1–13–05 Thursday Vol. 70 No. 9 Jan. 13, 2005
Pages 2325–2560
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i II Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005
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Contents Federal Register Vol. 70, No. 9
Thursday, January 13, 2005
Agricultural Marketing Service Quality Samples Program, 2384–2386 PROPOSED RULES Technical Assistance for Specialty Crops Program, 2386– Pears (winter) grown in— 2388 Oregon and Washington, 2519–2540 Commodity Futures Trading Commission Agriculture Department RULES See Agricultural Marketing Service National Futures Association; review of disciplinary, See Commodity Credit Corporation membership denial, registration, and member See Forest Service responsibility actions decisions; amendments, 2350– NOTICES 2352 Committees; establishment, renewal, termination, etc.: National Sheep Industry Improvement Center Board of Consumer Product Safety Commission Directors, 2376 PROPOSED RULES Flammable Fabrics Act: Architectural and Transportation Barriers Compliance Bedclothes; flammability (open flame ignition) standard, Board 2513–2517 NOTICES Mattresses and mattress and foundation sets; Meetings: flammability (open flame) standard, 2469–2514 Courthouse Access Advisory Committee, 2389–2390
Army Department Defense Department NOTICES See Army Department Patent licenses; non-exclusive, exclusive, or partially RULES Acquisition regulations: exclusive: Australia and Morocco; free trade agreements, 2361–2366 Identification of small molecules of inhibitors anthrax Competition requirements; correction, 2361 factor, 2396 NOTICES Centers for Disease Control and Prevention Meetings: Defense Acquisition University Board of Visitors, 2395 NOTICES Servicemembers Civil Relief Act: Grants and cooperative agreements; availability, etc.: Housing price inflation adjustment, 2395–2396 National Cancer Prevention and Control Program, 2407– 2410 Education Department Children and Families Administration NOTICES NOTICES Agency information collection activities; proposals, Agency information collection activities; proposals, submissions, and approvals, 2396 submissions, and approvals, 2410–2411 Grants and cooperative agreements; availability, etc.: Advanced Placement Test Fee Program, 2397 Coast Guard Arts in Education Model Development and Dissemination RULES Program; proposed priority, requirements, and Anchorage regulations: definitions, 2397–2399 Massachusetts, 2353–2355 Professional Development for Arts Educators Program, Drawbridge operations: 2399–2401 Louisiana, 2355 Meetings: Ports and waterways safety: Special Education and Rehabilitative Services Office, Bering Sea, Aleutian Islands, and Unalaska Island, AK; 2401–2402 safety zone, 2355–2357 Puget Sound, WA, Captain of Port Zone; security zone, Energy Department 2357 NOTICES Natural gas exportation and importation: Commerce Department Amerada Hess Corp. et al., 2402–2403 See Industry and Security Bureau See International Trade Administration Environmental Protection Agency See National Oceanic and Atmospheric Administration RULES Air quality implementation plans; approval and Commodity Credit Corporation promulgation; various States: NOTICES New York, 2358–2360 Grants and cooperative agreements; availability, etc.: NOTICES Emerging Markets Program, 2376–2380 Toxic and hazardous substances control: Foreign Market Development Cooperator Program, 2380– Neurotoxicity test guideline development and 2382 harmonized test guideline; revocation and Market Access Program, 2382–2384 withdrawal requests; agency response, 2403–2404
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Farm Credit System Insurance Corporation NOTICES NOTICES Agency information collection activities; proposals, Meetings, 2404 submissions, and approvals, 2411–2415 Food additive petitions: Federal Aviation Administration Alltech, Inc., 2415 RULES Reports and guidance documents; availability, etc.: Aircraft products and parts; certification procedures: Labeling over-the-counter human drug products-questions Armed Forces surplus aircraft; large reciprocating-engine and answers, 2415–2416 powered airplanes; type certification; correction, 2325 Forest Service Airworthiness directives: NOTICES Boeing, 2330–2333, 2339–2342 Appealable decisions; legal notice: Rolls-Royce plc, 2333–2339 Northern Region, 2388 Airworthiness standards: Meetings: Special conditions— Resource Advisory Committees— Boeing Model 767-300 airplane, 2325–2330 Madison-Beaverhead, 2389 Class E airspace, 2342–2348 North Central Idaho, 2388–2389 PROPOSED RULES Siskiyou County, 2389 Airworthiness directives: Shasta-Trinity National Forest, CA; collaborative off- Cirrus Design Corp., 2370–2372 highway vehicle route designation process, 2389 NOTICES Airport noise compatibility program: Government Ethics Office Noise exposure maps— NOTICES Missoula International Airport, MT, 2451–2452 Intelligence Reform and Terrorism Prevention Act: Exemption petitions; summary and disposition, 2453–2454 Executive branch employees; financial disclosure process; Meetings: recommendations and evaluation study, 2407 Aviation Rulemaking Advisory Committee, 2454 Health and Human Services Department Federal Communications Commission See Centers for Disease Control and Prevention RULES See Children and Families Administration Common carrier services: See Food and Drug Administration Individuals with hearing and speech disabilities; See Health Resources and Services Administration telecommunications relay and speech-to-speech services; three-way calling requirement; waiver Health Resources and Services Administration expiration, 2360–2361 NOTICES NOTICES Agency information collection activities; proposals, Agency information collection activities; proposals, submissions, and approvals, 2416–2417 submissions, and approvals, 2404–2405 Meetings: Common carrier services: Interdisciplinary, Community-Based Linkages Advisory Enhanced 911 capabilities for multi-line telephone Committee, 2417 systems; States deployment actions, 2405–2406
Federal Election Commission Homeland Security Department NOTICES See Coast Guard Meetings; Sunshine Act, 2406 See Transportation Security Administration
Federal Motor Carrier Safety Administration Indian Affairs Bureau NOTICES NOTICES Motor carrier safety standards: Committees; establishment, renewal, termination, etc.: Commercial Driver’s License Information System; Exceptional Education Advisory Board, 2417–2421 information availability policy, 2454–2455 Indian Reservation Roads Program Coordinating Committee, 2422–2423 Federal Railroad Administration Land acquisitions into trust: NOTICES White Earth Chippewa Reservation of Minnesota, 2423– Safety advisories, bulletins, and directives: 2425 Position of switches in non-signaled territory, 2455–2456 Industry and Security Bureau Federal Reserve System RULES NOTICES Export administration regulations: Banks and bank holding companies: Commerce Control List— Permissible nonbanking activities, 2406–2407 Australia Group understandings and intersessional decision; clarifications, corrections, and Chemical Food and Drug Administration Weapons Convention membership additions; RULES correction, 2348–2350 Animal drugs, feeds, and related products: Levamisole powder for oral solution, 2352–2353 Interior Department Sponsor name and address changes— See Indian Affairs Bureau Alstoe, Ltd., 2352 See Land Management Bureau
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Internal Revenue Service Mid-Atlantic Fishery Management Council; correction, NOTICES 2392 Meetings: New England Fishery Management Council, 2392–2393 Taxpayer Advocacy Panels, 2465 Western Pacific Fishery Management Council, 2393–2394 Privacy Act: Permits: Systems of records, 2465–2466 Marine mammals, 2394–2395 Scientific research, 2395 International Trade Administration NOTICES National Science Foundation North American Free Trade Agreement (NAFTA); NOTICES binational panel reviews: Meetings; Sunshine Act, 2429 Carbon and alloy steel wire rod from— Canada; correction, 2390 Nuclear Regulatory Commission NOTICES International Trade Commission Applications, hearings, determinations, etc.: NOTICES Louisiana Energy Services, L.P., 2429–2430 Import investigations: Safety Light Corp., 2430–2431 Potassium permanganate from— China, 2428 Research and Special Programs Administration U.S.-Central America Free Trade Agreement; potential RULES economywide and selected sectoral effects; Hazardous materials: investigation terminated, 2429 Transportation— Primary lithium batteries and cells; prohibition aboard Land Management Bureau passenger aircraft; public meeting, 2367 NOTICES Meetings: Securities and Exchange Commission McInnis Canyons National Conservation Area Advisory NOTICES Council, 2425 Options Price Reporting Authority: Pinedale Anticline Working Group task groups, 2425– Consolidated Options Last Sale Reports and Quotation 2426 Information; Reporting Plan; amendments, 2432 Resource Advisory Councils— Self-regulatory organizations; proposed rule changes: Southeast Oregon, 2426 American Stock Exchange LLC, 2432–2435 Oil and gas leases: American Stock Exchange LLC; correction, 2467 Wyoming, 2426–2427 Boston Stock Exchange, Inc.; correction, 2467 Recreation management restrictions, etc.: Chicago Board Options Exchange, Inc., 2435–2439 La Paz County, AZ; temporary closure of selected public International Securities Exchange LLC, 2439–2440 lands during operation of Parker 425 Desert Race, National Association of Securities Dealers, Inc., 2440– 2427–2428 2441 Options Clearing Corp., 2442 Maritime Administration Pacific Exchange, Inc., 2443–2444 NOTICES Philadelphia Stock Exchange, Inc., 2444–2447 Agency information collection activities; proposals, Applications, hearings, determinations, etc.: submissions, and approvals, 2457 Premier Farnell Plc, 2431
National Highway Traffic Safety Administration Social Security Administration NOTICES NOTICES Grants and cooperative agreements; availability, etc.: Social Security Protection Act; implementation: Crash Injury Research and Engineering Network; Level Direct payment to non-attorney representatives; One Trauma Centers; responses to questions, 2457– demonstration project, 2447–2450 2462 Motor vehicle safety standards; exemption petitions, etc.: State Department Morgan Motor Co. Ltd., 2462–2464 NOTICES Art objects; importation for exhibition: National Oceanic and Atmospheric Administration Kingdom of Siam: Art of Central Thailand (1350-1800), RULES 2450 Marine mammals: Meetings: Commercial fishing authorizations— International Telecommunication Advisory Committee, Atlantic Large Whale Take Reduction Plan, 2367–2369 2450 NOTICES Shipping Coordinating Committee, 2450–2451 Endangered and threatened species: Andromous fish take— Surface Transportation Board Washington County, OR; Routine Road Maintenance NOTICES Program; availability, 2390–2391 Motor carriers: Meetings: Control applications— Gray’s Reef National Marine Sanctuary Advisory Council, Pacific Coast Sightseeing Tours & Charters, 2464–2465 2391–2392 Marine Protected Areas Federal Advisory Committee, Transportation Department 2392 See Federal Aviation Administration
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See Federal Motor Carrier Safety Administration Separate Parts In This Issue See Federal Railroad Administration See Maritime Administration Part II See National Highway Traffic Safety Administration Consumer Product Safety Commission, 2469–2517 See Research and Special Programs Administration See Surface Transportation Board Part III PROPOSED RULES Agriculture Department, Agricultural Marketing Service, 2519–2540 Aviation economic regulations: Print advertisements of scheduled passenger services; Part IV code-sharing arrangements and long-term wet leases; Homeland Security Department, Transportation Security disclosure, 2372–2375 Administration, 2541–2560
Transportation Security Administration RULES Reader Aids Maritime and land transportation security: Consult the Reader Aids section at the end of this issue for Hazardous materials drivers; security threat assessments; phone numbers, online resources, finding aids, reminders, fees, 2541–2560 and notice of recently enacted public laws. To subscribe to the Federal Register Table of Contents Treasury Department LISTSERV electronic mailing list, go to http:// See Internal Revenue Service listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.
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CFR PARTS AFFECTED IN THIS ISSUE
A cumulative list of the parts affected this month can be found in the Reader Aids section at the end of this issue.
7 CFR Proposed Rules: 927...... 2520 14 CFR 21...... 2325 25...... 2325 39 (4 documents) ...2330, 2333, 2336, 2339 71 (7 documents) ...2342, 2343, 2344, 2345, 2346, 2347, 2348 Proposed Rules: 39...... 2370 257...... 2372 15 CFR 742...... 2348 774...... 2348 16 CFR Proposed Rules: 1633...... 2470 1634...... 2514 17 CFR 171...... 2350 21 CFR 510...... 2352 520...... 2352 33 CFR 110...... 2353 117...... 2355 165 (2 documents) ...... 2355, 2357 40 CFR 52...... 2358 47 CFR 64...... 2360 48 CFR 206...... 2361 225...... 2361 252...... 2361 49 CFR 171...... 2367 172...... 2367 173...... 2367 175...... 2367 1572...... 2542 50 CFR 229...... 2367
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Rules and Regulations Federal Register Vol. 70, No. 9
Thursday, January 13, 2005
This section of the FEDERAL REGISTER I (2) In § 21.27, amend paragraph (f) by Comments must be received on or contains regulatory documents having general revising the dates in the table for the before February 28, 2005. applicability and legal effect, most of which entry ‘‘Large reciprocating-engine ADDRESSES: are keyed to and codified in the Code of powered airplanes’’ to read as follows: Comments on these special Federal Regulations, which is published under conditions may be mailed in duplicate 50 titles pursuant to 44 U.S.C. 1510. § 21.27 Issue of type certificate: surplus to: Federal Aviation Administration, aircraft of the Armed Forces. Transport Airplane Directorate, The Code of Federal Regulations is sold by * * * * * the Superintendent of Documents. Prices of Attention: Rules Docket (ANM–113), new books are listed in the first FEDERAL (b) * * * Docket No. NM299, 1601 Lind Avenue REGISTER issue of each week. *** SW., Renton, Washington 98055–4056; Large reciprocating-engine powered or delivered in duplicate to the airplanes: Before Aug. 26, 1955. After Transport Airplane Directorate at the Aug. 25, 1955. DEPARTMENT OF TRANSPORTATION above address. All comments must be * * * * * marked: Docket No. NM299. Federal Aviation Administration Issued in Washington, DC, on January 7, 2005. FOR FURTHER INFORMATION CONTACT: 14 CFR Part 21 Anthony F. Fazio, Gerald Lakin, FAA, Standardization, ANM–113, Transport Airplane Director, Office of Rulemaking. Certification Procedures for Products Directorate, 1601 Lind Avenue SW., [FR Doc. 05–754 Filed 1–12–05; 8:45 am] and Parts: Type Certificates; Issue of Renton, Washington, 98055–4056; Type Certificate: Surplus Aircraft of the BILLING CODE 4910–13–P telephone (425) 227–1187; facsimile Armed Forces; Correction (425) 227–1149. AGENCY: Federal Aviation DEPARTMENT OF TRANSPORTATION SUPPLEMENTARY INFORMATION: The FAA Administration (FAA), DOT. has determined that notice and Federal Aviation Administration ACTION: Correcting amendment. opportunity for prior public comment hereon are impracticable, because those 14 CFR Part 25 SUMMARY: This document corrects an procedures would significantly delay error that appears in the Code of Federal [Docket No. NM299; Special Conditions No. issuance of the approval design and Regulations (CFR), title 14, as of January 25–283–SC] thus delivery of the affected aircraft. 1, 2004. The regulation relates to type The FAA, therefore, finds that good Special Conditions: Boeing Model 767– certification of large reciprocating- cause exists for making these special 300 Airplane; Forward Lower Deck engine powered airplanes that are conditions effective upon issuance. surplus from the Armed Forces of the Service/Cargo Compartment Comments Invited United States. AGENCY: Federal Aviation DATES: Effective on January 13, 2005. Administration (FAA), DOT. Interested persons are invited to FOR FURTHER INFORMATION CONTACT: ACTION: Final special conditions; request submit such written data, views, or Brian Yanez, phone (202) 267–5864. for comments. arguments as they may desire. SUPPLEMENTARY INFORMATION: SUMMARY: These special conditions are Comments should identify the rules Need for Correction issued for a Boeing Model 767–300 docket number and be submitted in duplicate to the address specified above. As published in the CFR, this airplane modified by Jet Aviation Engineering Services (JAES), Spring The Administrator will consider all regulation contains an error in which comments received on or before the the date ‘‘Aug. 25, 1959’’ was Branch, Texas. This modified airplane will have a novel or unusual design closing date for comments. The special incorrectly substituted for the date conditions may be changed in light of ‘‘Aug. 25, 1955’’. feature when compared to the state of technology envisioned in the the comments received. All comments List of Subjects in 14 CFR Part 21, airworthiness standards for transport received will be available in the Rules Subpart B category airplanes. The modification is Docket for examination by interested Type certificates. associated with a forward lower deck persons, both before and after the compartment that will serve as both a closing date for comments. A report I Accordingly, 14 CFR part 21 is service compartment and a Class C summarizing each substantive public corrected by making the following cargo compartment. The applicable contact with FAA personnel concerning correcting amendments: airworthiness regulations do not contain this rulemaking will be filed in the PART 21—CERTIFICATION adequate or appropriate safety standards docket. Persons wishing the FAA to PROCEDURES FOR PRODUCTS AND for this design feature. These special acknowledge receipt of their comments PARTS conditions contain the additional safety submitted in response to these special standards that the Administrator conditions must include with those I (1) The authority citation for part 21 considers necessary to establish a level comments a self-addressed postcard on continues to read as follows: of safety equivalent to that established which the following statement is made: Authority: 42 U.S.C. 7572; 49 U.S.C. by the existing airworthiness standards. ‘‘Comments to Docket No. NM299. The 106(g), 40105, 40113, 44701–44702, 44707, DATES: The effective date of these postcard will be date stamped and 44709, 44711, 44713, 44715, 45303. special conditions is February 14, 2005. returned to the commenter.
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Background event of a fire, the forward lower deck incorporated by reference in Type On December 4, 2003, Jet Aviation service/cargo compartment will be Certificate A1NM for the Boeing Model Engineering Services (JAES) applied for evacuated, and the pilot will activate 767–300 series airplanes include 14 CFR a supplemental type certificate that the built-in fire suppression system. A part 25, as amended by Amendments would allow modification of a Boeing means will be provided to prevent 25–1 through 25–37 with certain Model 767–300 airplane interior to an inadvertent access to the compartment additions and special conditions as executive jet interior configuration. when the fire suppression system has listed in the type certificate data sheet. Boeing Model 767–300 series airplanes, been activated. The U.S. type certification basis for the Current regulations specify the currently approved under Type Boeing Model 767–300 series airplane is requirements for a forward lower deck Certificate A1NM, are large transport established in accordance with §§ 21.17 service compartment (§ 25.819) and a category airplanes with a main and 21.21 and the type certification Class C cargo compartment (§§ 25.855 passenger deck limited to 290 application date. and 25.857) but the regulations did not The type certification basis listed in passengers or fewer, depending on the envision a dual-purpose compartment. interior configuration. As part of the Type Certificate Data Sheet No. A1NM, Currently, § 25.819 specifies that a for the Boeing Model 767–300 does not type design, certified Class C cargo service compartment may be occupied compartments are installed below the include § 25.819, which was introduced and does not need to be evacuated in Amendment 25–53. In this case, main deck. under certain normal conditions or Jet Aviation Engineering Services § 25.819 does provide appropriate safety under certain unsafe conditions (e.g., in standards for that portion of this STC’s proposes to include as part of the the case of fire, the occupant could interior STC modification, access to the design considered a service function as a firefighter). The fire compartment. Therefore, in lieu of forward lower deck Class C cargo control system of a service compartment and to convert that applying the requirements of § 25.819 as compartment, however, would not a special condition, § 25.819 compartment for use as a combined utilize a flood-type fire suppressant, service compartment and Class C cargo (Amendment 25–110) will be added as since the compartment might be a requirement to this STC’s certification compartment (service/cargo occupied. Section 25.857, however, compartment). Access will be provided basis. specifies that a Class C cargo If the Administrator finds that the by two hatches installed in the cabin compartment have a fire detection applicable airworthiness regulations floor, a primary hatch in the galley and system and a built-in fire suppression (i.e., 14 CFR part 25) do not contain a secondary hatch located in the crew system, i.e., a total flood system. The adequate or appropriate safety standards rest area. A ladder will be installed at applicant intends to use the for a Boeing Model 767–300 series each hatch to provide access from the compartment as a dual-purpose service/ airplane because of a novel or unusual hatch to the forward lower deck service cargo compartment and intends for the design feature, special conditions are compartment floor. operator to use the built-in systems to prescribed under the provisions of Access would be limited to one fight fires in every instance. trained crewmember and would be § 21.16. The concept of a multi-use In addition to the applicable allowed during level flight, but would compartment, which JAES proposes, airworthiness regulations and special not be allowed during taxi, takeoff and would be acceptable if the FAA could conditions, the Boeing Model 767–300 landing or during a fire. be assured that whether the must comply with the fuel vent and As part of the safety enhancement compartment is used as a service exhaust emission requirements of 14 necessary to allow occupancy of the compartment or as a Class C cargo CFR part 34 and the noise certification forward lower deck service/cargo compartment, the level of safety would requirements of 14 CFR part 36. compartment by a crewmember, JAES be equivalent to that of a separate Special conditions, as defined in 14 proposes the installation of warning and service compartment or a separate Class CFR 11.19, are issued in accordance emergency equipment, as defined for a C cargo compartment. Therefore, special with § 11.38 and become part of the type lower lobe service compartment in 14 conditions that provide an equivalent certification basis in accordance with CFR 25.819. Speakers, warning lights, level of safety are being required. These § 21.101. and buzzers will be installed in the special conditions pertain to visible and Special conditions are initially forward lower deck service/cargo audible warnings, placards and applicable to the model for which they compartment to warn an occupant of limitations, equipment, evacuation are issued. Should the applicant apply turbulent conditions, the presence of routes, training, and the use of ladders for a supplemental type certificate to smoke or fire, or the need to leave the between the main deck and the forward modify any other model included on the area. A crew interphone will be lower deck service/cargo compartment. same type certificate to incorporate the provided for communications with the Type Certification Basis same novel or unusual design feature, flightdeck. the special conditions would also apply Jet Aviation Engineering Services Under the provisions of 14 CFR to the other model under the provisions indicates that the forward lower deck 21.101, Jet Aviation Engineering of § 21.101. service/cargo compartment will meet Services must show that the Boeing the Class C cargo requirements of Model 767–300 airplane, as modified, Novel or Unusual Design Features §§ 25.855 and 25.857. The compartment continues to meet the applicable The Boeing Model 767–300 airplane will be built using materials meeting the provisions of the regulations will incorporate a novel or unusual flammability standards for Class C cargo incorporated by reference in Type design feature; specifically, the forward compartments and will have a smoke Certificate A1NM or the applicable lower deck compartment will be used as detection system. The compartment will regulations in effect on the date of a combined service compartment and be equipped with an approved built-in application for the change. Class C cargo compartment. fire suppression system, which is The regulations incorporated by controllable from the cockpit to reference in the type certificate are Discussion eliminate the need to send someone into commonly referred to as the ‘‘original To allow the use of a dual-purposed the compartment to fight a fire. In the type certification basis.’’ The regulations service/cargo compartment, these
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special conditions require certain occupied on the ground or in the air, a outside each hatch of the forward lower visible and audible warnings, placards warning must be provided to notify an deck service/cargo compartment, and limitations, equipment, and occupant to leave the compartment indicating that the compartment hatch training. The applicant has not prior to taxi, takeoff or landing or during must remain closed, except when proposed a means of satisfying certain emergencies (other than fire, someone is entering or leaving the regulatory requirements governing which is dealt with under Special compartment. The hatches should occupancy of the forward lower deck Condition 1e). A visible warning is remain closed except for entering or service/cargo compartment during taxi, required, in case the audible warning leaving the compartment so as to not takeoff, and landing. Therefore, the FAA becomes masked or distorted by engine, degrade the fire detection and will specify appropriate limitations for equipment, or ground noises. suppression systems, which are tested such occupancy. A discussion of each Special condition 1d requires a visible and certified with the compartment specific special condition follows but is and audible warning in the forward hatches closed. Further, with this limited where the specific special lower deck service/cargo compartment limitation there is less chance someone condition is self-explanatory: to notify an occupant of the need to use will accidentally step through an open a portable oxygen bottle in the event of hatch. Special Condition 1—Visible and decompression. This warning must be Special Condition 2c requires a Audible Warnings one which can be seen and heard from limitation to be placed in the airplane To maintain the advantages of both a any part of the compartment and must flight manual (AFM) and placards to be service compartment and a Class C be distinct from other warnings in the posted inside and outside the hatches of cargo compartment, certain warnings compartment to prevent confusion and the forward lower deck service/cargo need to be provided. to elicit correct action. The compartment, all stating that (1) the Special Condition 1a requires a decompression warning must be compartment may not be occupied visible advisory in the cockpit to notify automatic (i.e., not require separate during taxi, takeoff, or landing or during the flightcrew when the forward lower crew action) to ensure that an occupant a fire and (2) only authorized personnel deck service/cargo compartment is of the forward lower deck service/cargo are permitted access. These placards are occupied. The potential exists that the compartment does not delay putting on being required, because the forward lower deck service/cargo the mask attached to the portable compartment is not being certified for compartment may inadvertently be oxygen bottle. This section of the occupancy during taxi, takeoff, or occupied when it should not be, such as special conditions is partially in lieu of landing and because the compartment during taxi, takeoff or landing or during the visible effect provided by the must not be occupied during a fire so certain emergencies. Special Condition automatic presentation feature required that an occupant is not exposed to fire 1a also ensures that the flightcrew is by § 25.1447. or to fire suppressant. These placards aware that the forward lower deck Special Condition 1e requires a are somewhat redundant, given the service/cargo compartment is occupied visible and audible warning in the warning required under Special in order that the flightcrew can take forward lower deck service/cargo Conditions 1b and 1c but would provide appropriate action to evacuate the compartment when a fire is detected to information to an occupant, if the compartment before flooding it with fire notify an occupant that he or she must flightcrew failed to activate the suppressant. There must be a placard or evacuate the compartment. The warning warnings of Special Conditions 1b and sign adjacent to the warning light which must be one which can be seen and 1c. indicates that the light means that the heard from any part of the compartment Special Condition 2d requires in the compartment is occupied. and must be distinct from other AFM (or AFM supplement) instructions Special Condition 1b requires an ‘‘on/ warnings in the compartment in order to for the flightcrew to follow regarding— off’’ visible warning placard stating ‘‘Do prevent confusion and to elicit the (1) Permissible access and occupancy; Not Enter’’ (or similar words) placard to correct actions. The fire or smoke (2) The need to exit (or evacuate in be located on or near each hatch. The detection warning must be automatic the event of an incapacitated person) location should be on the main deck (i.e., not require or depend on separate and discharge (flood) extinguishing side of the hatch. The warning is to be crew action) to ensure that an occupant agent in the compartment; and controlled from the flightdeck to of the forward lower deck service/cargo (3) The need, after decompression prevent someone from entering the compartment leaves before the warning, to immediately don the oxygen forward lower deck service/cargo flightdeck crew releases fire suppressant mask and exit the compartment. compartment when it should not be in the compartment. These requirements are to ensure that occupied; such as during taxi, takeoff or a single member of the crew could landing, or when smoke or fire has been Special Condition 2—Placards and access the cargo compartment safely detected. Opening the door during a fire Limitations during flight and exit safely during would degrade the effectiveness of the The forward lower deck service/cargo failure conditions. fire suppressant and allow smoke, compartment must be evacuated if a fire Special Condition 2e. Because access flame, and/or fire suppressant into the occurs. In addition, there must be a way is being provided to the forward lower cabin. to prevent access into the compartment deck service/cargo compartment, there Special Condition 1c requires a during taxi, takeoff or landing or in the is concern that during flight, passengers visible and audible warning in the event of a fire. Placards and limitations may retrieve hazardous materials or forward lower deck service/cargo are specified for these situations. weapons stored in luggage. Access compartment to notify an occupant that Special Condition 2a requires a could be prevented by locking the he or she must leave the compartment. placard to be located outside each hatch forward lower deck service/cargo This warning must be one which can be to the forward lower deck service/cargo compartment, and that is being seen and heard from any part of the compartment, indicating that access is specified as one solution (in Special compartment. The visible and audible limited to one crewmember trained in Condition 2e(1)). However, this airplane warning is to be controlled from the evacuation procedures. is being designed for use by a head-of- flightdeck. Because the forward lower Special Condition 2b requires state, it will have limited access, and it deck service/cargo compartment may be placards to be located inside and will have placards limiting access.
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Furthermore, there will be notification closed, without obstruction. This allows Special Condition 6a requires that to the flightcrew when the forward exiting under emergency conditions. each ladder consist of a single segment lower deck service/cargo compartment Further, the hatches must be able to be (to minimize potential errors of use). is occupied (in Special Condition 1a). closed to maintain the integrity of the Special Condition 6b requires that the Special Condition 2e(2), therefore, compartment with respect to fire ladders have essentially rectangular would prohibit the airplane from being detection and with respect to smoke, treads (to reduce the potential to slip). operated for hire or offered for common fire and extinguishing agent Special Condition 6c requires that carriage. containment requirements applicable to general illumination of at least 0.05 foot- Special Condition 3—Equipment the Class C cargo compartment, candle, when measured along the including §§ 25.855, 25.857, and 25.858. centerlines of each tread, be provided, In addition to that required by Also see Special Condition 2b. when the ladders are to be used (to § 25.819, Special Condition 3 requires Special Condition 5—Training facilitate evacuation and reduce miss- the following equipment: steps). Special Condition 3a requires that Because the design features required two portable oxygen bottles be readily by these special conditions can fulfill Applicability available at all times and that each be their safety objectives only if As discussed above, these special sufficient to supply a member of the crewmembers are properly trained in conditions are applicable to the Boeing crew who is occupying the forward their use, these special conditions Model 767–300 airplane. Should JAES lower deck service/cargo compartment require the applicant to develop the apply at a later date for a supplemental (except during taxi, takeoff, or landing, following training materials: type certificate to modify any other or during a fire). The supply of oxygen Special Condition 5a requires training model included on Type Certificate must be compatible with the emergency materials about use of the forward lower A1NM to incorporate the same novel or descent profile following a deck service/cargo compartment and unusual design feature, the special decompression. Because it would not be actions associated with the warnings conditions would apply to that model as advisable to provide drop-down masks and placards required by these special well under the provisions of § 21.101. in a cargo compartment or to store a conditions. portable oxygen bottle in the Special Condition 5b requires training Conclusion compartment, the FAA is requiring that materials about entering and exiting the This action affects only certain novel a portable oxygen bottles be mounted forward lower deck service/cargo or unusual design features on one model outside and near the main deck entrance compartment, including emergency of airplane. It is not a rule of general of the forward lower deck service/cargo exiting, (associated with Special applicability, and it affects only the compartment. A member of the crew Conditions 1b, 1c, 1d, 1e, 2a, 2b, 2c, 2d, applicant which applied to the FAA for must carry the portable oxygen bottle, and 3a). approval of these features on the when he or she enters the compartment. Special Condition 5c requires training airplane. The second bottle is for a second materials about checking the pressure of Under standard practice, the effective crewmember’s use who must evacuate the portable oxygen bottle prior to date of final special conditions would an incapacitated crewmember. entering the forward lower deck service/ be 30 days after the date of publication Special Condition 3b requires cargo compartment (associated with supplemental handheld lighting (with in the Federal Register. However, as the Special Condition 3a). certification date for the Boeing Model locator light) when an occupant enters Special Condition 5d requires training 767–300, as modified by JAES, is the forward lower deck service/cargo materials about carrying a portable imminent, the FAA finds, that good compartment and any of the following oxygen bottle when entering the forward cause exists to make these special three conditions exist: (1) Power to the lower deck service/cargo compartment conditions effective upon issuance. compartment is off, (2) the emergency (associated with Special Condition 3a). escape path lighting is off or lost, or (3) Special Condition 5e requires training List of Subjects in 14 CFR Part 25 visibility is poor. At least two flashlights materials about maintaining an exit aisle Aircraft, Aviation safety, Reporting are required. One flashlight would be and access to the evacuation routes from and recordkeeping requirements. located adjacent to each emergency exit the lower lobe service/cargo in the forward lower deck service/cargo compartment (associated with Special I The authority citation for these special compartment at the foot of the stairs in Condition 2f and 4). conditions is as follows: the compartment. Note that this Special Condition 5f requires a Authority: 49 U.S.C. 106(g), 40113, 44701, requirement is in addition to the limitation in the AFM (or AFM 44702, 44704. supplement) stating all personnel automatic emergency lighting system The Special Conditions required by § 25.819(a). accessing the forward lower deck service/cargo compartment must be I Accordingly, pursuant to the authority Special Condition 4—Evacuation Routes trained in the procedures specified delegated to me by the Administrator, To allow the forward lower deck above. Special Condition 5f also states the following special conditions are service/cargo compartment to be there should be at least two issued as part of the type certification utilized as a service compartment, crewmembers (not the pilot or co-pilot) basis for the Boeing Model 767–300 Special Condition 4 requires a trained in emergency evacuation airplane, modified by Jet Aviation limitation to keep the two evacuation procedures. The second person is to aid Engineering Services, to include a routes required under § 25.819(a) clear the evacuation of an incapacitated forward lower deck compartment for evacuation. The cargo in the crewmember should that occur. configured for use as both a service compartment must be restrained to compartment and a Class C cargo ensure that the crewmember’s paths to Special Condition 6—Ladders compartment. the exits are clear. Further, all entrances The ladders between the forward and exits (hatches) from the forward lower deck service/cargo compartment 1. Visible and Audible Warnings lower deck service/cargo compartment and the main deck must meet the In addition to the audible warnings must be capable of being opened and following requirements: (fire/smoke detection and
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decompression) required by § 25.819(c), one crewmember trained in evacuation emergency illumination required by the following warnings are required: procedures. § 25.819(a). At least two flashlights, a. A visible advisory in the cockpit to b. A placard located inside and each equipped with a locator light, must notify the flightcrew when the forward outside each hatch to the forward lower be provided. A flashlight must be lower deck service/cargo compartment deck service/cargo compartment, located adjacent to each emergency exit is occupied. The advisory light must be indicating that the compartment hatches (hatch) at the foot of the ladder in the accompanied by a placard or message must remain closed, except when forward lower deck service/cargo indicating that the compartment is someone is entering or leaving the compartment. occupied. compartment. b. A (on/off) visible warning placard c. A limitation in the AFM and a 4. Evacuation Routes stating ‘‘Do Not Enter’’ (or similar placard located inside and outside each A limitation must be placed in the words) to be located on or near each hatch to the forward lower deck service/ AFM (or AFM supplement) stating that: hatch. The location should be on the cargo compartment, all stating that (1) When the forward lower deck service/ main deck side of the hatch. The the forward lower deck service/cargo cargo compartment is operated as a warning is to be controlled from the compartment must not be occupied service compartment, the two flightdeck. during taxi, takeoff, or landing or during evacuation routes must be kept clear, c. A visible and audible warning in a fire, and (2) only authorized personnel the special storage pallets/containers the forward lower deck service/cargo are permitted access. must be installed, no loose storage is compartment to notify an occupant d. Instructions in the AFM (or AFM permitted, and all items stored in the when he or she must evacuate the supplement) for the flightcrew to follow compartment must be stored in compartment. The warning must be one regarding— appropriate pallets/containers (or which can be seen and heard from any (1) Permissible access and occupancy similar words). part of the compartment. The warning is of the forward lower deck service/cargo Similar loading restrictions should be to be controlled from the flightdeck. compartment; placed in the weight and balance d. A visible and audible warning in (2) The need to exit (or evacuate in manual. the forward lower deck service/cargo the event of an incapacitated person) 5. Training compartment, which in the event of and discharge (flood) extinguishing decompression, warns an occupant of agent in the compartment; and Training manuals must be provided the need to use a portable oxygen bottle. (3) The need, after decompression for authorized crewmembers that may This warning must be one which can be warning, to immediately don the oxygen enter the forward lower deck service/ seen and heard from any part of the mask and exit the compartment. cargo compartment and the manuals compartment and must be distinct from e. A Limitation in the AFM and training shall include: other warnings in the compartment. The supplement stating that: a. Use of the forward lower deck decompression warning must be ‘‘Carriage of hazardous material and/ service/service compartment and automatic (i.e., not require separate or weapons in the forward lower deck actions indicated by the warnings and crew action), to ensure that an occupant service/cargo compartment is prohibited placards specified herein. of the forward lower deck service/cargo unless the following conditions are met: b. Entering and exiting the forward compartment does not delay using a (1) The forward lower deck service lower deck service/cargo compartment, portable oxygen bottle. This section of compartment is locked during flight, including emergency exiting. the special conditions is partially in lieu and the key remains with the flightcrew, c. Checking the pressure of the of the visible effect provided by the or portable oxygen bottle prior to entering automatic presentation feature required (2) The airplane is not operated for the forward lower deck service/cargo by § 25.1447. hire or offered for common carriage. compartment. e. A visible and audible warning in This provision does not preclude the d. Carrying a portable oxygen bottle the forward lower deck service/cargo operator from receiving remuneration to when entering the forward lower deck compartment, which in the event of a the extent consistent with 14 CFR part service/ cargo compartment. fire, warns an occupant of the need to 125, and 14 CFR part 91, and subpart F, e. Maintaining an exit aisle and access evacuate the compartment. This as applicable.’’ to evacuation routes from the forward warning must be one which can be seen lower deck service/cargo compartment. 3. Equipment and heard from any part of the Training must address how to keep the compartment and should be distinct In addition to that required by evacuation routes clear, i.e., how to from other warnings in the §§ 25.819, the following equipment is restrain cargo in the compartment to compartment. The fire or smoke required: ensure that the paths to the exits detection warning must be automatic a. Two portable oxygen bottles with (hatches) are clear. (i.e., not require a separate crew action) masks must be readily available outside f. A limitation in the AFM to ensure that an occupant of the and near the primary main deck supplement stating that all personnel forward lower deck service/cargo entrance (hatch) of the forward lower accessing the forward lower deck compartment leaves before the deck service/cargo compartment. Either service/cargo compartment must be flightdeck crew releases fire portable oxygen bottle must be trained in the procedures listed above. suppressant. sufficient to supply a member of the To facilitate the evacuation of an crew who is occupying the forward incapacitated person, there should be at 2. Placards and Limitations lower deck service/cargo compartment least two crewmembers (not the pilot or In addition to those required in part and a bottle with mask attached must be co-pilot) trained in the emergency 25, the following placards and carried by the crewmember when in the procedures for the forward lower deck limitations are required: compartment. The second bottle is for service/cargo compartment. a. A placard located outside each the crewmember’s use who must hatch to the forward lower deck service/ evacuate an incapacitated crewmember. 6. Ladders cargo compartment, indicating that b. Flashlights or other supplemental The following requirements must be access to the compartment is limited to handheld lighting, in addition to the met for ladders installed between the
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main deck and the forward lower deck The incorporation by reference of Engineer, Propulsion Branch, ANM– service/cargo compartment: certain other publications, as listed in 140S, FAA, Seattle Aircraft Certification a. Each ladder must consist of a single the regulations, was approved Office, 1601 Lind Avenue, SW., Renton, segment. previously by the Director of the Federal Washington 98055–4056; telephone b. The ladders must have essentially Register as of September 16, 1991 (56 FR (425) 917–6508; fax (425) 917–6590. rectangular treads. 46725, September 16, 1991). SUPPLEMENTARY INFORMATION: On August c. General illumination of at least 0.05 We must receive comments on this 7, 2003, we issued AD 94–01–10 R1, foot-candle, when measured along the AD by March 14, 2005. amendment 39–13247 (68 FR 48546, centerlines of each ladder tread, must be ADDRESSES: Use one of the following August 14, 2003). That AD applies to provided when the ladders are to be addresses to submit comments on this certain Boeing Model 757–200 and used. AD. –200PF series airplanes. That AD Issued in Renton, Washington, on January • DOT Docket Web site: Go to requires inspections, adjustments, and 5, 2005. http://dms.dot.gov and follow the functional checks of the engine thrust Ali Bahrami, instructions for sending your comments reverser system; and modification of the Manager, Transport Airplane Directorate, electronically. engine thrust reverser directional Aircraft Certification Service. • Government-wide rulemaking Web control valve. That AD also requires [FR Doc. 05–660 Filed 1–12–05; 8:45 am] site: Go to http://www.regulations.gov installation of an additional thrust reverser locking feature and periodic BILLING CODE 4910–13–P and follow the instructions for sending your comments electronically. functional tests of the locking feature • Mail: Docket Management Facility; following installation. That AD was DEPARTMENT OF TRANSPORTATION U.S. Department of Transportation, 400 prompted by a determination that the Seventh Street SW., Nassif Building, applicability of AD 94–01–10, Federal Aviation Administration Room PL–401, Washington, DC 20590. amendment 39–8792 (59 FR 4558, • Fax: (202) 493–2251. February 1, 1994), should be limited to 14 CFR Part 39 • Hand Delivery: Room PL–401 on Boeing Model 757–200 and –200PF the plaza level of the Nassif Building, series airplanes equipped with Pratt and [Docket No. FAA–2005–20009; Directorate Whitney PW2000 series engines. The Identifier 2003–NM–220–AD; Amendment 400 Seventh Street SW., Washington, 39–13937; AD 94–01–10 R2] DC, between 9 a.m. and 5 p.m., Monday actions specified in the AD are intended through Friday, except Federal holidays. to prevent deployment of a thrust RIN 2120–AA64 For service information identified in reverser in flight and subsequent reduced controllability of the airplane. Airworthiness Directives; Boeing this AD, contact Boeing Commercial Model 757–200 and –200PF Series Airplanes, P.O. Box 3707, Seattle, Actions Since AD Was Issued Washington 98124–2207. You can Airplanes We have since determined that examine this information at the National paragraph (c) of AD 94–01–10 R1 should AGENCY: Federal Aviation Archives and Records Administration be revised to apply only to airplanes Administration (FAA), DOT. (NARA). For information on the with line numbers 441 and lower. That availability of this material at NARA, ACTION: Final rule; request for AD applies to Boeing Model 757 series call (202) 741–6030, or go to http:// comments. airplanes with Pratt & Whitney PW2000 www.archives.gov/federal_register/ series engines. The airplanes in that AD SUMMARY: The FAA is revising an _ _ _ code of federal regulations/ are divided into two groups: existing airworthiness directive (AD) for _ ibr locations.html. • Airplanes without a thrust reverser certain Boeing Model 757–200 and You can examine the contents of this sync lock (airplane line numbers 1 –200PF series airplanes. That AD AD docket on the Internet at http:// through 441 inclusive); and currently requires inspections, dms.dot.gov, or in person at the Docket • Airplanes with changes to the sync adjustments, and functional checks of Management Facility, U.S. Department lock installation done in production the engine thrust reverser system; and of Transportation, 400 Seventh Street (airplane line numbers 442 and modification of the engine thrust SW., room PL–401, on the plaza level of subsequent). reverser directional control valve. That the Nassif Building, Washington, DC. When we issued that AD, we made AD also requires installation of an This docket number is FAA–2005– changes as a result of comments we additional thrust reverser locking 20009; the directorate identifier for this received. One of the changes was to feature and periodic functional tests of docket is 2003–NM–220–AD. change paragraph (d) to apply only to the locking feature following Examining the Docket airplanes without a thrust reverser sync installation. This new AD retains the lock installed in production. The action requirements of the existing AD, but You can examine the AD docket on in paragraph (d) (installing the thrust removes certain tests and inspections the Internet at http://dms.dot.gov, or in reverser sync lock) is terminating action for certain airplanes. This AD is person at the Docket Management for paragraphs (a) through (c). We prompted by a determination of an error Facility office between 9 a.m. and 5 intended for the repetitive tests and in the existing AD. We are issuing this p.m., Monday through Friday, except inspections in paragraph (c) to apply AD to prevent deployment of a thrust Federal holidays. The Docket only to airplanes without a thrust reverser in flight and subsequent Management Facility office (telephone reverser sync lock installed during reduced controllability of the airplane. (800) 647–5227) is located on the plaza production. Unlike paragraph (d), DATES: Effective January 28, 2005. level of the Nassif Building at the DOT however, paragraph (c) of that AD The incorporation by reference of street address stated in the ADDRESSES incorrectly applies to all line numbers certain publications, as listed in the section. Comments will be available in of airplanes, including those with regulations, was approved by the the AD docket shortly after the DMS changes to the sync lock installation Director of the Federal Register as of receives them. done in production. March 3, 1994 (59 FR 4558, February 1, FOR FURTHER INFORMATION CONTACT: Therefore, we have changed 1994). Thomas S. Thorson, Aerospace paragraph (c) of this final rule to clarify
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that the paragraph applies to all Changes to the Existing AD After AD 94–01–10 R1 was issued, we airplanes affected by paragraph (d). For This AD retains certain requirements reviewed the figures we have used over the same reasons, we have changed of AD 94–01–10 R1. Since that AD was the past several years to calculate AD paragraph (e) to clarify that its issued, the AD format has been revised, costs to operators. To account for requirements apply to all airplanes. We and certain paragraphs have been various inflationary costs in the airline have also changed the paragraph rearranged. As a result, the industry, we find it necessary to identifiers in this final rule to the new corresponding paragraph identifiers increase the labor rate used in these identifiers that are discussed under have changed in this AD, as listed in the calculations from $60 per work hour to ‘‘Changes to the Existing AD.’’ following table: $65 per work hour. The cost impact FAA’s Determination and Requirements information, below, reflects this of This AD REVISED PARAGRAPH IDENTIFIERS increase in the specified hourly labor rate. The unsafe condition described Requirement in AD Corresponding requirement Costs of Compliance previously is likely to exist or develop 94–01–10 R1 in this new AD on other airplanes of the same type The following table provides the design that may be registered in the U.S. Paragraph (a) ...... Paragraph (f). estimated costs for U.S. operators to at some time in the future. For this Paragraph (b) ...... Paragraph (g). comply with this AD for any affected reason, we are issuing this AD to revise Paragraph (c) ...... Paragraph (h). airplane that might be imported and AD 94–01–10 R1. This new AD retains Paragraph (d) ...... Paragraph (i). the requirements of AD 94–01–10 R1 Paragraph (e) ...... Paragraph (j). placed on the U.S. Register in the future. Paragraph (f) ...... Paragraph (k). but removes certain test and inspection Paragraph (g) ...... Paragraph (l). requirements for certain airplanes.
ESTIMATED COSTS
Average Number of Work hourly U.S.- Action hours labor Parts cost Cost per airplane registered Fleet cost rate airplanes
Modification ...... 624 $65 Provided at no cost to op- $40,560 ...... 270 $10,951,200. erators. Functional test ...... 1 65 None required ...... $65, per test ...... 270 $17,550, per test.
