from other agencies’ NEPA known.’’ Public Citizen argues ‘‘the 2, entitled ‘‘Categorical Exclusions,’’ Orders, went beyond the intended scope agency is required to identify mitigation EPA requested clarification of proposed of the paragraph and included language measures or offsets and to ensure that category section 4.f., which reads that could have been construed as they are incorporated into legally ‘‘Establishment of Global Positioning covering FMCSA actions to which the enforceable requirements in the relevant System (GPS), intelligent transportation Order does not apply. SIPS (or FIPs). Only after this has been systems (ITS), or essentially similar Any other edits FMCSA made to the accomplished may the agency action systems that use overlay of existing Order were minor in nature and merely proceed consistently with the procedures.’’ Second, EPA states that done to address changes in program conformity requirements of the Clean section 4.g., which reads ‘‘Procedural roles and responsibilities, correct Air Act.’’ actions requested by users on a test typographical errors, more fully define We have revised the procedures for basis to determine the effectiveness of existing terms and concepts, and clarify developing conformity determinations, new technology and measurement of the extent of the agency’s jurisdictional and offsets or mitigation, to also reflect possible impacts on the environment’’ is parameters in certain subject matter current EPA guidance and regulations. unclear and would benefit from further areas. Overall, we believe that our final Finally, Public Citizen stated its belief clarification. Order will ensure that FMCSA actively that throughout Appendix 14, the In response to EPA’s request for incorporates environmental discussion was limited erroneously to clarification here, FMCSA has decided considerations into its decisionmaking carbon monoxide (CO). It argues that in to remove the two CEs in sections 4.f. process.
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Implementation of FMCSA’s NEPA environmental effects of Federal Motor 7. Agency Responsibility for Documents Order Carrier Safety Administration actions. Prepared by Applicants or Proponents. 8. Documents Prepared by Contractors. It is necessary for FMCSA to issue Program managers must submit draft program guidance for implementing this 9. List of Preparers. implementing procedures for carrying 10. Reducing paperwork in preparation of out its responsibilities under NEPA, 42 Order to the Administrator for review and concurrence to ensure consistency environmental documents. U.S.C. 4321, et seq., as amended. You 11. Reducing delays in preparation of may access an electronic version of the with this Order. 3. Changes. Recommendations and environmental documents. Order including all appendices at 12. Supplementation. amendments for improvement of these http://dms.dot.gov by referencing the 13. Signing FMCSA NEPA Documents. Federal Motor Carrier Safety docket number at the heading of this 14. Signature. Administration NEPA implementing document. To request a copy of the E. Special Areas of Consideration. procedures must be submitted to the Order by mail, please contact one of the Chapter 3. Public Involvement, Legislative, Regulatory Development Division, MC- persons listed under FOR FURTHER and Interagency Coordination PRR, Office of Policy Plans and INFORMATION CONTACT. A. Citizen Involvement and Public Notice Regulation. Process. Authority: National Environmental Policy Table of Contents 1. Public Involvement (40 CFR 1506.6). Act of 1969, as amended [42 U.S.C. 4321 et. 2. Notice of Intent. seq.]; the Council on Environmental Quality Chapter 1. Introduction 3. Intergovernmental Review. A. Purpose. Regulations at 40 CFR parts 1500–1508; DOT B. Proposals for Legislation. Order 5610.1C, as amended on July 13, 1982 B. FMCSA Policies. 1. Preparation. and July 30, 1985; and 49 CFR 1.73. C. Scope. D. Applicability. 2. Processing. Issued on: February 24, 2004. E. Legal Basis. C. Mitigating Measures. Warren E. Hoemann, 1. National Environmental Policy Act of D. Inter-Agency Coordination. Deputy Administrator. 1969 (NEPA). 1. Lead Agencies and Cooperating 2. Council on Environmental Quality (CEQ) Agencies. FMCSA Order 5610.1 Regulations (40 CFR parts 1500–1508). 2. Distribution of Environmental U.S. Department of Transportation 3. Department of Transportation (DOT) Documents. Order 5610.1C, Procedures for 3. Adopting Environmental Documents Federal Motor Carrier Safety Considering Environmental Impacts. Prepared by Other Agencies. Administration 4. Other relevant environmental statutes, 4. Review of Environmental Statements laws, and Executive Orders. Prepared by Other Agencies. Subject: National Environmental F. Common Environmental Acronyms. Policy Act Implementing Procedures 5. Pre-decision Referrals to the Council on G. Use and Organization of This Order. Environmental Quality. and Policy For Considering 1. Use. Appendices Environmental Impacts. 2. Organization. Appendix 1—FMCSA Environmental Classification Code: 5610.1. Chapter 2. FMCSA Responsible Parties, Checklist Date: March 1, 2004. Duties, and Instructions for Appendix 2—FMCSA Categorical Exclusions Implementing NEPA Office of Primary Interest: MC–PR. (CE) A. Responsible Parties for NEPA 1. Purpose. This order establishes Appendix 3—FMCSA Regulations Typically policy and prescribes responsibilities Implementation 1. Administrator, Federal Motor Carrier Subject to an EA and procedures for the Federal Motor Safety Administration. Appendix 4—FMCSA Categorical Exclusion Carrier Safety Administration’s 2. NEPA Liaison—Associate Administrator Determination (CED) (FMCSA’s) implementation of the for Policy and Program Delivery. Appendix 5—FMCSA Environmental following: 3. Heads of Headquarters Offices and Assessment Cover Sheet (a) National Environmental Policy Act Divisions. Appendix 6—FMCSA Environmental (NEPA), 42 U. S. C. 4321, et seq., as 4. The Office of Administration. Assessment (EA) amended. 5. The Office of the Chief Counsel. Appendix 7—FMCSA Finding of No (b) 40 CFR parts 1500—1508, Council 6. Office of Research, Technology, and Significant Impact (FONSI) on Environmental Quality Regulations Information Management. Appendix 8—FMCSA Notice of Intent to 7. FMCSA Program Staff. Prepare An Environmental Impact for Implementing the Procedural 8. Field Operations Service Center Statement Provisions of the National Administrators. Appendix 9—FMCSA Environmental Impact Environmental Policy Act, as amended. 9. Heads of Units, Divisions, and Offices. Statement Model Cover Sheet (c) DOT Order 5610.1C, Procedures 10. The Field Environmental Quality Appendix 10—FMCSA Environmental for Considering Environmental Impacts, Advisor (FEQA). Impact Statement (EIS) as amended on July 13, 1982 and July 11. Field Operations Service Center Appendix 11—FMCSA Notice of Availability 30, 1985. Program Staff. of Environmental Impact Statement (d) Executive Order 11514, B. FMCSA’s Decisionmaking Process for Appendix 12—FMCSA Record of Decision NEPA Implementation. Appendix 13—Form and Content of 4(f) ‘‘Protection and Enhancement of 1. Normal Circumstances. Statements Environmental Quality,’’ March 5, 1970, 2. Timing of Agency Action. Appendix 14—Air Quality Analysis as amended by Executive Order 11991, C. Planning and Early Coordination. May 24, 1977. 1. Scoping. Appendix 15—Distribution of Environmental 2. Action. The Offices of 2. Environmental Planning Process. Impact Statements Administration; Research, Technology, D. Environmental Documentation. Appendix 16—List of Relevant Environmental Statutes and Executive and Information Management; Policy 1. Actions Affected. 2. Categorical Exclusions (CEs). Orders and Program Development; Enforcement Appendix 17—FMCSA’s National and Program Delivery; Chief Counsel; 3. Limitations on Using Categorical Exclusions. Environmental Policy Act (NEPA) Civil Rights; Field Operations Service 4. Environmental Assessment (EA). Review Process Centers; and Field Division Offices must 5. Finding of No Significant Impact Appendix 18—Special Areas of ensure that the provisions of this Order (FONSI). Consideration When Implementing are followed in the consideration of 6. Environmental Impact Statement (EIS). NEPA
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Chapter 1. Introduction resources, soils, forests, rangelands, c. Where appropriate, the use of water and air quality, fish and wildlife, programmatic analyses and tiering to A. Purpose and other natural resources under their ensure consideration at the appropriate This Order provides information stewardship, and, as appropriate, in the decision levels, elimination of repetitive pertaining to environmental planning context of regional ecosystems. discussion, consideration of cumulative and establishes policy and procedures 3. Environmental analyses will reflect effects, and focus on issues that are to ensure timely environmental review appropriate consideration of non- important and appropriate for for appropriate Federal Motor Carrier statutory environmental issues discussion at each level. Safety Administration (FMCSA) actions. identified by Federal and DOT orders, d. Use of the scoping and public Furthermore, this Order addresses the directives, and policy guidance. involvement processes to limit the policies and responsibilities for Potential issues will be discussed and analysis of issues to those which are of FMCSA’s implementation of the critically evaluated during scoping and interest to the public and/or important National Environmental Policy Act of other public involvement processes. to the decision. 1969 (NEPA), as well as other pertinent 4. The FMCSA will ensure NEPA e. Elimination of needless paperwork environmental regulations, Executive compliance and will provide for levels by focusing documents on the major Orders, statutes, and laws. and kinds of public involvement environmental issues affecting those B. FMCSA Policies appropriate to the type of action and its decisions. likely effects, taking into account the f. Integration of the NEPA process into 1. NEPA establishes broad Federal recommendations as set forth in the all aspects of FMCSA planning at an policies and goals for the protection of CEQ regulations regarding public early stage, so as to prevent disruption the environment and provides a flexible involvement. in the decisionmaking process; ensuring framework for balancing the need for a. The FMCSA will provide public that NEPA personnel function as team environmental quality with other notice of NEPA-related public meetings members, supporting the FMCSA essential societal functions, including and hearings in the following manner: planning process and sound FMCSA national defense. The FMCSA is (1) By publishing notice in the decisionmaking. All NEPA analyses will expected to manage those aspects of the Federal Register, in local newspapers, be prepared by an interdisciplinary environment affected by FMCSA newsletters, or by direct mailings of the team. activities, comprehensively integrating availability of environmental documents g. Partnering or coordinating with environmental policy objectives into so as to inform those persons and Federal, State, tribal and local planning and decisionmaking. agencies who may be interested or governmental agencies, organizations, Meaningful integration of affected; and individuals whose specialized environmental considerations is (2) By posting notice on- and off-site expertise will improve the NEPA accomplished by efficiently and in the area where the action is to be process. effectively informing FMCSA planners located; and h. Oversight of the NEPA program to and decisionmakers. The FMCSA will (3) By requesting comments on ensure continuous process use the flexibility of NEPA to ensure environmental documents to secure improvement. implementation in the most cost- views either on the adequacy of the i. Clear and concise communication of efficient and effective manner. The FMCSA action or the merits of the data, documentation, and information depth of analyses and length of alternatives discussed or both. (See 40 relevant to NEPA analysis and documents will be proportionate to the CFR 1506.6). documentation. nature and scope of the action, the b. When any other related authority 6. The worldwide, transboundary, and complexity and level of anticipated provides specific procedures for public long-range character of environmental effects on important environmental involvement, the responsible FMCSA problems will be recognized, and, where resources, and the capacity of FMCSA official shall ensure that such consistent with national security decisions to influence those effects in a procedures are addressed in the NEPA requirements and U.S. foreign policy, productive, meaningful way from the review process. appropriate support will be given to standpoint of environmental quality. c. The FMCSA will involve the public initiatives, resolutions, and programs 2. The FMCSA will actively in its decisionmaking and will have as designed to maximize international incorporate environmental its purpose the full disclosure of cooperation in protecting the quality of considerations into informed FMCSA actions and alternatives to the the world human and natural decisionmaking, in a manner consistent public and giving the public a full environment. Consideration of the with NEPA. Communication, opportunity to influence FMCSA environment for FMCSA decisions cooperation, and, as appropriate, decisions. involving activities outside the United collaboration between government and 5. The FMCSA will continually take States will be accomplished pursuant to extra-government entities is an integral steps to ensure that the NEPA program Executive Order 12114 (Environmental part of the NEPA process. FMCSA is effective and efficient. Effectiveness Effects Abroad of Major Federal Actions, personnel engaged in the NEPA process of the program will be determined by 4 January 1979), the DOT Order, and the as participants, preparers, reviewers, the degree to which environmental requirements of this Order. An and approvers will balance considerations are included on a par environmental planning and evaluation environmental concerns with mission with the agency mission in project process will be incorporated into requirements, technical requirements, planning and decisionmaking. FMCSA actions that may substantially economic feasibility, and long-term Efficiency will be promoted through the affect the global commons, sustainability of FMCSA operations. following: environments of other nations, or any While carrying out its missions, the a. Awareness and involvement of the protected natural or ecological resources FMCSA will also encourage the wise decisionmaker and participants in the of global importance. stewardship of natural and cultural NEPA process. resources for future generations. b. NEPA technical and awareness C. Scope Decisionmakers will be cognizant of the training, as appropriate, at all decision 1. The Federal Motor Carrier Safety impacts of their decisions on cultural levels of the FMCSA. Administration’s primary mission is to
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prevent commercial motor vehicle- manufacture or operation of commercial decisions that are based on an related fatalities and injuries. motor vehicles or commercial motor understanding of environmental Administration activities contribute to vehicle equipment. consequences and take actions that ensuring safety in motor carrier protect, restore, and enhance the D. Applicability operations through rigorous environment. enforcement of safety regulations, 1. This FMCSA Order applies to all targeting high-risk carriers and FMCSA actions, including actions with 2. Council on Environmental Quality commercial motor vehicle (CMV) effects that may be major and which are (CEQ) Regulations (40 CFR parts 1500– drivers; improving safety information potentially subject to the agency’s 1508) systems and commercial motor vehicle control and responsibility. Actions The CEQ regulations establish policy technologies; strengthening commercial include: projects and programs entirely requirements that are binding on all motor vehicle equipment and operating or partly financed, assisted, conducted, Federal agencies for implementing standards; and increasing safety regulated, or approved by FMCSA; new NEPA and related statutory awareness. To accomplish these or revised agency rules, regulations, requirements. activities, the FMCSA works with plans, policies, or procedures; and Federal, State, and local enforcement agency legislative proposals. Where 3. Department of Transportation (DOT) agencies; tribal governments; the motor FMCSA has no discretion to withhold or Order 5610.1C, Procedures for carrier industry; labor, safety, and any condition an action if the action is in Considering Environmental Impacts other interested parties. accordance with specific statutory DOT Order 5610.1C sets the policy 2. Any environmental impacts that criteria and FMCSA lacks control and and procedures that supplement the result from FMCSA’s oversight of motor responsibility over the effects of an CEQ regulations and applies them to carrier operations would most likely be action, that action is not subject to this DOT programs. The Federal Motor in areas affecting air quality, noise, and Order. See 40 CFR 1500.6; 40 CFR Carrier Safety Administration must hazardous materials transportation. 1508.18. Actions do not include comply with the CEQ regulations and Actions that may result in bringing judicial or administrative civil the provisions of the DOT Order. environmental impacts include, for or criminal enforcement actions. See 40 example, the following: CFR 1508.18. 4. Other Relevant Environmental a. Any action that may directly, 2. These environmental procedures Statutes, Laws, and Executive Orders indirectly, or cumulatively result in a also apply to all FMCSA actions in Appendix 16 lists other relevant significant increase in noise levels, response to Motor Carrier Safety environmental statutes, laws, and either within a commercial motor Assistance Program (MCSAP) Executive Orders that must be reviewed vehicle’s closed environment or upon applications or other similar requests to for compliance. nearby areas. FMCSA for a grant, award, or other b. Any action that may directly, similar action. For major categories of F. Common Environmental Acronyms indirectly, or cumulatively result in a FMCSA actions involving a large ACHP Advisory Council on Historic significant increase in the energy or fuel number of applicants, the appropriate Preservation necessary to operate a commercial Program Office must prepare and make AC&I Acquisition, Construction, and motor vehicle, including but not limited available generic guidance describing Improvement to the following: (1) Actions which may the recommended level and scope of CAA Clean Air Act directly or indirectly result in a environmental information that CBRA Coastal Barriers Resource Act significant increase in the weight of a CD Consistency Determination applicants should provide. The CE Categorical Exclusion commercial motor vehicle; and (2) appropriate Program Office must also actions which may directly or indirectly CED Categorical Exclusion Determination begin the NEPA review and planning CEQ Council on Environmental Quality result in a significant adverse effect processes as early as possible after CERCLA Comprehensive Environmental upon the aerodynamic drag of a receiving an application for items Response, Compensation, and Liability Act commercial motor vehicle. described above, advising any potential CFR Code of Federal Regulations c. Any action that may directly, applicants of issues, such as the CWA Clean Water Act indirectly, or cumulatively result in a appropriate level and scope of any CZM Coastal Zone Management Act significant increase in the amount of studies or environmental information DEIS Draft Environmental Impact Statement DOT Department of Transportation harmful emissions resulting from the that the agency may require to be operation of a commercial motor EA Environmental Assessment submitted as part of the application, and EIS Environmental Impact Statement vehicle. the need to consult with appropriate d. Any action that may directly, E.O. Executive Order Federal, tribal, State, regional, and local indirectly, or cumulatively result in a ESA Endangered Species Act governments. See 40 CFR 1501.2(d) and FEIS Final Environmental Impact Statement significant increase in either the use of 1507.3. FEQA Field Environmental Quality Advisor or the exposure to toxic or hazardous FHWA Federal Highway Administration materials in the operation or disposal of E. Legal Basis FMCSA Federal Motor Carrier Safety commercial motor vehicles or 1. National Environmental Policy Act of Administration commercial motor vehicle equipment. FMCSR Federal Motor Carrier Safety 1969 (NEPA) e. Any action that may directly, Regulations indirectly, or cumulatively result in a NEPA sets forth a national policy that FONSI Finding of No Significant Impact significant increase in solid waste, as in encourages and promotes productive FWPCA Federal Water Pollution Control the disposal of commercial motor harmony between humans and the Act (also commonly referred to as the environment. NEPA procedures require Clean Water Act) vehicles or commercial motor vehicle FWS Fish and Wildlife Service equipment. that environmental information is FR Federal Register f. Any action that may directly, available to public officials and citizens HMR Hazardous Material Regulations indirectly, or cumulatively result in a before decisions are made and before LESA Land Evaluation and Site Assessment significant depletion of scarce natural actions are taken. The NEPA process is MCSAP Motor Carrier Safety Assistance resources associated with the intended to help public officials make Program
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NAAQS National Ambient Air Quality Chapter 2. FMCSA Responsible Parties, authority to Field Operations Service Standards Duties, and Instructions for Center Administrators for FMCSA NEPA National Environmental Policy Act Implementing NEPA DEISs, FEISs, and SEISs for actions that NHPA National Historic Preservation Act [Supplementary Instructions to DOT Order originate within, and having effects NMFS National Marine Fisheries Services 5610.1C, 9/18/79, as amended 7/13/82 and 7/ confined to, their respective area; NPDES National Pollutant Discharge 30/85] (2) Authority for the appropriate Elimination System FMCSA Administrator-level Program NPS Non-Point Source A. Responsible Parties for NEPA Office to approve highly controversial NSPS New Source Performance Standard Implementation EISs (see Section D.6.b.(4) of Chapter 2); NRCS Natural Resources Conservation This FMCSA Order assigns the and Service following NEPA implementation NRHP National Register of Historic Places responsibilities: (3) For all other FEISs (non- PCB Polychlorinated Biphenyls controversial), only a notice of approval Pub. L. Public Law 1. Administrator, Federal Motor Carrier will be made to DOT (P–1) by the PPR Project Proposal Report Safety Administration responsible Administrator-level RCRA Resource Conservation and Recovery a. Responsibilities. Acts on matters Program office via the Administrator. Act relating to NEPA implementation and is (c) Decisions on How to Proceed with ROD Record of Decision responsible for providing NEPA FMCSA Actions. The Administrator, or SDWA Safe Drinking Water Act capabilities (40 CFR 1507.2) as follows: the Administrator’s designee, has SEIS Supplemental Environmental Impact (1) Establishes and maintains the authority to decide whether or, at a Statement capability (personnel and other minimum, how to proceed with every SHPO State Historic Preservation Officer resources) to ensure adherence to the action the FMCSA undertakes. Thus, the SIP State Implementation Plan policies and procedures specified by Administrator (unless his/her authority THPO Tribal Historic Preservation Officer this Order. This capability can be is delegated) is the decisionmaker and TSCA Toxic Substance Control Act provided through contract support, the responsible FMCSA official. TSDF Treatment, Storage, and Disposal matrix (other modal) support, and (Authority to sign EISs as the Facility permanent staff, with sufficient staff to responsible official will be governed by USACE U. S. Army Corps of Engineers ensure: Section D.14.a. of Chapter 2). The (Former Acronym—COE) (A) FMCSA cognizance of the Administrator makes the following U.S.C. United States Code analyses and decisions being made; and delegations: (B) Familiarity with the requirements G. Use and Organization of this Order (1) The NEPA Liaison will act as the of NEPA and the provisions of this senior decisionmaker and senior 1. Use Order by every person preparing, environmental advisor for NEPA implementing, supervising, and compliance and NEPA implementation This Order will be used in managing projects involving NEPA of all FMCSA actions. The conjunction with NEPA, the CEQ analysis. regulations, and as a supplement to (2) Ensures environmental Administrator also delegates the DOT Order 5610.1C, as amended, for responsibility and awareness among responsibility to the NEPA Liaison to consideration of environmental impacts personnel to most effectively implement ensure accountability for of FMCSA actions. It will also be used, the goals and policies of NEPA. All implementation of the policies set forth in this Order. For Headquarters- to the fullest extent possible, to conduct personnel who are engaged in any originated actions, the Administrator analyses and consultations required by activity or combination of activities that delegates the responsibility to the NEPA environmental laws other than NEPA, significantly affect the quality of the human environment will be aware of Liaison to determine whether to prepare statutes, Executive Orders, and an EA, EIS, a Finding of No Significant regulations in conjunction with NEPA their NEPA responsibility. Only through alertness, foresight, and notification Impact (FONSI), or a decision implementation to reduce redundancy, withdrawing the proposal on the basis paperwork, time, and cost. through Project and Program managers to MC–P, and training and education of its environmental impacts (40 CFR 2. Organization will NEPA goals be realized. 1508.9) in consultation with the Office b. Environmental Analyses and Director for the program sponsoring the Chapter 2 of this FMCSA Order Documentation. Approves all action or the person with the delegated implementing NEPA procedures and environmental analyses and authority to issue the regulation. policies for considering environmental documentation for Administration- (2) The Field or Division impacts supplements specific initiated actions, unless delegated to Administrators or their delegated paragraphs in DOT Order 5610.1C, as another FMCSA responsible official or Federal, State, or Division Program amended. It is important that persons another Federal agency. The Managers, in consultation with their using this Order refer to those sections Administrator may enter into contracts FEQAs (see also Section D.13. of of the DOT Order 5610.1C, as amended, with a State or private entity to conduct Chapter 2), will hold authority to cross-referenced in this FMCSA Order. initial environmental analyses and determine whether to prepare an EA, Reference to the DOT Order will documentation, but the Administrator EIS, a Finding of No Significant Impact provide a wider perspective on the must review and approve all such (FONSI), or a decision withdrawing the issues as well as provide details that environmental analyses and proposal on the basis of its may prove applicable to certain projects documentation and remains responsible environmental impacts (40 CFR 1508.9) and actions. Additional chapters and/or for its scope and contents (see Section for actions that originate within, and changes providing guidance in meeting D.7. of Chapter 2): have effects confined to, their respective new or changed requirements will be (1) With the exception of highly area. For Headquarters-originated added to this Order as necessary. controversial EISs (as defined by actions, the NEPA Liaison makes this Section 11.d of DOT Order 5610.1C), the determination in consultation with the Administrator delegates approval responsible FMCSA Program Manager.
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2. NEPA Liaison—Associate c. Ensure accountability for c. Responsible for the review and Administrator for Policy and Program implementation of the policies set forth approval of FMCSA and non-FMCSA Delivery in this Order. environmental documents submitted for a. Is the principal FMCSA d. In consultation with the NEPA Associate Administrator level review. environmental advisor and Liaison, ensure that FMCSA staff See Section D.6.b.(3) of Chapter 2 for decisionmaker for the completion of the responsible for the supporting function information on legal review of environmental analysis under NEPA, of the responsible agency official under Environmental Impact Statements CEQ regulations, DOT and FMCSA CEQ and related authorities receive (EISs). Orders, and other environmental laws, appropriate training in how to carry out d. Responsible for the review and statutes, and Executive Orders listed in FMCSA’s responsibilities. approval of guidance and training Appendix 16. The Regulatory e. Ensure completion of all concerning this Order, in consultation Development Division (MC-PRR), in the environmental analysis and with the NEPA liaison and the Office of Policy, Plans and Regulation is documentation for Headquarters Office- Professional Development and Training the Program Office that will assist the originated actions in consultation with division. NEPA Liaison in carrying out these environmental staff and the NEPA 6. Office of Research, Technology, and duties. Liaison. This responsibility includes Information Management ensuring that the appropriate b. Is responsible for overseeing NEPA a. Responsible for preparation and compliance and NEPA implementation environmental planning, analyses, and documentation are completed for the completion of all environmental of all FMCSA actions. The NEPA analysis and documentation for all Liaison ensures accountability for respective programs and actions. f. Notify the Policy, Plans, and headquarters office- and Administrator- implementation of the policies set forth originated actions. Ensures that all in this Order and that all necessary Regulations Office Director (MC–PR) through appropriate chains of command required analysis is completed, and that NEPA analyses (CE, EA, and EIS) are it meets CEQ and DOT standards for completed before initiation of an of all actions involved in the NEPA review. The notification must include quality and completeness. The FMCSA action. Regulatory Evaluation Team (MC–RIA) c. Reviews all FMCSA proposed electronically filed monthly updates, electronically filed checklists, etc. within the Analysis Division is the projects and advises the responsible program office that will carry out these FMCSA official (e.g., the FEQAs or 4. The Office of Administration duties. Project Manager) on the appropriate b. Ensures the division is adequately At the current time, the General level of environmental analysis and staffed and has technical capabilities, Services Administration (GSA) is documentation needed for the proposal. through government employees, responsible for all building acquisition For CEs, EAs and non-controversial contractors, or some combination of the and construction projects to meet the EISs, the NEPA Liaison may direct the two, to complete all necessary analysis. needs of the FMCSA. The GSA is FEQAs or program staff to determine the c. Coordinates actions and evaluations currently responsible for, and is appropriate level of environmental with program offices and NEPA Liaison, required to comply with, all statutory analysis and documentation needed for and ensure that relevant offices have an and regulatory requirements of NEPA the proposal. opportunity to review and comment on for such projects. In the event the d. Provides expert advice on NEPA- environmental analyses. related matters to FMCSA Heads of FMCSA is authorized by Congress or the Offices, Divisions, and Field Operations GSA delegates authority for the 7. FMCSA Program Staff Service Center Units. purchase, lease, and/or acquisition of a. For purposes of this FMCSA Order, e. Acts as the intra-agency and real property in the future, the FMCSA’s this includes all FMCSA employees interagency liaison and coordinates Office of Administration will assume responsible for the management and NEPA-related matters on a national primary responsibility for all necessary implementation of program actions, basis, and is the principal contact for environmental analyses and such as, promulgating regulations, CEQ on all other FMCSA actions. documentation needed for building project planning and development, f. Provides and periodically updates acquisition and construction projects, in project management, and research. this FMCSA Order, program guidance consultation with the FMCSA’s Office of b. Program staff are responsible for: and policies after consultation with the Chief Counsel. The FMCSA will (1) Developing and maintaining a Chief Counsel, Heads of Offices, coordinate such environmental thorough understanding of NEPA Divisions, and Field Operations Service analyses, as appropriate, with the requirements and the requirement of Center Units. Updates must comply interested general public, as well as related authorities, and of the policies with 40 CFR 1507.3 requirements for other Federal, State, local, and tribal articulated in this FMCSA Order, DOT public notice and CEQ review. government agencies. Order 5610.1C, as amended, as these g. Serves as FMCSA representative in 5. The Office of the Chief Counsel pertain to their program areas with the coordination with outside groups at the assistance of the NEPA Liaison and the national level regarding NEPA-related a. Responsible for legal interpretation FEQA. matters. of NEPA and related authorities, and (2) Ensuring that NEPA and related represents FMCSA in litigation under authorities are complied with, as early 3. Heads of Headquarters Offices and such authorities. as possible in the planning of any action Divisions b. Must approve the implementation within their program areas. a. Coordinate with the NEPA Liaison of the procedures of FMCSA (3) Coordinating their programs, to ensure agency-wide consistency in Environmental Orders in consultation activities, and projects with FEQAs and areas of shared or related responsibility. with the NEPA Liaison, NEPA Field the NEPA liaison, as appropriate. b. Serve as the responsible agency Environmental Quality Advisors (4) Implementing all mitigation and officials under NEPA and CEQ (FEQAs), MC–PR, and MC–RI (Office of other commitments resulting from regulations for actions subject to their Information Management), for actions NEPA compliance for actions under approval. originated by the Administrator. their authority.
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(5) Initiating early consultations with construction actions) they initiate, or are 40 CFR 1507.3 requirements for public Field Operations Service Center Units, directed by higher authority to initiate, notice and CEQ review. the FEQAs, Heads of Offices and are completed. j. Develops and maintains an up-to- Divisions, the NEPA liaison, as b. Ensure that a FEQA, Environmental date checklist for use in determining appropriate if uncertain regarding the Project Manager, and Environmental whether an action requires an need for environmental analysis or Specialists are available within the environmental assessment or impact documentation for any project. The Field Operations Service Center statement. Field Operations Service Center territory. k. Notifies the Policy, Plans, and Administrator will promptly notify the c. Ensure that Field Operations Regulations Office Director (MC–PR) Policy, Plans, and Regulations Office Service Center Units and Field Division through appropriate chains of command Director (MC–PR) and the NEPA Liaison Offices are notified as soon as possible of all actions involved in the NEPA if uncertainty for NEPA review persists. of any needed environmental analyses review. The notification must include (6) Notifying the Policy, Plans, and or documentation required for field electronically filed monthly updates, Regulations Office Director (MC–PR) proposed actions and projects. electronically filed checklists, etc. through appropriate chains of command d. Notify the Policy, Plans, and 11. Field Operations Service Center of all actions involved in the NEPA Regulations Office Director (MC–PR) Program Staff review. The notification must include through appropriate chains of command a. Ensure completion of all electronically filed monthly updates, of all actions involved in the NEPA electronically filed checklists, etc. environmental analyses and review. The notification must include documentation for FMCSA actions 8. Field Operations Service Center electronically filed monthly updates, designated to them. Administrators electronically filed checklists, etc. b. Assist Headquarters Units, where a. Are accountable for execution of 10. The Field Environmental Quality appropriate, with their implementation FMCSA’s responsibilities under NEPA Advisor (FEQA) of the procedures set forth in this Order. c. Coordinate these environmental and related authorities with respect to a. The Field Environmental Quality actions under their jurisdiction. analyses and documents with Federal, Advisor is the center of expertise State, local, and tribal officials as b. Serve as the ‘‘responsible agency maintained at the Field Service Unit in official’’ under CEQ regulations (40 CFR necessary. which knowledge in NEPA-related d. Maintain close coordination with 1506.5(c)) with respect to the environmental matters and other related appropriate Field Division Office environmental effects of actions under authorities, such as the National elements during the execution of these their jurisdiction. Historic Preservation Act, the Clean Air c. Maintain FEQA within their staffs, tasks. Questions concerning Act, and the Endangered Species Act, is environmental matters should be augmented as necessary through vital. interagency agreements and contracts, to directed to appropriate Field Operations b. The FEQA will be a collateral duty ensure field interdisciplinary Service Center Unit staff and the FEQA. among others assigned to the employee. e. Empower the FEQA to advise and competence in environmental matters. d. In consultation with the FMCSA c. The FEQA will be located at the assist in planning and decisionmaking NEPA Liaison, ensure that all field staff Field Service Unit where it can on actions that could affect the human with responsibility for planning, influence decisionmaking early in environment, in a way and at a time in approving, and implementing FMCSA’s planning or preparation for the planning and decisionmaking Commercial Vehicle Safety Plan grants, any project or action subject to review process that maximizes the effectiveness etc., receive training in how to carry out under NEPA and related authorities. of the FEQA’s advice and assistance. f. Ensure that all Field program staff FMCSA’s responsibilities under NEPA d. The FEQA is responsible for involved in planning and and related authorities. participating in FMCSA planning and e. Comply with all environmental decisionmaking, for advising the decisionmaking about actions that could laws. What may appear to be a good Administrator, the Office Heads, the affect the human environment are made idea initially may not be Field Administrators, and other aware of FMCSA’s responsibilities environmentally acceptable. It is, decisionmakers, and for providing under NEPA and related authorities, are therefore, important that alternatives to training and technical assistance to all acquainted with this FMCSA Order, a proposed action be available. pertinent FMCSA employees and DOT Order 5610.1C, as amended, and Coordination of FMCSA environmental contractors. other NEPA- or CEQ-related guidance, analyses and documents with Federal, e. Maintains interdisciplinary are held accountable for the quality of State, local, and tribal officials may be expertise in environmental matters, their actions and decisions, and are necessary. Questions concerning through the employment of qualified required to coordinate effectively with environmental matters should be staff and/or by interagency agreement or the FEQA. g. Notify the Policy, Plans, and directed to the FEQA and appropriate under contract. Regulations Office Director (MC–PR) Field Operations Service Center staff. f. Reviews all documentary products through appropriate chains of command f. Notify the Policy, Plans, and of FMCSA NEPA analyses, and assists of all actions involved in the NEPA Regulations Office Director (MC–PR) program staff in ensuring that such review. The notification must include through appropriate chains of command products, and the analyses they report, electronically filed monthly updates, of all actions involved in the NEPA are adequate and defensible. electronically filed checklists, etc. review. The notification must include g. Maintains records of FMCSA NEPA electronically filed monthly updates, compliance activities. B. FMCSA’s Decisionmaking Process for electronically filed checklists, etc. h. Routinely interacts with, and is NEPA Implementation. (see Flow Chart assisted by, the NEPA Liaison. in Appendix 17) 9. Heads of Units, Divisions, and Offices i. Maintains needed guidance a. Ensure that all environmental material, and recommends updates and/ 1. Normal Circumstances analyses and documentation for FMCSA or changes to this FMCSA Order, as Under normal circumstances, actions (except building acquisition and appropriate. Updates must comply with FMCSA’s compliance with the
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procedural requirements of NEPA is The extent to which all of the above Federal agencies to consult with CEQ to handled as follows: steps in FMCSA’s environmental discuss alternative arrangements. The Step 1: Program staff determine a decisionmaking process can be carried FMCSA NEPA Liaison will consult with purpose and need for a particular out varies with the type of action under CEQ to discuss alternative arrangements action, and develop a preliminary consideration (see Chapter 3). in such emergency situations. This is description of the action. 2. Timing of Agency Action only applicable to actions necessary to Step 2: In consultation with, or at the control the immediate effects of the direction of the FEQAs or NEPA a. FMCSA is adopting the availability emergency; other actions remain subject Liaison, program staff determine of, and the review process for, draft EISs to NEPA review (40 CFR 1506.11). The whether a NEPA analyses is required as set forth at 40 CFR 1506.10. No FMCSA NEPA Liaison will also notify and, if so, the appropriate level of NEPA decision on the FMCSA’s proposed Cooperating Agencies in this regard. analysis and documentation required. action shall be made or recorded (see 40 (1) Program staff should always alert Step 3: Program staff and the FEQA, CFR 1505.2/RODs in cases requiring an the FEQAs and the NEPA Liaison in consultation with the NEPA Liaison EIS) by the agency until the later of the immediately when an emergency exists. (or designee) and the Office of following dates: (2) FMCSA will limit such actions Information Management (MC-RI), (1) Ninety (90) days after publication necessary to control the environmental arrange for necessary environmental of the notice by EPA described in 40 impacts of the emergency. analysis and documentation to take CFR 1506.10(a) for a draft (3) In emergency situations where it is place, including public involvement for environmental impact statement (DEIS); necessary to take an action that does not preparation of EAs and EISs [40 CFR and have significant environmental impact (2) Thirty (30 ) days after publication 1501.4(b) and 1506.6]. Program staff without observing the provisions of CEQ of the notice by EPA described in 40 make sure that there is written regulations, and the process in this CFR 1506.10(a) for a final documentation of all environmental Order cannot be followed, the FMCSA environmental impact statement (FEIS). NEPA Liaison will consult with DOT’s analyses in the FMCSA docket or b. Exceptions. An agency engaged in record. When legal issues and/or public Office of the Assistant Secretary for rulemaking under the Administrative Transportation Policy (P–1) to controversy are involved in the action or Procedure Act or other statute for the NEPA analysis, program staff must determine if alternative arrangements purpose of protecting the public health are needed. notify the FEQAs and Field or safety, may waive the time period in Administrators, the NEPA Liaison, MC- subparagraph 2(a)(2) above and publish C. Planning and Early Coordination P, and Chief Counsel, to afford them an a decision on the final rule 1. Scoping opportunity to participate. simultaneously with publication of the Step 4: Program staff and the Office of notice of the availability of the FEIS. See The environmental checklist, located Information Management (MC-RI), in 40 CFR 1506.10(b)(2). in Appendix 1, is a tool to assist in consultation with, or with oversight by, c. Time Periods May Run scoping, i.e., identifying environmental the FEQAs and the NEPA Liaison Concurrently. If the FEIS is filed within requirements and potential ensure that the appropriate analysis and ninety (90) days after a DEIS is filed consequences to consider in project documentation are completed, and that with the EPA, then the minimum thirty planning efforts. Some consultation documents are circulated and filed in (30) day period and the minimum with Federal, State, tribal, or local accordance with the requirements of ninety (90) day period may run expert agencies may be necessary to law, the CEQ regulations, this FMCSA concurrently. However, subject to 40 complete the environmental analysis Order, DOT Order 5610.1C, as amended, CFR 1506.10(d), the FMCSA shall allow checklist. The responsible official (the any other NEPA-related guidance, not less than 45 days for comments on Office Director for the program statutes, Executive Orders, and related draft statements. sponsoring the action or the person with authorities. d. Request for Reasonable Extensions. the delegated authority to issue the Step 5: Program staff, assisted as Requests for reasonable extensions of regulation) must maintain a written needed by the FEQAs and the NEPA the review period for the draft EISs shall record of contacts made and responses Liaison, provide the results of the NEPA be granted whenever possible, and received. For all FMCSA actions to review process to the relevant FMCSA particularly when warranted by the which NEPA applies and that are not decisionmaker(s). magnitude and complexity of the categorically excluded (see Appendix Step 6: The decisionmaker(s) decides statement or the extent of citizen 2), all known interested (including those whether and how the action will interest. that might not be in accord with the proceed, and if it proceeds, what, if e. Reduction of Prescribed Periods. action on environmental grounds) or anything, will be done to mitigate Requests to reduce the prescribed affected parties (Federal, State, tribal, adverse impacts. periods for EIS processing based on local, and private) must be notified in Step 7: Program staff, as assisted by compelling reasons of national security writing and invited to participate in the the FEQAs and the NEPA Liaison, must be made via the Administrator to NEPA process. Any other known ensure that any required final public EPA. affected private parties amongst the notifications of the environmental f. Emergency Circumstances. In invitees having regulatory involvement decision are issued. emergency situations (such as life- in the outcome of, or otherwise having Step 8: If the project or action has threatening natural or human-caused expressed an interest in the action, will been approved by the decisionmaker, it disasters), where it is necessary to take also be notified in writing. All other proceeds, subject to whatever mitigation an action with significant interested parties may be informally (if any) and monitoring activities have environmental impact without contacted. For actions requiring been chosen. observing the provisions of CEQ preparation of an Environmental Impact Step 9: If mitigation is to be regulations, the process outlined above Statement (EIS), the scoping process performed, program staff, FEQAs, and (NEPA normal circumstance must be followed as described in 40 the NEPA liaison monitor the activity to procedures) cannot be followed. CEQ CFR 1501.7. Policy regarding public ensure that it is carried out. regulations (40 CFR 1506.11) permit notice and involvement is presented in
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Sections A. and D.3. of Chapter 3 of this EISs. All CEs are subject to activity, or effect in areas not already Order. The NEPA Liaison will identify ‘‘extraordinary circumstances.’’ (40 CFR significantly modified from their natural other environmental review and 1508.4) condition. consultation requirements so that b. FMCSA List of CEs. A list of current (11) Is reasonably likely to have an FMCSA and cooperating agencies may FMCSA CEs can be found in Appendix unresolved effect on environmentally prepare other required analyses and 2 of this Order. The CEs listed in sensitive resources unless the impact studies concurrently with preparation of Appendix 2 are subject to review and has been resolved through another the EA or EIS (40 CFR 1502.25). any suggested modifications should be environmental process (e.g., CZMA, provided to the Administrator. NHPA, CWA, etc). Environmentally 2. Environmental Planning Process Additional CEs should be suggested by sensitive resources include: Consideration of the environmental the responsible FMCSA official when it (A) Proposed federally listed, consequences of a given action (scoping) becomes clear that the category of threatened, or endangered species or should begin early in the project actions does not individually or their habitats. planning process. This is necessary not cumulatively result in significant (B) Properties listed or eligible for only for documentation purposes, but effects. For example, when through the listing on the National Register of also because environmental factors and preparation of EAs, FONSIs result after Historic Places. compliance with Federal law may alter numerous analyses of similar types of (C) A site that involves a unique the design, layout, or timing of a given actions and monitoring confirms the characteristic of the geographic area, action. The word ‘‘action’’ is a FONSI are appropriate, a new CE should such as prime or unique agricultural comprehensive term used throughout be proposed. land, a coastal zone, a historic or this Order that includes all undertakings cultural resource, park land, wetland, 3. Limitations on Using Categorical that may have environmental impacts. wild and scenic river, designated Exclusions See Section D of chapter 1 for examples. wilderness or wilderness study area, Environmental analysis and a. Extraordinary circumstances that 100-year floodplain, sole source aquifer documentation for proposed actions are preclude the use of a categorical (potential sources of drinking water), to be completed before initiation of the exclusion are when the proposed action: ecologically critical area, or property action. (1) Has greater size or scope than is requiring special consideration under 49 For very broad actions, (e.g., actions generally experienced for the category of U.S.C. 303(c). (49 U.S.C. 303(c) is that are regional in scope or involving action. commonly referred to as section 4(f) of regulations on hours-of-service of (2) Has a reasonable likelihood of the Department of Transportation (DOT) drivers and hazardous materials), the promoting controversy regarding the Act, which includes any land from a EIS tiering as discussed in the CEQ potential for significant environmental public park, recreation area, wildlife regulation (40 CFR 1502.20) may be effects (direct, indirect, and and waterfowl refuge, or any historic appropriate. The first tier EIS would cumulative). site). focus on broad issues, such as, general (3) Has highly uncertain effects on the (12) Is considered together with other location, mode choice, area-wide air environment that involve unique or past, present, and reasonably quality and land use implications of the unknown risks, or are scientifically foreseeable future actions, and is likely major alternatives. The second tier controversial. to create cumulatively significant would address site-specific details on (4) Is reasonably likely to establish a impacts. project impacts, costs, and mitigation precedent (or makes decisions in (13) Has a reasonably measures. principle) for future or subsequent disproportionate (high and adverse) actions that are reasonably likely to effect on a minority or low income D. Environmental Documentation have a future significant effect. population. (14) May cause a change in traffic 1. Actions Affected (5) Is reasonably likely to have significant effects on public health, patterns or an increase in traffic This FMCSA Order applies to all safety, or the environment. volumes (road and/or waterway) that FMCSA actions as described in section (6) Is reasonably likely to be could require rerouting of roads, D of chapter 1, including the decision to inconsistent with or cause a violation of waterways, or traffic. conduct research activities (research, any Federal, State, local or tribal law or b. The listed circumstances above and development, test, and evaluation); requirement imposed for the protection those in the DOT Order are addressed in promulgate regulations; award grants; of the environment. the Environmental Checklist (Appendix change operations; conduct major (7) Is reasonably likely to cause 1). If a CE is not appropriate, an EA or acquisitions; and decommission FMCSA reportable releases of hazardous or toxic an EIS must be prepared. facilities or equipment (such as noise substances as specified in 40 CFR part c. Complete an Environmental pollution, radioactive monitoring 302, Designation, Reportable Quantities, Checklist (Appendix 1) to substantiate equipment, and computers). and Notification. the use of each CE. The checklist must (8) Is reasonably likely to cause be submitted with the proposal for the 2. Categorical Exclusions (CEs) releases of petroleum, oils, and action. If a CE is not appropriate, the a. Introduction. As defined by the lubricants, application of pesticides and Environmental Checklist will be used Council on Environmental Quality herbicides. for developing an EA or EIS. A written (CEQ), a ‘‘categorical exclusion’’ or (9) Is reasonably likely to generate air Categorical Exclusion Determination ‘‘CE’’ means a category of actions which emissions that would exceed de (CED) (Appendix 4) must be prepared as do not individually or cumulatively minimis levels or otherwise require a a part of the Rulemaking Support have a significant effect on the human formal Clean Air Act conformity Paper 1 when a CE will be relied on to environment and for which, therefore, determination. promulgate a regulation that requires an neither an EA nor an EIS is required. (10) Has reasonable potential for environmental checklist. Checklists and The use of a CE is intended to reduce degradation of already existing poor CEDs supplementary to the paperwork and delay by eliminating the environmental conditions, or reasonably unnecessary preparation of EAs and likely to initiate a degrading influence, 1 Required by FMCSA Order 2100.1.