The airplanes that are added to the Directorate Identifier 2003–NM–220– Aviation Programs, describes in more applicability of this new AD are not on AD’’ at the beginning of your comments. detail the scope of the Agency’s the U.S. Register and are currently We specifically invite comments on the authority. operated by non-U.S. operators under overall regulatory, economic, We are issuing this rulemaking under foreign registry; therefore, they are not environmental, and energy aspects of the authority described in subtitle VII, directly affected by this AD. However, the AD. We will consider all comments part A, subpart III, section 44701, we consider this AD necessary to ensure received by the closing date and may ‘‘General requirements.’’ Under that that the unsafe condition is addressed if amend the AD in light of those section, Congress charges the FAA with a newly affected airplane is imported comments. promoting safe flight of civil aircraft in and placed on the U.S. Register in the We will post all comments we air commerce by prescribing regulations future; in that case, the costs identified receive, without change, to http:// for practices, methods, and procedures in the Estimated Costs table above dms.dot.gov, including any personal the Administrator finds necessary for would apply. information you provide. We will also safety in air commerce. This regulation post a report summarizing each FAA’s Determination of the Effective is within the scope of that authority substantive verbal contact with FAA Date because it addresses an unsafe condition personnel concerning this AD. Using the that is likely to exist or develop on The newly added airplanes affected search function of our docket Web site, products identified in this rulemaking by this AD are currently not on the U.S. anyone can find and read the comments action. Register. Therefore, providing notice in any of our dockets, including the and opportunity for public comment is name of the individual who sent the Regulatory Findings unnecessary before this AD is issued, comment (or signed the comment on We have determined that this AD will and this AD may be made effective in behalf of an association, business, labor not have federalism implications under less than 30 days after it is published in union, etc.). You can review the DOT’s Executive Order 13132. This AD will the Federal Register. complete Privacy Act Statement in the not have a substantial direct effect on Federal Register published on April 11, Comments Invited the States, on the relationship between 2000 (65 FR 19477–78), or you can visit the National Government and the States, Although this is a final rule that was http://dms.dot.gov. or on the distribution of power and not preceded by notice and an responsibilities among the various opportunity for public comment, we Authority for This Rulemaking levels of government. invite you to submit any relevant Title 49 of the United States Code written data, views, or arguments specifies the FAA’s authority to issue For the reasons discussed above, I regarding this AD. Send your comments rules on aviation safety. Subtitle I, certify that the regulation: to an address listed under ADDRESSES. section 106, describes the authority of 1. Is not a ‘‘significant regulatory Include ‘‘Docket No. FAA–2005–20009; the FAA Administrator. Subtitle VII, action’’ under Executive Order 12866;
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2. Is not a ‘‘significant rule’’ under the Inspections/Adjustments/Functional Checks/ during any test, correct it before further flight DOT Regulatory Policies and Procedures Modification in accordance with a method approved by (44 FR 11034, February 26, 1979); and (f) For airplanes having line numbers prior the Manager, Seattle Aircraft Certification Office (ACO), FAA; the corrective action in 3. Will not have a significant to 442: Within 14 days after September 16, 1991 (the effective date of AD 91–20–09, the Boeing 757 Maintenance Manual is one economic impact, positive or negative, amendment 39–8043), accomplish either approved method. on a substantial number of small entities paragraph (f)(1) or (f)(2) of this AD. Thrust Reverser Sync Lock Integrity Test under the criteria of the Regulatory (1) Accomplish both paragraphs (f)(1)(i) Flexibility Act. and (f)(1)(ii) of this AD: 1. General A. Use this procedure to test the integrity We prepared a regulatory evaluation (i) Inspect the thrust reverser directional control valve (DCV) assemblies of both of the thrust reverser sync locks. of the estimated costs to comply with engines to determine the solenoid-driven 2. Thrust Reverser Sync Lock Test this AD. See the ADDRESSES section for pilot valve’s part number, in accordance with A. Prepare for the Thrust Reverser Sync a location to examine the regulatory Boeing Alert Service Bulletin 757–78A0027, Lock Test. evaluation. dated September 9, 1991. (1) Open the auto speedbrake circuit (A) If any DCV has a suspect pilot valve as breaker on the overhead circuit breaker List of Subjects in 14 CFR Part 39 specified in the service bulletin, prior to panel, P11. further flight, replace the DCV with a DCV (2) Do the steps that follow to supply Air transportation, Aircraft, Aviation that has a part number of a non-suspect power to the thrust reverser system: safety, Incorporation by reference, solenoid-driven pilot valve, in accordance (a) Make sure the thrust levers are in the Safety. with the service bulletin. idle position. (B) If a DCV has a non-suspect solenoid- Caution: Do not extend the thrust reverser Adoption of the Amendment driven pilot valve as specified in the service while the core cowl panels are open. Damage bulletin, that pilot valve does not need to be to the thrust reverser and core cowl panels I Accordingly, under the authority replaced. can occur. delegated to me by the Administrator, (ii) Perform all tests and inspections of the (b) Make sure the thrust reverser halves are the FAA amends 14 CFR part 39 as engine thrust reverser control and indication closed. follows: system on both engines in accordance with (c) Make sure the core cowl panels are Boeing Service Bulletin 757–78–0025, dated closed. PART 39—AIRWORTHINESS September 9, 1991. Prior to further flight, (d) Put the EEC Maint Power switch or the DIRECTIVES correct any discrepancy found in accordance EEC Power L and EEC Power R switches with the service bulletin. to the Altn position. I 1. The authority citation for part 39 (2) Accomplish paragraph (f)(1) of this AD (e) For the left engine: on one engine’s thrust reverser and continues to read as follows: (1) Put the EEC Maint Channel Sel L switch deactivate the other engine’s thrust reverser, to the Auto position. Authority: 49 U.S.C. 106(g), 40113, 44701. in accordance with section 78–31–1 of (2) Put the L Eng fire switch to the Norm Boeing Document D630N002, ‘‘Boeing 757 position. § 39.13 [Amended] Dispatch Deviation Guide,’’ Revision 8, dated (f) For the right engine: January 15, 1991. (1) Put the EEC Maint Channel Sel R I 2. The FAA amends § 39.13 by (g) For airplanes having line numbers prior removing amendment 39–13247 (68 FR switch to the Auto position. to 442: Within 24 days after September 16, (2) Put the R Eng fire switch to the Norm 1991, the requirements of paragraph (f)(1) of 48546, August 14, 2003) and adding the position. this AD must be accomplished on both following new AD: (g) Make sure the EICAS circuit breakers (6 engines’ thrust reverser systems. locations) are closed. 94–01–10 R2 Boeing: Amendment 39– (h) For airplanes having line numbers prior 13937. Docket No. FAA–2005–20009; to 442: Repeat the tests and inspections Warning: The Thrust Reverser will Directorate Identifier 2003–NM–220–AD. specified in paragraph (f)(1)(ii) of this AD at automatically retract if the electrical power to the EEC/Thrust Reverser Control System is Effective Date intervals not to exceed 3,000 flight hours, and before further flight following any turned off or if the EEC Maint Power switch (a) This airworthiness directive (AD) maintenance that disturbs the thrust reverser is moved to the Norm position. The becomes effective January 28, 2005. control system. Correct any discrepancy accidental operation of the Thrust Reverser can cause injury to persons or damage to Affected ADs before further flight in accordance with Boeing Service Bulletin 757–78–0025, dated equipment can occur. (b) This AD revises AD 94–01–10 R1, September 9, 1991. (h) Make sure these circuit breakers on the amendment 39–13247 (68 FR 48546, August main power distribution panel, P6, are 14, 2003). Installation/Functional Test closed: (i) For airplanes having line numbers prior Applicability (1) Fuel Cond Cont L to 442: Within 5 years after March 3, 1994 (2) Fuel Cond Cont R (c) This AD applies to Boeing Model 757– (the effective date of AD 94–01–10, (3) T/L Interlock L 200 and –200PF series airplanes, certificated amendment 39–8792), install an additional (4) T/L Interlock R in any category, equipped with Pratt and thrust reverser system locking feature (sync (5) Left T/R Sync Lock Whitney PW2000 series engines. lock installation), in accordance with Boeing (6) Right T/R Sync Lock Service Bulletin 757–78–0028, Revision 1, (7) L Eng Electronic Engine Control Altn Unsafe Condition dated October 29, 1992; or Revision 2, dated Pwr (if installed) (d) This AD was prompted by a January 14, 1993. (8) R Eng Electronic Engine Control Altn determination of an error in the existing AD. (j) For all airplanes: Within 1,000 hours’ Pwr (if installed) The Federal Aviation Administration is time-in-service after installing the sync lock (i) Make sure these circuit breakers on the issuing this AD to prevent deployment of a required by paragraph (i) of this AD (either overhead circuit breaker panel, P11, are thrust reverser in flight and subsequent in production or by retrofit), or within 1,000 closed: reduced controllability of the airplane. hours’ time-in-service after March 3, 1994, (1) Air/Gnd Sys 1 whichever occurs later; and thereafter at (2) Air/Gnd Sys 2 Compliance intervals not to exceed 1,000 hours’ time-in- (3) Landing Gear Pos Sys 1 (e) You are responsible for having the service: Perform functional tests of the sync (4) Landing Gear Pos Sys 2 actions required by this AD performed within lock in accordance with the ‘‘Thrust Reverser (j) For the left engine, make sure these the compliance times specified, unless the Sync Lock Integrity Test’’ procedures circuit breakers on the P11 panel are actions have already been done. specified below. If any discrepancy is found closed:
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(1) Left Engine PDIU Material Incorporated by Reference DEPARTMENT OF TRANSPORTATION (2) Left Engine Thrust Reverser Cont/Scav (m) Except as otherwise specified in this Press Federal Aviation Administration (3) Left Engine Electronic Engine Control AD, the actions must be done in accordance with Boeing Alert Service Bulletin 757– Altn Pwr (if installed) 14 CFR Part 39 (4) Left Engine Thrust Reverser PRI Cont 78A0027, dated September 9, 1991; Boeing (5) Left Engine Thrust Reverser Sec Cont Service Bulletin 757–78–0025, dated [Docket No. 2000–NE–05–AD; Amendment (k) For the right engine, make sure these September 9, 1991; Boeing Document 39–13941; AD 2005–01–16] circuit breakers on the P11 panel are D630N002, ‘‘Boeing 757 Dispatch Deviation RIN 2120–AA64 closed: Guide,’’ Revision 8, dated January 15, 1991; (1) Right Engine PDIU and Boeing Service Bulletin 757–78–0028, (2) Right Engine Thrust Reverser Cont/Scav Airworthiness Directives; Rolls-Royce Revision 1, dated October 29, 1992, or Boeing Press plc RB211 Trent 700 Series Turbofan (3) Right Engine Electronic Engine Control Service Bulletin 757–78–0028, Revision 2, Engines Altn Pwr (if installed) dated January 14, 1993; as applicable. (4) Right Engine Thrust Reverser PRI Cont (1) The incorporation by reference of AGENCY: Federal Aviation (5) Right Engine Thrust Reverser Sec Cont Boeing Service Bulletin 757–78–0028, Administration (FAA), DOT. (l) Supply electrical power. Revision 1, dated October 29, 1992; and ACTION: Final rule; request for (m) Remove the pressure from the left Boeing Service Bulletin 757–78–0028, comments. (right) hydraulic system. Revision 2, dated January 14, 1993; was B. Do the Thrust Reverser Sync Lock Test. approved previously by the Director of the SUMMARY: The FAA is superseding an (1) Move and hold the manual unlock lever Federal Register as of March 3, 1994 (59 FR existing airworthiness directive (AD) for on the center actuator on both thrust Rolls-Royce plc (RR) RB211 Trent 768– reverser sleeves to the unlock position. 4558, February 1, 1994). (2) Make sure the thrust reverser sleeves (2) The incorporation by reference of 60, Trent 772–60, and Trent 772B–60 did not move. Boeing Alert Service Bulletin 757–78A0027, turbofan engines with low pressure (3) Move the left (right) reverser thrust dated September 9, 1991; Boeing Service compressor (LPC) fan blade part lever up and rearward to the idle detent Bulletin 757–78–0025, dated September 9, numbers FK22580, FK23411, FK25441, position. 1991; and Boeing Document D630N002, and FK25968 installed. That AD (4) Make sure both thrust reverser sleeves ‘‘Boeing 757 Dispatch Deviation Guide,’’ currently requires initial ultrasonic move aft (approximately 0.15 to 0.25 Revision 8, dated January 15, 1991; was inspections of the fan blade root with inch). approved previously by the Director of the blades removed, repetitive ultrasonic (5) Release the manual unlock lever on the center actuators. Federal Register as of September 16, 1991 (56 inspections of the fan blade root with FR 46725, September 16, 1991). (The blades removed or installed, and Warning: Make sure all persons and equipment are clear of the area around the document number of Boeing Alert Service ultrasonic inspection of the fan blade Thrust Reverser. When you apply hydraulic Bulletin 757–78A0027, dated September 9, root to be done with the fan blades pressure the Thrust Reverser will extend and 1991, was cited erroneously in the September removed at least every third inspection. can cause injuries to persons or damage to 16, 1991, issue of the Federal Register as This AD requires the same inspections equipment. ‘‘757–78H0027.’’ The document number of but at lower thresholds and intervals, (6) Pressurize the left (right) hydraulic Boeing Service Bulletin 757–78–0025, dated and eliminates the requirement for system. September 9, 1991, was also cited ultrasonic inspection with the fan (7) Make sure the thrust reverser extends. erroneously in the September 16, 1991, issue blades removed at least every third (8) Move the left (right) reverser thrust of the Federal Register as ‘‘757–0025.’’) inspection. This AD results from lever to the fully forward and down (3) Contact Boeing Commercial Airplanes, analysis of flight data returned to RR, position to retract the thrust reverser. C. Put the Airplane Back to its Usual PO Box 3707, Seattle, Washington 98124– that shows a need for consistent Condition. 2207, for copies of the service documents. inspection thresholds for all engine (1) Remove hydraulic pressure. Copies may be inspected at the FAA, models. We are issuing this AD to (2) Close the left and right fan cowls. Transport Airplane Directorate, 1601 Lind prevent possible multiple LPC fan blade (3) Close the Auto Speedbrake circuit Avenue, SW., Renton, Washington; or at the failures, which could result in an breaker on the P11 panel. National Archives and Records uncontained engine failure and damage (4) Remove electrical power if it is not Administration (NARA). For information on to the airplane. necessary. the availability of this material at NARA, call (5) Return the EEC Maint Power switch or DATES: Effective January 28, 2005. The (202) 741–6030, or go to http:// Director of the Federal Register the EEC Power L and EEC Power R _ www.archives.gov/federal register/ approved the incorporation by reference switches to the Normal position. _ _ _ D. Repeat the Thrust Reverser Sync Lock code of federal regulations/ of certain publications listed in the _ Test on the other engine.’’ ibr locations.html. regulations as of January 28, 2005. (k) Installation of the sync lock, as required Issued in Renton, Washington, on We must receive any comments on by paragraph (i) of this AD, constitutes December 29, 2004. this AD by March 14, 2005. terminating action for the requirements of paragraphs (f) through (h) of this AD. Kevin M. Mullin, ADDRESSES: Use one of the following addresses to submit comments on this Alternative Methods of Compliance Acting Manager, Transport Airplane Directorate, Aircraft Certification Service. AD: (AMOCs) • By mail: Federal Aviation [FR Doc. 05–536 Filed 1–12–05; 8:45 am] (l)(1) The Manager, Seattle Aircraft Administration (FAA), New England Certification Office (ACO), FAA, has the BILLING CODE 4910–13–P Region, Office of the Regional Counsel, authority to approve AMOCs for this AD, if Attention: Rules Docket No. 2000–NE– requested in accordance with the procedures found in 14 CFR 39.19. 05–AD, 12 New England Executive Park, (2) We approve the following for the Burlington, MA 01803–5299. • By fax: (781) 238–7055. corresponding requirements of this AD: • AMOCs approved previously in accordance By e-mail: 9-ane- with AD 91–20–09, amendment 39–8043; AD [email protected]. 94–01–10, amendment 39–8792; and AD 94– You can get the service information 01–10 R1, amendment 39–13247. referenced in this AD from Rolls-Royce
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plc, PO Box 31, Derby, England; contains a general authority regarding • Initial ultrasonic inspections of the telephone: 011–44–1332–249428; fax: special flight permits and airworthiness fan blade root with blades removed; at 011–44–1332–249223. directives; see Docket No. FAA–2004– or before accumulating 1,100 cycles- You may review copies at the FAA, 8460, Amendment 39–9474 (69 FR since-new (CSN) on the fan blades after New England Region, Office of the 47998, July 22, 2002). Thus, when we the effective date of the AD; and Regional Counsel, 12 New England now supersede ADs we will not include • For blades with more than 1,100 Executive Park, Burlington, MA; or at a specific paragraph on special flight CSN that have not been previously the National Archives and Records permits unless we want to limit the use inspected, initial ultrasonic inspections Administration (NARA). For of that general authority granted in of the fan blade root with blades information on the availability of this section 39.23. removed; within 300 cycles-in-service material at NARA, call 202–741–6030, Relevant Service Information (CIS) from the effective date of the AD or go to: http://www.archives.gov/ _ or within 2,000 CSN, whichever occurs federal register/ We have reviewed and approved the first; and code_of_federal_regulations/ technical contents of RR Mandatory • ibr_locations.html. You may examine Service Bulletin (MSB) No. RB.211–72– Repetitive ultrasonic inspections of the AD docket at the FAA, New England C878, Revision 7, dated December 5, the fan blade root, with blades removed Region, Office of the Regional Counsel, 2003, that: within 300 CIS intervals, or with blades 12 New England Executive Park, • Removes LPC fan blades and not removed within 250 CIS intervals. Burlington, MA. performs initial and repetitive The actions are required to be done FOR FURTHER INFORMATION CONTACT: ultrasonic inspections for cracks in LPC using the service bulletin described Christopher Spinney, Aerospace fan blade dovetail roots, at earlier initial previously. Engineer, Engine Certification Office, thresholds than the inspections required FAA, Engine and Propeller Directorate, by the current AD, and, at adjusted Immediate Adoption of This AD repetitive inspection intervals from the 12 New England Executive Park, Since there are currently no domestic Burlington, MA 01803–5299; telephone current AD. • operators of these engine models, notice (781) 238–7175; fax (781) 238–7199. Provides a procedure that does not and opportunity for prior public SUPPLEMENTARY INFORMATION: On August require blade removal from the engine comment are unnecessary. Therefore, a 1, 2001, we issued AD 2001–16–05, in order to perform repetitive ultrasonic situation exists that allows the Amendment 39–12373 (66 FR 42105, inspections for cracks in LPC fan blade immediate adoption of this regulation. August 10, 2001). That AD requires dovetail roots. Comments Invited initial ultrasonic inspections of the fan Bilateral Airworthiness Agreement blade root with blades removed, This AD is a final rule that involves repetitive ultrasonic inspections of the This engine model is manufactured in requirements affecting flight safety and fan blade root with blades removed or the United Kingdom and is type was not preceded by notice and an installed, and ultrasonic inspections to certificated for operation in the United opportunity for public comment; be done with the fan blades removed at States under the provisions of section however, we invite you to submit any least every third inspection. That AD 21.29 of the Federal Aviation written relevant data, views, or resulted from reports of fan blade Regulations (14 CFR 21.29) and the arguments regarding this AD. Send your failures due to dovetail root cracks. That applicable bilateral airworthiness comments to an address listed under condition, if not corrected, could result agreement. Pursuant to this bilateral ADDRESSES. Include ‘‘AD Docket No. in possible multiple LPC fan blade airworthiness agreement, the Civil 2000–NE–05–AD’’ in the subject line of failures, uncontained engine failure, and Aviation Authority (CAA) has kept the your comments. If you want us to damage to the airplane. FAA informed of the situation described above. The FAA has examined the acknowledge receipt of your mailed Actions Since AD 2001–16–05 Was findings of the CAA, reviewed all comments, send us a self-addressed, Issued available information, and determined stamped postcard with the docket Since that AD was issued, analysis of that AD action is necessary for products number written on it; we will date- flight data returned to RR shows a need of this type design that are certificated stamp your postcard and mail it back to for consistent inspection thresholds for for operation in the United States. you. We specifically invite comments all engine models. The actions specified on the overall regulatory, economic, FAA’s Determination of an Unsafe environmental, and energy aspects of in this AD are intended to prevent Condition and Proposed Actions possible multiple LPC fan blade failures, the rule that might suggest a need to which could result in an uncontained Although none of these affected modify it. If a person contacts us engine failure and damage to the engine models are used on any airplanes verbally, and that contact relates to a airplane. that are registered in the United States, substantive part of this AD, we will the possibility exists that the engine summarize the contact and place the Special Flight Permits Paragraph models could be used on airplanes that summary in the docket. We will Removed are registered in the United States in the consider all comments received by the Paragraph (g) of the current AD, AD future. Since an unsafe condition has closing date and may amend the AD in 2001–16–05, contains a paragraph been identified that is likely to exist or light of those comments. pertaining to special flight permits. develop on other RR RB211 Trent 768– Examining the AD Docket Even though this final rule does not 60, Trent 772–60, and Trent 772B–60 contain a similar paragraph, we have turbofan engine models of the same type You may examine the AD Docket made no changes with regard to the use design, this AD is being issued to (including any comments and service of special flight permits to operate the prevent possible multiple LPC fan blade information), by appointment, between airplane to a repair facility to do the failures, which could result in an 8 a.m. and 4:30 p.m., Monday through work required by this AD. In July 2002, uncontained engine failure and damage Friday, except Federal holidays. See we published a new Part 39 that to the airplane. This AD requires: ADDRESSES for the location.
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Authority for This Rulemaking List of Subjects in 14 CFR Part 39 the compliance times specified unless the actions have already been done. Title 49 of the United States Code Air transportation, Aircraft, Aviation Initial Ultrasonic Inspection specifies the FAA’s authority to issue safety, Incorporation by reference, Safety. rules on aviation safety. Subtitle I, (f) Perform an initial ultrasonic inspection section 106, describes the authority of Adoption of the Amendment of the LPC fan blade dovetail roots using Method A (paragraphs 3.A.(1) through the FAA Administrator. Subtitle VII, I Accordingly, under the authority 3.A.(8); blades removed from engine) of Aviation Programs, describes in more delegated to me by the Administrator, Accomplishment Instructions of RR detail the scope of the Agency’s the FAA amends part 39 of the Federal Mandatory Service Bulletin (MSB) No. authority. Aviation Regulations (14 CFR part 39) as RB.211–72–C878, Revision 7, dated We are issuing this rulemaking under follows: December 5, 2003, as follows: the authority described in subtitle VII, (1) Inspect before accumulating 1,100 cycles-since-new (CSN) on the fan blades; or part A, subpart III, section 44701, PART 39—AIRWORTHINESS DIRECTIVES (2) For fan blades that have accumulated ‘‘General requirements.’’ Under that more than 800 CSN on the effective date of section, Congress charges the FAA with I 1. The authority citation for part 39 this AD that have not been previously promoting safe flight of civil aircraft in continues to read as follows: inspected, inspect within 300 cycles-in- air commerce by prescribing regulations service (CIS) from the effective date of this for practices, methods, and procedures Authority: 49 U.S.C. 106(g), 40113, 44701. AD or within 2,000 CSN, whichever occurs the Administrator finds necessary for § 39.13 [Amended] first. safety in air commerce. This regulation I 2. The Federal Aviation Repetitive Ultrasonic Inspections is within the scope of that authority Administration (FAA) amends § 39.13 by (g) Perform repetitive inspections of the because it addresses an unsafe condition removing Amendment 39–12373 (66 FR LPC fan blades using Method A, or Method that is likely to exist or develop on 42105, August 10, 2001), and by adding B (paragraphs 3.B.(1) through 3.B.(5); blades products identified in this rulemaking a new airworthiness directive (AD), not removed from the engine) of the action. Accomplishment Instructions of RR MSB No. Amendment 39–13941, to read as RB.211–72–C878, Revision 7, dated Regulatory Findings follows: December 5, 2003, as follows: 2005–01–16 Rolls-Royce plc: Amendment (1) Inspect within 300 CIS since-last- We have determined that this AD will 39–13941. Docket No. 2000–NE–05–AD. inspected with Method A of the SB; or not have federalism implications under Supersedes AD 2001–16–05, (2) Inspect within 250 CIS since-last- Executive Order 13132. This AD will Amendment 39–12373. inspected with Method B of the SB. not have a substantial direct effect on Effective Date Alternative Methods of Compliance the States, on the relationship between the national Government and the States, (a) This AD becomes effective January 28, (h) The Manager, Engine Certification 2005. or on the distribution of power and Office, has the authority to approve Affected ADs alternative methods of compliance for this responsibilities among the various AD if requested using the procedures found levels of government. (b) This AD supersedes AD 2001–16–05, in 14 CFR 39.19. Amendment 39–12373. For the reasons discussed above, I Material Incorporated by Reference certify that the regulation: Applicability (i) You must use the Rolls-Royce plc 1. Is not a ‘‘significant regulatory (c) This AD applies to Rolls-Royce plc (RR) service information specified in Table 1 of action’’ under Executive Order 12866; RB211 Trent 768–60, Trent 772–60, and this AD to perform the blade inspections and Trent 772B–60 turbofan engines with low 2. Is not a ‘‘significant rule’’ under the replacements required by this AD. The pressure compressor (LPC) fan blade part Director of the Federal Register approved the numbers FK22580, FK23411, FK25441, and DOT Regulatory Policies and Procedures incorporation by reference of the documents FK25968 installed. These engines are (44 FR 11034, February 26, 1979); and listed in Table 1 of this AD in accordance installed on, but not limited to, Airbus A330 with 5 U.S.C. 552(a) and 1 CFR part 51. You 3. Will not have a significant series airplanes. economic impact, positive or negative, can get a copy from Rolls-Royce plc, PO Box on a substantial number of small entities Unsafe Condition 31, Derby DE24 6BJ, UK; telephone 44 (0) (d) This AD supersedure results from 1332 242424; fax 44 (0) 1332 249936. You under the criteria of the Regulatory may review copies at the FAA, New England Flexibility Act. analysis of flight data returned to RR, that shows a need for consistent inspection Region, Office of the Regional Counsel, We prepared a summary of the costs thresholds for all engine models. We are Attention: Rules Docket No. 2000–NE–05– to satisfy the initial requirements of this issuing this AD to prevent possible multiple AD, 12 New England Executive Park, AD and placed it in the AD Docket. You LPC fan blade failures, which could result in Burlington, MA; or at the National Archives may get a copy of this summary by an uncontained engine failure and damage to and Records Administration (NARA). For the airplane. information on the availability of this sending a request to us at the address material at NARA, call (202) 741–6030, or go listed under ADDRESSES. Include ‘‘AD Compliance to: http://www.archives.gov/federal_register/ Docket No. 2000–NE–05–AD’’ in your (e) You are responsible for having the code_of_federal_regulations/ request. actions required by this AD performed within ibr_locations.html. Table 1 follows:
TABLE 1.—INCORPORATION BY REFERENCE
Mandatory service bulletin No. Page Revision Date
RB.211–72–C878 ...... All ...... 7 December 5, 2003. Total Pages: 9 RB.211–72–C878, Appendix 1 ...... All ...... 7 December 5, 2003. Total Pages: 4 RB.211–72–C878, Appendix 2 ...... All ...... 7 December 5, 2003.
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TABLE 1.—INCORPORATION BY REFERENCE—Continued
Mandatory service bulletin No. Page Revision Date
Total Pages: 5
Related Information DATES: Effective January 28, 2005. The reached the initial inspection threshold (j) United Kingdom Civil Aviation Director of the Federal Register specified in AD 2002–11–08. The CAA Authority airworthiness directive 003–11–99 approved the incorporation by reference also advises that potential breakdown of also addresses the subject of this AD. of certain publications listed in the blade coating and lubrication on certain Issued in Burlington, Massachusetts, on regulations as of January 28, 2005. blades might occur, leading to blade January 4, 2005. We must receive any comments on cracking. this AD by March 14, 2005. Francis A. Favara, Relevant Service Information ADDRESSES: Use one of the following Acting Manager, Engine and Propeller We have reviewed and approved the Directorate, Aircraft Certification Service. addresses to submit comments on this technical contents of Rolls-Royce (RR) [FR Doc. 05–484 Filed 1–12–05; 8:45 am] AD: • Alert Service Bulletin (ASB) No. BILLING CODE 4910–13–P By mail: Federal Aviation Administration (FAA), New England RB.211–72–AD344, Revision 7, dated Region, Office of the Regional Counsel, March 12, 2004, that provides procedures to ultrasonic-inspect the DEPARTMENT OF TRANSPORTATION Attention: Rules Docket No. 2001–NE– 17–AD, 12 New England Executive Park, blade root on LPC fan blades. We have Federal Aviation Administration Burlington, MA 01803–5299. also reviewed and approved the • By fax: (781) 238–7055. technical contents of RR Service 14 CFR Part 39 • By e-mail: 9-ane- Bulletin (SB) No. RB.211–72–D672, [email protected]. dated February 1, 2002, that provides [Docket No. 2001–NE–17–AD; Amendment You can get the service information procedures to rework, relubricate, and 39–13940; AD 2005–01–15] referenced in this AD from Rolls-Royce remark the fan blades at fan blade RIN 2120–AA64 plc, P.O. Box 31, Derby DE24 6BJ, UK; overhaul, and lists part numbers for new telephone 44 (0) 1332 242424; fax 44 (0) fan blades that feature additional blade Airworthiness Directives; Rolls-Royce 1332 249936. root processing requirements. The CAA plc RB211 Trent 875, 877, 884, 884B, You may examine the AD docket, by classified these service bulletins as 892, 892B, and 895 Series Turbofan appointment, at the FAA, New England mandatory and issued AD G–2004– Engines Region, Office of the Regional Counsel, 0008, dated April 29, 2004, in order to ensure the airworthiness of these RR AGENCY: 12 New England Executive Park, Federal Aviation engines in the UK. Administration (FAA), DOT. Burlington, MA. FOR FURTHER INFORMATION CONTACT: ACTION: Final rule; request for Bilateral Airworthiness Agreement Christopher Spinney, Aerospace comments. These engine models are Engineer, Engine Certification Office, manufactured in the UK and are type FAA, Engine and Propeller Directorate, SUMMARY: The FAA is superseding an certificated for operation in the United 12 New England Executive Park, existing airworthiness directive (AD) for States under the provisions of § 21.29 of Burlington, MA 01803–5299; telephone Rolls-Royce plc (RR) RB211 Trent 875, the Federal Aviation Regulations (14 (781) 238–7175; fax (781) 238–7199. 877, 884, 892, 892B, and 895 series CFR 21.29) and the applicable bilateral turbofan engines with certain part SUPPLEMENTARY INFORMATION: On May airworthiness agreement. Pursuant to number (P/N) low pressure compressor 27, 2002, the FAA issued AD 2002–11– this bilateral airworthiness agreement, (LPC) fan blades installed. That AD 08, Amendment 39–12769 (67 FR the CAA has kept the FAA informed of currently requires initial and repetitive 38852, June 6, 2002). That AD requires the situation described above. The FAA ultrasonic inspections of the fan blade initial and repetitive ultrasonic has examined the findings of the CAA, dovetail roots. This AD requires the inspections of the fan blade dovetail reviewed all available information, and same actions except at reduced roots. That AD was the result of the loss determined that AD action is necessary compliance times for certain blades, of an LPC fan blade during takeoff. That for products of this type design that are defines a specific terminating action to condition, if not corrected, could result certificated for operation in the United the repetitive blade inspection in multiple LPC fan blade failures due States. requirements, and adds the 884B series to cracks, which could result in to the applicability. This AD results uncontained engine failure and possible FAA’s Determination and Requirements from a report of a cracked fan blade damage to the airplane. of This AD found before the blade reached the The unsafe condition described initial inspection threshold of AD 2002– Actions Since AD 2002–11–08 Was previously is likely to exist or develop 11–08. This AD also results from the Issued on other RR RB211 Trent 875, 877, 884, need to reduce a repetitive inspection Since that AD was issued, the Civil 884B, 892, 892B, and 895 series compliance time due to potential Aviation Authority (CAA), which is the turbofan engines of the same type breakdown of blade coating and airworthiness authority for the United design. We are issuing this AD to lubrication on certain blades. We are Kingdom (UK), notified us that an prevent multiple LPC fan blade failures issuing this AD to prevent multiple LPC unsafe condition may exist on RR due to cracks, which could result in fan blade failures due to cracks, which RB211 Trent 875, 877, 884, 884B, 892, uncontained engine failure and possible could result in uncontained engine 892B, and 895 series turbofan engines. damage to the airplane. This AD: failure and possible damage to the The CAA advises that a cracked fan • Requires initial and repetitive airplane. blade was found before the blade ultrasonic-inspections of the dovetail
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roots of LPC fan blades P/Ns FK30838, substantive part of this AD, we will on a substantial number of small entities FK30840, FK30842, FW12960, summarize the contact and place the under the criteria of the Regulatory FW12961, FW12962, and FW13175. summary in the docket. We will Flexibility Act. • Reduces the initial inspection consider all comments received by the We prepared a summary of the costs threshold for fan blades, P/Ns FK30838, closing date and may amend the AD in to comply with this AD and placed it in FK30840, and FK30842 in Table 1 for light of those comments. the AD Docket. You may get a copy of Airplane Maximum Gross Weight of We are reviewing the writing style we this summary by sending a request to us 632,500 pounds and 648,000 pounds, currently use in regulatory documents. at the address listed under ADDRESSES. from 2,400 cycles-since-new (CSN) to We are interested in your comments on Include ‘‘AD Docket No. 2001–NE–17– 1,200 CSN. whether the style of this document is AD’’ in your request. • Reduces the repetitive inspection clear, and your suggestions to improve List of Subjects in 14 CFR Part 39 threshold for fan blades, P/Ns FW12960, the clarity of our communications with FW12961, FW12962, and FW13175 in you. You may get more information Air transportation, Aircraft, Aviation Table 4 for Airplane Maximum Gross about plain language at http:// safety, Incorporation by reference, Weight of 545,000 pounds from 1,200 www.faa.gov/language and http:// Safety. CSN to 600 CSN. www.plainlanguage.gov. • Defines a terminating action to the Adoption of the Amendment Examining the AD Docket repetitive blade inspection requirements I Accordingly, under the authority in the AD, to be done at the next shop You may examine the AD Docket delegated to me by the Administrator, visit when fan blades are removed, but (including any comments and service the FAA amends part 39 of the Federal no later than December 31, 2009. The information), by appointment, between Aviation Regulations (14 CFR part 39) as terminating action consists of replacing 8 a.m. and 4:30 p.m., Monday through follows: LPC fan blades with a complete set of Friday, except Federal holidays. See reworked, relubricated, and remarked ADDRESSES for the location. PART 39—AIRWORTHINESS LPC fan blades, using Rolls-Royce SB DIRECTIVES No. RB.211–72–D672, dated February 1, Authority for This Rulemaking 2002, or with a complete set of new LPC Title 49 of the United States Code I 1. The authority citation for part 39 fan blades that feature additional blade specifies the FAA’s authority to issue continues to read as follows: root processing requirements. rules on aviation safety. Subtitle I, Authority: 49 U.S.C. 106(g), 40113, 44701. • Adds the 884B series engine to the section 106, describes the authority of applicability. the FAA Administrator. Subtitle VII, § 39.13 [Amended] You must use the service information Aviation Programs, describes in more I 2. The Federal Aviation described previously to perform the detail the scope of the Agency’s Administration (FAA) amends § 39.13 by actions required by this AD. authority. removing Amendment 39–12769 (67 FR We are issuing this rulemaking under 38852; June 6, 2002), and by adding a FAA’s Determination of the Effective the authority described in subtitle VII, new airworthiness directive (AD), Date part A, subpart III, section 44701, Amendment 39–13940, to read as Since an unsafe condition exists that ‘‘General requirements.’’ Under that follows: requires the immediate adoption of this section, Congress charges the FAA with 2005–01–15 Rolls-Royce plc: Amendment AD, we have found that notice and promoting safe flight of civil aircraft in 39–13940. Docket No. 2001–NE–17–AD. opportunity for public comment before air commerce by prescribing regulations Supersedes AD 2002–11–08, issuing this AD are impracticable, and for practices, methods, and procedures Amendment 39–12769. that good cause exists for making this the Administrator finds necessary for Effective Date amendment effective in less than 30 safety in air commerce. This regulation days. is within the scope of that authority (a) This AD becomes effective January 28, 2005. Comments Invited because it addresses an unsafe condition that is likely to exist or develop on Affected ADs This AD is a final rule that involves products identified in this rulemaking (b) This AD supersedes AD 2002–11–08, requirements affecting flight safety and action. Amendment 39–12769. was not preceded by notice and an opportunity for public comment; Regulatory Findings Applicability however, we invite you to submit any We have determined that this AD will (c) This AD applies to Rolls-Royce plc (RR) written relevant data, views, or not have federalism implications under RB211 Trent 875, 877, 884, 884B, 892, 892B, arguments regarding this AD. Send your Executive Order 13132. This AD will and 895 series turbofan engines with low comments to an address listed under pressure compressor (LPC) fan blades, part not have a substantial direct effect on numbers (P/Ns) FK30838, FK30840, ADDRESSES. Include ‘‘AD Docket No. the States, on the relationship between FK30842, FW12960, FW12961, FW12962, 2001–NE–17–AD’’ in the subject line of the national Government and the States, and FW13175, installed. These engines are your comments. If you want us to or on the distribution of power and installed on, but not limited to, Boeing acknowledge receipt of your mailed responsibilities among the various Company 777 series airplanes. comments, send us a self-addressed, levels of government. Unsafe Condition stamped postcard with the docket For the reasons discussed above, I number written on it; we will date- certify that the regulation: (d) This AD results from a report of a stamp your postcard and mail it back to 1. Is not a ‘‘significant regulatory cracked fan blade found before the blade you. We specifically invite comments reached the initial inspection threshold of action’’ under Executive Order 12866; AD 2002–11–08. This AD also results from on the overall regulatory, economic, 2. Is not a ‘‘significant rule’’ under the the need to reduce a repetitive inspection environmental, and energy aspects of DOT Regulatory Policies and Procedures compliance time due to potential breakdown the rule that might suggest a need to (44 FR 11034, February 26, 1979); and of blade coating and lubrication on certain modify it. If a person contacts us 3. Will not have a significant blades. We are issuing this AD to prevent verbally, and that contact relates to a economic impact, positive or negative, multiple LPC fan blade failures due to cracks,
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which could result in uncontained engine FK30838, FK30840, FK30842, FW12960, (1) For blades P/Ns FK30838, FK30840, failure and possible damage to the airplane. FW12961, FW12962, and FW13175, that are and FK30842, that have not been relubricated Compliance removed from the engine, using 3.A.(1) during any interval exceeding 600 cycles- through 3.A.(5) or, for blades that are not since-new (CSN) or cycles-since-rework (e) You are responsible for having the removed from the engine, using 3.B.(1) (CSR) using either RR ASB No. RB.211–72– actions required by this AD performed within the compliance times specified unless the through 3.B.(5) of the Accomplishment AD344 or No. RB.211–72–D347, inspect as actions have already been done. Instructions of RR Alert Service Bulletin specified in paragraph (f) of this AD and (f) Ultrasonic-inspect and disposition the (ASB) No. RB.211–72–AD344, Revision 7, within the compliance times specified in the dovetail roots of LPC fan blades, P/Ns dated March 12, 2004, as follows: following Table 1:
TABLE 1.—COMPLIANCE TIMES FOR BLADES P/NS FK30838, FK30840, AND FK30842
Repetitive Initial inspection Engine series Boeing 777 Airplane maximum gross weight inspection (cycles-since- series (times 1,000 pounds) CSN last-inspec- tion) (CSLI)
(i) –884B,–892 ...... –300 (A) 660 and 632.5 ...... 600 80 (B) 580 ...... 2,000 600 (ii) –884, –892, –892B, and –895 ...... –200 (A) 632.5 and 648 ...... 1,200 100 (B) 656 ...... 600 80 (C) 555 ...... 2,000 600 (iii) –875 ...... –200 535 ...... 2,000 600 (iv) –877 ...... –200 545 ...... 2,000 600
(2) For blades P/Ns FK30838, FK30840, using either RR ASB No. RB.211–72–AD344 compliance times specified in the following and FK30842, that have been relubricated at or SB RB.211–72–D347, inspect as specified Table 2: intervals not exceeding 600 CSN or CSR in paragraph (f) of this AD and within the
TABLE 2.—COMPLIANCE TIMES FOR BLADES P/NS FK30838, FK30840, AND FK30842
Initial Repetitive Engine series Boeing 777 Airplane maximum gross weight inspection inspection series (times 1,000 pounds) CSN CSLI
(i) –884B, 892 ...... –300 (A) 660 and 632.5 ...... 600 80 (B) 580 ...... 2,400 600 (ii) 884, –892, –892B, and –895 ...... –200 (A) 632.5 and 648 ...... 1,200 100 (B) 656 ...... 600 80 (C) 555 ...... 2,400 600 (iii) –875; ...... –200 535 ...... 2,400 600 (iv) –877 ...... –200 545 ...... 2,400 600
(3) For blades P/Ns FW12960, FW12961, have not been relubricated during any specified in paragraph (f) of this AD and FW12962, and FW13175, either new or interval exceeding 600 CSN or CSR using within the compliance times specified in the reworked to that configuration at greater than either RR ASB No. RB.211–72–AD344 or following Table 3: 600 CSN or since previous rework, or that RB.211–72–D347 requirements, inspect as
TABLE 3.—COMPLIANCE TIMES FOR BLADES P/NS FW12960, FW12961, FW12962, AND FW13175
Initial Repetitive Engine series Boeing 777 Airplane maximum gross weight inspection inspection series (times 1,000 pounds) CSN CSLI
(i) –884B, –892 ...... –300 (A) 660 and 632.5 ...... 600 100 (B) 580 ...... 2,000 600 (ii) –884, –892, –892B, and –895 ...... –200 (A) 632.5 and 648 ...... 1,200 125 (B) 656 ...... 600 100 (C) 555 ...... 2,000 600 (iii) –875 ...... –200 535 ...... 2,000 600 (iv) –877 ...... –200 545 ...... 2,000 600
(4) For blades P/Ns FW12960, FW12961, have been relubricated at intervals not this AD and within the compliance times FW12962, and FW13175, either new or exceeding 600 CSN using either RR ASB No. specified in the following Table 4: reworked to that configuration at fewer than RB.211–72–AD344 or SB No. RB.211–72– 600 CSN or since previous rework, and that D347, inspect as specified in paragraph (f) of
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TABLE 4.—COMPLIANCE TIMES FOR BLADES P/NS FW12960, FW12961, FW12962, AND FW13175
Initial Repetitive Engine series Boeing 777 Airplane maximum gross weight inspection inspection series (times 1,000 pounds) CSN CSLI
(i) –884B, –892 ...... –300 (A) 660 and 632.5 ...... 600 100 (B) 580 ...... 2,400 1,200 (ii) –884, –892, –892B, and –895 ...... –200 (A) 632.5 and 648 ...... 2,400 125 (B) 656 ...... 600 100 (C) 535 ...... 2,400 1,200 (iii) –875 ...... –200 535 ...... 2,400 1,200 (iv) –877 ...... –200 545 ...... 2,400 600
(g) When engines containing blades P/Ns blade root processing requirements found in this AD to perform the blade inspections and FK30838, FK30840, FK30842, FW12960, RR SB No. RB.211–72–D672, dated February replacements required by this AD. The FW12961, FW12962, and FW13175 are 1, 2002. Director of the Federal Register approved the moved from one gross weight category to Previous Credit incorporation by reference of the documents another, the inspection schedule that is listed in Table 5 of this AD in accordance applicable to the higher gross weight category (i) Previous credit is allowed for initial must be used. inspections of fan blades that were done with 5 U.S.C. 552(a) and 1 CFR part 51. You using RR ASB No. RB.211–72–AD344, can get a copy from Rolls-Royce plc, P.O. Box Terminating Action Revision 4, dated March 15, 2002, Revision 31, Derby DE24 6BJ, UK; telephone 44 (0) (h) As terminating action to the repetitive 5, dated June 20, 2003, Revision 6, dated 1332 242424; fax 44 (0) 1332 249936. You inspection requirements of this AD, at the February 27, 2004, or Revision 7, dated may review copies at the FAA, New England next shop visit when the fan blades are March 12, 2004, before the effective date of Region, Office of the Regional Counsel, removed for repair or overhaul, but no later this AD. Attention: Rules Docket No. 2001–NE–17– than December 31, 2009: AD, 12 New England Executive Park, (1) Replace LPC fan blades P/Ns FK30838, Alternative Methods of Compliance Burlington, MA; or at the National Archives FK30840, FK30842, FW12960, FW12961, (j) The Manager, Engine Certification FW12962, or FW13175 with a complete set Office, has the authority to approve and Records Administration (NARA). For of LPC fan blades that have been reworked, alternative methods of compliance for this information on the availability of this relubricated, and remarked using RR SB No. AD if requested using the procedures found material at NARA, call 202–741–6030, or go RB.211–72–D672, dated February 1, 2002; or; in 14 CFR 39.19. to: http://www.archives.gov/federal_register/ (2) Replace LPC fan blades P/Ns FK30838, code_of_federal_regulations/ Material Incorporated by Reference FK30840, FK30842, FW12960, FW12961, ibr_locations.html. Table 5 follows: FW12962, or FW13175 with a complete set (k) You must use the Rolls-Royce plc of new LPC fan blades that feature additional service information specified in Table 5 of
TABLE 5.—INCORPORATION BY REFERENCE
Service Bulletin No. Page Revision Date
RB.211–72–AD344 ...... ALL ...... 7 ...... March 12, 2004. Total Pages: 11 RB.211–72–AD344, Appendices 1 through 5 ...... ALL ...... 7 ...... March 12, 2004. Total Pages: 18 RB.211–72–D672 ...... ALL ...... Original ...... February 1, 2002. Total Pages: 24
Related Information DEPARTMENT OF TRANSPORTATION This AD requires repetitive functional (l) Civil Aviation Authority (CAA) tests and repetitive replacements of the airworthiness directive G–2004–0008, dated Federal Aviation Administration auxiliary power unit (APU) and engine April 29, 2004, also addresses the subject of fire shutoff switches. This proposal also this AD. 14 CFR Part 39 provides an optional terminating action Issued in Burlington, Massachusetts, on [Docket No. FAA–2005–20010; Directorate for the repetitive functional tests and January 3, 2005. Identifier 2003–NM–224–AD; Amendment replacements. This AD is prompted by 39–13938; AD 2005–01–13] a report of the failure of the engine fire Francis A. Favara, RIN 2120–AA64 shutoff switch in the engine fire control Acting Manager, Engine and Propeller module. We are issuing this AD to Directorate, Aircraft Certification Service. Airworthiness Directives; Boeing prevent mineral build-up on the APU [FR Doc. 05–485 Filed 1–12–05; 8:45 am] Model 767–300 Series Airplanes and engine fire shutoff switches, which BILLING CODE 4910–13–P could lead to the switches failing to AGENCY: Federal Aviation discharge fire suppressant to the Administration (FAA), DOT. affected fire zone and result in an ACTION: Final rule; request for uncontrolled engine or APU fire and comments. consequent loss of the airplane. SUMMARY: The FAA is adopting a new DATES: Effective January 28, 2005. The airworthiness directive (AD) for certain incorporation by reference of a certain Boeing Model 767–300 series airplanes. publication listed in the AD is approved
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by the Director of the Federal Register Model 767 series airplane. On this adequately address the unsafe as of January 28, 2005. installation the thrust reverser is condition. We must receive comments on this operated by engine pneumatic bleed air, FAA’s Determination and Requirements AD by March 14, 2005. which is regulated by a spring-loaded- of This AD ADDRESSES: Use one of the following closed pressure regulating and shutoff addresses to submit comments on this valve (PRSOV). The PRSOV requires The unsafe condition described AD. electrical power to stay open against the previously is likely to exist or develop • DOT Docket Web site: Go to spring force. Its power supply is routed on other airplanes of the same type http://dms.dot.gov and follow the through the engine fire shutoff switch. design that may be registered in the U.S. instructions for sending your comments The electrical contacts for the thrust at some time in the future. Therefore, electronically. reverser inside the engine fire shutoff this AD is being issued to prevent • Government-wide rulemaking Web switch are normally in the closed mineral build-up on APU and engine site: Go to http://www.regulations.gov position. When the engine fire shutoff fire shutoff switches, which could lead and follow the instructions for sending switch is pulled, during a fire or test, to the switches failing to discharge fire your comments electronically. the power supplied to the thrust suppressant to the affected fire zone and • Mail: Docket Management Facility; reverser PRSOV is removed and the result in an uncontrolled engine fire and U.S. Department of Transportation, 400 valve closes off the engine bleed air, consequent loss of the airplane. This AD Seventh Street, SW., Nassif Building, leaving the thrust reverser in the last requires repetitive functional tests and room PL–401, Washington, DC 20590. commanded position. Investigation of repetitive replacements of the APU and • Fax: (202) 493–2251. the reported incident revealed that engine fire shutoff switches. This • Hand Delivery: Room PL–401 on certain flight deck humidifiers proposal also provides an optional the plaza level of the Nassif Building, distribute unfiltered air containing terminating action for the repetitive 400 Seventh Street, SW., Washington, minerals from the potable water supply. functional tests and replacements. You DC, between 9 a.m. and 5 p.m., Monday The humidified air contaminates the must do these actions in accordance through Friday, except Federal holidays. auxiliary power unit (APU) and engine with the service information described For service information identified in fire shutoff switches and may result in previously, except as discussed under this proposed AD, contact Boeing mineral build-up on switch contacts. ‘‘Differences Between the AD and the Commercial Airplanes, P.O. Box 3707, The contamination within the fire Service Bulletin.’’ Seattle, Washington 98124–2207. shutoff switch gradually builds up, Differences Between the AD and the You can examine the contents of this causing an increase in contact Service Bulletin AD docket on the Internet at http:// resistance. In the case of the thrust Operators should note that the service dms.dot.gov, or in person at the Docket reverser, this contact resistance was bulletin specifies the initial compliance Management Facility, U.S. Department high enough that the power supplied to time as ‘‘after the airplane has 12 of Transportation, 400 Seventh Street, the PRSOV was insufficient to hold the calendar months of service but within SW., room PL–401, on the plaza level of valve open. The PRSOV closed, leaving 18 calendar months since airplane the Nassif Building, Washington, DC. the thrust reverser in the deployed state. delivery. * * *’’ This AD, however, This docket number is FAA–2005– This same contamination can build up specifies the initial compliance time as 20010; the directorate identifier for this on the fire extinguishing switch contacts within 18 months since the date of docket is 2003–NM–224–AD. inside the APU and engine fire switches. Mineral build-up on the APU issuance of the original Airworthiness Examining the Dockets and engine fire shutoff switches, if not Certificate or the original Export You can examine the AD docket on corrected, could lead to the switches Certificate of Airworthiness. This the Internet at http://dms.dot.gov, or in failing to discharge fire suppressant to decision is based on our determination person in the Docket Management the affected fire zone and result in an that ‘‘since airplane delivery’’ may be Facility office between 9 a.m. and 5 uncontrolled engine or APU fire and interpreted differently by different p.m., Monday through Friday, except consequent loss of the airplane. operators. We find that this terminology Federal holidays. The Docket is generally understood within the Relevant Service Information Management Facility office (telephone industry and records will always exist (800) 647–5227) is located on the plaza We have reviewed Boeing Alert that establish these dates with certainty. level of the Nassif Building at the DOT Service Bulletin 767–26A0127, dated This AD also omits reference to ‘‘after street address stated in the ADDRESSES July 17, 2003. The service bulletin the airplane has 12 calendar months of section. Comments will be available in describes the following procedures: service,’’ since accomplishing the initial the AD docket shortly after the Docket 1. Doing repetitive functional tests of actions within 18 months of service Management System (DMS) receives the APU and engine fire shutoff provides an acceptable level of safety. them. switches; Thus the compliance time specified in 2. Doing repetitive replacements of this AD includes any airplanes that may FOR FURTHER INFORMATION CONTACT: the APU and engine fire shutoff have been operating since delivery. Bernie Gonzalez, Aerospace Engineer, switches with new or serviceable Operators should also note that the Propulsion Branch, ANM–140S, FAA, switches; and service bulletin states, ‘‘Operators who Seattle Aircraft Certification Office, 3. Deactivating the Lucas (also known perform the 90 calendar day inspection 1601 Lind Avenue, SW., Renton, as TRW Systemes Aeronautiques) flight and the 18 calendar month switch Washington 98055–4056; telephone deck humidifier, part numbers (P/N) servicing can avoid the required test (425) 917–6498; fax (425) 917–6590. M01AA0101, M01AB0101, M01AB0102, interval shown in Figure 1, by SUPPLEMENTARY INFORMATION: This AD is or M01AB0103, which eliminates the deactivation of the Lucas (also known as prompted by a report of the failure of need for the repetitive functional tests TRW Systemes Aeronautiques) Flight the engine fire shutoff switch in the and replacements. Deck Humidifier.’’ This AD, however, engine fire control module, which We have determined that specifies that if an operator deactivates resulted in the inability to stow the accomplishment of the actions specified the flight deck humidifier, all APU and thrust reverser on a certain Boeing in the service information will engine fire shutoff switches must be
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replaced with new or serviceable invite you to submit any written 1. Is not a ‘‘significant regulatory switches before further flight. We have relevant data, views, or arguments action’’ under Executive Order 12866; determined that if a flight deck regarding this AD. Send your comments 2. Is not a ‘‘significant rule’’ under the humidifier is deactivated shortly before to an address listed under ADDRESSES. DOT Regulatory Policies and Procedures any required replacement or required Include ‘‘Docket No. FAA–2005–20010; (44 FR 11034, February 26, 1979); and functional test, it might be possible for Directorate Identifier 2003–NM–224- 3. Will not have a significant any switch to have a latent type of AD’’ at the beginning of your comments. economic impact, positive or negative, failure due to the previous exposure to We specifically invite comments on the on a substantial number of small entities moisture and minerals from the overall regulatory, economic, under the criteria of the Regulatory humidifier. To address this unsafe environmental, and energy aspects of Flexibility Act. condition, we have added a requirement the AD. We will consider all comments We prepared a regulatory evaluation to paragraph (j) of this AD to replace all received by the closing date and may of the estimated costs to comply with switches after deactivating the flight amend the AD in light of those this AD. See the ADDRESSES section for deck humidifier. We have also added comments. a location to examine the regulatory requirements to paragraph (k) of this AD We will post all comments we evaluation. to ensure an operator performs the receive, without change, to http:// repetitive functional tests and dms.dot.gov, including any personal List of Subjects in 14 CFR Part 39 replacements of switches after information you provide. We will also Air transportation, Aircraft, Aviation reactivating the flight deck humidifier. post a report summarizing each safety, Incorporation by reference, substantive verbal contact with FAA Safety. Costs of Compliance personnel concerning this AD. Using the None of the airplanes affected by this search function of our docket Web site, Adoption of the Amendment action are on the U.S. Register. All anyone can find and read the comments I Accordingly, under the authority airplanes affected by this AD are in any of our dockets, including the delegated to me by the Administrator, currently operated by non-U.S. name of the individual who sent the the FAA amends 14 CFR part 39 as operators under foreign registry; comment (or signed the comment on follows: therefore, they are not directly affected behalf of an association, business, labor by this AD action. However, we union, etc.). You may review the DOT’s PART 39—AIRWORTHINESS consider this AD necessary to ensure complete Privacy Act Statement in the DIRECTIVES that the unsafe condition is addressed if Federal Register published on April 11, any affected airplane is imported and 2000 (65 FR 19477–78), or you may visit I 1. The authority citation for part 39 placed on the U.S. Register in the future. http://dms.dot.gov. continues to read as follows: If an affected airplane is imported and Authority: 49 U.S.C. 106(g), 40113, 44701. placed on the U.S. Register in the future, Authority for This Rulemaking the required functional test would take The FAA’s authority to issue rules § 39.13 [Amended] about 2 work hours per switch, at an regarding aviation safety is found in I 2. The FAA amends § 39.13 by adding average labor rate of $65 per work hour. Title 49 of the United States Code. the following new AD: We estimate there are 3 switches per Subtitle I, section 106 describes the authority of the FAA Administrator. 2005–01–13 Boeing: Amendment 39–13938. airplane. No parts would be required. Docket No. FAA–2005–20010; Based on these figures, the estimated Subtitle VII, Aviation Programs, Directorate Identifier 2003–NM–224–AD. cost of the AD would be $390 per describes in more detail the scope of the airplane, per testing cycle. agency’s authority. Effective Date If an affected airplane is imported and This rulemaking is promulgated (a) This airworthiness directive (AD) placed on the U.S. Register in the future, under the authority described in subtitle becomes effective January 28, 2005. the required switch replacement would VII, part A, subpart III, section 44701, Affected ADs ‘‘General requirements.’’ Under that take about 2 work hours per switch, at (b) None. an average labor rate of $65 per work section, Congress charges the FAA with hour. Required parts would cost about promoting safe flight of civil aircraft in Applicability $1,000 per switch, if replaced with a air commerce by prescribing regulations (c) This AD applies to Boeing Model 767– serviceable switch. Based on these for practices, methods, and procedures 300 series airplanes, certificated in any figures, the estimated cost of the AD the Administrator finds necessary for category; as listed in Boeing Alert Service would be $1,130 per switch, per safety in air commerce. This regulation Bulletin 767–26A0127, dated July 17, 2003. replacement. is within the scope of that authority Unsafe Condition because it addresses an unsafe condition (d) This AD was prompted by a report of FAA’s Determination of the Effective that is likely to exist or develop on Date the failure of the engine fire shutoff switch products identified in this AD. in the engine fire control module. The No airplane affected by this AD is Regulatory Findings Federal Aviation Administration is issuing currently on the U.S. Register. this AD to prevent mineral build-up on the Therefore, providing notice and We have determined that this AD will auxiliary power unit (APU) and engine fire opportunity for public comment is not have federalism implications under shutoff switches, which could lead to the unnecessary before this AD is issued, Executive Order 13132. This AD will switches failing to discharge fire suppressant and this AD may be made effective in not have a substantial direct effect on to the affected fire zone and result in an less than 30 days after it is published in the States, on the relationship between uncontrolled engine or APU fire and consequent loss of the airplane. the Federal Register. the national Government and the States, or on the distribution of power and Compliance Comments Invited responsibilities among the various (e) You are responsible for having the Although this is a final rule that was levels of government. actions required by this AD performed within not preceded by notice and an For the reasons discussed above, I the compliance times specified, unless the opportunity for public comment, we certify that the regulation: actions have already been done.
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Service Bulletin Reference exceed 36 months, replace all APU and Aviation Administration, 222 West 7th (f) The term ‘‘service bulletin,’’ as used in engine fire shutoff switches that have not Avenue, Box 14, Anchorage, AK 99513– this AD, means the Accomplishment been previously replaced in accordance with 7587; telephone number (907) 271– Instructions of Boeing Alert Service Bulletin paragraph (h) of this AD. Do the 5898; fax: (907) 271–2850; e-mail: 767–26A0127, dated July 17, 2003. replacements in accordance with paragraph [email protected]. Internet (i) of this AD. Initial and Repetitive Functional Tests address: http://www.alaska.faa.gov/at. Alternative Methods of Compliance (AMOC) (g) At the later of the compliance times SUPPLEMENTARY INFORMATION: (l) The Manager, Seattle Aircraft specified in paragraphs (g)(1) and (g)(2) of History this AD, do a functional test of the APU and Certification Office, FAA, has the authority to engine fire shutoff switches, in accordance approve AMOCs for this AD, if requested On Wednesday, November 3, 2004, with the service bulletin. Repeat the using the procedures found in 14 CFR 39.19. the FAA proposed to revise part 71 of functional test thereafter at intervals not to Material Incorporated by Reference the Federal Aviation Regulations (14 exceed 18 months. CFR part 71) to create new Class E (1) Within 18 months since the date of (m) You must use Boeing Alert Service Bulletin 767–26A0127, dated July 17, 2003, airspace upward from 700 ft. above the issuance of the original Airworthiness surface at Annette Island, AK (69 FR Certificate or the original Export Certificate of to perform the actions that are required by this AD, unless the AD specifies otherwise. 63973). The action was proposed in Airworthiness. order to establish Class E airspace (2) Within 90 days after the effective date The Director of the Federal Register approved of this AD. the incorporation by reference of this sufficient in size to contain aircraft document in accordance with 5 U.S.C. 552(a) while executing Special Instrument Corrective Action for Failure of a Fire and 1 CFR part 51. You can get copies of the Approach Procedures at the Annette Shutoff Switch document from Boeing Commercial Island Airport. New Class E controlled (h) If any APU or engine fire shutoff switch Airplanes, P.O. Box 3707, Seattle, airspace extending upward from 700 ft. fails during any functional test required by Washington 98124–2207. You can review above the surface within a 4.5-mile copies at the Docket Management Facility paragraph (g) or (k) of this AD, before further radius of the Annette Island Airport is flight, replace the switch with a new or office, U.S. Department of Transportation, 400 Seventh Street SW, room PL–401, Nassif established by this action. Interested serviceable switch, in accordance with the parties were invited to participate in service bulletin. Repeat the switch Building, Washington, DC; or at the National replacement thereafter at intervals not to Archives and Records Administration this rulemaking proceeding by exceed 36 months. (NARA). For information on the availability submitting written comments on the of this material at NARA, call (202) 741– proposal to the FAA. No public Initial and Repetitive Replacements of Fire 6030, or go to: http://www.archives.gov/ comments have been received, thus, the Shutoff Switches federal_register/code_of_federal_regulations/ rule is adopted as proposed. _ (i) Within 18 months after the effective ibr locations.html. The area will be depicted on date of this AD, replace all APU and engine Issued in Renton, Washington, on aeronautical charts for pilot reference. fire shutoff switches that have not been December 29, 2004. The coordinates for this airspace docket previously replaced in accordance with Kevin M. Mullin, are based on North American Datum 83. paragraph (h) of this AD with new or The Class E airspace areas designated as serviceable switches, in accordance with the Acting Manager, Transport Airplane service bulletin. Repeat the switch Directorate, Aircraft Certification Service. 700/1200 foot transition areas are replacement thereafter at intervals not to [FR Doc. 05–538 Filed 1–12–05; 8:45 am] published in paragraph 6005 of FAA exceed 36 months. BILLING CODE 4910–13–P Order 7400.9M, Airspace Designations and Reporting Points, dated August 30, Optional Terminating Action: Deactivation 2004, and effective September 16, 2004, of Humidifier DEPARTMENT OF TRANSPORTATION which is incorporated by reference in 14 (j) Accomplishment of the actions specified CFR 71.1. The Class E airspace in paragraphs (j)(1) and (j)(2) of this AD, Federal Aviation Administration designation listed in this document will terminates the repetitive requirements of paragraphs (g), (h), and (i) of this AD, except be published subsequently in the Order. 14 CFR Part 71 as provided by paragraph (k) of this AD. The Rule (1) Deactivate the Lucas humidifier, part [Docket No. FAA–2004–19357; Airspace This revision to 14 CFR part 71 number (P/N) M01AA0101, M01AB0101, Docket No. 04–AAL–17] M01AB0102, or M01AB0103, in accordance establishes Class E airspace at Annette with the service bulletin. Establishment of Class E Airspace; Island Airport, Alaska. This additional (2) Before further flight following the Annette Island, Metlakatla, AK Class E airspace was created to deactivation specified in paragraph (j)(1) of accommodate aircraft executing Special this AD, replace all APU and engine fire AGENCY: Federal Aviation Instrument Flight Procedures and will shutoff switches with new or serviceable Administration (FAA), DOT. be depicted on aeronautical charts for switches, in accordance with the service ACTION: Final rule. pilot reference. The intended effect of bulletin. this rule is to provide adequate Reactivation of Lucas Humidifier SUMMARY: This action establishes Class controlled airspace for IFR operations at E airspace at Annette Island, Metlakatla, (k) For any airplane on which Lucas Annette Island Airport, Alaska. humidifier, P/N M01AA0101, M01AB0101, AK to provide adequate controlled The FAA has determined that this M01AB0102, or M01AB0103, is reactivated airspace to contain aircraft executing regulation only involves an established after the effective date of this AD: Do the Special Instrument Approach body of technical regulations for which actions required by paragraphs (k)(1) and Procedures. This Rule results in new frequent and routine amendments are (k)(2) of this AD at the specified compliance Class E airspace upward from 700 feet necessary to keep them operationally times. (ft.) above the surface at Annette Island current. It, therefore—(1) is not a (1) Within 18 months after reactivating the Airport, AK. humidifier, and thereafter at intervals not to ‘‘significant regulatory action’’ under DATES: Effective Date: 0901 UTC, March exceed 18 months, do the functional tests Executive Order 12866; (2) is not a required by paragraph (g) of this AD. 17, 2005. ‘‘significant rule’’ under DOT (2) Within 36 months after reactivating the FOR FURTHER INFORMATION CONTACT: Regulatory Policies and Procedures (44 humidifier, and thereafter at intervals not to Jesse Patterson, AAL–538G, Federal FR 11034; February 26, 1979); and (3)
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does not warrant preparation of a AAL AK E5 Metlakatla, AK [New] was incorrectly listed in the Notice of regulatory evaluation as the anticipated Annette Island, Airport, AK Proposed Rulemaking and is corrected impact is so minimal. Since this a (Lat. 55°02′33″ N., long. 131°34′20″ W.) in the Final Rule. Interested parties routine matter that will only affect air That airspace extending upward from 700 were invited to participate in this traffic procedures and air navigation, it feet above the surface within a 4.5-mile rulemaking proceeding by submitting is certified that this rule will not have radius of the Annette Island Airport. written comments on the proposal to the a significant economic impact on a * * * * * FAA. No public comments have been substantial number of small entities received, thus, the rule is adopted as under the criteria of the Regulatory Issued in Anchorage, AK, on January 5, proposed, but with the corrected Flexibility Act. 2005. longitude for the Badami Airport. The FAA’s authority to issue rules Anthony M. Wylie, The area will be depicted on regarding aviation safety is found in Acting Area Director, Alaska Flight Services aeronautical charts for pilot reference. Title 49 of the United States Code. Area Office. The coordinates for this airspace docket Subtitle 1, Section 106 describes the [FR Doc. 05–667 Filed 1–12–05; 8:45 am] are based on North American Datum 83. authority of the FAA Administrator. BILLING CODE 4910–13–P The Class E airspace areas designated as Subtitle VII, Aviation Programs, 700/1200 foot transition areas are describes in more detail the scope of the published in paragraph 6005 of FAA agency’s authority. DEPARTMENT OF TRANSPORTATION Order 7400.9M, Airspace Designations This rulemaking is promulgated and Reporting Points, dated August 30, under the authority described in Federal Aviation Administration 2004, and effective September 16, 2004, Subtitle VII, Part A, Subpart 1, Section which is incorporated by reference in 14 40103, Sovereignty and use of airspace. 14 CFR Part 71 CFR 71.1. The Class E airspace Under that section, the FAA is charged [Docket No. FAA–2004–19358; Airspace designation listed in this document will with prescribing regulations to ensure Docket No. 04–AAL–18] be published subsequently in the Order. the safe and efficient use of the navigable airspace. This regulation is Establishment of Class E Airspace; The Rule within the scope of that authority Badami, AK This revision to 14 CFR part 71 because it creates Class E airspace establishes Class E airspace at Badami AGENCY: Federal Aviation Airport, Alaska. This additional Class E sufficient in size to contain aircraft Administration (FAA), DOT. executing Instrument Approach airspace was created to accommodate ACTION: Procedures for the Annette Island Final rule. aircraft executing Special Instrument Airport and represents the FAA’s SUMMARY: This action establishes Class Flight Procedures and will be depicted continuing effort to safely and E airspace at Badami, AK to provide on aeronautical charts for pilot efficiently use the navigable airspace. adequate controlled airspace to contain reference. The intended effect of this rule is to provide adequate controlled List of Subjects in 14 CFR Part 71 aircraft executing Special Instrument Approach Procedures. This Rule results airspace for IFR operations at Badami Airspace, Incorporation by reference, in new Class E airspace upward from Airport, Alaska. The FAA has determined that this Navigation (air). 700 feet (ft.) above the surface at Badami regulation only involves an established Adoption of the Amendment Airport, AK. body of technical regulations for which Effective Date: 0901 UTC, March 17, I In consideration of the foregoing, the frequent and routine amendments are 2005. Federal Aviation Administration necessary to keep them operationally amends 14 CFR part 71 as follows: FOR FURTHER INFORMATION CONTACT: current. It, therefore—(1) is not a Jesse Patterson, AAL–538G, Federal ‘‘significant regulatory action’’ under PART 71—DESIGNATION OF CLASS A, Aviation Administration, 222 West 7th Executive Order 12866; (2) is not a CLASS B, CLASS C, CLASS D, AND Avenue, Box 14, Anchorage, AK 99513– ‘‘significant rule’’ under DOT CLASS E AIRSPACE AREAS; 7587; telephone number (907) 271– Regulatory Policies and Procedures (44 AIRWAYS; ROUTES; AND REPORTING 5898; fax: (907) 271–2850; e-mail: FR 11034; February 26, 1979); and (3) POINTS [email protected]. Internet does not warrant preparation of a address: http://www.alaska.faa.gov/at. I 1. The authority citation for 14 CFR regulatory evaluation as the anticipated part 71 continues to read as follows: SUPPLEMENTARY INFORMATION: impact is so minimal. Since this a routine matter that will only affect air History Authority: 49 U.S.C. 106(g), 40103, 40113, traffic procedures and air navigation, it 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– On Wednesday, November 3, 2004, 1963 Comp., p. 389. is certified that this rule will not have the FAA proposed to revise part 71 of a significant economic impact on a § 71.1 [Amended] the Federal Aviation Regulations (14 substantial number of small entities CFR part 71) to create new Class E I 2. The incorporation by reference in 14 under the criteria of the Regulatory airspace upward from 700 ft. above the CFR 71.1 of Federal Aviation Flexibility Act. surface at Badami, AK (69 FR 63974). Administration Order 7400.9M, The FAA’s authority to issue rules The action was proposed in order to Airspace Designations and Reporting regarding aviation safety is found in establish Class E airspace sufficient in Points, dated August 30, 2004, and Title 49 of the United States Code. size to contain aircraft while executing effective September 16, 2004, is Subtitle 1, Section 106 describes the Special Instrument Approach amended as follows: authority of the FAA Administrator. Procedures at the Badami Airport. New Subtitle VII, Aviation Programs, * * * * * Class E controlled airspace extending describes in more detail the scope of the Paragraph 6005 Class E airspace extending upward from 700 ft. above the surface agency’s authority. upward from 700 feet or more above the within a 6.3-mile radius of the Badami This rulemaking is promulgated surface of the earth. Airport is established by this action. under the authority described in * * * * * The longitude for the Badami Airport Subtitle VII, Part A, Subpart 1, Section
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40103, Sovereignty and use of airspace. DEPARTMENT OF TRANSPORTATION which is incorporated by reference in 14 Under that section, the FAA is charged CFR 71.1. The Class E airspace with prescribing regulations to ensure Federal Aviation Administration designation listed in this document will the safe and efficient use of the be published subsequently in the Order. navigable airspace. This regulation is 14 CFR Part 71 The Rule within the scope of that authority [Docket No. FAA–2004–19359; Airspace because it creates Class E airspace Docket No. 04–AAL–19] This revision to 14 CFR part 71 sufficient in size to contain aircraft establishes Class E airspace at Haines executing Instrument Approach Establishment of Class E Airspace; Airport, Alaska. This additional Class E Procedures for the Badami Airport and Haines, AK airspace was created to accommodate represents the FAA’s continuing effort AGENCY: Federal Aviation aircraft executing Special Instrument to safely and efficiently use the Administration (FAA), DOT. Flight Procedures and will be depicted navigable airspace. ACTION: Final rule. on aeronautical charts for pilot reference. The intended effect of this List of Subjects in 14 CFR Part 71 SUMMARY: This action establishes Class rule is to provide adequate controlled Airspace, Incorporation by reference, E airspace at Haines, AK to provide airspace for IFR operations at Haines Navigation (air). adequate controlled airspace to contain Airport, Alaska. aircraft executing Special Instrument The FAA has determined that this Adoption of the Amendment Approach Procedures. This Rule results regulation only involves an established in new Class E airspace upward from body of technical regulations for which I In consideration of the foregoing, the 700 feet (ft.) above the surface at Haines frequent and routine amendments are Federal Aviation Administration Airport, AK. necessary to keep them operationally amends 14 CFR part 71 as follows: EFFECTIVE DATE: 0901 UTC, March 17, current. It, therefore—(1) is not a 2005. PART 71—DESIGNATION OF CLASS A, ‘‘significant regulatory action’’ under CLASS B, CLASS C, CLASS D, AND FOR FURTHER INFORMATION CONTACT: Executive Order 12866; (2) is not a CLASS E AIRSPACE AREAS; Jesse Patterson, AAL–538G, Federal ‘‘significant rule’’ under DOT AIRWAYS; ROUTES; AND REPORTING Aviation Administration, 222 West 7th Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) POINTS Avenue, Box 14, Anchorage, AK 99513– 7587; telephone number (907) 271– does not warrant preparation of a I 1. The authority citation for 14 CFR 5898; fax: (907) 271–2850; e-mail: regulatory evaluation as the anticipated part 71 continues to read as follows: [email protected]. Internet impact is so minimal. Since this a address: http://www.alaska.faa.gov/at. routine matter that will only affect air Authority: 49 U.S.C. 106(g), 40103, 40113, SUPPLEMENTARY INFORMATION: traffic procedures and air navigation, it 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– is certified that this rule will not have 1963 Comp., p. 389. History a significant economic impact on a § 71.1 [Amended] On Wednesday, November 3, 2004, substantial number of small entities the FAA proposed to revise part 71 of under the criteria of the Regulatory I 2. The incorporation by reference in 14 the Federal Aviation Regulations (14 Flexibility Act. CFR 71.1 of Federal Aviation CFR part 71) to create new Class E The FAA’s authority to issue rules Administration Order 7400.9M, airspace upward from 700 ft. above the regarding aviation safety is found in Airspace Designations and Reporting surface at Haines, AK (69 FR 63975). Title 49 of the United States Code. Points, dated August 30, 2004, and The action was proposed in order to Subtitle 1, Section 106 describes the effective September 16, 2004, is establish Class E airspace sufficient in authority of the FAA Administrator. amended as follows: size to contain aircraft while executing Subtitle VII, Aviation Programs, Special Instrument Approach * * * * * describes in more detail the scope of the Procedures at the Haines Airport. New agency’s authority. Paragraph 6005 Class E airspace extending Class E controlled airspace extending This rulemaking is promulgated upward from 700 feet or more above the upward from 700 ft. above the surface under the authority described in surface of the earth. within a 4-mile radius of the Haines Subtitle VII, Part A, Subpart 1, Section * * * * * Airport is established by this action. Interested parties were invited to 40103, Sovereignty and use of airspace. AAL AK E5 Badami, AK [New] participate in this rulemaking Under that section, the FAA is charged Badami, Airport, AK proceeding by submitting written with prescribing regulations to ensure (Lat. 70°08′15″ N., long. 147°01′50″ W.) comments on the proposal to the FAA. the safe and efficient use of the That airspace extending upward from 700 No public comments have been navigable airspace. This regulation is feet above the surface within a 6.3-mile received, thus, the rule is adopted as within the scope of that authority radius of the Badami Airport. proposed. because it creates Class E airspace sufficient in size to contain aircraft * * * * * The area will be depicted on aeronautical charts for pilot reference. executing Instrument Approach Issued in Anchorage, AK, on January 5, The coordinates for this airspace docket Procedures for the Haines Airport and 2005. are based on North American Datum 83. represents the FAA’s continuing effort Anthony M. Wylie, The Class E airspace areas designated as to safely and efficiently use the Acting Area Director, Alaska Flight Services 700/1200 foot transition areas are navigable airspace. Area Office. published in paragraph 6005 of FAA List of Subjects in 14 CFR Part 71 [FR Doc. 05–666 Filed 1–12–05; 8:45 am] Order 7400.9M, Airspace Designations BILLING CODE 4910–13–P and Reporting Points, dated August 30, Airspace, Incorporation by reference, 2004, and effective September 16, 2004, Navigation (air).
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Adoption of the Amendment 700 feet (ft.) above the surface at Kulik current. It, therefore—(1) is not a Lake Airport, AK. ‘‘significant regulatory action’’ under I In consideration of the foregoing, the EFFECTIVE DATE: 0901 UTC, March 17, Executive Order 12866; (2) is not a Federal Aviation Administration 2005. ‘‘significant rule’’ under DOT amends 14 CFR part 71 as follows: Regulatory Policies and Procedures (44 FOR FURTHER INFORMATION CONTACT: FR 11034; February 26, 1979); and (3) PART 71—DESIGNATION OF CLASS A, Jesse Patterson, AAL–538G, Federal does not warrant preparation of a CLASS B, CLASS C, CLASS D, AND Aviation Administration, 222 West 7th regulatory evaluation as the anticipated CLASS E AIRSPACE AREAS; Avenue, Box 14, Anchorage, AK 99513– impact is so minimal. Since this a AIRWAYS; ROUTES; AND REPORTING 7587; telephone number (907) 271– routine matter that will only affect air POINTS 5898; fax: (907) 271–2850; email: traffic procedures and air navigation, it [email protected]. Internet I 1. The authority citation for 14 CFR is certified that this rule will not have address: http://www.alaska.faa.gov/at. part 71 continues to read as follows: a significant economic impact on a SUPPLEMENTARY INFORMATION: Authority: 49 U.S.C. 106(g), 40103, 40113, substantial number of small entities 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– History under the criteria of the Regulatory Flexibility Act. 1963 Comp., p. 389. On Wednesday, November 3, 2004, the FAA proposed to revise part 71 of The FAA’s authority to issue rules § 71.1 [Amended] regarding aviation safety is found in I 2. The incorporation by reference in 14 the Federal Aviation Regulations (14 CFR part 71) to create new Class E Title 49 of the United States Code. CFR 71.1 of Federal Aviation Subtitle 1, Section 106 describes the Administration Order 7400.9M, airspace upward from 700 ft. above the surface at Kulik Lake, AK (69 FR 63976). authority of the FAA Administrator. Airspace Designations and Reporting Subtitle VII, Aviation Programs, Points, dated August 30, 2004, and The action was proposed in order to establish Class E airspace sufficient in describes in more detail the scope of the effective September 16, 2004, is agency’s authority. amended as follows: size to contain aircraft while executing Special Instrument Approach This rulemaking is promulgated * * * * * Procedures at the Kulik Lake Airport. under the authority described in Paragraph 6005 Class E airspace extending New Class E controlled airspace Subtitle VII, Part A, Subpart 1, Section upward from 700 feet or more above the extending upward from 700 ft. above the 40103, Sovereignty and use of airspace. surface of the earth. surface at the Kulik Lake Airport is Under that section, the FAA is charged * * * * * established by this action. Interested with prescribing regulations to ensure parties were invited to participate in the safe and efficient use of the AAL AK E5 Haines, AK [New] this rulemaking proceeding by navigable airspace. This regulation is Haines, Airport, AK within the scope of that authority ° ′ ″ ° ′ ″ submitting written comments on the (Lat. 59 14 38 N., long. 135 31 25 W.) proposal to the FAA. No public because it creates Class E airspace That airspace extending upward from 700 comments have been received, thus, the sufficient in size to contain aircraft feet above the surface within a 4-mile radius rule is adopted as proposed. executing Instrument Approach of the Haines Airport. The area will be depicted on Procedures for the Kulik Lake Airport * * * * * aeronautical charts for pilot reference. and represents the FAA’s continuing Issued in Anchorage, AK, on January 5, The coordinates for this airspace docket effort to safely and efficiently use the 2005. are based on North American Datum 83. navigable airspace. Anthony M. Wylie, The Class E airspace areas designated as List of Subjects in 14 CFR Part 71 Acting Area Director, Alaska Flight Services 700/1200 foot transition areas are Area Office. published in paragraph 6005 of FAA Airspace, Incorporation by reference, [FR Doc. 05–665 Filed 1–12–05; 8:45 am] Order 7400.9M, Airspace Designations Navigation (air). BILLING CODE 4910–13–P and Reporting Points, dated August 30, Adoption of the Amendment 2004, and effective September 16, 2004, which is incorporated by reference in 14 I In consideration of the foregoing, the DEPARTMENT OF TRANSPORTATION CFR 71.1. The Class E airspace Federal Aviation Administration designation listed in this document will amends 14 CFR part 71 as follows: Federal Aviation Administration be published subsequently in the Order. PART 71—DESIGNATION OF CLASS A, 14 CFR Part 71 The Rule CLASS B, CLASS C, CLASS D, AND This revision to 14 CFR part 71 CLASS E AIRSPACE AREAS; [Docket No. FAA–2004–19360; Airspace establishes Class E airspace at Kulik AIRWAYS; ROUTES; AND REPORTING Docket No. 04–AAL–20] Lake Airport, Alaska. This additional POINTS Class E airspace was created to Establishment of Class E Airspace; I 1. The authority citation for 14 CFR Kulik Lake, AK accommodate aircraft executing Special Instrument Flight Procedures and will part 71 continues to read as follows: AGENCY: Federal Aviation be depicted on aeronautical charts for Authority: 49 U.S.C. 106(g), 40103, 40113, Administration (FAA), DOT. pilot reference. The intended effect of 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– ACTION: Final rule. this rule is to provide adequate 1963 Comp., p. 389. controlled airspace for IFR operations at § 71.1 [Amended] SUMMARY: This action establishes Class Kulik Lake Airport, Alaska. E airspace at Kulik Lake, AK to provide The FAA has determined that this I 2. The incorporation by reference in 14 adequate controlled airspace to contain regulation only involves an established CFR 71.1 of Federal Aviation aircraft executing Special Instrument body of technical regulations for which Administration Order 7400.9M, Approach Procedures. This Rule results frequent and routine amendments are Airspace Designations and Reporting in new Class E airspace upward from necessary to keep them operationally Points, dated August 30, 2004, and
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effective September 16, 2004, is 63978). The action was proposed in under the criteria of the Regulatory amended as follows: order to establish Class E airspace Flexibility Act. Paragraph 6005 Class E airspace extending sufficient in size to contain aircraft The FAA’s authority to issue rules upward from 700 feet or more above the while executing Special Instrument regarding aviation safety is found in title surface of the earth. Approach Procedures at the Prospect 49 of the United States Code. Subtitle 1, Creek Airport. New Class E controlled * * * * * section 106 describes the authority of airspace extending upward from 700 ft. the FAA Administrator. Subtitle VII, AAL AK E5 Kulik Lake, AK [New] above the surface at the Prospect Creek Aviation Programs, describes in more Kulik Lake, Airport, AK Airport is established by this action. detail the scope of the agency’s (Lat. 58°58′55″ N., long 155°07′17″ W.) The coordinates for the Prospect Creek authority. That airspace extending upward from 700 Airport and Prospect Creek Non- This rulemaking is promulgated feet above the surface within a 4.3-mile Directional Beacon (NDB) were under the authority described in subtitle radius of the Kulik Lake Airport and that incorrectly listed in the Notice of VII, part A, subpart 1, section 40103, airspace 4 miles either side of the 098° Proposed Rulemaking and are corrected Sovereignty and use of airspace. Under bearing to the Kukik Lake Airport from the in the Final Rule. Interested parties that section, the FAA is charged with 4.3-mile radius out to 7.5 miles. were invited to participate in this prescribing regulations to ensure the * * * * * rulemaking proceeding by submitting safe and efficient use of the navigable Issued in Anchorage, AK, on January 5, written comments on the proposal to the airspace. This regulation is within the 2005. FAA. No public comments have been scope of that authority because it creates Anthony M. Wylie, received, thus, the rule is adopted as Class E airspace sufficient in size to Acting Area Director, Alaska Flight Services proposed, but with the corrected contain aircraft executing Instrument Area Office. coordinates for the Prospect Creek Approach Procedures for the Prospect [FR Doc. 05–664 Filed 1–12–05; 8:45 am] Airport and the Prospect Creek NDB. Creek Airport and represents the FAA’s The area will be depicted on BILLING CODE 4910–13–P continuing effort to safely and aeronautical charts for pilot reference. efficiently use the navigable airspace. The coordinates for this airspace docket List of Subjects in 14 CFR Part 71 DEPARTMENT OF TRANSPORTATION are based on North American Datum 83. The Class E airspace areas designated as Airspace, Incorporation by reference, Federal Aviation Administration 700/1200 foot transition areas are Navigation (air). published in paragraph 6005 of FAA 14 CFR Part 71 Order 7400.9M, Airspace Designations Adoption of the Amendment and Reporting Points, dated August 30, I In consideration of the foregoing, the [Docket No. FAA–2004–19361; Airspace 2004, and effective September 16, 2004, Docket No. 04–AAL–21] Federal Aviation Administration which is incorporated by reference in 14 amends 14 CFR part 71 as follows: Establishment of Class E Airspace; CFR 71.1. The Class E airspace Prospect Creek, AK designation listed in this document will PART 71—DESIGNATION OF CLASS A, be published subsequently in the Order. CLASS B, CLASS C, CLASS D, AND AGENCY: Federal Aviation The Rule CLASS E AIRSPACE AREAS; Administration (FAA), DOT. AIRWAYS; ROUTES; AND REPORTING ACTION: Final rule. This revision to 14 CFR part 71 POINTS establishes Class E airspace at Prospect SUMMARY: This action establishes Class Creek Airport, Alaska. This additional I 1. The authority citation for 14 CFR E airspace at Prospect Creek, AK to Class E airspace was created to part 71 continues to read as follows: provide adequate controlled airspace to accommodate aircraft executing Special Authority: 49 U.S.C. 106(g), 40103, 40113, contain aircraft executing Special Instrument Flight Procedures and will 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– Instrument Approach Procedures. This be depicted on aeronautical charts for 1963 Comp., p. 389. Rule results in new Class E airspace pilot reference. The intended effect of § 71.1 [Amended] upward from 700 feet (ft.) above the this rule is to provide adequate surface at Prospect Creek Airport, AK. controlled airspace for IFR operations at I 2. The incorporation by reference in 14 Prospect Creek Airport, Alaska. EFFECTIVE DATE: 0901 UTC, March 17, CFR 71.1 of Federal Aviation The FAA has determined that this 2005. Administration Order 7400.9M, regulation only involves an established Airspace Designations and Reporting FOR FURTHER INFORMATION CONTACT: body of technical regulations for which Points, dated August 30, 2004, and Jesse Patterson, AAL–538G, Federal frequent and routine amendments are effective September 16, 2004, is Aviation Administration, 222 West 7th necessary to keep them operationally amended as follows: Avenue, Box 14, Anchorage, AK 99513– current. It, therefore—(1) Is not a * * * * * 7587; telephone number (907) 271– ‘‘significant regulatory action’’ under 5898; fax: (907) 271–2850; email: Executive Order 12866; (2) is not a Paragraph 6005 Class E airspace extending [email protected]. Internet ‘‘significant rule’’ under DOT upward from 700 feet or more above the address: http://www.alaska.faa.gov/at. Regulatory Policies and Procedures (44 surface of the earth. SUPPLEMENTARY INFORMATION: FR 11034; February 26, 1979); and (3) * * * * * does not warrant preparation of a History AAL AK E5 Prospect Creek, AK [New] regulatory evaluation as the anticipated Prospect Creek Airport, AK On Wednesday, November 3, 2004, impact is so minimal. Since this a (Lat. 66°48′51″ N., long. 150°38′37″ W.) the FAA proposed to revise part 71 of routine matter that will only affect air Prospect Creek NDB the Federal Aviation Regulations (14 traffic procedures and air navigation, it (Lat. 66°49′03″ N., long. 150°38′03″ W.) CFR part 71) to create new Class E is certified that this rule will not have That airspace extending upward from 700 airspace upward from 700 ft. above the a significant economic impact on a feet above the surface within a 4.2-mile surface at Prospect Creek, AK (69 FR substantial number of small entities radius of the Prospect Creek NDB and that
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airspace 4 miles either side of the 096° No public comments have been contain aircraft executing Instrument bearing to the Prospect Creek NDB from the received, thus, the rule is adopted as Approach Procedures for the Red Dog 4.2 mile radius out to 8 miles. proposed. Airport and represents the FAA’s * * * * * The area will be depicted on continuing effort to safely and Issued in Anchorage, AK, on January 5, aeronautical charts for pilot reference. efficiently use the navigable airspace. 2005. The coordinates for this airspace docket List of Subjects in 14 CFR Part 71 Anthony M. Wylie, are based on North American Datum 83. The Class E airspace areas designated as Acting Area Director, Alaska Flight Services Airspace, Incorporation by reference, Area Office. 700/1200 foot transition areas are published in paragraph 6005 of FAA Navigation (air). [FR Doc. 05–663 Filed 1–12–05; 8:45 am] Order 7400.9M, Airspace Designations Adoption of the Amendment BILLING CODE 4910–13–P and Reporting Points, dated August 30, 2004, and effective September 16, 2004, I In consideration of the foregoing, the DEPARTMENT OF TRANSPORTATION which is incorporated by reference in 14 Federal Aviation Administration CFR 71.1. The Class E airspace amends 14 CFR part 71 as follows: Federal Aviation Administration designation listed in this document will be published subsequently in the Order. PART 71—DESIGNATION OF CLASS A, 14 CFR Part 71 The Rule CLASS B, CLASS C, CLASS D, AND CLASS E AIRSPACE AREAS; [Docket No. FAA–2004–19362; Airspace This revision to 14 CFR part 71 AIRWAYS; ROUTES; AND REPORTING Docket No. 04–AAL–22] establishes Class E airspace at Red Dog POINTS Airport, Alaska. This additional Class E Establishment of Class E Airspace; airspace was created to accommodate I 1. The authority citation for 14 CFR Red Dog, AK aircraft executing Special Instrument part 71 continues to read as follows: AGENCY: Federal Aviation Flight Procedures and will be depicted Administration (FAA), DOT. on aeronautical charts for pilot Authority: 49 U.S.C. 106(g), 40103, 40113, reference. The intended effect of this 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– ACTION: Final rule. rule is to provide adequate controlled 1963 Comp., p. 389. SUMMARY: This action establishes Class airspace for IFR operations at Red Dog § 71.1 [Amended] E airspace at Red Dog, AK to provide Airport, Alaska. adequate controlled airspace to contain The FAA has determined that this I 2. The incorporation by reference in 14 aircraft executing Special Instrument regulation only involves an established CFR 71.1 of Federal Aviation Approach Procedures. This Rule results body of technical regulations for which Administration Order 7400.9M, in new Class E airspace upward from frequent and routine amendments are Airspace Designations and Reporting 700 feet (ft.) and 1,200 ft., above the necessary to keep them operationally Points, dated August 30, 2004, and current. It, therefore—(1) Is not a surface at Red Dog Airport, AK. effective September 16, 2004, is ‘‘significant regulatory action’’ under EFFECTIVE DATE: 0901 UTC, March 17, amended as follows: 2005. Executive Order 12866; (2) is not a ‘‘significant rule’’ under DOT * * * * * FOR FURTHER INFORMATION CONTACT: Regulatory Policies and Procedures (44 Paragraph 6005 Class E airspace extending Jesse Patterson, AAL–538G, Federal FR 11034; February 26, 1979); and (3) upward from 700 feet or more above the Aviation Administration, 222 West 7th does not warrant preparation of a surface of the earth. Avenue, Box 14, Anchorage, AK 99513– regulatory evaluation as the anticipated * * * * * 7587; telephone number (907) 271– impact is so minimal. Since this a 5898; fax: (907) 271–2850; email: routine matter that will only affect air AAL AK E5 Red Dog, AK [New] [email protected]. Internet traffic procedures and air navigation, it Red Dog, Airport, AK address: http://www.alaska.faa.gov/at. is certified that this rule will not have (Lat. 68°01′53″ N., long. 162°54′11″ W.) SUPPLEMENTARY INFORMATION: a significant economic impact on a That airspace extending upward from 700 substantial number of small entities History feet above the surface within a 6.3-mile under the criteria of the Regulatory radius of the Red Dog Airport and that On Wednesday, November 3, 2004, Flexibility Act. airspace extending upward from 1,200 feet the FAA proposed to revise part 71 of The FAA’s authority to issue rules above the surface within a 14-mile radius of the Federal Aviation Regulations (14 regarding aviation safety is found in title the Red Dog Airport. CFR part 71) to create new Class E 49 of the United States Code. Subtitle 1, airspace upward from 700 ft. and 1,200 section 106 describes the authority of * * * * * ft. above the surface at Red Dog, AK (69 the FAA Administrator. Subtitle VII, Issued in Anchorage, AK, on January 5, FR 63970). The action was proposed in Aviation Programs, describes in more 2005. order to establish Class E airspace detail the scope of the agency’s Anthony M. Wylie, sufficient in size to contain aircraft authority. Acting Area Director, Alaska Flight Services while executing Special Instrument This rulemaking is promulgated Area Office. Approach Procedures at the Red Dog under the authority described in subtitle [FR Doc. 05–662 Filed 1–12–05; 8:45 am] Airport. New Class E controlled airspace VII, part A, subpart 1, section 40103, extending upward from 700 ft. and Sovereignty and use of airspace. Under BILLING CODE 4910–13–P 1,200 ft. above the surface at the Red that section, the FAA is charged with Dog Airport is established by this prescribing regulations to ensure the action. Interested parties were invited to safe and efficient use of the navigable participate in this rulemaking airspace. This regulation is within the proceeding by submitting written scope of that authority because it creates comments on the proposal to the FAA. Class E airspace sufficient in size to
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DEPARTMENT OF TRANSPORTATION which is incorporated by reference in 14 Adoption of the Amendment CFR 71.1. The Class E airspace I In consideration of the foregoing, the Federal Aviation Administration designation listed in this document will Federal Aviation Administration be published subsequently in the Order. 14 CFR Part 71 amends 14 CFR part 71 as follows: The Rule [Docket No. FAA–2004–19363; Airspace PART 71— DESIGNATION OF CLASS Docket No. 04–AAL–23] This revision to 14 CFR part 71 A, CLASS B, CLASS C, CLASS D, AND establishes Class E airspace at Seward CLASS E AIRSPACE AREAS; Establishment of Class E Airspace; Airport, Alaska. This additional Class E AIRWAYS; ROUTES; AND REPORTING Seward, AK airspace was created to accommodate POINTS aircraft executing Special Instrument AGENCY: Federal Aviation I 1. The authority citation for 14 CFR Flight Procedures and will be depicted Administration (FAA), DOT. part 71 continues to read as follows: ACTION: Final rule. on aeronautical charts for pilot reference. The intended effect of this Authority: 49 U.S.C. 106(g), 40103, 40113, SUMMARY: This action establishes Class rule is to provide adequate controlled 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– 1963 Comp., p. 389. E airspace at Seward, AK to provide airspace for IFR operations at Seward adequate controlled airspace to contain Airport, Alaska. § 71.1 [Amended] aircraft executing Special Instrument The FAA has determined that this I Approach Procedures. This Rule results 2. The incorporation by reference in 14 regulation only involves an established in new Class E airspace upward from CFR 71.1 of Federal Aviation body of technical regulations for which 700 feet (ft.) above the surface at Seward Administration Order 7400.9M, Airport, AK. frequent and routine amendments are Airspace Designations and Reporting necessary to keep them operationally Points, dated August 30, 2004, and EFFECTIVE DATE: 0901 UTC, March 17, current. It, therefore—(1) is not a effective September 16, 2004, is 2005. ‘‘significant regulatory action’’ under amended as follows: FOR FURTHER INFORMATION CONTACT: Executive Order 12866; (2) is not a * * * * * Jesse Patterson, AAL–538G, Federal ‘‘significant rule’’ under DOT Aviation Administration, 222 West 7th Paragraph 6005 Class E airspace extending Regulatory Policies and Procedures (44 upward from 700 feet or more above the Avenue, Box 14, Anchorage, AK 99513– FR 11034; February 26, 1979); and (3) surface of the earth. 7587; telephone number (907) 271– does not warrant preparation of a * * * * * 5898; fax: (907) 271–2850; email: regulatory evaluation as the anticipated [email protected]. Internet impact is so minimal. Since this a AAL AK E5 Seward, AK [New] address: http://www.alaska.faa.gov/at. routine matter that will only affect air Seward, Airport, AK SUPPLEMENTARY INFORMATION: traffic procedures and air navigation, it (Lat. 60°07′37′′ N., long. 149°25′08′′ W.) That airspace extending upward from 700 History is certified that this rule will not have a significant economic impact on a feet above the surface within a 4-mile radius On Wednesday, November 3, 2004, substantial number of small entities of the Seward Airport. the FAA proposed to revise part 71 of under the criteria of the Regulatory * * * * * the Federal Aviation Regulations (14 Flexibility Act. Issued in Anchorage, AK, on January 5, CFR part 71) to create new Class E The FAA’s authority to issue rules 2005. airspace upward from 700 ft. above the Anthony M. Wylie, surface at Seward, AK (69 FR 63972). regarding aviation safety is found in title 49 of the United States Code. Subtitle 1, Acting Area Director, Alaska Flight Services The action was proposed in order to Area Office. establish Class E airspace sufficient in section 106 describes the authority of [FR Doc. 05–661 Filed 1–12–05; 8:45 am] size to contain aircraft while executing the FAA Administrator. Subtitle VII, Special Instrument Approach Aviation Programs, describes in more BILLING CODE 4910–13–P Procedures at the Seward Airport. New detail the scope of the agency’s Class E controlled airspace extending authority. DEPARTMENT OF COMMERCE upward from 700 ft. above the surface This rulemaking is promulgated within a 4-mile radius of the Seward under the authority described in subtitle Bureau of Industry and Security Airport is established by this action. VII, part A, subpart 1, section 40103, Interested parties were invited to Sovereignty and use of airspace. Under 15 CFR Parts 742 and 774 participate in this rulemaking that section, the FAA is charged with proceeding by submitting written prescribing regulations to ensure the [Docket No. 041221359–5005–02] comments on the proposal to the FAA. safe and efficient use of the navigable No public comments have been RIN 0694–AD25 airspace. This regulation is within the received, thus, the rule is adopted as scope of that authority because it creates Implementation of the Understandings proposed. Class E airspace sufficient in size to Reached at the June 2004 Australia The area will be depicted on Group (AG) Plenary Meeting and aeronautical charts for pilot reference. contain aircraft executing Instrument Approach Procedures for the Seward Through a Subsequent AG The coordinates for this airspace docket Intersessional Decision; Correction are based on North American Datum 83. Airport and represents the FAA’s continuing effort to safely and The Class E airspace areas designated as AGENCY: Bureau of Industry and 700/1200 foot transition areas are efficiently use the navigable airspace. Security, Commerce. published in paragraph 6005 of FAA List of Subjects in 14 CFR Part 71 ACTION: Final rule; correction. Order 7400.9M, Airspace Designations and Reporting Points, dated August 30, Airspace, Incorporation by reference, SUMMARY: On Wednesday, December 29, 2004, and effective September 16, 2004, Navigation (air). 2004, the Bureau of Industry and
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Security (BIS) published a final rule that detectors therefor, except those systems continuing basis. Comments should be amended the Export Administration and detectors controlled by ECCN submitted to Willard Fisher, Regulatory Regulations (EAR) to implement the 1A004.c.’’ This document corrects Policy Division, Bureau of Industry and understandings reached at the June 2004 ECCN 2B351 by revising the heading to Security, U.S. Department of Commerce, plenary meeting of the Australia Group include the phrase that excludes Room 2705, 14th Street and (AG) and through a subsequent AG systems and detectors controlled by Pennsylvania Avenue, NW., intersessional decision. The December ECCN 1A004.c. Washington, DC 20230. 29, 2004, final rule contained a Rulemaking Requirements List of Subjects typographical error in the description of the AG-related license requirements in 1. This rule has been determined to be 15 CFR Part 742 not significant for purposes of Executive the EAR, as well as an error in the Exports, Foreign trade. amendatory language for ECCN 2B351, Order 12866. which controls certain toxic gas 2. Notwithstanding any other 15 CFR Part 774 provision of law, no person is required monitoring systems and dedicated Exports, Foreign trade, Reporting and to respond to, nor shall any person be detectors therefor. This document recordkeeping requirements. corrects those errors. subject to a penalty for failure to comply with, a collection of information subject I Accordingly, parts 742 and 774 of the DATES: This rule is effective January 13, to the requirements of the Paperwork Export Administration Regulations (15 2005. Reduction Act of 1995 (44 U.S.C. 3501 CFR parts 730–799) are amended as FOR FURTHER INFORMATION CONTACT: For et seq.) (PRA), unless that collection of follows: questions of a general nature, contact information displays a currently valid Willard Fisher, Regulatory Policy Office of Management and Budget PART 742—[CORRECTED] Division, Office of Exporter Services, (OMB) Control Number. This rule I 1. The authority citation for 15 CFR Bureau of Industry and Security at (202) contains a collection of information part 742 continues to read as follows: 482–2440 or e-mail [email protected]. subject to the requirements of the PRA. Authority: 50 U.S.C. app. 2401 et seq.; 50 For questions concerning the AG-related This collection has been approved by license requirements in the EAR, U.S.C. 1701 et seq.; 18 U.S.C. 2510 et seq.; OMB under Control Number 0694–0088 22 U.S.C. 3201 et seq.; 42 U.S.C. 2139a; Sec. contact Douglas Brown, Office of (Multi-Purpose Application), which 901–911, Pub. L. 106–387; Sec. 221, Pub. L. Nonproliferation Controls and Treaty carries a burden hour estimate of 58 107–56; Sec. 1503, Pub. L. 108–11, 117 Stat. Compliance, Bureau of Industry and minutes to prepare and submit form 559; E.O. 12058, 43 FR 20947, 3 CFR, 1978 Security, Telephone: (202) 482–7900. BIS–748. Send comments regarding this Comp., p. 179; E.O. 12851, 58 FR 33181, 3 SUPPLEMENTARY INFORMATION: burden estimate or any other aspect of CFR, 1993 Comp., p. 608; E.O. 12938, 59 FR this collection of information, including 59099, 3 CFR, 1994 Comp., p. 950; E.O. Background suggestions for reducing the burden, to 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. This document corrects the errors 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 David Rostker, Office of Management Comp., p. 783; Presidential Determination contained in the final rule that was and Budget (OMB), by e-mail to 2003–23 of May 7, 2003, 68 FR 26459, May published by the Bureau of Industry and [email protected], or by fax 16, 2003; Notice of October 29, 2003, 68 FR Security (BIS) on December 29, 2004 (69 to (202) 395–7285; and to the Regulatory 62209, 3 CFR, 2003 Comp., p. 347; Notice of FR 77890). The December 29, 2004, final Policy Division, Bureau of Industry and August 6, 2004, 69 FR 48763 (August 10, rule amended the Export Security, Department of Commerce, PO 2004). Administration Regulations (EAR) to Box 273, Washington, DC 20044. § 742.2 [Amended] implement the understandings reached 3. This rule does not contain policies at, and subsequent to, the annual with Federalism implications as that I 2. Section 742.2 is amended by plenary meeting of the Australia Group term is defined in Executive Order removing the period (‘‘.’’) at the end of (AG) that was held in Paris on June 7– 13132. paragraph (a)(3)(i) and adding a 10, 2004. 4. The provisions of the semicolon (‘‘;’’) at the end of the Specifically, this document corrects a Administrative Procedure Act (5 U.S.C. paragraph. minor typographical error contained in 553) requiring notice of proposed § 742.2, which describes the AG-related rulemaking, the opportunity for public PART 774—[CORRECTED] license requirements in the EAR. This participation, and a delay in effective document corrects paragraph (a)(3)(i) in date, are inapplicable because this I 3. The authority citation for 15 CFR § 742.2 of the EAR by replacing the regulation involves a military and part 774 continues to read as follows: period at the end of the paragraph with foreign affairs function of the United Authority: 50 U.S.C. app. 2401 et seq.; 50 a semicolon. States (5 U.S.C. 553(a)(1)). Further, no U.S.C. 1701 et seq.; 10 U.S.C. 7420; 10 U.S.C. This document also corrects an error other law requires that a notice of 7430(e); 18 U.S.C. 2510 et seq.; 22 U.S.C. contained in Export Control proposed rulemaking and an 287c; 22 U.S.C. 3201 et seq.; 22 U.S.C. 6004; Classification Number (ECCN) 2B351 on opportunity for public comment be 30 U.S.C. 185(s), 185(u); 42 U.S.C. 2139a; 42 the Commerce Control List (CCL) given for this final rule. Because a U.S.C. 6212; 43 U.S.C. 1354; 46 U.S.C. app. 466c; 50 U.S.C. app. 5; Sec. 901–911, Pub. L. (Supplement No. 1 to Part 774 of the notice of proposed rulemaking and an 106–387; Sec. 221, Pub. L. 107–56; E.O. EAR). In the December 29, 2004, final opportunity for public comment are not 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. rule, the amendatory instruction for required to be given for this rule under 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 ECCN 2B351 did not specify that the 5 U.S.C. 553 or by any other law, the Comp., p. 783; Notice of August 6, 2004, 69 heading of the ECCN should be revised analytical requirements of the FR 48763 (August 10, 2004). to read as set forth in the regulatory text Regulatory Flexibility Act (5 U.S.C. 601 Supplement No. 1 to Part 774 for that ECCN. The regulatory text in the et seq.) are not applicable. [Amended] December 29, 2004, final rule contained Therefore, this regulation is issued in the following revised heading for ECCN final form. Although there is no formal I 4. In Supplement No. 1 to Part 774 (the 2B351: ‘‘Toxic gas monitoring systems comment period, public comments on Commerce Control List), Category 2— that operate on-line and dedicated this regulation are welcome on a Materials Processing, ECCN 2B351 is