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requirements of this Order may be (5) A listing of agencies and persons the procedures adopted by the FMCSA developed by subordinate offices for consulted. pursuant to 40 CFR 1507.3, or specific types of actions. Those The EA, supported by the necessary (2) The nature of the proposed action documents must be approved by the appendices, must be concise for is one without precedent. See 40 CFR Administrator before they are adopted meaningful review and use by the 1501.4(e)(2). for use. decisionmaker. Studies, technical data c. Format. For FMCSA purposes a d. Even though a CE is appropriate, and other documents incorporated by FONSI should be a separate, one page that fact does not exempt the action reference should be readily available to document to which an EA is attached from compliance with any other Federal the public. and which notes any other law or any review or consultation c. Projects for which environmental environmental document related to it. requirements contained in any assessments are normally completed The format should be as outlined in applicable agreement. For example, include new or revised regulations, Appendix 7. compliance with the Endangered directives or policy guidance d. Coordination. To ensure copies of Species Act, the Fish and Wildlife concerning activities that are not the FONSI and the EA are available to Coordination Act, the National Historic categorically excluded and uncertainty the public upon request, the originator Preservation Act, the Clean Water Act, about whether they may have significant must forward one copy each to the the Clean Air Act (conformity environmental effects. Administrator and the responsible requirements), etc., is always Associate Administrator program office, mandatory, even for actions that do not 5. Finding of No Significant Impact and retain one copy each in the office require an EA or EIS. (FONSI) of the preparer and the appropriate program office. For actions involving a 4. Environmental Assessment (EA) A FONSI is a statement that a proposed action has been notice to be published in the Federal An EA is a brief report that provides environmentally assessed (EA Register or where a docket has been sufficient evidence and analysis to completed) and determined not to established in the DOT Docket determine the significance of the ‘‘significantly affect the quality of the Management System (DMS), the potential environmental effects of the human environment.’’ The FONSI must originator must forward one single- proposed action and its alternatives. briefly present the reasons why the sided copy suitable for black and white The EA documents, in summary, set action will not have a significant impact scanning to the staff responsible for the forth the agency’s consideration of on the quality of the human Federal Register notice or FMCSA environmental effects in the planning environment. docket. The staff person responsible for stages of the action. The EA is the a. The FMCSA is only required to the FMCSA docket will forward the document used to determine whether to circulate an EA if there is a special FONSI and EA to the appropriate docket prepare an EIS, a Finding of No reason to do so. The CEQ regulations for public viewing on the World Wide Significant Impact (FONSI), or a require an agency to make an EA Web (www). decision withdrawing the proposal on available for 30 days [see 40 CFR 6. Environmental Impact Statement the basis of its environmental impacts 1501.4(e)(2)] if there is a precedent- (EIS) a. An EIS is prepared for actions (40 CFR 1508.9). setting or unique action. Thus, the EA significantly affecting the quality of the a. An Environmental Assessment (EA) will be made available to the public for human environment. It describes in means a concise public document that review and comment for thirty (30) days detail the nature and extent of the serves to: and notice will be provided in environmental impacts of the proposed (1) Briefly provide sufficient evidence accordance with 40 CFR 1501.4(e)(2) action and each alternative. The EIS and analysis for determining whether to and 1506.6. Normally, the FONSI may should discuss appropriate mitigation prepare: be attached to the EA and combined measures for any adverse impacts (A) An Environmental Impact into a single document. However, if the associated with the proposed action or Statement; or EA is developed on a ‘‘precedent-setting (B) A Finding of No Significant alternative. FMCSA actions which or unique action’’ as referred to in Impact. normally require an EIS include the section 1501.4(e)(2), a copy of the EA (2) Aid an agency’s compliance with following: shall be made available to the public for NEPA when no environmental impact (1) Actions addressed in an a period of not less than 30 days before statement is necessary. environmental assessment that the FONSI is made and the action is (3) Facilitate preparation of a concludes preparation of an EIS is implemented. statement when one is necessary. necessary to discuss significant b. All EAs shall include brief b. If the FMCSA is engaged in environmental impacts of the action(s), discussions of: rulemaking under the Administrative and where FMCSA cannot make a (1) The need for the proposal; Procedure Act or other statute for the finding of no significant effect. (2) The no action alternative and purpose of protecting the public health (2) Actions which generate significant alternatives as required by section or safety, it may make a finding of no controversy because of effects on the 102(2)(E) of NEPA; significant impact available for public human environment. (3) The environmental impacts of the review (including State and area-wide (3) Actions for which there is a clear proposed action and alternatives; clearinghouses) for thirty (30) days need for an Environmental Impact (4) The significance of effects, before the agency makes its final Statement, such that it is unnecessary to including: determination whether to prepare an first prepare an Environmental (A) The context(s) in which effects environmental impact statement and Assessment. These would include may occur; and before the action may begin. The actions having a significant effect on the (B) The intensity of effects, using the circumstances are: following: Environmental checklist as an outline, (1) The proposed action is, or is (A) Air quality. and including mitigation measures closely similar to, one which normally (B) Noise. where they exist and are adequate to requires the preparation of an (C) Hazardous materials. reduce effects below significance; and environmental impact statement under (D) Endangered species.
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(E) Significant archaeological, cultural EISs (as defined by Section 11.d. of DOT along with the copies of the FEIS) or historical resources. Order 5610.1C), this approval authority through the appropriate chain of (F) Wetlands. is delegated to the Headquarters command to the Administrator. The (G) Property protected under section Division Offices and Field Operations twelve copies of the ROD must be 4(f) of the DOT Act. Service Center Administrators for forwarded to the Administrator in b. Preparation and Processing of EISs. FMCSA DEISs, FEISs and SEISs for sufficient time for review and comment (1) Preparation of EISs. All draft, actions that originate within, and have by Administrator level offices and DOT final, and supplemental EISs (DEISs, effects confined to, their respective area. elements as appropriate. After the ROD FEISs, SEISs) must be prepared as (A) Highly controversial EISs. The is reviewed and signed by the directed in 40 CFR part 1502. A Administrator and the appropriate responsible official (see section D.14. of template for the cover page of an FMCSA Associate Administrator this chapter), signed copies will be FMCSA EIS is included in Appendix 9. program office must approve highly forwarded to the Administrator for (2) Circulation of EISs. FMCSA is controversial EISs. Before final FMCSA distribution among Administrator level adopting the availability of, and the approval of a controversial FEIS, offices and DOT elements as appropriate review process for, draft EISs as set forth however, the Administrator will notify and for publication in the Federal at 40 CFR 1506.10. The originator of the the Secretary of Transportation’s Office Register. The responsible official must draft EIS or the responsible Associate of the Assistant Secretary for distribute the ROD to appropriate Administrator program office must Transportation Policy (P–1) and Office agencies, organizations, individuals, forward copies of the DEIS, FEIS, and of the General Counsel (C–1) that a and FMCSA dockets. SEIS, as applicable, to the Administrator controversial FEIS is under review and for distribution among Administrator will provide them a copy of the 7. Agency Responsibility for Documents level offices and DOT elements, as summary section contained in the FEIS. Prepared by Applicants or Proponents appropriate, and for filing 5 copies with The Administrator as appropriate, will a. The CEQ regulations allow for the Environmental Protection Agency’s give DOT [(P–1) and (C–1)] two weeks applicants or proponents (e.g., a (EPA’s) Office of Federal Activities. The notice before final approval of a highly cooperating local government) to copies of the environmental documents controversial FEIS. prepare environmental documents for a should be forwarded to the (B) Non-controversial EISs. For all proposed action, but require that the Administrator in sufficient time for other FEISs, only a notice of approval FMCSA take an active guidance and review and comment by Administrator will be made to DOT (P–1) by the evaluative role during EA/EIS level offices and DOT elements as responsible Associate Administrator preparation, and take final appropriate. program office via the Administrator. responsibility for the quality of the When the State process for (5) Records of Decision (40 CFR analysis and the resulting document. If intergovernmental review provides that 1505.2). the FMCSA permits an applicant to comments are obtained through a (A) A concise public Record of prepare an EA or EIS, the FMCSA: designated agency, the DEIS must be Decision (ROD) must be completed for (1) Will assist the applicant by circulated to that agency. When there is projects requiring an EIS (See Appendix outlining the types of information no designated agency for 12). As required by 40 CFR 1505.2, the required; intergovernmental review, the FMCSA record must do the following: (2) Will independently evaluate the project manager must obtain comments (i) State what the decision was. information submitted and shall be directly from interested State and local (ii) Identify all alternatives considered responsible for its accuracy; or agencies. by the agency in reaching its decision, (3) Will make its own evaluation of Additionally, comments must be specifying the alternative or alternatives the environmental issues and take solicited from the affected and which were considered to be responsibility for the scope and content interested public, Federal agencies that environmentally preferable. An agency of the environmental document (40 CFR have jurisdiction by law or expertise may discuss preferences among 1506.5). with respect to any environmental alternatives based on relevant factors b. Local governments, other impact involved or which are including economic and technical applicants, or cooperating agencies may authorized to develop and enforce considerations and agency statutory conduct studies, etc., on FMCSA’s environmental standards, and any other missions. An agency must identify and behalf, but the FMCSA must oversee Federal agency that is affected by the discuss all such factors including any and approve the work. FMCSA staff will proposed action or has requested a copy essential considerations of national provide guidance to assist applicants in of the DEIS. The FEIS and SEIS will be policy which were balanced by the preparation of these documents. circulated to all those who commented agency in making its decision and state 8. Documents Prepared by Contractors on the DEIS or requested copies of the how those considerations entered into FEIS, and to any other interested or its decision. a. Contractors frequently prepare EISs affected organizations, agencies or (iii) State whether all practicable and EAs. To obtain unbiased analyses, individuals. means to avoid or minimize contractors must be selected in a (3) Legal Review. The Headquarters environmental harm from the manner that avoids, to the maximum Office of the Chief Counsel must alternative selected have been adopted, extent possible, even the appearance of provide final legal sufficiency review of and if not, why they were not. A impropriety, including but not all FMCSA DEISs, FEISs, and SEISs monitoring and enforcement program necessarily limited to, avoiding any prepared for all actions. must be adopted and summarized where conflicts of interest. Therefore, (4) Environmental Review and applicable for any mitigation. contractors must execute disclosure Approval. As noted above, the (A) The ROD is the document that statements specifying that they have no Administrator has authority to approve completes the EIS process and states financial or other interest in the all FMCSA DEISs, FEISs, and SEISs in whether and how to proceed with the outcome of the project or action. The conjunction with the responsible official proposed action. The Environmental contractor’s efforts should be closely in the originating program office. With Project Manager must forward 12 copies monitored throughout the contract to the exception of highly controversial of the ROD (these can be submitted ensure an adequate assessment/
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statement and also to avoid extensive, (5) Fixed Price Incentive (used when Representative, is the officially time-consuming, and costly analyses or a proposed cost-sharing formula would designated person who, with the revisions. FMCSA Action proponents motivate a contractor to control costs); appropriate SMEs, evaluates the various and NEPA program managers must be (6) Cost Plus Fixed Fee (used when contract deliverables and recommends continuously informed and involved. risks and requirements are highly payments and other specific actions to When selecting a contractor the uncertain); the Contracting Officer. following rules shall apply: (7) Cost Plus Incentive Fee (used (1) A contractor shall be chosen solely when risks and requirements are highly 9. List of Preparers by Federal agencies to avoid any uncertain); The EA and the EIS must contain a conflict of interest. (8) Cost Plus Award Fee (used when list of preparers who assisted in the (2) Agencies shall prepare disclosure risks and requirements are highly preparation of the analysis. The list may statements for execution by contractors uncertain); also include members of other specifying that the contractor has no (9) Cost or Cost Sharing (used when government entities, such as the financial or other interest in the risks and requirements are highly Department of Justice, the Department outcome of the action. uncertain); and of Labor, OSHA, etc., when they are (3) The responsible Federal official (10) Time and Materials (used when responsible for a particular analysis shall independently evaluate the EIS risks and requirements are highly used in the preparation of the and take responsibility for its scope and uncertain). document. The list should provide the contents. c. Interagency Agreements. name, affiliation or organization, and (4) All contractor-prepared documents (1) The FMCSA can use Interagency qualifications of the preparer and must indicate the contractor’s level of Agreements (IAAs) (or ‘‘Economy Act’’ identify the section(s) of the document involvement in the following ways: Transfers, 31 U.S.C. 1535) to accomplish containing their analysis. See 40 CFR (A) If contractor involvement is needed NEPA studies. For example, it 1502.17 and 1506.5. minimal and only for a limited portion may be possible to obtain data on the air of the NEPA analysis process, then the quality standards for a particular region 10. Reducing Paperwork in Preparation contractor must be included in the list in the United States through agreement of Environmental Documents of preparers and the FMCSA with the Environmental Protection Reduce excessive paperwork by: Environment Project Manager will sign Agency, or on endangered species a. Reducing the length of documents as the Environmental Project Manager. through the U.S. Fish and Wildlife by means such as page limits. (B) If the contractor has major Service. Use of an IAA is a b. Preparing analytic rather than involvement in the preparation of the determination for the CO. encyclopedic documents. NEPA document, or if the contractor (2) IAAs can provide the FMCSA with c. Discussing only briefly issues other and the FMCSA preparer have equal the interdisciplinary team it needs to than significant ones. involvement in the preparation, then the establish Statements of Work, the scope d. Writing documents in plain ‘‘cover page’’ of the NEPA document of NEPA analysis and obtain the language. will indicate that the CED and/or expertise needed to carry it out, and to e. Following a clear format for checklist, EA, and/or EIS was prepared develop contracts for NEPA-related documents. by the contractor for the FMCSA and be studies. f. Emphasizing the portions of the signed by the contractor as preparer, or d. Statements of Work (SOWs). document that are useful and reducing that the documentation was prepared by (1) SOWs are used in formal emphasis on background material. both the contractor and the FMCSA and contracting, and informal and formal g. Using the scoping process to be signed by the contractor and the agreements to guide the development of identify significant issues, deemphasize FMCSA Environmental Project Manager data and deliverables. insignificant issues, and to narrow the as preparers. (2) The FMCSA shall develop a SOW scope of the environmental process. b. Types of Contracts and specifically for each proposed action h. Summarizing the document and Agreements. Most FMCSA NEPA- and the FMCSA and the consultant circulating the summary if the related work would normally be should have a specific understanding of document is unusually long. procured under Firm Fixed Price the nature of an acceptable deliverable i. Using program, policy, or plan contracts (used when all elements of a before finalizing any contract or environmental documents and tiering to task are well-defined), but this may not agreement. eliminate repetition. always be the most efficient kind of e. Role of the Contracting Officer, j. Incorporating by reference. vehicle for the stated purpose. The type Subject Matter Expert, and Project k. Integrating NEPA requirements of contract used is a determination for Manager. with other environmental review and the Contracting Officer (CO). The (1) The FMCSA’s Contracting Officer consultation requirements. FMCSA may also use other different is responsible for all phases of l. Requiring comments to be specific. contract types, such as: procurement, from initial distribution of m. Attaching and circulating only (1) Indefinite Delivery (used when the Request for Proposals or Quotations changes to the draft documents rather delivery requirements are not certain); (RFP/RFQ) to approving the final than the entire document when changes (2) Fixed Price with Economic Price payment for NEPA services. are minor. Adjustment (used when market prices (2) The subject matter expert (SME) is n. Eliminating duplication with State for labor and/or materials are likely to crucial to the success of the and local procedures, by providing for be unstable over the life of the contract); procurement, as this person must joint preparation, and with other (3) Fixed Price Award Fee (used when develop the SOW, the specific Federal procedures, by providing for FMCSA wishes to provide an incentive evaluation criteria, and review the adoption of environmental documents. award and evaluation standards exist); deliverables along with the project o. Combining environmental (4) Fixed Price Prospective manager at each stage of the NEPA documents with other documents. Redeterminable (used when the costs process. p. Using categorical exclusions. can be estimated reliably only during (3) The Project Manager, here used in q. Using findings of no significant the first year of performance); the sense of the Contracting Officer’s impact.
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11. Reducing Delays in Preparation of 13. Signing FMCSA NEPA Documents Administrator’s office. For Environmental Documents Documentation resulting from Administrator-initiated actions where document preparation has been Reduce delays by: FMCSA NEPA processes may require delegated to the Field, the a. Integrating the NEPA process into the signature of the preparer/ Administrator may also delegate early planning. environmental project manager, environmental reviewer, and/or the environmental review of the document b. Emphasizing interagency to the Field. However, such delegation cooperation before the environmental responsible FMCSA official. FMCSA documents which require signatures must be documented in formal documents are prepared, rather than correspondence between the submission of adversary comments on consist of the following: a. The Environmental Checklist Administrator and the applicable Field completed documents. office. For Field initiated actions, the c. Insuring the swift and fair (Appendix 1). b. The Categorical Exclusion environmental reviewer must be a resolution of lead agency disputes. member of the environmental staff in d. Using the scoping process for an Determination (Appendix 4). c. The cover page of an Environmental that organization. For actions initiated early identification of what are and by Headquarters Units, Divisions, and what are not the real issues. Assessment (Appendix 5). d. The Finding of No Significant Offices, the environmental reviewer e. Establishing appropriate time limits must be a member of the FMCSA for the NEPA process. Impact document for FMCSA-prepared, adopted, contractor, or applicant- Headquarters environmental staff. In all f. Preparing environmental impact prepared NEPA documents (Appendix cases, the environmental reviewer statements early in the process. 7). cannot be the same individual as the g. Integrating NEPA requirements e. The cover page for an preparer of the NEPA document. with other environmental review and Environmental Impact Statement (EIS), c. Signature of the Environmental consultation requirements. (Appendix 9). Project Manager. For NEPA documents h. Eliminating duplication with State f. The Record of Decision (ROD) for an that are prepared with in-house staff, and local procedures by providing for EIS (Appendix 12). the FMCSA staff member coordinating joint preparation. the preparation of the environmental i. Combining environmental 14. Signature document is, and signs as, the documents with other documents—and Where a signature is required on each ‘‘Environmental Project Manager.’’ The describing the circumstances when this of the signature pages listed in Section Environmental Project Manager is will be done. D.13. of Chapter 2, above, the following responsible for the quality of the 12. Supplementation policy applies. environmental and technical analysis a. Signature of the Responsible and documentation. FMCSA NEPA documentation must Official. The responsible official is the (1) If contractor involvement is be periodically reviewed for adequacy person with the authority for either minimal and only for part of the NEPA and completeness in light of changes in making the decision or developing the document, then the contractor must be project conditions. final recommendation for a decision on included in the list of preparers and the a. Supplemental NEPA the actions analyzed in the NEPA FMCSA Environment Project Manager documentation is required when: document. The purposes of the will sign as the Environmental Project (1) The FMCSA makes substantial responsible official’s signature are to: Manager. changes in the proposed action that are (1) Provide a means to monitor NEPA (2) If the contractor has major relevant to environmental concerns; or activity in the FMCSA; and involvement in the preparation of the (2) There are significant new (2) Demonstrate that relevant NEPA document, or if the contractor circumstances or information relevant to environmental information was and the FMCSA preparer have equal environmental concerns and bearing on considered by the decisionmaker when involvement in the preparation, then the the proposed action or its impact. the decision was made. ‘‘cover page’’ of the NEPA document b. This review requires a ‘‘hard look’’ Typically, for Administrator-initiated will indicate that the CED and/or to ascertain the adequacy of the actions, the responsible official is the checklist, EA, and/or EIS was prepared previous analyses and documentation in Office Director for the program by the contractor for the FMCSA and be light of the changes in project sponsoring the action. For signed by the contractor as preparer, or conditions listed above. If this review Administrator-initiated regulations, the that the documentation was prepared by indicates no need for new or responsible official is the person with both the contractor and the FMCSA and supplemental documentation, a the delegated authority to issue the be signed by the contractor and the statement to that effect should be regulation. FMCSA Environmental Project Manager prepared and attached to the b. Signature of the Environmental as preparers. documentation and included in the Reviewer. The environmental reviewer d. Signature of applicant, contractors, administrative record. The NEPA is the individual responsible for or other preparers. Applicants, Liaison and the Office of Information reviewing the environmental content of contractors, and other preparers must Management must periodically review the document to ensure that the sign-off on environmental documents at relevant existing NEPA analyses to environmental analysis and the time they submit the documents to ascertain the need for supplemental documentation complies with NEPA, the FMCSA. documentation and document this CEQ regulations, DOT, and FMCSA E. Special Areas of Consideration review. NEPA policies and procedures. c. In the event supplementation is For Administrator-initiated actions, See Appendix 18 for additional required, the supplemental analysis and including those where document information on evaluating special areas documentation should be prepared in preparation has been delegated to the of consideration, such as air quality, accordance with 40 CFR 1502.9 and Field, the environmental reviewer must potential noise impacts, hazardous included in the administrative record be a member of the FMCSA materials, endangered species, the for the proposed action. environmental staff in the National Historic Preservation Act,
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wetlands, and determinations under Order 12372 entitled, be sent to other Federal agencies, section 4(f) of the DOT Act. ‘‘Intergovernmental Review of Federal including CEQ. Programs.’’ (see 47 FR 30959; July 16, Chapter 3. Public Involvement, 2. Notice of Intent 1982). Legislative, and Interagency (B) Publish notice in local newspapers As soon as the decision to prepare an Coordination as appropriate (in papers of general EIS has been made, the responsible A. Citizen Involvement and Public circulation rather than legal papers). FMCSA official, via the Administrator, Notice Process (C) Publish notice in newsletters or must approve and publish the required In addition to the information in this provide notice through other local Notice of Intent (40 CFR 1508.22) in the Chapter, see Appendix 15, which media (e.g., radio, television, etc.) that Federal Register. Where there is a contains information on distribution of may be expected to reach potentially lengthy period between the decision to EISs and notices of NEPA related interested persons. prepare an environmental impact hearings, meetings, and documents. (D) Notify affected Indian tribes when statement and the time of actual effects may occur on reservations or preparation, the Notice of Intent may be 1. Public Involvement (40 CFR 1506.6) impact tribal interests. published at a reasonable time in a. The FMCSA will make diligent (E) Follow the affected State’s public advance of preparation of the draft efforts to involve the public in preparing notice procedures for comparable statement. In addition to publishing the and implementing its NEPA procedures. actions. Notice of Intent in the Federal Register, The FMCSA will provide public notice (F) Notify potentially interested the FMCSA will provide notices and of NEPA-related hearings and hold or community organizations including press releases on the FMCSA Internet sponsor public hearings or meetings small business associations. Web site. (G) Send direct mailings to owners whenever appropriate in accordance 3. Intergovernmental Review with statutory requirements applicable and occupants of nearby or affected to FMCSA. The FMCSA will make property. Responsible FMCSA officials will environmental documents available to (H) Post notice on- and off-site in the provide notice to other Federal, State, inform those persons and agencies who area where the action is to be located. local, and tribal government agencies b. When deciding whether to hold or may be interested or affected. The when proposed actions are likely to sponsor a public hearing or meeting, FMCSA will provide: involve public interest. The EA or EIS (1) Notice in All Actions. In all cases consider whether there is: must evidence this solicitation, and (1) Substantial environmental mail notice to those who have requested consideration of the comments received. controversy concerning the proposed it on an individual action. B. Proposals for Legislation (2) Notice in Actions of National action or substantial interest in holding Concern. In the case of an action with the hearing. 1. Preparation (2) A request for a hearing by another effects of national concern, provide The originating Associate notice to include publication in the agency with jurisdiction over the proposed action supported by reasons Administrator program office must Federal Register. ensure completion of the environmental (A) In addition, the FMCSA will post why a hearing will be helpful. analysis and/or documentation for notices and press releases on the c. If a draft EIS is to be considered at legislative proposals which originate FMCSA internet website. a public hearing, the FMCSA shall make (B) FMCSA will provide notice by the statement available to the public at with FMCSA. mail to: least 15 days in advance (unless the 2. Processing (i) News organizations and members purpose of the hearing is to provide of the public as appropriate or expected information for the draft environmental An EIS, if necessary, must be to be interested in the action. impact statement). processed as required in paragraph 15.b. (ii) Federal, State, tribal, and local d. The FMCSA must solicit of DOT Order 5610.1C, via the government agencies that have appropriate information from the Administrator (See 40 CFR 1506.8). jurisdiction by law or special expertise public. C. Mitigating Measures with respect to an environmental impact e. The FMCSA must explain in its involved or that are authorized to public notice where interested persons The responsible FMCSA official must develop and enforce environmental can get information or status reports on assure the execution and monitoring of standards, or those agencies, environmental impact statements and all mitigating measures committed to in organizations, and individuals that have other elements of the NEPA process. any environmental document (i.e., EA, expressed a concern in the matter. f. The FMCSA must make EISs (in FONSI, EIS, SEIS, or FEIS) and/or (iii) Those who have requested it on addition to the distribution described in record of decision for any FMCSA an individual action; and 40 CFR 1502.19)., the comments action. When implementing decisions, (iv) National organizations reasonably received, and any underlying the FMCSA shall: expected to be interested in the matter. documents available to the public 1. Include appropriate conditions in If engaged in rulemaking, the FMCSA pursuant to the provisions of the grants, permits, regulations or other will provide notice by mail to national Freedom of Information Act (5 U.S.C. approvals; organizations who have requested that 552), without regard to the exclusion for 2. Condition funding or actions on notice regularly be provided. The interagency memoranda where such mitigation; FMCSA shall maintain a list of such memoranda transmit comments of 3. Upon request, inform cooperating organizations. Federal agencies on the environmental or commenting agencies on progress in (3) Notice in Actions of Local impact of the proposed action. Materials carrying out mitigation measures which Concern. In the case of an action with to be made available to the public shall they have proposed and which were effects primarily of local concern, the be provided to the public without adopted; and FMCSA will: charge to the extent practicable, or at a 4. Upon request, make available to the (A) Notify State and area wide fee which is not more than the actual public the results of relevant clearinghouse pursuant to Exceutive costs of reproducing copies required to monitoring.
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D. Inter-Agency Coordination cooperating agency. The FMCSA may especially relevant for smaller consider the following factors, as governmental entities with limited 1. Lead Agencies and Cooperating appropriate on a case-by case basis, for budgets. Agencies determining whether to invite, decline, (viii) Does the agency provide The FMCSA will request the or end cooperating agency status: adequate lead-time for review and do participation of each Cooperating (i) Whether the agency has the other agencies provide adequate Agency in the NEPA process at the jurisdiction by law (40 CFR 1508.15) time for review of documents, issues, earliest possible time. The FMCSA will (e.g., Does the agency have authority to and analyses? coordinate and integrate State and tribal approve, veto, or finance a proposal or (ix) Can the cooperating agency(s) processes early in the NEPA process. portions of a proposal?); accept the lead agency’s final When FMCSA is a Lead Agency, it will (ii) Does the cooperating agency have decisionmaking authority regarding the use the environmental analysis and the special expertise (40 CFR 1508.26) scope of the analysis, including proposals of Cooperating Agencies with needed to help the lead agency to: authority to define the purpose and jurisdiction by law or special expertise, (a) Meet a statutory responsibility; need for the proposed action? For (b) Carry out an agency mission; to the maximum extent possible. example, is an agency unable or (c) Meet related program expertise or a. Lead Agency Designation. For Field unwilling to develop information/ office actions, the program office in the experience; or (d) Meet the objectives of regional, analysis of alternatives they favor and Field will assume responsibility for disfavor? maintaining FMCSA lead agency status. State, and local land use plans, policies (x) Are the agency(s) able and willing The Chief of the responsible and controls (40 CFR 1502.16(c))? to provide data and rationale underlying Administrator-level program office will (iii) Does the agency understand what the analyses or assessment of assume this responsibility for cooperating agency status means and alternatives? Administrator-originated actions. The can it legally enter into an agreement to (xi) Does the agency release Administrator will designate the be a cooperating agency? responsible Field Administrator for (iv) Can the cooperating agency predecisional information (including maintaining FMCSA lead agency status participate during scoping and/or working drafts) in a manner that in extraordinary circumstances (e.g., throughout the preparation of the undermines or circumvents the when an action transcends or involves analysis and documentation as agreement to work cooperatively before more than one Field office, etc.). necessary and meet milestones publishing draft or final analyses and b. Proactively Soliciting Cooperating established for completing the process? documents? Disagreeing with the Agencies. FMCSA will actively consider (v) Can the cooperating agency, in a published draft or final analysis should designation of Federal and non-Federal timely manner, aid in: not be a ground for ending cooperating cooperating agencies in the preparation (a) Identifying significant agency status. Agencies must be alert to of its analyses and documentation environmental issues, including aspects situations where State law requires required by NEPA, and will ensure that of the human environment (40 CFR release of information. FMCSA actively participates as a 1508.14) and natural, social, economic, (xii) Does the agency consistently cooperating agency in other agencies’ energy, urban quality, historic and misrepresent the process or the findings NEPA processes. Stakeholder cultural issues (40 CFR 1502.16)? presented in the analysis and involvement is important to ensure (b) Eliminating minor issues from documentation? decisionmakers have the environmental further study? (B) FMCSA program offices (c) Identifying issues previously the information necessary to make informed responsible for NEPA analysis must: subject of environmental review or and timely decisions efficiently. One of (i) Set time limits; study? the benefits of Cooperating Agency (ii) Assign milestones; (d) Identifying the proposed action’s (iii) Assign responsibilities for participation in NEPA analyses includes relationship to the objectives of enhancing agencies’ ability to adopt analysis and documentation; regional, State and local land use plans, (iv) Specify scope and detail of the environmental documents by allowing policies and controls (40 CFR adoption of an EIS without recirculating cooperating agency’s contribution; 1502.16(c))? (v) Establish other appropriate it as a draft EIS. (vi) Can the cooperating agency assist ground-rules addressing issues such as (1) Cooperating Agency Designation. in preparing portions of the review and availability of pre-decisional FMCSA shall determine if Federal and analysis and resolving significant information; and non-Federal agencies are interested and environmental issues to support (vi) In appropriate cases, document appear capable of assuming the scheduling and critical milestones? responsibilities of becoming a (vii) Can the cooperating agency the agency’s expectations, roles, and cooperating agency under 40 CFR provide resources to support scheduling responsibilities (e.g., Memorandum of 1501.6. If invited, Federal, State, tribal and critical milestones, such as: Agreement or Understanding, or and local agencies that elect not to be (a) Personnel? Consider all forms of correspondence). included as cooperating agencies, assistance (e.g., data gathering, (2) Agencies That Decline Cooperating should still be considered for inclusion surveying; compilation; research). Agency Status. Federal agencies that in interdisciplinary teams engaged in (b) Expertise? This includes technical decline to accept cooperating agency the NEPA process and on distribution or subject matter expertise. status in whole or in part are obligated lists for review and comment on the (c) Funding? Examples include to respond to the request. A copy of NEPA documents. funding for personnel, travel and their response should be provided to (A) If the FMCSA determines that studies. CEQ (40 CFR 1501.6(c)). If an agency cooperating agencies will be useful in (d) Models and databases? Consider refuses to participate, FMCSA shall the development and preparation of EAs consistency and compatibility with lead provide the agency refusing to and EISs, it will notify, in writing, those and other cooperating agencies’ participate with a draft EIS for Federal and non-Federal agencies that methodologies. comment. Negative and/or controversial may be interested in assuming the (e) Facilities, equipment and other comments may be referred to CEQ for responsibilities of becoming a services? This type of support is resolution via the Administrator.