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amended by revising the ECCN heading standards and procedures for its review role in reviewing NFA actions affecting to read as follows: of decisions of registered futures membership status. Pending additional associations such as NFA in experience on the issue the Commission has 2B351 Toxic gas monitoring systems that determined not to exclude such NFA action operate on-line and dedicated detectors disciplinary actions, membership denial from its appellate jurisdiction. therefor, except those systems and detectors actions, registration actions and member controlled by ECCN 1A004.c. responsibility actions. 55 FR 24254. Id. at 41064. From 1990 to the present, the * * * * * Under the proposed rules, two categories of decisions were excluded Commission has received a total of five Dated: January 10, 2005. from Commission review: (a) appeals related to the suspension of a Eileen Albanese, Disciplinary decisions in which the member for failing to pay an arbitration Director, Office of Exporter Services. aggrieved party failed to pursue his or award. The Commission first considered [FR Doc. 05–719 Filed 1–12–05; 8:45 am] her appeal rights to the NFA Appeals this issue in 1991, shortly after Part 171 BILLING CODE 3510–33–P Committee and no extraordinary was adopted. In the initial case, the circumstances warranted Commission respondent asked the Commission to review; and (b) decisions in arbitration stay the suspension while he worked COMMODITY FUTURES TRADING actions. See 171.1(b)(1) and 171.1(b)(2), out a payment schedule. In rejecting the COMMISSION respectively. Two comment letters were petition, the Commission stated, ‘‘NFA’s received in response to the request for ministerial imposition of a pre- determined sanction for a member’s 17 CFR Part 171 public comment. Of particular interest failure to perform an undisputed duty of to the Commission was a letter it RIN 3038–AC12 membership [to pay an arbitration received from the NFA.1 award] is not, without more, a proper Rules Relating to Review of National In its letter, the NFA proposed that subject for Commission review.’’ Futures Association Decisions in the Commission exclude any appeal Machin v. NFA, [1990–1992 Transfer Disciplinary, Membership Denial, arising from NFA suspension of an Binder] Comm. Fut. L. Rep. (CCH) Registration and Member association member based solely on that member’s failure to pay NFA dues or ¶ 25,041 at 37,893 (CFTC Apr. 25, 1991). Responsibility Actions There were no other appeals of this arbitration awards.2 In its final rules nature until 1997, when the AGENCY: Commodity Futures Trading published on October 9, 1990, the Commission. Commission dismissed an appeal from Commission agreed that the suspension an award suspension where the appeal ACTION: Final rule. for non-payment of dues should not was predicated on alleged procedural generally be considered a disciplinary SUMMARY: The Commodity Futures and substantive errors in the underlying action subject to Commission review arbitration. The Commission stated, ‘‘it Trading Commission (‘‘Commission’’ or and accordingly amended the proposed ‘‘CFTC’’) hereby amends its rules would be inappropriate to consider rules by adding 171.1(b)(3) under either procedural or substantive errors relating to the scope of Commission ‘‘Matters excluded’’ in the publication review of National Futures Association in NFA’s resolution of the issues raised of its final rules. See 55 FR 41061. in the arbitration.’’ Indelicato v. NFA, (‘‘NFA’’) decisions in disciplinary, However, the Commission specifically membership denial, registration and [1996–1998 Transfer Binder] Comm. rejected NFA’s request to exclude from Fut. L. Rep. (CCH) ¶ 27,130 at 45,287 member responsibility actions. First, the Commission review the suspension of a Commission makes a technical (CFTC Aug. 7, 1997). Citing Machin, the member for failing to pay arbitration Commission further noted, ‘‘the amendment to add the NFA’s Hearing awards, stating: Committee to the list of committees imposition of a suspension for failing to covered by that section. This change The Commission is reluctant at this time pay an arbitration award might be conforms Rule 171.1(b)(4) to changes in * * * to exclude suspension of a member for reviewable upon a showing that NFA failing to pay arbitration awards. When the NFA’s committee structure since part acted arbitrarily in imposing the Commission has excluded NFA arbitration suspension. Here, however, as in 171 was first adopted in October 1990. decisions themselves from its review, one of Secondly, the Commission adds a new the reasons it has done so is that these Machin, petitioners have failed to provision to exclude from Commission decisions can be reversed in the court establish such arbitrariness.’’ Id. review any appeal concerning NFA system. In contrast, membership suspension The Commission’s denials of review suspension of a member for failing to raises somewhat different issues which in three recent cases, from March 2003 pay settlement or arbitration award generally go to the core of the Commission’s to February 2004, have followed Machin (‘‘award suspension cases’’) unless there and Indelicato, i.e., declining to accept 1 are extraordinary circumstances that August 31, 1990 NFA Letter (‘‘NFA Letter’’). any appeal from this type of suspension 2 The NFA presumed that ‘‘actions in these areas unless it ‘‘involves something more than would otherwise warrant Commission would not be deemed disciplinary actions’’ within review. Commission review under Part 171. NFA Letter at the ministerial application of a pre- 7. Section 10(g) of NFA’s Code of Arbitration (Code) determined sanction.’’ See Howell v. DATES: Effective January 13, 2005. and Section 10(g) of NFA’s Member Arbitration NFA, [Current Transfer Binder] Comm. FOR FURTHER INFORMATION CONTACT: Rules (Member Rules) authorize NFA to summarily Fut. L. Rep. (CCH) ¶ 29,702 at 55,993 Thuy Dinh or Gail Scott, Office of the suspend an NFA member or associate if such member or associate fails to pay an NFA award or (CFTC Feb. 27, 2004); Mawhorr v. NFA, General Counsel, Commodity Futures settlement reached in an NFA arbitration or [Current Transfer Binder] Comm. Fut. L. Trading Commission, Three Lafayette mediation proceeding within 30 days. Members and Rep. (CCH) ¶ 29,633 at 55,717 (CFTC Centre, 1155 21st Street, NW., associates receive a 30-day written notice before the Nov. 28, 2003); Bunyard v. NFA, CRAA Washington, DC 20581. Telephone: suspension becomes effective, giving them a minimum of 60 days to satisfy the award or 03–01 (CFTC Mar. 5, 2003). In Bunyard, (202) 418–5120. settlement. Once the suspension becomes effective, the Commission stated, ‘‘[only] an SUPPLEMENTARY INFORMATION: a member or associate can get it lifted at any time appeal raising a colorable claim that the by paying the amount due. A member or associate NFA acted arbitrarily—or a similar I. Scope of Commission Review can also file a motion to vacate the award. A timely motion to vacate an award stays the suspension claim that goes to the core of the On June 15, 1990, the Commission while the motion is pending in a court of competent Commission’s role in ensuring the published proposed rules establishing jurisdiction. reliability of NFA’s membership
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process—would fall within our Sexton Letter at 1. Accordingly, the Acting Chairman, on jurisdiction.’’ Id. at 2. The letter concluded that the behalf of the Commission, hereby Against this backdrop, the NFA this Commission’s amendments will not certifies, pursuant to 5 U.S.C. 605(b), year again proposed that the eliminate existing rights, but ‘‘will that the amendments will not have a Commission exclude from its clarify the current practice * * * and significant economic impact on a jurisdiction membership suspension conserve resources * * * that * * * substantial number of small businesses. cases based solely on the members’ would otherwise [be] waste[d] on B. Paperwork Reduction Act failure to pay arbitration awards. See appeals that will not be accepted for April 15, 2004 NFA Letter at 5. The review.’’ Id. at 2. The letter further The amendments to Part 171 rules do NFA discussed the Commission’s acknowledged that the Commission not impose a burden within the disposition of these types of appeals amendments, in choosing to review only meaning and intent of the Paperwork during the last 14 years. Noting that the cases in which an NFA Member or Reduction Act of 1980, 44 U.S.C. 3501, Commission had routinely rejected such Associate has a colorable claim that et seq. appeals, the NFA proposed that the Part NFA acted arbitrarily or if other C. Cost-Benefit Analysis 171 Rules be amended to reflect the extraordinary circumstances exist, Section 15(a) of the Commodity Commission’s actual practice, which is provide Members and Associates with Exchange Act, 7 U.S.C. 19(a), requires to limit review to cases presenting an adequate remedy against the Commission to consider the costs ‘‘extraordinary circumstances.’’ Id. at 4. unreasonable suspensions. Id. In and benefits of its action before issuing In its notice of proposed rulemaking, essence, the letter reiterated the a new regulation. The Commission the Commission noted that it had Commission’s objectives for instituting understands that, by its terms, Section reviewed its case history in this area the amendments. 15(a) does not require the Commission and reached the following conclusions: The Commissioner received no other to quantify the costs and benefits of a (a) Such appeals are very infrequent; comment from the public. The comment new regulation or to determine whether and (b) the few cases that have reached period ended on November 24, 2004. the Commission did not raise a the benefits of the proposed regulation colorable challenge to the fundamental II. Technical Amendment outweigh its costs. Nor does it require fairness of the proceeding, and fell Commission Rule 1.63 bars persons that each proposed rule be analyzed in isolation when that rule is a component squarely into the ‘‘ministerial’’ category with certain disciplinary histories from of a larger package of rules or rule that would not warrant Commission serving on ‘‘a disciplinary committee’’ revisions. Rather, section 15(a) simply review. Based on this experience, the or in other leadership positions of any requires the Commission to ‘‘consider Commission proposed to exclude these self-regulatory organization. Rule the costs and benefits’’ of its action. 171.1(b)(4) provides that NFA decisions routine matters from appellate review. Section 15(a) further specifies that made pursuant to Rule 1.63 are The Commission proposed to exercise costs and benefits shall be evaluated in excluded from Commission review. As its appellate jurisdiction in the light of five broad areas of market and currently written, it forecloses appeals extraordinary case where an appeal public concern: (1) Protection of market by an NFA member who is disqualified based on an award suspension involved participants and the public; (2) from service on NFA’s ‘‘Board of ‘‘something more than a ministerial efficiency, competitiveness, and Directors, Business Conduct Committees application of a predetermined financial integrity of futures markets; (3) or arbitration panels.’’ Since Rule sanction.’’ The proposed rule price discovery; (4) sound risk 171.1(b)(4) was promulgated, NFA has incorporated the Commission’s language management practices; and (5) other established a Hearing Committee as part used in Machin and Indelicato. public interest considerations. The notice for the proposed rule was of its disciplinary function. The Accordingly, the Commission can, in its published in the Federal Register on Commission is making a technical discretion, give greater weight to any October 25, 2004, providing a thirty-day amendment to Rule 171.1(b)(4) to add one of the five enumerated areas of comment period. On November 17, the Hearing Committee to the list of concern and can, in its discretion, 2004, Mr. Thomas Sexton, NFA Vice committees covered by the rule. determine that notwithstanding its President and General Counsel, wrote to costs, a particular rule is necessary or the Commission endorsing the proposed III. Related Matters appropriate to protect the public interest amendment. Reviewing NFA arbitration A. Regulatory Flexibility Act or to effectuate any of the provisions, or cases of the past 14 years, the letter The Regulatory Flexibility Act accomplish any of the purposes, of the noted the following statistics: (‘‘RFA’’), 5 U.S.C. 601 et seq., requires Commodity Exchange Act. Since November 1, 1990, when Part 171 agencies with rulemaking authority to The amendments to Part 171 will not became effective, NFA has closed consider the impact those rules will create any significant change in the approximately 2750 arbitration cases. have on small businesses. With respect Commission’s appellate process. In fact, Approximately 450 of these cases have resulted in awards against Members and to persons seeking Commission reviews the amendments should enhance the Associates. Approximately 1150 more of of NFA adjudicatory decisions, the protection of market participants and these cases settled since June 1, 1993, when amendments would impose no the public by excluding from the we added unpaid settlements to the additional regulatory burden. Commission’s review matters that suspension rules. These 1600 cases generated Commission review of NFA disciplinary represent routine enforcement of a NFA only 61 suspensions, and only five of those and membership denial actions has pre-determined sanction, freeing both have been appealed to the Commission. The been carried out pursuant to 17 CFR the Commission’s and NFA’s resources. Commission denied review in each of these Part 171 since 1990. These amendments In addition, since the amendments five cases, ruling that the ministerial do not present any significant changes retain the Commission’s ability to imposition of a predetermined sanction is not a proper subject for Commission review. and would in fact ease the regulatory consider appeals that present Nonetheless, in each one of these cases the burden to some extent by providing ‘‘extraordinary circumstances,’’ public Commission and NFA—as well as the greater certainty and predictability interest considerations for fundamental suspended Member or Associate—expended concerning the standards and fairness and the Commission’s significant resources on the appeal. procedures governing such review. supervisory authority regarding self-
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regulated organizations will not be DEPARTMENT OF HEALTH AND § 510.600 Names, addresses, and drug compromised. HUMAN SERVICES labeler codes of sponsors of approved applications. After considering these factors, the Food and Drug Administration * * * * * Commission has determined to amend (c) * * * Part 171, as set forth below. 21 CFR Part 510 (1) * * * List of Subjects in 17 CFR Part 171 New Animal Drugs; Change of Drug label- Administrative practice and Sponsor’s Address Firm name and address er code procedure, Commodity exchanges, Commodity futures. AGENCY: Food and Drug Administration, ***** HHS. I Alstoe, Ltd., Animal Health, 062408 In consideration of the following, the ACTION: Final rule. Commission hereby amends chapter I of Pera Innovation Park, title 17 of the Code of Federal Nottingham Rd., Melton SUMMARY: The Food and Drug Mowbray, Leicestershire, Regulations as follows: Administration (FDA) is amending the England LE13 0PB animal drug regulations to reflect a PART 171—RULES RELATING TO change of sponsor’s address for Alstoe, ***** REVIEW OF NATIONAL FUTURES Ltd. ASSOCIATION DECISIONS IN DATES: This rule is effective January 13, (2) * * * DISCIPLINARY, MEMBERSHIP DENIAL, 2005. REGISTRATION AND MEMBER Drug labeler Firm name and address RESPONSIBILITY ACTIONS FOR FURTHER INFORMATION CONTACT: code David R. Newkirk, Center for Veterinary I 1. The authority citation for part 171 Medicine (HFV–100), Food and Drug ***** Administration, 7500 Standish Pl., continues to read as follows: 062408 Alstoe, Ltd., Animal Health, Rockville, MD 20855, 301–827–6967, e- Authority: 7 U.S.C. 4a, 12a, and 21. Pera Innovation Park, mail: [email protected]. Nottingham Rd., Melton I 2. Section 171.1(b) is amended in SUPPLEMENTARY INFORMATION: Alstoe, Mowbray, Leicestershire, paragraph (b)(4) by adding ‘‘, Hearing Ltd., Animal Health, Granary Chambers, England LE13 0PB Committee’’ between ‘‘Business Conduct 37–39 Burton St., Melton Mowbray, ***** Committees’’ and ‘‘or arbitration Leicestershire LE13 1AF, England has panels’’; and replacing ‘‘.’’ with ‘‘;’’ at the informed FDA of a change of address to end of (b)(4); and by adding new Pera Innovation Park, Nottingham Rd., Dated: January 3, 2005. paragraph (b)(5): Melton Mowbray, Leicestershire, Steven D. Vaughn, England LE13 0PB. Accordingly, the Director, Office of New Animal Drug § 171.1 Scope of rules. agency is amending the regulations in Evaluation, Center for Veterinary Medicine. * * * * * 21 CFR 510.600(c) to reflect the change. [FR Doc. 05–697 Filed 1–12–05; 8:45 am] (b) * * * This rule does not meet the definition BILLING CODE 4160–01–S of ‘‘rule’’ in 5 U.S.C. 804(3)(A) because (5) Suspension of a member or a it is a rule of ‘‘particular applicability.’’ person associated with a member based Therefore, it is not subject to the DEPARTMENT OF HEALTH AND solely on that person’s failure to pay an congressional review requirements in 5 HUMAN SERVICES arbitration award or a settlement U.S.C. 801–808. agreement resulting from an arbitration Food and Drug Administration action brought pursuant to section List of Subjects in 21 CFR Part 510 17(b)(10) of the Act or rules and Administrative practice and 21 CFR Part 520 regulations of the National Futures procedure, Animal drugs, Labeling, Oral Dosage Form New Animal Drugs; Association, or a settlement agreement Reporting and recordkeeping Levamisole Powder for Oral Solution resulting from a mediation proceeding requirements. sponsored by the National Futures I Therefore, under the Federal Food, AGENCY: Food and Drug Administration, Association, unless there are Drug, and Cosmetic Act and under HHS. extraordinary circumstances that authority delegated to the Commissioner ACTION: Final rule. involve something more than the of Food and Drugs and redelegated to the ministerial application of a Center for Veterinary Medicine, 21 CFR SUMMARY: The Food and Drug predetermined sanction, or raise a part 510 is amended as follows: Administration (FDA) is amending the colorable claim that the National animal drug regulations to reflect Futures Assocaition has acted PART 510—NEW ANIMAL DRUGS approval of an abbreviated new animal arbitrarily. drug application (ANADA) filed by I 1. The authority citation for 21 CFR * * * * * Phoenix Scientific, Inc. The ANADA part 510 continues to read as follows: provides for use of levamisole Issued in Washington, DC on the 10th day Authority: 21 U.S.C. 321, 331, 351, 352, hydrochloride soluble powder to make of January 2005, by the Commission. 353, 360b, 371, 379e. a drench solution for oral Jean A. Webb, I 2. Section 510.600 is amended in the administration to cattle and sheep Secretary of the Commission. table in paragraph (c)(1) by revising the which is effective against various [FR Doc. 05–709 Filed 1–12–05; 8:45 am] entry for ‘‘Alstoe, Ltd.’’; and in the table internal parasites. BILLING CODE 6351–01–M in paragraph (c)(2) by revising the entry DATES: This rule is effective January 13, for ‘‘062408’’ to read as follows. 2005.
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FOR FURTHER INFORMATION CONTACT: I 2. Section 520.1242a is amended by First Coast Guard District, 408 Atlantic Lonnie W. Luther, Center for Veterinary revising paragraphs (a) and (b)(4) to read Ave., Boston, Massachusetts 02110 Medicine (HFV 104), Food and Drug as follows: between 8 a.m. and 3 p.m., Monday Administration, 7519 Standish Pl., through Friday, except Federal holidays. Rockville, MD 20855, 301–827–8549, e- § 520.1242a Levamisole powder for oral solution. FOR FURTHER INFORMATION CONTACT: Mr. mail: [email protected]. (a) Specifications. Each package of John J. Mauro, Commander (oan), First SUPPLEMENTARY INFORMATION: Phoenix Coast Guard District, 408 Atlantic Ave., Scientific, Inc., 3915 South 48th St. powder contains 9.075, 11.7, 18.15, 46.8, 362.7, or 544.5 grams (g) Boston, MA 02110, Telephone (617) Terrace, St. Joseph, MO 64503, filed 223–8355, e-mail: [email protected]. ANADA 200–386 for Levamisole levamisole hydrochloride. Hydrochloride Soluble Drench Powder (b) * * * SUPPLEMENTARY INFORMATION: (4) No. 059130 for use of 46.8-, 362.7- used to make a drench solution for oral Regulatory Information administration to cattle and sheep , and 544.5-g packages as in paragraphs which is effective against various (e)(1)(i), (e)(1)(ii)(B), (e)(1)(iii), (e)(2)(i), On April 16, 2004, we published a internal parasites. Phoenix Scientific’s (e)(2)(ii)(B), and (e)(2)(iii) of this section; notice of proposed rulemaking (NPRM) Levamisole Hydrochloride Soluble and for use of an 18.15-g package as in entitled Anchorage Grounds; Buzzards Drench Powder is approved as a generic paragraph (e)(3) of this section. Bay, MA in the Federal Register (69 FR copy of Schering-Plough Animal Health * * * * * 20568). We received one comment on the proposed rule. No public hearing Corp.’s, LEVASOL (levamisole Dated: January 6, 2005. was requested and none was held. hydrochloride) Soluble Drench Powder, Stephen F. Sundlof, approved under NADA 112–051. The Director, Center for Veterinary Medicine. Background and Purpose ANADA is approved as of December 17, 2004, and the regulations are amended [FR Doc. 05–675 Filed 1–12–05; 8:45 am] In light of significant oil spills in in 21 CFR 520.1242a to reflect the BILLING CODE 4160–01–S Rhode Island Sound in 1996 and approval. The basis of approval is Buzzards Bay in 2003, the Coast Guard discussed in the freedom of information investigated methods of improving summary. DEPARTMENT OF HOMELAND navigational safety in Buzzards Bay. The In accordance with the freedom of SECURITY Coast Guard conducted a Port and information provisions of 21 CFR part Waterways Safety Assessment (PAWSA) 20 and 21 CFR 514.11(e)(2)(ii), a Coast Guard to collect input on potential summary of safety and effectiveness navigational safety improvements in data and information submitted to 33 CFR Part 110 Buzzards Bay from the local maritime support approval of this application [CGD01–04–004] community. After studying the issue may be seen in the Division of Dockets and collecting mariner input, the Coast Management (HFA–305), Food and Drug 1625–AA01 Guard concluded that a Recommended Administration, 5630 Fishers Lane, rm. Anchorage Grounds; Buzzards Bay, Traffic Route for Deep Draft vessels in 1061, Rockville, MD 20852, between 9 MA Buzzards Bay should be implemented to a.m. and 4 p.m., Monday through improve navigation safety in this area. Friday. AGENCY: Coast Guard, DHS. Presently, there are two designated FDA has determined under 21 CFR ACTION: Final rule. anchorage grounds in Buzzards Bay; 25.33(a)(1) that this action is of a type anchorage ‘‘L’’ and anchorage ‘‘M’’, that does not individually or SUMMARY: The Coast Guard hereby whose locations are described in 33 CFR cumulatively have a significant effect on establishes anchorage regulations for 110.140(b)(3) and 33 CFR 110.140(b)(4), the human environment. Therefore, Buzzards Bay, Nantucket Sound, and respectively. The present location of neither an environmental assessment adjacent waters of Massachusetts by anchorage ‘‘L’’ puts it directly in the nor an environmental impact statement relocating anchorage ground ‘‘L’’ in path of the Recommended Route for is required. Buzzards Bay to an area near Naushon Deep Draft vessels entering or leaving This rule does not meet the definition Island, MA. This action is intended to the Cape Cod Canal via Cleveland Ledge of ‘‘rule’’ in 5 U.S.C. 804(3)(A) because increase the safety of life and property Channel depicted on current versions of it is a rule of ‘‘particular applicability.’’ on Buzzards Bay, improve the safety of NOAA nautical charts in the area. Thus, Therefore, it is not subject to the anchored vessels in anchorage ‘‘L’’, and this rule is needed to move anchorage congressional review requirements in 5 provide for the overall safe and efficient ‘‘L’’ to a new and safer location. U.S.C. 801–808. flow of vessel traffic and commerce Although the location of anchorage ‘‘L’’ List of Subject in 21 CFR Part 520 along the newly established will change, its size and shape will Recommended Traffic Route for Deep remain the same. Animal drugs. Draft Vessels. This regulation will I The Coast Guard has defined the Therefore, under the Federal Food, maintain the original shape and anchorage areas contained herein with Drug, and Cosmetic Act and under dimension of anchorage ‘‘L’’ but move the advice and consent of the Army authority delegated to the Commissioner the anchorage to a new location within Corps of Engineers, New England of Food and Drugs and redelegated to the Buzzards Bay. District, located at 696 Virginia Rd., Center for Veterinary Medicine, 21 CFR DATES: This rule is effective February Concord, MA 01742. part 520 is amended as follows: 14, 2005. This regulation will not exclude PART 520—ORAL DOSAGE FORM ADDRESSES: Comments and material fishing activity or the transit of vessels NEW ANIMAL DRUGS received from the public, as well as in the anchorage grounds. The Coast documents indicated in this preamble as Guard expects no increase in the I 1. The authority citation for 21 CFR being available in the docket, are part of amount of vessels utilizing anchorage part 520 continues to read as follows: docket [CGD01–02–027] and are ‘‘L’’ as a result of this change in its Authority: 21 U.S.C. 360b. available for inspection or copying at location.
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Discussion of Comments and Changes we offered to assist small entities in safety that might disproportionately We received one letter commenting understanding the rule so that they affect children. could better evaluate its effects on them on the proposed rule. The Coalition for Indian Tribal Governments Buzzards Bay wrote to support the and participate in the rulemaking process. If the rule will affect your small This rule does not have tribal proposed new location. The language in implications under Executive Order the final rule is changed from the business, organization, or governmental jurisdiction and you have questions 13175, Consultation and Coordination proposed language only to make the with Indian Tribal Governments, bounds of the anchorage more clear. The concerning its provisions or options for compliance, please contact John J. because it does not have a substantial location, size, and shape of the direct effect on one or more Indian anchorage are unaltered by the change Mauro at the address listed in ADDRESSES above. tribes, on the relationship between the in language. Federal Government and Indian tribes, Note: That this language varies slightly Collection of Information or on the distribution of power and from that for anchorage ‘‘M’’, at 33 CFR This rule calls for no new collection responsibilities between the Federal 110.140(b)(4). We intend to issue a separate of information under the Paperwork Government and Indian tribes. technical correction in the future to align the Reduction Act of 1995 (44 U.S.C. 3501– description of anchorage ‘‘M’’ with anchorage Energy Effects 3520). ‘‘L’’. We have analyzed this rule under Federalism Regulatory Evaluation Executive Order 13211, Actions A rule has implications for federalism Concerning Regulations That This rule is not a ‘‘significant under Executive Order 13132, Significantly Affect Energy Supply, regulatory action’’ under section 3(f) of Federalism, if it has a substantial direct Distribution, or Use. We have Executive Order 12866, Regulatory effect on State or local governments and determined that it is not a ‘‘significant Planning and Review, and does not would either preempt State law or energy action’’ under that Order because require an assessment of potential costs impose a substantial direct cost of it is not a ‘‘significant regulatory action’’ and benefits under section 6(a)(3) of that compliance on them. We have analyzed under Executive Order 12866 and is not Order. The Office of Management and this rule under that Order and have likely to have a significant adverse effect Budget has not reviewed it under that determined that it does not have on the supply, distribution, or use of Order. It is not ‘‘significant’’ under the implications for federalism. energy. It has not been designated by the regulatory policies and procedures of Administrator of the Office of the Department of Homeland Security Unfunded Mandates Reform Act Information and Regulatory Affairs as a (DHS). The Unfunded Mandates Reform Act significant energy action. Therefore, it This conclusion is based upon the fact of 1995 (2 U.S.C. 1531–1538) requires does not require a Statement of Energy that there are no fees, permits, or Federal agencies to assess the effects of Effects under Executive Order 13211. specialized requirements for the their discretionary regulatory actions. In Technical Standards maritime industry to utilize this particular, the Act addresses actions anchorage area. The regulation is solely that may result in the expenditure by a The National Technology Transfer for the purpose of advancing the safety State, local, or tribal government, in the and Advancement Act (NTTAA) (15 of maritime commerce. aggregate, or by the private sector of U.S.C. 272 note) directs agencies to use voluntary consensus standards in their Small Entities $100,000,000 or more in any one year. Though this rule will not result in such regulatory activities unless the agency Under the Regulatory Flexibility Act expenditure, we do discuss the effects of provides Congress, through the Office of (5 U.S.C. 601–612), we have considered this rule elsewhere in this preamble. Management and Budget, with an whether this rule would have a This rule will not impose an unfunded explanation of why using these significant economic impact on a mandate. standards would be inconsistent with substantial number of small entities. applicable law or otherwise impractical. The term ‘‘small entities’’ comprises Taking of Private Property Voluntary consensus standards are small businesses, not-for-profit This rule will not effect a taking of technical standards (e.g., specifications organizations that are independently private property or otherwise have of materials, performance, design, or owned and operated and are not taking implications under Executive operation; test methods; sampling dominant in their fields, and Order 12630, Governmental Actions and procedures; and related management governmental jurisdictions with Interference with Constitutionally systems practices) that are developed or populations of less than 50,000. Protected Property Rights. adopted by voluntary consensus The Coast Guard certifies under 5 standards bodies. U.S.C. 605(b) that this rule will not have Civil Justice Reform This rule does not use technical a significant economic impact on a This rule meets applicable standards standards. Therefore, we did not substantial number of small entities. in sections 3(a) and 3(b)(2) of Executive consider the use of voluntary consensus This rule will have minimal economic Order 12988, Civil Justice Reform, to standards. impact on vessels operated by small minimize litigation, eliminate Environment entities. This conclusion is based upon ambiguity, and reduce burden. the fact that there are no restrictions for The Coast Guard has considered the Protection of Children entry or use of the anchorage targeting environmental impact of this rule and small entities. This regulation only The Coast Guard has analyzed this concluded that, under figure 2–1, relocates one existing anchorage area. rule under Executive Order 13045, paragraph (34)(f) of Commandant Protection of Children from Instruction M16475.1D, this rule is Assistance for Small Entities Environmental Health Risks and Safety categorically excluded from further Under section 213(a) of the Small Risks. This rule is not an economically environmental documentation. A Business Regulatory Enforcement significant rule and does not create an ‘‘Categorical Exclusion Determination’’ Fairness Act of 1996 (Pub. L. 104–121), environmental risk to health or risk to is available in the docket for inspection
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or copying where indicated under temporary deviation from the regulation speed in order to return the bridge to ADDRESSES. governing the operation of the SR 3073 normal operation as soon as possible. This rule relocates one existing Swing Bridge across the Vermilion This deviation from the operating anchorage area to the East of the River, mile 44.9, at Flanders, Lafayette regulations is authorized under 33 CFR Recommended Traffic Route for Deep Parish, Louisiana. This deviation allows 117.35. Draft Vessels. This designated the bridge to remain closed to Dated: January 6, 2005. navigation from 6 a.m. on Sunday, anchorage will enhance safety in the Marcus Redford, waters of Buzzards Bay, MA by relieving February 13, 2005 until 6 a.m. on Bridge Administrator. vessel congestion within the bay. Thus, Wednesday, March 16, 2005. The relocating this designated anchorage deviation is necessary to repair and [FR Doc. 05–735 Filed 1–12–05; 8:45 am] would provide a safer approach to the replace the decking on the bridge. BILLING CODE 4910–15–P Cape Cod Canal by deep draft vessels. DATES: This deviation is effective from 6 a.m. on Sunday, February 13, 2005 List of Subjects in 33 CFR Part 110 DEPARTMENT OF HOMELAND until 6 a.m. on Wednesday, March 16, SECURITY Anchorage grounds. 2005. I For the reasons set forth in the ADDRESSES: Materials referred to in this Coast Guard preamble, the Coast Guard amends 33 document are available for inspection or CFR part 110 as follows: copying at the office of the Eighth Coast 33 CFR Part 165 Guard District, Bridge Administration PART 110—ANCHORAGE Branch, Hale Boggs Federal Building, [COTP Western Alaska–04–003] REGULATIONS Room 1313, 500 Poydras Street, New RIN 1625–AA00 Orleans, Louisiana 70130–3310 between I 1. The authority citation for part 110 7 a.m. and 3 p.m., Monday through Safety Zone; Bering Sea, Aleutian continues to read as follows: Friday, except Federal holidays. The Islands, Unalaska Island, AK Authority: 33 U.S.C. 471, 1221 through telephone number is (504) 589–2965. AGENCY: Coast Guard, DHS. 1236, 2030, 2035, 2071; 33 CFR 1.05–1(g) and The Bridge Administration Branch of ACTION: Department of Homeland Security Delegation the Eighth Coast Guard District Temporary final rule. No. 0170.1. maintains the public docket for this SUMMARY: The Coast Guard is I 2. Section 110.140(b)(3) is revised to temporary deviation. establishing a temporary safety zone in read as follows: FOR FURTHER INFORMATION CONTACT: the Bering Sea, west of and including David Frank, Bridge Administration Makushkin Bay, Unalaska Island, § 110.140 Buzzards Bay, Nantucket Sound, Branch, telephone (504) 589–2965. and adjacent waters, Mass. Alaska. The zone is needed to facilitate SUPPLEMENTARY INFORMATION: The oil spill recovery operations related to * * * * * Louisiana Department of Transportation the grounding of the merchant vessel (b) * * * and Development (LDOTD) has (M/V) SELENDANG AYU, and to (3) Anchorage L. The area of water requested a temporary deviation in mitigate damage to the environment bounded by lines connecting the order to remove and replace the decking during oil spill recovery operations. following points: 41°30′11″ N, ° ′ ″ ° ′ ″ ° ′ ″ on the SR 3073 Swing Bridge across the Entry of vessels or persons into this 070 48 10 W to 41 30 46 N, 070 48 45 Vermilion River, mile 44.9, at Flanders, zone is prohibited unless specifically W, to 41°32′24″ N, 070°45′50″ W to ° ′ ″ ° ′ ″ Lafayette Parish, Louisiana. The repairs authorized by the Commander, 41 31 48 N, 070 45 15 W and thence are necessary to maintain the bridge in Seventeenth Coast Guard District, the to start. proper working condition. This Coast Guard Captain of the Port, * * * * * temporary deviation will allow the Western Alaska, or their on-scene Dated: December 22, 2004. bridge to remain in the closed-to- representative. David P. Pekoske, navigation position from 6 a.m. on DATES: This rule is effective from Rear Admiral, U.S. Coast Guard, Commander, Sunday, February 13, 2005 until 6 a.m. December 11, 2004 through June 11, First Coast Guard District. on Wednesday, March 16, 2005. 2005. [FR Doc. 05–655 Filed 1–12–05; 8:45 am] The bridge has a vertical clearance of 13.28 feet above high water, elevation ADDRESSES: Documents indicated in this BILLING CODE 4910–15–P 8.2 feet MSL in the closed-to-navigation preamble as being available in the position and unlimited clearance in the docket are available for inspection and copying at Coast Guard Marine Safety DEPARTMENT OF HOMELAND open-to-navigation position. The bridge Office Anchorage, 510 ‘‘L’’ Street, Suite SECURITY has only opened 15 times in the previous five years. There were no 100, Anchorage, AK 99501. Normal Coast Guard requests to open the bridge from any Office hours are 7:30 a.m. to 4 p.m., vessels in 2004. During the repairs, the Monday through Friday, except Federal 33 CFR Part 117 bridge will not be able to be opened for holidays. navigation because the swing span will FOR FURTHER INFORMATION CONTACT: LT [CGD08–05–002] be out of balance. No alternate routes Meredith Gillman, Marine Safety Office Drawbridge Operation Regulations; are available. Based upon the Anchorage, at (907) 271–6700. Vermilion River, Flanders, LA information provided by the bridge SUPPLEMENTARY INFORMATION: owner regarding the number of bridge Regulatory Information AGENCY: Coast Guard, DHS. openings, it has been determined that ACTION: Notice of temporary deviation this closure will not have a significant We did not publish a notice of from regulations. effect on vessels which use this reach of proposed rulemaking (NPRM) for this the waterway. regulation. Under 5 U.S.C. 553(b)(B), the SUMMARY: The Commander, Eighth In accordance with 33 CFR 117.35(c), Coast Guard finds that good cause exists Coast Guard District, has issued a this work will be performed with all due for not publishing an NPRM. Any delay
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encountered in this regulation’s economic impact of this rule to be so particular, the Act addresses actions effective date would be contrary to minimal that a full Regulatory that may result in the expenditure by a public interest because immediate Evaluation under paragraph 10(e) of the State, local, or tribal government, in the action is needed to prevent regulatory policies and procedures of aggregate, or by the private sector of unauthorized vessel traffic from DHS is unnecessary. $100,000,000 or more in any one year. hindering oil spill recovery operations. Small Entities Though this rule will not result in such Under 5 U.S.C. 553(d)(3), the Coast an expenditure, we do discuss the Guard finds that good cause exists for Under the Regulatory Flexibility Act effects of this rule elsewhere in this making this rule effective less than 30 (5 U.S.C. 601–612), we have considered preamble. days after publication in the Federal whether this rule will have a significant Register. The Safety Zone is being economic impact on a substantial Taking of Private Property implemented in response to the number of small entities. The term unplanned grounding of the M/V ‘‘small entities’’ comprises small This rule will not effect a taking of SELENDANG AYU. Any delay businesses, not-for-profit organizations private property or otherwise have encountered in this regulation’s that are independently owned and taking implications under Executive effective date would be unnecessary and operated and are not dominant in their Order 12630, Governmental Actions and contrary to public interest, since fields, and governmental jurisdictions Interference with Constitutionally immediate action is needed to mitigate with populations of less than 50,000. Protected Property Rights. damage to the environment during oil The Coast Guard certifies under 5 Civil Justice Reform spill recovery operations. The Coast U.S.C. 605(b) that this rule will not have Guard will terminate the zone when oil a significant economic impact on a This rule meets applicable standards recovery operations are complete and substantial number of small entities. in sections 3(a) and 3(b)(2) of Executive the area adjacent to the grounded vessel This rule will affect the following Order 12988, Civil Justice Reform, to is considered safe to vessel traffic. entities, some of which may be small minimize litigation, eliminate entities: The owners or operators of ambiguity, and reduce burden. Background and Purpose vessels intending to transit or anchor in The M/V SELENDANG AYU ran the area defined by a point at the Protection of Children aground at a position of 53.634° N, western tip of Cape Kovrizhka, Unalaska We have analyzed this rule under 167.125° W on December 9, 2004. The Island, located at 53°51.0′ N, 167°9.5′ W, Executive Order 13045, Protection of vessel then broke in half and began then west 10 nautical miles to a point discharging its fuel into the water. The located at 53°51.0′ N, 167°26′ W, then Children from Environmental Health safety zone is necessary to prevent south to the northern tip of Wedge Risks and Safety Risks. This rule is not unauthorized vessels from transiting Point, Unalaska Island, located at 53°27′ an economically significant rule and through the oiled waters or otherwise N, 167°24′ W. does not create an environmental risk to impeding oil recovery operations. This safety zone will not have a health or risk to safety that may disproportionately affect children. Discussion of Rule significant economic impact on a substantial number of small entities for Indian Tribal Governments The Unified Command, which is the following reasons. Vessel traffic responding to the grounding of the M/ transiting from the north to south side This rule does not have tribal V Selendang Ayu, identified the likely of Unalaska Island can pass safely implications under Executive Order oil trajectory based on the geography of around the safety zone. We will 13175, Consultation and Coordination the region, as well as possible wind and terminate the safety zone once oil with Indian Tribal Governments, weather scenarios. The safety zone was recovery operations are complete and because it does not have a substantial established in the area that is likely to the area adjacent to the grounded vessel direct effect on one or more Indian become oiled, and where subsequent oil is considered safe for vessel traffic. tribes, on the relationship between the recovery operations will be taking place. Federal Government and Indian tribes, Collection of Information This area is defined by a point at the or on the distribution of power and western tip of Cape Kovrizhka, Unalaska This rule calls for no new collection ° ′ ° ′ responsibilities between the Federal Island, located at 53 51.0 N, 167 9.5 W, of information under the Paperwork Government and Indian tribes. then west 10 nautical miles to a point Reduction Act of 1995 (44 U.S.C. 3501– located at 53°51.0′ N, 167°26′ W, then 3520). Energy Effects south to the northern tip of Wedge Point, Unalaska Island, located at 53°27′ Federalism We have analyzed this rule under N, 167°24′ W. All coordinates reference A rule has implications for federalism Executive Order 13211, Actions Datum: NAD 1983. under Executive Order 13132, Concerning Regulations That Federalism, if it has a substantial direct Significantly Affect Energy Supply, Regulatory Evaluation effect on State or local governments and Distribution, or Use. We have This rule is not a ‘‘significant would either preempt State law or determined that it is not a ‘‘significant regulatory action’’ under section 3(f) of impose a substantial direct cost of energy action’’ under that order because Executive Order 12866, Regulatory compliance on them. We have analyzed it is not a ‘‘significant regulatory action’’ Planning and Review, and does not this rule under that Order and have under Executive Order 12866 and is not require an assessment of potential cost determined that it does not have likely to have a significant adverse effect and benefits under section 6(a)(3) of that implications for federalism. on the supply, distribution, or use of Order. The Office of Management and energy. The Administrator of the Office Budget has not reviewed it under that Unfunded Mandates Reform Act of Information and Regulatory Affairs Order. It is not significant under the The Unfunded Mandates Reform Act has not designated it as a significant regulatory policies and procedures of of 1995 (2 U.S.C. 1531–1538) requires energy action. Therefore, it does not the Department of Homeland Security Federal agencies to assess the effects of require a Statement of Energy Effects (DHS). The Coast Guard expects the their discretionary regulatory actions. In under Executive Order 13211.
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Technical Standards 167°24′ W. All coordinates reference Saturday, January 15, 2005, at 11:59 The National Technology Transfer Datum: NAD 1983. p.m. Pacific Standard Time. (b) Enforcement period. The safety and Advancement Act (NTTAA) (15 FOR FURTHER INFORMATION CONTACT: zones in this section will be enforced U.S.C. 272 note) directs agencies to use Captain of the Port, Puget Sound, 1519 voluntary consensus standards in their from December 11, 2004 through June 11, 2005. Alaskan Way South, Seattle, WA 98134 regulatory activities unless the agency at (206) 217–6200 or (800) 688–6664 to provides Congress, through the Office of (c) Regulations. (1) The Captain of the Port and the Duty Officer at Marine obtain information concerning Management and Budget, with an enforcement of this rule. explanation of why using these Safety Office, Anchorage, Alaska can be contacted at telephone number (907) standards would be inconsistent with SUPPLEMENTARY INFORMATION: On August 271–6700. applicable law or otherwise impractical. 27, 2004, the Coast Guard published a Voluntary consensus standards are (2) The Captain of the Port may authorize and designate any Coast final rule (69 FR 52603) establishing technical standards (e.g., specifications regulations, in 33 CFR 165.1321, for the of materials, performance, design, or Guard commissioned, warrant, or petty officer to act on his behalf in enforcing security of Department of Defense assets operation; test methods; sampling and military cargo in the navigable procedures; and related management the safety zone. (3) The general regulations governing waters of Puget Sound and adjacent systems practices) that are developed or waters. On December 10, 2004, the adopted by voluntary consensus safety zones contained in § 165.23 Coast Guard published a final rule (69 standards bodies. apply. No person or vessel may enter or This rule does not use technical remain in this safety zone, with the FR 71711), which amended 33 CFR standards. Therefore, we did not exception of attending vessels, without 165.1321 by adding Budd Inlet, consider the use of voluntary consensus first obtaining permission from the Olympia, WA as a permanent security standards. Captain of the Port or his on-scene zone. These security zones provide for representative the regulation of vessel traffic in the Environment Dated: December 21, 2004. vicinity of military cargo loading We have analyzed this rule under R.J. Morris, facilities in the navigable waters of the Commandant Instruction M16475.lD, Captain, U.S. Coast Guard, Captain of the United States. These security zones also which guides the Coast Guard in Port, Western Alaska. exclude persons and vessels from the complying with the National [FR Doc. 05–657 Filed 1–12–05; 8:45 am] immediate vicinity of these facilities Environmental Policy Act of 1969 BILLING CODE 4910–15–P during military cargo loading and (NEPA) (42 U.S.C. 4321–4370f). A final unloading operations. In addition, the ‘‘Environmental Analysis Check List’’ regulation establishes requirements for and a final ‘‘Categorical Exclusion DEPARTMENT OF HOMELAND all vessels to obtain permission of the Determination’’ will be available in the SECURITY COTP or the COTP’s designated docket where indicated under representative, including the Vessel ADDRESSES. Coast Guard Traffic Service Puget Sound (VTS) to List of Subjects in 33 CFR Part 165 enter, move within, or exit these 33 CFR Part 165 Harbors, Marine safety, Navigation security zones when they are enforced. (water), Reporting and recordkeeping [CGD13–04–045] Entry into these zones is prohibited requirements, Security measures, unless otherwise exempted or excluded Waterways. RIN 1625–AA87 under 33 CFR 165.1321 or unless authorized by the Captain of the Port or I For the reasons set out in the preamble, Security Zone; Protection of Military his designee. The Captain of the Port, the Coast Guard amends 33 CFR part 165 Cargo, Captain of the Port Zone Puget as follows: Sound, WA Puget Sound will begin enforcing the Budd Inlet security zone established by PART 165—[AMENDED] AGENCY: Coast Guard, DHS. 33 CFR 165.1321 on Tuesday, January I 1. The authority citation for part 165 ACTION: Final rule; notice of 11, 2005, at 8 a.m. Pacific Standard continues to read as follows: enforcement and suspension of Time. The security zone will be enforcement. enforced until Saturday, January 15, Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. 2005, at 11:59 p.m. Pacific Standard chapter 701; 50 U.S.C. 191, 195; 33 CFR SUMMARY: The Captain of the Port, Puget 1.05–1(g), 6.04–1, 6.04–6, and 160.5; Pub. L. Time. All persons and vessels are 107–295, 116 Stat. 2064; Department of Sound will begin enforcing the Budd authorized to enter, move within, and Homeland Security Delegation No. 0170.1. Inlet security zone established by 33 exit the security zone on or after CFR 165.1321 on Tuesday, January 11, I 2. From December 11, 2004 to June 11, Saturday, January 15, 2005, at 11:59 2005, at 8 a.m. Pacific Standard Time. p.m. Pacific Standard Time unless a 2005, add temporary § 165.T17–010 to The security zone provides for the new notice of enforcement is issued read as follows: security of Department of Defense assets before then. § 165.T17–010 Safety Zone; Bering Sea, and military cargo in the navigable Aleutian Islands, Unalaska Island, AK. waters of Puget Sound and adjacent Dated: January 4, 2005. (a) Description. The safety zone is waters. The security zone will be Danny Ellis, defined by a point at the western tip of enforced until Saturday, January 15, Captain, U.S. Coast Guard, Captain of the Cape Kovrizhka, Unalaska Island, 2005, at 11:59 p.m. Pacific Standard Port, Puget Sound. located at 53°51.0′ N, 167°9.5′ W, then Time. [FR Doc. 05–734 Filed 1–12–05; 8:45 am] west 10 nautical miles to a point located DATES: The Budd Inlet security zone set BILLING CODE 4910–15–P at 53°51.0′ N, 167°26′ W, then south to forth in 33 CFR 165.1321 will be the northern tip of Wedge Point, enforced from Tuesday, January 11, Unalaska Island, located at 53°27′ N, 2005, at 8 a.m. Pacific Standard Time to
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ENVIRONMENTAL PROTECTION I. What Action Is EPA Taking Today? emission reductions through regional AGENCY II. What Comments Were Received and How control programs. New York decided to Has EPA Responded to Them? participate with the other states in the 40 CFR Part 52 III. What Role Does This Rule Play in the Ozone SIP? Northeast in an Ozone Transport [Region 2 Docket No. R02–OAR–2004–NY– IV. What Are EPA’s Conclusions? Commission (OTC) regulatory 0001; FRL–7852–5] V. Administrative Correction to Section development effort which lead to six 52.1679 EPA-Approved New York State model control measures. The New York Approval and Promulgation of Regulations rule, which was adopted by the State on Implementation Plans; New York State VI. Statutory and Executive Order Reviews January 9, 2004, incorporates a portion Implementation Plan Revision of the OTC model rule for additional I. What Action Is EPA Taking Today? NOX control measures. The emission AGENCY: Environmental Protection EPA is approving a revision to New reductions from this control measure Agency (EPA). York’s ground level ozone State will provide additional emission ACTION: Final rule. Implementation Plan (SIP) which New reductions towards attaining the one- York submitted on February 18, 2004. hour ozone standard and will be SUMMARY: The Environmental Protection The SIP revision includes amendments important in attaining the 8-hour ozone Agency (EPA) is approving a request to the following two regulations: standard. from New York to revise its State Subpart 227–2 entitled ‘‘Reasonably Implementation Plan (SIP) for ozone to IV. What Are EPA’s Conclusions? Available Control Technology (RACT) incorporate revisions to subpart 227–2 for Oxides of Nitrogen (NOX)’’ of part EPA has evaluated New York’s ‘‘Reasonably Available Control 227 entitled, ‘‘Stationary Combustion submittal for consistency with the Clean Technology (RACT) for Oxides of Installation;’’ and subpart 201–3 Air Act, EPA regulations, and EPA Nitrogen (NO )’’ of Part 227 ‘‘Stationary X entitled, ‘‘Exemptions and Trivial policy. The proposed new control Combustion Installations’’ of title 6 of Activities,’’ of part 201 entitled, measures will strengthen the SIP by the Official Compilation of Codes, Rules ‘‘Permits and Registration,’’ all of which providing additional NO emission and Regulations of the State of New X are part of title 6 of the New York Codes reductions. Accordingly, EPA is York (6NYCRR). The revision relates to of Rules and Regulations. These approving the revision to subpart 227– the control of oxides of nitrogen amended rules were adopted on January 2, as adopted on January 9, 2004, into emissions from stationary industrial 9, 2004. New York submitted the New York’s ozone SIP. Because of sources. This SIP revision consists of a regulations in order to strengthen its previous changes to subpart 201–3 control measure needed to meet the one-hour ozone SIP. New York amended independent of today’s rulemaking, EPA shortfall in emissions reduction subpart 227–2 for the purpose of will take action on the revisions to identified by EPA in New York’s one- achieving additional reductions of NOX subpart 201–3, as adopted by New York hour ozone attainment demonstration emissions in response to emission on January 9, 2004, at a later date. SIP. reduction shortfalls identified by EPA In revising subpart 227–2, New York The intended effect of this rule is to (64 FR 70364; December 16, 1999) for approve a control strategy which will deleted the final compliance date attainment of New York’s one-hour applicable to sources because the date result in emission reductions that will ozone standard. New York amended help achieve attainment of the national had passed, and sources are now subpart 201–3 to be consistent with expected to be in compliance. EPA ambient air quality standard for ozone amendments to subpart 227–2. EPA has required by the Clean Air Act. believes that the deletion makes it less determined that New York’s submittal is clear to sources obligated to comply EFFECTIVE DATE: This rule will be fully approvable as a SIP strengthening with the May 31, 1995 compliance date effective February 14, 2005. measure for New York’s one-hour in the Clean Air Act and in the ground level ozone SIP. The reader is ADDRESSES: Copies of the state previously approved SIP that they are referred to the proposed rulemaking (69 submittal(s) are available at the obliged to have complied by that date. FR 59839; October 6, 2004) for following addresses for inspection Nevertheless, deletion of the date does additional details. during normal business hours: not eliminate the effective date Environmental Protection Agency, II. What Comments Were Received and established by the prior SIP approved Region 2 Office, Air Programs Branch, How Has EPA Responded to Them? rule or the Clean Air Act and thus does 290 Broadway, 25th Floor, New York, not impact on the State and EPA’s New York 10007–1866. New York State The public comment period on EPA’s proposed approval of New York’s authority to enforce. In the event EPA Department of Environmental needs to take enforcement action, it will Conservation, Division of Air Resources, February 18, 2004 SIP submittal ended on November 5, 2004. EPA received no base penalties for noncompliance on the 625 Broadway, 2nd Floor, Albany, New final compliance date in effect at the York 12233. comments on the proposed approval action. time of the violation. FOR FURTHER INFORMATION CONTACT: Anthony (Ted) Gardella III. What Role Does This Rule Play in V. Administrative Correction to Section ([email protected]) for specific the Ozone SIP? 52.1679 EPA-Approved New York State Regulations questions on New York’s NOX RACT When EPA evaluated New York’s one- SIP revision or Kirk J. Wieber hour ozone attainment demonstrations, New York submitted part 215 ‘‘Open ([email protected]) for specific EPA determined that additional Fires’’ (state effective date June 16, questions on New York’s ozone emission reductions were needed for the 1972) as part of the SIP and EPA attainment demonstration; Air Programs State’s severe nonattainment area in incorporated it into the SIP (see 40 CFR Branch, Environmental Protection order for the State to attain the one-hour 52.1670(c)(6)). In a subsequent SIP Agency, 290 Broadway, 25th Floor, New ozone standard with sufficient surety revision dated August 10, 1979 the State York, New York 10007–1866, (212) 637– (64 FR 70364; December 16, 1999). EPA submitted a request to incorporate 3892 or (212) 637–3381, respectively. provided that the states in the Ozone additional regulations and include SUPPLEMENTARY INFORMATION: Transport Region could achieve these current versions of the regulations
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previously included in the SIP. One of distribution of power and extend the time within which a petition these regulations was part 215. responsibilities among the various for judicial review may be filed, and In EPA’s proposed approval of the levels of government, as specified in shall not postpone the effectiveness of August 10, 1979 SIP revision (46 FR Executive Order 13132 (64 FR 43255, such rule or action. This action may not 19829; April 1, 1981) EPA stated that August 10, 1999). This action merely be challenged later in proceedings to part 215 had not been changed from the approves a State rule implementing a enforce its requirements. (See section version that was incorporated into the Federal standard, and does not alter the 307(b)(2).) SIP and that no further action was relationship or the distribution of power necessary. EPA finalized that and responsibilities established in the List of Subjects in 40 CFR Part 52 rulemaking on November 12, 1981 (46 Clean Air Act. This rule also is not Environmental protection, Air FR 55690) and created a table of subject to Executive Order 13045 pollution control, Incorporation by approved regulations in section 52.1679 ‘‘Protection of Children from reference, Nitrogen dioxide, Ozone, ‘‘EPA-approved New York State Environmental Health Risks and Safety Reporting and recordkeeping regulation.’’ However, part 215 was Risks’’ (62 FR 19885, April 23, 1997), requirements, Volatile organic inadvertently not included in the because it is not economically compounds. section 52.1679 table. significant. As part of today’s rulemaking, EPA is In reviewing SIP submissions, EPA’s Dated: December 13, 2004. correcting this omission and is adding role is to approve state choices, Kathleen C. Callahan, part 215 to the table of approved New provided that they meet the criteria of Acting Regional Administrator, Region 2. York regulations. the Clean Air Act. In this context, in the I Part 52, chapter I, title 40 of the Code VI. Statutory and Executive Order absence of a prior existing requirement of Federal Regulations is amended as Reviews for the State to use voluntary consensus follows: standards (VCS), EPA has no authority Under Executive Order 12866 (58 FR to disapprove a SIP submission for PART 52—[AMENDED] 51735, October 4, 1993), this action is failure to use VCS. It would thus be not a ‘‘significant regulatory action’’ and inconsistent with applicable law for I 1. The authority citation for part 52 therefore is not subject to review by the EPA, when it reviews a SIP submission, continues to read as follows: Office of Management and Budget. For to use VCS in place of a SIP submission Authority: 42 U.S.C. 7401 et seq. this reason, this action is also not that otherwise satisfies the provisions of subject to Executive Order 13211, the Clean Air Act. Thus, the Subpart HH—New York ‘‘Actions Concerning Regulations That requirements of section 12(d) of the Significantly Affect Energy Supply, National Technology Transfer and I 2. Section 52.1670 is amended by Distribution, or Use’’ (66 FR 28355, May Advancement Act of 1995 (15 U.S.C. adding new paragraph (c)(106) to read as 22, 2001). This action merely approves 272 note) do not apply. This rule does follows: state law as meeting Federal not impose an information collection requirements and imposes no additional burden under the provisions of the § 52.1670 Identification of plan. requirements beyond those imposed by Paperwork Reduction Act of 1995 (44 * * * * * state law. Accordingly, the U.S.C. 3501 et seq.). (c) * * * Administrator certifies that this rule The Congressional Review Act, 5 will not have a significant economic (106) Revisions to the State U.S.C. 801 et seq., as added by the Small Implementation Plan submitted on impact on a substantial number of small Business Regulatory Enforcement entities under the Regulatory Flexibility February 18, 2004, by the New York Fairness Act of 1996, generally provides State Department of Environmental Act (5 U.S.C. 601 et seq.). Because this that before a rule may take effect, the Conservation which consists of control rule approves pre-existing requirements agency promulgating the rule must measures that will achieve reductions in under state law and does not impose submit a rule report, which includes a NO emissions from stationary any additional enforceable duty beyond copy of the rule, to each House of the X combustion sources that will help that required by state law, it does not Congress and to the Comptroller General achieve attainment of the national contain any unfunded mandate or of the United States. EPA will submit a ambient air quality standard for ozone. significantly or uniquely affect small report containing this rule and other governments, as described in the required information to the U.S. Senate, (i) Incorporation by reference: Unfunded Mandates Reform Act of 1995 the U.S. House of Representatives, and (A) Regulation subpart 227–2 (Pub. L. 104–4). the Comptroller General of the United ‘‘Reasonably Available Control This rule also does not have tribal States prior to publication of the rule in Technology (RACT) for Oxides of implications because it will not have a the Federal Register. A major rule Nitrogen (NOX)’’ of part 227 ‘‘Stationary substantial direct effect on one or more cannot take effect until 60 days after it Combustion Installations’’ of title 6 of Indian tribes, on the relationship is published in the Federal Register. the Official Compilation of Codes, Rules between the Federal Government and This action is not a ‘‘major rule’’ as and Regulations of the State of New Indian tribes, or on the distribution of defined by 5 U.S.C. 804(2). York (6NYCRR), filed on January 12, power and responsibilities between the Under section 307(b)(1) of the Clean 2004, and effective on February 11, Federal Government and Indian tribes, Air Act, petitions for judicial review of 2004. as specified by Executive Order 13175 this action must be filed in the United I 3. Section 52.1679 is amended by (65 FR 67249, November 9, 2000). This States Court of Appeals for the adding a new entry for part 215 under action also does not have Federalism appropriate circuit by March 14, 2005. title 6 and revising the entry for part 227, implications because it does not have Filing a petition for reconsideration by subpart 227–2 under Title 6 as follows: substantial direct effects on the States, the Administrator of this final rule does on the relationship between the national not affect the finality of this rule for the § 52.1679 EPA-approved New York State government and the States, or on the purposes of judicial review nor does it regulations.
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State New York State regulation effective EPA approved date Comments date
Title 6:
******* Part 215, Open Fires ...... 6/16/72 9/22/72, 37 FR 19814
******* Subpart 227–2, Reasonably Available Control Tech- 2/11/04 1/13/05 [insert publication and FR page citation of this nology (RACT) for Oxides of Nitrogen (NOX). notice]
*******
[FR Doc. 05–712 Filed 1–12–05; 8:45 am] Reconsideration (Second Improved TRS media, by commercial overnight courier, BILLING CODE 6560–50–P Order), published at 68 FR 50973, or by first-class or overnight U.S. Postal August 25, 2003, in CC Docket No. 98– Services mail (although we continue to 67; FCC 03–112. In the Second experience delays in receiving U.S. FEDERAL COMMUNICATIONS Improved TRS Order, the Commission Postal Service mail). The Commission’s COMMISSION required that TRS providers offer three- contractor, Natek, Inc., will receive way calling as a standard feature of TRS. hand-delivered or messenger-delivered 47 CFR Part 64 This is a summary of the Commission’s paper filings or electronic media for the [CC Docket No. 98–67, CG Docket No. 03– document DA 04–3709, released Commission’s Secretary at 236 123; DA 04–3709] November 30, 2004. When filing Massachusetts Avenue, NE., Suite 110, comments on expiration of waiver of Washington, DC 20002. The filing hours Expiration of Waiver of Three-Way three-way calling requirement for at this location are 8 a.m. to 7 p.m. All Calling Requirement for Providers of providers of TRS, please reference CC hand deliveries must be held together Telecommunications Relay Services Docket No. 98–67 and CG Docket No. with rubber bands or fasteners. Any 03–123. Comments may be filed using envelopes must be disposed of before AGENCY: Federal Communications the Commission’s Electronic Comment entering the building. Commercial and Commission. Filing System (ECFS) or by filing paper electronic media sent by overnight mail ACTION: Expiration of waiver; request for copies. See Electronic Filing of (other than U.S. Postal Service Express comment. Documents in Rulemaking Proceedings, Mail and Priority Mail) must be sent to SUMMARY: In this document, the 63 FR 24121, May 1, 1998. Comments 9300 East Hampton Drive, Capitol Commission announces that the one- filed through the ECFS can be sent as an Heights, MD 20743. U.S. Postal Service year waiver of the requirement that electronic file via the Internet to http:/ first-class mail, Express Mail, and telecommunications relay service (TRS) /www.fcc.gov/e-file/ecfs.html. Priority Mail should be addressed to 445 providers (including providers of Generally, only one copy of an 12th Street, SW., Washington, DC captioned telephone service) offer three- electronic submission must be filed. If 20554. All filings must be addressed to way calling will expire on February 25, multiple docket or rulemaking numbers the Commission’s Secretary, Marlene H. 2005. This document seeks comment on appear in the caption of this proceeding, Dortch, Office of the Secretary, Federal whether TRS providers will be able to however, commenters must transmit Communications Commission, 445 12th offer this feature as of that date, or one electronic copy of the comment and Street, SW., Room TW–B204 whether it is necessary to extend this reply comment to each docket or Washington, DC 20554. Parties who waiver. This document also seek rulemaking number referenced in the choose to file by paper should also comment on whether, instead of a caption. In completing the transmittal submit their comment and reply waiver, the requirement might be screen, commenters should include comment on diskette. These diskettes modified or clarified, and, if so, how. their full name, Postal Service mailing should be submitted, along with three DATES: One-year waiver expires address, and the applicable docket or paper copies, to: Dana Jackson, February 25, 2005. Interested parties rulemaking number. Parties may also Consumer & Governmental Affairs may file comments in this proceeding submit electronic comment and reply Bureau, Disability Rights Office, 445 on or before December 17, 2004. Reply comment by Internet e-mail. To get 12th Street, SW., Room CY–A626, comments may be filed on or before filing instructions, commenters should Washington, DC 20554. Such a December 30, 2004. send an e-mail to [email protected], and submission should be on a 3.5 inch should include the following words in diskette formatted in an IBM compatible ADDRESSES: Federal Communications the body of the message, ‘‘get form format using Word 97 or compatible Commission, 445 12th Street, SW.,
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should also include the following Commission waive the three-way calling Regulations System, phrase ‘‘Disk Copy—Not an Original.’’ requirement adopted in the Second OUSD(AT&L)DPAP(DAR), IMD 3C132, Each diskette should contain only one Improved TRS Order. AT&T asserted 3062 Defense Pentagon, Washington, DC party’s pleadings, preferably in a single that it was not possible for the TRS 20301–3062. Telephone (703) 602–0311; electronic file. In addition, commenters facility to set up a three-way call, facsimile (703) 602–0350. must send diskette copies to the subject to clarification regarding how Correction Commission’s copy contractor, Best three-way calling may be provided in Copy and Printing (BCPI), Inc., Portals compliance with the Commission’s TRS PART 206—[CORRECTED] II, 445 12th Street, SW., Room CY–B402, regulations. On December 11, 2003, Washington, DC 20554. Pursuant to Ultratec, Inc. and Sprint Corporation I In the issue of Wednesday, December section 1.1206 of the Commission’s filed a petition seeking clarification that 15, 2004, on page 74991, in the second rules, 47 CFR 1.1206, this proceeding the three-way calling requirement either column, amendatory instruction 2 is will be conducted as a permit-but- does not apply to captioned telephone corrected to read as follows: disclose proceeding in which ex parte service or that a TRS provider complies I 2. Section 206.001 is revised to read as communications are subject to with the rule regardless of the method follows: disclosure. The full text of this used to set up the three-way call. (See 206.001 Applicability. document and copies of any Petition for Clarification by Ultratec, subsequently filed documents in this Inc. and Sprint Corporation, CC Docket (b) As authorized by 10 U.S.C. 1091, matter will be available for public No. 98–67, CG Docket No. 03–123 (file contracts awarded to individuals using inspection and copying during regular December 11, 2003)). On February 24, the procedures at 237.104(b)(ii) are business hours at the FCC Reference 2004, in response to these petitions, the exempt from the competitive Information Center, Portals II, 445 12th Consumer & Governmental Affairs requirements of FAR part 6. Street, SW., Room CY–A257, Bureau released an Order waiving for (S–70) Also excepted from this part Washington, DC 20554. This document one year the requirement that TRS are follow-on production contracts for and copies of subsequently filed providers (including providers of products developed pursuant to the documents in this matters may also be captioned telephone service) offer three- ‘‘other transactions’’ authority of 10 purchased from the Commission’s way calling. (Telecommunications Relay U.S.C. 2371 for prototype projects duplicating contract, BCPI, Inc., Portals Services and Speech-to-Speech Services when— (1) The other transaction agreement II, 445 12th Street, SW., Room CY–B402, for Individuals with Hearing and Speech includes provisions for a follow-on Washington, DC 20554. Customers may Disabilities, CC Docket 98–67, DA 04– contact BCPI, Inc. at their Web site production contract; 465, 19 FCC Rcd 2993 (February 24, (2) The contracting officer receives http://www.bcpiweb.com or call 1–800– 2004)). In view of the pending 378–3160. To request materials in sufficient information from the expiration date of the one-year February agreements officer and the project accessible formats for people with 24, 2004, waiver, the Commission now disabilities (Braille, large print, manager for the prototype other seek comment on whether this waiver transaction agreement, which electronic files, audio format), send an should be left to expire or be extended, e-mail to [email protected] or call the documents that the conditions set forth or whether the rule should be modified in 10 U.S.C. 2371 note, subsections (f)(2) Consumer & Governmental Affairs or clarified and, if so, how. Bureau at (202) 418–0530 (voice), (202) (A) and (B) (see 32 CFR 3.9(d)), have 418–0432 (TTY). This document can Federal Communications Commission. been met; and also be downloaded in Word or Portable Jay Keithley, (3) The contracting officer establishes Document Format (PDF) at: http:// Deputy Chief, Consumer & Governmental quantities and prices for the follow-on www.fcc.gov/cgb/dro. Affairs Bureau. production contract that do not exceed [FR Doc. 05–651 Filed 1–12–05; 8:45 am] the quantities and target prices Synopsis BILLING CODE 6712–01–P established in the other transaction In the June 17, 2003 Second Improved agreement. TRS Order, the Commission required Michele P. Peterson, that TRS providers offer three-way DEPARTMENT OF DEFENSE calling as a standard feature of TRS. In Editor, Defense Acquisition Regulations System. the August 1, 2003 Declaratory Ruling, 48 CFR Part 206 the Commission recognized captioned [FR Doc. 05–760 Filed 1–12–05; 8:45 am] [DFARS Case 2003–D017] telephone service as a type of TRS. (See BILLING CODE 5001–08–P Telecommunications Relay Services and Defense Federal Acquisition Speech-to-Speech Services for Regulation Supplement; Competition DEPARTMENT OF DEFENSE Individuals with Hearing and Speech Requirements; Correction Disabilities, published at 68 FR 55898, 48 CFR Parts 225 and 252 September 29, 2003, in CC Docket No. AGENCY: Department of Defense (DoD). 98–67; FCC 03–190. The Declaratory ACTION: Correction to final rule. [DFARS Case 2004–D013] Ruling did not waive the requirement that providers of captioned telephone SUMMARY: DoD is issuing a correction to Defense Federal Acquisition service offer a three-way calling feature. the final rule published at 69 FR 74990– Regulation Supplement; Free Trade On September 24, 2003, AT&T Corp. 74991 on December 15, 2004, pertaining Agreements—Australia and Morocco to competition requirements. The (AT&T) filed a petition for limited AGENCY: Department of Defense (DoD). correction shows that the change to 48 reconsideration of the Second Improved ACTION: CFR part 206, section 206.001, revises Interim rule with request for TRS Order. (See AT&T, AT&T Petition comments. for Limited Reconsideration and for only paragraph (b) of section 206.001. Waiver, CC Docket No. 98–67, CG EFFECTIVE DATES: December 15, 2004. SUMMARY: DoD has issued an interim Docket No. 03–123 (filed September 24, FOR FURTHER INFORMATION CONTACT: Ms. rule amending the Defense Federal 2003)). AT&T requested that the Michele Peterson, Defense Acquisition Acquisition Regulation Supplement
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(DFARS) to implement new Free Trade following changes in terminology businesses and other interested parties. Agreements with Australia and relating to trade agreements: DoD also will consider comments from Morocco. In addition, the rule revises • Substitution of the term ‘‘World small entities concerning the affected terminology relating to international Trade Organization Government DFARS subparts in accordance with 5 trade agreements and the Trade Procurement Agreement’’ in all places U.S.C. 610. Such comments should be Agreements Act, updates the list of where the term ‘‘Trade Agreements Act’’ submitted separately and should cite ‘‘least developed countries,’’ and was used to mean the World Trade DFARS Case 2004–D013. Organization Government Procurement extends nondiscriminatory treatment to C. Paperwork Reduction Act Caribbean Basin country construction Agreement. • material. Redefinition of ‘‘designated This interim rule affects the country’’ to include World Trade certification and information collection DATES: Effective Date: January 13, 2005. Organization Government Procurement requirements in the provisions at Comment date: Comments on the Agreement countries, Free Trade DFARS 252.225–7020 and 252.225– interim rule should be submitted to the Agreement countries, least developed 7035, currently approved under Office address shown below on or before countries, and Caribbean Basin of Management and Budget Control March 14, 2005, to be considered in the countries. Free Trade Agreement Number 0704–0229. The impact, formation of the final rule. countries and Caribbean Basin countries however, is negligible. ADDRESSES: You may submit comments, are now also designated countries. Each D. Determination To Issue an Interim identified by DFARS Case 2004–D013, of these terms will retain a separate using any of the following methods: Rule • definition because, in some instances, Federal eRulemaking Portal: http:// the regulation does not apply to all A determination has been made under www.regulations.gov. Follow the designated countries, but only to some the authority of the Secretary of Defense instructions for submitting comments. that urgent and compelling reasons exist • of the specific subsets. Defense Acquisition Regulations • A revised list of least developed to publish an interim rule prior to Web site: http://emissary.acq.osd.mil/ countries that are designated as eligible affording the public an opportunity to dar/dfars.nsf/pubcomm. Follow the countries under the Trade Agreements comment. This interim rule implements instructions for submitting comments. • Act. new Free Trade Agreements with E-mail: [email protected]. Include • Amendment of the clause at DFARS Australia and Morocco, as approved by DFARS Case 2004–D013 in the subject 252.225–7045, Balance of Payments Congress in the United States-Australia line of the message. • Program—Construction Material Under Free Trade Agreement Implementation Fax: (703) 602–0350. Trade Agreements, to extend Act (Pub. L. 108–286) and the United • Mail: Defense Acquisition nondiscriminatory treatment to all States-Morocco Free Trade Agreement Regulations Council, Attn: Ms. Amy designated country construction Implementation Act (Pub. L. 108–302). Williams, OUSD(AT&L)DPAP(DAR), material, including Caribbean Basin These agreements waive the IMD 3C132, 3062 Defense Pentagon, country construction material. Federal applicability of the Buy American Act Washington, DC 20301–3062. Register notices issued by the United for some foreign supplies and • Hand Delivery/Courier: Defense States Trade Representative under the construction materials from Australia Acquisition Regulations Council, Caribbean Basin Trade Initiative state and Morocco, and specify procurement Crystal Square 4, Suite 200A, 241 18th that products of the listed Caribbean procedures designed to ensure fairness. Street, Arlington, VA 22202–3402. All comments received will be posted Basin countries shall continue to be The new Free Trade Agreements became to http://emissary.acq.osd.mil/dar/ treated as eligible products (unless effective on January 1, 2005. Comments dfars.nsf. excluded from duty-free treatment received in response to this interim rule under 19 U.S.C. 2703(b)). This change is will be considered in the formation of FOR FURTHER INFORMATION CONTACT: Ms. consistent with the definition of the final rule. Amy Williams, (703) 602–0328. ‘‘eligible product’’ at 19 U.S.C. 2518(4). SUPPLEMENTARY INFORMATION: This rule was not subject to Office of List of Subjects in 48 CFR Parts 225 and Management and Budget review under 252 A. Background Executive Order 12866, dated Government procurement. This interim rule amends DFARS part September 30, 1993. 225 and corresponding provisions and Michele P. Peterson, clauses to implement new Free Trade B. Regulatory Flexibility Act Editor, Defense Acquisition Regulations Agreements with Australia and DoD does not expect this rule to have System. Morocco, as approved by Congress in a significant economic impact on a I Therefore, 48 CFR parts 225 and 252 the United States-Australia Free Trade substantial number of small entities are amended as follows: Agreement Implementation Act (Pub. L. within the meaning of the Regulatory I 1. The authority citation for 48 CFR 108–286) and the United States- Flexibility Act, 5 U.S.C. 601, et seq. parts 225 and 252 continues to read as Morocco Free Trade Agreement Although the rule opens up Government follows: Implementation Act (Pub. L. 108–302). procurement to the products of Authority: 41 U.S.C. 421 and 48 CFR The new Free Trade Agreements waive Australia and Morocco, DoD does not Chapter 1. the applicability of the Buy American believe there will be a significant Act for some foreign supplies and economic impact on U.S. small PART 225—FOREIGN ACQUISITION construction materials from Australia businesses. DoD applies the trade I 2. Section 225.103 is amended by and Morocco, and specify procurement agreements to only those non-defense revising paragraph (a)(i)(B) to read as procedures designed to ensure fairness. items listed at DFARS 225.401–70. follows: In addition, at the request of the United Acquisitions below $100,000 that are set States Trade Representative and for aside for small businesses are exempt. 225.103 Exceptions. consistency with the interim FAR rule Therefore, DoD has not performed an (a)(i) * * * published at 69 FR 77870 on December initial regulatory flexibility analysis. (B) For procurements covered by the 28, 2004, this DFARS rule makes the DoD invites comments from small World Trade Organization Government
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Procurement Agreement, the Under (ii) * * * I 10. Section 252.225–7013 is amended Secretary of Defense (Acquisition, (C) * * * (If the low offer is a by revising the clause date, paragraph Technology, and Logistics) has qualifying country offer from a country (a)(2), paragraph (h) introductory text, determined that it is inconsistent with listed at 225.872–1(b), execute a paragraph (h)(11), and paragraph (i) the public interest to apply the Buy determination in accordance with introductory text to read as follows: American Act to end products that are 225.872–4.) 252.225–7013 Duty-Free Entry. substantially transformed in the United * * * * * * * * * * States. I 7. Section 225.901 is amended by * * * * * revising paragraph (2) to read as follows: Duty-Free Entry (Jan 2005) I 3. Section 225.401–70 is amended by (a) * * * 225.901 Policy. revising the first sentence to read as (2) Eligible product means— follows: * * * * * (i) Designated country end product as (2) Eligible products (end products defined in the Trade Agreements clause of 225.401–70 Products subject to trade but not components) under contracts this contract; agreements. covered by the World Trade (ii) Free Trade Agreement country end Acquisitions of end products in the Organization Government Procurement product as defined in the Trade Agreements following Federal supply groups (FSG) Agreement or a Free Trade Agreement; clause of this contract; are covered by trade agreements if the and (iii) End product of Australia, Canada, value of the acquisition is at or above Chile, Mexico, or Singapore as defined in the * * * * * Buy American Act—Free Trade the applicable trade agreement I 8. Section 225.7501 is amended as Agreements—Balance of Payments Program threshold and no exception applies. follows: clause of this contract; or *** I a. By redesignating paragraphs (a)(3) (iv) Canadian end product as defined in * * * * * through (a)(5) as paragraphs (a)(4) Alternate I of the Buy American Act—Free I 4. Section 225.402 is revised to read as through (a)(6), respectively; Trade Agreements—Balance of Payments Program clause of this contract. follows: I b. By adding a new paragraph (a)(3); and * * * * * 225.402 General. I c. By revising paragraph (b) to read as (h) The Contractor shall notify the Administrative Contracting Officer (ACO) in To estimate the value of the follows: acquisition, use the total estimated writing of any purchase of eligible products 225.7501 Policy. or qualifying country supplies to be accorded value of end products covered by trade duty-free entry, that are to be imported into agreements (see 225.401–70). * * * * * the United States for delivery to the I 5. Section 225.403 is amended by (a) * * * Government or for incorporation in end items revising the section heading, paragraph (3) The acquisition is covered by the to be delivered to the Government. The (c) introductory text, and paragraph (c)(i) World Trade Organization Government Contractor shall furnish the notice to the introductory text to read as follows: Procurement Agreement; ACO immediately upon award to the * * * * * supplier and shall include in the notice— 225.403 World Trade Organization * * * * * Government Procurement Agreement and (b) After receipt of offers— (11) Country of origin; and Free Trade Agreements. (1) The evaluated low offer (see Subpart 225.5) is an offer of an end * * * * * (c) For acquisitions of supplies product that— (i) This clause does not apply to purchases covered by the World Trade (i) Is a qualifying country end of eligible products or qualifying country Organization Government Procurement product; supplies in connection with this contract if— Agreement, acquire only U.S.-made, (ii) Is an eligible product; or qualifying country, or designated * * * * * (iii) Is a nonqualifying country end country end products unless— product, but application of the Balance I 11. Section 252.225–7020 is revised to (i) The contracting officer determines of Payments Program evaluation factor read as follows: that offers of U.S.-made, qualifying would not result in award on a domestic country, or designated country end 252.225–7020 Trade Agreements offer; or products from responsive, responsible Certificate. (2) The construction material is an offerors are either— eligible product; or As prescribed in 225.1101(5), use the * * * * * * * * * * following provision: I 6. Section 225.502 is amended by Trade Agreements Certificate (Jan 2005) revising paragraph (b) introductory text, PART 252—SOLICITATION paragraph (b)(i), and paragraph (c)(ii)(C) PROVISIONS AND CONTRACT (a) Definitions. Designated country end product, nondesignated country end product, in the parenthetical to read as follows: CLAUSES qualifying country end product, and U.S.- 225.502 Application. 252.212–7001 [Amended] made end product have the meanings given in the Trade Agreements clause of this (b) Use the following procedures I 9. Section 252.212–7001 is amended as solicitation. instead of the procedures in FAR follows: (b) Evaluation. The Government— 25.502(b) for acquisitions subject to the I a. By revising the clause date to read (1) Will evaluate offers in accordance with World Trade Organization Government ‘‘(JAN 2005)’’; the policies and procedures of part 225 of the Procurement Agreement: I b. In paragraph (b), in entry 252.225– Defense Federal Acquisition Regulation (i) Consider only offers of U.S.-made, 7021, by removing ‘‘(DEC 2004)’’ and Supplement; and qualifying country, or designated (2) Will consider only offers of end adding in its place ‘‘(JAN 2005)’’; and products that are U.S.-made, qualifying country end products, except as I c. In paragraph (b), in entry 252.225– country, or designated country end products permitted by 225.403. 7036, by removing ‘‘(DEC 2004)’’ and unless— * * * * * ‘‘(JAN 2004)’’ and adding in both places (i) There are no offers of such end (c) * * * ‘‘(JAN 2005)’’. products;
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(ii) The offers of such end products are (i) A World Trade Organization article of commerce with a name, character, insufficient to fulfill the Government’s Government Procurement Agreement (WTO or use distinct from that of the article or requirements; or GPA) country (Aruba, Austria, Belgium, articles from which it was transformed. The (iii) A national interest waiver has been Canada, Cyprus, Czech Republic, Denmark, term refers to a product offered for purchase granted. Estonia, Finland, France, Germany, Greece, under a supply contract, but for purposes of (c) Certification and identification of Hong Kong, Hungary, Iceland, Ireland, Israel, calculating the value of the end product country of origin. Italy, Japan, Korea (Republic of), Latvia, includes services (except transportation (1) For all line items subject to the Trade Liechtenstein, Lithuania, Luxembourg, Malta, services) incidental to its supply, provided Agreements clause of this solicitation, the Netherlands, Norway, Poland, Portugal, that the value of those incidental services offeror certifies that each end product to be Singapore, Slovak Republic, Slovenia, Spain, does not exceed the value of the product delivered under this contract, except those Sweden, Switzerland, or the United itself. listed in paragraph (c)(2) of this provision, is Kingdom); (8) Nondesignated country end product a U.S.-made, qualifying country, or (ii) A Free Trade Agreement country means any end product that is not a U.S.- designated country end product. (Australia, Canada, Chile, Mexico, Morocco, made end product or a designated country (2) The following supplies are other or Singapore); end product. nondesignated country end products: (iii) A least developed country (9) Qualifying country means any country (Line Item Number)(Country of Origin) (Afghanistan, Angola, Bangladesh, Benin, set forth in subsection 225.872–1 of the Bhutan, Burkina Faso, Burundi, Cambodia, Defense Federal Acquisition Regulation (End of provision) Cape Verde, Central African Republic, Chad, Supplement. I 12. Section 252.225–7021 is amended Comoros, Democratic Republic of Congo, (10) Qualifying country end product by revising the clause date and Djibouti, East Timor, Equatorial Guinea, means— paragraphs (a) through (c) to read as Eritrea, Ethiopia, Gambia, Guinea, Guinea- (i) An unmanufactured end product mined or produced in a qualifying country; or follows: Bissau, Haiti, Kiribati, Laos, Lesotho, Madagascar, Malawi, Maldives, Mali, (ii) An end product manufactured in a 252.225–7021 Trade Agreements. Mauritania, Mozambique, Nepal, Niger, qualifying country if the cost of the following types of components exceeds 50 percent of * * * * * Rwanda, Samoa, Sao Tome and Principe, Senegal, Sierra Leone, Solomon Islands, the cost of all its components: Trade Agreements (Jan 2005) Somalia, Tanzania, Togo, Tuvalu, Uganda, (A) Components mined, produced, or Vanuatu, Yemen, or Zambia); or manufactured in a qualifying country. (a) Definitions. As used in this clause— (B) Components mined, produced, or (1) Caribbean Basin country end product— (iv) A Caribbean Basin country (Antigua and Barbuda, Aruba, Bahamas, Barbados, manufactured in the United States. (i) Means an article that— (C) Components of foreign origin of a class Belize, British Virgin Islands, Costa Rica, (A) Is wholly the growth, product, or or kind for which the Government has Dominica, Dominican Republic, El Salvador, manufacture of a Caribbean Basin country; or determined that sufficient and reasonably Grenada, Guatemala, Guyana, Haiti, (B) In the case of an article that consists in available commercial quantities of a Honduras, Jamaica, Montserrat, Netherlands whole or in part of materials from another satisfactory quality are not mined, produced, country or instrumentality, has been Antilles, Nicaragua, St. Kitts and Nevis, St. or manufactured in the United States. substantially transformed in a Caribbean Lucia, St. Vincent and the Grenadines, or (11) United States means the United States, Basin country into a new and different article Trinidad and Tobago). its possessions, Puerto Rico, and any other of commerce with a name, character, or use (4) Designated country end product means place subject to its jurisdiction, but does not distinct from that of the article or articles a WTO GPA country end product, a Free include leased bases or trust territories. from which it was transformed. The term Trade Agreement country end product, a (12) U.S.-made end product means an refers to a product offered for purchase under least developed country end product, or a article that— a supply contract, but for purposes of Caribbean Basin country end product. (i) Is mined, produced, or manufactured in calculating the value of the end product (5) End product means those articles, the United States; or includes services (except transportation materials, and supplies to be acquired under (ii) Is substantially transformed in the services) incidental to its supply, provided this contract for public use. United States into a new and different article that the value of those incidental services (6) Free Trade Agreement country end of commerce with a name, character, or use does not exceed the value of the product product means an article that— distinct from that of the article or articles itself; and (i) Is wholly the growth, product, or from which it was transformed. (ii) Excludes products, other than manufacture of a Free Trade Agreement (b) Unless otherwise specified, this clause petroleum and any product derived from country; or applies to all items in the Schedule. petroleum, that are not granted duty-free (ii) In the case of an article that consists in (c) The Contractor shall deliver under this treatment under the Caribbean Basin whole or in part of materials from another contract only U.S.-made, qualifying country, Economic Recovery Act (19 U.S.C. 2703(b)). country or instrumentality, has been or designated country end products unless— These exclusions presently consist of— substantially transformed in a Free Trade (1) In its offer, the Contractor specified (A) Textiles, apparel articles, footwear, Agreement country into a new and different delivery of other nondesignated country end handbags, luggage, flat goods, work gloves, article of commerce with a name, character, products in the Trade Agreements Certificate leather wearing apparel, and handloomed, or use distinct from that of the article or provision of the solicitation; and handmade, or folklore articles that are not articles from which it was transformed. The (2)(i) Offers of U.S.-made end products or granted duty-free status in the Harmonized term refers to a product offered for purchase qualifying, designated, Caribbean Basin, or Tariff Schedule of the United States under a supply contract, but for purposes of Free Trade Agreement country end products (HTSUS); calculating the value of the end product from responsive, responsible offerors are (B) Tuna, prepared or preserved in any includes services (except transportation either not received or are insufficient to fill manner in airtight containers; and services) incidental to its supply, provided the Government’s requirements; or (C) Watches and watch parts (including that the value of those incidental services (ii) A national interest waiver has been cases, bracelets, and straps) of whatever type, does not exceed the value of the product granted. including, but not limited to, mechanical, itself. * * * * * quartz digital, or quartz analog, if such (7) Least developed country end product watches or watch parts contain any material means an article that— I 13. Section 252.225–7035 is revised to that is the product of any country to which (i) Is wholly the growth, product, or read as follows: the HTSUS column 2 rates of duty (HTSUS manufacture of a least developed country; or General Note 3(b)) apply. (ii) In the case of an article that consists in 252.225–7035 Buy American Act—Free (2) Component means an article, material, whole or in part of materials from another Trade Agreements—Balance of Payments or supply incorporated directly into an end country or instrumentality, has been Program Certificate. product. substantially transformed in a least As prescribed in 225.1101(9), use the (3) Designated country means— developed country into a new and different following provision:
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Buy American Act—Free Trade I d. In Alternate I by redesignating Defense Federal Acquisition Regulation Agreements—Balance of Payments Program paragraph (a)(6) as paragraph (a)(4). The Supplement. Certificate (Jan 2005) revised text reads as follows: (7) Qualifying country component means a (a) Definitions. Domestic end product, end component mined, produced, or product of Australia, Canada, Chile, Mexico, 252.225–7036 Buy American Act—Free manufactured in a qualifying country. or Singapore, foreign end product, qualifying Trade Agreements—Balance of Payments (8) Qualifying country end product country end product, and United States have Program. means— (i) An unmanufactured end product mined the meanings given in the Buy American * * * * * Act—Free Trade Agreements—Balance of or produced in a qualifying country; or (ii) An end product manufactured in a Payments Program clause of this solicitation. Buy American Act—Free Trade qualifying country if the cost of the following (b) Evaluation. The Government— Agreements—Balance of Payments Program types of components exceeds 50 percent of (1) Will evaluate offers in accordance with (Jan 2005) the cost of all its components: the policies and procedures of part 225 of the (a) Definitions. As used in this clause— (A) Components mined, produced, or Defense Federal Acquisition Regulation (1) Component means an article, material, manufactured in a qualifying country. Supplement; and or supply incorporated directly into an end (B) Components mined, produced, or (2) For line items subject to Free Trade product. manufactured in the United States. Agreements, will evaluate offers of qualifying (2) Domestic end product means— (C) Components of foreign origin of a class country end products or end products of (i) An unmanufactured end product that or kind for which the Government has Australia, Canada, Chile, Mexico, or has been mined or produced in the United determined that sufficient and reasonably Singapore without regard to the restrictions States; or available commercial quantities of a of the Buy American Act or the Balance of (ii) An end product manufactured in the satisfactory quality are not mined, produced, Payments Program. United States if the cost of its qualifying or manufactured in the United States. (c) Certifications and identification of country components and its components that (9) United States means the United States, country of origin. are mined, produced, or manufactured in the its possessions, Puerto Rico, and any other (1) For all line items subject to the Buy United States exceeds 50 percent of the cost place subject to its jurisdiction, but does not American Act—Free Trade Agreements— of all its components. The cost of include leased bases or trust territories. Balance of Payments Program clause of this components includes transportation costs to solicitation, the offeror certifies that— the place of incorporation into the end * * * * * (i) Each end product, except the end product and U.S. duty (whether or not a (c) The Contractor shall deliver under this products listed in paragraph (c)(2) of this duty-free entry certificate is issued). Scrap contract only domestic end products unless, provision, is a domestic end product; and generated, collected, and prepared for in its offer, it specified delivery of qualifying (ii) Components of unknown origin are processing in the United States is considered country end products, end products of Australia, Canada, Chile, Mexico, or considered to have been mined, produced, or domestic. A component is considered to have Singapore, or other foreign end products in manufactured outside the United States or a been mined, produced, or manufactured in the Buy American Act—Free Trade qualifying country. the United States (regardless of its source in Agreements—Balance of Payments Program (2) The offeror shall identify all end fact) if the end product in which it is Certificate provision of the solicitation. If the products that are not domestic end products. incorporated is manufactured in the United Contractor certified in its offer that it will (i) The offeror certifies that the following States and the component is of a class or kind deliver a qualifying country end product or supplies are qualifying country (except for which the Government has determined an end product of Australia, Canada, Chile, Australian or Canadian) end products: that— Mexico, or Singapore, the Contractor shall (Line Item Number)(Country of Origin) (A) Sufficient and reasonably available deliver a qualifying country end product, an commercial quantities of a satisfactory end product of Australia, Canada, Chile, (ii) The offeror certifies that the following quality are not mined, produced, or supplies are end products of Australia, Mexico, or Singapore, or, at the Contractor’s manufactured in the United States; or option, a domestic end product. Canada, Chile, Mexico, or Singapore: (B) It is inconsistent with the public (Line Item Number)(Country of Origin) interest to apply the restrictions of the Buy * * * * * American Act. (iii) The following supplies are other 252.225–7044 [Amended] foreign end products, including end products (3) End product means those articles, manufactured in the United States that do materials, and supplies to be acquired under I 15. Section 252.225–7044 is amended not qualify as domestic end products. this contract for public use. as follows: (Line Item Number)(Country of Origin (If (4) End product of Australia, Canada, I a. By revising the clause date to read known)) Chile, Mexico, or Singapore means an article ‘‘(JAN 2005)’’; and that— I (End of provision) b. In paragraph (a), in the definition of (i) Is wholly the growth, product, or ‘‘Cost of components’’, in the second Alternate I (Jan 2005) manufacture of Australia, Canada, Chile, Mexico, or Singapore; or sentence of paragraph (2), by removing As prescribed in 225.1101(9), substitute the (ii) In the case of an article that consists in ‘‘end product’’ and adding in its place phrase ‘‘Canadian end product’’ for the whole or in part of materials from another ‘‘construction material’’. phrase ‘‘end product of Australia, Canada, country or instrumentality, has been I 16. Section 252.225–7045 is revised to Chile, Mexico, or Singapore’’ in paragraph (a) substantially transformed in Australia, read as follows: of the basic provision; and substitute the Canada, Chile, Mexico, or Singapore into a phrase ‘‘Canadian end products’’ for the new and different article of commerce with 252.225–7045 Balance of Payments phrase ‘‘end products of Australia, Canada, a name, character, or use distinct from that Program—Construction Material Under Chile, Mexico, or Singapore’’ in paragraphs of the article or articles from which it was Trade Agreements. (b) and (c)(2)(ii) of the basic provision. transformed. The term refers to a product As prescribed in 225.7503(b), use the I 14. Section 252.225–7036 is amended offered for purchase under a supply contract, following clause: as follows: but for purposes of calculating the value of I the end product includes services (except Balance of Payments Program—Consturction a. By revising the clause date and Material Under Trade Agreements (Jan paragraphs (a) and (c); transportation services) incidental to its supply, provided that the value of those 2005) I b. In Alternate I by removing ‘‘(JAN incidental services does not exceed the value (a) Definitions. As used in this clause— 2004)’’ and adding in its place ‘‘(JAN of the product itself. Caribbean Basin country construction 2005)’’; (5) Foreign end product means an end material means a construction material that— I c. In Alternate I introductory text by product other than a domestic end product. - removing ‘‘(a)(6)’’ both places it appears (6) Qualifying country means any country (1) Is wholly the growth, product, or and adding in its place ‘‘(a)(4)’’; and set forth in subsection 225.872–1 of the manufacture of a Caribbean Basin country; or
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(2) In the case of a construction material Belize, British Virgin Islands, Costa Rica, (c) The Contractor shall use only domestic that consists in whole or in part of materials Dominica, Dominican Republic, El Salvador, or designated country construction material from another country, has been substantially Grenada, Guatemala, Guyana, Haiti, in performing this contract, except for— transformed in a Caribbean Basin country Honduras, Jamaica, Montserrat, Netherlands (1) Construction material valued at or into a new and different construction Antilles, Nicaragua, St. Kitts and Nevis, St. below the simplified acquisition threshold in material distinct from the materials from Lucia, St. Vincent and the Grenadines, or which it was transformed. Trinidad and Tobago). part 2 of the Federal Acquisition Regulation; Component means any article, material, or Designated country construction material or supply incorporated directly into means a construction material that is a WTO (2) The construction material or construction material. GPA country construction material, a Free components listed by the Government as Construction material means an article, Trade Agreement country construction follows: material, or supply brought to the material, a least developed country [Contracting Officer to list applicable construction site by the Contractor or a construction material, or a Caribbean Basin excepted materials or indicate ‘‘none’’] subcontractor for incorporation into the country construction material. (End of clause) building or work. The term also includes an Domestic construction material means— item brought to the site preassembled from (1) An unmanufactured construction Alternate I (Jan 2005) articles, materials, or supplies. However, material mined or produced in the United As prescribed in 225.7503(b), delete the emergency life safety systems, such as States; or emergency lighting, fire alarm, and audio (2) A construction material manufactured definitions of ‘‘designated country’’ and evacuation systems, that are discrete systems in the United States, if the cost of its ‘‘designated country construction material’’ incorporated into a public building or work components mined, produced, or from the definitions in paragraph (a) of the and that are produced as complete systems, manufactured in the United States exceeds basic clause, add the following definition of are evaluated as a single and distinct 50 percent of the cost of all its components. ‘‘Australian, Chilean, or Moroccan construction material regardless of when or Components of foreign origin of the same construction material’’ to paragraph (a) of the how the individual parts or components of class or kind for which nonavailability basic clause, and substitute the following those systems are delivered to the determinations have been made are treated as paragraphs (b) and (c) for paragraphs (b) and construction site. Materials purchased domestic. (c) of the basic clause: directly by the Government are supplies, not Free Trade Agreement country construction material. construction material means a construction Australian, Chilean, or Moroccan Cost of components means— material that— construction material means a construction (1) For components purchased by the (1) Is wholly the growth, product, or material that— Contractor, the acquisition cost, including manufacture of a Free Trade Agreement (1) Is wholly the growth, product, or transportation costs to the place of country; or manufacture of Australia, Chile, or Morocco; incorporation into the end product (whether (2) In the case of a construction material or or not such costs are paid to a domestic firm), that consists in whole or in part of materials (2) In the case of a construction material and any applicable duty (whether or not a from another country, has been substantially that consists in whole or in part of materials duty-free entry certificate is issued); or transformed in a Free Trade Agreement from another country, has been substantially (2) For components manufactured by the country into a new and different construction Contractor, all costs associated with the material distinct from the material from transformed in Australia, Chile, or Morocco manufacture of the component, including which it was transformed. into a new and different construction transportation costs as described in Least developed country construction material distinct from the materials from paragraph (1) of this definition, plus material means a construction material that— which it was transformed. allocable overhead costs, but excluding (1) Is wholly the growth, product, or (b) This clause implements the Balance of profit. Cost of components does not include manufacture of a least developed country; or Payments Program by providing a preference any costs associated with the manufacture of (2) In the case of a construction material for domestic construction material. In the construction material. that consists in whole or in part of materials addition, the Contracting Officer has Designated country means— from another country has been substantially determined that the WTO GPA and all Free (1) A World Trade Organization transformed in a least developed country into Trade Agreements except NAFTA apply to Government Procurement Agreement (WTO a new and different construction material GPA) country (Aruba, Austria, Belgium, distinct from the materials from which it was this acquisition. Therefore, the Balance of Canada, Cyprus, Czech Republic, Denmark, transformed. Payments Program restrictions are waived for Estonia, Finland, France, Germany, Greece, United States means the 50 States and the WTO GPA country, Australian, Chilean, or Hong Kong, Hungary, Iceland, Ireland, Israel, District of Columbia, U.S. territories and Moroccan, least developed country, or Italy, Japan, Korea (Republic of), Latvia, possessions, Puerto Rico, the Northern Caribbean Basin country construction Liechtenstein, Lithuania, Luxembourg, Malta, Mariana Islands, and any other place subject material. Netherlands, Norway, Poland, Portugal, to U.S. jurisdiction, but does not include (c) The Contractor shall use only domestic, Singapore, Slovak Republic, Slovenia, Spain, leased bases. WTO GPA country, Australian, Chilean, or Sweden, Switzerland, or the United WTO GPA country construction material Moroccan, least developed country, or Kingdom); means a construction material that— Caribbean Basin country construction (2) A Free Trade Agreement country (1) Is wholly the growth, product, or (Australia, Canada, Chile, Mexico, Morocco, manufacture of a WTO GPA country; or material in performing this contract, except or Singapore); (2) In the case of a construction material for— (3) A least developed country (Afghanistan, that consists in whole or in part of materials (1) Construction material valued at or Angola, Bangladesh, Benin, Bhutan, Burkina from another country, has been substantially below the simplified acquisition threshold in Faso, Burundi, Cambodia, Cape Verde, transformed in a WTO GPA country into a part 2 of the Federal Acquisition Regulation; Central African Republic, Chad, Comoros, new and different construction material or Democratic Republic of Congo, Djibouti, East distinct from the materials from which it was (2) The construction material or Timor, Equatorial Guinea, Eritrea, Ethiopia, transformed. components listed by the Government as (b) This clause implements the Balance of Gambia, Guinea, Guinea-Bissau, Haiti, follows: Kiribati, Laos, Lesotho, Madagascar, Malawi, Payments Program by providing a preference Maldives, Mali, Mauritania, Mozambique, for domestic construction material. In [Contracting Officer to list applicable Nepal, Niger, Rwanda, Samoa, Sao Tome and addition, the Contracting Officer has excepted materials or indicate ‘‘none’’] Principe, Senegal, Sierra Leone, Solomon determined that the WTO GPA and Free [FR Doc. 05–759 Filed 1–12–05; 8:45 am] Islands, Somalia, Tanzania, Togo, Tuvalu, Trade Agreements apply to this acquisition. BILLING CODE 5001–08–P Uganda, Vanuatu, Yemen, or Zambia); or Therefore, the Balance of Payments Program (4) A Caribbean Basin country (Antigua restrictions are waived for designated and Barbuda, Aruba, Bahamas, Barbados, country construction materials.