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(3) Declining an agency’s request to implementation of the project is When the responsible FMCSA official participate. scheduled to begin. determines that the lead agency’s EA is (A) If the FMCSA disagrees with the b. In areas where no State not adequate, the EA must be request by an agency to participate in clearinghouse process exists, forward supplemented or rewritten. This may be the development of an EA or EIS, the the notification letter directly to affected done by the lead agency at the request Associate Administrator for Policy and State, area, regional, local, and tribal of the FMCSA. Should the lead agency Program Development (MC–PR) will entities with instructions to review and be unable to do so, or refuse, the contact the requesting agency’s coordinate the project. responsible FMCSA official must ensure responsible official to have a meeting to c. It is recommended that interagency that the EA is supplemented or discuss the matter and attempt to distribution of Environmental rewritten, as appropriate. In this resolve the issues the FMCSA has Assessments or Environmental Impact instance, the FMCSA does not adopt the against participating. Statements be handled using a ‘‘Public lead agency’s document. The lead (B) If no agreement can be reached Notice’’ type cover letter addressed to agency’s EA becomes the basis for the between the requesting agency and ‘‘All Interested Parties.’’ It should FMCSA’s EA, and is incorporated in the FMCSA: announce the availability of the EA, EIS, FMCSA EA to the extent it is adequate. (i) The Associate Administrator for or SEIS, describe the project, review (2) Finding of No Significant Impact Policy and Program Development will environmental considerations, and (FONSI). A FONSI statement itself may prepare a letter for the FMCSA solicit comments. This practice not be adopted. However, an EA Administrator’s signature declining to eliminates the need for individual resulting in a FONSI may be adopted as participate with the requesting agency. distribution letters. discussed in Section D.4.b.(1) of Chapter (ii) The letter will provide the specific 3. Adopting Environmental Documents 3. reasons why the FMCSA believes it Prepared by Other Agencies (3) Environmental Impact Statement should not or cannot participate with (EIS). The FMCSA may adopt the EIS of the cooperating agency’s request. a. Summary. another agency if the EIS adequately (iii) The FMCSA will coordinate its (1) Some FMCSA actions can be taken addresses the impacts of the project letter of declination with OST’s Office based on environmental documentation within the FMCSA’s area of jurisdiction of the Assistant Secretary for that has been prepared by another and concern. The FMCSA may either Transportation Policy (P–1) before the Federal agency. The CEQ Regulations adopt the entire EIS or just a portion of FMCSA Administrator signs and (40 CFR 1506.3) encourage agencies to it, in accordance with the procedures transmits this letter of declination to the adopt the environmental documentation described in 40 CFR 1506.3. When cooperating agency and CEQ. of other Federal agencies whenever adopting the EIS of another agency, the c. CEQ Resolution. Request for possible to reduce costs and processing responsible FMCSA official must state Council on Environmental Quality time of Federal actions. This adoption that the FMCSA has adopted another (CEQ) resolution concerning lead may be complicated due to difference in agency’s EIS in the Record of Decision. agency designation must be made via internal agency judgment. A suggested format for the statement is the Administrator. The Administrator (2) In order to adopt another agency’s as follows: will contact CEQ for resolution of environmental documentation the ‘‘After an independent review of environmental issues. FMCSA must be in agreement with the (specify lead agency) Environmental d. Adverse Comments and Delays. content and findings of the document. Impact Statement, I have determined Matters to be discussed with the b. Specific Procedures. The following that the document adequately addresses Council on Environmental Quality procedures must be adhered to when the impacts of the (specify action(s)). (CEQ) must be coordinated with the adopting environmental documents Therefore, I hereby adopt the (specify Administrator. produced by other agencies: entire EIS or portion thereof).’’ (1) Environmental Assessments (EAs). 2. Distribution of Environmental EAs produced by another agency may be 4. Review of Environmental Statements Documents adopted. The responsible FMCSA Prepared by Other Agencies a. FMCSA will provide a written official must ensure that the EA notification to State, area-wide, regional, prepared for, or by, the other agency is Comments on Non-FMCSA EISs. In local, and tribal officials through the adequate for FMCSA’s purposes. If the many instances, other Federal agencies State process or otherwise, of any plan EA is in fact adequate from a NEPA will submit copies of their EIS to the or project proposed in the State or standpoint and meets FMCSA FMCSA for review. One copy of all locality. Where the effect of an action or requirements, the FMCSA may adopt FMCSA comments must be sent to the rulemaking, etc., crosses State/tribal the document. In doing so, the FMCSA Administrator and DOT (P–1). lines, the FMCSA will notify each entity accepts the EA and takes full 5. Pre-Decision Referrals to the Council of the proposal. Notification must take responsibility for its scope and content. on Environmental Quality place at the earliest practicable time in Should review of the EA by the project planning. The notification must responsible FMCSA official conclude in DOT Lead Agency Proposals. Field contain all of the following: a Finding of No Significant Impact Offices and Administrator-level program (1) Name of the organization (FONSI), a FONSI statement must be offices receiving a notice of intended proposing the project. prepared and should follow the format referral from another agency must (2) Geographic location of the project. provided in Appendix 7. The FONSI provide DOT (P–1) with a copy of the (3) Brief description of the project that should be attached to the front of the notice via the Administrator. will ensure appropriate distribution. EA. The use of Appendix 7 serves both Appendices (4) Program to be supported by the as a statement adopting the lead project. agency’s EA and as a Finding of No Appendix 1—FMCSA Environmental (5) Date on which the actual Significant Impact for the FMCSA. A Checklist development, construction, or other separate adoption statement is not Appendix 2—FMCSA Categorical activities involved in the physical needed. Exclusions (CE)
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Appendix 3—FMCSA Regulations Appendix 14—Air Quality Analysis (List the category into which you Typically Subject to an Guidance believe the action falls). Environmental Assessment Appendix 15—Distribution of Appendix 4—FMCSA Categorical Environmental Impact Statements Environmental Checklist Exclusion Determination (CED) Appendix 16—List of Relevant Note: The decisionmaker in consultation Appendix 5—FMCSA Environmental Environmental Statutes and Executive with a HEADQUARTERS OR FIELD Assessment Cover Sheet Orders ENVIRONMENTAL QUALITY ADVISOR Appendix 6—FMCSA Environmental Appendix 17—FMCSA’s National should complete this checklist. Please read Assessment (EA) Environmental Policy Act (NEPA) the information on how to properly complete Appendix 7—FMCSA Finding of No Review Process (Flow Chart) this checklist and make sure each question is Significant Impact (FONSI) Appendix 18—Special Areas of answered using the accompanying Appendix 8—FMCSA Notice of Intent to Consideration When Implementing explanations found on the following pages in Prepare an Environmental Impact NEPA this appendix. Attempting to answer these Statement questions without reading the accompanying Appendix 1—FMCSA Environmental Appendix 9—FMCSA Environmental explanations may result in an incorrect or Impact Statement Model Cover Sheet Checklist incomplete environmental analysis. Appendix 10—FMCSA Environmental Action Name: Impact Statement (EIS) (Give project name and FMCSA * Project Description: Appendix 11—FMCSA Notice of Docket No., and/or other ID codes); Activity Year: Availability of Environmental Impact Action Location: Statement (List specific location of action [i.e., (* Note: Checklist preparer may want to Appendix 12—FMCSA Record of attach additional descriptive information on border States]); the proposed action such as diagrams, site Decision Action Description: maps, and photographs.) Appendix 13—Form and Content of 4(F) (Describe the action); Statements Action Category: Part I. Checklist Analysis
Need Yes No data
1. Is there greater size or scope than generally experienced for a particular category of action? 2. Is the proposed action located near a site that involves a unique characteristic of the geographic area, such as a his- toric or cultural resource, park land, wetland, wild and scenic river, ecologically critical area, or property requiring spe- cial consideration under 49 U.S.C. 303(c)? 3. Is there a likelihood that the proposed action would be highly controversial on environmental grounds? 4. Is there a potential for effects on the human environment that are highly uncertain or involve unique or unknown risks? 5. Will the action cause effects on the human or natural environment that may be precedent setting? 6. Are the action’s impacts likely to create cumulatively significant impacts when considered along with other past, present, and reasonably foreseeable future actions? 7. Is the proposed action likely to have an impact on a district, site, highway, structure, or object that is listed on or eligi- ble for listing on the National Register of Historic Places, or to cause the loss or destruction of a significant scientific, cultural, or historic resource? 8. Will the proposed action have a significant effect on species or habitats protected by the Endangered Species Act or other statute? 9. Is there a likelihood that the proposed action would be inconsistent with or cause a violation of any Federal, State, local, or tribal law or requirement imposed for the protection of the environment? 10. Is the action likely to have an impact that may be both beneficial and adverse? A significant impact may exist even if it is believed that, on balance, the effect will be beneficial such as likelihood that air emissions exceed de minimis lev- els or otherwise that a formal Clean Air Act conformity determination is required? 11. Are there reportable releases of hazardous or toxic substances as specified in 40 CFR part 302, Designation, Re- portable Quantities, and Notification in the vicinity of the proposed action? 12. Are there reportable releases of petroleum, oils, and lubricants, application of pesticides and herbicides, or where the proposed action results in the requirement to develop or amend a Spill Prevention, Control, or Countermeasures Plan? 13. Does the proposed action have the potential to degrade already poor environmental conditions? Does the initiation of degrading influence activity, or affect areas not already significantly modified from their natural condition? 14. Does the proposed action have the potential to impact minority and/or low-income populations? Other environmental considerations not included on checklist.
Part II. Comments or Additional 2. This proposed action is a CE, but 6. A FEIS is recommended for this Information Related to Part I it is recommended for further review proposed action. [ ] under one or more of the environmental Comments: The following space is provided to authorities noted below (list). [ ] Date discuss the ‘‘YES’’ responses to the Comments: * Preparer/Environmental Project above categories (identify by 3. An EA is recommended for this Manager corresponding number), or to provide proposed action. [ ] Title/Position any supplemental information. Comments: Date Part III. Conclusions 4. An EIS is recommended for this ** Environmental Reviewer proposed action. [ ] Title/Position 1. This proposed action is a CE and Comments: * The FMCSA preparer signs for NEPA it requires no further environmental 5. A SEIS is recommended for this documents prepared in-house. The review. [ ] proposed action. [ ] FMCSA Environmental Quality Comments: Comments: Advisor signs for NEPA documents
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prepared by an applicant, a justice impacts as well. Please see the Are you in compliance with the contractor, or another outside party. discussion for Question 12 for further following laws? guidance. • Considering Environmental Clean Air Act • If you answered ‘‘NO’’ to all the • Consequences Clean Water Act questions, or all ‘‘YES’’ responses were • Resource Conservation and Recovery The 14 questions listed in this adequately researched and found to Act appendix comprise the analysis portion have no potential for significant • Comprehensive Environmental of the Environmental Checklist. Each impacts, and there is a Categorical Response Compensation, and Liability question calls for a judgment by you, the Exclusion (CE) to cover the proposed Act (CERCLA—Superfund) decisionmaker and/or the action, then you do not need to prepare • Toxic Substance Control Act Environmental Protection Specialist, either an EA or EIS. • Occupational Safety and Health Act about the likelihood that a particular • If the appropriate CE requires • The Noise Control Act kind of environmental consequence will documentation such as a Categorical Question 2 result from the proposed action. The Exclusion Determination (CED) and/or purpose of this checklist is to serve as this Environmental Checklist, make sure Is the proposed action located near a a tool for the decisionmaker and/or the the documentation is complete, submit site that involves a unique characteristic Environmental Protection Specialist to it with the appropriate planning of the geographic area, such as a historic determine the proper level of NEPA documents, and place it in the project or cultural resource, park land, wetland, analysis with which to begin and to file. wild and scenic river, ecologically identify areas of potential problems and critical area, or property requiring concern. Question 1 special consideration under 49 U.S.C. Clarification and lists of things to Is there greater size or scope than 303(c)? consider for each question are found generally experienced for a particular Think about whether your action is below; however, these lists should not category of action? likely to: be considered exhaustive by any means. Think about whether your action is • Alter a natural ecosystem; • Every situation and proposed action likely to Cause damage to or require the • will have a unique set of circumstances Result in the use, storage, release, removal of any terrestrial, marine, or that you will need to take into account and/or disposal of toxic materials such aquatic vegetation; • as you contemplate the potential as fertilizers, cleaning solvents, Affect the water supplies of consequences of the proposed action. laboratory wastes, or other hazardous humans, animals, or plants; • Based on an internal review, external materials such as explosives; Affect the water table; • • review (where appropriate), and Involve a facility that may contain Result directly or indirectly in research, check ‘‘YES,’’ ‘‘NO,’’ or ‘‘NEED polychlorinated biphenyls (PCBs), urea construction on slopes greater than formaldehyde, or friable asbestos; 15%; DATA’’ for each question. Attach • • documentation as needed to support Be on or near an EPA or State Result in construction on or near your answer. Superfund, or a priority cleanup site; hydric soils, wetland vegetation, or • Involve construction on or near an The checklist is not complete until all other evidence of a wetland; active or abandoned toxic, hazardous, or • ‘‘Need Data’’ issues have been resolved Result in construction on or near radioactive materials generation, and all blocks are checked either ‘‘YES’’ any other natural feature that could storage, transportation, or disposal site; or ‘‘NO.’’ Once you have done this, you affect the safety or health of the public; • Involve use of a site that contains • Be located on or near a wildlife need to go back, look at all the ‘‘YES’’ underground storage tanks (USTs) as refuge, a designated wilderness, a wild answers, and ask yourself, ‘‘Do any of evidenced by historical data or physical and scenic river, a National Natural these YES’s indicate potential for evidence such as vent pipes or fill caps; Landmark, a National Historic significant effects to the human • Have a significant possibility of Landmark, or a National Monument environment.’’ Remember that the accidental spills of oils, hazardous, or designated under the Antiquities Act; human environment includes both the toxic materials; • Be located on or near designated natural and historic/cultural • Require the use or storage of open space, or a designated environment. explosives; or conservation area; • If it is known that significant effects • Require the storage or • Be located on or near an area under will occur which cannot be avoided or transportation of a large amount of fuel. study for any such designation; mitigated to a level of insignificance, Agencies that may require • Be located on or near any other then an EIS should be prepared. consultation include the following: • environmentally critical area; If it is unknown whether significant • EPA • Have adverse visual, social, effects will occur or there is no • OSHA atmospheric, traffic, or other effects on appropriate categorical exclusion • Appropriate Federal, State and local such a critical area even though it is applicable to your action, an EA should authorities, and Indian tribes NOT located on or near the area; be prepared with the potential for an Think about whether your action is • Change the use of park lands; or EIS, as necessary. likely to be inconsistent with such • Alter a wetland. Note: If an EA or EIS is necessary, then you authorities as: Find out whether there is some must also consider the significance of • EPA’s solid waste management possible, even improbable, effect of your impacts on the socioeconomic environment guidelines action that would be so serious if it and environmental justice. Significant • A State Implementation Plan (SIP) occurred that further review is impacts in either of these two realms alone appropriate. are NOT enough to trigger an EA or EIS. under the Clean Air Act • OSHA noise standards For example, you want to acquire However, if an EA or EIS is prepared due to • the potential for significant environmental Executive Order 12898 land in a non-sensitive area that is impacts, then these documents should (Environmental Justice) generally unlikely to have adverse include discussion of any potentially • Executive Order 12372 (Review of effects on the environment. However, if significant socioeconomic or environmental Federal Programs) there is an environmentally sensitive
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area downstream from the land you Question 4 Question 7 want to acquire, and use of the land Is there a potential for effects on the Is the proposed action likely to have might have the potential to cause human environment that are highly an impact on a district, site, highway, pollution as groundwater flows through uncertain or involve unique or structure, or object that is listed on or the sensitive area, then you must unknown risks? eligible for listing on the National conduct further review. Agencies that First, is there anything you do not Register of Historic Places, or to cause may require consultation include: the loss or destruction of a significant • know about the action’s potential Army Corps of Engineers impacts? Second, does what you do not scientific, cultural, or historic resource? • US Fish and Wildlife Service know have any significance? Some preliminary investigation will • be necessary to determine whether National Marine Fisheries Service For example, consider a conservation • significant scientific, cultural or historic Appropriate Federal, State and local plan’s implementation when the full resources exist in the area of potential authorities, and Indian tribes effects of the plan will not be known effect of the proposed action. Think about whether your action is until after implementation and Think about whether your action is likely to be inconsistent with such monitoring. likely to affect: authorities as: Question 5 • Districts, sites, buildings, vessels, • Executive Order 11990, Protection of aircraft, structures, or objects included Wetlands Will the action cause effects on the in or eligible for the National Register of • Executive Order 13089 (Coral Reef human or natural environment that may Historic Places; Protection) be precedent setting? • A building, structure, truck, bus, or • Executive Order 13158 (Marine To answer this question, you must aircraft that is over 45 years old; Protected Areas) look forward and outward, and consider • A neighborhood or commercial • DOT Order 5660.1A (Wetlands) the possibility that what is done with area; that may be important in the your particular action will pave the way Are you in compliance with the history or culture of the community; for future actions that could have • A neighborhood, commercial, following laws? serious environmental consequences. industrial, or rural area that might be • Clean Water Act For example, you decide to issue a eligible for listing on the National • Wild and Scenic Rivers Act waiver under 49 CFR 381.215 from 49 Register as a district; • Coastal Zone Management Act CFR 392.66(a)(3) for a commercial motor • A known or probable cemetery, • National Historic Preservation Act vehicle that has been found to have a through physical alteration or by • American Indian Religious Freedom mechanical condition which would altering its visual, social, or other Act likely produce a carbon monoxide characteristics; • Native American Graves Protection hazard to the occupants. It may be • A rural landscape that may have and Repatriation Act possible to issue this waiver because of cultural or aesthetic value; • • Archaeological Resources Protection the type and circumstance of the A place of traditional cultural value Act mechanical condition, or perhaps the in the eyes of a Native American group mechanical condition of other parts and or community; • Question 3 accessories mitigates the hazard. A known archaeological site, or Is there a likelihood that the proposed Although the nature of the particular land identified by archaeologists as action would be highly controversial on situation may allow a CE to occur, if having high potential to contain your action were taken as precedent for archaeological resources; environmental grounds? • Consider first whether your action is allowing ALL similar mechanical An area identified by archaeologists likely to be controversial in any way. If conditions to allow non-unique carbon or a Native American Group as a sacred so, consider whether this controversy is monoxide hazards, then a higher level site or as having high potential to likely to have an environmental of review of the action may be in order. contain Native American cultural items; element. For example, if the FMCSA or Question 6 • The historic/cultural character of decides to close a unit, controversy communities or neighborhoods. could be generated on economic Are the action’s impacts likely to Agencies that may require consultation grounds; however, unless this create cumulatively significant impacts include: controversy encompasses a potential when considered along with other past, • Appropriate State (e.g. State significant environmental impact, it present, and reasonably foreseeable Historic Preservation Officer) and local does not trigger further NEPA analysis future actions? authorities (e.g., local historic on its own. Consider whether the action is related preservation groups) Environmental controversies can be to other actions (by FMCSA or others) • Applicable Native American about a variety of things: Impacts on with impacts that are individually populations. historic buildings, archaeological sites, insignificant but that may, taken Think about whether your action is and other cultural resources; impacts on together, have significant effects. likely to be inconsistent with such traffic or parking on a community or For example, is the action part of an authorities as: neighborhood; and, of course, impacts ongoing pattern of pollutant discharge, • E.O. 13006, Locating Federal on natural resources such as water, air, traffic generation (truck or bus), Facilities on Historic Properties in Our soil, and wildlife. To avoid missing a economic change, or land-use change in Nations Central Cities; controversial issue that should be its locality that could collectively affect • E.O. 13007, Indian Sacred Sites; addressed under NEPA, be sure not to human health or the condition of the • E.O. 13175, Consultation and interpret the word ‘‘environmental’’ too environment? (For further information Coordination with Indian Tribal narrowly. on cumulative effects see: The Council Governments; Consideration should be given to on Environmental Quality’s, • E.O. 11593, Protection and Executive Order 12372 (Review of ‘‘Considering Cumulative Effects’’ Enhancement of the Cultural Federal Programs). published January 1997.) Environment;
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Are you in compliance with the • Significantly increase the ambient environmental conditions? Does the following laws? noise levels of the area (includes initiation of degrading influence • National Historic Preservation Act; operation and/or maintenance of activity, or effect areas not already • Archaeological Resources machinery, vehicles, vessels, aircraft, significantly modified from their natural Protection Act; loudspeaker systems, alarms, etc.); condition? • American Indian Religious Freedom • Include the use of equipment with To answer this question, you must Act; unusual noise characteristics; or have historic information of the area of • Native American Graves Protection • Have noisy activities continue past potential effect and determine if the and Repatriation Act; normal working hours. proposed action will further degrade or improve the already poor environmental Question 10 Question 8 conditions. In addition, you must Will the proposed action have a Is the proposed action likely to have determine the likelihood of the significant effect on species or habitats an impact that may be both beneficial degrading activities, previously protected by the Endangered Species and adverse? A significant impact may described, having an effect on areas not Act or other statute? exist even if it is believed that, on already modified from their natural To answer this question, you must balance, the effect will be beneficial condition. such as likelihood that air emissions have information on protected species Question 14 or habitats in the area of potential effect exceed de minimis levels or otherwise of the proposed action. that a formal Clean Air Act conformity Does the proposed action have the Think about whether your action is determination is required? potential to impact minority and/or low- likely to Think about whether your action is income populations? • likely to Adversely affect a SIP; Think about whether your action is Affect an endangered or threatened • species, or its critical habitat; Adversely affect national primary likely to • Adversely impact minority and • Affect a species under ambient air quality standards (NAAQS); • Violate the carbon monoxide low-income communities; consideration for listing as endangered standards; • Adversely impact how public or threatened, or its critical habitat; • Violate ozone standards; services (i.e., transportation) are made • Affect migratory birds; • • Violate lead standards; or available to minorities and low-income Affect a protected marine mammal; • Violate particulate matter communities in the vicinity of the or standards. • action; and Affect essential fish habitat Think about whether your action is • Adversely change the environment protected by the Magnuson-Stevens likely to in minority and low-income Fishery Conservation and Management • Change traffic patterns; communities. Act. • Increase traffic volumes; Agencies that may require • Increase access constraints; or Other Environmental Considerations consultation include: • Require substantial new facilities. Address any potential environmental • US Fish and Wildlife Service Question 11 effects that may be of concern, but do • National Marine Fisheries Service not fall into any of the other categories. Are you in compliance with the Are there reportable releases of As the decisionmaker, you could following laws? hazardous or toxic substances as recognize something problematic in • specified in 40 CFR part 302, your unique situation that could not be Endangered Species Act Designation, Reportable Quantities, and • Fish and Wildlife Coordination Act foreseen in the development of a • Notification in the vicinity of the generalized guideline such as this. Magnuson-Stevens Fishery proposed action? Conservation and Management Act as To answer this question, you must Socioeconomic Impacts and amended in 1996 have historic information on reportable Environmental Justice • Migratory Bird Treaty Act releases of hazardous or toxic If you are preparing an EA or an EIS • Executive Order 13186, substances as specified in 40 CFR part due to the potential for significant Responsibilities of Federal Agencies 302. environmental impacts, you must also To Protect Migratory Birds Question 12 consider and analyze any potential for Question 9 significant impacts on the Are there reportable releases of socioeconomic environment and issues Is there a likelihood that the proposed petroleum, oils, and lubricants, action would be inconsistent with or of environmental justice. application of pesticides and herbicides, Think about whether your action is cause a violation of any Federal, State, or where the proposed action results in local, or tribal law or requirement likely to the requirement to develop or amend a • Change traffic patterns or increase imposed for the protection of the Spill Prevention, Control, or traffic volumes (road and/or waterway); environment? Countermeasures Plan? • Require the rerouting of roads/ Think about whether your action is To answer this question, you must waterways or traffic; likely to have historic information on reportable • Be located near any existing • Adversely affect the ambient air releases of petroleum, oils, and bottleneck in vehicle traffic (e.g., a quality due to dust, vehicle or lubricants, application of pesticides and bridge intersection); equipment emissions, open burning, herbicides, and have an understanding • Have access constraints; etc.; of the requirements for developing and • Affect a congested intersection; • Result in toxic or unusual air amending a Spill Prevention, Control, or • Be inconsistent with existing emissions; Countermeasures Plan. zoning, surrounding land use, or the • Adversely affect the ambient air official land use plan for the specific quality due to the operation and/or Question 13 site and/or the delineated area; maintenance of vehicles, vessels, or Does the proposed action have the • Be inconsistent with surrounding aircraft; potential to degrade already poor architecture or landscape;
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• Increase or decrease the population manuals, internal orders, and other g. Financial assistance or of the community; guidance documents not required to be procurements for motor carrier activities • Increase the population density of published in the Federal Register under that do not commit the FMCSA or its the area; the Administrative Procedure Act, 5 applicants to a particular course of • Intrude on residential or business U.S.C. 552(a)(1). action affecting the environment. uses in the affected area; b. Routine intra-agency personnel, h. Hearings, meetings, or public • Relocate private residences or fiscal, and administrative activities, affairs activities held at locations businesses; actions, procedures, and policies which developed for such activities. • Affect the economy of the clearly do not have environmental 2. Purchase, Lease, and Acquisitions community in ways that result in impacts, such as, hiring, recruiting, impacts to its character, or to the processing and paying of personnel, and Lease of space in buildings or towers physical environment; recordkeeping. for a firm-term of one year or less when • Result in a higher proportion of c. Routine procurement and contract the intended use is in conformity with effects affecting low income or minority activities and actions for goods and current uses. groups; services, including office supplies, • Require substantial new utilities; 3. Operations • equipment, mobile assets, and utility Be regarded as burdensome by local services for routine administration, Realignment of mobile assets, or regional officials or the public operation, and maintenance in including motor vehicles, to existing because of infrastructure demands (e.g., accordance with Executive Orders operational facilities that have the sewer, water, utilities, street system, 13101, 13148, and other applicable capacity to accommodate such assets or public transit); where supporting infrastructure changes • Executive Orders and Departmental Be regarded as burdensome by local policies regarding ‘‘greening the will be minor in nature to perform as or regional officials or the public government.’’ new terminals or for repair and because of support facilities demands overhaul. d. Decisions to set up or (e.g., schools, hospitals, shopping decommission equipment or Note. If the realignment would result in facilities, and recreation facilities); temporarily discontinue use of facilities more than a one for one replacement of assets • Alter a group’s use of land or other or equipment, such as: at an existing facility, then the checklist resources (e.g., sustenance fishing); or required for this CE must specifically address (1) Noise pollution monitors used in • Disproportionately have a high and whether such an increase in assets could adverse effect on a minority or low enforcement of the Noise Control Act of trigger the potential for significant impacts to income population. 1972. sensitive resources before use of the CE can (2) Radioactive material detectors be approved. Appendix 2—FMCSA Categorical used in enforcement of the Hazardous Exclusions (CE) Material Transportation Acts. 4. Data Gathering, Review of The following are actions that, unless (3) FMCSA-owned commercial motor Environmental Tests, Studies, Analyses consideration of the factors in Section vehicles used in the: and Reports, and Research Activities D.3.a. of Chapter 2 triggers the need to (A) Office of Enforcement and a. Data gathering, information conduct further analysis, are Program Delivery; gathering, and studies that involve no categorically excluded from further (B) Office of Research and detectable physical change to the analysis and documentation in an Technology; or environment. environmental assessment or (C) Commercial Vehicle platform of b. Research activities that are in environmental impact statement. These the Intelligent Vehicle Initiative. accordance with inter-agency categories of activities have been found This does not preclude the need to agreements and which are designed to by FMCSA to not have the potential to review decommissioning under Section improve or upgrade the FMCSA’s ability significantly affect the quality of the 106 of the National Historic to manage its resources. Examples of human environment, except when Preservation Act. these resources would include FMCSA’s ‘‘extraordinary circumstances’’ are e. Routine and permitted movement stored data, its assets, and its properties, involved. (Note: Where there is the of agency personnel and equipment, and including its Intelligent Transportation potential for extraordinary the routine movement, handling, and System/Commercial Vehicle Operation circumstances, an environmental distribution of non-hazardous and Technology Trucks and its Safety checklist must be completed to hazardous materials and wastes Trucks. determine whether the circumstances incidental to the routine and permitted c. Environmental studies undertaken warrant further analysis in an EA or EIS. movement of personnel and equipment to define the elements of a proposal or Ordinarily, documentation of a decision in accordance with applicable alternatives sufficiently so that the regarding the applicability of a regulations. Examples would include environmental effects may be assessed. categorical exclusion and the basis for moving personnel from the Boise, Idaho, d. Contracts for activities conducted that decision should be limited to the Division Office to the Pierre, South at established laboratories and facilities, space of one page. If more detailed Dakota, Division Office or moving the to include contractor-operated justification is considered necessary, the agency’s Intelligent Transportation laboratories and facilities, on FMCSA- decisionmaker should consider whether System/Commercial Vehicle Operation contracted property where all airborne an environmental assessment is a more Technology Truck working display from emissions, waterborne effluents, appropriate level of documentation.) McLean, Virginia, to an awareness external radiation levels, outdoor noise, training venue in Oak Ridge, Tennessee. and solid and bulk waste disposal 1. Administration f. Personnel and other administrative practices are in compliance with a. Preparation of guidance documents actions associated with consolidations, existing applicable Federal, State, and that implement decisions authorized by reorganizations, or reductions in force local laws and regulations. the applicable FMCSA’s Office of resulting from identified inefficiencies, e. Planning and technical studies that Business Operations Directive or other reduced personnel or funding levels, do not contain recommendations for Federal agency regulations, procedures, skill imbalances, or other similar causes. authorization or funding for future
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construction, but may recommend (4) Compliance reviews 4 authorized to operate and for each State further study. This includes engineering (5) Public education and awareness; traversed during such operations, and efforts or environmental studies and (3) Where such designations must be undertaken to define the elements of a (6) Data collection; and provide made. proposal or alternatives sufficiently so reimbursement for: j. Regulations implementing uniform that the environmental effects may be (A) Personnel expenses; Single-State registration procedures for assessed and does not exclude (B) Equipment and travel expenses; motor carriers registered with the consideration of environmental matters (C) Indirect expenses for: Secretary of Transportation. in the studies. (i) Facilities (not including fixed k. Regulations for all brokers 5 of scales, real property, land or buildings) transportation by motor vehicles that 5. Training used to conduct inspections or house describe the following activities: a. Simulated inspection exercises, enforcement personnel. Examples of (1) The duties and obligations of a including those involving small facilities would include a motor vehicle broker; numbers of personnel. trailer for inspection personnel to take (2) The records and accounts a broker b. Training of an administrative or cover while doing paperwork during a must keep; classroom nature. Examples would roadside inspection; (3) The type of brokerage service the include training to inspect a commercial (ii) Support staff; broker must perform; and motor vehicle brake system or to learn (iii) Equipment to the extent they are (4) The charges and compensation a more about NEPA and how to prepare measurable and recurring (e.g., rent, broker is entitled to receive. and develop environmental analyses for overhead, maintenance and minor l. Regulations requiring every motor Environmental Assessments (EAs) and improvements); carrier to issue and keep a receipt or bill Environmental Impact Statements (iv) Expenses related to data of lading (or record) for property (EISs). acquisition, storage, and analysis; and tendered for transportation in interstate 6. The Following Types of Regulations,2 (v) Clerical and administrative or foreign commerce containing such and Actions Covered by This Order expenses. information as: Taken Pursuant to Those Regulations g. Regulations implementing (1) What must be contained on the procedures to: receipt; and a. Regulations concerning Civil Rights (1) Promote adoption and (2) Who shall be given the original procedures and guidance. enforcement of State laws and freight bill and who shall be given a b. Regulations which are editorial or regulations pertaining to CMV safety copy, as well as how it can be procedural, such as, those updating that are compatible with the FMCSRs transmitted to the payer. addresses or establishing application and HMRs; m. Regulations implementing procedures, and procedures for acting (2) Provide guidelines for a procedures applicable to the operations on petitions for waivers, exemptions continuous regulatory review of State of household good carriers engaged in and reconsiderations, including laws and regulations; and the transportation of household goods,6 technical or other minor amendments to (3) Establish deadlines for States to for the following activities: existing FMCSA regulations. achieve compatibility with appropriate (1) The information that carriers must c. Regulations concerning internal parts of the FMCSRs and HMRs with give to prospective shippers prior to agency functions or organization or respect to interstate commerce. holding themselves out to perform such personnel administration, such as, h. Regulations implementing service; funding or delegating authority. (2) How carriers are to estimate the d. Regulations concerning the procedures to collect fees that will be charged for motor carrier registration shipping costs which the shippers will training, qualifying, licensing, be required to pay for these shipments; certifying, and managing of personnel. and insurance for the following activities: (3) How to determine the weight of e. Regulations concerning the shipments prior to assessing any applications for operating authority and (1) Application filings; (2) Records searches; and shipping charges; certificates of registration. (4) How to accept shipments and f. Regulations implementing the (3) Reviewing, copying, certifying and provides carrier notification of delay; following activities, whether performed related services. i. Regulations implementing (5) The liability of carriers; and by FMCSA or by States pursuant to the (6) How to file complaints. Motor Carrier Safety Assistance Program procedures for which motor carriers and brokers designate their agents (persons) (MCSAP), which provides financial 5 A ‘‘broker’’ is a person who, for compensation, assistance to States to reduce the for whom court process may be served, arranges, or offers to arrange, the transportation of number and severity of accidents and describing activities, such as: property by an authorized motor carrier. The broker hazardous materials incidents involving (1) The forms upon which the carrier has accepted the shipments and is legally bound to commercial motor vehicles (CMVs). can make the designations; transport them. (2) The eligible persons that can be 6 As defined in 49 U.S.C. 13102(10) and amended (1) Driver/vehicle inspections; by the Motor Carrier Safety Improvement Act of (2) Traffic enforcement; agents, and how carriers shall make the 1999 (Pub. L. 106–159, title II, Sec. 209(a), Dec. 9, (3) Safety audits; 3 designations in each State in which it is 1999, 113 Stat. 1764), the term ‘‘household goods’’ as used in connection with transportation, means 2 ‘‘Regulations’’ as used in this section includes 4 A ‘‘compliance review’’ is an on-site personal effects and property used or to be used in interpretative rules and guidance, policy examination of motor carrier operations (normally a dwelling, when a part of the equipment or supply statements, orders, and other similar agency at the carrier’s facility). An investigator can of such dwelling, and similar property if the actions. examine items, such as driver’s hours-of-service, transportation of such effects or property is— 3 A ‘‘safety audit’’ is an examination of motor maintenance and inspection, driver qualification, (A) arranged and paid for by the householder, carrier’s operations to provide educational and commercial driver’s license requirements, financial except such term does not include property moving technical assistance on safety and the operational responsibility, accident involvement, hazardous from a factory or store, other than property that the requirements of 49 CFR parts 100 through 178 and materials, and other safety and transportation householder has purchased with the intent to use parts 350 through 399) and to gather critical safety records to determine whether a motor carrier has in his or her dwelling and is transported at the data needed to make an assessment of the carrier’s systems, policies, programs, practices or procedures request of, and the transportation charges are paid safety performance and basic safety management to ensure compliance with the applicable Federal to the carrier by, the householder; or controls. safety regulations. (B) arranged and paid for by another party.
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n. Regulations that apply to actions by (B) Random, post accident, reasonable And, establish procedures for: motor carriers registered with the suspicion, return to duty and follow-up (1) Determining whether a State is in Secretary to transport property for the alcohol and controlled substances compliance with the rules of this part; following: testing procedures for employers and and (1) The leasing of equipment (e.g., a employees; (2) The consequences of State motor vehicle, straight truck, tractor, (C) Random testing rates, noncompliance. semi-trailer, full trailer, any (D) Requirements for drivers to report u. Regulations implementing rules of combination of these and any other type immediately to a specimen collection practice for motor carrier, broker, freight of equipment used by carriers in the site; and forwarder and hazardous materials transportation of property) with which (E) An action required by employers proceedings before the Assistant to perform transportation regulated by if an employee has a positive test result, Administrator/Chief Safety Officer, the Secretary; and recordkeeping. under applicable provisions of the (2) The interchange of equipment s. Regulations intended to help reduce Federal Motor Carrier Safety between motor common carriers in the or prevent truck and bus accidents, Regulations (49 CFR parts 350–399), performance of transportation regulated fatalities, and injuries by requiring including the commercial regulations by the Secretary; drivers to have a single commercial (49 CFR parts 360–379) and the (3) To provide written lease motor vehicle driver’s license and by Hazardous Materials Regulations (49 requirements for authorized carriers that disqualifying drivers who operate CFR parts 171–180) to determine do not own their transportation commercial motor vehicles in an unsafe whether: equipment; and manner and provide for: (1) A motor carrier, property broker, (4) To set forth requirements for (1) A prohibition against a freight forwarder, or its agents, carriers to obtain exemptions for lease commercial motor vehicle driver having employees, or any other person subject arrangements. more than one commercial motor to the jurisdiction of the FMCSA, has o. Regulations that apply to the vehicle driver’s license; failed to comply with the provisions or transportation by motor vehicle of (2) A requirement for drivers to notify requirements of applicable statutes and C.O.D. shipments by all common their current employer and State of the corresponding regulations; and, carriers of property subject to 49 U.S.C. domicile of certain convictions; (2) To issue an appropriate order to 13702, except such transportation (3) A requirement for drivers to compel compliance with the statute or which is auxiliary to or supplemental of provide previous employment regulation, assess a civil penalty, or both transportation by railroad and information when applying for if such violations are found. performed on railroad bills of lading, employment as an operator of a v. Regulations prescribing the and for such transportation that is commercial motor vehicle; minimum levels of financial performed by freight forwarders and on (4) A prohibition against an employer responsibility required to be maintained freight forwarder bills of lading for the allowing a person with a suspended by motor carriers of property and following activities: license to operate a commercial motor passengers operating motor vehicles in (1) Tariff filing requirements; vehicle; interstate, foreign, or intrastate (2) Extension of credit to shippers; (5) Periods of disqualification and commerce. (3) Presentation of freight bills; and penalties for those persons convicted of (4) Computing time for shipments. w. Regulations to enable States to certain criminal and other offenses and p. Regulations that govern the enter into cooperative agreements with processing of claims for overcharge, serious traffic violations, or subject to the FMCSA to enforce the safety laws duplicate payment, or over-collection any suspensions, revocations, or and regulations of a State and the for the transportation of property in cancellations of certain driving agency concerning motor carrier interstate commerce or foreign privileges; testing and licensing transportation by filing a written commerce by motor carriers for requirements for commercial motor acceptance of the terms. information concerning how to vehicle operators; x. Regulations implementing document and investigate claims, keep (6) A requirement for States to give procedures for the issuance, records, and dispose of claims. knowledge and skills tests to all amendment, revision and rescission of q. Regulations implementing record qualified applicants for commercial Federal motor carrier regulations (e.g., preservation procedures for motor drivers’ licenses which meet the Federal the establishment of procedural rules carriers, brokers, and household goods standard; and that would provide general guidance on freight forwarders, including record (7) Requirements for the State-issued how the agency manages its notice-and- types retained and retention periods. commercial license documentation. comment rulemaking proceedings, r. Regulations implementing employer t. Regulations to ensure that the States including the handling of petitions for controlled substances and alcohol use comply with the provisions of the rulemakings, waivers, exemptions, and and testing procedures designed to Commercial Motor Vehicle Safety Act of reconsiderations, and how it manages prevent accidents and injuries resulting 1986, by: delegations of authority to carry out from the misuse of alcohol or use of (1) Including the minimum standards certain rulemaking functions). controlled substances by drivers of for the actions States must take to be in y. Regulations implementing: commercial motor vehicles who: substantial compliance with each of the (1) Aiding or abetting prohibitions; (1) Operate a commercial motor statutory requirements of 49 U.S.C. (2) Motor carrier identification and vehicle (as defined in 49 CFR 382.107) 31311(a); and registration reports, including in commerce in any State; and (2) Having the appropriate laws, Performance and Registration (2) Are required by 49 CFR part 383 regulations, programs, policies, Information Systems Management to possess a commercial driver’s license procedures and information systems program registrations; (CDL). concerning the qualification and (3) Motor carrier and driver assistance (3) Examples of the topics covered licensing of persons who apply for a with routine accident investigations; include rules prescribing activities for: commercial driver’s license, and (4) Relief during regional and local (A) Pre-employment controlled persons who are issued a commercial emergencies, including tow trucks substances test requirements; driver’s license. responding to emergencies;
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(5) Locations where motor carriers, (2) Events that are located in, Considering Environmental Impacts drivers, brokers, and freight forwarders proximate to, or above an area (FMCSA Order 5610.1), since must store records; designated as environmentally sensitive implementation of this action will not (6) Requirements about motor carriers, by an environmental agency of the result in any of the following: drivers, brokers, and freight forwarders Federal, State, or local government and 1. Significant cumulative impacts on copies of records; and for which the FMCSA determines, based the human environment. (7) Prohibitions on motor carriers, on consultation with the Governmental 2. Substantial controversy or agents, officers, representatives, and agency, that the event will not substantial change to an existing employees from making fraudulent or significantly affect the environmentally environmental condition. intentionally false statements on any sensitive area. 3. Impacts that are more than minimal on properties protected under 4(f) of the application, certificate, report, or record, Appendix 3—FMCSA Regulations DOT Act as superseded by Pub. L. 97– including interstate motor carrier noise Typically Subject to an EA emission applications, certificates, 449, and Section 106 of the National reports, or records required by FMCSA. The following actions are typically Historic Preservation Act. z. Regulations establishing: subject to an environmental assessment: 4. Inconsistencies with any Federal, (1) The minimum qualifications for (1) Regulations addressing State, tribal, or local laws or persons who drive CMVs as, for, or on compliance with interstate motor carrier administrative determinations relating behalf of motor carriers; and noise emission standards. to the environment. (2) The minimum duties of motor (2) Regulations implementing Date carriers with respect to the procedures for motor carrier routing *Preparer/Environmental Project qualifications of their drivers. (commercial). Manager (as applicable) aa. Regulations requiring motor (3) Regulations addressing principles Title/Position carriers, their officers, drivers, agents, and practices for the investigation and Date representatives, and employees directly voluntary disposition of loss and Environmental Reviewer in control of CMVs to inspect, repair, damage claims and processing salvage Title/Position and provide maintenance for every CMV (i.e., disposition of damaged property). In reaching my decision/ used on a public road. (4) Regulations addressing recommendation on the FMCSA’s bb. Regulations concerning vehicle exemptions (not included in Appendix proposed action, I have considered the operation safety standards (e.g., 2), commercial zones, and terminal information contained in this CED (and regulations requiring: Certain motor areas. in any attached environmental carriers to use approved equipment (5) Regulations that apply exclusively checklists or other supplemental which is required to be installed such as to passenger carriers. environmental analyses) on the an ignition cut-off switch, or carried on (6) Regulations that apply to driving potential for environmental impacts. board, such as a fire extinguisher, and/ of commercial motor vehicles. (7) Regulations addressing parts and Date or stricter blood alcohol concentration Responsible Official (BAC) standards for drivers, etc.), accessories necessary for safe operation. (8) Regulations that apply to hours of Title/Position equipment approval, and/or equipment • service of drivers. The FMCSA preparer signs for carriage requirements (e.g. fire NEPA documents prepared in-house. extinguishers and flares). (9) Regulations that apply to transportation of hazardous materials, The FMCSA environmental project cc. Special local regulations issued in manager signs NEPA documents conjunction with a motor vehicle rodeo including driving and parking rules. (10) Regulations that apply to prepared by an applicant, a contractor, or motor vehicle parade; provided that, or another outside party. if a permit is required, the transportation of migrant workers. environmental analysis conducted for (11) Regulations that address Appendix 5—FMCSA Environmental the permit included an analysis of the employee safety and health standards Assessment Cover Sheet (not included in Appendix 2). impact of the regulations. Public Notice—All Interested Parties dd. Regulations concerning rules of Appendix 4—FMCSA Categorical Title of Document the road, traffic services, and marking of Exclusion Determination (CED) intelligent transportation systems. (Environmental Assessment) ‘‘Public Notice—All Interested Parties’’ Responsible Agency Names(s) 7. Recreational Activities and Events FMCSA Categorical Exclusion Title of Action a. Approval of recreational activities Determination for (Title of Proposed Location or events (such as an FMCSA picnic) at Project) Contact Name a location developed or created for that (Brief, concise description of the Address type of activity. location and the proposed action. Telephone/Fax/E-mail (as appropriate) b. Approvals of motor vehicle rodeo Should be only one or two paragraphs.) Abstract of the Document and motor vehicle parade event permits This action is not expected to result Date of Distribution for the following events: in any significant adverse Appendix 6—FMCSA Environmental (1) Events that are not located in, environmental impacts as described in Assessment (EA) proximate to, or above an area the National Environmental Policy Act designated environmentally sensitive by of 1969 (NEPA). The proposed action ‘‘Public Notice—All Interested Parties’’ an environmental agency of the Federal, has been thoroughly reviewed by the FMCSA’S Environmental Assessment State, or local government. For example, FMCSA, and the undersigned have for (Title of proposed action) environmentally sensitive areas may determined this action to be The FMCSA’s environmental include such areas as critical habitats or categorically excluded from further assessment (EA) was prepared in migration routes for endangered or environmental documentation, in accordance with FMCSA’s NEPA threatened species or important fish or accordance with FMCSA’s NEPA Implementing Procedures and Policy for shellfish nursery areas. Implementing Procedures and Policy for Considering Environmental Impacts
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(FMCSA Order 5610.1) and complies the future if the agency decides not to Appendix 7—FMCSA Finding of No with the National Environmental Policy implement its proposal. Significant Impact (FONSI) Act of 1969 (Pub.L. 91–190) and the ‘‘Public Notice—All Interested Parties’’ Council of Environmental Quality III. Description of the Environmental Regulations dated 28 November 1978 Impacts of the Proposed Action, FMCSA’S Finding of No Significant (40 CFR parts 1500–1508). including the Alternatives and No Impact for (Title of proposed action) This environmental assessment serves Action as a concise public document to briefly In accordance with the National The preparer of the EA would provide sufficient evidence and analysis Environmental Policy Act of 1969 describe the potential environmental for determining the need to prepare an (NEPA) (Pub. L. 91–190) and the environmental impact statement or a impacts for each alternative, including Council of Environmental Quality finding of no significant impact all proposed Action Alternatives and No Regulations dated 28 November 1978 (FONSI). This environmental Action, and all issues identified during (40 CFR parts 1500–1508), and FMCSA assessment concisely describes the scoping and any other issues that have Order 5610.1, this action has been proposed action, the need for the become apparent in the course of thoroughly reviewed by the FMCSA and proposal, the alternatives, and the analysis. The preparer of the EA may it has been determined, by the environmental impacts of the proposal examine the context(s) in which effects undersigned, that this project will have and alternatives. This environmental may occur, including the intensity of no significant impact on the human assessment also contains a comparative effects, using the Environmental environment. Therefore, no analysis of the action and alternatives, Checklist as an outline. The preparer Environmental Impact Statement (EIS) a statement of the environmental should also include mitigation measures will be prepared. significance of the preferred alternative, (avoidance, minimization, repair, This finding of no significant impact and a list of the agencies and persons rehabilitation, restoration, preservation, is based on the attached FMCSA consulted during EA preparation. and compensation) where they exist and prepared environmental assessment Date are adequate to reduce effects below (reference other environmental *Preparer/Environmental Project significance. documents as appropriate and if this Manager (as applicable) action is related to other projects) which Title/Position IV. Comments and Coordination has been determined to adequately and accurately discuss the environmental Date The preparer of the EA must include Environmental Reviewer issues and impacts of the proposed Title/Position a list of agencies, tribes, groups or action and provides sufficient evidence In reaching my decision/ individuals who commented during the and analysis for determining that an recommendation on the FMCSA’s preparation of the EA and who have environmental impact statement is not proposed action, I have considered the submitted comments to the notice of required. availability. A copy of each comment to information contained in this EA on the [Use the following language only if the notice of availability must be potential for environmental impacts. needed]: appended to the EA. A list (may be in Date The following environmental Responsible Official table format) of names, titles, agreements have been reached with Title/Position educational and experience background, agencies having jurisdiction by law or *The FMCSA preparer signs for NEPA and analyses or document sections for expertise on environmental issues: documents prepared in-house. The which each person who prepared, FMCSA environmental project manager reviewed, or who were consulted during (List any agreements reached during signs for NEPA documents prepared by the EA’s preparation. the environmental analysis for this EA.) an applicant, a contractor, or another V. Appendicies (if any), Including The following mitigation and outside party. monitoring measures will be References, Maps, Reports, etc., That implemented to ensure that the action Environmental Assessment (EA) Format Substantiate the EA Analysis will have no significant impact on the I. Purpose of and Need for Proposed VI. Section 4(f) Evaluation (49 U.S.C. quality of the human environment: Action 303) (if any) (List mitigation and monitoring The preparer of the EA will need to VII. Other Compliance Information (if measures agreed upon with others, or examine the objectives of the proposed any) established independently by FMCSA.) action, the problems to be resolved by the action, and the environmental issues The preparer of the EA must include Date raised by the action, if any, as any other environmental statutory Environmental Reviewer determined through scoping. evaluations completed, such as section Title/Position 6(f) of the Land and Water Conservation II. Description of the Proposed Action, I have considered the information Fund Act of 1965, section 106 of the No Action, and Alternatives contained in the EA, which is the basis National Historic Preservation Act, for this FONSI. Based on the Examine the size, location, nature of section 404 of the Clean Water Act, proposed action, tied to purpose and information in the EA and this FONSI section 7 of the Endangered Species Act, need above. Also examine the size, document, I agree that the proposed Clean Air Act 1990 (conformity), location, and nature of any alternative action as described above, and in the Executive Order 12898 and DOT Order actions that would meet the purpose EA, will have no significant impact on and need when required by section 5610.2 Environmental Justice the environment. assessments, 102(2)(E) of NEPA. A description of the Date No Action Alternative is also useful here, indicating the state of the Responsible Official environment as it exists today and in Title/Position
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Appendix 8—FMCSA Notice of Intent and need to which the agency is Appendix 11—FMCSA Notice of to Prepare An Environmental Impact responding in proposing the Availability of Environmental Impact Statement alternatives, including the ‘‘no action’’ Statement Public Notice—All Interested Parties alternative]. This Environmental Impact FMCSA’s Notice of Availability of Statement (EIS) examines the FMCSA’S Notice of Intent To Prepare (Draft/Supplemental/Final) EIS for environmental effects of: [List the (Title of Proposed Action) an Environmental Impact Statement environmental analyses that were made The Federal Motor Carrier Safety in the EIS (i.e., potential impacts on The Federal Motor Carrier Safety Administration (FMCSA) intends to natural resources, air quality, water Administration (FMCSA) has filed with prepare an Environmental Impact quality, endangered species, and the Environmental Protection Agency Statement on the following action and/ community, social, and cultural and made available to other or project: resources were examined, together with governmental and private bodies a (Draft / Supplemental / Final) Name of Action/Project the potential for the generation or release of toxic, hazardous, and Environmental Impact Statement on the Location of Action/Project following action/project: FMCSA Docket Number radioactive wastes).] Date of Publication: Name of Action/Project The proposed action/project will: Date Comments Must be Received: Location of Action/Project (Enter a brief description of the FMCSA Docket Number purpose and need for the project, and a (For DEIS/SEIS: Allow at least 45 Days description of the proposed action to from Date of Publication) This proposed action/project will: (Enter brief description of the purpose meet that purpose and need.) (For FEIS: Allow at least 30 Days from Alternatives to the proposed action Date of Publication) and need for the action, alternatives, plus no action, location of project, include: Appendix 10—FMCSA Environmental (Describe briefly any alternatives affected environment, etc.) Impact Statement (EIS) Copies of Draft/Final environmental identified that will meet the purpose Impact Statement are available from: and need for the project; include a ‘‘Public Notice All Interested Parties’’ description of the No Action FMCSA (State whether Draft, Name of Contact alternative.) Supplemental, or Final) Title Public scoping (if appropriate at this Environmental Impact Statement Address stage) will include: (Volume # / Total # of Volumes) Phone Number (Describe the scoping and public For (Title of action) (Fax and E-mail addresses, if appropriate) involvement plan for the EIS, including Document Number: any meetings, field trips, or other public Prepared By: (Responsible agency [For Draft EISs only, use the following events scheduled as part of scoping.) name(s) and contractor name, if language:] For further information: appropriate, or prepared by: contractor Council on Environmental Quality Name of Contact name for responsible agency name(s)) regulations provide for a 45-day review Title (Location). and comment period, which begins with Address Contact Information: (Name, address, the date of the Federal Register notice Phone Number telephone/fax/e-mail, as appropriate). of the availability of the Draft (Fax and E-mail addresses, if Abstract: (One-paragraph abstract of Environmental Impact Statement. That appropriate) the document). date is (insert date here); comments are Date of Publication: due to the FMCSA contact named above Appendix 9—FMCSA Environmental no later than (insert date here). Impact Statement Model Cover Sheet Date Comments Must Be Received: FMCSA Docket Number: Date FMCSA’S EIS Model Cover Sheet *Preparer/Environmental Project Format (For DEIS/SEIS: allow at least 45 Days from date of publication) Manager (as applicable) Public Notice—All Interested Parties (For FEIS: allow at least 30 Days from Title/Position Date FMCSA’S EIS Cover Sheet for (Title of date of publication) Environmental Reviewer Document/Volume #/Total # of Date Title/Position Volumes) * Preparer/Environmental Project Manager (as applicable) Date (Draft or Final Environmental Impact Title/Position Responsible FMCSA Official Statement) Title/Position Date or Environmental Reviewer (Supplemental Environmental Impact Appendix 12—FMCSA Record of Title/Position Statement) Decision FMCSA Docket Number In reaching my decision/ ‘‘Public Notice—All Interested Parties’’ recommendation on the FMCSA’s Responsible Agency Name(s) FMCSA Record of Decision Title of Action/Project proposed action, I have considered the FMCSA Docket Number information contained in this EIS on The FMCSA has published a Final Location environmental impacts. Environmental Impact Statement (FEIS) Contact Name(s) Date on the following project: Address Responsible FMCSA Official (Name of action/project) Telephone/Fax/E-mail (as appropriate) Title/Position (Location of action/project) [Add one paragraph abstract of the * The FMCSA preparer signs for EISs (FMCSA Docket Number) Document] prepared in-house. The FMCSA (Describe each of the following The Federal Motor Carrier Safety environmental project manager signs for topics:) Administration (FMCSA) [enter a brief EISs prepared by an applicant, a The purpose and need for the action/ description of the underlying purpose contractor, or another outside party. project was:
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Alternatives examined included: 4. Section 4(f) lands include any State, local, or tribal significance as Environmental consequences of the publicly owned land from a park, determined by the officials having action/project include: recreation area, or wildlife or waterfowl jurisdiction over the land. The 4(f) The decision is: refuge, or any land from an historic lands’ significance must be determined The environmentally preferable (including archaeological) site. as one entity and not be divided into alternative(s) is (are): a. Publicly Owned land—Any land significant and non-significant parcels. I (selected/did not select) the owned in fee simple or land subject to g. Enhancement of the 4(f) lands by environmentally preferable alternative public easement or other interest in the the proposed project is also immaterial; because: land by a Federal, State, or local agency the Secretary must still approve the use The following are the economic, or entity. of the land. technical, FMCSA statutory mission, b. Historic Site—For the purposes of h. Also included are former 4(f) lands, national policy considerations (as Section 4(f), an historic site is if the transfer of ownership or the applicable) that were weighed in significant only if it is on or eligible for change in use was to avoid a Section 4(f) reaching my decision: (Explain how inclusion on the National Register of issue. these considerations, as applicable, Historic Places, or if the FMCSA or the i. ’’Use of land’’ under Section 4(f) entered into the decisionmaking DOT lead Federal agency determines generally means the acquisition of title process.) that the application of Section 4(f) is to or an easement in land for a All practicable means of avoiding or appropriate. Consultation with the State transportation program or project. In minimizing environmental harm from Historic Preservation Officer (SHPO) unusual circumstances, serious adverse the selected alternative(s) were/were not and the Keeper of the Register (DOI) is impacts such as severe increases in adopted because: required to identify such properties, noise or air pollution, or access The following mitigation, monitoring, unless the FMCSA official and the disruption may constitute a and enforcement has been adopted (if SHPO have agreed that the property ‘‘constructive use,’’ even where no applicable): does not meet the eligibility criteria, acquisition is involved, and Section 4(f) In reaching my decision/ then the Keeper of the Register need not would apply. recommendation on the FMCSA’s be consulted for a determination. j. Facilities (e.g., roadside rest areas) proposed action, I have considered the c. Archaeological Site—Section 4(f) located on 4(f) lands and provided by information contained in the above- generally applies to archaeological sites the transportation agency solely for the mentioned FEIS on the potential for on or eligible for the National Register. use by the users of the transportation environmental impacts. If the SHPO concurs in a FMCSA facility will not normally be subject to Date determination that a data recovery Section 4(f). Responsible FMCSA Official program will negate ‘‘an adverse’’ effect k. Projects (e.g., pedestrian, bicycle or Title/Position to an archaeological property on or equestrian bridges) that require the use Appendix 13—Form and Content of 4(f) eligible for the National Register, of 4(f) lands for recreation purposes will Statements Section 4(f) does not normally apply. not normally be subject to Section 4(f). (See the Advisory Council Historic 5. The language of Section 4(f) and Form and Content of 4(f) Statements Preservation Handbook: Treatment of subsequent legal interpretations clearly 1. These instructions are to Archaeological Properties, November indicate the need for a rigorous 4(f) supplement the 4(f) requirements of 26, 1980, Part II, Section X.) statement to accompany any FMCSA Attachment 2 to DOT Order 5610.1C. d. Multiple-Use Lands—Where project using lands under the protection 2. Section 4(f) of the Department of Federal lands or other large public land of this statute. The 4(f) statement should Transportation Act states that special holdings are managed for multiple uses include the information discussed in the effort should be made to preserve the under a statute authorizing such following paragraphs. natural beauty of the countryside, management, Section 4(f) applies only 6. A comprehensive description of the public parks, and recreation lands, to portions of multiple-use lands that 4(f) lands affected or taken by the wildlife and waterfowl refuges, and are used for or are designated as being project should be presented. historic sites. Section 4(f) further states for public park, recreation, wildlife or a. The type and amount of lands that the Secretary of Transportation waterfowl refuge, or historic purposes. required by the project should be (Secretary) shall not approve any The official having jurisdiction over the indicated. This should include the program or project which requires the land (see paragraph 7) determines its acreage needed for permanent surface use of 4(f) lands (see paragraph 4.) significance. easements, aerial easements, unless: e. Temporary 4(f)—Type Use of underground easements, drainage and a. There is no feasible and prudent Acquired (Non-4(f)) Lands—This use utility easements, etc., as well as that alternative to the use of such lands, and; shall not be subject to 4(f) actions if: needed for temporary construction b. Such program includes all possible (1) The land was not previously used easements. planning to minimize harm to 4(f) lands for parks, recreation, wildlife or b. The existing 4(f) lands should be resulting from such use. waterfowl refuge purposes or was not described including ownership, 3. Subsequent legal decisions have listed on or eligible for the National administrative jurisdiction, location, indicated that the protection of Register before acquisition by the size, available recreational facilities, parklands and other 4(f) areas is of transportation agency; and use, patronage, unique or irreplaceable paramount importance; that such lands (2) The lease, permit, or license qualities present, type of vegetation or are not to be lost unless there are truly clearly states that the use is temporary landscaping, type of wildlife (including unusual factors present, or unless the (time period specified or subject to the resident and migratory species), cost or community disruption resulting transportation agency owning the land) historical or cultural (including from alternatives reaches extraordinary and that after that period the architectural or artistic) significance, magnitudes; and that the Secretary transportation use will commence. etc. cannot approve the destruction of f. The amount of land taken or c. The relationship of the 4(f) lands to parkland unless alternatives present affected is immaterial; the law clearly other similarly used lands near the unique problems. refers to any 4(f) lands having Federal, project should be clearly indicated.
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d. Adverse impacts of the project on b. The FMCSA must critically b. All planning undertaken to 4(f) lands should be discussed. This examine the project as a whole and its minimize harm to 4(f) lands should be discussion should pay particular relation to nearby 4(f) lands to described in detail. A statement of attention to the special nature of 4(f) determine if the applicant has actions taken, or to be taken, to lands and should include detailed considered all reasonable alternatives to implement this planning should also be information concerning the effect of the avoid or minimize the use of these included, along with an estimated project on natural views, local historical lands, including the ‘‘status quo’’ or ‘‘do schedule showing when this values, pedestrian and other access, nothing’’ alternative. implementation will take place. recreational use, vegetation, wildlife, c. In order to evaluate the feasibility c. Measures to minimize harm should etc. Care should be taken to include a and prudence of the alternatives, include, but not be limited to, the rigorous analysis of aesthetic, air, water, rigorous and detailed information must following: and noise pollution on 4(f) lands near be presented for each one. If the (1) The replacement of land and and adjacent to the project. If these alternatives are determined not to be facilities, or the provision of impacts are insignificant, the reasons for feasible and prudent, this information compensation adequate for the this determination should be given in should include evidence that they functional replacement of land and detail. present truly unique and unusual facilities. e. Secondary impacts of the project on technical problems or that they will (2) Measures to reduce visual involved 4(f) lands should also be result in costs or community intrusion and related aesthetic impacts, discussed, as these can often be of a disruptions that reach extraordinary such as landscape screenings, greater magnitude than direct primary magnitudes. (See Citizens to Preserve appropriate architectural design, etc. impacts. Such a discussion should Overton Park v. Volpe, 401 U.S. 402 (2 (3) Measures to reduce noise impacts, include possible change in nearby land ERC 1250) (1971)). such as sound barriers, etc. (4) Measures to reduce construction values that could lead to private d. Evidence supporting determination impacts, such as control of drainage and development in the area which would on feasibility and prudence should erosion, proper disposal of spoil reduce the natural beauty or scenic include, but not be limited to: material, protection of trees and other qualities of the 4(f) lands, increased (1) A description of each alternative, vegetation, control of temporary air and access which may lead to excessive including a discussion of the type and noise pollution, maintenance of patronage and overuse of the lands, etc. amount of land required (especially vehicular and pedestrian access during f. General statements made in the through 4(f) lands), maps, plans, construction, etc. above discussions and descriptions elevations, or other graphics, sufficient (5) Measures to enhance the natural should be supported by numerical data. to assess potential impacts of the beauty of the lands traversed, such as In addition, maps, plans, elevations, alternative. the provision of more usable landscaped pictorial drawings, photographs (2) A cost estimate for each open space in congested urban areas, (including aerial photographs), or other alternative, including figures showing etc. graphics should be presented which percentage differences in total costs for 10. Evidence of concurrence, or a show the affected 4(f) lands and their the various alternatives (including the description of efforts to obtain relationship to the proposed project. proposed project). concurrence of officials having These graphics should be of sufficient (3) A discussion of the environmental jurisdiction over Section 4(f) lands scale and detail to allow an analysis of and community impacts of each regarding the proposed action and the use to be made. alternative, including figures showing measures planned to minimize harm 7. A statement of the tribal, local, the number of people displaced, the should be presented. Evidence of State, or national significance of the 4(f) number of homes or businesses consultation with grantor agencies, lands should be presented. This removed, the degree of air and noise where land acquired with Federal grant statement should come from the pollution caused by the alternative, and money is involved, should also be officials having jurisdiction over the other numerical data that will allow a presented. Concurrence of these officials lands when at all possible, and should proper evaluation of the magnitude of to the proposed project, however, does address the significance of the entire the impacts to be made, if appropriate. not remove the necessity for the area involved, and the actual land (4) An assessment of the technical or preparation of a detailed and rigorous affected or taken by the project. When engineering feasibility of each 4(f) statement. such a statement cannot be obtained alternative, which includes full 11. Approval of the 4(f) statement in from the officials having jurisdiction, consideration of new or innovative accordance with FMCSA’s NEPA the lands will be presumed to be construction techniques. Implementing Procedures and Policy for significant. Any statement of 9. If there is no feasible and prudent Considering Environmental Impacts insignificance from whatever source is alternative to the use of 4(f) lands by the (FMCSA Order 5610.1) shall be subject to review by the FMCSA for proposed project, then a description of accomplished by having the proper bias. measures to minimize harm to the approving official sign a 4(f) 8. A complete description of all protected area should be presented. The determination approval statement. This alternatives and their impacts that were Secretary cannot approve a project approval page shall contain the considered in order to avoid effects on, unless it includes all possible planning following paragraph: or the taking of, 4(f) lands should be to minimize harm to the involved 4(f) ‘‘Based on this 4(f) statement, I have presented. The Secretary cannot lands. determined that there is no feasible and approve a project unless there is no a. The FMCSA must examine the prudent alternative to the use of this 4(f) feasible and prudent alternative to the relationship of the proposed project to land(s) and that all possible planning to use of involved 4(f) lands. the affected 4(f) lands and determine minimize harm to this land(s) has been a. Alternatives considered should be whether all possible measures to accomplished.’’ sincere attempts to avoid or reduce minimize harm were considered; it The dated approval page must be impacts on 4(f) lands and not those should ensure that the statement treated inserted as the first page inside the contrived to satisfy the letter of the law. alternative designs, sites and/or routes. cover of the final document.
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12. Section 4(f) statements should be coordination with the Office of the the general conformity rule (see CAA— made a part of, and be supported by, Secretary of Transportation (OST) and General Conformity Requirements data within Environmental Impact the Environmental Protection Agency section). Statements, or FMCSA Supplementary (EPA). Statements, whenever such are prepared Two primary laws apply to air Requirements as part of a project, e.g., whenever the quality: The National Environmental National Environmental Policy Act use of or effect on the 4(f) lands will Policy Act of 1969 (42 U.S.C. 4321– ‘‘significantly affect the quality of the 4347), and the Clean Air Act as The requirements for air quality human environment.’’ amended (CAA) (42 U.S.C. 7401 et seq.). analysis under NEPA are distinct from a. When incorporating a 4(f) statement NEPA and its implementing regulations those of the general conformity rule of into an EIS as required by FMCSA’s (40 CFR Parts 1500–1508) and the CAA. However, the NEPA document NEPA Implementing Procedures and guidelines establish broad Federal should reflect findings of a conformity Policy for Considering Environmental policies and goals for the protection of analysis. When a NEPA analysis is Impacts (FMCSA Order 5610.1), one of the environment and provide a needed, the impacts of the alternatives two methods for presentation of the 4(f) framework for balancing the need for on air quality are assessed by evaluating information may be used. The 4(f) environmental quality with other the alternatives against the NAAQS. The statement may be presented as a essential societal functions, including proposed action’s emissions are complete separate section of the EIS or national defense. the 4(f) information may be analyzed for each reasonable alternative, The CAA established National including the no action alternative. The incorporated throughout the text of the Ambient Air Quality Standards analysis should include direct EIS. (NAAQS) for six pollutants, termed emissions as well as indirect emissions b. When the 4(f) statement is criteria pollutants. The six pollutants presented as a complete separate section are: Carbon monoxide (CO), lead (Pb), that are reasonably foreseeable. For purposes of quantitatively evaluating of an EIS, that section must contain the nitrogen dioxide (NO2), ozone (O3), detailed analysis of issues, alternatives, particulates (PM–10 and PM–2.5), and health impacts under NEPA, provide all estimated criteria air pollutant and mitigation measures to be sulfur dioxide (SO2). The CAA requires implemented. A 4(f) statement each State to adopt a plan to achieve the concentrations, e.g., 1—or 8-hour presented in this manner shall be NAAQS for each pollutant within average concentrations for ozone. written in sufficient detail to allow the timeframes established under the CAA. In most cases, further analysis would 4(f) section to stand independent of the These air quality plans, known as State not be required for areas that are in EIS. implementation plans (SIP), are subject attainment with the NAAQS for criteria c. When the 4(f) information is to Environmental Protection Agency pollutants. However, based on the incorporated throughout the text of an (EPA) approval. In default of an nature of the proposed action, EIS a summary of findings of the 4(f) approved SIP, the EPA is required to investigation shall be presented in an additional analysis may be appropriate. promulgate a Federal implementation The methodologies and scope of these appropriate section of the EIS. This plan (FIP). summary should concisely describe the analyses should be determined through Every effort should be made to reflect consultation with Federal, State, and 4(f) issue and direct the reader to information necessary to address any local air quality agencies. quickly locate detailed information applicable State and local air quality needed to rigorously evaluate the 4(f) requirements in the NEPA document. Categorical Exclusions (CEs) issue. These requirements can include, but d. When a 4(f) statement is are not limited to, provisions such as Typically, actions that are incorporated throughout the text of an State indirect source regulations and categorically excluded under this Order EIS, the front cover of the EIS shall State air quality standards would have no effect or a de minimus clearly indicate that the document is an effect on air quality and would not Environmental Impact/Section 4(f) FMCSA Responsibilities result in more than a de minimus Statement. National Environmental Policy Act increase in emissions from commercial e. When the 4(f) statement is motor vehicle (CMV) activity. As such, incorporated throughout the text of an FMCSA has a responsibility under an air quality analysis is generally not EIS, the requirement of paragraph 11 of NEPA to include in its EA or EIS necessary. If there is some question as this appendix shall be combined with sufficient analysis to disclose the the EIS approval page. potential impacts of a proposed action, to whether a particular project normally 13. Some uses of 4(f) lands will only including whether the action would processed as a CE would have the minimally affect the 4(f) land. In such affect an area’s attainment and potential for a significant air quality instances, the 4(f) statement shall be an maintenance of air quality standards impact, the screening criteria listed in independent document accompanied by established by the Clean Air Act. the analysis section of this appendix can be used to determine whether further a Finding of No Significant Impact Clean Air Act (FONSI) or Categorical Exclusion analysis is needed. If the screening Determination Statement. It is FMCSA’s affirmative analysis shows that the proposed action responsibility under Section 176(c) of has the potential to substantially Appendix 14—Air Quality Analysis the CAA to assure that its actions that increase emissions from CMV activity, a This appendix offers guidance on how are covered by the general conformity national-level analysis should be to determine the appropriate level of air requirements conform to applicable SIPs conducted to develop an estimate of quality analysis for Federal Motor in nonattainment and maintenance emissions associated with the proposed Carrier Safety Administration (FMCSA) areas. Before FMCSA can fund or action (see Analysis section), and if actions subject to environmental review. support in any manner an activity, it appropriate, the results should be Where projects are of greater scope than must address the conformity of the documented in an environmental characteristic FMCSA actions, these action with the applicable SIP using the assessment. actions should be developed in criteria and procedures prescribed in
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Environmental Assessment (EA)/ appropriate FIP or SIP. A final rule for proposed Federal agency action are not Finding of No Significant Impact determining conformity of general reasonably foreseeable; if the emissions (FONSI) Federal agency actions (40 CFR part 93, caused by the proposed Federal agency NEPA and the CAA Amendments of subpart B) was published in the Federal action cannot practicably be controlled 1990 have separate requirements and Register (FR) on November 30, 1993, and maintained by the Federal agency processes; however, their steps can be and became effective January 31, 1994. through its continuing program integrated and combined for efficiency, In addition, 40 CFR part 51, subpart W responsibility; if the action is listed as specifies requirements for conformity and results of conformity analysis exempt or presumed to conform; or if which States must include in their should be reflected in environmental the action is below the emission respective SIPs. EPA published separate documents. Also, an air quality analysis threshold (de minimis) levels (40 CFR rules addressing conformity of highway, can require the coordination of many 93.153). roadway, and transit plans and projects different agencies. Such coordination (40 CFR part 93, subpart A, and 40 CFR Exemptions and subsequent analysis takes time; part 51, subpart T) on November 24, Certain Federal actions are exempt therefore, air quality impacts should be 1993 and several subsequent from the requirement of the general addressed as early as practicable when amendments. The remaining conformity conformity rule because they result in preparing an EA. discussion addresses only general no emissions or emissions are clearly The preparation of an EA/FONSI may conformity since FMCSA actions are below the rule’s applicability emission not require substantial analytical subject to this rule. threshold levels. These include, but are backup. Such a judgment could be The general conformity rule not limited to: based on the screening criteria, previous establishes the procedures and criteria (i) Judicial and legislative analyses for similar Federal agency for determining whether certain Federal proceedings; actions or previous general analyses for agency actions conform to State or (ii) Continuing and recurring various classes of projects that are Federal air quality implementation activities such as permit renewals where current. In general, a simplified national plans. To determine whether conformity activities conducted will be similar in analysis procedure should be adequate requirements apply to a proposed scope and operation to activities for most Federal agency actions Federal agency action, the following currently being conducted; processed with an EA/FONSI (see must be considered: the nonattainment (iii) Rulemaking and policy Analysis Section). If the analysis shows or maintenance status of the area; the development and issuance; that the proposed action will not create project’s emission levels; exemptions (iv) Routine maintenance and repair a new violation or exacerbate an from conformity and presumptions to activities, including repair and existing violation, the proposed action conform; and the regional significance maintenance of administrative sites, will normally lead to a FONSI. (discussed below) of the project’s roads, trails, and facilities; Clean Air Act—General Conformity emissions. The procedures for assessing (v) Civil and criminal enforcement Requirements conformity for FMCSA actions are activities, such as investigations, audits, presented in the analysis section of this inspections, examinations, Section 176(c) of the CAA, as appendix. prosecutions, and the training of law amended in 1990, requires that Federal The general conformity rule only enforcement personnel; agency actions conform to the applies in areas that EPA has designated (vi) Administrative actions such as appropriate Federal or State air quality nonattainment or maintenance. A personnel actions, organizational implementation plans (FIPs or SIPs) in nonattainment area is any geographic changes, debt management or order to attain the CAA’s air quality area of the U.S. that experiences a collections, cash management, internal goals. Section 176(c) states: violation of one or more NAAQS and is agency audits, program budget ‘‘No department, agency, or designated as nonattainment by EPA. A proposals, and matters relating to the instrumentality of the Federal maintenance area is any geographic area administration and collection of taxes, Government shall engage in, support in of the U.S. previously designated duties, and fees; any way or provide financial assistance nonattainment for a criteria pollutant (vii) The routine, recurring for, license or permit, or approve, any pursuant to the CAA Amendments of transportation of material and activity which does not conform to an 1990 and subsequently re-designated to personnel; implementation plan.’’ attainment. A list of all areas designated (viii) The granting of leases, licenses General conformity is defined as as nonattainment or maintenance areas such as for exports and trade, permits, conformity to the implementation plan’s is maintained in 40 CFR part 81 and easements where activities purpose of eliminating or reducing the (commonly known as the Green Book) conducted will be similar in scope and severity and number of violations of the by the EPA Office of Air Quality operation to activities currently being NAAQS and achieving expeditious Planning and Standards (OAQPS) on conducted; or attainment of such standards, and that their Web site. This serves as the official (ix) Research, investigations, studies, such Federal agency activities will not: register of all nonattainment and demonstrations, or training where no (1) Cause or contribute to any new maintenance areas. environmental detriment is incurred; violation of any standard in any area. The general conformity rule covers A complete list of all actions that (2) Increase the frequency or severity direct emissions of criteria pollutants or would result in no emissions increase or of any existing violation of any standard their precursors from Federal agency an increase in emissions that is clearly in any area. actions, as well as indirect emissions de minimis can be found at 40 CFR (3) Delay timely attainment of any that are reasonably foreseeable, and can 93.153(c)(2) and 93.153(d). standard or any required interim practicably be controlled and The general conformity rule (58 FR emission reductions or other milestones maintained by the Federal agency 63250, November 30, 1993) includes a in any area. through continuing program provision that permits agencies to The CAA 1990 amendments required responsibility. develop a list of actions presumed to the EPA to issue rules that would ensure A conformity determination is not conform which would be exempt from Federal agency actions conform to required if the emissions caused by the the requirements of the rule unless