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DEPARTMENT OF TRANSPORTATION dms.dot.gov. Follow the instructions for public interest in this rulemaking; submitting comments on the DOT therefore, we ask that you limit your Research and Special Programs electronic docket site. remarks to 10 minutes to assure that all Administration FOR FURTHER INFORMATION CONTACT: participants have an opportunity to Darral Relerford (202) 366–8553, Office speak. The meeting may conclude 49 CFR Parts 171, 172, 173, and 175 of Hazardous Materials Standards, (202) earlier than scheduled if all persons [Docket No. RSPA–04–19886 (HM–224E)] 366–8553, Research and Special wishing to offer comments have been Programs Administration: or John A. heard. RIN 2137–AE05 Gale, (202) 366–8553, Office of Issued in Washington, DC on January 7, Hazardous Materials; Prohibition on Hazardous Materials Standards, (202) 2005. the Transportation of Primary Lithium 366–8553, Research and Special Frits Wybenga, Batteries and Cells Aboard Passenger Programs Administration. Any person Deputy Associate Administrator for Aircraft; Notice of Public Meeting wishing to present an oral statement at Hazardous Materials Safety. the public meeting should notify Mr. [FR Doc. 05–736 Filed 1–12–05; 8:45 am] AGENCY: Research and Special Programs Relerford before the public meeting. BILLING CODE 4910–60–P Administration (RSPA), DOT. SUPPLEMENTARY INFORMATION: ACTION: Notice of public meeting. Background SUMMARY: DEPARTMENT OF COMMERCE This notice announces a On December 15, 2004, the Research public meeting to be held on January 27, and Special Programs Administration 2005, to solicit public comments on National Oceanic and Atmospheric (RSPA, we) published an interim final Administration amendments to the Hazardous Materials rule (IFR) (69 FR 75207) under Docket Regulations adopted by RSPA in an RSPA–04–19886 (HM–224E) imposing a 50 CFR Part 229 interim final rule published on limited prohibition on offering for December 15, 2004. This interim final transportation and transportation of [Docket No. 030221039–5006–17; I.D. rule imposed a limited prohibition on primary (non-rechargeable) lithium 010705A] offering for transportation and batteries and cells as cargo aboard Taking of Marine Mammals Incidental transportation of primary (non- passenger-carrying aircraft and to Commercial Fishing Operations; rechargeable) lithium batteries and cells equipment containing or packed with Atlantic Large Whale Take Reduction as cargo aboard passenger-carrying large primary lithium batteries. These Plan (ALWTRP) aircraft. prohibitions took effect on December 29, DATES: Comments date. Submit 2004. The IFR applies to both foreign AGENCY: National Marine Fisheries comments for presentation at the public and domestic passenger-carrying aircraft Service (NMFS), National Oceanic and meeting by January 20, 2005. We will entering, leaving, or operating in the Atmospheric Administration (NOAA), consider comments received during this United States and to persons offering Commerce. public meeting in making our decision primary lithium batteries and cells for ACTION: Temporary rule. on a final rule. Submit comments on the transportation as cargo on any interim final rule by February 14, 2005. passenger-carrying aircraft. The IFR SUMMARY: The Assistant Administrator Public Meeting Date. The public allows the carriage of lithium batteries for Fisheries (AA), NOAA, announces meeting will be held from 9:30 a.m. to or devices containing lithium batteries temporary restrictions consistent with 4 p.m. on Thursday, January 27, 2005. that are transported for personal use by the requirements of the ALWTRP’s ADDRESSES: Public Meeting. The public a passenger in carry-on or checked implementing regulations. These meeting will be held in Room 2230 at luggage, with certain limits. In addition, regulations apply to lobster trap/pot and the U.S. Department of Transportation the IFR allows the shipment of anchored gillnet fishermen in an area Headquarters Building, 400 Seventh equipment that contains or is packed totaling approximately 1,889 square Street, SW., Washington, DC. For with small primary lithium batteries nautical miles (nm2) (6,479.1 km2), east information on facilities or services for with certain limits, and the continued of Portland, ME, for 15 days. The persons with disabilities or to request shipment of secondary (rechargeable) purpose of this action is to provide special assistance at the meeting, please lithium batteries (e.g., lithium ion protection to an aggregation of North contact Mr. Darral Relerford at 202– batteries). The IFR also requires Atlantic right whales (right whales). 366–8553 as soon as possible. packages of primary lithium batteries DATES: Effective beginning at 0001 hours Comments. Written comments on the and cells that are excepted from January 15, 2005, through 2400 hours interim final rule may be submitted at classification as a Class 9 January 29, 2005. the public meeting, or sent by mail to (miscellaneous) hazardous material, to ADDRESSES: Copies of the proposed and Dockets Management System, U.S. be marked when offered for transport as final Dynamic Area Management (DAM) Department of Transportation PL–401, cargo in any mode, to indicate that they rules, Environmental Assessments 400 Seventh Street, SW., Washington, are forbidden for transport aboard (EAs), Atlantic Large Whale Take DC 20590–0001. Comments should passenger-carrying aircraft. identify Docket Number RSPA–04– Reduction Team (ALWTRT) meeting 19886 (HM–224E) and be submitted in Public Meeting summaries, and progress reports on 2 copies. Comments may also be hand To facilitate public comments on the implementation of the ALWTRP may delivered to PL–401 on the Plaza level IFR, we are hosting a public meeting on also be obtained by writing Diane of the Nassif Building, 400 Seventh January 27, 2005. The public meeting Borggaard, NMFS/Northeast Region, Street, SW., Washington, DC, between 9 will provide an informal forum for One Blackburn Drive, Gloucester, MA a.m. and 5 p.m., Monday through interested persons to offer comments on 01930. Friday, except Federal holidays. You the HM–224E IFR. A transcript of this FOR FURTHER INFORMATION CONTACT: may also provide electronic comments meeting will be prepared and submitted Diane Borggaard, NMFS/Northeast via the DOT Web site at: http:// to the docket. We anticipate significant Region, 978–281–9328 x6503; or Kristy
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Long, NMFS, Office of Protected identify a right whale. Such individuals ALWTRP requirements for any Resources, 301–713–1401. include, but are not limited to, NMFS overlapping areas and times, then the SUPPLEMENTARY INFORMATION: staff, U.S. Coast Guard and Navy more restrictive requirements will apply personnel trained in whale in the DAM zone. Special note for Electronic Access identification, scientific research survey gillnet fisherman: A portion of this Several of the background documents personnel, whale watch operators and DAM zone overlaps with the Harbor for the ALWTRP and the take reduction naturalists, and mariners trained in Porpoise Take Reduction Plan’s planning process can be downloaded whale species identification through Offshore Closure Area. This DAM action from the ALWTRP web site at http:// disentanglement training or some other does not supersede the Harbor Porpoise www.nero.noaa.gov/whaletrp/. training program deemed adequate by Take Reduction Plan regulations found Background NMFS. A reliable report would be a at 50 CFR 229.33. credible right whale sighting. The ALWTRP was developed On January 4, 2005, an aerial-based Lobster Trap/Pot Gear pursuant to section 118 of the Marine survey reported a sighting of 24 right Fishermen utilizing lobster trap/pot Mammal Protection Act (MMPA) to whales in the proximity 43° 23.7′ N. gear within the portion of the Northern reduce the incidental mortality and latitude and 68° 13′ W. longitude. This Nearshore Lobster Waters that overlap serious injury of three endangered position lies east of Portland, ME. After with the DAM zone are required to species of whales (right, fin, and conducting an investigation, NMFS utilize all of the following gear humpback) as well as to provide ascertained that the report came from a modifications while the DAM zone is in conservation benefits to a fourth non- qualified individual and determined effect: endangered species (minke) due to that the report was reliable. Thus, 1. Groundlines must be made of either incidental interaction with commercial NMFS has received a reliable report sinking or neutrally buoyant line. fishing activities. The ALWTRP, from a qualified individual of the Floating groundlines are prohibited; implemented through regulations requisite right whale density to trigger 2. All buoy lines must be made of codified at 50 CFR 229.32, relies on a the DAM provisions of the ALWTRP. either sinking or neutrally buoyant line, combination of fishing gear Once a DAM zone is triggered, NMFS except the bottom portion of the line, modifications and time/area closures to determines whether to impose which may be a section of floating line reduce the risk of whales becoming restrictions on fishing and/or fishing not to exceed one-third the overall entangled in commercial fishing gear gear in the zone. This determination is length of the buoy line; (and potentially suffering serious injury based on the following factors, 3. Fishermen are allowed to use two or mortality as a result). including but not limited to: the buoy lines per trawl; and On January 9, 2002, NMFS published location of the DAM zone with respect 4. A weak link with a maximum the final rule to implement the to other fishery closure areas, weather breaking strength of 600 lb (272.4 kg) ALWTRP’s DAM program (67 FR 1133). conditions as they relate to the safety of must be placed at all buoys. On August 26, 2003, NMFS amended human life at sea, the type and amount Fishermen utilizing lobster trap/pot the regulations by publishing a final of gear already present in the area, and gear within the portion of the Offshore rule, which specifically identified gear a review of recent right whale Lobster Waters Area that overlap with modifications that may be allowed in a entanglement and mortality data. the DAM zone are required to utilize all DAM zone (68 FR 51195). The DAM NMFS has reviewed the factors and of the following gear modifications program provides specific authority for management options noted above while the DAM zone is in effect: NMFS to restrict temporarily on an relative to the DAM under 1. Groundlines must be made of either expedited basis the use of lobster trap/ consideration. As a result of this review, sinking or neutrally buoyant line. pot and anchored gillnet fishing gear in Floating groundlines are prohibited; ° NMFS prohibits lobster trap/pot and areas north of 40 N. lat. to protect right anchored gillnet gear in this area during 2. All buoy lines must be made of whales. Under the DAM program, the 15–day restricted period unless it is either sinking or neutrally buoyant line, NMFS may: (1) require the removal of modified in the manner described in except the bottom portion of the line, all lobster trap/pot and anchored gillnet this temporary rule. Because the January which may be a section of floating line fishing gear for a 15–day period; (2) 4 right whale sightings occurred within not to exceed one-third the overall allow lobster trap/pot and anchored the area of a previously identified DAM length of the buoy line; gillnet fishing within a DAM zone with zone triggered by the December 6, 2004, 3. Fishermen are allowed to use two gear modifications determined by NMFS aerial-based sighting of 7 right whales buoy lines per trawl; and to sufficiently reduce the risk of (69 FR 75862, December 20, 2004), the 4. A weak link with a maximum entanglement; and/or (3) issue an alert coordinates for this DAM zone will breaking strength of 1,500 lb (680.4 kg) to fishermen requesting the voluntary encompass the same area, which is must be placed at all buoys. removal of all lobster trap/pot and bound by the following coordinates: Anchored Gillnet Gear anchored gillnet gear for a 15–day 43°45′N, 68°32′W (NW Corner) period and asking fishermen not to set 43°45′N, 67°30′W Fishermen utilizing anchored gillnet any additional gear in the DAM zone 43°33′N, 67°30′W following the Hague gear within the portion of the Other during the 15–day period. line south to Northeast Gillnet Waters that overlap A DAM zone is triggered when NMFS 43°00′N, 67°42′W with the DAM zone are required to receives a reliable report from a 43°00′N, 68°32′W utilize all the following gear qualified individual of three or more In addition to those gear modifications while the DAM zone is in right whales sighted within an area (75 modifications currently implemented effect: nm2 (139 km2)) such that right whale under the ALWTRP at 50 CFR 229.32, 1. Groundlines must be made of either density is equal to or greater than 0.04 the following gear modifications are sinking or neutrally buoyant line. right whales per nm2 (1.85 km2). A required in the DAM zone. If the Floating groundlines are prohibited; qualified individual is an individual requirements and exceptions for gear 2. All buoy lines must be made of ascertained by NMFS to be reasonably modification in the DAM zone, as either sinking or neutrally buoyant line, able, through training or experience, to described below, differ from other except the bottom portion of the line,
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which may be a section of floating line pursuant to those regulations, would be endeavor to provide notice of this action not to exceed one-third the overall impracticable because it would prevent to fishermen through other means as length of the buoy line; NMFS from executing its functions to soon as the AA approves it, thereby 3. Fishermen are allowed to use two protect and reduce serious injury and providing approximately 3 additional buoy lines per string; mortality of endangered right whales. days of notice while the Office of the 4. Each net panel must have a total of The regulations establishing the DAM Federal Register processes the five weak links with a maximum program are designed to enable the document for publication. breaking strength of 1,100 lb (498.8 kg). agency to help protect unexpected NMFS determined that the regulations Net panels are typically 50 fathoms concentrations of right whales. In order establishing the DAM program and (91.4 m) in length, but the weak link to meet the goals of the DAM program, actions such as this one taken pursuant requirements would apply to all the agency needs to be able to create a to those regulations are consistent to the variations in panel size. These weak DAM zone and implement restrictions maximum extent practicable with the links must include three floatline weak on fishing gear as soon as possible once enforceable policies of the approved links. The placement of the weak links the criteria are triggered and NMFS coastal management program of the U.S. on the floatline must be: one at the determines that a DAM restricted zone Atlantic coastal states. This center of the net panel and one each as is appropriate. If NMFS were to provide determination was submitted for review close as possible to each of the bridle prior notice and an opportunity for by the responsible state agencies under ends of the net panel. The remaining public comment upon the creation of a section 307 of the Coastal Zone DAM restricted zone, the aggregated two weak links must be placed in the Management Act. Following state right whales would be vulnerable to center of each of the up and down lines review of the regulations creating the entanglement which could result in at the panel ends; and DAM program, no state disagreed with serious injury and mortality. 5. All anchored gillnets, regardless of NMFS’ conclusion that the DAM Additionally, the right whales would the number of net panels, must be program is consistent to the maximum most likely move on to another location securely anchored with the holding extent practicable with the enforceable before NMFS could implement the power of at least a 22 lb (10.0 kg) policies of the approved coastal restrictions designed to protect them, Danforth-style anchor at each end of the management program for that state. net string. thereby rendering the action obsolete. The restrictions will be in effect Therefore, pursuant to 5 U.S.C. The DAM program under which beginning at 0001 hours January 15, 553(b)(B), the AA finds that good cause NMFS is taking this action contains 2005, through 2400 hours January 29, exists to waive prior notice and an policies with federalism implications 2005, unless terminated sooner or opportunity to comment on this action warranting preparation of a federalism extended by NMFS through another to implement a DAM restricted zone to assessment under Executive Order notification in the Federal Register. reduce the risk of entanglement of 13132. Accordingly, in October 2001 The restrictions will be announced to endangered right whales in commercial and March 2003, the Assistant Secretary state officials, fishermen, ALWTRT lobster trap/pot and anchored gillnet for Intergovernmental and Legislative members, and other interested parties gear as such procedures would be Affairs, DOC, provided notice of the through e-mail, phone contact, NOAA impracticable. DAM program and its amendments to website, and other appropriate media For the same reasons, the AA finds the appropriate elected officials in states immediately upon filing with the that, under 5 U.S.C. 553(d)(3), good to be affected by actions taken pursuant Federal Register. cause exists to waive the 30–day delay to the DAM program. Federalism issues in effective date. If NMFS were to delay raised by state officials were addressed Classification for 30 days the effective date of this in the final rules implementing the In accordance with section 118(f)(9) of action, the aggregated right whales DAM program. A copy of the federalism the MMPA, the Assistant Administrator would be vulnerable to entanglement, Summary Impact Statement for the final (AA) for Fisheries has determined that which could cause serious injury and rules is available upon request this action is necessary to implement a mortality. Additionally, right whales (ADDRESSES). take reduction plan to protect North would likely move to another location The rule implementing the DAM Atlantic right whales. between the time NMFS approved the program has been determined to be not Environmental Assessments for the action creating the DAM restricted zone significant under Executive Order DAM program were prepared on and the time it went into effect, thereby 12866. December 28, 2001, and August 6, 2003. rendering the action obsolete and This action falls within the scope of the ineffective. Nevertheless, NMFS Authority: 16 U.S.C. 1361 et seq. and 50 CFR 229.32(g)(3) analyses of these EAs, which are recognizes the need for fishermen to available from the agency upon request. have time to either modify or remove (if Dated: January 10, 2005. NMFS provided prior notice and an not in compliance with the required Rebecca Lent, opportunity for public comment on the restrictions) their gear from a DAM zone Deputy Assistant Administrator for regulations establishing the criteria and once one is approved. Thus, NMFS Regulatory Programs, National Marine procedures for implementing a DAM makes this action effective 2 days after Fisheries Service. zone. Providing prior notice and the date of publication of this notice in [FR Doc. 05–750 Filed 1–10–05; 4:36 pm] opportunity for comment on this action, the Federal Register. NMFS will also BILLING CODE 3510–22–S
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Proposed Rules Federal Register Vol. 70, No. 9
Thursday, January 13, 2005
This section of the FEDERAL REGISTER • Fax: 1–202–493–2251. part of this proposed AD, we will contains notices to the public of the proposed • Hand Delivery: Room PL–401 on summarize the contact and place the issuance of rules and regulations. The the plaza level of the Nassif Building, summary in the docket. We will purpose of these notices is to give interested 400 Seventh Street, SW., Washington, consider all comments received by the persons an opportunity to participate in the DC, between 9 a.m. and 5 p.m., Monday closing date and may amend this rule making prior to the adoption of the final through Friday, except Federal holidays. rules. proposed AD in light of those comments To get the service information and contacts. identified in this proposed AD, contact Docket Information DEPARTMENT OF TRANSPORTATION Cirrus Design Corporation, 4515 Taylor Circle, Duluth, Minnesota 55811; Where can I go to view the docket Federal Aviation Administration telephone: (218) 727–2737. information? You may view the AD To view the comments to this docket that contains the proposal, any 14 CFR Part 39 proposed AD, go to http://dms.dot.gov. comments received, and any final The docket number is FAA–2004– disposition in person at the DMS Docket [Docket No. FAA–2004–19694; Directorate 19694. Offices between 9:00 a.m. and 5:00 p.m. Identifier 2004–CE–41–AD] FOR FURTHER INFORMATION CONTACT: (eastern standard time), Monday RIN 2120–AA64 Angie Kostopoulos, Aerospace Engineer, through Friday, except Federal holidays. ACE–116C, Chicago Aircraft The Docket Office (telephone 1–800– Airworthiness Directives; Cirrus Certification Office, 2300 East Devon 647–5227) is located on the plaza level Design Corporation Model SR20 and Avenue, Room 107, Des Plaines, Illinois of the Department of Transportation SR22 Airplanes 60018; telephone: (847) 294–7426; NASSIF Building at the street address facsimile: (847) 294–7834. stated in ADDRESSES. You may also view AGENCY: Federal Aviation the AD docket on the Internet at http:/ SUPPLEMENTARY INFORMATION: Administration (FAA), DOT. /dms.dot.gov. The comments will be ACTION: Notice of proposed rulemaking Comments Invited available in the AD docket shortly after (NPRM). How do I comment on this proposed the DMS receives them. SUMMARY: The FAA proposes to adopt a AD? We invite you to submit any Discussion written relevant data, views, or new airworthiness directive (AD) for What events have caused this certain Cirrus Design Corporation (CDC) arguments regarding this proposal. Send your comments to an address listed proposed AD? The Cirrus Design Model SR20 and SR22 airplanes. This Corporation (CDC) performed dynamic under ADDRESSES. Include the docket proposed AD would require you to seat testing on Models SR20 and SR22 measure and adjust the crew seat break- number, ‘‘FAA–2004–19694; Directorate Identifier 2004–CE–41–AD’’ at the airplanes. CDC found that, under over bolts and to replace the crew seat emergency landing dynamic loads, the recline locks on both crew seats. This beginning of your comments. We will post all comments we receive, without crew seats may fold forward at less than proposed AD results from CDC the 26 Gs required by 14 CFR Section discovering that the crew seats, under change, to http://dms.dot.gov, including any personal information you provide. 23.562 (b) (2). emergency landing dynamic loads, may What is the potential impact if FAA We will also post a report summarizing fold forward at less than 26 G required took no action? If not prevented, the each substantive verbal contact with by the regulations. We are issuing this crew seats folding forward during FAA personnel concerning this proposed AD to prevent the crew seats emergency landing with dynamic loads proposed rulemaking. Using the search from folding forward during emergency could result in occupant injury. landing with dynamic loads with function of our docket web site, anyone Is there service information that consequent occupant injury. can find and read the comments applies to this subject? Cirrus Design received into any of our dockets, DATES: We must receive any comments Corporation has issued Service Bulletin including the name of the individual on this proposed AD by February 24, SB 2X–25–06 R2, dated December 6, who sent the comment (or signed the 2005. 2004, and Service Bulletin SB A2X–25– comment on behalf of an association, 08, dated June 22, 2004. ADDRESSES: Use one of the following to business, labor union, etc.). This is What are the provisions of this service submit comments on this proposed AD: docket number FAA–2004–19694. You • information? The service bulletins DOT Docket Web site: Go to http:/ may review the DOT’s complete Privacy include procedures for: /dms.dot.gov and follow the instructions Act Statement in the Federal Register —Inspecting crew seat break-over bolts; for sending your comments published on April 11, 2000 (65 FR —Adjusting the crew seat break-over electronically. 19477–78) or you may visit http:// • bolts; Government-wide rulemaking Web dms.dot.gov. —Checking recline lock identification; site: Go to http://www.regulations.gov Are there any specific portions of this —Performing recline lock replacement; and follow the instructions for sending proposed AD I should pay attention to? and your comments electronically. We specifically invite comments on the —Checking break-over pin alignment. • Mail: Docket Management Facility; overall regulatory, economic, U.S. Department of Transportation, 400 environmental, and energy aspects of FAA’s Determination and Requirements Seventh Street, SW., Nassif Building, this proposed AD. If you contact us of This Proposed AD Room PL–401, Washington, DC 20590– through a nonwritten communication What has FAA decided? We have 001. and that contact relates to a substantive evaluated all pertinent information and
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identified an unsafe condition that is for practices, methods, and procedures PART 39—AIRWORTHINESS likely to exist or develop on other the Administrator finds necessary for DIRECTIVES products of this same type design. For safety in air commerce. This regulation this reason, we are proposing AD action. is within the scope of that authority 1. The authority citation for part 39 What would this proposed AD because it addresses an unsafe condition continues to read as follows: require? This proposed AD would that is likely to exist or develop on Authority: 49 U.S.C. 106(g), 40113, 44701. require you to incorporate the actions in products identified in this AD. the previously-referenced service § 39.13 [Amended] bulletins. Regulatory Findings How does the revision to 14 CFR part Would this proposed AD impact 2. The FAA amends § 39.13 by adding 39 affect this proposed AD? On July 10, various entities? We have determined the following new airworthiness 2002, we published a new version of 14 that this proposed AD would not have directive (AD): CFR part 39 (67 FR 47997, July 22, federalism implications under Executive Cirrus Design Corporation: Docket No. FAA– 2002), which governs FAA’s AD system. Order 13132. This proposed AD would 2004–19694; Directorate Identifier 2004– This regulation now includes material not have a substantial direct effect on CE–41–AD that relates to altered products, special the States, on the relationship between flight permits, and alternative methods the national Government and the States, When Is the Last Date I Can Submit Comments on This Proposed AD? of compliance. This material previously or on the distribution of power and was included in each individual AD. responsibilities among the various (a) We must receive comments on this Since this material is included in 14 levels of government. proposed airworthiness directive (AD) by CFR part 39, we will not include it in Would this proposed AD involve a February 24, 2005. future AD actions. significant rule or regulatory action? For What Other ADs Are Affected by This the reasons discussed above, I certify Costs of Compliance Action? that this proposed AD: (b) None. How many airplanes would this 1. Is not a ‘‘significant regulatory proposed AD impact? We estimate that action’’ under Executive Order 12866; What Airplanes Are Affected by This AD? this proposed AD affects 1,501 airplanes 2. Is not a ‘‘significant rule’’ under the (c) This AD affects the following airplane in the U.S. registry. DOT Regulatory Policies and Procedures models and serial numbers that are What would be the cost impact of this (44 FR 11034, February 26, 1979); and certificated in any category: proposed AD on owners/operators of the 3. Will not have a significant affected airplanes? CDC will provide economic impact, positive or negative, Model Serial Nos. warranty credit for service bulletins SB on a substantial number of small entities A2X–25–08, dated June 22, 2004, and under the criteria of the Regulatory (1) SR20 ...... 1005 through SB 2X–25–06 R2, dated December 6, Flexibility Act. 1439. 2004. We prepared a summary of the costs (2) SR22 ...... 0002 through to comply with this proposed AD and 1044. Authority for This Rulemaking placed it in the AD Docket. You may get What authority does FAA have for a copy of this summary by sending a What Is the Unsafe Condition Presented in issuing this rulemaking action? Title 49 request to us at the address listed under This AD? of the United States Code specifies the ADDRESSES. Include ‘‘AD Docket FAA– (d) This AD is the result of discovering that FAA’s authority to issue rules on 2004–19694; Directorate Identifier the crew seats, under emergency landing aviation safety. Subtitle I, section 106 2004–CE–41–AD’’ in your request. dynamic loads, may fold forward at less than describes the authority of the FAA List of Subjects in 14 CFR Part 39 26 G required by the regulations, 14 Code of Administrator. Subtitle VII, Aviation Federal Regulations (CFR) Section 23.562 (b) Programs, describes in more detail the Air transportation, Aircraft, Aviation (2). The actions specified in this AD are scope of the agency’s authority. safety, Safety. intended to prevent the crew seats from We are issuing this rulemaking under The Proposed Amendment folding forward during emergency landing the authority described in subtitle VII, with dynamic loads with consequent part A, subpart III, section 44701, Accordingly, under the authority occupant injury. ‘‘General requirements.’’ Under that delegated to me by the Administrator, section, Congress charges the FAA with the Federal Aviation Administration What Must I Do To Address This Problem? promoting safe flight of civil aircraft in proposes to amend 14 CFR part 39 as (e) To address this problem, you must do air commerce by prescribing regulations follows: the following:
Actions Compliance Procedures
(1) For models SR20, serial numbers 1005 Within 50 hours time-in-service (TIS) or within Follow Cirrus Design Corporation Service Bul- through 1423, and SR22, serial numbers 180 days, whichever occurs first after the letin SB A2X–25–08, dated June 22, 2004. 0002 through 0972, do the following actions:. effective date this AD. (i) Move the lower portion of the crew seat up- holstery upward to expose of the seat frame and locking mechanism. Measure the clear- ance between the break-over bolt and the seat frame for a clearance that meets the re- quirements in the service bulletin. (ii) If the clearance does not meet that speci- fied in the service bulletin, perform the crew seat break-over bolt adjustment and re-cover the crew seat frame and locking mechanism with the upholstery.
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Actions Compliance Procedures
(iii) If the clearance does meet that specified in the service bulletin, re-cover the crew seat frame and locking mechanism. (2) For models SR20, serial numbers 1005 Within 50 hours TIS or within 180 days, Follow Cirrus Design Corporation Service Bul- through 1439, and SR22, serial numbers whichever occurs first after the effective letin SB 2X–25–06 R2, dated December 6, 0002 through 1044, do the following actions:. date of this AD. 2004. (i) Identify whether the recline lock is secured with two bolts or three bolts. (ii) If the recline locks are secured effective 6, 2004. with two bolts, remove the existing re- cline date of this locks and replace with the new recline locks AD. kit, kit number 70084– 001. (iii) If the recline locks are secured with three bolts, remove existing recline locks and re- place with the new recline locks kit, kit num- ber 70084–002. (iv) Check break-over pin alignment and adjust as necessary. (v) Repeat the above actions for the opposite crew seat.