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regionally significant. To date, FMCSA The general conformity analysis elements of CMV traffic presented in does not have a list of actions that are should be reflected in the air quality these criteria would have air quality presumed to conform. Notification of analysis section of the NEPA document. impacts that are clearly de minimis and such a list and the basis for the As a matter of practice, the general no further air quality analysis is presumption of conformity would be conformity analysis should be required. published in the Federal Register in the performed concurrently with the NEPA Increase in CMV mileage future. For those actions that are not document. The draft and final exempt from the general conformity conformity determinations may be Would the proposed action result in requirements, FMCSA must conduct a provided as an appendix or separate an overall increase in CMV mileage? An screening process to determine if the volume of the NEPA documents or increase in the number of miles traveled proposed action has the potential to incorporated into the body of the NEPA could result in an increase in overall generate emissions in excess of the de document. emissions. minimis thresholds (see Analysis Analysis Routing section). When the analysis indicates Would the proposed action result in Analysis potentially significant air quality a geographical shift of CMV operations impacts, it may be necessary to consult General Procedures at the regional level? For example, if the further with State or local air quality proposed action were to shift CMV In the preparation of the air quality agencies and/or with EPA. It also is travel to different interstates, a region section of the NEPA document, FMCSA advisable to include such officials in the may experience an increase in CMV must present the results of the air EIS scoping process to represent mileage, although the number of miles agencies with air quality expertise. quality analysis for all analyzed traveled nation-wide may not increase. alternatives. The scope of the air quality These officials will help identify analysis must be designed so that it specific analyses needed, alternatives to Operation be considered, and/or mitigation provides a comparison of alternatives Would the proposed action result in measures to be incorporated into the with regard to the air quality standards a change in how CMVs are operated? action. set forth in the CAA. If the results of the For example, would idling times be analysis determine that the proposed Evaluation Criteria increased or would speeds be restricted action would result in emissions below Figure 1 contains a flow chart that during operation. These changes in de minimis levels, no conformity describes the evaluation criteria and operation could result in an increase in determination is required. However, if procedure to help determine if a overall emissions. the air quality analysis determines the conformity determination is required. If proposed action would result in Fleet Mix a proposed action is not exempt from emissions above de minimis levels, the general conformity requirements, Would the proposed action result in FMCSA must perform a conformity the potential for the proposed action to a shift in the mixture of CMVs in any analysis and determination. generate direct or indirect emissions in regional fleet? The use of different types The conformity review and excess of the de minimis thresholds of CMVs, vehicles of different ages, or determination does not address how must be evaluated. vehicles with different maintenance emissions of pollutant(s) of concern The potential for a proposed action to regimes should be considered changes affect human or ecological receptors. generate emissions in excess of the de in the fleet mix. Emissions from CMVs However, completion of the conformity minimis thresholds in a nonattainment can vary substantially and changes in analysis would provide the necessary or maintenance area can be determined the fleet mix may result in changes in data to evaluate the effects on these using the following evaluation criteria. the amount of emissions from the fleet. receptors. Actions that would not modify the BILLING CODE 4910–EX–P
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BILLING CODE 4910–EX–C listed above must be assessed using the National Analysis Methodology Emissions from FMCSA proposed methodology described below. actions that would have the potential to For FMCSA actions with the potential modify the elements of CMV operation to increase emissions that impact CMV activity uniformly nation-wide,
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emissions should be calculated at the determining whether emission revision or a planned SIP revision to national scale. These nation-wide threshold levels are exceeded. which the State has committed; that the estimates of emissions can then be If a Federal agency action does not action is specifically included in a assigned to each nonattainment area in exceed the threshold levels or is transportation plan and transportation proportion to the national level of CMV presumed to conform, the action may improvement program found to conform activity. Estimates of potential nation- still be subject to a general conformity under the Transportation Conformity wide emission increases should be determination if it has regional rule; or that enforceable mitigation developed using EPA-approved models significance. If the total of direct and measures will fully offset the emissions unless otherwise approved by the EPA indirect emissions of any pollutant from increases. (40 CFR 51.859(c)). In accordance with a Federal agency action represent ten Documentation for a conformity CEQ NEPA guidelines (40 CFR 1500– percent or more of a maintenance or determination must: 1508), this simplified analysis would nonattainment area’s total emissions of • Briefly describe how the conformity allow FMCSA to determine the scope of that pollutant, the action is considered determination criteria would be met; the potential emission increase without to be a regionally significant activity • Summarize how any conformity the need for excess paperwork and and conformity rules apply. Parts of the analysis was conducted based on the delay. overall Federal agency action that are latest local or area-wide planning If the project’s emissions are below exempt from conformity requirements assumptions (e.g., employment, annual threshold levels (de minimis (e.g., emission sources covered by New population, travel, and congestion); levels) and are not regionally Source Review (CAA Section 111)) • Summarize the methodology for significant, then the requirements of the should not be included in the analysis. calculating emissions of the pollutant(s) general conformity regulation do not The purpose of the regionally significant of concern; apply to the Federal agency action or requirement is to capture those Federal • Briefly describe the methodology project (and therefore, a conformity agency actions that fall below threshold (including assumptions and input data) determination is not required). If the levels, but have the potential to impact for air quality modeling (for use in potential emission increase from the the air quality of a region. NEPA air quality section); proposed action is greater than the de The conformity analysis would be • Briefly describe any mitigation minimis threshold in a nonattainment conducted on the proposed action and measures or offsets needed to fully area or maintenance area, then the would show whether the conformity offset the project’s emissions and to agency must prepare a conformity requirements would apply and explain demonstrate conformity; and determination based on analysis using the basis for the conclusion, including • Briefly describe the process for if and how the following were used: criteria stated in EPA’s General • implementing and enforcing the Conformity Rule (40 CFR parts 51 and Criteria pollutant(s) or precursors mitigation measures or offsets. 93). expected to be emitted, if any; In addition, the comparison of the • Emissions of pollutants of concern proposed action with regard to Conformity Determination occurring in a nonattainment or conformity is required to show how the In determining whether emission maintenance area; • Whether the alternative is exempt action would conform to the applicable threshold levels are exceeded, and that from the CAA conformity requirements; implementation plan, and to the extent a conformity determination is required, • Emissions estimates for pollutant(s) known, any mitigation measures or agencies must consider direct and of concern, if needed. offsets needed to demonstrate indirect emissions. Direct emissions are For purposes of demonstrating conformity. If mitigation measures are those that are caused by or initiated by conformity, present emission estimates, necessary, they would be determined on the Federal agency action and occur at i.e., tons per year, of only the a project-by-project basis. the same time and place as the action. pollutant(s) of concern. The CAA A proposed action cannot be Indirect emissions are those caused by General Conformity rule (40 CFR approved or initiated unless conformity the Federal agency action, but that occur 93.159) requires that emissions does not apply or a positive conformity later in time and/or may be removed in estimates use the latest planning determination is issued (i.e., the action distance from the action. Temporary assumption, the most accurate conforms to the SIP). If initial analysis construction emissions must be estimation techniques, current models, does not indicate a positive conformity considered in determining whether and the latest emission factors. Section determination, alternative actions emission threshold levels are exceeded. 93.159(d)) requires emissions estimates (including mitigation measures as part The general conformity rule adopted for: of the action) should be considered and a definition of indirect emissions, which • The mandated attainment year in further consultation, analysis, and excludes emissions that may be the CAA, or the farthest year in which documentation will be necessary. attributable to the Federal agency emissions re specified in the If a proposed action is modified after action, but that the Federal agency has maintenance plan, if applicable; the project has been determined to be no authority to control. In addition to • The year during which the total of below de minimis levels, all emissions assessing direct emissions, FMCSA is direct and indirect emission from the from the proposed action must be responsible for assessing indirect action is expected to be the greatest on reevaluated against the de minimis emissions of criteria pollutants and an annual basis; thresholds to determine if a conformity precursors that are caused by a Federal • Any year for which the applicable determination is necessary. In a Record agency action, are reasonably SIP specifies an emissions budget. The of Decision (ROD) or Finding of No foreseeable, and can practicably be general conformity rule, in § 93.158, Significant Impact (FONSI), briefly controlled by FMCSA through its provides options for demonstrating describe any conformity continuing program responsibility. conformity. Options include showing determination(s). In a ROD, include any FMCSA may compare emissions with that the emissions resulting from the commitments to implement mitigation and without the proposed Federal action are specifically accounted for in measures or offsets needed to achieve agency action during the year in which the SIP or in a SIP budget; that the conformity with the applicable emissions are projected to be greatest in emissions are accounted for in a SIP implementation plan, and reference the
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preparation of a NEPA mitigation action B. Final EISs 1. Federal agencies such as: • plan. • All of the above, plus U.S. Department of Interior, If FMCSA has not made a needed • Any person, organization, or agency including final conformity determination at the • National Park Service that submitted substantive comments • time a final NEPA document is issued, on the draft EIS Fish and Wildlife Service (with issue the final conformity determination appropriate documentation for concurrent with the ROD, and in C. Supplemental EISs coordination under the Endangered addition to describing the final • All of the above (A. and B.) Species Act) conformity determination, provide • U.S. Department of Justice responses to public comments on the D. Notice of NEPA-Related Hearings, • U.S. Department of Commerce draft determination. If a modification to Meetings, and Documents • U.S. Department of Health and the proposed action occurs after the • Federal Register Human Services final conformity determination has been • FMCSA Docket assigned to the project • U.S. Department of Housing and issued, any increase in emissions must • FMCSA’s Office of Communications Urban Development be below the de minimis levels or a new (MC–CM) • U.S. Army Corps of Engineers (with determination will be necessary. • Local newspapers of general any permit application under Once the final conformity circulation Section 404 of the Clean Water Act determination is issued, FMCSA must • Newsletters (of the agency or other or Section 10 of the Rivers and complete the action in five years, unless organizations) Harbors Act) a continuous program to implement the • Those who requested a hearing or • Advisory Council on Historic action is in place. Otherwise, a new meeting or requested notices to the Preservation (with appropriate conformity determination is required. individual action (40 CFR determination under Section 106 of 1506.6(b)(1)) the National Historic Preservation Appendix 15—Distribution of • National organizations reasonably Act) Environmental Impact Statements expected to be interested in the matter • Federal Emergency Management Distribution of Environmental Impact or who have requested notice Agency (with appropriate Statements regularly be provided (40 CFR determination under Executive CEQ regulations require distribution 1506.6(b)(2)) Order 11988) to the following: • Potentially interested community • U.S. Geological Survey organizations including small • U.S. Small Business Administration A. Draft EISs business associations (40 CFR 2. State agencies such as: • Other agencies with jurisdiction by 1506.6(b)(3)(vi)) • State Environmental Protection law or special expertise with respect to • Owners and occupants of nearby or Agency, Environmental Quality the environmental impacts involved or affected property (40 CFR Department, or Pollution Control that are authorized to develop and 1506.6(b)(3)(viii)) Agency enforce environmental standards • State Attorney(s) General Distribution to Any or All of the (including cooperating agencies) • State and Local Air Quality Board(s) Following Is Appropriate Where • State Historic Preservation Officer Federal Scoping, Analysis, Public Participation, State (with appropriate determination or Expressed Interest So Indicate Local (including counties) under Section 106 of the National Tribal • U.S. Senators for the States where the Historic Preservation Act) • The applicant, if any action will occur • State Department of Natural • Any person, organization, or agency • U.S. Representatives for the Districts Resources requesting the entire EIS where the action will occur • State Department of Transportation, • Indian tribes when the effects may be • Governors for the States where the including on a reservation action will occur • State Motor Vehicle Administration • Any agency that has requested to • Governing body of any Federally • State Motor Carrier Agency(ies) receive EISs on actions of the kind recognized Indian tribe that may be • State Highway Patrols proposed affected by the action. • State Utility Commissions • Environmental Protection Agency • Elected officials of the local • State Department of Public Safety After distributing the EIS to the jurisdiction where the action will occur • State Fish and Game parties listed above, send five (5) copies or that may be affected by the action: • State and Local Parks and to pertinent EPA Regional Offices and 5 • County commissioners, Township Recreation Agency(ies) • copies to: U.S. Environmental council, or equivalent State Land Use Board/Commission/ Protection Agency, Office of Federal • Mayor Department Activities, EIS Filing Section, Mail Code • Head of City Council • Community Development Agency 2252–A, Room 7241, Ariel Rios • City or County Executive 3. Governments of Federally Building (South Oval Lobby), 1200 • City or County Manager, recognized Indian tribes and native Pennsylvania Avenue, NW., Administrator entities within the State of Alaska Washington, DC 20460. • Cooperating agency(ies) where potentially affected by the action, For all deliveries by courier, FMCSA is the lead agency and/or specific pertinent agencies including express delivery services • U.S. Environmental Protection as directed by the tribal or native other than the U.S. Postal Service, use Agency Alaskan government 20004 as the zip code. If the documents (5 copies to headquarters and five 4. County and Local agencies such as: are to be hand-delivered, ask the copies to pertinent EPA Regional • County Planning Commission/ security guards to phone (202) 564–2400 Offices where the action will occur) Engineering Department for an escort to the Filing Section. • Public libraries • City Landmark Commission and or Telephone inquiries can also be made • Agencies with jurisdiction by law or Historic Preservation Commission to: (202) 564–7167 or (202) 564–7153. expertise: • Fire Department
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• Police Department 12. Coral Reef Protection (E.O. 13089, 63 Central Cities (E.O. 13006, 61 FR • Building Department FR 32701). 26071) • Land Use and/or Zoning 13. Department of Transportation Act, 37. Magnuson-Stevens Fishery Department or Commission Section 4(f) (Pub. L. 89–670 / 49 Conservation and Management Act as • Parks and Recreation U.S.C. 303, Section 4(f), et seq.) amended through October 11, 1996. 5. Non-governmental groups and 14. Developing and Promoting Biobased (16 U.S.C. 1801, et seq.) organizations such as: Products and Bioenergy (E.O. 13134, 38. Marine Protected Areas (E.O. 13158, • Representatives of affected low- 64 FR 44639) 65 FR 24909) income and minority groups (with 15. Emergency Planning and 39. Marine Protection, Research, and translations, etc., where needed) Community Right-to-Know Act (42 Sanctuaries Act of 1972 (Pub. L. 92– • Non-Federally recognized Indian U.S.C. 11001–11050, et seq.) 532 / 16 U.S.C. 1431, et seq. and 33 tribes 16. Endangered Species Act of 1973 U.S.C. 1401, et seq.) • Native Hawaiian groups (in Hawaii) (ESA) (Pub. L. 93–205 / 16 U.S.C. 40. Migratory Bird Treaty Act (16 U.S.C. • Other indigenous groups where 1531, et seq.) 703–712, et seq.) applicable 17. Energy Efficiency and Water • 41. National Environmental Policy Act Environmental groups (Audubon, Conservation at Federal Facilities of 1969 (NEPA), (Pub. L. 91–190 /42 Greenpeace, Friends of the Earth, (E.O. 12902, 59 FR 11463) U.S.C. 4321, et seq.) Natural Resources Defense Council, 18. Environmental Effects Abroad of 42. National Historic Preservation Act of Sierra Club, etc.) Major Federal Actions (E.O. 12114, 44 • 1966 (NHPA) (Pub. L. 89–665 / 16 Industry groups (Chamber of FR 1957) U.S.C. 470, et seq.) Commerce, Downtown associations, 19. Environmental Review of Trade 43. Native American Graves Protection American Trucking Associations, Agreements (E.O. 13141, 64 FR 63169) and Repatriation Act (NAGPRA) (25 Inc., American Bus Association, 20. Environmental Quality Improvement U.S.C. 3001, et seq.). Associated General Contractors, Act (Pub. L. 98–581 / 42 U.S.C. 4371, 44. Noise Control Act of 1972 (Pub. L. National Private Truck Council, et seq.) 92–574 / 42 U.S.C. 4901, et seq.) United Motor Coach Association, 21. Federal Actions to Address 45. Implementation of the North etc.) Environmental Justice in Minority • American Free Trade Agreement Utility companies (gas, electric, Populations and Low-Income (NAFTA (E.O. 12889, 58 FR 69681) water, etc.) Populations (E.O. 12898, 59 FR 7629) 46. Procurement Requirements and • Neighborhood groups 22. Federal Compliance with Pollution • Policies for Ozone Depleting Adjacent landowners Control Standards (E.O. 12088, 43 FR Substances (E.O. 12843, 48 FR 21881) • Print and electronic media 47707) 47. Pollution Prevention Act of 1990 Appendix 16—List of Relevant 23. Federal Insecticide, Fungicide, and (PPA) (42 U.S.C. 13101–13109, et Environmental Statutes and Executive Rodenticide Act (Pub. L. 86–139 / 7 seq.) Orders U.S.C. 135, et seq. ) 48. Protection and Enhancement of 24. Federal Records Act (FRA) (44 Cultural Environment (E.O. 11593, 36 List of Relevant Environmental Statutes U.S.C. 2101–3324, et seq.) and Executive Orders FR 8921) 25. Federalism (E.O. 13132, 64 FR 49. Protection and Enhancement of 1. Actions Concerning Regulations That 43255) Environmental Quality (E.O. 11514, Significantly Affect Energy Supply, 26. Fish and Wildlife Act of 1956 (Pub. 35 FR 4247) Distribution, or Use (E.O. 13211, 66 L. 85–888 / 16 U.S.C. 742, et seq.) 50. Protection of Children From FR 28355) 27. Fish and Wildlife Coordination Act Environmental Health Risks and 2. American Indian Religious Freedom (Pub. L. 85–624 / 16 U.S.C. 661, et Safety Risks (E.O. 13045, 62 FR Act (AIRFA) (42 U.S.C. 1996, et seq.) seq.) 19885.) 3. Antiquities Act (16 U.S.C. 433, et 28. Fisheries Conservation and Recovery 51. Protection of Wetlands (E.O. 11990, seq.) Act of 1976 (Pub. L. 94–265 / 16 42 FR 26961) 4. Archeological and Historic U.S.C. 1801 et seq.) 52. Recreational Fisheries (E.O. 12962, Preservation Act (AHPA) (16 U.S.C. 29. Greening the Government Through 60 FR 307695) 469) Leadership in Environmental 53. Requiring Agencies to Purchase 5. Archeological Resources Protection Management (E.O. 13148, 65 FR Energy Efficient Computer Equipment Act (ARPA) (16 U.S.C. 470, et seq.) 24595) (E.O. 12845, 58 FR 21887) 6. Architectural Barriers Act (42 U.S.C. 30. Greening the Government Through 54. Resource Conservation and Recovery 4151, et seq.) Federal Fleet and Transportation (E.O. Act of 1976 (RCRA), (Pub. L. 94–580 7. Clean Air Act (CAA) (Pub. L. 95–95 13149, 65 FR 24607) / 42 U.S.C. 6941, et seq.) / 42 U.S.C. 7401, et seq.) 31. Greening the Government Through 55. Responsibilities of Federal Agencies 8. Clean Water Act of 1977 (CWA) (Pub. Waste Prevention, Recycling, and To Protect Migratory Birds (E.O. L. 95–217 / 33 U.S.C. 1251, et seq.) Federal Acquisition (E.O. 13101, 63 13186, 66 FR 3853) 9. Community Environmental Response FR 49643) 56. Safe Drinking Water Act (SDWA) Facilitation Act (CERFA) (42 U.S.C. 32. Historic Sites Act (16 U.S.C. 46, et (Pub. L. 93–523 / 42 U.S.C. 201, et 9620 et seq.) seq.) seq.) 10. Comprehensive Environmental 33. Indian Sacred Sites (E.O. 13007, 61 57. Toxic Substances Control Act Response, Compensation, and FR 26771) (TOSCA) (7 U.S.C. 136, et seq.) Liability Act of 1980 (CERCLA), also 34. The President Intergovernmental 58. Wild and Scenic Rivers Act (Pub. L. commonly referred to as SUPERFUND Review of Federal Programs (E.O. 90–542 / 16 U.S.C. 1271, et seq.) (Pub. L. 96–510 / 26 U.S.C. 4611, et 12372, 47 FR 30959) seq.) 35. Invasive Species (E.O. 13112, 64 FR Note: All Public Law (Pub. L.) and DOT 11. Consultation and Coordination With 6183) Order Numbers should be referenced as Indian Tribal Governments (E.O. 36. Locating Federal Facilities on amended. 13175, 65 FR 67249) Historic Properties in our Nation’s BILLING CODE 4910–EX–P
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BILLING CODE 4910–EX–C
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Appendix 18—Special Areas of area and activity and those measures the level of potential impacts and Consideration When Implementing that are reasonable and feasible and that appropriate mitigative measures. NEPA would ‘‘likely’’ be incorporated into the To estimate the likely impacts of This appendix supplements the proposed action. Estimated costs, potential hazardous materials incidents/ information that appears in Chapter 2, decibel reductions and height and accidents, the following impact FMCSA Responsible Parties, Duties, length of barriers should be shown for categories should be considered: And Instructions For Implementing all abatement measures. • Injuries and deaths NEPA. d. Noise impacts for which no • Cleanup costs prudent solution is reasonably available • Property damage 1. Air Quality and the reasons why. • Evacuation Both the Clean Air Act (CAA) and the • 3. Hazardous Materials Product loss National Environmental Policy Act • Traffic incident delay (NEPA) require that air quality be The responsible FMCSA official must • Environmental damage considered in the preparation of document whether the proposed action For guidance, consult FMCSA’s environmental documents for any will result in impacts on the use, Hazardous Materials Incident proposed action. The CAA also requires transportation, and storage of hazardous Prevention Manual (http:// that all Federal actions conform to the materials or on the number or severity www.fmcsa.dot.gov/factsfigs/ State Implementation Plan (SIP). The of hazardous materials accidents or accidenthm/forewhaz.htm) and the Environmental Protection Agency’s incidents. Final Report on Comparative Risks of General Conformity Rule, 40 CFR parts An accident is defined as an event Hazardous Materials and Non- 51 and 93 applies to FCMSA actions. that occurs when the vehicle hazardous Materials Truck Shipment The level of detail in air quality transporting the goods is involved in a Accidents/Incidents, March 2001, analyses will vary considerably collision. Any accident involving the prepared for FMCSA by Battelle (http:/ according to the action, the existing shipment of hazardous materials would /www.fmcsa.dot.gov/Pdfs/ level of air quality in the area, and be considered as a hazardous materials HMRiskFinalReport.pdf). degree of controversy. The only accident regardless of whether any of pollutants of concern for a project the material was spilled or was exposed 4. Endangered Species analysis are those that would be directly to the atmosphere. Similarly, a non- a. Responsibilities. If an action affected by the action. hazardous materials shipment accident involving a construction activity is See Appendix 14 for guidance on the would be considered as a non- proposed, the following requirements appropriate level of air quality analysis hazardous materials shipment accident apply. for a project. even if fuel from the tractor spilled (1) During the scoping process, the 2. Noise during an accident. An event that occurs responsible FMCSA official must In compliance with the Noise Control when the vehicle transporting the goods request from the Regional Directors of Act of 1972, the responsible FMCSA spills some of the hazardous materials the Fish and Wildlife Service (FWS) and official must ensure that commercial cargo but is not involved in a collision the National Marine Fisheries Services motor vehicles (CMVs) and commercial is termed an enroute incident. An event (NMFS), information on whether any motor vehicle equipment operated by resulting in the spill or release of species which is listed, or proposed to motor carriers conform to the Interstate hazardous materials material during be listed, on the Federal Endangered Motor Carrier Noise Emission Standards loading or unloading is defined as a Species List may be present in the area of the Environmental Protection Agency loading/unloading incident. The of a proposed action. in 40 CFR part 202. analysis must identify any moderate to (2) The responsible FMCSA official If an action involving a construction significant adverse impacts to public must ensure that an action enhances the activity is proposed, an analysis of safety and health, transportation, continued existence of species’ listed as potential noise impacts should be property damage, water resources, and endangered or threatened and is not prepared, including the following for biological resources from releases of likely to jeopardize the continued each alternative under detailed study: hazardous materials associated with existence of such species. If a proposed a. A brief description of noise safety-related accidents and incidents. action may affect any species that is sensitive areas (residences, businesses, Also, mitigating measures and listed, or is proposed for listing, as an schools, parks, etc.), including countermeasures should be identified. endangered or threatened species, then information on the number and types of The analysis of the action should also the responsible FMCSA official must activities which may be affected. identify any impacts on water quality initiate informal or formal consultation b. The extent of the impact (in and public health and safety from oil with the following: Terrestrial Species— decibels) at each sensitive area. This and fuel leaks and spills, particularly Department of Interior, FWS and for includes a comparison of the predicted from tankers, commercial motor Marine Species—Department of noise levels with both the noise vehicles (CMVs), and fuel storage tanks. Commerce, NMFS. Any consultation abatement criteria and the existing noise Runoff of hazardous materials from must be reflected in the resulting levels. (Traffic noise impacts occur roads, infrastructure construction, and environmental documentation. when the predicted traffic noise levels deterioration of discarded vehicles have (3) When applicable, the responsible approach or exceed the noise abatement an impact on wetlands, surface and FMCSA Official must ensure that the criteria or when they substantially groundwater quality as well. The 1981 environmental documentation in the exceed the existing noise levels). The FHWA research report entitled case file includes the biological criterion used for defining a ‘‘substantial ‘‘Constituents of Highway Runoff’’ and assessment, the results of the increase’’ in noise levels should be the 1987 report entitled ‘‘Effects of consultation process, the analysis of any identified. Use of a table for this Highway Runoff on Receiving Waters’’ procedures taken to avoid impacts on comparison is recommended for clarity. contain procedures for estimating the species, and any other pertinent c. Noise abatement measures which pollutant loading from highway runoff information to document compliance have been considered for each impacted and would be helpful in determining with this law.
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b. Public and Agency Involvement. FR 77697), and are codified at 36 CFR (4) Public and Agency Involvement. The responsible FMCSA official must part 800. Citations to the NHPA Section At all appropriate stages of the Section coordinate with the FWS and the NMFS 106 regulations refer to the regulation 106 process, the responsible FMCSA regarding the initiation of a consultation published in the December 12, 2000, official must ensure proper public process, as well as to explore the Federal Register notice (65 FR 77697). participation, as required by 36 CFR necessity to prepare a biological When a FMCSA proposed action part 800. The extent of public assessment, as required by section 7 of triggers the requirements of Section 106 involvement will depend upon the the Endangered Species Act (ESA) (16 and NEPA, the Section 106 process specific action and the historic U.S.C. 1531, et seq.) and the ESA must be integrated with, and conducted resources involved. In most cases, the implementation regulations (50 CFR concurrently with, any applicable NEPA responsible official must provide the part 402). A copy of the EA, EIS, or any environmental analysis, to the extent public with information about the other public notice document prepared practicable (40 CFR 1502.25(a); 36 CFR undertaking and its effects on historic for a proposed action affecting, or 800.2(a)(4), 800.3(b) and 800.8). properties and seek public comment potentially affecting, endangered (2) Determine If an Undertaking is and input (36 CFR 800.2(d)(2)). species, must be sent to the Endangered Present. Before taking an action, the Consulting parties should be identified Species Specialist of the appropriate responsible FMCSA official must in consultation with the SHPO/THPO FWS and NMFS field and regional determine if the action is an (36 CFR 800.3(f)). Consulting parties can offices. ‘‘undertaking’’ in accordance with 36 include the Advisory Council on c. Content of NEPA Documentation. CFR 800.16(y). If the action is an Historic Preservation; the National Park Any EA or EIS for a proposed action ‘‘undertaking,’’ the responsible official Service, Indian tribes, Native Hawaiian must state the presence or absence of must determine whether it is a type of Organizations; representatives of local endangered species within the physical action that has the potential to cause governments; applicants for Federal area of the action. If endangered species effects on historic properties if historic assistance, permits, licenses and other are likely to be present, the EA or EIS properties were present (it is irrelevant approvals; and individuals and must describe the species, summarize whether historic properties are there or organizations with a demonstrated the potential for effects on the species, not at this point in the process). If it is interest in the undertaking (36 CFR and if necessary, summarize the a type of action that has the potential to 800.2(b)–(c)). biological assessment, the results of the cause effects on historic properties, then c. Content of NEPA Documentation. consultation process, the analysis of any the responsible FMCSA official must Unless the NEPA process is being used procedures taken to avoid impacts on investigate the action area to determine to comply with NHPA per 36 CFR 800.8, the species, and any other pertinent if the action may actually affect any to the extent practicable, EAs and EISs information to document compliance resources listed, or eligible for listing, for actions that have the potential to, or with this law. on the NRHP. will, significantly affect historic Criteria for evaluating eligibility for properties should summarize the results 5. National Historic Preservation Act listing on the NRHP are given in 36 CFR of the Section 106 process. The (NHPA) and Related Executive Orders 60.4. (In brief, 36 CFR 60.4 states that summary should include information on If an action involving a construction properties of historical, architectural, or the presence or absence of historic activity is proposed, the following archaeological significance should be properties; the significance of impacts to requirements apply. considered for NRHP evaluation if they historic properties; any treatments/ a. General requirements. The are associated with events and persons mitigation that may be developed to responsible FMCSA official must significant in our past, or that have avoid significant adverse effects on comply with the National Historic distinctive character, artistic values or historic properties, and a summary of Preservation Act of 1966, as amended are the work of a master, or have yielded the consultation and public notice (16 U.S.C. 470, et seq.) (NHPA), the or are likely to yield important efforts and results. The EA or EIS regulations which implement the NHPA information in pre-history or history. should also include a copy of any action (36 CFR part 800), and E.O. 11593, 36 This section provides specific criteria Memorandum of Agreement/ FR 8291, Protection and Enhancement and should be referenced.) If the type of Programmatic Agreement developed in of the Cultural Environment. The action is one that does not have the compliance with Section 106. EAs and responsible FMCSA official must also potential to cause effects on historic EISs must fulfill the requirements of 36 take into account E.O. 13006, 61 FR properties if historic properties were CFR 800.8 when prepared as the main 26071, Locating Federal Facilities on present, then the responsible official has instrument for compliance with Section Historic Properties in our Nation’s no further obligations under Section 106. Central Cities, if the FMCSA action 106. includes locating FMCSA facilities in (3) For Undertakings, Identify the 6. Wetlands metropolitan areas. Appropriate SHPO/THPO and Consult. If an action involving a construction b. Responsibilities Under Section 106 If an FMCSA action is an undertaking activity is proposed, the following of the NHPA. that could affect historic properties, the requirements apply. (1) General. The responsible FMCSA responsible FMCSA official must a. Responsibilities. official must comply with the NHPA identify the appropriate State Historic (1) FMCSA actions require Section 106 process regarding historic Preservation Officer (SHPO), compliance with the provisions of and cultural resources. Historic and appropriate Tribal Historic Preservation Executive Order 11990, Protection of cultural resources include any district, Officer (THPO), or appropriate Indian Wetlands (except as noted in Section site, building, structure, or object tribe (36 CFR 800.3(c) and (d)). The 1(b) of the order); and DOT Order significant in American history, responsible official must consult the 5660.1A, Preservation of the Nation’s architecture, archaeology, or culture. appropriate preservation officer or Wetlands. The regulations setting forth the NHPA Indian tribe and plan to involve the (2) The responsible FMCSA official Section 106 process were revised and public in carrying out and completing must coordinate with the applicant and finalized December 12, 2000 and the Section 106 process in consultation the lead Federal agency when became effective January 11, 2001 (65 with the SHPO/THPO (36 CFR 800.3(e)). applicable, to ensure the action is
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planned, constructed, and operated to is no feasible and prudent alternative to c. Public and Agency Involvement. assure the protection, preservation, and the use of such land; and (B) such The responsible FMCSA official must enhancement of wetlands to the fullest program includes all possible planning give the official having jurisdiction over extent practicable. to minimize harm to such park, the section 4(f) property, the (3) The responsible FMCSA official recreation area, wildlife and waterfowl Department of Interior, and as must document the effects of each refuge, or historic site resulting from appropriate, the Department of action on wetlands in accordance with such use.’’ Furthermore, direct use of Agriculture and the Department of DOT Order 5660.IA. the land is not the sole qualifier for Housing and Urban Development an b. Public and Agency Involvement. considering 4(f). Should the action be in opportunity to review all draft section Appropriate opportunity for early close proximity to affect the lands in 4(f) statements. When the 4(f) statement review of proposals for new question, one will normally prepare a is contained within an EIS, consultation construction in wetlands should be 4(f) statement. See, DOT Order 5610.1C, with the departments must be provided to the public and to agencies for further direction. performed in accordance with with special interest in wetlands. When (2) The responsible FMCSA official procedures for review of the draft EIS. applicable, the public notice must state must ensure that Section 4(f) statements When the 4(f) statement is associated the acreage of wetlands taken or and determinations are prepared per with a FONSI, the statement must be impacted. This will include the U.S. Section 4(f) of the DOT Act of 1966, as sent to the above Departments for Fish and Wildlife Service, State wildlife amended (49 U.S.C. Section 303), and review, using the same procedures and and/or natural resources agencies, and Section 12 of DOT Order 5610.1C. points of contact as used for an EIS. other parties as appropriate. (3) A 4(f) analysis consists of an d. Legal Review. District legal officers c. Content of NEPA Documentation. investigation by the responsible FMCSA must provide legal sufficiency review of Information developed in accordance official who determines if there is use of FMCSA section 4(f) determinations for with DOT Order 5660.IA, along with the 4(f) property. Even when there is no actions that originate within their area. ‘‘Wetlands Findings,’’ must be included direct use of a 4(f) property, an analysis The Office of Chief Counsel must in either the EA, EIS, or in the supporting this finding must be provide final legal sufficiency review of Environmental Analysis Checklist and/ prepared. When there is use of 4(f) all other FMCSA section 4(f) or CED if required. Any measures property, a 4(f) statement is required. determinations. included with the proposed action to Based on this 4(f) statement, a 4(f) e. Approval of 4(f) Statements. The protect wetlands must also be determination will be prepared for responsible FMCSA official has the summarized. signature by the appropriate area and authority to approve 4(f) statements. district or Administrator level official. 7. Determinations Under Section 4(f) of The 4(f) determination may be made 8. Other the DOT Act [49 U.S.C. 303(c)] part of the 4(f) statement. This section does not cover all If an action involving a construction b. Integration of 4(f) Statement with environmental and historic and cultural activity is proposed, the following EISs. Originators of EISs for FMCSA resource mandates that may fall under requirements apply. actions requiring determinations under the umbrella of the NEPA a. Responsibilities. section 4(f) of the DOT Act must environmental planning process. For a (1) Section 4(f) of the DOT Act states incorporate the required 4(f) more complete list of environmental that ‘‘The Secretary must not approve determination in the EIS. The form and and historic and cultural resource laws, any program or action which requires content of 4(f) statements, and data consult Appendix 16. the use of any land from a public park, needed to support the 4(f) recreation area, wildlife and waterfowl determinations and conclusion are [FR Doc. 04–4338 Filed 2–27–04; 8:45 am] refuge, or historic site unless: (A) there contained in Appendix 13. BILLING CODE 4910–EX–P
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Part III
Securities and Exchange Commission 17 CFR Parts 210, 228, et al. Management’s Report on Internal Control Over Financial Reporting and Certification of Disclosure in Exchange Act Periodic Reports; Final Rule
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SECURITIES AND EXCHANGE and the related registered public must comply with the amendment to COMMISSION accounting firm report requirement in Investment Company Act Rule 30a–3(a) items 308(a) and (b) of Regulations S– relating to the maintenance of internal 17 CFR Parts 210, 228, 229, 240, 249, K and S–B for its first fiscal year ending control over financial reporting with 270, and 274 on or after November 15, 2004. A non- respect to fiscal years ending on or after [Release Nos. 33–8392; 34–49313; IC– accelerated filer must begin to comply November 15, 2004. 26357; File Nos. S7–40–02; S7–06–03] with these requirements for its first The extended compliance period does fiscal year ending on or after July 15, not in any way affect the provisions of RIN 3235–AI66 and 3235–AI79 2005. A foreign private issuer that files our other rules and regulations its annual report on Form 20–F or Form regarding internal controls that are in Management’s Report on Internal 40–F must begin to comply with the effect, including, without limitation, Control Over Financial Reporting and corresponding requirements in these Exchange Act Rule 13b2–2. Certification of Disclosure in Exchange forms for its first fiscal year ending on FOR FURTHER INFORMATION CONTACT: Act Periodic Reports or after July 15, 2005. Sean Harrison, Special Counsel, AGENCY: Securities and Exchange A company must begin to comply Division of Corporation Finance, at Commission. with the provisions of Exchange Act (202) 942–2910, or with respect to Rule 13a–15(d) or 15d–15(d), whichever ACTION: Final rule; extension of registered investment companies, compliance dates. applies, requiring an evaluation of Christian Broadbent, Senior Counsel, changes to internal control over Division of Investment Management, at SUMMARY: We are extending the financial reporting requirements with (202) 942–0721, U.S. Securities and compliance dates that were published respect to the company’s first periodic Exchange Commission, 450 Fifth Street, on June 18, 2003, in Release No. 33– report due after the first annual report NW., Washington, DC 20549. 8238 (68 FR 36636) for certain that must include management’s report SUPPLEMENTARY INFORMATION: On June 5, amendments to Rules 13a–15 and 15d– on internal control over financial 2003,2 the Commission adopted 15 under the Securities Exchange Act of reporting. amendments to Items 307, 401 and 601 1934, items 308(a) and (b) of In addition, we are applying the of Regulations S–B 3 and S–K; 4 added Regulations S–K and S–B and the extended compliance period to the new Item 308 to Regulations S–B and S– corresponding provisions in Forms 20– amended portion of the introductory K; amended Form 10–K,5 Form 10– F and 40–F, that require companies, language in paragraph 4 of the KSB,6 Form 10–Q,7 Form 10–QSB,8 other than registered investment certification required by Exchange Act Form 20–F,9 Form 40–F,10 Rule 12b– companies, to include in their annual Rules 13a–14(a) and 15d–14(a) that 15,11 Rule 13a–14,12 Rule 13a–15,13 reports a report of management on the refers to the certifying officers’ Rule 15d–1414 and Rule 15d–15 15 company’s internal control over responsibility for establishing and under the Securities Exchange Act of financial reporting, and to evaluate, as maintaining internal control over 1934;16 amended Rules 1–02 and 2– of the end of each fiscal period, any financial reporting for the company, as 02 17 of Regulation S–X;18 amended change in the company’s internal well as paragraph 4(b). The amended Rules 8b–15,19 30a–2 20 and 30a–3 21 control over financial reporting that language must be provided in the first under the Investment Company Act of occurred during the period that has annual report required to contain 1940;22 and amended Forms N–CSR 23 materially affected, or is reasonably management’s internal control report and N–SAR 24 under the Exchange Act likely to materially affect, the and in all periodic reports filed and the Investment Company Act. company’s internal control over thereafter. The extended compliance Among other things, these amendments financial reporting. We are also dates also apply to the amendments of require companies, other than registered extending the compliance dates for Exchange Act Rules 13a–15(a) and 15d– investment companies, to include in amendments to certain representations 15(a) relating to the maintenance of their annual reports a report of that must be included in the internal control over financial reporting. We are also extending the compliance certifications required by Exchange Act 60 days after the close of the first and third quarters Rules 13a–14 and 15d–14 and period for registered investment of each fiscal year. Investment Company Act of 1940 Rule companies to comply with the amended 2 See Release No. 33–8238 (June 5, 2003) (68 FR 30a–2, regarding the company’s internal portion of the introductory language in 36636) (the ‘‘Adopting Release’’). 3 17 CFR 228.10 et seq. control over financial reporting. The paragraph 4 of the certification in Form N–CSR required by Investment 4 17 CFR 229.10 et seq. companies subject to these certification 5 Company Act Rule 30a–2(a) that refers 17 CFR 249.310. provisions include registered 6 17 CFR 249.310b. to the certifying officers’ responsibility investment companies. Finally, we are 7 17 CFR 249.308a. extending the compliance date for an for establishing and maintaining 8 17 CFR 249.308b. amendment to Investment Company Act internal control over financial reporting 9 17 CFR 249.220f. Rule 30a–3 regarding the maintenance for the company, as well as paragraph 10 17 CFR 249.240f. 4(b) of the certification in Form N–CSR. 11 17 CFR 240.12b–15. of internal control over financial 12 reporting. The amended language must be 17 CFR 240.13a–14. provided beginning with the first annual 13 17 CFR 240.13a–15. DATES: Effective Date: The effective date report filed on Form N–CSR for a fiscal 14 17 CFR 140.15d–14. 15 published on June 18, 2003, remains year ending on or after November 15, 17 CFR 240.15d–15. 16 15 U.S.C. 78a et seq. August 14, 2003. 2004.1 Registered investment companies Compliance Dates: The compliance 17 17 CFR 210.1–02 and 2–02. 18 17 CFR 210.1–01 et seq. dates are extended as follows: A 1 The amended language must also be provided in 19 17 CFR 270.8b–15. reports on Form N–Q following this report on Form company that is an ‘‘accelerated filer,’’ 20 17 CFR 270.30a–2. N–CSR. On February 11, 2004, the Commission as defined in Exchange Act Rule 12b– 21 indicated that it would issue a release adopting 17 CFR 270.30a–3. 2, must begin to comply with the rules that will require a registered management 22 15 U.S.C. 80a–1 et seq. management report on internal control investment company to file its portfolio holdings 23 17 CFR 249.331; 17 CFR 274.128. over financial reporting requirement with the Commission on Form N–Q not later than 24 17 CFR 249.330; 17 CFR 274.101.
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management on the company’s internal determination to set new standards and expressed similar concerns and control over financial reporting, and to has been working expeditiously to do requested that the Commission and the evaluate, as of the end of each fiscal so. It held a public roundtable in July PCAOB provide additional time for quarter, or year in the case of a foreign 2003 to discuss significant issues compliance.28 private issuer filing its annual report on associated with the establishment of a We believe that an extension of Form 20–F or 40–F, any change in the new standard and issued a proposed compliance dates for the internal 26 company’s internal control over standard on October 7, 2003. The control reporting over financial financial reporting that occurred during PCAOB received nearly 200 comment reporting requirements is appropriate. the period that has materially affected, letters on the proposals and has We believe that the extension will or is reasonably likely to materially completed its review and analysis of the benefit investors because this will help affect, the company’s internal control public comment. ensure that appropriate controls are in On January 23, 2004, representatives over financial reporting. place for the first reporting process. In our June 2003 Adopting Release, of five companies requested that the Moreover, an extension will minimize we decided to provide a lengthy Commission extend the June 15, 2004, the cost and disruption of implementing compliance period for the amendments compliance date for accelerated filers.27 a new disclosure requirement under a requiring a report by management on a In their request, these companies argued current standard that will soon be company’s internal control over that it would be extremely difficult for superseded, and will provide companies financial reporting. Specifically, we companies to properly prepare for and their auditors with a sufficient provided that a company that was an compliance with the new internal amount of time to perform additional accelerated filer would have to begin control over financial reporting testing or remediation of controls based complying with the new amendments in requirements, and for auditors to on the final standard. We also, for good its annual report for its first fiscal year properly implement a new standard that cause, find that, based on the reasons ending on or after June 15, 2004, and has not yet been finalized, for a fiscal cited above, notice and solicitation of that a non-accelerated filer would have year that is nearly complete. They comment regarding extension of the to begin complying in its annual report further asserted that companies with compliance dates is impracticable, for its first fiscal year ending on or after June, July and August fiscal year ends unnecessary, and contrary to the public April 15, 2005. We stated that a longer that are in the process of documenting interest.29 In addition, for good cause transition period was appropriate in and evaluating controls have based and because the extension will relieve a light of both the substantial time and these processes on the PCAOB’s restriction, the extension will be resources needed by companies to proposed standard. Several commenters effective on March 1, 2004. properly implement the rules, and the on the PCAOB’s proposed standard corresponding benefit to investors that By the Commission. would result from companies’ proper attestations to, and reports on, management’s Dated: February 24, 2004. assessment regarding its internal control over implementation of the new Margaret H. McFarland, requirements. We further noted that a financial reporting. 26 Deputy Secretary. longer transition period would provide See PCAOB Release No. 2003–017, PCAOB Rulemaking Docket Matter No. 008. [FR Doc. 04–4425 Filed 2–27–04; 8:45 am] additional time for the Public Company 27 See letter to Mr. William H. Donaldson, BILLING CODE 8010–01–P Accounting Oversight Board (the Chairman of the Securities and Exchange ‘‘PCAOB’’) to consider relevant factors Commission, and Mr. William J. McDonough, in determining and implementing new Chairman of the Public Company Accounting 28 See letters regarding PCAOB Rulemaking Oversight Board, from John G. Connors, Sr., Vice Docket Matter No. 008 of: the American Institute of standards for registered public President and Chief Financial Officer, Microsoft 25 Certified Public Accountants, Deloitte & Touche accounting firms. The PCAOB made a Corporation, on behalf of Clayton C. Daley Jr., Chief LLP, PricewaterhouseCoopers LLP, Walt Disney Financial Officer, Proctor & Gamble; Richard J. Corporation and H.W. Willoughby. These letters are 25 Under the Sarbanes-Oxley Act, the PCAOB was Miller, Executive Vice President and Chief available at www.pcaobus.org. granted authority to set auditing and attestation Financial Officer, Cardinal Health Corporation; 29 See section 553(b)(3)(B) of the Administrative standards for registered public accounting firms to Richard A. Galanti, Executive Vice President and use in the preparation and issuance of audit reports Chief Financial Officer, Costco Wholesale Procedure Act (5 U.S.C. 55s(b)(3)(B)) (an agency on the financial statements of issuers. Under section Corporation and Michael J. Irwin, Executive Vice may dispense with prior notice and comment when 404(b) of the Act, the PCAOB is required to set President and Chief Financial Officer, WD–40 it finds, for good cause, that notice and comment standards for registered public accounting firms’ Company, dated January 23, 2004. are ‘‘impracticable, unnecessary, or contrary to the public interest’’).
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Part IV
Securities and Exchange Commission 17 CFR Part 270 Prohibition on the Use of Brokerage Commissions To Finance Distribution; Proposed Rule
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SECURITIES AND EXCHANGE (‘‘SEC’’ or ‘‘Commission’’) is requesting brokers to demand additional payments COMMISSION public comment on proposed from fund advisers from their own amendments to rule 12b–1 [17 CFR assets (‘‘revenue sharing’’) or through 17 CFR Part 270 270.12b–1] under the Investment the direction of fund brokerage. These [Release No. IC–26356; File No. S7–09–04] Company Act of 1940 [15 U.S.C. 80a] payments can purchase prominence (or (‘‘Investment Company Act’’ or ‘‘Act’’).2 better ‘‘shelf space’’) in an increasingly RIN 3235–AJ07 The Commission is also requesting crowded fund marketplace.5 comment on whether additional In many cases, meeting the increasing Prohibition on the Use of Brokerage amendments to rule 12b–1 are needed to compensation demands of selling Commissions To Finance Distribution address other issues that have arisen brokers has caused funds’ distribution- AGENCY: Securities and Exchange under the rule. related fees (i.e., sales loads 6 and rule 12b–1 fees 7) to reach the National Commission. Table of Contents ACTION: Proposed rule. Association of Securities Dealers I. Background (‘‘NASD’’) limits (or ‘‘caps’’) on such SUMMARY: The Securities and Exchange A. Current Practices fees (which we describe below).8 Fund Commission is publishing for comment B. Current Regulatory Requirements II. Discussion advisers often use brokerage amendments to the rule under the A. Proposed Ban on Directed Brokerage commissions to generate additional Investment Company Act of 1940 that B. Policies and Procedures revenue to finance distribution.9 governs the use of assets of open-end III. General Request for Comment Brokers have, in turn, based their management investment companies IV. Request for Comment on Further demands for greater compensation from (‘‘funds’’) to distribute their shares. The Amendments to Rule 12b–1 funds on the apparent availability of amended rule would prohibit funds V. Cost-Benefit Analysis these supplemental revenues. As a from paying for the distribution of their VI. Consideration of Promotion of Efficiency, result, funds have allocated, over time, shares with brokerage commissions. The Competition, and Capital Formation an increasing share of their brokerage VII. Paperwork Reduction Act proposed amendments are designed to VIII. Initial Regulatory Flexibility Analysis commissions to support distribution. end a practice that is fraught with IX. Statutory Authority Our staff estimates that brokerage conflicts of interest and may be harmful commissions may compose to funds and fund shareholders. I. Background approximately twenty percent of annual DATES: Comments must be received on Investment companies buy and sell expenditures for fund distribution. or before May 10, 2004. large amounts of securities each year. In A. Current Practices ADDRESSES: To help us process and 2002 alone, mutual fund securities review your comments more efficiently, transactions totaled approximately $7.8 The broker’s cost of executing large, comments may be sent to us in either trillion.3 Fund advisers choose which institutional brokerage transactions such paper or electronic format. Comments broker or dealer will effect transactions as those effected for funds is often (‘‘executing broker’’), and often use substantially less than the commission should not be sent by both methods. 10 Comments in paper format should be commissions from these transactions to (or mark-up or mark-down) that funds submitted in triplicate to Jonathan G. reward brokers or dealers for selling PaineWebber, and Smith Barney held the upper Katz, Secretary, Securities and Exchange fund shares (‘‘selling brokers’’). hand.’’). Commission, 450 Fifth Street, NW., Recently, our staff examined a number 5 Id. at 62–63 (‘‘Just as fund companies need to Washington, DC 20549–0609. of funds and broker-dealers to obtain a cut through the clutter of all the funds available for Comments in electronic format may be better understanding of how fund sale, they must also attract the attention of the submitted to the following e-mail brokerage commissions are used by average sales person, who might familiarize himself with just a handful of funds among hundreds in any address: [email protected]. All advisers to pay for the promotion and given asset category.’’). comment letters should refer to File No. sale of fund shares and how this 6 Sales loads represent explicit charges paid by S7–09–04; if e-mail is used, this file practice may affect funds and fund fund shareholders to reimburse the fund’s principal number should be included on the shareholders. underwriter and distributor for sales efforts on behalf of the fund. Investors may pay sales loads at subject line. Comment letters will be Our staff found that the use of the time of purchase (a ‘‘front-end load’’) or at the available for public inspection and brokerage commissions to facilitate the time of redemption (a ‘‘back-end load’’). See section copying in the Commission’s Public sale of fund shares is widespread among 2(a)(35) of the Act [15 U.S.C. 80a–2(a)(35)] (defining Reference Room, 450 Fifth Street, NW., funds that rely on broker-dealers to sell the term ‘‘sales load’’); rule 22d–1 [17 CFR 270.22d– 1] (exemption permitting scheduled variations in Washington, DC 20549. Electronically their shares. Selling brokers appear to sales loads); and rule 6c–10 [17 CFR 270.6c–10] submitted comment letters will also be have significant leverage over funds (exemption permitting sales loads to be charged posted on the Commission’s Internet because the number of distribution after purchase, but before or at the time of Web site (http://www.sec.gov).1 channels is limited, and fund complexes redemption). 7 ‘‘Rule 12b–1 fees’’ or ‘‘12b–1 fees’’ are fees paid FOR FURTHER INFORMATION CONTACT: compete to seek a prominent position in out of fund assets pursuant to a distribution plan 4 Hester Peirce, Senior Counsel, or them. This leverage permits selling adopted under rule 12b–1 under the Act. 17 CFR Penelope W. Saltzman, Senior Counsel, 270.12b–1. See infra note and accompanying text. at (202) 942–0690, Office of Regulatory 2 Unless otherwise noted, all references to 8 See infra note and accompanying text. Policy, Division of Investment statutory sections are to the Investment Company 9 See Rich Blake, Misdirected Brokerage, Act of 1940. Institutional Investor, June 2003, at 47, 49 (‘‘But Management, Securities and Exchange 3 Investment Company Institute, Mutual Fund there’s another critical reason that fund companies Commission, 450 Fifth Street, NW., Fact Book 83 (2003) (reporting approximately $4 have resisted including commission payments in a Washington, DC 20549–0506. trillion in total purchases and approximately $3.8 12b–1 marketing plan. Doing so would cause them SUPPLEMENTARY INFORMATION: The trillion in total sales of portfolio securities by to exceed a NASD limit on how much any fund equity, hybrid, and bond funds). This figure does investor can be asked to pay in brokerage Securities and Exchange Commission not include purchases and sales by money market compensation.’’). funds. 10 Broker-dealers, at times, may execute portfolio 1 We do not edit personal or identifying 4 See Rich Blake, How High Can Costs Go?, securities transactions on a principal basis. In those information, such as names or e-mail addresses, Institutional Investor, May 2001, at 56, 62 (‘‘With cases, the firms would be compensated through from electronic submissions. Submit only thousands of funds and just a handful of national mark-ups or mark-downs rather than through information you wish to make publicly available. full-service brokerages, wire houses like Merrill, commissions. Nothing in this Release or our
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actually pay on most of their commission to the selling broker fund’s benefit.17 Use of fund assets to transactions.11 The adviser to a fund (‘‘introducing broker’’), and periodically pay selling brokers or otherwise finance complex, which controls the allocation charges the selling broker for its the sale of fund shares is regulated by of fund brokerage, can use the excess of execution services.14 rule 12b–1, which we adopted under brokerage commissions paid over Some fund advisers and selling our authority in section 12(b) of the execution costs to purchase goods or brokers enter into an agreement that sets Act.18 Section 12(b) makes it unlawful services from the executing broker or forth a target dollar amount of for a fund ‘‘to act as a distributor of third parties. Fund advisers often commissions to be paid over a period of securities of which it is the issuer, choose to use excess brokerage time to the selling broker as except through an underwriter, in commissions to buy a place for the fund compensation for distributing fund contravention of such rules and in the selling broker’s distribution shares.15 A typical arrangement covers regulations’’ as we prescribe. Section network. The use of excess commissions all of the funds in a complex that are 12(b) was intended to protect funds to pay for distribution costs has resulted subject to sales or dealer agreements from bearing excessive sales and in intricate business arrangements between the selling broker and the promotion expenses.19 Rule 12b–1 between fund advisers and securities funds’ principal underwriter.16 If the permits funds to use their assets to pay firms that sell their shares. funds do not generate the specified distribution-related costs. In order to Under the simplest of these dollar amount of commissions during rely on rule 12b–1, a fund must adopt arrangements, an adviser directs the year, the difference may be paid by ‘‘a written plan describing all material transactions in fund portfolio securities the funds’ adviser or carried forward aspects of the proposed financing of to a selling broker. The selling broker into the next year. If the selling broker’s distribution’’ that is approved by fund executes trades on behalf of the fund overall compensation for distributing shareholders and fund directors.20 We and credits to the fund a portion of the the shares of a fund complex falls below included these and other conditions in commission it receives to pay for agreed-upon levels, the selling broker the rule to address concerns about the distribution-related services. If the may reduce its selling efforts for the conflicts of interest arising from selling broker lacks the capacity to funds. As described below, these allowing funds to finance distribution.21 execute the fund’s securities arrangements are covered by rule 12b– Rule 12b–1 does not itself limit the transactions, the adviser may implement 1. amount of distribution costs that a fund a more complicated arrangement. The can assume, nor does it explicitly adviser may select another broker to B. Current Regulatory Requirements address the extent to which fund execute the transaction and require the Fund brokerage is an asset of the brokerage can be used to reward brokers executing broker to ‘‘step out’’ a portion fund, and therefore must be used for the for promoting the sale of fund shares. of its commission to pay the selling Two NASD rules address these matters. 12 broker. Alternatively, the executing 14 There are several variants on these First, NASD Conduct Rule 2830(d) broker may retain a portion of the arrangements for compensating the selling broker prohibits NASD members (i.e., broker- commission as compensation for its for distribution with commissions from a dealers) from selling shares of funds that transaction that is executed primarily or exclusively execution services and set the 22 by another broker. impose excessive sales charges. The remainder aside pending the adviser’s 15 See, e.g., Misdirected Brokerage, supra note, at rule deems a sales charge to be designation of the selling brokers to 50 (explaining that typically an executive of the excessive if it exceeds the rule’s caps. A which the remainder will be directed.13 adviser enters into an ‘‘almost invariably oral agreement[]’’ with an executive of the broker to In an ‘‘introducing broker’’ arrangement, 17 See Electronic Filing by Investment Advisers; trade a combination of cash, revenue sharing Proposed Amendments to Form ADV, Investment a clearing broker executes the payments, and fund brokerage commissions ‘‘for a Advisers Act Release No. 1862 (Apr. 5, 2000) [65 transaction, forwards the entire precious commodity: privileged access to the FR 20524 (Apr. 17, 2000)], at text following n. 166 brokerage’s sales force’’). (‘‘Client brokerage, however, is an asset of the 16 concept release, Request for Comments on Measures These arrangements may raise issues under client, not the adviser.’’). See also American Bar to Improve Disclosure of Mutual Fund Transaction section 17(d) [15 U.S.C. 80a–17(d)] of the Act and Association, Fund Director’s Guidebook, 59 Bus. Costs, Investment Company Act Release No. 26313 rule 17d–1 [17 CFR 270.17d–1] thereunder. Section Law. 201, 243 (2003) (‘‘Brokerage commissions are (Dec. 18, 2003), is intended to modify our views 17(d) of the Act and rule 17d–1, prohibit funds assets of the fund, and the fund’s directors are expressed in a recent SEC Interpretation, from, among other things, entering into a joint ultimately responsible for determining policies Commission Guidance on the Scope of Section enterprise or other joint arrangement or profit- governing brokerage practices.’’). But see 28(e) of the Exchange Act, Exchange Act Release sharing plan with any affiliated person, unless prior Interpretive Release Concerning the Scope of No. 45194 (Dec. 27, 2001). approval has been granted by Commission order. A Section 28(e) of the Securities Exchange Act of 1934 11 See, e.g., Miles Livingston and Edward S. fund may be an ‘‘affiliated person’’ of another fund and Related Matters, Exchange Act Release No. O’Neal, Mutual Fund Brokerage Commissions, 19 J. if, for example, the funds are under the common 23170 (Apr. 23, 1986) [51 FR 16004 (Apr. 30, 1986)] Fin. Res. 273, 290 (1996) (‘‘Fund managers on control of the same investment adviser. See section (‘‘Section 28(e) Interpretive Release’’) (noting that average pay substantially more than the 2(a)(3)(C) of the Investment Company Act [15 U.S.C. section 28(e) allows a money manager to consider commissions available to large traders. * * * 80a–2(a)(3)(C)]. Pursuant to rule 17d–1 under the benefits derived by other accounts he manages Assuming an average attainable rate of 2 cents per Investment Company Act, affiliated funds may when determining the reasonableness of share, two-thirds of the median commission per apply for an order from the Commission permitting commissions an account is paying). trade * * * is payment for services other than trade the use of a joint arrangement to finance the 18 15 U.S.C. 80a–12(b). execution.’’). See also Jennifer S. Conrad et al., distribution of their shares. See, e.g., College 19 Institutional Trading and Soft Dollars, 56 J. Fin. Retirement Equities Fund, Inc., Investment Investment Trusts and Investment Companies, 397, 406 n.11 (2001). Company Act Release Nos. 19591 (July 23, 1993) Hearings on H.R. 10065 Before a Subcomm. of the 12 Although the selling broker might not perform (notice) [58 FR 40681 (July 29, 1993)] and 19645 House Comm. on Interstate and Foreign Commerce, any execution services in connection with the (Aug. 19, 1993) (order). Absent such an order, an 76th Cong., 3d Sess. 112 (1940) (statement of David portfolio transactions, it typically is responsible for arrangement to compensate a selling broker for Schenker). the confirmation of a specified portion of the trade distribution on a complex-wide basis may 20 Rule 12b–1(b). (i.e., a particular amount of securities). The excess constitute a prohibited joint distribution 21 Bearing of Distribution Expenses by Mutual of the selling broker’s compensation over the value arrangement pursuant to which the brokerage Funds, Investment Company Act Release No. 11414 of its confirmation services in connection with the commissions paid by one fund are used to finance (Oct. 28, 1980) [45 FR 73898 (Nov. 7, 1980)] (‘‘1980 trade is compensation for the selling broker’s the distribution of the shares of another fund in the Adopting Release’’). distribution efforts. same fund complex. See generally Payment of 22 NASD Conduct Rule 2830 (Investment 13 The adviser designates the recipient selling Asset-Based Sales Loads by Registered Open-End Company Securities). Paragraph (d) (Sales Charge) brokers periodically (e.g., quarterly). The selling Management Investment Companies, Investment prohibits members from selling the shares of a fund brokers typically provide no services in connection Company Act Release No. 16431 (June 13, 1988) [53 ‘‘if the sales charges described in the prospectus are with the fund’s portfolio securities transactions. FR 23258 (June 21, 1988)]. excessive.’’
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fund’s sales load (whether charged at receipt of brokerage commissions from Reciprocal Rule was based on a view the time of purchase or redemption) the fund.29 that merely factoring sales efforts into may not exceed 8.5 percent of the We approved this exception to the the selection of brokers, consistent with offering price if the fund does not NASD’s rules in 1981, shortly after the investment adviser’s fiduciary charge a rule 12b–1 fee.23 The aggregate adopting rule 12b–1.30 We concluded duties to the fund, was essentially sales charges of a fund with a rule 12b– that, in light of the adoption of rule benign. When a fund could choose 1 fee may not exceed 7.25 percent of the 12b–1, ‘‘it is not inappropriate for among several brokers that could amount invested,24 and the amount of investment companies to seek to provide best execution, a decision to the asset-based sales charge (the rule promote the sale of their shares through favor a selling broker could be made 12b–1 fee) may not exceed 0.75 percent the placement of brokerage without the ‘‘without the incurring of any additional 31 per year of the fund’s average annual net incurring of any additional expense.’’ expense.’’ 34 Moreover, the ‘‘mere assets.25 Under the cap, therefore, an We recognized the conflicts of interest allocation’’ of brokerage to promote the increase in the fund’s sales load could and stated that we expected fund sale of fund shares could benefit boards, before adopting a policy reduce the permissible level of existing shareholders of funds that were permitting the ‘‘consider[ation] of the payments a selling broker may receive in ‘‘net redemption,’’ that is, fund assets sale of an investment company’s shares in the form of 12b–1 fees. The NASD were shrinking and the ratio of fund as a factor in the selection of broker- designed the rule so that cumulative expenses to fund assets was rising. dealers to execute portfolio transactions, charges for sales-related expenses, no subject to the requirements of best Our review of current practices, matter how they are imposed, are however, suggests that many 26 execution,’’ to ‘‘carefully weigh the subject to equivalent limitations. possible advantages to the investment arrangements that direct brokerage to Second, NASD Conduct Rule 2830(k), company and its shareholders and the reward selling brokers for distribution the ‘‘Anti-Reciprocal Rule,’’ prohibits possible abuses that may stem from the constitute more than mere allocation of NASD members from conditioning their adviser’s use of portfolio brokerage to brokerage, and are not consistent with efforts in distributing a fund’s shares on encourage the sale of investment our 1981 rationale for approving the the receipt of the fund’s brokerage company shares.’’ 32 exception to the NASD’s Anti- commissions.27 An exception to the Because, as noted above, fund Reciprocal Rule. The use of multiple Anti-Reciprocal Rule permits NASD brokerage is an asset of the fund, a broker-dealers for execution, step-outs, members to sell shares of funds that fund’s use of its brokerage to promote and other arrangements described above follow a disclosed policy ‘‘of the sale of its shares is generally viewed explicitly quantify the value of the considering sales of their shares as a as a payment by the fund and thus distribution component of fund factor in the selection of broker/dealers subject to rule 12b–1.33 In approving the brokerage commissions and belie the to execute portfolio transactions, subject exception to the NASD’s Anti- notion that fund advisers are merely to best execution.’’ 28 Broker-dealers Reciprocal Rule in 1981, however, we ‘‘considering’’ the selling efforts of the may not, however, condition their concluded that the practice of merely broker(s) involved. Rather, these promotion or sale of fund shares on the considering selling brokers’ sales efforts arrangements bear all the hallmarks of when allocating brokerage would be barter arrangements in which the fund addressed by the NASD rules governing 23 NASD Conduct Rule 2830(d)(1)(A). If the fund advisers trade brokerage (a fund asset) also charges a service fee, the maximum aggregate broker-dealers and advisers’ fiduciary for sales efforts. Moreover, that sales charge may not exceed 7.25% of the offering obligations to seek best execution, rather brokerage commissions could instead be price. NASD Conduct Rule 2830(d)(1)(D). than by Commission rules governing the used to offset other fund costs rebuts the 24 NASD Conduct Rule 2830(d)(2)(B). If the fund use of fund assets for distribution. also charges a service fee, the maximum aggregate notion that the use of fund brokerage to sales charge may not exceed 6.25% of the amount II. Discussion finance distribution imposes no invested. NASD Conduct Rule 2830(d)(2)(A). additional costs on the fund. Foregoing 25 Our decision in 1981 to approve the NASD Conduct Rule 2830(d)(2)(E)(i). an opportunity to seek lower 26 exception to the NASD’s Anti- The NASD, when it amended the sales charge commission rates, to use brokerage to rule to encompass asset-based sales charges (rule pay custodial, transfer agency and other 12b–1 fees), explained its intention to ‘‘assure a 29 See, e.g., infra note 42 (describing SEC and 35 level playing field’’: NASD actions relating to Morgan Stanley’s program fund expenses, or to obtain any [Asset-based sales charges] are the only type of for giving marketing preferences to funds in available cash rebates, is a real and mutual fund sales compensation that currently is exchange for cash and brokerage commissions). meaningful cost to fund shareholders. not subject to NASD regulation. With the advent of 30 Order Approving Proposed Rule Change and these new methods of assessing sales charges on Related Interpretation under Section 36 of the While the benefits to funds and their mutual funds, the NASD believed the Rules of Fair Investment Company Act, Investment Company Act shareholders of using fund brokerage to Practice should be amended specifically to Release No. 11662 (Mar. 4, 1981) [46 FR 16012 promote the sale of fund shares are encompass all sales charges. The NASD desired to (Mar. 10, 1981)] (‘‘1981 Release’’). take steps to assure a level playing field among all 31 Id. (emphasis added). Nonetheless, we unclear, the benefits to fund advisers are members selling mutual fund shares. Moreover, it emphasized that the directors of a fund have a clear. Fund advisers’ compensation is believed additional amendments were necessary to ‘‘continuing duty to assure that the company’s based on a percentage of assets under prevent circumvention of the existing maximum brokerage allocation practices are designed to management. A larger fund typically sales charge rule because it had become possible for obtain best price and execution and to avoid any funds to use 12b–1 plans, either separately or in unnecessary trading.’’ Id. generates more advisory fees. Fund combination with initial or deferred sales loads, to 32 Id. The exception to the Anti-Reciprocal Rule advisers have an incentive to use fund charge investors more for distribution than could is conditioned on the fund disclosing its practice assets to increase the size of the fund have been charged as an initial sales load under the of considering distribution of its shares in selecting and therefore promote the growth of existing maximum sales charge rule. executing brokers. NASD Conduct Rule Order Approving Proposed Rule Change Relating 2830(k)(7)(B). 34 1981 Release, supra note 30. to the Limitation of Asset-Based Sales Charges as 33 Rule 12b–1 applies to both ‘‘direct’’ and 35 See Payment for Investment Company Services Imposed by Investment Companies, Exchange Act ‘‘indirect’’ financing activity that is primarily with Brokerage Commissions, Investment Company Release No. 30897 (July 7, 1992) [57 FR 30985 (July intended to result in the sale of fund shares. Rule 13, 1992)], at text accompanying n. 9. 12b–1(a)(2). When we adopted the rule, we noted Act Release No. 21221 (July 21, 1995) [60 FR 38918 27 NASD Conduct Rule 2830(k) (Execution of that ‘‘there can be no precise definition of what (July 28, 1995)] (requiring funds, in calculating the Investment Company Portfolio Transactions). types of expenditures constitute indirect use of cost of various services, to account for amounts 28 NASD Conduct Rule 2830(k)(7)(B). fund assets.’’ 1980 Adopting Release, supra note. paid with commission dollars).
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their advisory fees.36 An adviser that Pressures to generate brokerage Finally, the direction of valuable fund uses fund assets to promote the sale of commissions may also lead to an brokerage to compensate brokers for the fund shares may be able to avoid having increase in portfolio turnover rates, sale of fund shares may permit brokers to pay fees out of its own pocket which may drive up fund costs and to circumvent the NASD’s rules against (‘‘revenue sharing’’). Although fund harm performance.40 At a minimum, excessive sales charges,44 thus advisers have similar conflicts with this practice disadvantages funds that, undermining the protections afforded respect to the use of other fund assets because of investment considerations, fund shareholders by those rules and by that flow through a rule 12b–1 plan, the do not actively trade their portfolios.41 section 22(b) of the Act, which use of fund brokerage exacerbates the We are also concerned about the effect authorized them.45 conflicts and complicates efforts to of this practice on the relationship A. Proposed Ban on Directed Brokerage control them because of the practical between broker-dealers and their limitations on the ability of fund customers.42 Receipt of brokerage In light of these concerns, we are directors to monitor and evaluate the commissions by a broker-dealer in proposing amendments to rule 12b–1 motivations behind the selection of exchange for shelf space creates an under the Act to prohibit funds from brokers to effect portfolio securities incentive for the broker to recommend compensating a broker-dealer for transactions.37 funds that best compensate the broker promoting or selling fund shares by We believe that the way brokerage has rather than ones that meet the directing brokerage transactions to that been used to pay for distribution customer’s investment needs.43 Because broker.46 The rule would also prohibit involves unmanageable conflicts of of the lack of transparency of brokerage step-out and similar arrangements interest that may harm funds and fund transactions and their value to a broker- designed to compensate selling brokers shareholders.38 The intense competition dealer, customers may not have for selling fund shares.47 we observe among fund advisers to appreciated the extent of this conflict. We request comment on the proposed secure a prominent position in the ban on the use of brokerage selling brokers’ distribution systems incentivize or support dealers that sell fund shares commissions to pay brokers for selling (‘‘shelf space’’) creates powerful pose heightened concerns, especially when such fund shares.48 arrangements may encourage an adviser to pay incentives for fund advisers to direct more than going market rates for trading 44 See supra notes 22 through 26 and brokerage based on distribution commissions’’). See also In re Kingsley, Jennison, accompanying text. considerations rather than quality and McNulty & Morse Inc., Investment Advisers Act 45 15 U.S.C. 80a–22(b). Although we need not price considerations. These incentives Release No. 1396 (Dec. 23, 1993) [51 SEC 904] (finding conflict of interest in adviser’s soft dollar address the question today, the use of fund may adversely affect decisions about arrangement with a broker even though the brokerage commissions to finance distribution for how and where to effect portfolio arrangement did not result in adviser’s client the economic benefit of the fund’s adviser also paying higher than the market commission rate for raises troubling questions under section 17(e)(1) of securities transactions, and thus affect the Investment Company Act. 15 U.S.C. 80a– the quality of portfolio transactions.39 transactions executed by the broker; conflict existed because by selecting that broker, the adviser 17(e)(1) (making it unlawful for any affiliated avoided having to pay for the soft dollar benefits person of a fund, ‘‘acting as agent, to accept from 36 Bearing of Distribution Expenses by Mutual out of its own assets). any source any compensation * * * for the purchase or sale of any property to or for [the fund] Funds, Investment Company Act Release No. 10252 40 PPI Report, supra note 38, at 174 (‘‘A high except in the course of such person’s business as (May 23, 1978) [43 FR 23589 (May 31, 1978)], at text portfolio turnover rate may result from a bona fide an underwriter or broker’’). See, e.g., In re Duff & following n.5 (‘‘The fact that mutual fund advisers judgment that a policy of active trading is most Phelps Investment Management Co., Inc., are paid fees based on a percentage of the fund’s likely to lead to optimum investment performance, Investment Company Act Release No. 25200 (Sept. assets causes the growth of the fund through the especially during periods of great volatility. But it 28, 2001) (finding that adviser ‘‘willfully violated sale of additional shares generally to be in the may also result from the managers’ decision to adviser’s interest.’’). section 17(e)(1)’’ by directing a fund’s brokerage generate a substantial volume of brokerage transactions to a broker-dealer in return for client 37 See, e.g., Letter from Matthew P. Fink, commissions for the purpose of stimulating the sale referrals); In re Fleet Investment Advisors Inc. (as President, Investment Company Institute, to of new shares.’’). See also Note, The Use of successor to Shawmut Investment Advisers, Inc.), William H. Donaldson, Chairman, SEC (Dec. 16, Brokerage Commissions to Promote Mutual Fund Investment Advisers Act Release No. 1821 (Sept. 9, 2003) (http://www.ici.org/statements/cmltr/03 Sales: Time to Give Up the ‘‘Give-Up’’, 68 Colum. _ _ _ _ 1999) (finding that affiliated adviser’s receipt of sec soft com.html#P37 12572) (‘‘ICI Letter’’) L. Rev. 334, 339 (1968) (‘‘But even where true client referrals in return for the direction of fund (noting that the use of brokerage commissions to churning does not exist, the pressure to create give- brokerage commissions was compensation in finance distribution ‘‘can give rise to the ups may push a doubtful transaction over the line violation of section 17(e)(1)); In re Provident appearance of a conflict of interest, as well as the into execution.’’) (footnote omitted). Management Corp., Investment Advisers Act potential for actual conflicts, given the fact-specific 41 See PPI Report, supra note 38, at 17, 174, and Release No. 277 (Dec. 1, 1970) (finding that fund nature of the best execution determination’’). 180. affiliates violated and/or aided and abetted in the 38 We came to a similar conclusion in 1966 when 42 See, e.g., In re Morgan Stanley, Inc., Securities violation of section 17(e)(1) by directing fund we examined similar reciprocal brokerage practices Act Release No. 8339 (Nov. 17, 2003) (finding brokerage to brokers that provided commission in a report to Congress discussing the public policy broker-dealer had willfully violated section 17(a)(2) recapture and free sales material to the fund’s implications of investment company growth. of the Securities Act [15 U.S.C. 77q(a)(2)], rule 10b– primary retail distributor). Securities and Exchange Commission, Report on the 10 [17 CFR 240.10b–10] under the Securities 46 Proposed rule 12b–1(h)(1). The rule would Public Policy Implications of Investment Company Exchange Act of 1934 (‘‘Exchange Act’’), and NASD prohibit funds from financing distribution of fund Growth, H.R. Rep. No. 89–2337, at 186 (1966) (‘‘PPI Conduct Rule 2830(k) by failing to disclose to its shares through the direction of any service related Report’’) (the use of brokerage commissions for clients who purchased fund shares that it was being to effecting a fund brokerage transaction, including sales of fund shares has ‘‘an adverse effect on paid by certain fund companies, with a performing or arranging for the performance of any mutual funds and their shareholders’’). At the time, combination of cash and brokerage commissions, to function related to the processing of that transaction the Commission believed that such practices could make special efforts to market those funds); NASD (e.g., transmission of an order for execution, be addressed through reform of commission rate Charges Morgan Stanley with Giving Preferential execution of an order, or clearance and settlement schedules by the securities exchanges to permit Treatment to Certain Mutual Funds in Exchange for of the transaction). The prohibition would include volume discounts on large trades. Id. at 187. See Brokerage Commission Payments, NASD News the direction of brokerage from transactions also Wharton School of Finance and Commerce, A Release (Nov. 17, 2003) (announcing companion executed by government securities brokers and Study of Mutual Funds, H.R. Rep. No. 87–2274, at NASD action for violation of NASD Conduct Rule dealers and municipal securities dealers. 539 (1962). Even after the elimination of fixed 2830(k) by, among other things, favoring the 47 Proposed rule 12b–1(h)(2). In addition to step- commission rates, the problems identified in 1966 distribution of shares of particular funds on the outs, the rule would prohibit, for example, the use persist. basis of brokerage commissions to be paid by the of arrangements in which a portion of a fund’s 39 See, e.g., Kent Knudson, Mutual Fund funds). See also Laura Johannes and John brokerage commissions are ‘‘rebated’’ to an account Distribution Payments: Navigating the Conflicts, 3 Hechinger, Conflicting Interests: Why a Brokerage maintained for the fund and later paid to a selling J. of Investment Compliance 25, 26 (Winter 2002– Giant Pushes Some Mediocre Mutual Funds, Wall broker. 2003) (noting that while any type of distribution St. J., Jan. 9, 2004, at A1. 48 We note that the NASD recently filed with us payment gives rise to conflicts, ‘‘it would seem that 43 See Ruth Simon, Why Good Brokers Sell Bad a proposed rule change to eliminate the exception soft-dollar arrangements using fund commissions to Funds, Money, July 1991, at 94. Continued
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• Are our concerns about this practice describe in its statement of additional payments in the sale of fund shares.54 justified? information (‘‘SAI’’) the material aspects We considered whether modifications to • Are there alternative measures that of the fund’s plan and any agreements the disclosure requirements would we could take to address the use of related to the implementation of the adequately address the problems we brokerage commissions to finance plan, including the dollar amounts describe above. Our concern with this distribution? spent on specific kinds of distribution approach, however, is that it may not be • Would brokerage commissions be activities, including the compensation effective in preventing funds and fund reduced by eliminating the use of paid to selling broker-dealers.51 In shareholders from being harmed by the commissions to pay for distribution? addition, a fund’s SAI must describe conflicts of interest that surround the Would there be greater competition in how the fund selects brokers to effect use of fund brokerage to pay for commission rates? securities transactions, including a distribution. In addition, the • If we ban this practice, would the description of any factors the fund will complicated nature of the various primary effect be to increase brokers’ consider in selecting brokers, and arrangements for using brokerage demands on advisers to make payments identification of the products or services commissions may be difficult for out of their assets, i.e., revenue sharing? the fund receives that it considers in investors to comprehend and to Are we correct in our assumption that making its selection.52 Rule 10b–10 compare across different funds. properly disclosed revenue sharing under the Exchange Act, the general • Should we increase or revise the payments present more manageable confirmation rule governing broker- disclosure requirements concerning the conflicts for funds and broker- dealers, requires disclosure regarding use of brokerage commissions to pay dealers? 49 the source and extent of payments to brokers for selling fund shares? Instead • If our assumption is incorrect, broker-dealers in selling fund shares, of banning directed brokerage, is there should we take additional steps to including payments to broker-dealers in a disclosure-based alternative that address revenue sharing concerns? If so, the form of portfolio brokerage would adequately address the concerns what steps should we take? commissions.53 Recently, we proposed discussed above. If so, what should be We also seek comment on whether we rules requiring brokers to provide the format of these disclosures? Where should propose instead that funds improved disclosure, at the point of sale should these disclosures be located—in provide more complete disclosure to and in mutual fund confirmation the prospectus, the SAI, or the annual shareholders of the use of brokerage statements, of the receipt of brokerage reports? • commissions to pay brokers for selling commissions and revenue sharing Should the disclosures be fund shares or otherwise modify or quantitative (e.g., discuss the amount of relocate the disclosures we currently information must be based upon a fund’s most brokerage commissions) or qualitative require. Funds currently must disclose recent fiscal year, but the information must be (e.g., discuss the nature of the certain information relating to restated if there have been any changes that would arrangements and the potential conflicts arrangements by which brokerage materially affect the information that is disclosed in of interest), or both? Could a single the table. Instructions 3.d.(i)–(ii) to Item 3 of Form commissions are used to compensate N–1A. Miscellaneous expenses paid through quantitative measure accurately disclose broker-dealers for selling fund shares. A brokerage commissions must be reflected in the the costs under the many different fund must disclose in the fee table in its amount of expenses and expense ratio in a fund’s arrangements through which brokerage prospectus the amounts paid pursuant statement of operations, which is part of its semi- commissions are used to pay for annual and annual reports to shareholders and to the 12b–1 plan, as a percentage of its financial statements. See Investment Company Act distribution? 50 • average net assets. A fund also must Release No. 21221, supra note 35, and rule 6.07(g) Would the disclosures enable of Regulation S–X under the 1933 Act. In addition, shareholders, either directly or based on to the Anti-Reciprocal Rule, which, as discussed a fund’s brokerage commissions, including the above, permits NASD members to sell shares of portion that is used to pay for distribution, are 54 Proposed rule 15c2–2 under the Exchange Act funds that follow a disclosed policy ‘‘of considering reflected in the fund’s net asset value, and are would require confirmation statements for fund sales of their shares as a factor in the selection of consequently reflected in the fund’s performance share purchases, among other disclosures, to state: broker/dealers to execute portfolio transactions, calculations, regardless of whether the amounts are (i) The amount of any dealer concession the broker- subject to best execution.’’ NASD Conduct Rule paid pursuant to a 12b–1 plan. See Items 2(c)(2) and dealer will earn in connection with the transaction, 2830(k)(7)(B). The NASD’s proposal also would 21 of Form N–1A. expressed in dollars and as a percentage of the net prohibit a broker-dealer from selling a fund if the 51 Item 15(g) of Form N–1A. This item also amount invested; and (ii) the amount directly or broker-dealer knows of an arrangement under requires the fund to disclose (i) whether the fund indirectly earned by the broker-dealer and any of which the fund directs portfolio securities participates in any joint distribution activities with its associated persons in connection with revenue transactions to pay for distribution of fund shares. another fund, and (ii) whether the fund’s sharing payments or brokerage commissions from Proposed Amendment to Rule Relating to Execution investment adviser (or any other interested person the fund complex over the four most recent of Investment Company Portfolio Transactions, of the fund) has a direct or indirect interest in the calendar quarters, expressed as a percentage of the NASD Rule Filing 2004–027 (Feb. 10, 2004) (http:/ financial operation of the 12b–1 plan or any related total net asset value of the securities issued by the _ /www.nasdr.com/pdf-text/rf04 27.pdf). Pursuant to agreements. Id. In addition, a fund’s statement of fund complex sold by the broker-dealer over that Exchange Act Section 19(b) [15 USC. 78s(b)] and operations, must disclose the total dollar amounts period. The rule also would require the rule 19b–4 [17 CFR 240.19b–4], we will publish that the fund paid under the 12b–1 plan. See rule confirmation to disclose the amount of revenue notice of and seek comment on the NASD’s 30d–1 under the Investment Company Act sharing or brokerage commissions the broker-dealer proposed rule. (requiring certain information in a fund’s semi- might receive in connection with the transaction, 49 See Confirmation Requirements and Point of annual and annual reports to shareholders) and rule calculated by multiplying the percentage expressing Sale Disclosure Requirements for Transactions in 6–07(f) of Regulation S–X (requiring a fund’s the amount of revenue sharing or brokerage Certain Mutual Funds and Other Securities, and statement of operations to provide a statement of all commission by the net amount invested in the Other Confirmation Requirement Amendments, and amounts that were paid by the fund in accordance transaction. See Disclosure Requirements Release, Amendments to the Registration Form for Mutual with a 12b–1 plan). supra note 49. Proposed rule 15c–3 would require Funds, Investment Company Act Release No. 26341 52 Item 16(c) of Form N–1A. This disclosure is not brokers, dealers, and municipal securities dealers to (Jan. 29, 2004) [69 FR 6438 (Feb. 10, 2004)] as specific, however, as the disclosure required provide specific information to investors at the (‘‘Disclosure Requirements Release’’). concerning research services a fund receives that point of sale (or before they purchase fund shares), 50 Item 3 of Form N–1A requires all funds to factor into its selection of brokers. A fund that including (i) an estimate of the asset-based sales provide a fee table that discloses, among other directs brokerage to a broker because of research charge and service fee that, in the year following the things, ‘‘Distribution [and/or Service] (12b–1) services provided must state the amount of the purchase, the fund would incur in connection with Fees.’’ This phrase is defined in instruction 3.b. to transactions and related commissions. See item the shares purchased if net asset value does not Item 3 as including ‘‘all distribution or other 16(d) of Form N–1A. change, and (ii) whether the selling broker, dealer, expenses incurred during the most recent fiscal year 53 See Disclosure Requirements Release, supra or municipal securities dealer receives brokerage under a plan adopted pursuant to rule 12b–1.’’ The note 49, at text accompanying nn. 35 and 36. commissions from the fund complex. See id.