May I Request an Alternative Method of DEPARTMENT OF TRANSPORTATION Seventh Street, SW., Nassif Building, Compliance? Room PL–401, Washington, DC 20590– (f) You may request a different method of Office of the Secretary 001. Hand Delivery: Room PL–401 on compliance or a different compliance time the plaza level of the Nassif Building, for this AD by following the procedures in 14 14 CFR Part 257 400 Seventh Street, SW., Washington, CFR 39.19. Unless FAA authorizes otherwise, [OST Docket No. 2004–19083] DC, between 9 a.m. and 5 p.m., Monday send your request to your principal through Friday, except Federal holidays. inspector. The principal inspector may add RIN 2105–AD49 Federal eRulemaking Portal: Go to comments and will send your request to the http://www.regulations.gov. Follow the Manager, Chicago Aircraft Certification Disclosure of Code Sharing and Long- online instructions for submitting Office, FAA. For information on any already Term Wet Lease Arrangements comments. approved alternative methods of compliance, AGENCY: Department of Transportation; Instructions: All submissions must contact Angie Kostopoulos, Aerospace Office of the Secretary. include the agency name and docket Engineer, ACE–116C, Chicago Aircraft ACTION: number or Regulatory Identification Certification Office, 2300 East Devon Notice of proposed rulemaking (NPRM). Number (RIN) for this rulemaking. For Avenue, Room 107, Des Plaines, Illinois detailed instructions on submitting 60018; telephone: (847) 294–7426; facsimile: SUMMARY: The Department of comments and additional information (847) 294–7834. Transportation (Department or DOT) is on the rulemaking process, see the May I Get Copies of the Documents proposing to amend its rule governing Public Participation heading of the Referenced in This AD? the disclosure of code-share and long- Supplementary Information section of this document. Note that all comments (g) To get copies of the documents term wet lease arrangements in print referenced in this AD, contact Cirrus Design advertisements of scheduled passenger received will be posted without change Corporation, 4515 Taylor Circle, Duluth, services to permit carriers to disclose to http://dms.dot.gov including any Minnesota 55811; telephone: (218) 727–2737. generically that some of the advertised personal information provided. Please To view the AD docket, go to the Docket service may involve travel on another see the Privacy Act heading under Management Facility; U.S. Department of carrier, so long as they also identify a Regulatory Notices. Transportation, 400 Seventh Street, SW., list of all potential carriers involved in Docket: For access to the docket to Nassif Building, Room PL–401, Washington, serving the markets being advertised. read background documents or DC, or on the Internet at http://dms.dot.gov. This proposed action is being taken in comments received, go to http:// The docket number is FAA–2004–19694. response to a petition for rulemaking dms.dot.gov at any time or to Room PL– filed by United Airlines, Inc. 401 on the plaza level of the Nassif Issued in Kansas City, Missouri, on January DATES: Comments must be received on Building, 400 Seventh Street, SW., 7, 2005. or before March 14, 2005. The Washington, DC, between 9 a.m. and 5 James E. Jackson, Department will consider late-filed p.m., Monday through Friday, except Acting Manager, Small Airplane Directorate, comments only to the extent practicable. Federal holidays. Aircraft Certification Service. ADDRESSES: You may submit comments FOR FURTHER INFORMATION CONTACT: [FR Doc. 05–717 Filed 1–12–05; 8:45 am] identified by DOT DMS Docket Number Trace Atkinson or Blane Workie, Office BILLING CODE 4910–13–P 2004–19083 by any of the following of the Assistant General Counsel for methods: Web Site: http://dms.dot.gov. Aviation Enforcement and Proceedings, Follow the instructions for submitting Office of the General Counsel, U.S. comments on the DOT electronic docket Department of Transportation, 400 7th site. Street SW., Room 4116, Washington, DC Fax: 1–202–493–2251. 20590, (202) 366–9342 (Voice) or (202) Mail: Docket Management Facility; 366–7152 (Fax). U.S. Department of Transportation, 400 SUPPLEMENTARY INFORMATION:
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Background would be operating a particular flight disclosure of code-share and long-term The Secretary of Transportation has the consumer desires. wet lease arrangements in print the authority to define unfair or To ease the burden on carriers, United advertisements agree with United that requests that section 257.5(d) be deceptive practices or unfair methods of the current disclosure requirements may reinterpreted to permit carriers to competition. 49 U.S.C. 41712. Since actually serve to confuse customers provide a generic disclosure in print 1985, it has been the Department’s rather than inform them that advertised advertisements indicating that some of stated policy to view the failure of U.S. services may involve travel on code- the service offered may involve travel carriers to provide reasonable and share partners. According to Delta, on one or more of its listed partner timely notice to consumers of the without knowing a customer’s specific carriers. United contends that if its existence of a code-share arrangement as itinerary, it is impossible to determine proposal is adopted, the information an unfair and deceptive practice. 50 FR whether transportation will be provided consumers obtain in practical terms 38508. The Department further by the advertising carrier or by one or would not change and the burden on more code-share partners. Delta, like strengthened its consumer notification carriers would be eliminated. United rules and policies to ensure that United, asserts that once enough details emphasizes that print advertisements are known about a customer’s actual consumers would have pertinent serve only as the first opportunity to information about airline code-sharing travel plans, carriers can and do provide inform consumers about an airline’s accurate and detailed disclosure arrangements and long-term wet leases service offerings and consumers will in domestic and international air information about any actual code- continue to receive more detailed sharing involving particular flights. All transportation through the adoption of disclosures about any code-sharing 14 CFR part 257 on March 15, 1999. 64 four carriers that filed in support of arrangement that may be relevant to United’s petition also argue that the FR 12838. Section 257.5(d) of that part their travel plans before making any requires carriers in any print increased burden of the current code- travel purchase decisions through share disclosure rule on carriers that advertisement for service in a city-pair telephone inquiries to reservation market that is provided under a code- rely extensively on code-sharing to offices or by reviewing Internet flight serve their customers adds significant sharing arrangement or long-term wet listings. lease to clearly indicate the nature of the costs without providing corresponding service in reasonably sized type and Comments on the Petition benefits to consumers. Orbitz agrees that the current rule is onerous and fails to identify the transporting carrier[s] by Four carriers, an airline association offer off-setting consumer benefits and corporate name and by any other name and, Orbitz, LLC (Orbitz) submitted protections. United further contends under which the service is held out to comments on United’s petition for that those opposing its petition are the public. rulemaking. The Air Carrier Association interested not in protecting consumers, of America (ACAA) and Southwest Petition for Rulemaking but in preventing the Department from Airlines (Southwest) filed comments reducing the regulatory burden on such United Airlines, Inc., (United) filed a opposing the petition while American network carriers. In addition, US petition for rulemaking with the Airlines, Inc. (American), Delta Air Airways argues that an unintended Department on September 7, 2004, Lines, Inc. (Delta), US Airways, Inc. (US consequence of the current rule is to asking that we amend 14 CFR 257.5(d). Airways), and Orbitz filed comments in create incentives for carriers not to United asserts that the current print support of the petition. advertisement disclosures have become In addition to supporting United’s advertise in smaller markets because of increasingly burdensome on network petition, two carriers and Orbitz seek the high cost of compliance with the carriers while failing to provide additional relief. American asks that rule as now written. meaningful off-setting consumer United’s requested change to DOT’s rule On the other hand, Southwest and benefits. United points out that a governing the disclosure of code-share ACAA argue that the Department should network carrier typically publishes print and long-term wet lease arrangements in not amend its rule governing the advertisements offering service for print advertisements also apply to disclosure of code-share and long-term travel in multiple domestic and Internet advertisements. US Airways wet lease arrangements in print international city pairs over a large requests that the Department act advertisements because, they assert, number of alternative routings, some of expeditiously on United’s petition by there is no empirical evidence to show which would be provided by carriers limiting the comment period for this that the Department’s reasons for other than the advertising carrier NPRM to 30 days and/or moving requiring route-specific disclosure pursuant to a code-share or a wet lease directly to issue an interim final rule on requirements are any less valid today arrangement. Presently, in order to this matter. Orbitz urges that any than they were when they were first comply with section 257.5(d), such a amended rule apply not just to carriers, adopted. They note that the very carriers carrier must provide consumers with a but explicitly to travel agents as well; who initially argued for the rule detailed set of disclosures that will vary however, it also cautions against a requiring the disclosure of code-share depending on the number of alternative common standard applicable to both and wet-lease arrangements are now routings that may be available for travel print and Internet advertising for all of seeking a change in the rule because in a specific city-pair. This results in the Department’s rules. Orbitz contends they have increased their own code- print advertisements that include that rules designed specifically for the share relationships. ACAA appears to be numerous footnotes relating exclusively static print medium may artificially concerned that the adoption of United’s to the disclosure of code-share and wet restrain the ability of electronic proposal would result in advertisements lease arrangements. According to advertisers to provide complete fare that would increase the market United, not only do such disclosures information to consumers in a dynamic, dominance of large carriers. ACAA impose a significant burden on carriers, intuitive, and interactive way. explains that customers seeing such an but these disclosures may also serve to ad, even if told later that the flight will increase consumer confusion and, at A. Print Advertisements be operated by a code-share partner, best, provide only limited information Commenters supporting an will remember the ad and focus on the to consumers about the carrier that amendment to DOT’s rule governing the largest carrier in a particular city-pair
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market which will in turn allow a larger the code-share disclosure rule change carriers, but we also see merit in the carrier to increase its market requested by United be extended to argument that the many separate dominance. ACAA requests that the Internet advertisements. Orbitz agrees footnotes now required where multiple Department undertake a thorough with American that the Department markets are contained in a single review of the impact of code-sharing on should amend 14 CFR 257.5(d) to advertisement may also confuse consumers and competition before explicitly state that the amended rule customers rather than inform them of considering United’s petition, while applies to both print and Internet advertised services. Therefore, while we Southwest argues that rather than advertising. Orbitz claims that for online will continue to consider a failure to weakening the current rule respecting ticket agents, the problems posed by the disclose code-share and wet lease disclosure of code-share and long-term current rule are more acute in that a arrangements in print advertisements to wet leases in print advertisements, the single Web page may advertise multiple be an unfair and deceptive trade current requirements should be city-pairs operated under code-share or practice and to vigorously enforce any strengthened, as violations of the wet-lease arrangements by different such violations, we are tentatively of the current rule persist despite the fact that carriers. opinion that continuing to require that these requirements have been in place carriers identify each specific partner C. Expedited Review of Petition for several years. carrier that serves each particular city- ACAA and Southwest also assert that In support of its request for expedited pair route or market being advertised is the market-specific disclosure currently review of United’s petition, US Airways not necessary for consumers adequately required provides consumers with claims that code-sharing is not a novel to be informed of the advertised service. valuable information concerning who practice, but is well understood by Accordingly, we are proposing to grant will actually provide the air airline passengers, and that the United’s petition for rulemaking and transportation on the specific flights the Department is capable of determining amend our rule governing code-share passenger is considering. They stress whether consumers require extended and long-term wet lease disclosure in that this policy correctly recognizes that verbiage in the code-sharing print advertisements to permit a generic consumers are best served when they notification. Secondly, US Airways statement indicating that some of the are given relevant information about states the Department should act advertised service may involve travel on travel choices at the beginning of their expeditiously because code-share another carrier, so long as such decision-making process rather than at advertising has become more advertisements also include a list of all the end of it when they have already burdensome as the industry has potential code-share or wet lease narrowed their choices. Accordingly, evolved, particularly for carriers like US carriers involved in serving the markets they argue that it would be contrary to Airways that have multiple code- being advertised. We specifically the public interest for carriers to suggest sharing partners. No other comment was request comments from the public, that they offer multiple flights in a received on this point. particularly air travel consumers, as to particular market when in actuality, Agency Review of Petition the benefits, if any, of the market- many of the flights advertised are specific disclosures currently required operated by code-share partners. ACAA As noted above, the Department has a in print advertisements and whether contends that under United’s proposal, long history of requiring code-share and any such benefits outweigh the burdens members of the public would have no wet lease disclosures in print on carriers and the potential confusion way of knowing which flights are advertisements. Many of the reasons for for consumers from including such operated under code-share arrangements requiring such disclosures were additional information in print and which carriers operate those flights. discussed in the notice of proposed advertisements. In addition, in support of its argument rulemaking dated August 10, 1994, and The Department further believes that against United’s proposal, Southwest the final rule dated March 15, 1999. 59 it is important, as has been suggested by cites the Department’s earlier findings FR 40836 and 64 FR 12838, ACAA, that the current rule not be that a general disclosure does not suffice respectively. However, since that time, amended without careful consideration to properly inform consumers about the there have been many changes in the and full opportunity for comment, but particular flights they are considering marketplace, including an increase in we are aware of no reason why other for travel and that a failure to disclose the number of carriers providing service aspects of the code-share rule need to be such a relationship is deceptive and can in multiple domestic and international reviewed at this time, as ACAA would result in confusion, hardship, and city-pair markets over a large number of have us do. Therefore, we will limit our inconvenience to consumers. alternative routings, many of which are review of the rule to the issue raised by provided by carriers other than the United, and not grant US Airway’s B. Internet Advertisements advertising carrier pursuant to a code- request for expedited review but will In asking that we change our rule share or a wet lease arrangement. The instead provide for a full 60-day governing the disclosure of code-share unintended practical effect of current comment period on this NPRM. All and long-term wet lease arrangements section 257.5(d) is that carriers that rely interested parties are encouraged to not only with regard to print extensively on code-sharing to serve comment. advertisements, but with respect to customers must now include numerous With regard to American’s request to Internet advertisements, as well, footnotes relating exclusively to the change DOT’s rule governing the American argues that the same disclosure of code-share and wet lease disclosure of code-share and long-term difficulties in constructing print arrangements in print advertisements. wet lease arrangements in Internet advertisements that United identifies in We are tentatively of the opinion that advertisements, the Department is not its petition also arise with respect to the benefits of the additional specific persuaded that the same burdens and Internet advertising. American also notice provided consumers in a print potential consumer confusion that may asserts that there is longstanding DOT advertisement under the present rule exist in constructing and reading print policy that Internet listings provide may not outweigh the detriment to advertisements that United and other code-share disclosures in a manner carriers and the public of continuing to commenters assert exist also arise with required of print media fare ads. US require such detail. We not only agree respect to Internet advertising. With Airways joins American in asking that that these footnotes are burdensome for regard to Internet advertisements, it
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appears to us that entities soliciting air regulatory burden on network carriers require approval by the Office of transportation via the Internet can easily that rely extensively on code-sharing to Management and Budget (OMB) under and clearly disclose information to serve customers but does not impose the Paperwork Reduction Act (44 U.S.C. consumers regarding each specific any additional burdens on either small 2507 et seq.). There is a current OMB partner carrier that serves each or large carriers. The Department seeks control number assigned to this particular city-pair route or market comment on whether there are small rulemaking, and the OMB number is being advertised by using hyperlinks or entity impacts that should be 2105–0537. other techniques. Accordingly, we have considered. If comments provide not proposed here to expand United’s information that there are significant List of Subjects in 14 CFR Part 257 petition for a change in our code-share small entity impacts, the Department Air carriers, Consumer protection, and wet lease disclosure rule to include will prepare a regulatory flexibility Foreign air carriers. Internet solicitations. However, we analysis at the final rule stage. recognize that there may be cost For the reasons set forth in the Executive Order 13132 (Federalism) burdens to carriers associated with preamble, the Department of market-specific disclosure of code-share This NPRM has been analyzed in Transportation proposes to amend 14 and long-term wet lease arrangements accordance with the principles and CFR part 257 as follows: through Internet advertising of which criteria contained in Executive Order CHAPTER II—OFFICE OF THE SECRETARY, we are not aware and encourage all 13132. The Department has determined DEPARTMENT OF TRANSPORTATION interested parties to comment. We are that this proposal would not have a particularly interested in receiving substantial direct effect on the States, on PART 257—DISCLOSURE OF CODE- comments on possible benefits or the relationship between the National SHARING ARRANGEMENTS AND detriments of not expanding United’s Government and the States, or on the LONG-TERM WET LEASES petition for a change in our code-share distribution of power and and wet lease disclosure rule to include responsibilities among the various (1) The authority for 14 CFR part 257 Internet advertising as well as reasons levels of government, and therefore would continue to read as follows: for the Department to view Internet would not have federalism implications. Authority: 49 U.S.C. 40113(a) and 41712. advertising differently or the same as Executive Order 13084 print advertising. (2) Section 257.5(d) would be revised This proposed rule has been analyzed to read as follows: Regulatory Analysis and Notices in accordance with the principles and criteria contained in Executive Order § 257.5 Notice requirement. Executive Order 12866 (Regulatory * * * * * Planning and Review) and DOT 13084 (‘‘Consultation and Coordination Regulatory Policies and Procedures with Indian Tribal Governments’’). (d) In any printed advertisement Because this proposed rule, if adopted, published in or mailed to or from the The Department has determined that would not significantly or uniquely United States for service in a city-pair this proposal, if adopted as a final rule, affect the Indian tribal communities, market that is provided under a code- would not be a significant regulatory and would not impose substantial direct sharing arrangement or long-term wet action under Executive Order 12866 or compliance costs, the funding and lease, the advertisement shall under the Department’s Regulatory consultation requirements of the prominently disclose that the advertised Policies and Procedures. The proposed Executive Order do not apply. service may involve travel on another rule would require the disclosure of less Unfunded Mandates Reform Act carrier and clearly indicate the nature of information than is required by the the service in reasonably sized type and current rule and the Department expects Title II of the Unfunded Mandates shall identify all potential transporting an adoption of the proposed rule to Reform Act of 1995 (the Act), enacted as carriers involved in the markets being reduce the regulatory burden imposed Public Law 104–4 on March 22, 1995, advertised by corporate name and by by the current rule. Therefore, this rule requires each Federal agency, to the any other name under which that is expected to have a minimal economic extent permitted by law, to prepare a service is held out to the public. In any effect and further regulatory evaluation written assessment of the effects of any radio or television advertisement is not necessary. Federal mandate in a proposed or final broadcast in the United States for agency rule that may result in the Regulatory Flexibility Act service in a city-pair market that is expenditure by State, local, and tribal provided under a code-sharing or long- The Regulatory Flexibility Act (5 governments, in the aggregate, or by the term wet lease, the advertisement shall U.S.C. 601 et seq.) requires an agency to private sector, of $100 million or more include at least a generic disclosure review regulations to assess their impact (adjusted annually for inflation) in any statement, such as ‘‘Some services are on small entities unless the agency one year. The proposed rule does not provided by other airlines.’’ determines that a rule is not expected to contain any Federal mandate that would have a significant economic impact on result in such expenditures. Therefore, Issued this 5th Day of January, 2005, at Washington, DC, pursuant to 49 CFR 1.56a. a substantial number of small entities. the requirements of title II of the Act do The Department certifies that this not apply. Karan K. Bhatia, proposed rule, if adopted, would not Assistant Secretary for Aviation and have a significant economic impact on Paperwork Reduction Act International Affairs. a substantial number of small entities. The proposed rule does not contain [FR Doc. 05–737 Filed 1–12–05; 8:45 am] The proposed rule would reduce the information collection requirements that BILLING CODE 4910–62–P
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Notices Federal Register Vol. 70, No. 9
Thursday, January 13, 2005
This section of the FEDERAL REGISTER Washington, DC 20026–3483 if using Agriculture for Rural Development and contains documents other than rules or the U.S. Postal Service; or Room 2117, the Under Secretary of Agriculture for proposed rules that are applicable to the South Agriculture Building, 1400 Research, Education, and Economics. public. Notices of hearings and investigations, Independence Avenue, SW., The Executive Director serves as the committee meetings, agency decisions and Washington, DC 20250 if using other CEO. rulings, delegations of authority, filing of petitions and applications and agency carriers. The Secretary of Agriculture shall statements of organization and functions are FOR FURTHER INFORMATION CONTACT: Jay appoint the voting members from the examples of documents appearing in this B. Wilson, Executive Director/CEO, submitted nominations. Member’s term section. National Sheep Industry Improvement of office shall be three years. Voting Center, USDA, PO Box 23483, members are limited to two terms. The Washington, DC 20026–3483 if using two positions for which nominees are DEPARTMENT OF AGRICULTURE the U.S. Postal Service; or Room 2117, sought are currently held by one South Agriculture Building, 1400 member who is completing a first term National Sheep Industry Improvement Independence Avenue, SW., and is eligible for reappointment and Center; Solicitation of Nominations of Washington, DC 20250 if using other one member who is serving a second Board Members carriers. Telephone (202) 690–0632, term and is therefore not eligible to be AGENCY: National Sheep Industry (This is not a toll free number.) FAX re-nominated. Improvement Center. 202–720–1053. Forms and other The Board shall meet not less than ACTION: Notice: Invitation to submit information can be found at http:// once each fiscal year, but is likely to nominations. www.nsiic.org. meet at least quarterly. Board members SUPPLEMENTARY INFORMATION: The will not receive compensation for SUMMARY: The National Sheep Industry National Sheep Industry Improvement serving on the Board of Directors, but Improvement Center announces that it Center (NSIIC), or Sheep Center shall be reimbursed for travel, is accepting nominations for the Board (Center), is authorized under 7 U.S.C. subsistence, and other necessary of Directors of the National Sheep 2008j. The Center shall: (1) Promote expenses. Industry Improvement Center for two strategic development activities and The statement of qualifications of the voting directors’ positions whose terms collaborative efforts by private and State individual nominees is being obtained expire on February 14, 2005. Both entities to maximize the impact of by using Form AD–755, ‘‘Advisory positions are for members who are Federal assistance to strengthen and Committee Membership Background active producers of sheep or goats. enhance production and marketing of Information’’ which can be accessed at Board members manage and oversee the sheep or goat products in the United http://www.nsiic.org. The requirements Center’s activities. Nominations may States; (2) optimize the use of available of this form are incorporated under only be submitted by National human capital and resources within the OMB number 0570–0048. organizations that consist primarily of sheep or goat industries; (3) provide Dated: December 14, 2004. active sheep or goat producers in the assistance to meet the needs of the United States and who have as their Jay B. Wilson, sheep or goat industry for infrastructure Executive Director/CEO, National Sheep primary interest the production of sheep development, business development, or goats in the United States. Industry Improvement Center. production, resource development, and [FR Doc. 05–685 Filed 1–12–05; 8:45 am] Nominating organizations should market and environmental research; (4) BILLING CODE 1351–01–P submit: (1) Substantiation that the advance activities that empower and nominating organization is national in build the capacity of the United States scope; (2) The number and percent of sheep or goat industry to design unique DEPARTMENT OF AGRICULTURE members that are active sheep or goat responses to special needs of the sheep producers; (3) Substantiation of the or goat industries on both a regional and Commodity Credit Corporation primary interests of the organization, national basis; and (5) adopt flexible and (4) An Advisory Committee and innovative approaches to solving Notice of Funds Availability: Inviting Membership Background Information the long-term needs of the United States Applications for Emerging Markets form (Form AD–755) for each nominee. sheep or goat industry. Program This action is taken in accordance The management of NSIIC is vested in with 7 U.S.C. 2008j(f) which establishes a Board of Directors that is appointed Announcement Type: New. the powers and composition of the by, and reports to the Secretary of Catalog of Federal Domestic Assistance (CFDA) Number: 10.603. Board of Directors for the National Agriculture. The Board of Directors is Sheep Industry Improvement Center. composed of seven voting members of SUMMARY: The Commodity Credit DATES: Completed nominations must be whom four are active producers of Corporation (CCC) announces the received no later than February 28, sheep or goats in the United States, two availability of approximately $8 million 2005. Nominations received after that have expertise in finance and in funding for the Emerging Markets date will not be considered. management, and one has expertise in Program (EMP) for fiscal year (FY) 2005. ADDRESSES: Submit nominations and lamb, wool, goat or goat product The intended effect of this notice is to statements of qualifications to Jay B. marketing. Of the two open positions, solicit applications from the private Wilson, Executive Director/CEO, both are for active producers of sheep or sector and from government agencies for National Sheep Industry Improvement goats. The Board also includes two non- FY 2005 and awards funds in early July Center, USDA, PO Box 23483, voting members, the Under Secretary of 2005. The EMP is administered by
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personnel of the Foreign Agricultural specific in their focus and may from funding are contained in the EMP Service (FAS). include cross-commodity activities Regulations. DATES: All proposals must be received which address specific problems. 3. Eligible Markets: The Act defines by 5 p.m. eastern standard time, March Examples: Grain storage handling and an emerging market as any country that 14, 2005. Applications received after inventory systems development; the Secretary of Agriculture determines: this time will not be considered. distribution infrastructure (a) Is taking steps toward a market- FOR FURTHER INFORMATION CONTACT: development; oriented economy through the food, Entities wishing to apply for funding —Projects that specifically address agriculture, or rural business sectors of assistance should contact the Marketing various constraints to U.S. exports, the economy of the country; and (b) Has the potential to provide a Operations Staff, Foreign Agricultural including sanitary and phytosanitary viable and significant market for United Service, U.S. Department of Agriculture, issues and other non-tarrif barriers. States agricultural commodities or Room 4932 South, STOP 1042, 1400 Examples: Seminars on U.S. food products of United States agricultural Independence Ave., SW., Washington, safety standards and regulations; commodities. DC 20250–1042, phone: (202) 720–4327, assessing pest and disease problems that inhibit U.S. exports; Because funds are limited and the fax: (202) 720–9361, e-mail: range of potential emerging market [email protected]. Information is also —Assessments and follow up activities designed to improve country-wide countries is worldwide, proposals for available on the Foreign Agricultural technical assistance activities will be food and business systems, to reduce Service Web site at http:// considered which target those countries trade barriers, to increase prospects www.fas.usda.gov/mos/em-markets/em- or regional groups with per capita for U.S. trade and investment in markets/html. income less than $9,076 (the current emerging markets, and to determine SUPPLEMENTARY INFORMATION: ceiling on upper middle income the potential use for general export economies as determined by the World I. Funding Opportunity Description credit guarantees for commodities and Bank [World Development Indicators]) services. Examples: Product needs and populations of greater than 1 Authority: The EMP is authorized by assessments and market analysis; section 1542(d)(1)(D) of the Food, million. Agriculture, Conservation and Trade Act of assessments to address infrastructural Income limits and their calculation 1990 (The Act), as amended. EMP regulations impediments; can change from year to year, with the appear at 7 CFR part 1486. —Projects that help foreign governments result that a given country may qualify 1. Purpose: The EMP provides collect and use market information under the legislative and administrative funding for technical assistance to assist and develop free trade policies that criteria one year but not the next. U.S. organizations, public and private, benefit American exporters as well as Therefore, CCC has not established a to improve market access through the target country or countries. fixed list of ‘‘emerging market’’ generic, rather than branded, activities Examples: Agricultural statistical countries. For FY 2005, however, the that can develop and promote U.S. analysis; development of market following guidance is provided agricultural products and/or processes information systems; policy analysis; regarding country eligibility for the in low- to middle-income countries that and EMP: offer promise of emerging market —Short-term training in broad aspects —Eligible. All of the countries of opportunities. of agriculture and agribusiness trade Central and South America; most in Activities funded are those that that will benefit U.S. exporters, the Caribbean; all of sub-Saharan primarily benefit U.S. industry as a including seminars and training at Africa; some countries in the Middle whole. All agricultural products, except trade shows designed to expand the East; and the developing economies of tobacco, are eligible for consideration. potential for U.S. agricultural exports Asia. Proposals which include multiple by focusing on the trading system. —Ineligible. Canada; Japan; Taiwan; commodities are also eligible. Only Examples: Retail training; marketing Hong Kong; South Korea; Australia; technical assistance activities are seminars; transportation seminars; New Zealand; all countries of Western eligible for reimbursement. training on opening new or expanding Europe; Slovenia; Israel; Barbados, 2. Appropriate Activities: Following existing markets. Aruba, and Antigua and Barbuda in are types of project activities that may The program funds technical the Caribbean; and Saudi Arabia, the be funded: assistance activities on a project-by- United Arab Emirates, Dubai, Abu —Projects designed specifically to project basis. EMP funds may not be Dhabi, and Qatar in the Middle East. improve market access in emerging used to support normal operating costs Some markets can be more difficult to foreign markets. Examples: Activities of individual organizations, nor as a develop and sustain over a period of intended to mitigate the impact of source by which to recover pre-award time; proposed activities in such sudden political events or economic costs or prior expenses from previous or markets should be considered in terms and currency crisis in order to ongoing projects. of whether they provide ‘‘viable and maintain U.S. market share; responses Ineligible activities include restaurant significant markets’’ for U.S. agricultural to time-sensitive market promotions; branded product exports. opportunities; promotions (including labeling and In the case of some oil-rich countries —Marketing and distribution of value- supplementing normal company sales in the Middle East, e.g., Saudi Arabia, added products, including new activities intended to increase targeted activities may be considered on products or uses. Examples: Food awareness and stimulate sales of a case-by-case basis, for example, service development; market research branded products); advertising; addressing technical barriers to on potential for consumer ready foods administrative and operational expenses exporting U.S. commodities. or new uses of a product; for trade shows; and the preparation and A few countries technically qualify as —Studies of food distribution channels printing of brochures, flyers, posters, emerging markets, but because of in emerging markets, including etc., except in connection with specific political sensitivities may require a infrastructural impediments to U.S. technical assistance activities such as separate determination before funding exports; such studies should be training seminars. Other items excluded can be considered.
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II. Award Information organizations will be considered if they unlikely to carry out the project without In general, all qualified proposals provide evidence of substantial such assistance. Applicants may submit received before the application deadline participation in and financial support more than one proposal. by the U.S. industry. For-profit entities will compete for EMP funding. Priority IV. Application and Submission are also eligible, but may not use consideration will be given to proposals Information that identify and seek to address program funds to conduct private 1. Address to Request Application specific problems or constraints to business, promote private self-interests, Package. For 2005, EMP applicants have agricultural exports in emerging markets supplement the costs of normal sales activities, or promote their own the opportunity to utilize the Unified through technical assistance activities products or services beyond specific Export Strategy (UES) application that are intended to expand or maintain uses approved by CCC in a given process, an online system which U.S. agricultural exports. Priority will project. provides a means for interested also be given to those proposals that U.S. market development cooperators applicants to submit a consolidated and include the willingness of the applicant and state regional trade groups (SRTGs) strategically coordinated single proposal to commit its own funds, or those of the may seek funding to address priority, that incorporates funding requests for U.S. industry, to seek export market specific issues and to undertake any or all of the market development opportunities in an emerging market. activities not suitable for funding under programs administered by FAS. The percentage of private funding other marketing programs, e.g., the Applicants are not required to use the proposed for a project will, therefore, be Foreign Market Development UES, but are strongly encouraged to do a critical factor in determining which Cooperator (Cooperator) Program and so because it reduces paperwork and proposals are funded under the EMP. the Market Access Program (MAP). expedites the FAS processing and Proposals will also be judged on their Foreign organizations, whether review cycle. Applicants planning to ability to provide benefits to the government or private, may participate use the on-line system must contact the organization receiving EMP funds and as third parties in activities carried out Marketing Operations Staff at (202) 720– to the broader industry which that by U.S. organizations, but are not 4327 to obtain site access information organization represents. eligible for funding assistance from the including a user of id and password. The limited funds and the range of program. The Internet-based application, emerging markets worldwide in which 2. Cost Sharing. No private sector including step-by-step instructions for the funds may be used preclude CCC proposal will be considered without the its use, is located at the following URL from approving large budgets for element of cost-share from the address: http://www.fas.usda.gov/ individual projects. While there is no participant and/or U.S. partners. The cooperators.html. A Help file is minimum or maximum amount set for EMP is intended to complement, not available to assist applicants with the EMP-funded projects, most are funded supplant, the efforts of the U.S. private process. Applicants using the online at a level of less than $250,000 and for sector. There is no minimum or system should also provide, promptly a duration of one year or less. Multi-year maximum amount of cost share, though after the deadline for submitting the on- proposals, and at higher cost, may be the range in recent successful proposals line application, a printed or e-mailed considered in the context of a strategic has been between 35 and 75 percent. version of each proposal (using Word or detailed plan of implementation. The degree of commitment to a compatible format) to one of the Funding in such cases is normally proposed project represented by the following address: provided one year at a time, with amount and type of private funding are commitments beyond the first year both used in determining which Hand Delivery (including FedEx, DHL, subject to interim evaluations. proposals will be approved for funding. UPS, etc.): U.S. Department of Funding for successful proposals will Cost-share may be actual cash invested Agriculture, Foreign Agricultural be provided through specific or professional time of staff assigned to Service, Marketing Operations Staff, agreements. The CCC, through FAS, will the project. Proposals in which private Room 4932–South, 1400 be kept informed of the implementation industry is willing to commit cash, Independence Avenue, SW., of approved projects through the rather than in-kind contributions such Washington, DC 20250–1042; requirement to provide quarterly as staff resources, will be given priority U.S. Postal Delivery: U.S. Department of progress reports and final performance consideration. Agriculture, Foreign Agricultural reports. Changes in the original project Cost-sharing is not required for Service, Marketing Operations Staff, time lines and adjustments within proposals from U.S. Government STOP 1042, 1400 Independence Ave., project budgets beyond a certain amount agencies, but is mandatory for all other SW., Washington, DC 20250–1042. E- must be approved by FAS. eligible entities, even when they may be mail address: [email protected]. party to a joint proposal with a U.S. Applicants electing not to use the III. Eligibility and Qualification Government agency. Contributions from online system must submit a printed Information USDA or other U.S. Government copy of their application to one of the 1. Eligible Applicants. Any United agencies or programs may not be above addresses: States private or Government entity counted toward the stated cost share 2. Content and Form of Application with a demonstrated role or interest in requirement. Similarly, contributions Submission. It is highly recommended exports of U.S. agricultural commodities from foreign (non-U.S.) organizations that any organization considering or products may apply to the program. may not be counted toward the cost applying to the program first obtain a Government organizations consist of share requirement, but may be counted copy of the EMP Regulations. The Federal, State, and local agencies. in the total cost of the project. regulations contain information on Private organizations include non-profit 3. Other. Proposals should include a requirements that a proposal must trade associations, universities, justification for funding assistance from include in order to be considered for agricultural cooperatives, state regional the program—an explanation as to what funding under the program, along with trade groups, and profit-making entities specifically could not be accomplished other important information. EMP and consulting businesses. Proposals without Federal funding assistance and regulations and additional information from research and consulting why participating organization(s) are may be obtained from the Marketing
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Operations Staff at the address above. funded with USDA sources in target —Evidence that the organization has the The regulations are also available at the country/countries (e.g., under MAP and/ knowledge, expertise, ability, and following URL address: http:// or FMD programs); and resources to successfully implement www.fas.usda.gov/mos/em-markets/em- (s) Detailed line item activity budget. the project. markets.html. Cost items should be allocated In addition, in accordance with the separately to each participating 2. Review and Selection Process. All Office of Management and Budget’s organization. Expense items constituting applications undergo a multi-phase policy directive regarding the use of a a proposed activity’s overall budget review within FAS, by appropriate FAS universal identifier for all Federal grants (e.g., salaries, travel expenses, field offices, and by the private sector or cooperative agreements, all consultant fees, administrative costs, Advisory Committee on Emerging applicants must submit a Dun and etc.), with a line item costs for each, Markets to determine qualifications, Bradstreet Data Universal Numbering should be listed, clearly indicating: quality and appropriateness of projects, System (DUNS) number prior to (1) Which items are to be covered by and reasonableness of project budgets submitting applications. An applicant EMP funding; prior to making recommendations to the may request a DUNS number at no cost (2) Which by the participating U.S. deciding official. by calling the dedicated toll-free DUNS organization(s); and 3. Anticipated Announcement Date. number request line on 1–866–705– (3) Which by foreign third parties (if 5711. applicable). Cost items for individual Announcements of funding decisions Applications should be no longer than consultant fees should show calculation for the EMP are anticipated on or about ten (10) pages and include the following of daily rate and number of days. Cost July 1, 2005. information: items for travel expenses should show VI. Award Administration Information (a) Date of proposal; number of trips, destinations, cost, and (b) Name of organization submitting objective for each trip. 1. Award Notices. FAS will notify proposal; Qualifications of applicant(s) should each applicant in writing of the final (c) Organization address, telephone be included as an attachment. disposition of its application. FAS will and fax numbers; 3. Submission Dates and Times. All send an approval letter and project (d) Tax ID number; proposals must be received by 5 p.m. (e) DUNS number; agreement to each approved applicant. eastern standard time on March 14, The approval letter and agreement will (f) Primary contact person; 2005, in the MOS office, either (g) Full title of proposal; specify the terms and conditions (h) Target market(s); electronically, hand delivered, or by applicable to the project, including the mail. Proposals received after this date (i) Current conditions in the target levels of EMP funding and cost-share and time will not be reviewed nor market(s) affecting the intended contribution requirements. commodity or product; considered for program funding. (j) Description of problem(s), i.e., 4. Funding Restrictions. Certain types 2. Administrative and National Policy constraint(s), to be addressed by the of expenses are not eligible for Requirements. Interested parties should project, such as: Inadequate knowledge reimbursement by the program, and review the EMP regulations which are of the market, insufficient trade there are limits on other categories of available at the following URL address: contacts, lack of awareness by foreign expenses such as indirect overhead http://www.fas.usda.gov/mos/em- officials of U.S. products and business charges, travel expenses and consulting markets/em-markets.html. Printed practices, impediments: infrastructure, fees. CCC will not reimburse copies may be obtained by contacting financing, regulatory or other non-tariff expenditures made prior to approval of MOS at (202) 720–4327. a proposal or unreasonable barriers, etc.; 3. Reporting. Quarterly progress (k) Project objectives; expenditures. Full details are available in the EMP regulations. reports for all programs one year or (l) Performance measures: longer in duration are required. Projects benchmarks for quantifying progress in V. Application Review Information of less than one year generally require meeting the objectives; (m) Rationale: Explanation of the 1. Criteria. Key criteria used in a mid-term progress report. Final underlying reasons for the project judging proposals include: performance reports are due 90 days proposal and its approach, the —The appropriateness of the activities after completion of each project. anticipated benefits, and any additional for the targeted market(s), and the Content for both types of reports is pertinent analysis; extent to which the project identifies contained in the Project Agreement. (n) Clear demonstration that market barriers, e.g., a fundamental Final financial reports are also due 90 successful implementation will benefit a deficiency in the market, and/or a days after completion of each project, as particular industry as a whole, not just recent change in market conditions; attachments to the final reports. the applicant(s); —Potential of the project to expand U.S. (o) Explanation as to what specifically market share, increase U.S. exports or VII. Agency Contact(s) could not be accomplished without sales, and/or improve awareness of For additional information and Federal funding assistance and why U.S. agricultural commodities and assistance, contact the Marketing participating organization(s) are products; Operations Staff, Foreign Agricultural —Quality of the project’s performance unlikely to carry out the project without Service, U.S. Department of Agriculture, such assistance; measures, and the degrees to which (p) Specific description of activity/ they relate to the objectives, proposed Room 4932 South, STOP 1042, 1400 activities to be undertaken; approach and activities, and Independence Ave., SW., Washington, (q) Time line(s) for implementation of deliverables; DC 20250–1042, phone: (202) 720–4327, activity, including start and end dates —Justification for Federal funding; fax: (202) 720–9361, e-mail: (start date should be no earlier than 15 —Budget: overall cost and the amount [email protected]. July 2005); of funding provided by applications, (r) Information on whether similar the U.S. private sector and partners, if activities are or have previously been any; and
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Signed at Washington, DC, on January 4, criteria contained herein. All time spent on design and execution of 2005. agricultural commodities, except activities. The Cooperator Program A. Ellen Terpstrd, tobacco, are eligible for consideration. regulations, in sections 1484.50 and Administrator, Foreign Agricultural Service The FAS allocates funds in a manner 1484.51, provide detailed discussion of and Vice President, Commodity Credit that effectively supports the strategic eligible and ineligible cost-share Corporation. decisionmaking initiatives of the contributions. [FR Doc. 05–722 Filed 1–12–05; 8:45 am] Government Performance and Results 3. Other. Applications should include BILLING CODE 3410–10–M Act (GPRA) of 1993 and the USDA’s a justification for funding assistance Food and Agricultural Policy (FAP). In from the program—an explanation as to deciding whether a proposed project what specifically could not be DEPARTMENT OF AGRICULTURE will contribute to the effective creation, accomplished without federal funding expansion, or maintenance of foreign assistance and why participating Commodity Credit Corporation markets, the FAS seeks to identify a organization(s) are unlikely to carry out clear, long-term agricultural trade the project without such assistance. Notice of Funds Availability: Inviting strategy and a program effectiveness IV. Application and Submission Applications for the Foreign Market time line against which results can be Information Development Cooperator Program measured at specific intervals using 1. Address to Request Application Announcement Type: New. quantifiable product or country goals. Catalog of Federal Domestic Assistance The FAS also considers the extent to Package. Organizations that are (CFDA) Number: 10.600. which a proposed project targets interested in applying for Cooperator Program funds are encouraged to submit SUMMARY: The Commodity Credit markets with the greatest potential. These factors are part of the FAS their requests using the Unified Export Corporation (CCC) announces that it is Strategy (UES) format. The UES allows inviting proposals for the 2006 Foreign resource allocation strategy to fund applicants who can demonstrate interested entities to submit a Market Development Cooperator consolidated and strategically (Cooperator) Program. The intended performance and address the objectives of the GPRA and FAP. coordinated single proposal that effect of this notice is to solicit incorporates requests for funding and applications from eligible applicants II. Award Information recommendations for virtually all the and award funds in June 2005. The Under the Cooperator Program, the FAS marketing programs, financial Cooperator Program is administered by FAS enters into agreements with assistance programs, and market access personnel of the Foreign Agricultural nonprofit U.S. trade organizations programs. The suggested UES format Service (FAS). which have the broadest possible encourages applicants to examine the DATES: All applications must be producer representation of the constraints or barriers to trade that the received by 5 p.m. eastern standard commodity being promoted and gives face, identify activities, which would time, March 14, 2005. Applications priority to those organizations which are help overcome such impediments, received after this date will not be nationwide in membership and scope. consider the entire pool of considered. Cooperators may receive assistance only complementary marketing tools and FOR FURTHER INFORMATION CONTACT: for the promotion of generic activities program resources, and establish Entities wishing to apply for funding that do not involve promotions targeted realistic export goals. Applicants are not assistance should contact the Marketing directly to consumers. The program required, however, to use the UES Operations Staff, Foreign Agricultural generally operates on a reimbursement format. Organizations can submit Service, U.S. Department of Agriculture, basis. applications in the EUS format by two methods. The first allows an applicant Room 4932–South, STOP 1042, 1400 III. Eligibility Information Independence Ave., SW., Washington, to submit information directly to the DC 20250–1042, phone: (202) 720–4327, 1. Eligible Applicants. To participate FAS through the Unified Export fax: (202) 720–9361, e-mail: in the Cooperator Program an applicant Strategy (UES) application Internet [email protected]. Information is must be a nonprofit U.S. agricultural website. The FAS highly recommends also available on the Foreign trade organization. applying via the Internet, as this format Agricultural Service, Web site at 2. Cost Sharing. To participate in the virtually eliminates paperwork and http://www.fas.usda.gov/mos/programs/ Cooperator Program, an applicant must expedites the FAS processing and fmd.html. agree contribute resources to its review cycle. Applicants also have the proposed promotional activities. The option of submitting electronic versions SUPPLEMENTARY INFORMATION: Cooperator Program is intended to (along with two paper copies) of their I. Funding Opportunity Description supplement, not supplant, the efforts of applications to the FAS on diskette. the U.S. private sector. The contribution Applicants planning to use the Authority: The Cooperator Program is must be stated in dollars and be at least Internet-based system must contact the authorized by title VII of the Agricultural 50 percent of the value of resources FAS Marketing Operations Staff on Trade Act of 1978, as amended. Cooperator provided by CCC for activities (202) 720–4327 to obtain site access Program regulations appear at 7 CFR part conducted under the project agreement. information. The Internet-based 1484. The degree of commitment of an application, including a Help file Purpose: The Cooperator Program is applicant to the promotional strategies containing step-by-step instructions for designed to create, expand, and contained in its application, as its use, may be found at the following maintain foreign markets for U.S. represented by the agreed cost share URL address: http://www.fas.usda./gov/ agricultural commodities and products contributions specified therein, is cooperators.html. through cost-share assistance. Financial considered by the FAS when Applicants who choose to submit assistance under the Cooperator determining which applications will be applications on diskette can obtain an Program will be made available on a approved for funding. Cost-share may be application format by contacting the competitive basis and applications will actual cash invested or in-kind Marketing Operations Staff on (202) be reviewed against the evaluation contributions, such as professional staff 720–4327.
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2. Content and Form of Application received by 5 p.m. eastern standard • The applicant’s 6-year average share Submission. To be considered for the time, March 14, 2005, at one of the (2000–2005) of all Cooperator marketing Cooperator Program, an applicant must following address: plan expenditures plus a 6-year average submit to the FAS information required Hand Delivery (including FedEx, share (1999–2004) of MAP expenditures by the Cooperator Program regulations DHL, UPS, etc.): U.S. Department of and a 6-year average share (1999–2004) in section 1484.20. In addition, in Agriculture, Foreign Agricultural of foreign overhead provided for co- accordance with the Office of Service, Marketing Operations Staff, location within a U.S. agricultural trade Management and Budget’s issuance of a Room 4932–S, 14th and Independence office. final policy (68 FR 38402) regarding the Avenue, SW., Washington, DC 20250– (c) Past Demand Expansion Performance need to identify entities that are 1042. (20) U.S. Postal Delivery: U.S. Department receiving government awards, all • The 6-year average share (2000– of Agriculture, Foreign Agricultural applicants must submit a Dun and 2005) of the total value of world trade Service, Marketing Operations Staff, Bradstreet Data Universal Numbering of the commodities promoted by the STOP 1042, 1400 Independence Ave., System (DUNS) number. An applicant applicant compared to SW., Washington, DC 20250–1042. may request a DUNS number at no cost • The applicant’s 6-year average share by calling the dedicated toll-free DUNS V. Application Review Information (2000–2005) of all Cooperator marketing number request line at 1–866–705–5711. plan expenditures plus a 6-year average Incomplete applications and 1. Criteria and Review Process. Following is a description of the FAS share (1999–2004) of MAP expenditures applications which do not otherwise and a 6-year average share (1999–2004) conform to this announcement will not process for reviewing applications and the criteria for allocating available of foreign overhead provided for co- be accepted for review. location within a U.S. agricultural trade The FAS administers various other Cooperator Program funds. office. agricultural export assistance programs, (1) Phase 1—Sufficiency Review and (d) Future Demand Expansion Goals including the Marketing Access Program FAS Divisional Review (MAP), Cochran Fellowships, the (10) • Emerging Markets Programs, the Quality Applications received by the closing The projected total dollar value of Samples Program, Technical Assistance date will be reviewed by the FAS to world trade of the commodities being for Specialty Crops Programs, and determine the eligibility of the promoted by the applicant for the year several Export Credit Guarantee applicants and the completeness of the 2011 compared to • programs. Any organization that is not applications. These requirements appear The applicant’s requested funding interested in applying for the at sections 1484.14 and 1484.20 of the level. Cooperator Program but would like to Cooperator Program regulations. (e) Accuracy of Past Demand Expansion request assistance through one of the Applications that meet the requirements Projections (10) other programs mentioned should then will be further evaluated by the • The actual dollar value share of proper FAS Commodity Division. The contact the Marketing Operations Staff world trade of the commodities being Divisions will review each application on (202) 720–4327. promoted by the applicant for the year against the criteria listed in sections 3. Submission Dates and Times. All 2004 compared to applications must be received by 5 p.m. 1484.21 and 1484.22 of the Cooperator • The applicant’s past projected share eastern standard time, March 14, 2005. Program regulations. The purpose of of world trade of the commodities being All Cooperator Program applicants, this review is to identify meritorious promoted by the applicant for the year regardless of the method of submitting proposals and to recommend an 2004, as specified in the 2004 appropriate funding level for each an application, also must submit by the Cooperator Program application. application deadline, via hand delivery application based upon these criteria. The Commodity Divisions or U.S. mail, an original signed (2) Phase 2—Competitive Review recommended funding levels for each certification statement as specified in 7 Meritorious applications then will be applicant are converted to percentages CFR section 1484.20(a)(14). passed on to the Office of the Deputy of the total Cooperator Program funds Applications or certifications received Administrator, Commodity and available then multiplied by the total after this date will not be considered. Marketing Programs, for the purpose of weight factor to determine the amount 4. Funding Restrictions. Certain types allocating available funds among the of funds allocated to each applicant. of expenses are not eligible for applicants. Applications will compete 2. Anticipate Announcement Date: reimbursement by the program, and for funds on the basis of the following Announcements of funding decisions there are limits on other categories of allocation criteria (the number in for the Cooperator Program are expenses. CCC will not reimburse parentheses represents a percentage anticipated during June 2005. unreasonable expenditures or weight factor): expenditures made prior to approval. VI. Award Administration Information Full details are available in the (a) Contribution Level (40) 1. Award Notices. The FAS will notify • Cooperator Program regulations in The applicant’s 6-year average share each applicant in writing of the final sections 1484.54 and 1484.55. (2001–2006) of all contributions disposition of its application. The FAS 5. Other Submission Requirements (contributions may include cash and will send an approval letter and project and Considerations. All Internet-based goods and services provided by U.S. agreement to each approved applicant. applications must be properly submitted entities in support of foreign market The approval letter and agreement will by 5 p.m. eastern standard time, March development activities) compare to specify the terms and conditions • 14, 2005. Signed certification statements The applicant’s 6-year average share applicable to the project, including the also must be received by that time at (2001–2006) of all Cooperator marketing levels of Cooperator Program funding one of the addresses listed below. plan expenditures. and cost-share contribution All applications on diskette (with two (b) Past Export Performance (20) requirements. accompanying paper copies and a • The 6-year average share (2000– 2. Administrative and National Policy signed certification statement) and any 2005) of the value of exports promoted Requirements. Interested parties should other form of application must be by the applicant compared to review the Cooperator Program
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regulations which are available at the http://www.fas.usda.gov/mos/programs/ contribute resources to its proposed following URL address http// mapprog.html. promotional activities. The MAP is www.fas.usda.gov/mos/programs/ intended to supplement, not supplant, SUPPLEMENTARY INFORMATION: fmd.html. Hard copies may be obtained the efforts of the U.S. private sector. In by contacting MOS at (202) 720–4327. I. Funding Opportunity Description the case of generic promotion, the 3. Reporting. The FAS requires Authority: The MAP is authorized contribution must be stated in dollars various reports and evaluations from under section 203 of the Agricultural and be at least 10 percent of the value Cooperators. Reporting requirements are Trade Act of 1978, as amended. MAP of resources provided by CCC for such detailed in the Cooperator Program regulations appear at 7 CFR part 1485. generic promotion. In the case of brand regulations in sections 1484.53, 1484.70, Purpose: The MAP is designed to promotion, the contribution must be and 1484.72. create, expand and maintain foreign stated in dollars and be at least 50 VII. Agency Contact(s) markets for United States’ agricultural percent of the total cost of such brand commodities and products through cost- promotion. For additional information and share assistance. Financial assistance The degree of commitment of an assistance, contact the Marketing under the MAP will be made available applicant to the promotional strategies Operations Staff, Foreign Agricultural on a competitive basis and applications contained in its application, as Service, U.S. Department of Agriculture, will be reviewed against the evaluation represented by the agreed cost share Room 4932–South, STOP 1042, 1400 criteria contained herein. All contributions specified therein, is Independence Ave., SW., Washington, agricultural commodities, except considered by the FAS when DC 20250–1042, phone (202) 720–4327, tobacco, are eligible for consideration. determining which applications will be fax: (202) 720–9351, email: The FAS allocates funds in a manner approved for funding. Cost-share may be [email protected] that effectively supports the strategic actual cash invested or in-kind Signed at Washington, DC on January 4, decision-making initiatives of the contributions, such as professional staff 2005. Government Performance and Results time spent on design and execution of A. Ellen Terpstro, Act (GPRA) of 1993 and the USDA’s activities. The MAP regulations, in Administrator, Foreign Agricultural Service Food and Agricultural Policy (FAP). In section 1485.13(c), provide detailed and Vice President, Commodity Credit deciding whether a proposed project discussion of eligible and ineligible Corporation. will contribute to the effective creation, cost-share contributions. [FR Doc. 05–725 Filed 1–12–05; 8:45 am] expansion, or maintenance of foreign 3. Other. Applications should include BILLING CODE 3410–10–M markets, the FAS seeks to identify a a justification for funding assistance clear, long-term agricultural trade from the program—an explanation as to strategy and a program effectiveness what specifically could not be DEPARTMENT OF AGRICULTURE time line against which results can be accomplished without Federal funding measured at specific intervals using assistance and why participating Commodity Credit Corporation quantifiable product or country goals. organization(s) are unlikely to carry out the project without such assistance. Notice of Funds Availability: Inviting The FAS also considers the extent to Applications for the Market Access which a proposed project targets IV. Application and Submission Program markets with the greatest growth Information potential. These factors are part of the 1. Address to Request Application Announcement Type: New. FAS resource allocation strategy to fund Package. Organizations that are Catalog of Federal Domestic Assistance applicants who can demonstrate interested in applying for MAP funds (CFDA) Number: 10.601. performance and address the objectives are encouraged to submit their requests SUMMARY: of the GPRA and FAP. The Commodity Credit using the UES format. The UES allows Corporation (CCC) announces that it is II. Award Information interested entities to submit a inviting proposals for the 2005/2006 Under the MAP, the CCC enters into consolidated and strategically Market Access Program (MAP). The coordinated single proposal that intended effect of this notice is to solicit agreements with eligible participants to share the costs of certain overseas incorporates requests for funding and applications from eligible applicants recommendations for virtually all the and award funds in June 2005. The marketing and promotion activities. MAP participants may receive FAS marketing programs, financial MAP is administered by personnel of assistance programs, and market access the Foreign Agricultural Service (FAS). assistance for either generic or brand promotion activities. The program programs. The suggested UES format DATES: All applications must be encourages applicants to examine the received by 5 p.m. eastern standard generally operates on a reimbursement basis. constraints or barriers to trade, which time, March 14, 2005. Applications they face, identify activities, which received after this date will not be III. Eligibility Information would help overcome such considered. 1. Eligible Applicants. To participate impediments, consider the entire pool FOR FURTHER INFORMATION CONTACT: in the MAP, an applicant must be: a of complementary marketing tools and Entities wishing to apply for funding nonprofit U.S. agricultural trade program resources, and establish assistance should contact the Marketing organization, a nonprofit state regional realistic export goals. Applicants are not Operations Staff, Foreign Agricultural trade group (i.e., an association of State required, however, to use the UES Service, U.S. Department of Agriculture, Departments of Agriculture), a U.S. format. Organizations can submit Room 4932–South, STOP 1042, 1400 agricultural cooperative, or a State applications in the UES format by two Independence Avenue, SW., agency. A small-sized U.S. commercial methods. The first allows an application Washington, DC 20250–1042, phone: entity (other than a cooperative or to submit information directly to the (202) 720–4327, fax: (202) 720–9361, e- producer association) may participate FAS through the Unified Export mail: [email protected]. through a MAP participant. Strategy (UES) application Internet Web Information is also available on the 2. Cost Sharing. To participate in the site. The FAS highly recommends Foreign Agricultural Service Web site at MAP, an applicant must agree to applying via the Internet, as this format
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virtually eliminates paperwork and 4. Funding Restrictions. Certain types allocating available funds among the expedites the FAS processing and of expenses are not eligible for applicants. Applications will compete review cycle. Applicants also have the reimbursement by the program, and for funds on the basis of the following option of submitting electronic versions there are limits on other categories of allocation criteria (the number in (along with two paper copies) of their expenses. CCC will not reimburse parentheses represents a percentage applications to the FAS on diskette. unreasonable expenditures or weight factor): Applicants planning to use the expenditures made prior to approval. (a) Applicant’s Contribution Level (40) Internet-based system must contact the Full details are available in the MAP • FAS Marketing Operations Staff on regulations in section 1485.16. The applicant’s 4-year average share (202) 732–4327 to obtain site access 5. Other Submission Requirements (2002–2005) of all contributions (cash information. The Internet-based and Considerations. All Internet-based and goods and services provided by U.S. application, including a Help file applications must be properly submitted entities in support of overseas marketing by 5 p.m. eastern standard time, March and promotion activities) compared to containing step-by-step instructions for • its use, may be found at the following 14, 2005. Signed certification statements The applicant’s 4-year average share URL address: http://www.fas.usda.gov/ also must be received by that time at (2002–2005) of the funding level for all cooperators.html. one of the addresses listed below. MAP participants. Applicants who choose to submit All applications on diskette (with two (b) Past Performance (30) applications on diskette can obtain an accompanying paper copies and a • signed certification statement) and any The 3-year average share (2002– application format by contacting the 2004) of the value of exports promoted other form of application must be Marketing Operations Staff on (202) by the applicant compared to received by 5 p.m. eastern standard 720–4327. • The applicant’s 2-year average share 2. Content and Form of Application time, March 14, 2005, at one of the (2003–2004) of the funding level for all Submission. To be considered for the following addresses: MAP applicants plus, for those groups Hand Delivery (including FedEx, MAP, an applicant must submit to the participating in the Cooperator program, DHL, UPS, etc.): U.S. Department of FAS information required by the MAP the 2-year average share (2004–2005) of Agriculture, Foreign Agricultural regulations in section 1485.13. In Cooperator marketing plan budgets, and Service, Marketing Operations Staff, addition, in accordance with the Office the 2-year average share (2003–2004) of Room 4932–S, 14th and Independence of Management and Budget’s issuance of foreign overhead provided for co- a final policy (68 FR 38402) regarding Avenue, SW., Washington, DC 20250– location within a U.S. agricultural the need to identify entities that are 1042. office; receiving government awards, all U.S. Postal Delivery: U.S. Department applicants must submit a Dun and of Agriculture, Foreign Agricultural (c) Projected Export Goals (15) Bradstreet Data Universal Numbering Service, Marketing Operations Staff, • The total dollar value of projected System (DUNS) number. An applicant STOP 1042, 1400 Independence exports promoted by the applicant for may request a DUNS number at no cost Avenue, SW., Washington, DC 20250– 2005 compared to by calling the dedicated toll-free DUNS 1042. • The applicant’s requested funding number request line at 1–866–705–5711. V. Application Review Information level; Incomplete applications and 1. Criteria and Review Process. (d) Accuracy of Past Projections (15) applications which do not otherwise Following is a description of the FAS • Actual exports for 2003 as reported conform to this announcement will not process for reviewing applications and be accepted for review. in the 2005 MAP application compared the criteria for allocating available MAP to The FAS administers various other funds. • Past projections for exports for 2003 agricultural export assistance programs (1) Phase 1—Sufficiency Review and as specified in the 2003 MAP including the Foreign Market application. FAS Divisional Review Development Cooperator (Cooperator) The Commodity Divisions’ Program, Cochran Fellowships, the Applications received by the closing recommended funding levels for each Emerging Markets Program, the Quality date will be reviewed by the FAS to applicant are converted to percentages Samples Program, the Technical determine the eligibility of the of the total MAP funds available then Assistance for Specialty Crops Program applicants and the completeness of the multiplied by the total weight factor as and several Export Credit Guarantee applications. These requirements appear described above to determine the programs. Any organization that is not at sections 1485.12 and 1485.13 of the amount of funds allocated to each interested in applying for the MAP but MAP regulations. Applications that applicant. would like to request assistance through meet the requirements then will be 2. Anticipated Announcement Date. one of the other programs mentioned further evaluated by the proper FAS Announcements of funding decisions should contact the Marketing Commodity Division. The Divisions will for the MAP are anticipated during June Operations Staff on (202) 720–4327. review each application against the 2005. 3. Submission Dates and Times. All criteria listed in section 1485.14 of the VI. Award Administration Information applications must be received by 5 p.m. MAP regulations. The purpose of this eastern standard time, March 14, 2005. review is to identify meritorious 1. Award Notices. The FAS will notify All MAP applicants, regardless of the proposals and to recommend an each applicant in writing of the final method of submitting an application, appropriate funding level for each disposition of its application. The FAS also must submit by the application application based upon these criteria. will send an approval letter and project deadline, via hand delivery or U.S. mail, agreement to each approved applicant. an original signed certification (2) Phase 2—Competitive Review The approval letter and agreement will statement as specified in 7 CFR Meritorious applications then will be specify the terms and conditions 1485.13(a)(2)9i)(G). Applications or passed on to the Office of the Deputy applicable to the project, including the certifications received after this date Administrator, Commodity and levels of MAP funding and cost-share will not be considered. Marketing Programs, for the purpose of contribution requirements.