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assessments by investment analysts, to than those we recently required all IV. Request for Comment on Further choose between funds that engage in funds and investment advisers to Amendments to Rule 12b–1 these types of arrangements? adopt.59 The proposed requirement is • We also request comment on whether What costs would a fund likely designed to ensure the active we should propose additional changes incur in making these disclosures? monitoring of brokerage allocation • to rule 12b–1 to address other issues Should we revise the disclosure decisions when executing brokers also that have arisen under the rule, or requirements and ban the use of distribute the fund’s shares. 60 • propose to rescind the rule. As our brokerage commissions in the manner Is it appropriate to require funds staff has noted, the current practice of described above? Should we revise the that execute transactions through their using 12b–1 fees as a substitute for a disclosure requirements and ban only selling brokers to implement policies sales load is a substantial departure certain types of arrangements under and procedures to ensure that from the use of the rule envisioned by which brokerage commissions are used distribution considerations do not affect the Commission when we adopted the to finance distribution? execution decisions? rule in 1980.61 As a result, its provisions • Is the scope of the proposed may not address a number of matters B. Policies and Procedures policies and procedures appropriate? that today face funds and fund Should we include different or We are also proposing to require that shareholders.62 The comments we additional objectives? any fund (or its adviser) that directs any receive will help us consider whether to portfolio securities transactions to a • Would these policies and procedures be effective in preventing propose further amendments. selling broker-dealer implement policies One approach on which we would funds and broker-dealers from and procedures designed to ensure that particularly like to receive comment circumventing the ban on paying its selection of brokers to effect portfolio would refashion rule 12b–1 to provide distribution-related expenses with securities transactions is not influenced that funds deduct distribution-related brokerage commissions? by considerations about the sale of fund costs directly from shareholder accounts 55 • Should we adopt other measures to shares. These procedures must be rather than from fund assets. Under this reasonably designed to prevent: (i) The help the fund monitor the use of fund brokerage? The rule would require the persons responsible for selecting broker- 60 When we adopted the rule, we noted: ‘‘The dealers to effect transactions in fund board of directors to approve the Commission and its staff will monitor the operation portfolio securities (e.g., trading desk policies and procedures. Should we also of the rules closely and will be prepared to adjust personnel) from taking broker-dealers’ require the board of directors to monitor the rules in light of experience to make the the fund’s adherence to the policies and restrictions on use of fund assets for distribution promotional or sales efforts into account either more or less strict.’’ See 1980 Adopting in making those decisions;56 and (ii) the procedures, or to approve the allocation Release, supra note 21. fund, its adviser or principal of brokerage? Should we require the 61 Division of Investment Management, SEC, fund’s adviser to report to the board on Report on Mutual Fund Fees and Expenses 81 underwriter, from entering into any (2000) (‘‘Staff Fee Report’’). See also William P. agreement under which the fund directs its decisions regarding brokerage allocation? Are there other measures we Dukes and James B. Wilcox, The Difference Between brokerage transactions or revenue Application and Interpretation of the Law as it generated by those transactions to a should require the board to take to Applies to SEC Rule 12b–1 Under the Investment broker-dealer to pay for distribution of ensure that brokerage decisions are not Company Act of 1940, 27 New Eng. L. Rev. 9 (1992). 62 We have, however, responded to the evolution the fund’s shares.57 The fund’s board of influenced by brokers’ distribution efforts? of rule 12b–1 plans in a number of ways, including, directors, including a majority of its for example, approving NASD rules capping the • Should we require a fund’s chief independent directors, must approve amount of fund distribution expenses (see supra trading officer (or another official of the the policies and procedures.58 notes 22 through 26, and accompanying text), and fund or its adviser) to certify adopting a rule permitting multiple classes of The policies and procedures that the periodically that the selection of brokers shares. See rule 18f–3 under the Investment rule would require are more specific Company Act [17 CFR 270.18f–3]. See also to execute the fund’s portfolio securities Exemption for Open-End Management Investment transactions was made without taking Companies Issuing Multiple Classes of Shares; 55 Proposed rule 12b–1(i). As with all other Disclosure by Multiple Class and Master-Feeder portfolio securities transactions, the fund’s adviser into account the brokers’ promotion or Funds; Class Voting on Distribution Plan, has a fiduciary duty to seek best execution. The sale of shares issued by the fund or any Investment Company Act Release No. 20915 (Feb. adviser must see that these portfolio securities other fund? 23, 1995) [60 FR 11876 (Mar. 2, 1995)]. In 2000, our transactions are executed ‘‘in such a manner that • Should we include a safe harbor in staff recommended that we revisit rule 12b–1 in the client’s total cost or proceeds in each light of ‘‘changes in the manner in which funds are transaction is most favorable under the the rule for funds that execute portfolio marketed and distributed and the experience gained circumstances.’’ In re Kidder, Peabody & Co., Inc., securities transactions with a selling from observing how rule 12b–1 has operated since Investment Advisers Act Release No. 232 (Oct. 16, broker? If so, what conditions should we it was adopted in 1980.’’ Staff Fee Report, supra 1968). See also Section 28(e) Interpretive Release, include in the safe harbor? Would the note 61. More recently, the staff has stated that it supra note 17; Applicability of the Commission’s absence of a safe harbor affect the ability will continue to assess the issues raised by rule Policy Statement on the Future Structure of the of funds to obtain best execution? 12b–1 in light of the recommendations in the Staff Securities Markets to Selection of Brokers and Fee Report and changes in distribution practices Payment of Commissions by Institutional Managers, III. General Request for Comment since the rule’s adoption. See Memorandum from Investment Company Act Release No. 7170, [1971– Paul F. Roye, Director, SEC Division of Investment 72 Transfer Binder] Fed. Sec. L. Rep. (CCH) 78,776 We request comment on the proposed Management, to William H. Donaldson, Chairman, (May 17,1972) (advisers ‘‘must assign executions rule amendments described above, SEC (June 9, 2003) (http://financialservices. and pay for brokerage services in accordance with including suggestions for additional house.gov/media/pdf/02–14–70%20memo.pdf). the reliability and quality of those services and their Former Chairman Pitt called for a reexamination of value and expected contribution to the performance provisions or changes, and comments distribution practices. Harvey L. Pitt, Chairman, of the account they are managing’’). on other matters that might have an SEC, Speech to the Investment Company Institute 56 Proposed rule 12b–1(i)(1). effect on the proposal. We encourage General Membership Meeting (May 24, 2002). See 57 Proposed rule 12b–1(i)(2). The policies and commenters to provide data to support also Brooke A. Masters, Counting the Costs of Fund procedures should be designed to reach any Fees; Investigators’ Attention Turns to Legal, arrangement or other understanding, whether their views. Lucrative ‘‘Advertising’’ Charges, Washington Post, binding or not, between a fund and a broker-dealer, Dec. 4, 2003, at E1; Craig A. Rubinstein, Excessive including an understanding to direct brokerage to 59 See Compliance Programs of Investment Mutual Fund Advisory Fees: Give-Ups in Rule 12b– a government securities broker or dealer or a Companies and Investment Advisers, Investment 1 Clothing?, 14 Ann. Rev. Banking L. 385, 404 municipal securities dealer. Company Act Release No. 26299 (Dec. 17, 2003) [68 (1995) (recommending that we consider repealing 58 Proposed rule 12b–1(i). FR 74714 (Dec. 24, 2003)]. rule 12b–1).
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approach, a shareholder purchasing and NASD rule 2830(d) designed to Some have suggested that, instead of $10,000 of fund shares with a five address these conflicts could be modifying rule 12b–1, we should percent sales load could pay a $500 substantially reduced or eliminated, rescind the rule.70 sales load at the time of purchase, or reducing related legal and compliance Critics of the rule often argue that it could pay an amount equal to some costs that fund shareholders have no longer serves the purposes for which percentage of the value of his or her ultimately born.67 it was intended.71 Others contend that account each month until the $500 A shareholder account-based rescinding the rule would harm funds amount is fully paid (plus carrying approach to distribution payments also and fund shareholders.72 We request interest).63 If the shareholder redeemed could simplify investing in funds and comment on whether we should before the amount was fully paid, the eliminate many of the problems with propose to rescind the rule. proceeds of the redemption would be fund sales practices we see today. Funds • If we were to rescind the rule, what reduced by the unpaid amount.64 As would no longer need to have separate would be the consequences for funds, with other sales charges, the account- classes of shares based on rule 12b–1 fund shareholders, fund advisers, and based fees would be subject to NASD fees, which many shareholders have brokers that sell fund shares? How caps.65 found very confusing.68 Fund would elimination of the rule affect the This approach may have a number of prospectuses would be shorter and more aggregate amount of shareholder advantages compared to current understandable. Sales practice abuses expenses? What alternate methods of arrangements under which the fund associated with the existence of separate financing distribution would funds and pays fees pursuant to a rule 12b–1 plan classes could also be eliminated.69 advisers use? approved by shareholders and overseen • We request comment on these • Should the fund’s adviser or by fund directors. First, the amounts ideas, particularly from shareholders principal underwriter pay all charged and their effect on shareholder who pay 12b–1 fees and fund directors promotional expenses, or are there value would be completely transparent who are charged with supervising certain distribution expenses that to the shareholder because the amounts funds’ 12b–1 plans. Would a should be paid with fund assets? will appear on the shareholder’s shareholder account-based approach • Funds often pay for administrative account statements. Second, existing make sense? services provided by third parties with shareholders would not pay the costs of asset-based fees.73 If we were to propose selling to new fund shareholders’costs 67 Fund distributors could also benefit. Unlike to rescind rule 12b–1, should we also that often may yield them few benefits. rule 12b–1 fees, which are subject to annual propose restrictions on the use of asset- renewal by fund directors, an account-based based fees to ensure that distribution Third, long-term shareholders would no distribution fee could provide a dependable and longer, as a result of paying a share of legally certain flow of payments, that are unaffected expenses are not improperly 12b–1 fees over a lengthy period, pay by any shrinkage in fund assets. See John Shipman, characterized as, e.g., shareholder amounts that exceed their fair share of B-ware: Shares with Back-End Loads Can Sting account servicing expenses? 66 Investors and Fund Companies, Barron’s, Jan. 6, • If we were to rescind rule 12b–1, distribution costs. 2003, at L10 (‘‘[N]ow that the bear market has A shareholder account-based battered many portfolios, 12b–1 and back-end fees would particular types of funds, such as approach to distribution payments are being drawn from a shrinking base of assets, would help to eliminate the substantial producing lower-than-expected cash flows.’’); Tom 70 See, e.g., Neil Weinberg, Let the Sun Shine, Leswing, Munder B Share Sales Continue to Sting Forbes, Dec. 22, 2003, at 72; Rubinstein Article, conflicts of interest presented by the use Parent, Ignites.com, Oct. 17, 2002 (http:// supra note 62. of fund assets to pay for distribution. As www.ignites.com/) (reporting Comerica’s $5 million 71 See, e.g., Oversight Hearing on Mutual Funds: a result, the role of fund directors in charge against third-quarter revenues as a result of Hidden Fees, Misgovernance and Other Practices approving methods of distribution could a decline in its subsidiary’s revenue from 12b–1 that Harm Investors, Hearings Before the fees corresponding to a decline in assets under Subcommittee on Financial Management, the be eliminated (or substantially management). Budget, and International Security of the Senate circumscribed), freeing their time to 68 See, e.g., Timothy Middleton, Abecedarians, Committee on Governmental Affairs 108th Cong., address other significant matters. Rule Take Note: Classes Multiply, N. Y. Times, Nov. 26, 2d Sess. (Jan. 27, 2004) (statement of Travis B. 12b–1’s shareholder voting 1996, at 8 (‘‘Fund companies have shown great Plunkett, Legislative Director, Consumer Federation ingenuity in creating share classes that, while legal, of America). requirements could be eliminated, may leave buyers baffled.’’); Andrew Leckey, 72 See, e.g., Masters, Counting the Costs of Fund reducing fund expenses. The detailed Understanding Shares Isn’t As Easy As ABC, Chi. Fees, supra note (‘‘Mutual fund company officials regulatory requirements of rule 12b–1 Trib., Aug. 7, 2001, at 7 (‘‘Mutual fund share classes defend 12b–1 fees, saying the charge has opened up have become a confusing alphabet soup for a wider range of investment options for the more investors who put money into so-called ‘‘load’’ than 60 percent of mutual fund investors who buy 63 In choosing between paying a front-end load or mutual funds that require a sales charge.’’). See also through brokers.’’); Stephen Schurr, False spreading the payment of the load over time, a Gregg Greenberg, Mutual Fund Class Warfare, Advertising; The Truth About 12b–1 Fees, shareholder would have to take into consideration, TheStreet.com, Dec. 3, 2003 (http://www.thestreet. TheStreet.com, Aug. 31, 2003 (http:// among other factors, the possibility that payment of com/funds/gregggreenberg/10129505.html). www.thestreet.com/_tscs/funds/stephenschurr/ loads through periodic automatic redemptions (to 69 Recently, we have instituted a number of 10107579.html) (‘‘[T]o the Investment Company the extent that the loads exceed distributions) may actions against firms and registered representatives Institute, which represents the fund industry, 12b– result in the shareholder realizing capital gains or for selling Class B shares, which generated higher 1 fees serve a vital function to individuals and have losses. commissions than class A shares, to clients for actually helped drive fund expenses down over the 64 Funds today may charge account-based whom Class A shares were more suitable. See, e.g., past 20 years.’’). distribution fees. See rule 6c–10 under the In re Prudential Securities, Inc., Exchange Act 73 See, e.g., Investment Company Institute, Use of Investment Company Act, and Exemption for Release No. 48149 (July 10, 2003); In re Morgan Rule 12b–1 Fees by Mutual Funds in 1999, Certain Open-end Management Investment Stanley DW Inc., Exchange Act Release No. 48789 Fundamentals, Apr. 2000, at 2 (Figure 2) (http:// Companies to Impose Deferred Sales Loads, (Nov. 17, 2003); In re Kissinger, Exchange Act www.ici.org/stats/res/fm-v9n1.pdf) (finding, based Investment Company Act Release No. 22202 (Sept. Release No. 48178 (July 15, 2003). The NASD also on a survey of 95 fund complexes, that 32% of 12b– 9, 1996) [61 FR 49011 (Sept. 17, 1996)] (referring has instituted actions for Class B sales practice 1 fees are used to pay for administrative services). to these distribution arrangements as ‘‘installment abuses. See, e.g., NASD Brings Enforcement Action In addition to imposing asset-based sales charges, loads’’). for Class B Mutual Fund Share Sales Abuses and NASD rules permit an asset-based ‘‘service fee’’ of 65 See supra notes through and accompanying Issues Investor Alert on Class B Shares, NASD up to 0.25% to cover ‘‘payments by an investment text. News Release, June 25, 2003 (‘‘Today’s action is company for personal service and/or the 66 Although classes of shares carrying rule 12b– part of a larger, ongoing focus of NASD on the sale maintenance of shareholder accounts.’’ NASD 1 fees may be structured to convert to classes of Class B mutual fund shares. In the last two years Conduct Rules 2830(b)(9) (defining ‘‘Service fees’’) without rule 12b–1 fees, those conversions typically NASD has brought more than a half dozen and 2830(d)(5) (prohibiting NASD members from do not occur for a substantial period of time, e.g., significant enforcement cases involving sales selling a fund if its service fee, as disclosed in its ten years. violations of Class B shares.’’). prospectus, exceeds 0.25%).
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funds with fewer net assets or newer whether fund advisers and broker- pay for distribution of the fund’s shares. funds, be disproportionately dealers, rather than funds and fund We do not anticipate that drafting or disadvantaged? shareholders, are the beneficiaries of implementing these policies and • How would rescission of rule 12b– these arrangements. procedures will be costly. 1 affect distribution arrangements, e.g., The proposed amendments, by By narrowing the options for fund supermarkets and other prohibiting the practice of directing financing distribution of fund shares, arrangements that anticipate the receipt brokerage for distribution, would the proposed amendments could impose of 12b–1 fees? address this conflict of interest. The costs on funds and their advisers. If the • If we rescind the rule, should we proposal would benefit fund remaining methods of financing propose a new rule that would prohibit shareholders by prohibiting the adviser distribution are not adequate, funds may the use of fund assets to pay for sales from considering distribution as a factor not grow as quickly as they otherwise and distribution expenses? in selecting an executing broker. Funds would have. Advisers, whose V. Cost-Benefit Analysis would be able to use the entire amount compensation is generally tied to net of the brokerage commission to assets, may experience slower growth in We are sensitive to the costs and purchase execution and other services their advisory fees, and fund benefits that result from our rules. The of direct benefit to funds and their shareholders may not benefit from the proposed amendments would prohibit shareholders. By removing distribution economies of scale that accompany asset the use of brokerage commissions to as a factor in the selection of selling growth.74 compensate broker-dealers for the brokers, the proposed amendments will distribution of fund shares. We enhance the likelihood that advisers C. Request for Comment encourage commenters to identify, will select brokers based on the quality We request comment on the potential discuss, analyze, and supply relevant and cost of execution. costs and benefits identified in the data regarding these or any additional B. Costs proposal and any other costs and costs and benefits. benefits that may result from the A. Benefits The proposed amendments might proposed amendments. For purposes of decrease the commissions received by The proposed amendments would the Small Business Regulatory broker-dealers and might impose new Enforcement Fairness Act of 1996, the benefit funds and their shareholders. An costs on investment advisers and funds. increasing number of funds are using a Commission also requests information The elimination of brokerage regarding the impact of the proposed limited number of distribution commissions as a source of distribution channels, and the broker-dealers who rule on the economy on an annual basis. financing could reduce the amount of Commenters are requested to provide control these channels routinely compensation that broker-dealers data to support their views. demand supplemental payments (in receive for selling fund shares and could addition to the compensation they dissuade them from selling fund shares. VI. Consideration of Promotion of receive in the form of sales charges) for Selling brokers are likely to seek to Efficiency, Competition, and Capital access to that distribution network. We make up for any shortfall from other Formation have found that one form of sources. To the extent that distribution Section 2(c) of the Investment supplemental compensation comes from fees do not currently exceed the NASD’s Company Act mandates the directed brokerage arrangements, caps, funds may institute or increase Commission, when engaging in pursuant to which fund advisers direct fees deducted from fund assets under a rulemaking that requires it to consider brokerage commissions from fund rule 12b–1 plan. Alternatively, advisers or determine whether an action is portfolio securities transactions to may increase the payments that they necessary or appropriate in the public selling brokers. A prohibition on using make to broker-dealers out of their own interest, to consider, in addition to the directed brokerage to pay for assets, which are likely to cause protection of investors, whether the distribution would reduce the ability of advisers’ costs to rise. action will promote efficiency, selling brokers to demand supplemental We assume that a great majority of, if competition, and capital formation.75 distribution payments, and may reduce not all, funds are likely to find that, for As discussed above, the proposed commission rates that funds pay to the some portfolio transactions, the broker- amendments would prohibit funds from extent that these payments would be dealer who can provide best execution compensating selling brokers with excluded from the commission rate. also distributes the fund’s shares. Thus, Fund brokerage is a valuable fund we assume that all funds will incur commissions generated from fund asset and thus should be used in the costs in order to comply with the portfolio securities transactions. This manner that most benefits the fund and requirement for policies and procedures new prohibition could promote its shareholders. Using excess brokerage contained in the proposed amendments. efficiency by eliminating brokers’ commissions to finance distribution Specifically, they or their advisers selling efforts, which are not indicative currently imposes a cost on funds, would be required to institute policies of their execution capabilities, as a because those brokerage commissions and procedures reasonably designed to factor that fund advisers use in selecting are unavailable to pay for other services prevent: (i) The persons responsible for an executing broker. Efficiency also for the fund. Because this cost is selecting broker-dealers to effect would be enhanced because, if difficult to quantify, however, fund transactions in fund portfolio securities commissions are not used to finance the shareholders may not realize the true (e.g., trading desk personnel) from distribution of a fund’s shares, lower cost of financing distribution in this taking broker-dealers’ promotional or commission rates may be available or manner. The difficulty of quantifying sales efforts into account in making the fund may be able to obtain other the cost to the fund of brokerage those decisions; and (ii) the fund, its services more directly beneficial to it financing makes the conflicts of interest adviser or principal underwriter, from and its shareholders. accompanying the direction of fund entering into any agreement under 74 Historically, however, fund shareholders have brokerage particularly acute. Our staff’s which the fund directs brokerage not always enjoyed lower expenses as a result of recent review of directed brokerage transactions or revenue generated by increased assets. practices has raised questions about those transactions to a broker-dealer to 75 15 U.S.C. 80a–2(c).
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We do not anticipate that these Investment Company.’’’ An agency may in the context of its examination and proposed amendments would harm not conduct or sponsor, and a person is oversight program are generally kept competition. All funds would be not required to respond to, a collection confidential.77 precluded from using this form of of information unless it displays a The current annual information compensation. In addition, the currently valid control number. The collection burden for rule 12b–1 is amendments should reduce incentives approved collection of information 621,700 hours. We estimate that, if the that broker-dealers currently have to associated with rule 12b–1, which proposed amendments are adopted, the base their fund recommendations to would be revised by the proposed burden will increase to 628,833 hours. customers on payment for distribution. amendments, displays OMB control Our staff estimates that there are The amendments also could foster number 3235–0212. approximately 6,185 mutual fund greater competition in brokerage Rule 12b–1 permits funds to use their portfolios with rule 12b–1 plans.78 We commission rates by unbundling assets to pay distribution-related costs. anticipate that, if the proposed distribution from execution. Thus, the In order to rely on rule 12b–1, a fund amendments are adopted, all of the proposed amendments are designed to must adopt ‘‘a written plan describing approximately 3,100 active open-end enhance competition. all material aspects of the proposed funds will implement the policies and The proposed amendments would financing of distribution’’ that is procedures required to use their selling prohibit a fund from relying on its approved by fund shareholders and brokers to execute portfolio securities selling brokers to effect fund portfolio fund directors. Any material transactions.79 securities transactions unless the fund amendments to the rule 12b–1 plan Based on conversations with fund has policies and procedures in place similarly must be approved by fund representatives, Commission staff designed to ensure the active directors, and any material increase in estimates that for each of the 6,185 monitoring of brokerage allocation the amount to be spent under the plan mutual fund portfolios that currently decisions when executing brokers also must be approved by fund shareholders. have a rule 12b–1 plan, the average distribute the fund’s shares. Thus, funds In considering a rule 12b–1 plan, the annual burden of complying with the would not be unnecessarily limited in fund board must request and evaluate rule is 100 hours to maintain the plan their choice of executing brokers, and information reasonably necessary to and the total burden hours per year for the proposed amendments would not make an informed decision. Rule 12b– all fund portfolios is 618,500 hours.80 In have adverse effects on competition in 1 also requires the fund to preserve for the first year after adoption of the the provision of brokerage services. We six years copies of the plan, any related proposed amendments, we estimate that do not anticipate that the proposed agreements and reports, as well as each fund will spend 10 hours to amendments would affect capital minutes of board meetings that describe comply with the new information formation. the factors considered and the basis for collection requirement, for a total of We request comment on whether the implementing or continuing a rule 12b– 31,000 additional burden hours in the proposed amendments will affect 1 plan. first year.81 The aggregate burden for all efficiency, competition, or capital To eliminate a practice that is fraught funds in the first year after adoption, formation. Would the proposed with conflicts of interest and may be therefore, is estimated to be 649,500 amendments materially affect the harmful to funds and fund shareholders, hours.82 We estimate that the average efficiency, competition, and capital we propose to amend rule 12b–1 to weighted annual burden for all funds formation of funds, advisers, or broker- prohibit funds from paying for the over the three-year period for which we dealers? Comments will be considered distribution of their shares with are requesting approval of the by the Commission in satisfying its brokerage commissions. The proposed information collection burden will be responsibilities under section 2(c) of the amendments would require funds that approximately 628,833 hours.83 Investment Company Act. Commenters use their selling brokers to execute If a currently operating fund seeks to are requested to provide empirical data securities transactions to implement, adopt a new rule 12b–1 plan or and other factual support for their views and their boards of directors (including materially increase the amount it spends to the extent possible. a majority of independent directors) to for distribution under its rule 12b–1 approve, policies and procedures. The VII. Paperwork Reduction Act policies and procedures would have to 77 See section 31(c) of the Investment Company The proposed amendments contain a be reasonably designed to prevent: (i) Act [15 U.S.C. 80a–30(c)]. ‘‘collection of information’’ requirement The persons responsible for selecting 78 This estimate, which is based on information within the meaning of the Paperwork broker-dealers to effect transactions in filed with the Commission by funds, reflects an Reduction Act of 1995.76 We are fund portfolio securities from taking adjustment from our previous estimate of 6,217. 79 We have estimated the information collection submitting this proposal to the Office of broker-dealers’ promotional or sales burdens associated with the policies and Management and Budget (‘‘OMB’’) for efforts into account in making those procedures required by the proposed amendments review in accordance with 44 U.S.C. decisions; and (ii) the fund, its adviser at the fund level, rather than the fund portfolio 3507(d) and 5 CFR 1320.11. The or principal underwriter, from entering level, because we anticipate that one set of policies and procedures will cover a fund consisting of proposed amendments would add into any agreement under which the multiple portfolios. ‘‘collection of information fund directs brokerage transactions or 80 6,185 fund portfolios × 100 hours per fund requirements’’ to the existing collection revenue generated by those transactions portfolio = 618,500 hours. This estimate takes into of information requirements under rule to a broker-dealer to pay for distribution account the time needed to prepare quarterly 12b–1 of the Investment Company Act of the fund’s shares. This requirement reports to the board of directors, the board’s consideration of those reports, and the board’s of 1940. The title for the collection of includes the following new information annual consideration of the plan’s continuation. information requirements associated collections: (i) A fund’s documentation 81 3,100 funds × 10 hours per fund = 31,000 with the proposed amendments is ‘‘Rule of its policies and procedures, and (ii) hours. 12b–1 under the Investment Company the approval by the board of directors of 82 618,500 hours to comply with existing Act, ‘Distribution of Shares by those policies and procedures. requirements + 31,000 hours to comply with the new requirements = 649,500. Registered Open-End Management The new information collection 83 649,500 hours in year 1 + 618,500 hours in year requirements would be mandatory. 2 + 618,500 hours in year 3/3 years = 628,833 76 44 U.S.C. 3501 to 3520. Responses provided to the Commission hours/year.
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plan, existing rule 12b–1 requires that be submitted to the Securities and funds that use selling brokers to execute the fund obtain shareholder approval. Exchange Commission, Records portfolio transactions would be required As a consequence, the fund will incur Management, Office of Filings and to implement policies and procedures. the cost of a proxy. Based on Information Services. We have no reason to expect that small conversations with fund representatives, VIII. Initial Regulatory Flexibility entities would be disproportionately Commission staff estimates that three Analysis affected by the proposed amendments. funds per year prepare a proxy in We request comment on the effects and connection with the adoption or This Initial Regulatory Flexibility costs of the proposed amendments on material amendment of a rule 12b–1 Analysis (‘‘IRFA’’) has been prepared in small entities. plan. We do not anticipate that the accordance with 5 U.S.C. 603. It relates E. Reporting, Recordkeeping, and Other proposed amendments would result in to the proposed amendments to rule Compliance Requirements an increase in the number of proxies 12b–1, which governs the use of fund prepared. The staff further estimates assets to finance the distribution of fund The proposed amendments do not that the cost of each fund’s proxy is shares. include any new reporting or $30,000.84 Thus, the total aggregate A. Reasons for the Proposed Action recordkeeping requirements. The annual cost burden of rule 12b–1 for proposed amendments would introduce As described more fully in Section I funds is $90,000. a new prohibition, applicable to all of this Release, the proposed We request comment on whether funds, including small entities, on the amendments are necessary to address these estimates are reasonable. Pursuant use of fund brokerage commissions to the practice of directing brokerage to 44 U.S.C. 3506(c)(2)(B), we solicit compensate selling brokers. In addition, commissions to particular broker- comments in order to: (i) Evaluate all funds, including small entities, dealers in order to compensate them for whether the proposed collections of would be prohibited from using selling selling fund shares, a practice we information are necessary for the proper brokers to execute portfolio transactions believe is fraught with conflicts of performance of the functions of the unless they have implemented policies interests and may be harmful to funds Commission, including whether the and procedures reasonably designed to and fund shareholders. information will have practical utility; prevent: (i) the persons responsible for (ii) evaluate the accuracy of the B. Objectives of the Proposed Action selecting broker-dealers to effect Commission’s estimate of the burden of As described more fully in Section II transactions in fund portfolio securities the proposed collections of information; of this Release, the objectives of the from taking broker-dealers’ promotional (iii) determine whether there are ways proposed amendments, which would or sales efforts into account in making to enhance the quality, utility, and apply to all funds, are to prohibit funds those decisions; and (ii) the fund, its clarity of the information to be from paying for distribution of fund adviser or principal underwriter, from collected; and (iv) minimize the burden shares with brokerage commissions and entering into any agreement under of the collections of information on to ensure the active monitoring of which the fund directs brokerage those who respond, including through brokerage allocation decisions when transactions or revenue generated by the use of automated collection executing brokers also distribute the those transactions to a broker-dealer to techniques or other forms of information fund’s shares. pay for distribution of the fund’s shares. technology. The board of directors would have to Persons wishing to submit comments C. Legal Basis approve these policies and procedures. on the collection of information The amendments to rule 12b–1 are requirements of the proposed F. Duplicative, Overlapping, or being proposed pursuant to the Conflicting Federal Rules amendments should direct them to the authority set forth in sections 12(b) [15 Office of Management and Budget, U.S.C. 80a–12(b)] and 38(a) [15 U.S.C. We have not identified any federal Attention Desk Officer of the Securities 80a–37(a)] of the Investment Company rules that duplicate, overlap, or conflict and Exchange Commission, Office of Act. with the proposed amendments. The Information and Regulatory Affairs, requirement that funds that use their D. Small Entities Subject to the Rule and Room 10102, New Executive Office selling brokers to execute portfolio Proposed Amendments Building, Washington, DC 20503, and securities transactions implement should send a copy to Jonathan G. Katz, A small business or small policies and procedures is encompassed Secretary, Securities and Exchange organization (collectively, ‘‘small by the more general requirement for Commission, 450 Fifth Street, NW., entity’’), for purposes of the Regulatory compliance policies and procedures Washington, DC 20549–0609, with Flexibility Act, is a fund that, together contained in rule 38a–1 under the reference to File No. S7–09–04. OMB is with other funds in the same group of Investment Company Act.87 The required to make a decision concerning related investment companies, has net policies and procedures that the the collection of information between 30 assets of $50 million or less as of the proposed amendments would require and 60 days after publication of this end of its most recent fiscal year.85 Of are more specific than those we recently Release; therefore a comment to OMB is approximately 5,124 registered required all funds and investment best assured of having its full effect if investment companies, approximately advisers to adopt and are designed to OMB receives it within 30 days after 204 are small entities.86 As discussed ensure the active monitoring of publication of this Release. Requests for above, the proposed amendments would brokerage allocation decisions when a materials submitted to OMB by the prohibit all funds, regardless of size, fund’s executing brokers also distribute Commission with regard to this from using portfolio brokerage the fund’s shares. If a fund has collection of information should be in commissions to finance distribution. All implemented policies and procedures writing, refer to File No. S7–09–04, and under the proposed amendments, it 85 17 CFR 270.0–10. would be able to incorporate those 84 This estimate, which is based on staff 86 Some or all of these entities may contain policies and procedures into the conversations with representatives of funds, reflects multiple series or portfolios. If a registered an adjustment from our previous estimate of investment company is a small entity, the portfolios $15,000 per proxy. or series it contains are also small entities. 87 17 CFR 270.38a–1.
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policies and procedures it maintains to prohibit directed brokerage PART 270—RULES AND pursuant to rule 38a–1. agreements is a performance standard, REGULATIONS, INVESTMENT because it permits funds or their G. Significant Alternatives COMPANY ACT OF 1940 advisers to implement policies and The Regulatory Flexibility Act directs procedures tailored to their 1. The authority citation for Part 270 us to consider significant alternatives organizations. continues to read in part as follows: that would accomplish the stated We believe that it would be Authority: 15 U.S.C. 80a–1 et seq., 80a– objective, while minimizing any impracticable to exempt small entities 34(d), 80a–37, and 80a–39, unless otherwise significant adverse impact on small from the proposed ban. Doing so would noted. entities. Alternatives in this category deny to small funds and their * * * * * would include: (i) Establishing different shareholders the protection that we 2. Section 270.12b–1 is amended by compliance or reporting standards that believe they are due. We request adding new paragraphs (h) and (i) to take into account the resources available comment on whether small entities and read as follows: to small entities; (ii) clarifying, their shareholders could be afforded consolidating, or simplifying the § 270.12b–1 Distribution of shares by equal protection other than through a compliance requirements under the rule registered open-end management ban on the use of brokerage to finance for small entities; (iii) using investment company. fund sales. We also believe that it would performance rather than design * * * * * be impracticable to exempt small standards; and (iv) exempting small (h) Notwithstanding any other entities that effect fund portfolio entities from coverage of the rule, or any provision of this section, a company part of the rule. transactions through a selling broker may not compensate a broker or dealer Establishing different standards for from the requirement that they for any promotion or sale of shares small entities is not feasible because we implement policies and procedures. issued by that company by directing to believe that a complete ban on the use H. Solicitation of Comments the broker or dealer: of brokerage commissions to finance (1) The company’s portfolio securities distribution is necessary in light of the We encourage the submission of transactions; or intensity of the conflicts of interest that comments with respect to any aspect of (2) Any remuneration, including but surround the practice. It would be this IRFA. Comment is specifically not limited to any commission, mark- inappropriate to apply a different requested on the number of small up, mark-down, or other fee (or portion standard for small entities, whose entities that would be affected by the thereof) received or to be received from advisers may face even greater pressure proposed amendments, and the likely the company’s portfolio transactions than advisers to larger funds to take all impact of the proposals on small effected through any other broker measures to enhance distribution. entities. Commenters are asked to (including a government securities Shareholders of small funds should describe the nature of any impact and broker) or dealer (including a municipal receive the same protection as provide empirical data supporting the securities dealer or a government shareholders in large funds. extent of the impact. These comments securities dealer); and Nevertheless, we request comment on will be considered in connection with (i) Notwithstanding any other whether we should modify the proposed the adoption of the proposed provision of this section, a company amendments in any way to reduce the amendments and will be reflected in the may not direct its portfolio securities burden on small entities. Final Regulatory Flexibility Analysis. transactions to a broker or dealer that We do not believe that clarification, Comments should be submitted in promotes or sells shares issued by the consolidation, or simplification of the triplicate to Jonathan G. Katz, Secretary, company, unless the company (or its compliance requirements is feasible. Securities and Exchange Commission, investment adviser) has implemented, The proposed amendments contain a 450 Fifth Street, NW., Washington, DC and the company’s board of directors straightforward ban on the use of 20549–0609. Comments also may be (including a majority of directors who brokerage commissions to finance submitted electronically to the are not interested persons of the distribution. The special requirements following E-mail address: rule- company) has approved, policies and applicable to a fund that uses a selling [email protected]. All comment letters procedures reasonably designed to broker to execute its portfolio securities should refer to File No. S7–09–04.; this prevent: transactions are likewise clear. We file number should be included in the (1) The persons responsible for request comment on ways to clarify, subject line if E-mail is used.88 selecting brokers and dealers to effect consolidate, or simplify any part of the the company’s portfolio securities proposed amendments. IX. Statutory Authority transactions, from taking into account We do not believe that the use of The Commission is proposing the brokers’ and dealers’ promotion or performance rather than design amendments to rule 12b-1 under the sale of shares issued by the company or standards is feasible. The proposed Investment Company Act pursuant to any other registered investment amendments would prohibit the use of the authority set forth in sections 12(b) company; and brokerage commissions to finance [15 U.S.C. 80a-12(b)] and 38(a) [15 (2) The company, and any investment distribution because the experience of U.S.C. 80a-37(a)] of the Investment adviser and principal underwriter of the our staff, including a recent staff review Company Act. company, from entering into any of brokerage commission practices, has agreement (whether oral or written) or led us to believe that the conflicts Text of Proposed Rules other understanding under which the surrounding this practice are For reasons set forth in the preamble, company directs, or is expected to unmanageable. The requirement in the Title 17, Chapter II of the Code of direct, portfolio securities transactions, proposed amendments that funds that Federal Regulations is proposed to be or any remuneration described in rely on selling brokers to execute amended as follows: paragraph (h)(2) of this section, to a transactions must have in place policies broker (including a government and procedures to prevent the persons securities broker) or dealer (including a 88 Comments on the IRFA will be placed in the making brokerage allocation decisions same public file that contains comments on the municipal securities dealer or a from taking fund sales into account and proposed amendments themselves. government securities dealer) in
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consideration for the promotion or sale of shares issued by the company or any other registered investment company. By the Commission. Dated: February 24, 2004. Margaret H. McFarland, Deputy Secretary. [FR Doc. 04–4426 Filed 2–27–04; 8:45 am] BILLING CODE 8010–01–P
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Part V
Department of Housing and Urban Development 24 CFR Part 3284 Manufactured Housing Program: Minimum Payments to States; Proposed Rule
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DEPARTMENT OF HOUSING AND responsibilities under the program and percent since the current rule’s base URBAN DEVELOPMENT ensured that states would receive at year of 2000 (the levels in some states least a steady level of funding from the have decreased by more)—may, in 24 CFR Part 3284 fees collected by HUD. Based on effect, receive a total of $17.00 or more [Docket No. FR–4868–P–01] program experience, HUD is proposing per unit sited and produced in State A, to amend 24 CFR 3284.10, entitled, because that payment would represent a RIN 2502–AI16 ‘‘Payments to states.’’ At the same time, pro rata portion of the inflated base year the Department will submit to the amount. But State B—in which Manufactured Housing Program: Manufactured Housing Consensus production and siting level has Minimum Payments to States Committee (MHCC) a draft proposal to remained steady or has increased, or AGENCY: Office of the Assistant amend 24 CFR 3282.307 to increase the which is not an approved state—will Secretary for Housing—Federal Housing amounts paid out of fee collections to still be paid a total of $11.50 per unit Commissioner, HUD. approved and conditionally approved sited and produced in State B, as states according to an established prescribed by 24 CFR 3282.307. ACTION: Proposed rule. formula set forth in that section. In Although some inequity might have been foreseen during the formulation of SUMMARY: This proposed rule would accordance with section 604(b) of the revise the minimum payments to states National Manufactured Housing the August 2002 rule, the Department approved as State Administrative Construction and Safety Standards Act was not expecting the imbalances that have now resulted nor did any Agencies under the National of 1974 (42 U.S.C. 5401–5426) (the Act), commenter raise the concern. Therefore, Manufactured Housing Construction the MHCC will have 120 days to in order to ensure a more equitable and Safety Standards Act of 1974 in comment on the proposed increase distribution of funds, the Department order to provide for a more equitable before it is published as a proposed rule has determined that it should guarantee of minimum funding from the for public comment. implement the statutory requirement in Department’s appropriation for this Minimum Payments a way that is more directly based on the program and to avoid the differing per- The rule published August 13, 2002, distribution system in effect at the time unit payments to the states that have in part, prescribed minimum payments of the amendments to the Act. The occurred under the present rule. This to each state participating in the statutory requirements would be rule would base the minimum payments manufactured housing program as a implemented in a final rule that would to states upon their participation in State Administrative Agency under assure that amounts established in the production or siting of new regulations implementing section formula used to distribute funds to manufactured homes. 620(e)(3) of the Act (42 U.S.C. states (see 24 CFR 3282.307(b)) will not DATES: Comment Due Date: March 31, 5419(e)(3)). Section 620(e)(3) states that be decreased below their current levels, 2004. ‘‘the Secretary shall continue to fund i.e., $9 for each transportable section ADDRESSES: Interested persons are the states having approved state plans in first located within an approved state invited to submit comments regarding the amounts which are not less than the and $2.50 for each transportable section this rule to the Regulations Division, allocated amounts, based on the fee produced in an approved state. Office of General Counsel, Room 10276, distribution system in effect on The Department also has found that Department of Housing and Urban [December 26, 2000].’’ the current rule allows uncertainty Development, 451 Seventh Street, SW., In the previous rule, the Department about which states are considered Washington, DC 20410–0500. implemented that statutory requirement approved for purposes of the minimum by establishing the yearly payment to Comments should refer to the above payment requirement. Conditionally the approved states at not less than the docket number and title. A copy of each approved states are permitted to amount paid to that state for the 12 comment submitted will be available for participate in the program and carry out months ending on December 26, 2000. public inspection and copying between their state plans, pursuant to 24 CFR That minimum amount was based upon 8 a.m. and 5 p.m., weekdays, at the 3282.302(c), but this same section also payments that had been made when above address. Facsimile (FAX) provides that conditionally approved production levels were believed to be comments will not be accepted. states shall not be considered approved low enough to establish a reasonable for all purposes. The Act permits the FOR FURTHER INFORMATION CONTACT: minimum payment to each approved Department to continue its previous William W. Matchneer III, state. The Department had hoped that practice of making formula payments to Administrator, Office of Manufactured implementing the requirement in this conditionally approved states that are Housing Programs, Room 9156, way would provide additional certainty paid using fee collections. See section Department of Housing and Urban to those states in their budget cycles. 620(c) of the Act, (42 U.S.C. 5419(c)), Development, 451 Seventh Street, SW., However, production and sales of new authorizing fee amounts to be used for Washington, DC 20410–8000; telephone homes in some states have continued to program activities engaged in by HUD (202) 708–6401. (This is not a toll-free decline to significantly lower levels before December 27, 2000. By contrast, number.) Individuals with speech or than during the year 2000. As a result, the protection provided in the new hearing impairments may access this the August 2002 rule would now require section 620(e)(3) of the Act—for number through TTY by calling the toll- inequitable payments among approved minimum payments—is a new free Federal Information Relay Service states, in addition to inequitable provision and is applicable only to at 1–800–877–8339. payments between approved states and states having ‘‘approved State plans’’ SUPPLEMENTARY INFORMATION: other states. Under that rule, some states (42 U.S.C. 5419(e)(3)). This section may On August 13, 2002, HUD published would receive more funding than other appropriately cover only fully approved a final rule, at 67 FR 52832, on the states for each unit of manufactured states, especially in light of the language Manufactured Housing Program Fee. housing produced or sited in those in § 3282.302(c) that provides that The August 13, 2002 rule modified the states. For example, State A—a fully conditional approval allows a state to amount of the fee collected from approved state in which the production participate in the program but does not manufacturers to fund HUD’s and siting level has decreased by 30 constitute approval of a state plan.
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As the Department proposes to amend responsibilities for national installation published as final in August 2002, the the rule, all states receiving amounts and dispute resolution programs and Department does not expect to receive allocated from the fees collected from support of the Manufactured Housing detailed or numerous comments on this manufacturers will be paid the same Consensus Committee. proposed rule. Persons likely to per-unit amounts determined in In addition to being more equitable comment on this rule also will be accordance with the per-unit formula in for the participating states, HUD familiar with the underlying 24 CFR 3282.307(b). In the event that believes, after some experience and requirement because of the recent the formula amounts are changed in the upon further consideration, that this rulemaking that addressed the same future, however, the proposed revision proposed method of implementing the subject. The Department seeks a quick in 24 CFR 3284.10 would ensure that new statutory requirement concerning resolution of any changes to the each fully approved state would be paid minimum payments to the states would implementation of the statutory not less than $9 for each transportable simplify the related administrative requirement concerning minimum section first located within that state burdens of HUD and the states. For payments, which will restore equitable and $2.50 for each transportable section many years, HUD and the states have distribution of funds to participating produced in that state. It is not likely been making and receiving payments states, simplify the administrative that, in the future, HUD would reduce based on the manufacturing location procedures of the states and the these amounts, which have been in and first siting of new homes, pursuant Department, and will minimize any effect for over 10 years and are currently to the provisions in § 3282.307. nuisance resulting from development of paid to all participating states. Payments will continue to be made to unnecessary accounting structures. Therefore, the proposed approach to all participating states using the same Unfunded Mandates Reform Act revising § 3284.10 builds on the system under which HUD and the states language in § 3282.307(b) that provides have been operating for years. The Title II of the Unfunded Mandates for distribution of a portion of the fees proposed revised implementation of the Reform Act of 1995 (2 U.S.C. 1531– among both fully approved and statutory provision on minimum 1538)(UMRA) establishes requirements conditionally approved states. payments would be based on the same for federal agencies to assess the effects The Department is proposing to revise methodology used for compliance with of their regulatory actions on state, § 3284.10 to specify that each fully § 3282.307; therefore, the revised local, and tribal governments and the approved state would continue to approach would not require any new private sector. This proposed rule does receive payments that are no less than: payment or accounting structures and not impose any federal mandates on any (1) $9.00 for each transportable section would implement the statutory state, local, or tribal governments or the of new manufactured housing that is requirement seamlessly. private sector within the meaning of the first located on the premises of a retailer Finally, by removing the reference to UMRA. or purchaser in that state; and (2) $2.50 ‘‘calendar year,’’ the revised rule would Environmental Impact for each transportable section of new permit the Department to obligate money due the states from fee In accordance with 24 CFR 50.19(c)(6) manufactured housing that is produced of the HUD regulations, this rule sets in that state. Providing this guarantee to collections on the federal fiscal year to which the program is subject for forth fiscal requirements which do not fully approved states complies with constitute a development decision that both the requirement in section operational authority through the appropriations process. Under the affects the physical condition of specific 620(e)(3) of the Act and 24 CFR project areas or building sites, and 3282.302(c). These minimum payments current rule, the payment to the states is calculated on a calendar year basis, therefore is categorically excluded from also are consistent with the amounts the requirements of the National specified in § 3282.307 for distribution and accurate calculation of the unmet balance can only be done after the close Environmental Policy Act and related to all participating states, but do not federal laws and authorities. prevent HUD from amending § 3282.307 of the calendar year. In December 2000, in any future rulemaking to increase the however, the manufactured housing Regulatory Flexibility Act program became subject to the federal amounts actually distributed to those The Secretary has reviewed this rule government’s annual fiscal year states. In fact, in an action that is before publication and by approving it (October through September) separate from this rulemaking, HUD will certifies, in accordance with the appropriations process. Because the two present to the MHCC a draft proposal to Regulatory Flexibility Act (5 U.S.C. annual schedules—calendar year for amend § 3282.307(b) to increase the 605(b)), that this rule would not have a payments to states, and fiscal year for amount paid to an approved or significant economic impact on a program operations—do not coincide, conditionally approved state for each substantial number of small entities. the program’s budgeting and transportable section of new This rule will affect only states that reconciliation processes are complicated manufactured housing that is produced participate in the manufactured housing unnecessarily, and the potential for in that state. In accordance with program, and will have a negligible inadvertent violations of requirements established in section economic impact. Notwithstanding governmentwide budgeting 604(b) of the Act (42 U.S.C. 603(b)), HUD’s determination that this rule will requirements is increased. HUD must provide the MHCC 120 days not have a significant economic impact to review and submit comments on the Findings and Certifications on a substantial number of small draft proposal to amend § 3282.307 entities, HUD specifically invites Justification for 30-Day Comment Period before HUD publishes the proposal in comments regarding any less the Federal Register for public It is the general practice of the burdensome alternatives to this rule that comment. The ability of HUD to adopt Department to provide a 60-day public will meet HUD’s program any additional increases in the amounts comment period on all proposed rules. responsibilities. paid to participating states will depend However, the Department is shortening on HUD receiving appropriated amounts its usual 60-day public comment period Executive Order 13132, Federalism that are sufficient to fund its program to 30 days for this proposed rule. Executive Order 13132 (entitled responsibilities, including the new Because of its experience with the rule ‘‘Federalism’’) prohibits an agency from
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publishing any rule that has federalism as provided in section 3(f)(1) of the § 3284.10 Minimum payments to states. implications if the rule either (1) Order). Any changes made to the rule For each transportable section of each imposes substantial direct compliance subsequent to its submission to OMB new manufactured housing unit are identified in the docket file, which costs on state and local governments produced or sited in a state that has a is available for public inspection in the and is not required by statute, or (2) the state plan fully approved pursuant to Regulations Division, Office of General rule preempts state law, unless the § 3282.302 of this chapter, HUD will pay Counsel, Room 10276, Department of agency meets the consultation and such state a total amount that is the Housing and Urban Development, 451 funding requirements of section 6 of the greater of the amount established Seventh Street, SW., Washington, DC Executive Order. This rule does not pursuant to § 3282.307 of this chapter, 20410–0500. have federalism implications and does or the amount determined by adding: not impose substantial direct List of Subjects in 24 CFR Part 3284 compliance costs on state and local (a) $9.00, if after leaving the governments or preempt state law Consumer protection, Manufactured manufacturing plant, the transportable within the meaning of the Executive homes. section is first located on the premises Order. Accordingly, for the reasons of a retailer or purchaser in that state (or discussed in this preamble, HUD $0, if it is not); and Executive Order 12866, Regulatory proposes to amend 24 CFR part 3284 as (b) $2.50, if the transportable section Planning and Review follows: is produced in a manufacturing plant in The Office of Management and Budget PART 3284—MANUFACTURED that state (or $0, if it is not). (OMB) reviewed this rule under HOUSING PROGRAM FEE Dated: January 30, 2004. Executive Order 12866 (entitled ‘‘Regulatory Planning and Review’’). 1. The authority citation for 24 CFR John C. Weicher, OMB determined that this rule is a Part 3284 continues to read as follows: Assistant Secretary for Housing-Federal Housing Commissioner. ‘‘significant regulatory action,’’ as Authority: 42 U.S.C. 3535(d), 5419, and defined in section 3(f) of the Order 5424. [FR Doc. 04–4480 Filed 2–25–04; 2:00 pm] (although not economically significant, 2. Revise § 3284.10 to read as follows: BILLING CODE 4210–27–P
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VerDate jul 14 2003 18:34 Feb 27, 2004 Jkt 203001 PO 00000 Frm 00004 Fmt 4712 Sfmt 4711 E:\FR\FM\01MRCU.LOC 01MRCU Federal Register / Vol. 69, No. 40 / Monday, March 1, 2004 / Reader Aids v
CFR CHECKLIST Title Stock Number Price Revision Date 13 ...... (869–050–00037–7) ...... 47.00 Jan. 1, 2003 This checklist, prepared by the Office of the Federal Register, is 14 Parts: published weekly. It is arranged in the order of CFR titles, stock 1–59 ...... (869–050–00038–5) ...... 60.00 Jan. 1, 2003 numbers, prices, and revision dates. 60–139 ...... (869–050–00039–3) ...... 58.00 Jan. 1, 2003 An asterisk (*) precedes each entry that has been issued since last 140–199 ...... (869–050–00040–7) ...... 28.00 Jan. 1, 2003 week and which is now available for sale at the Government Printing 200–1199 ...... (869–050–00041–5) ...... 47.00 Jan. 1, 2003 Office. 1200–End ...... (869–050–00042–3) ...... 43.00 Jan. 1, 2003 A checklist of current CFR volumes comprising a complete CFR set, 15 Parts: also appears in the latest issue of the LSA (List of CFR Sections 0–299 ...... (869–050–00043–1) ...... 37.00 Jan. 1, 2003 Affected), which is revised monthly. 300–799 ...... (869–050–00044–0) ...... 57.00 Jan. 1, 2003 800–End ...... (869–050–00045–8) ...... 40.00 Jan. 1, 2003 The CFR is available free on-line through the Government Printing Office’s GPO Access Service at http://www.access.gpo.gov/nara/cfr/ 16 Parts: index.html. For information about GPO Access call the GPO User 0–999 ...... (869–050–00046–6) ...... 47.00 Jan. 1, 2003 Support Team at 1-888-293-6498 (toll free) or 202-512-1530. 1000–End ...... (869–050–00047–4) ...... 57.00 Jan. 1, 2003 The annual rate for subscription to all revised paper volumes is 17 Parts: $1195.00 domestic, $298.75 additional for foreign mailing. 1–199 ...... (869–050–00049–1) ...... 50.00 Apr. 1, 2003 Mail orders to the Superintendent of Documents, Attn: New Orders, 200–239 ...... (869–050–00050–4) ...... 58.00 Apr. 1, 2003 P.O. Box 371954, Pittsburgh, PA 15250–7954. All orders must be 240–End ...... (869–050–00051–2) ...... 62.00 Apr. 1, 2003 accompanied by remittance (check, money order, GPO Deposit 18 Parts: Account, VISA, Master Card, or Discover). Charge orders may be 1–399 ...... (869–050–00052–1) ...... 62.00 Apr. 1, 2003 telephoned to the GPO Order Desk, Monday through Friday, at (202) 400–End ...... (869–050–00053–9) ...... 25.00 Apr. 1, 2003 512–1800 from 8:00 a.m. to 4:00 p.m. eastern time, or FAX your charge orders to (202) 512-2250. 19 Parts: 1–140 ...... (869–050–00054–7) ...... 60.00 Apr. 1, 2003 Title Stock Number Price Revision Date 141–199 ...... (869–050–00055–5) ...... 58.00 Apr. 1, 2003 *1, 2 (2 Reserved) ...... (869–052–00001–9) ...... 9.00 4Jan. 1, 2004 200–End ...... (869–050–00056–3) ...... 30.00 Apr. 1, 2003 3 (2002 Compilation 20 Parts: and Parts 100 and 1–399 ...... (869–050–00057–1) ...... 50.00 Apr. 1, 2003 101) ...... (869–050–00002–4) ...... 32.00 1 Jan. 1, 2003 400–499 ...... (869–050–00058–0) ...... 63.00 Apr. 1, 2003 4 ...... (869–052–00003–5) ...... 10.00 Jan. 1, 2004 500–End ...... (869–050–00059–8) ...... 63.00 Apr. 1, 2003 5 Parts: 21 Parts: 1–699 ...... (869–050–00004–1) ...... 57.00 Jan. 1, 2003 1–99 ...... (869–050–00060–1) ...... 40.00 Apr. 1, 2003 700–1199 ...... (869–050–00005–9) ...... 46.00 Jan. 1, 2003 100–169 ...... (869–050–00061–0) ...... 47.00 Apr. 1, 2003 1200–End ...... (869–050–00006–7) ...... 58.00 Jan. 1, 2003 170–199 ...... (869–050–00062–8) ...... 50.00 Apr. 1, 2003 200–299 ...... (869–050–00063–6) ...... 17.00 Apr. 1, 2003 *6 ...... (869–052–00007–8) ...... 10.50 Jan. 1, 2004 300–499 ...... (869–050–00064–4) ...... 29.00 Apr. 1, 2003 7 Parts: 500–599 ...... (869–050–00065–2) ...... 47.00 Apr. 1, 2003 1–26 ...... (869–050–00007–5) ...... 40.00 Jan. 1, 2003 600–799 ...... (869–050–00066–1) ...... 15.00 Apr. 1, 2003 27–52 ...... (869–050–00008–3) ...... 47.00 Jan. 1, 2003 800–1299 ...... (869–050–00067–9) ...... 58.00 Apr. 1, 2003 *53–209 ...... (869–052–00010–8) ...... 37.00 Jan. 1, 2004 1300–End ...... (869–050–00068–7) ...... 22.00 Apr. 1, 2003 210–299 ...... (869–050–00010–5) ...... 59.00 Jan. 1, 2003 22 Parts: 300–399 ...... (869–050–00011–3) ...... 43.00 Jan. 1, 2003 1–299 ...... (869–050–00069–5) ...... 62.00 Apr. 1, 2003 400–699 ...... (869–050–00012–1) ...... 39.00 Jan. 1, 2003 300–End ...... (869–050–00070–9) ...... 44.00 Apr. 1, 2003 700–899 ...... (869–050–00013–0) ...... 42.00 Jan. 1, 2003 900–999 ...... (869–050–00014–8) ...... 57.00 Jan. 1, 2003 23 ...... (869–050–00071–7) ...... 44.00 Apr. 1, 2003 *1000–1199 ...... (869–052–00016–7) ...... 22.00 Jan. 1, 2004 24 Parts: 1200–1599 ...... (869–050–00016–4) ...... 58.00 Jan. 1, 2003 0–199 ...... (869–050–00072–5) ...... 58.00 Apr. 1, 2003 1600–1899 ...... (869–050–00017–2) ...... 61.00 Jan. 1, 2003 200–499 ...... (869–050–00073–3) ...... 50.00 Apr. 1, 2003 1900–1939 ...... (869–050–00018–1) ...... 29.00 4 Jan. 1, 2003 500–699 ...... (869–050–00074–1) ...... 30.00 Apr. 1, 2003 1940–1949 ...... (869–050–00019–9) ...... 47.00 Jan. 1, 2003 700–1699 ...... (869–050–00075–0) ...... 61.00 Apr. 1, 2003 *1950–1999 ...... (869–052–00021–3) ...... 46.00 Jan. 1, 2004 1700–End ...... (869–050–00076–8) ...... 30.00 Apr. 1, 2003 2000–End ...... (869–050–00021–1) ...... 46.00 Jan. 1, 2003 25 ...... (869–050–00077–6) ...... 63.00 Apr. 1, 2003 8 ...... (869–050–00022–9) ...... 58.00 Jan. 1, 2003 26 Parts: 9 Parts: §§ 1.0–1–1.60 ...... (869–050–00078–4) ...... 49.00 Apr. 1, 2003 1–199 ...... (869–050–00023–7) ...... 58.00 Jan. 1, 2003 §§ 1.61–1.169 ...... (869–050–00079–2) ...... 63.00 Apr. 1, 2003 *200–End ...... (869–052–00025–6) ...... 58.00 Jan. 1, 2004 §§ 1.170–1.300 ...... (869–050–00080–6) ...... 57.00 Apr. 1, 2003 10 Parts: §§ 1.301–1.400 ...... (869–050–00081–4) ...... 46.00 Apr. 1, 2003 1–50 ...... (869–050–00025–3) ...... 58.00 Jan. 1, 2003 §§ 1.401–1.440 ...... (869–050–00082–2) ...... 61.00 Apr. 1, 2003 51–199 ...... (869–050–00026–1) ...... 56.00 Jan. 1, 2003 §§ 1.441–1.500 ...... (869–050–00083–1) ...... 50.00 Apr. 1, 2003 200–499 ...... (869–050–00027–0) ...... 44.00 Jan. 1, 2003 §§ 1.501–1.640 ...... (869–050–00084–9) ...... 49.00 Apr. 1, 2003 500–End ...... (869–050–00028–8) ...... 58.00 Jan. 1, 2003 §§ 1.641–1.850 ...... (869–050–00085–7) ...... 60.00 Apr. 1, 2003 §§ 1.851–1.907 ...... (869–050–00086–5) ...... 60.00 Apr. 1, 2003 11 ...... (869–050–00029–6) 38.00 Feb. 3, 2003 §§ 1.908–1.1000 ...... (869–050–00087–3) ...... 60.00 Apr. 1, 2003 12 Parts: §§ 1.1001–1.1400 ...... (869–050–00088–1) ...... 61.00 Apr. 1, 2003 1–199 ...... (869–050–00030–0) ...... 30.00 Jan. 1, 2003 §§ 1.1401–1.1503–2A .... (869–050–00089–0) ...... 50.00 Apr. 1, 2003 200–219 ...... (869–050–00031–8) ...... 38.00 Jan. 1, 2003 §§ 1.1551–End ...... (869–050–00090–3) ...... 50.00 Apr. 1, 2003 *220–299 ...... (869–052–00033–7) ...... 61.00 Jan. 1, 2004 2–29 ...... (869–050–00091–1) ...... 60.00 Apr. 1, 2003 300–499 ...... (869–050–00033–4) ...... 43.00 Jan. 1, 2003 30–39 ...... (869–050–00092–0) ...... 41.00 Apr. 1, 2003 500–599 ...... (869–050–00034–2) ...... 38.00 Jan. 1, 2003 40–49 ...... (869–050–00093–8) ...... 26.00 Apr. 1, 2003 600–899 ...... (869–050–00035–1) ...... 54.00 Jan. 1, 2003 50–299 ...... (869–050–00094–6) ...... 41.00 Apr. 1, 2003 900–End ...... (869–050–00036–9) ...... 47.00 Jan. 1, 2003 300–499 ...... (869–050–00095–4) ...... 61.00 Apr. 1, 2003
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Title Stock Number Price Revision Date Title Stock Number Price Revision Date 500–599 ...... (869–050–00096–2) ...... 12.00 5Apr. 1, 2003 72–80 ...... (869–050–00149–7) ...... 61.00 July 1, 2003 600–End ...... (869–050–00097–1) ...... 17.00 Apr. 1, 2003 81–85 ...... (869–050–00150–1) ...... 50.00 July 1, 2003 27 Parts: 86 (86.1–86.599–99) ...... (869–050–00151–9) ...... 57.00 July 1, 2003 86 (86.600–1–End) ...... (869–050–00152–7) ...... 50.00 July 1, 2003 1–199 ...... (869–050–00098–9) ...... 63.00 Apr. 1, 2003 87–99 ...... (869–050–00153–5) ...... 60.00 July 1, 2003 200–End ...... (869–050–00099–7) ...... 25.00 Apr. 1, 2003 100–135 ...... (869–050–00154–3) ...... 43.00 July 1, 2003 28 Parts: ...... 136–149 ...... (869–150–00155–1) ...... 61.00 July 1, 2003 0–42 ...... (869–050–00100–4) ...... 61.00 July 1, 2003 150–189 ...... (869–050–00156–0) ...... 49.00 July 1, 2003 43–End ...... (869–050–00101–2) ...... 58.00 July 1, 2003 190–259 ...... (869–050–00157–8) ...... 39.00 July 1, 2003 29 Parts: 260–265 ...... (869–050–00158–6) ...... 50.00 July 1, 2003 0–99 ...... (869–050–00102–1) ...... 50.00 July 1, 2003 266–299 ...... (869–050–00159–4) ...... 50.00 July 1, 2003 100–499 ...... (869–050–00103–9) ...... 22.00 July 1, 2003 300–399 ...... (869–050–00160–8) ...... 42.00 July 1, 2003 500–899 ...... (869–050–00104–7) ...... 61.00 July 1, 2003 400–424 ...... (869–050–00161–6) ...... 56.00 July 1, 2003 900–1899 ...... (869–050–00105–5) ...... 35.00 July 1, 2003 425–699 ...... (869–050–00162–4) ...... 61.00 July 1, 2003 1900–1910 (§§ 1900 to 700–789 ...... (869–050–00163–2) ...... 61.00 July 1, 2003 1910.999) ...... (869–050–00106–3) ...... 61.00 July 1, 2003 790–End ...... (869–050–00164–1) ...... 58.00 July 1, 2003 1910 (§§ 1910.1000 to 41 Chapters: end) ...... (869–050–00107–1) ...... 46.00 July 1, 2003 1, 1–1 to 1–10 ...... 13.00 3 July 1, 1984 1911–1925 ...... (869–050–00108–0) ...... 30.00 July 1, 2003 1, 1–11 to Appendix, 2 (2 Reserved) ...... 13.00 3 July 1, 1984 1926 ...... (869–050–00109–8) ...... 50.00 July 1, 2003 3–6 ...... 14.00 3 July 1, 1984 1927–End ...... (869–050–00110–1) ...... 62.00 July 1, 2003 7 ...... 6.00 3 July 1, 1984 8 ...... 4.50 3 July 1, 1984 30 Parts: 9 ...... 13.00 3 July 1, 1984 1–199 ...... (869–050–00111–0) ...... 57.00 July 1, 2003 10–17 ...... 9.50 3 July 1, 1984 200–699 ...... (869–050–00112–8) ...... 50.00 July 1, 2003 18, Vol. I, Parts 1–5 ...... 13.00 3 July 1, 1984 700–End ...... (869–050–00113–6) ...... 57.00 July 1, 2003 18, Vol. II, Parts 6–19 ...... 13.00 3 July 1, 1984 31 Parts: 18, Vol. III, Parts 20–52 ...... 13.00 3 July 1, 1984 0–199 ...... (869–050–00114–4) ...... 40.00 July 1, 2003 19–100 ...... 13.00 3 July 1, 1984 200–End ...... (869–050–00115–2) ...... 64.00 July 1, 2003 1–100 ...... (869–050–00165–9) ...... 23.00 7July 1, 2003 32 Parts: 101 ...... (869–050–00166–7) ...... 24.00 July 1, 2003 1–39, Vol. I ...... 15.00 2 July 1, 1984 102–200 ...... (869–050–00167–5) ...... 50.00 July 1, 2003 1–39, Vol. II ...... 19.00 2 July 1, 1984 201–End ...... (869–050–00168–3) ...... 22.00 July 1, 2003 1–39, Vol. III ...... 18.00 2 July 1, 1984 42 Parts: 1–190 ...... (869–050–00116–1) ...... 60.00 July 1, 2003 *1–399 ...... (869–050–00169–1) ...... 60.00 Oct. 1, 2003 191–399 ...... (869–050–00117–9) ...... 63.00 July 1, 2003 400–429 ...... (869–050–00170–5) ...... 62.00 Oct. 1, 2003 400–629 ...... (869–050–00118–7) ...... 50.00 July 1, 2003 430–End ...... (869–050–00171–3) ...... 64.00 Oct. 1, 2003 630–699 ...... (869–050–00119–5) ...... 37.00 7July 1, 2003 700–799 ...... (869–050–00120–9) ...... 46.00 July 1, 2003 43 Parts: 800–End ...... (869–050–00121–7) ...... 47.00 July 1, 2003 1–999 ...... (869–050–00172–1) ...... 55.00 Oct. 1, 2003 *1000–end ...... (869–050–00173–0) ...... 62.00 Oct. 1, 2003 33 Parts: 1–124 ...... (869–050–00122–5) ...... 55.00 July 1, 2003 44 ...... (869–050–00174–8) ...... 50.00 Oct. 1, 2003 125–199 ...... (869–050–00123–3) ...... 61.00 July 1, 2003 45 Parts: 200–End ...... (869–050–00124–1) ...... 50.00 July 1, 2003 1–199 ...... (869–050–00175–6) ...... 60.00 Oct. 1, 2003 9 34 Parts: 200–499 ...... (869–050–00176–4) ...... 33.00 Oct. 1, 2003 1–299 ...... (869–050–00125–0) ...... 49.00 July 1, 2003 500–1199 ...... (869–050–00177–2) ...... 50.00 Oct. 1, 2003 300–399 ...... (869–050–00126–8) ...... 43.00 7July 1, 2003 1200–End ...... (869–050–00178–1) ...... 60.00 Oct. 1, 2003 400–End ...... (869–050–00127–6) ...... 61.00 July 1, 2003 46 Parts: 35 ...... (869–050–00128–4) ...... 10.00 6July 1, 2003 1–40 ...... (869–050–00179–9) ...... 46.00 Oct. 1, 2003 41–69 ...... (869–050–00180–2) ...... 39.00 Oct. 1, 2003 36 Parts 70–89 ...... (869–050–00181–1) ...... 14.00 Oct. 1, 2003 1–199 ...... (869–050–00129–2) ...... 37.00 July 1, 2003 90–139 ...... (869–050–00182–9) ...... 44.00 Oct. 1, 2003 200–299 ...... (869–050–00130–6) ...... 37.00 July 1, 2003 140–155 ...... (869–050–00183–7) ...... 25.00 9Oct. 1, 2003 300–End ...... (869–050–00131–4) ...... 61.00 July 1, 2003 156–165 ...... (869–050–00184–5) ...... 34.00 9Oct. 1, 2003 37 ...... (869–050–00132–2) ...... 50.00 July 1, 2003 166–199 ...... (869–050–00185–3) ...... 46.00 Oct. 1, 2003 200–499 ...... (869–050–00186–1) ...... 39.00 Oct. 1, 2003 38 Parts: 500–End ...... (869–050–00187–0) ...... 25.00 Oct. 1, 2003 0–17 ...... (869–050–00133–1) ...... 58.00 July 1, 2003 18–End ...... (869–050–00134–9) ...... 62.00 July 1, 2003 47 Parts: 0–19 ...... (869–050–00188–8) ...... 61.00 Oct. 1, 2003 39 ...... (869–050–00135–7) ...... 41.00 July 1, 2003 20–39 ...... (869–048–00186–7) ...... 45.00 Oct. 1, 2002 40 Parts: 40–69 ...... (869–050–00190–0) ...... 39.00 Oct. 1, 2003 1–49 ...... (869–050–00136–5) ...... 60.00 July 1, 2003 70–79 ...... (869–050–00191–8) ...... 61.00 Oct. 1, 2003 50–51 ...... (869–050–00137–3) ...... 44.00 July 1, 2003 80–End ...... (869–050–00192–6) ...... 61.00 Oct. 1, 2003 52 (52.01–52.1018) ...... (869–050–00138–1) ...... 58.00 July 1, 2003 48 Chapters: 52 (52.1019–End) ...... (869–050–00139–0) ...... 61.00 July 1, 2003 1 (Parts 1–51) ...... (869–050–00193–4) ...... 63.00 Oct. 1, 2003 53–59 ...... (869–050–00140–3) ...... 31.00 July 1, 2003 1 (Parts 52–99) ...... (869–050–00194–2) ...... 50.00 Oct. 1, 2003 60 (60.1–End) ...... (869–050–00141–1) ...... 58.00 July 1, 2003 2 (Parts 201–299) ...... (869–050–00195–1) ...... 55.00 Oct. 1, 2003 60 (Apps) ...... (869–050–00142–0) ...... 51.00 8July 1, 2003 3–6 ...... (869–050–00196–9) ...... 33.00 Oct. 1, 2003 61–62 ...... (869–050–00143–8) ...... 43.00 July 1, 2003 7–14 ...... (869–050–00197–7) ...... 61.00 Oct. 1, 2003 63 (63.1–63.599) ...... (869–050–00144–6) ...... 58.00 July 1, 2003 15–28 ...... (869–050–00198–5) ...... 57.00 Oct. 1, 2003 63 (63.600–63.1199) ...... (869–050–00145–4) ...... 50.00 July 1, 2003 29–End ...... (869–050–00199–3) ...... 38.00 9Oct. 1, 2003 63 (63.1200–63.1439) .... (869–050–00146–2) ...... 50.00 July 1, 2003 63 (63.1440–End) ...... (869–050–00147–1) ...... 64.00 July 1, 2003 49 Parts: 64–71 ...... (869–050–00148–9) ...... 29.00 July 1, 2003 1–99 ...... (869–050–00200–1) ...... 60.00 Oct. 1, 2003
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Title Stock Number Price Revision Date 100–185 ...... (869–050–00201–9) ...... 63.00 Oct. 1, 2003 186–199 ...... (869–050–00202–7) ...... 20.00 Oct. 1, 2003 200–399 ...... (869–050–00203–5) ...... 64.00 Oct. 1, 2003 400–599 ...... (869–050–00204–3) ...... 63.00 Oct. 1, 2003 600–999 ...... (869–050–00205–1) ...... 22.00 Oct. 1, 2003 1000–1199 ...... (869–050–00206–0) ...... 26.00 Oct. 1, 2003 1200–End ...... (869–048–00207–8) ...... 33.00 Oct. 1, 2003 50 Parts: 1–16 ...... (869–050–00208–6) ...... 11.00 Oct. 1, 2003 17.1–17.95 ...... (869–050–00209–4) ...... 62.00 Oct. 1, 2003 17.96–17.99(h) ...... (869–050–00210–8) ...... 61.00 Oct. 1, 2003 17.99(i)–end ...... (869–050–00211–6) ...... 50.00 Oct. 1, 2003 18–199 ...... (869–050–00212–4) ...... 42.00 Oct. 1, 2003 200–599 ...... (869–050–00213–2) ...... 44.00 Oct. 1, 2003 600–End ...... (869–050–00214–1) ...... 61.00 Oct. 1, 2003 CFR Index and Findings Aids ...... (869–050–00048–2) ...... 59.00 Jan. 1, 2003 Complete 2004 CFR set ...... 1,342.00 2004 Microfiche CFR Edition: Subscription (mailed as issued) ...... 325.00 2004 Individual copies ...... 2.00 2004 Complete set (one-time mailing) ...... 298.00 2003 Complete set (one-time mailing) ...... 298.00 2002 1 Because Title 3 is an annual compilation, this volume and all previous volumes should be retained as a permanent reference source. 2 The July 1, 1985 edition of 32 CFR Parts 1–189 contains a note only for Parts 1–39 inclusive. For the full text of the Defense Acquisition Regulations in Parts 1–39, consult the three CFR volumes issued as of July 1, 1984, containing those parts. 3 The July 1, 1985 edition of 41 CFR Chapters 1–100 contains a note only for Chapters 1 to 49 inclusive. For the full text of procurement regulations in Chapters 1 to 49, consult the eleven CFR volumes issued as of July 1, 1984 containing those chapters. 4 No amendments to this volume were promulgated during the period January 1, 2003, through January 1, 2004. The CFR volume issued as of January 1, 2002 should be retained. 5 No amendments to this volume were promulgated during the period April 1, 2000, through April 1, 2003. The CFR volume issued as of April 1, 2000 should be retained. 6 No amendments to this volume were promulgated during the period July 1, 2000, through July 1, 2003. The CFR volume issued as of July 1, 2000 should be retained. 7 No amendments to this volume were promulgated during the period July 1, 2002, through July 1, 2003. The CFR volume issued as of July 1, 2002 should be retained. 8 No amendments to this volume were promulgated during the period July 1, 2001, through July 1, 2003. The CFR volume issued as of July 1, 2001 should be retained. 9 No amendments to this volume were promulgated during the period October 1, 2001, through October 1, 2003. The CFR volume issued as of October 1, 2001 should be retained.
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TABLE OF EFFECTIVE DATES AND TIME PERIODS—MARCH 2004
This table is used by the Office of the dates, the day after publication is A new table will be published in the Federal Register to compute certain counted as the first day. first issue of each month. dates, such as effective dates and When a date falls on a weekend or comment deadlines, which appear in holiday, the next Federal business day agency documents. In computing these is used. (See 1 CFR 18.17)
DATE OF FR 15 DAYS AFTER 30 DAYS AFTER 45 DAYS AFTER 60 DAYS AFTER 90 DAYS AFTER PUBLICATION PUBLICATION PUBLICATION PUBLICATION PUBLICATION PUBLICATION
March 1 March 16 March 31 April 15 April 30 June 1
March 2 March 17 April 1 April 16 May 3 June 1
March 3 March 18 April 2 April 19 May 3 June 1
March 4 March 19 April 5 April 19 May 3 June 2
March 5 March 22 April 5 April 19 May 4 June 3
March 8 March 23 April 7 April 22 May 7 June 7
March 9 March 24 April 8 April 23 May 10 June 7
March 10 March 25 April 9 April 26 May 10 June 8
March 11 March 26 April 12 April 26 May 10 June 9
March 12 March 29 April 12 April 26 May 11 June 10
March 15 March 30 April 14 April 29 May 14 June 14
March 16 March 31 April 15 April 30 May 17 June 14
March 17 April 1 April 16 May 3 May 17 June 15
March 18 April 2 April 19 May 3 May 17 June 16
March 19 April 5 April 19 May 3 May 18 June 17
March 22 April 6 April 21 May 6 May 21 June 21
March 23 April 7 April 22 May 7 May 24 June 21
March 24 April 8 April 23 May 10 May 24 June 22
March 25 April 9 April 26 May 10 May 24 June 23
March 26 April 12 April 26 May 10 May 25 June 24
March 29 April 13 April 28 May 13 May 28 June 28
March 30 April 14 April 29 May 14 June 1 June 28
March 31 April 15 April 30 May 17 June 1 June 29
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