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2. Administrative and National Policy Washington, DC 20250–1042, phone: • Projects should develop a new Requirements. Interested parties should (202) 720–4327, fax: (202) 720–9361, e- market for a U.S. product, promote a review the MAP regulations which are mail: [email protected]. new U.S. product, or promote a new use available at the following URL address: Information is also available on the for a U.S. product, rather than promote http://www.fas.usda.gov/mos/programs/ Foreign Agricultural Service Web site at the substitution of one established U.S. mapprog.html. Hard copies may be http://www.fas.usda.gov/mos/programs/ product for another; obtained by contacting MOS at (202) QSP.html. • Sample commodities provided 720–4327. SUPPLEMENTARY INFORMATION: under a QSP project must be in 3. Reporting. The FAS requires sufficient supply and available on a various reports and evaluations from I. Funding Opportunity Description commercial basis; MAP participants. Reporting • The QSP project must either subject requirements are detailed in the MAP Authority: The QSP is authorized under the commodity sample to further regulations in section 1485.20(b) and section 5(f) of the CCC Charter Act, 15 U.S.C. 714c(f). processing or substantial transformation (c). in the importing country, or the sample Purpose: The QSP is designed to must be used in technical seminars VII. Agency Contact(s) encourage the development and designed to demonstrate to an For additional information and expansion of export markets for U.S. appropriate target audience the proper assistance, contact the Marketing agricultural commodities by assisting preparation or use of the sample in the Operations Staff, Foreign Agricultural U.S. entities in providing commodity creation of an end product; Service, U.S. Department of Agriculture, samples to potential foreign importers to • Samples provided in a QSP project Room 4932 South, STOP 1042, 1400 promote a better understanding and shall not be directly used as part of a Independence Ave., SW., Washington, appreciation for the high quality of U.S. retail promotion or supplied directly to DC 20250–1042, phone: (202) 720–4327, agricultural commodities. consumers. However, the end product, fax: (202) 720–9361, e-mail: QSP participants will be responsible that is, the product resulting from [email protected]. for procuring (or arranging for the further processing, substantial procurement of) commodity samples, Signed at Washington, DC on January 4, transformation, or a technical seminar, 2005. exporting the samples, and providing may be provided to end-use consumers the technical assistance necessary to A. Ellen Terpstra, to demonstrate to importers consumer facilitate successful use of the samples Administrator, Foreign Agricultural Service, preference for that end product; and, and Vice President, Commodity Credit by importers. Participants that are • Samples shall be in quantities less Corporation. funded under this announcement may than a typical commercial sale and [FR Doc. 05–723 Filed 1–12–05; 8:45 am] seek reimbursement for the sample limited to the amount sufficient to purchase price and the costs of BILLING CODE 3410–10–M achieve the project goal (e.g., not more transporting the samples domestically to than a full commercial mill run in the the port of export and then to the destination country). DEPARTMENT OF AGRICULTURE foreign port, or point, of entry. QSP projects shall target foreign Transportation costs from the foreign importers and target audiences who: Commodity Credit Corporation port, or point, of entry to the final • Have not previously purchased the destination will not be eligible for U.S. commodity which will be Notice of Funds Availability: Inviting reimbursement. CCC will not reimburse transported under the QSP; Applications for the Quality Samples the costs incidental to purchasing and • Are unfamiliar with the variety, Program transporting samples, for example, quality attribute, or end-use inspection or documentation fees. Announcement Type: New. characteristic of the U.S. commodity Catalog of Federal Domestic Assistance Although providing technical assistance which will be transported under the (CFDA) Number: 10.605. is required for all projects, CCC will not QSP; reimburse the costs of providing • Have been unsuccessful in previous SUMMARY: The Commodity Credit technical assistance. A QSP participant attempts to import, process, and market Corporation (CCC) announces the will be reimbursed after CCC reviews its the U.S. commodity which will be availability of $2.5 million in funding reimbursement claim and determines transported under the QSP (e.g., because for the 2005 Quality Samples Program that the claim is complete. of improper specification, blending, or (QSP). The intended effect of this notice General Scope of QSP Projects: QSP formulation; or sanitary or is to solicit applications and award projects are the activities undertaken by phytosanitary issues); funds in June 2005. The QSP is a QSP participant to provide an • Are interested in testing or administered by personnel of the appropriate sample of a U.S. agricultural demonstrating the benefits of the U.S. Foreign Agricultural Service (FAS). This commodity to a foreign importer, or a commodity which will be transported notice supercedes any prior notices group of foreign importers, in a given under the QSP; or, concerning the QSP. market. The purpose of the project is to • Need technical assistance in DATES: All proposals must be received provide information to an appropriate processing or using the U.S. commodity by 5 p.m. eastern standard time, March target audience regarding the attributes, that will be transported under the QSP. 14, 2005. Applications received after characteristics, and proper use of the II. Award Information this date will be considered only if U.S. commodity. A QSP project funds are still available. addresses a single market/commodity Under this announcement, the FOR FURTHER INFORMATION CONTACT: combination. number of projects per participant will Entities wishing to apply for funding As a general matter, QSP projects not be limited. However, individual assistance should contact the Marketing should conform to the following project will be limited to $75,000 of Operations Staff, Foreign Agricultural guidelines: QSP reimbursement. Projects comprised Service, U.S. Department of Agriculture, • Projects should benefit the of technical preparation seminars, that Room 4932–S, STOP 1042, 1400 represented U.S. industry and not a is, projects that do not include further Independence Avenue, SW., specific company or brand; processing or substantial
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transformation, will be limited to (202) 720–4327, fax: (202) 720–9361, e- trial, the attributes of the sample to be $15,000 of QSP reimbursement as these mail: [email protected]. demonstrated and its end-use benefit, projects require smaller samples. 2. Content and Form of Application and details of the trade/technical Financial assistance will be made Submission. To be considered for the servicing component (including who available on a reimbursement basis; that QSP, an applicant must submit to the will provide and who will fund this is, cash advances will not be made FAS information detailed in this notice. component); available to any QSP participant. In addition, in accordance with the • A same description (i.e., All proposals will be reviewed against Office of Management and Budget’s commodity, quality, type, and grade), the evaluation criteria contained herein issuance of a final policy (68 FR 38402) including a justification for selecting a and funds will be awarded on a regarding the need to identify entities sample with such characteristics (this competitive basis. Funding for that are receiving government awards, justification should explain in detail successful proposals will be provided all applicants must submit a Dun and why the project could not be effective through specific agreements. These Bradstreet Data Universal Numbering with a smaller sample); agreements will incorporate the System (DUNS) number. An applicant • An itemized list of all estimated proposal as approved by FAS. FAS must may request a DUNS number at no cost costs associated with the project for approve in advance any subsequent by calling the dedicated toll-free DUNS which reimbursement will be sought; changes to the project. number request line at 1–866–705–5711. and Incomplete applications and • The importer’s role in the project III. Eligibility Information applications which do not otherwise regarding handling and processing the 1. Eligible Applicants. Any United conform to this announcement will not commodity sample; and States private or government entity with be accepted for review. (d) Information indicating all funding a demonstrated role or interest in Applicants to the QSP are not sources and amounts to be contributed exporting U.S. agricultural commodities required to submit proposals in any by each entity that will supplement may apply to the program. Government specific format; however, FAS implementation of the proposed project. organizations consist of Federal, State, recommends that proposals contain, at a This may include the organization that and local agencies. Private organizations minimum, the following: submitted the proposal, private industry include non-profit trade associations, (a) Organizational information, entities, host government, foreign third universities, agricultural cooperatives, including: parties, CCC, FAS, or other Federal • state regional trade groups, and profit- Organization’s name, address, Chief agencies. Contributed resources may making entities. Executive Officer (or designee), Federal include cash or goods and services. 2. Cost Sharing. Although a minimum Tax Identification Number (TIN), and 3. Submission Dates and Times. All level of cost share contribution is not DUNS number; applications must be received by 5 p.m. • Type of organization; required under the program, FAS does • eastern standard time, March 14, 2005. consider the applicant’s willingness to Name, telephone number, fax Applications received after this date contribute resources, including cash and number, and e-mail address of the will be considered only if funds are still goods and services of the U.S. industry primary contact person; available. • A description of the organization and foreign third parties, when 4. Funding Restriction. Proposals and its membership; determining which proposals are • A description of the organization’s which request more than $75,000 of approved for funding. prior export promotion experience; and CCC funding for individual projects will IV. Application and Submission • A description of the organization’s not be considered. Projects comprised of Information experience in implementing an technical preparation seminars will be appropriate trade/technical assistance limited to $15,000 in QSP funding. CCC 1. Address to Request Application component; will not reimburse expenditures made Package. Organizations can submit (b) Market information, including: prior to approval of a proposal or applications to the FAS through the • An assessment of the market; unreasonable expenditures. Unified Export Strategy (UES) • A long-term strategy in the market; 5. Other Submission Requirements. application Internet Web site. and All applications on diskette (with two Applicants also have the option of • U.S. export value/volume and accompanying paper copies) and any submitting electronic versions in the market share (historic and goals) for other form of application must be UES format (along with two paper 2001–2006; received by 5 p.m. Eastern Standard copies) of their applications to the FAS (c) Project information, including: time, March 14, 2005, at one of the on diskette. However, the UES format is • A brief project title; following addresses: not required. • Amount of funding requested; Hand Deliver (including FedEx, UPS, Applicants planning to use the UES • A brief description of the specific etc.): U.S. Department of Agriculture, Internet-based system must contact the market development trade constraint or Foreign Agricultural Service, Marketing FAS Marketing Operations Staff on opportunity to be addressed by the Operations Staff, Room 4932–S, 14th (202) 720–4327 to obtain site access project, performance measures for the and Independence Avenue, SW., information including a user ID and years 2005–2007 which will be used to Washington, DC 20250–1042. password. The UES Internet-based measure the effectiveness of the project, U.S. Postal Delivery: U.S. Department application, including a Help file a benchmark performance measure for of Agriculture, Foreign Agricultural containing step-by-step instructions for 2004, the viability of long term sales to Service, Marketing Operations Staff, its use, may be found at the following this market, the goals of the project, and STOP 1042, 1400 Independence URL address: http://www.fas.usda.gov/ the expected benefits to the represented Avenue, SW., Washington, DC 20250– cooperators.html. industry; 1042. Applicants who choose to submit • A description of the activities applications on diskette can obtain an planned to address the constraint or V. Application Review Information application format by contacting the opportunity, including how the sample 1. Criteria. FAS will use the following Marketing Operations Staff, phone: will be used in the end-use performance criteria in evaluating proposals:
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∑ The ability of the organization to The approval letter and agreement will DEPARTMENT OF AGRICULTURE provide an experienced staff with the specify the terms and conditions requisite technical and trade experience applicable to the project, including the Commodity Credit Corporation to execute the proposal; levels of QSP funding and any cost- ∑ The extent to which the proposal is share contribution requirements. Notice of Funds Availability: Inviting Applications for the Technical targeted to a market in which the United 2. Administrative and National Policy States is generally competitive; Assistance for Specialty Crops ∑ Requirements. The agreements will Program The potential for expanding incorporate the details of each project as commercial sales in the proposed approved by FAS. Each agreement will Announcement Type: New. market; ∑ identify terms and conditions pursuant Catalog of Federal Domestic Assistance The nature of the specific market to which CCC will reimburse certain (CFDA) Number: 10.604. constraint or opportunity involved and costs of each project. Agreements will SUMMARY: The Commodity Credit how well it is addressed by the also outline the responsibilities of the Corporation (CCC) announces the proposal; participant, including, but not limited ∑ The extent to which the importer’s availability of funding for the 2005 to, procurement (or arranging for contribution in terms of handling and Technical Assistance for Specialty procurement) of the commodity sample processing enhances the potential Crops (TASC) Program. The intended at a fair market price, arranging for outcome of the project; effect of this notice is to solicit transportation of the commodity sample ∑ The amount of reimbursement applications from the private sector and within the time limit specified in the requested and the organization’s from government agencies for agreement, (organizations should Willingness to contribute resources, participation in the FY 2005 TASC endeavor to ship commodities within 6 including cash and goods and services Program. The TASC Program is months of effective date of agreement), of the U.S. industry and foreign third administered by personnel of the compliance with cargo preference parties; and Foreign Agricultural Service (FAS). ∑ How well the proposed technical requirements (shipment on United DATES: See paragraph IV.3 below for a assistance component assures that States flag vessels, as required), detailed description of relevant dates. performance trials will effectively compliance with the Fly American Act demonstrate the intended end-use- requirements (shipment on United FOR FURTHER INFORMATION CONTACT: benefit. States air carriers, as required), timely Entities wishing to apply for funding Highest priority for funding under and effective implementation of assistance should contact the Marketing this announcement will be given to technical assistance, and submission of Operations Staff, Foreign Agricultural meritorious proposals that target a written evaluation report within 90 Service, U.S. Department of Agriculture, countries that meet either of the days of expiration of the agreement. Room 4932–S, Stop 1042, 1400 following criteria: QSP agreements are subject to review Independence Ave., SW., Washington, ∑ Per capita income less than $9,075 and verification by the FAS Compliance DC 20250–1042, phone: (202) 720–4327, (the ceiling on upper middle income Review Staff. Upon request, a QSP fax: (202) 720–9361, e-mail: economies as determined by the World participant shall provide to CCC the [email protected]. Information is Bank [World Development Indicators original documents which support the also available on the Foreign 2005]); and population greater than 1 participant’s reimbursement claims. Agricultural Service Web site at http:// million. Proposals may address suitable CCC may deny a claim for www.fas.usda.gov/mos/tasc/tasc.html. reimbursement if the claim is not regional groupings, for example, the SUPPLEMENTARY INFORMATION: islands of the Caribbean Basin; or supported by adequate documentation. ∑ U.S. market share of imports of the 3. Reporting. A written evaluation I. Funding Opportunity Description commodity identified in the proposal of report must be submitted within 90 days Authority: The TASC Program is 10 percent of less. of the expiration of each participant’s 2. Review and Selection Process. authorized by section 3205 of Pub. L. 107– QSP agreement. Evaluation reports 171. Proposals will be evaluated by the should address all performance applicable FAS commodity division. measures that were presented in the TASC regulations appear at 7 CFR The divisions will review each proposal proposal. part 1487. against the factors described above. The VII. Agency Contact(s) Purpose: The TASC Program is purpose of this review is to identify designed to assist U.S. organizations by meritorious proposals, recommend an For additional information and providing funding for projects that appropriate funding level for each assistance, contact the Marketing address sanitary, phytosanitary, and proposal based upon these factors, and Operations Staff, Foreign Agricultural technical barriers that prohibit or submit the proposals and funding Service, U.S. Department of Agriculture, threaten the export of U.S. specialty recommendations to the Deputy Room 4932 South, STOP 1042, 1400 crops. U.S. specialty crops, for the Administrator, Commodity and Independence Avenue, SW., purpose of the TASC Program, are Marketing Programs. Washington, DC 20250–1042, Phone: defined to include all cultivated plants, 3. Anticipated Announcement Date. (202) 720–4327, fax: (202) 720–9361, e- or the products thereof, produced in the Announcements of funding decisions mail: [email protected]. U.S., except wheat, feed grains, oilseeds for the QSP are anticipated during June cotton, rice, peanuts, sugar, and tobacco. 2005. Dated: Signed at Washington, DC on January 4, 2005. As a general matter, TASC Program VI. Award Administration Information A. Ellen Terpstra, projects should be designed to 1. Award Notices. The FAS will notify Administrator, Foreign Agricultural Service, accomplish the following goals: each applicant in writing of the final and Vice President, Commodity Credit • Projects should address a sanitary, disposition of its application. The FAS Corporation. phytosanitary, or related technical will send an approval letter and [FR Doc. 05–687 Filed 1–12–05; 8:45 am] barrier that prohibits or threatens the agreement to each approved applicant. BILLING CODE 3410–10–M export of U.S. specialty crops;
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• Projects should demonstrably Foreign organizations, whether applications which do not otherwise benefit the represented industry and not government or private, may participate conform to this announcement will not a specific company or brand; and, as third parties in activities carried out be accepted for review. • Projects must address barriers to by U.S. organizations, but are not 3. Submission Dates and Times: U.S. specialty crops that are currently eligible for funding assistance from the TASC funding is limited, and in order available on a commercial basis and for program. to assure sufficient resources are which barrier removal would 2. Cost Sharing or Matching: Although available to meet unanticipated needs predominantly benefit U.S. exports. a minimum level of cost share during the fiscal year, TASC proposals Examples of expenses that the CCC contribution is not required, it is very will, generally, only be evaluated on a may agree to reimburse under the TASC strongly encouraged in this highly semi-annual basis. That is: Program include, but are not limited to: competitive program. If provided, such ∑ Proposals received prior to, but not initial pre-clearance programs, export support may be in the form of cash, later than 5 p.m. (local time protocol and work plan support, goods, or in-kind services which are Washington, DC) February 1, 2005, will seminars and workshops, study tours, dedicate to the project by the be considered for funding with other field surveys, development of pest lists, organization that submitted the proposals received by that date; pest and disease research, database proposal, private industry entities, host ∑ Proposals received prior to but not development, reasonable logistical and governments, or foreign third parties. later than 5 p.m. (local time Washington, DC) July 1, 2005, will be administrative support, and travel and IV. Application and Submission considered for funding with other per diem expenses. Information proposals received by that date; II. Award Information 1. Address to Request Application ∑ Proposals not approved for funding In general, all qualified proposals Package: Organizations can submit during the applicable review period will received before the specified application applications to the FAS through the be reconsidered for funding after the deadlines will complete for funding. Unified Export Strategy (UES) applicable review period only if the The limited funds and the range of application Internet Web site. applicant specifically requests such barriers affecting the exports of U.S. Applicants also have the option of reconsideration in writing, and only if specialty crops worldwide preclude submitting electronic versions in the funding remains available. CCC from approving large budgets for UES format (along with two paper ∑ Proposals received after 5 p.m. individual projects. In prior years, the copies) of their applications to the FAS (local time, Washington, DC) July 1, amount of funding per proposal has on diskette. 2005, will be considered for funding ranged from $13,000 to $250,000, the Applicants planning to use the UES only if funding remains available. maximum allowed. Internet-based system must contact the Nothwithstanding the foregoing, a Applicants may submit multiple FAS Marketing Operations Staff on proposal maybe submitted for expedited proposals, and applicants with (202) 720–4327 to obtain site access consideration under the TASC Quick previously approved TASC proposals information including a user ID and Response process, if, in addition to may apply for additional funding. password. The UES Internet-based meeting all requirements of the TASC However, no TASC participant may application, including a Help file program, a proposal clearly identifies have more than three approved projects containing step-by-step instructions for time-sensitive activity. In these cases, a underway at any given time. its use, may be found at the following proposal may be submitted at any time The FAS will consider providing URL address: http://www.fas.usda.gov/ for an immediate evaluation. either grant funds as direct assistance to cooperators.html. Applicants are not All proposals will be date stamped U.S. organizations or providing required to use the UES, but are strongly upon receipt. technical assistance on behalf of U.S. encouraged to do so because it reduces 4. Funding Restrictions: Proposals organizations, provided that the paperwork and expedites the FAS which request more than $250,000 of organization submits timely and processing and review cycle. CCC funding in a given year will not be qualified proposals. The FAS will Applicants who choose to submit considered. Proposals to fund projects review all proposals against the applications on diskette can obtain an that exceed three years in duration will evaluation criteria contained in the application format by contacting the not be considered. No TASC participant program regulations. Marketing Operations Staff, phone: may have more than three approved Funding for successful proposals will (202) 720–4327, fax: (202) 720–9361, e- projects underway at any given time. be provided through specific mail: [email protected]. Although funded projects may take agreements. These agreements will 2. Content and Form of Application place in the United States, all eligible incorporate the proposal as approved by Submission: All TASC proposals must projects must specifically address FAS. FAS must approve in advance any contain complete information about the sanitary, phytosanitary, or technical subsequent changes to the project. The proposed projects as described in barriers to the export of U.S. specialty FAS or another Federal agency may § 1487.5(b) of the TASC Program crops. have involvement in the regulations. In addition, in accordance Certain types of expenses are not implementation of approved projects. with the Office of Management and eligible for reimbursement by the Budget’s issuance of a final policy (68 program. For example, program funds III. Eligibility Information FR 38402) regarding the use of a shall not be used to reimburse the cost 1. Eligible Applicants: Any United universal identifier for all Federal grants of market research, advertising, or other States organization, private or and cooperative agreements, all promotional expenses. CCC will not government, may apply to the program. applicants must submit a Dun and reimburse unreasonable expenditures or Government organizations consist of Bradstreet Data Universal Numbering any expenditures made prior to federal, state, and local agencies. Private System (DUNS) number. An applicant approval of a proposal. organizations include non-profit trade may request a DUNS number at no cost 5. Other Submission Requirements: associations, universities, agricultural by calling the dedicated toll-free DUNS All Internet-based applications must be cooperatives, state regional trade number request line on 1–866–705– properly submitted by 5 p.m. (local time groups, and private companies. 5711. Incomplete applications and in Washington, DC) on February 1,
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2005, or July 1, 2005, in order to be recordkeeping requirements described FOR FURTHER INFORMATION CONTACT: considered during the applicable review in 7 CFR part 3019. In addition, Appeals and Litigation Group Leader; period. participants are required to submit a Northern Region; P.O. Box 7669; All applications on diskette (with two written report(s), on no less than an Missoula, Montana 59807. Phone: (406) accompanying paper copies) and any annual basis, and a final report, each of 329–3696. other applications must be received by which evaluates their TASC project The newspapers to be used are as 5 p.m. (local time in Washington, DC) using the performance measures follows: on February 1, 2005, or July 1, 2005, at presented in the approved proposal. one of the following addresses: Northern Regional Office Hand Delivery (including FedEx, VII. Agency Contact Regional Forester decisions in DHL, UPS, etc.): U.S. Department of For additional information or Montana: The Missoulian, Great Falls Agriculture, Foreign Agricultural assistance, contact the Marketing Tribune, and The Billings Gazette. Service, Marketing Operations Staff, Operations Staff, Foreign Agricultural Regional Forester decisions in Room 4942–S, 14th and Independence Service, U.S. Department of Agriculture, Northern Idaho and Eastern Avenue, SW., Washington, DC 20250– Room 4932–S, Stop 1042, 1400 Washington: The Spokesman Review 1042. Independence Ave., SW., Washington, and Lewiston Morning Tribune. U.S. Postal Delivery: U.S. Department DC 20250–1042, phone: (202) 720–4327, Regional Forester decisions in North of Agriculture, Foreign Agricultural fax: (202) 720–9361, e-mail: Dakota: Bismarck Tribune. Service, Marketing Operations Staff, [email protected]. Regional Forester decisions in South STOP 1042, 1400 Independence Ave., Signed at Washington, DC on January 4, Dakota: Rapid City Journal. SW., Washington, DC 20250–1042. 2005. Beaverhead/Deerlodge NF—Montana Standard. V. Application Review Information A. Ellen Terpstra, Bitterroot NF—Ravalli Republic. Administrator, Foreign Agricultural Service, 1. Criteria: The FAS follows the Clearwater NF—Lewiston Morning evaluation criteria set forth in § 1487.6 and Vice President, Commodity Credit Corporation. Tribune. of the TASC regulations. [FR Doc. 05–724 Filed 1–12–05; 8:45 am] Custer NF—Billings Gazette 2. Review and Selection Process: The (Montana), Rapid City Journal (South FAS will review proposals for eligibility BILLING CODE 3410–10–M Dakota). and will evaluate each proposal against Dakota Prairie Grasslands—Bismarck the factors described above. The DEPARTMENT OF AGRICULTURE Tribune (North and South Dakota). purpose of this review is to identify Flathead NF—Daily Inter Lake. meritorious proposals, recommend an Forest Service Gallatin NF—Bozeman Chronicle. appropriate funding level for each Helena NF—Independent Record. proposal based upon these factors, and Newspapers Used for Publication of Idaho Panhandle NFs—Spokesman submit the proposals and funding Legal Notice of Appealable Decisions Review. recommendations to the Deputy for the Northern Region; Northern Kootenai NF—Daily Inter Lake. Administrator, Commodity and Idaho, Montana, North Dakota, and Lewis & Clark NF—Great Falls Marketing Programs. The FAS may, portions of South Dakota and Eastern Tribune. when appropriate to the subject matter Washington Lolo NF—Missoulian. of the proposal, request the assistance of Nez Perce NF—Lewiston Morning other U.S. government experts in AGENCY: Forest Service, USDA. Tribune. evaluating the merits of a proposal. ACTION: Notice. Supplemental notices may be placed in any newspaper, but time frames/ VI. Award Administration Information SUMMARY: This notice lists the deadlines will be calculated based upon newspapers that will be used by all 1. Award Notices: The FAS will notify notices in newspapers of record listed Ranger Districts, Forests, Grasslands, each applicant in writing of the final above. disposition of its application. The FAS and the Regional Office of the Northern will send an approval letter and Region to publish legal notices for Dated: January 5, 2005. agreement to each approved applicant. public comment and decisions subject Kathleen A. McAllister, The approval letter and agreement will to appeal and predecisional Deputy Regional Forester. specify the terms and conditions administrative review under 36 CFR [FR Doc. 05–706 Filed 1–12–05; 8:45 am] applicable to the project, including parts 215, 217, and 218. The intended BILLING CODE 3410–11–M levels of funding, timelines for effect of this action is to inform implementation, and written evaluation interested members of the public which requirements. newspapers will be used to publish DEPARTMENT OF AGRICULTURE 2. Administrative and National Policy legal notices for public comment or Requirements: The agreements will decisions; thereby allowing them to Forest Service incorporate the details of each project as receive constructive notice of a decision, to provide clear evidence of Notice of Resource Advisory approved by FAS. Each agreement will Committee Meeting identify terms and conditions pursuant timely notice, and to achieve to which CCC will reimburse certain consistency in administering the AGENCY: North Central Idaho Resource costs of each project. Agreements will appeals process. Advisory Committee, Kamiah, Idaho, also outline the responsibilities of the DATES: Publication of legal notices in Forest Service, USDA. participant. Interested parties should the listed newspapers will begin with ACTION: Notice of meeting. review the TASC Program regulations decisions subject to appeal that are found at 7 CFR part 1487 in addition to made on or after January 15, 2005. The SUMMARY: Pursuant to the authorities in this announcement. list of newspapers will remain in effect the Federal Advisory Committee Act 3. Reporting: TASC participants are until another notice is published in the (Pub. L. 92–463) and under the Secure subject to the reporting and Federal Register. Rural Schools and Community Self-
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Determination Act of 2000 (Pub. L. 106– Dated: January 7, 2005. February 16, 2005: Trinity County 393) the Nez Perce and Clearwater Thomas K. Reilly, Fairgrounds, South Highway 3, Hayfork, National Forests’ North Central Idaho Forest Supervisor. CA 96041. Resource Advisory Committee will meet [FR Doc. 05–707 Filed 1–12–05; 8:45 am] February 17, 2005: Mt. Shasta Thursday, January 27, 2005 in Orofino, BILLING CODE 3410–11–M Community Center, 629 Alder Street, Idaho for a business meeting. The Mt. Shasta, CA 96067. meeting is open to the public. February 18, 2005: USDA Service SUPPLEMENTARY INFORMATION: The DEPARTMENT OF AGRICULTURE Center, 3644 Avtech Parkway, Redding, business meeting on January 5, at the CA 96002. Forest Service Clearwater National Forest, Supervisor’s FOR FURTHER INFORMATION CONTACT: Brenda Tracy, Assistant Public Use Staff Office, 12730 Hwy 12, Orofino, ID, Siskiyou County Resource Advisory Officer, at (530) 226–2500. begins at 10 a.m. (PST). Agenda topics Committee will include discussion of potential SUPPLEMENTARY INFORMATION: Over the projects. A public forum will begin at AGENCY: Forest Service, USDA. next four years, the National Forests in 2:30 PM (PST). ACTION: Notice of meeting. California will designate a system of FOR FURTHER INFORMATION CONTACT: Ihor roads, trails and specifically defined SUMMARY: The Siskiyou County Mereszczak, Staff Officer and areas for OHV use to provide quality Resource Advisory Committee will meet Designated Federal Officer, at (208) recreation experiences and maximize in Yreka, California, January 17, 2005. 935–2513. the protection of resources. The meeting will include routine A series of meetings will be needed to Dated: January 5, 2005. business and the review and complete the OHV Route Designation Ihor Mereszczak, recommendation for implementation of process on the Shasta-Trinity National Acting Forest Supervisor. submitted project proposals. Forest. The public is encouraged to [FR Doc. 05–682 Filed 1–12–05; 8:45 am] DATES: The meeting will be held January participate. BILLING CODE 3410–11–M 17, 2005, from 4:30 p.m. until 7 p.m. Dated: January 6, 2005. ADDRESSES: The meeting will be held at J. Sharon Heywood, the Yreka High School Library, Preece DEPARTMENT OF AGRICULTURE Forest Supervisor. Way, Yreka, California. [FR Doc. 05–714 Filed 1–12–05; 8:45 am] Forest Service FOR FURTHER INFORMATION CONTACT: Don BILLING CODE 3410–11–M Hall, RAC Coordinator, Klamath Notice of Madison-Beaverhead National Forest, (530) 841–4468 or Advisory Committee Meeting electronically at [email protected]. ARCHITECTURAL AND SUPPLEMENTARY INFORMATION: The AGENCY: Forest Service, USDA. TRANSPORTATION BARRIERS meeting is open to the public. Public COMPLIANCE BOARD ACTION: Notice of meetings. comment opportunity will be provided and individuals will have the Courthouse Access Advisory SUMMARY: Pursuant to the authorities in opportunity to address the Committee at Committee; Meeting the Federal Advisory Committee Act that time. (Pub. L. 92–463) and the Secure Rural AGENCY: Dated: January 5, 2005. Architectural and Schools and Community Self- Transportation Barriers Compliance Michael P. Lee Determination Act of 2000 (Pub. L. 106– Board. Designated Federal Official. 393), the Beaverhead-Deerlodge ACTION: Notice of meeting. National Forest’s Madison-Beaverhead [FR Doc. 05–715 Filed 1–12–05; 8:45 am] Resource Advisory Committee will meet BILLING CODE 3410–11–M SUMMARY: The Architectural and on Wednesday, February 9, 2005, from Transportation Barriers Compliance 10 a.m. until 4 p.m. in Dillon, Montana, Board (Access Board) has established an for a business meeting. The meeting is DEPARTMENT OF AGRICULTURE advisory committee to advise the Board open to the public. on issues related to the accessibility of Forest Service DATES: Wednesday, February 9, 2005. courthouses covered by the Americans Notice of Meetings; Shasta-Trinity with Disabilities Act of 1990 and the ADDRESSES: The meeting will be held at National Forest Architectural Barriers Act of 1968. The the USDA Service Center, at 420 Barrett Courthouse Access Advisory Committee Street, Dillon, MT 59725. AGENCY: Forest Service, USDA. (Committee) includes organizations FOR FURTHER INFORMATION CONTACT: ACTION: Notice of meetings. with an interest in courthouse Thomas K. Reilly, Designated Forest accessibility. This notice announces the Official (DFO), Forest Supervisor, SUMMARY: The Shasta-Trinity National date, times and location of the next Beaverhead-Deerlodge National Forest, Forest will host a series of introductory Committee meeting, which will be open at (406) 683–3973. meetings to initiate the collaborative to the public. Off-Highway Vehicle (OHV) Route SUPPLEMENTARY INFORMATION: Agenda DATES: The meeting of the Committee is Designation process on the Shasta- scheduled for February 10, 2005 topics for these meetings include Trinity National Forest. hearing and deciding on proposals for (beginning at 9 a.m. and ending at 5 projects to fund under Title II of Pub. L. DATES: February 15, 16, 17 and 18 of p.m.) and February 11, 2005 (beginning 106–393, hearing public comments, and 2005. at 9 a.m. and ending at 4:30 p.m.). other business. If the meeting location ADDRESSES: ADDRESSES: The meeting will be held at changes, notice will be posted in local February 15, 2005: Weaverville Fire the Hyatt Regency Phoenix Hotel, 122 newspapers, including the Dillon Hall, 100 Bremer Street, Weaverville, North Second Street, Phoenix, AZ Tribune and The Montana Standard. CA 96093. 85004.
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FOR FURTHER INFORMATION CONTACT: kind can be very valuable for the threatened salmon and steelhead Elizabeth Stewart, Office of General advisory committee process. Evolutionarily Significant Units (ESUs). Counsel, Architectural and The meeting will be held at a site The RMP would affect six ESUs of Transportation Barriers Compliance accessible to individuals with threatened salmonids identified in the Board, 1331 F Street, NW., suite 1000, disabilities. Real-time captioning will be SUPPLEMENTARY INFORMATION section of Washington, DC 20004–1111. provided. Individuals who require sign this document. The ESA 4(d) rule Telephone number (202) 272–0042 language interpreters should contact provides for limits on ESA take (Voice); (202) 272–0082 (TTY). E-mail Elizabeth Stewart by January 27, 2005. prohibitions for the various activities set [email protected]. This Notices of future meetings will be out in the rule. The RMP addresses the document is available in alternate published in the Federal Register. limit for routine road maintenance formats (cassette tape, Braille, large activities of any state, city, county or Lawrence W. Roffee, print, or computer disk). This document port. This notice serves to notify the is also available on the Board’s Internet Executive Director. public of the availability of the site (http://www.access-board.gov/caac/ [FR Doc. 05–698 Filed 1–12–05; 8:45 am] Washington County RMP for review and meeting.htm). BILLING CODE 8150–01–P comment before a final approval or SUPPLEMENTARY INFORMATION: In 2004, as disapproval is made by NOAA part of the outreach efforts on Fisheries. DEPARTMENT OF COMMERCE courthouse accessibility, the Access DATES: Written comments on the draft Board established a Federal advisory International Trade Administration RMP must be received at the committee to advise the Access Board appropriate address or fax number (see on issues related to the accessibility of North American Free-Trade ADDRESSES) no later than 5 p.m. courthouses, particularly courtrooms, Agreement, Article 1904; NAFTA Panel Pacific Standard Time on February 14, including best practices, design Reviews; Request for Panel Review 2005. solutions, promotion of accessible ADDRESSES: Written comments should AGENCY: NAFTA Secretariat, United features, educational opportunities, and be sent to Dr. Nancy Munn, Habitat States Section, International Trade the gathering of information on existing Conservation Division, National Marine Administration, Department of barriers, practices, recommendations, Fisheries Service, 525 NE Oregon Street, Commerce. and guidelines. On October 12, 2004, Suite 500, Portland, OR 97232. the Access Board published a notice ACTION: Correction to Notice of First Comments may also be faxed to 503– appointing 31 members to the Request for Panel Review. 231–6893. Copies of the entire RMP are Courthouse Access Advisory available on the Internet at: http:// Committee. 69 FR 60608 (October 12, SUMMARY: The Notice of First Request in NAFTA Case No. USA–CDA–2004– www.co.washington.or.us/limit10, or 2004). Members of the Committee from the address posted on that site. include designers and architects, 1904–02 published in the Federal Register on January 7, 2005 listed an Comments will not be accepted if disability groups, members of the submitted via email or the Internet. judiciary, court administrators, incorrect date for filing of the FOR FURTHER INFORMATION CONTACT: representatives of the codes community complaints. The correct date for filing a Dr. and standard-setting entities, complaint is January 26, 2005. Nancy Munn at phone number: 503– 231–6269, or e-mail: government agencies, and others with Dated: January 7, 2005. [email protected]. an interest in the issues to be explored. Caratina L. Alston, The Committee held its initial meeting United States Secretary, NAFTA Secretariat. SUPPLEMENTARY INFORMATION: This on November 4 and 5, 2004. Members [FR Doc. 05–688 Filed 1–12–05; 8:45 am] notice is relevant to the following six discussed the current requirements for salmon ESUs: BILLING CODE 3510–GT–P accessibility, committee goals and Chinook salmon (Oncorhynchus objectives and the establishment of tshawytscha); threatened Upper subcommittees. Minutes of the DEPARTMENT OF COMMERCE Willamette River (UWR), and Lower November meeting may be found on the Columbia River (LCR). Access Board Web site at http:// National Oceanic and Atmospheric Steelhead (Oncorhynchus mykiss); www.access-board.gov/caac/minutes- Administration threatened Upper Willamette River nov04.htm. At the February meeting of (UWR), and Lower Columbia River the Committee, members will tour [I.D. 010605C] (LCR). several courthouses in the Phoenix, AZ Endangered and Threatened Species; Coho salmon (Oncorhynchus kisutch); area. The members will then continue to Take of Anadromous Fish proposed as threatened Oregon Coast address issues both as a full Committee (OC). and in subcommittees. AGENCY: National Marine Fisheries Chum salmon (Oncorhynchus keta); Committee meetings are open to the Service (NOAA Fisheries), National threatened Columbia River (CR). public and interested persons can attend Oceanic and Atmospheric Background the meetings and communicate their Administration (NOAA), Commerce. views. Members of the public will have ACTION: Notice of availability and Washington County, Department of an opportunity to address the request for comments. Land Use and Transportation, Committee on issues of interest to them Operations and Maintenance Division, and the Committee during public SUMMARY: Notice is hereby given of the submitted the RMP for routine road comment periods scheduled on each availability of a Routine Road maintenance activities that might affect day of the meeting. Members of groups Maintenance Program (RMP) that certain salmonid ESUs listed or or individuals who are not members of Washington County, Oregon has proposed as threatened within the the Committee are invited to participate submitted pursuant to the Endangered boundaries of Washington County. The on the subcommittees. The Access Species Act (ESA). NOAA Fisheries RMP was designed so that routine road Board believes that participation of this promulgated a protective rule for 14 maintenance activities would be
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protective of salmonids and their The RMP defines what activities are ACTION: Notice and request for habitat. routine road maintenance. These consist applications. As specified in the July 10, 2000, ESA of maintenance activities that are SUMMARY: The Gray’s Reef National 4(d) rule for salmon and steelhead (65 conducted on currently serviceable Marine Sanctuary (GRNMS or FR 42422) under limit 10(i), take structures, facilities, and equipment, Sanctuary) is seeking applicants for the prohibitions to threatened species of involve no expansion of or change in following newly-created and three salmonids do not apply to routine road use, and do not result in significant vacant seats on its Sanctuary Adivsory maintenance activities of a state, county, negative hydrological impact. Council (Council): Charter/commercial city or port that complies with a Washington County’s best management (for profit) Fishing (charter and program that is substantially similar to practices (Attachment 2) includes some commercial fishers), Sport Fishing that contained in the Oregon activities that differ from ODOT’s. These (recreational hook-and-line and spear Department of Transportation (ODOT) include best management practices for fishers), Sport Diving (divers, dive Routine Road Maintenance Water surface work, ditch shaping and operators, dive clubs, and dive shops), Quality and Habitat Guide Best cleaning, and sweeping/flushing. The and Regional Conservation. Applicants Management Practices (Guide, July RMP provides information in are chosen based upon their particular 1999), and that is determined to meet or Attachment 1 to support the assertion expertise and experience in relation to exceed the protections provided in the that Washington County’s practices for the seat for which they are applying; ODOT Guide. NOAA Fisheries may these activities are as effective or more community and professional affiliations; approve a routine road maintenance effective than ODOT’s practices at philosophy regarding the protection and program of any state, city, county or protecting fish and their habitat. management of marine resources; and port that contains management practices Approval or disapproval of the RMP possibly the length of residence in the that are equivalent to or better than will depend on NOAA Fisheries’ area affected by the Sanctuary. those in the ODOT Guide. Prior to final findings after public review and Applicants who are chosen as members approval of a routine road maintenance comment. should expect to serve 3-year terms, program, NOAA Fisheries must publish Authority pursuant to the Council’s Charter. notification in the Federal Register announcing the program’s availability Under section 4 of the ESA, the DATES: Applications are due by for public review and comment. Secretary of Commerce is required to February 11, 2005. The Washington County RMP adopt such regulations as he deems ADDRESSES: Application information submittal includes a cover letter necessary and advisable for the may be obtained from Becky Shortland, addressed to D. Robert Lohn, Regional conservation of species listed as 10 Ocean Science Circle, Savannah, Administrator of NOAA Fisheries, and a threatened. The ESA salmon and Georgia 31406; telephone (912) 598– statement of commitment from steelhead 4(d) rule (65 FR 424222, July 2381; e-mail Washington County to implement the 10, 2000) identifies specific categories of [email protected]. Letters of RMP. In Part 1, the RMP provides the activities that contribute to the application should be sent to the responsible entity and legal authority conservation of listed salmonids and attention of GRNMS Manager, Reed for the program and provides a sets out the criteria for such activities. Bohne at the same address. description of the program, including a The rule further provides that the FOR FURTHER INFORMATION CONTACT: description of Washington County’s prohibitions of paragraph (a) of the rule Becky Shortland, 10 Ocean Science Riparian Management Areas and their do not apply to activities associated Circle, Savannah, Georgia 31406; gravel road maintenance and dust with routine road maintenance provided telephone (912) 598–2381; e-mail abatement program. In Part 2, the RMP that a state or local program has been [email protected]. approved by NOAA Fisheries to be in provides a description of the geographic SUPPLEMENTARY INFORMATION: GRNMS is accordance with the salmon and area to which the program applies, one of the largest nearshore live-bottom steelhead 4(d) rule (65 FR 424222, July including an analysis of the reefs off the southeastern United States, 10, 2000). environmental baseline of the encompassing approximately 17 square watersheds of the lower Columbia River Dated: January 7, 2005. nautical miles. The area earned and the lower Willamette River, and Phil Williams, sanctuary designation in 1981. The Oregon coast tributaries that are within Chief, Endangered Species Division, Office sanctuary consists of a series of the City of Portland. Part 2 also includes of Protected Resources, National Marine sandstone outcroppings and ledges up maps (most found in Attachment 3) and Fisheries Service. to 10 feet in height, in a predominantly tables that describe various habitat [FR Doc. 05–756 Filed 1–12–05; 8:45 am] sandy, flat-bottomed sea floor. The live parameters such as culverts that block BILLING CODE 3510–22–S bottom and ledge habitat support an fish passage, riparian condition, and abundant reef fish and invertebrate water quality condition. In Part 3 , the community. Loggerhead sea turtles, a RMP describes the listed species DEPARTMENT OF COMMERCE threatened species, also use GRNMS distribution and status, referring to year-round for foraging and resting, and distribution maps for steelhead and National Oceanic and Atmospheric the reef is within the known winter chinook found in Attachment 4. A list Administration calving ground for the highly of relevant reports is provided in Part 4. Availability of Seats for the Gray’s Reef endangered Northern right whale. In Part 5, the RMP summarizes the National Marine Sanctuary Advisory The GRNMS Advisory Council was training, monitoring, and reporting Council established in August 1999 to provide elements of the RMP. In Part 6, the RMP advice and recommendations on makes an affirmative conclusion that the AGENCY: National Marine Sanctuary management and protection of the program is substantially similar to or Program (NMSP), National Ocean sanctuary. The Council, through its better than ODOT’s program, referring to Service (NOS), National Oceanic and members, also serves as liaison to the a table in Attachment 1 that compares Atmospheric Administration, community regarding sanctuary issues, the two programs. Department of Commerce (DOC). and represents community interests,
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concerns, and management needs to the and one hour set aside from 8:10 a.m. Council address: Mid-Atlantic Fishery sanctuary and NOAA. to 9:10 a.m. on Thursday, February 17, Management Council, 300 S. New Authority: 16 U.S.C. sections 1431, et seq. 2004 for the Committee to receive verbal Street, Room 2115, Dover, DE 19904. comments or questions from the public. FOR FURTHER INFORMATION CONTACT: (Federal Domestic Assistance Catalog In general, each individual or group Number 11.429 Marine Sanctuary Program) Daniel T. Furlong, Executive Director, making a verbal presentation will be Dated: January 3, 2005. Mid-Atlantic Fishery Management limited to a total time of five (5) Council; 300 S. New Street, Room 2115, Daniel J. Basta, minutes. Copies of written statements Dover, DE 19904, telephone 302–674– Director, National Marine Sanctuary Program, should be submitted to the Designated 2331, ext. 19. National Ocean Services, National Oceanic Federal Official by Friday, February 11, and Atmospheric Administration. SUPPLEMENTARY INFORMATION: 2004. [FR Doc. 05–747 Filed 1–12–04; 8:45 am] Matters to be Considered: On Correction BILLING CODE 3510–NK–M Tuesday, February 15, the Committee In the Mid-Atlantic Fishery will hear from a speaker on Pacific State Management Council notice published DEPARTMENT OF COMMERCE and territorial perspectives on the in the Federal Register on December 28, national system of marine protected 2004, at 69 FR 77730, the hotel address National Oceanic and Atmospheric areas, representatives of two regional has been corrected as set out in the Administration fishery management councils, and ADDRESSES section of this notice. No representatives of tribal organizations. other information has been changed. Marine Protected Areas Federal On Wednesday, February 16, the Advisory Committee; Public Meeting Committee will review and discuss the Special Accommodations Committee’s recommendations and will This meeting is physically accessible AGENCY: National Ocean Service, hear from speakers on marine protected to people with disabilities. Requests for NOAA, Department of Commerce. areas science. On Thursday, February sign language interpretation or other ACTION: Notice of open meeting. 17, the Committee will continue its auxiliary aids should be directed to SUMMARY: Notice is hereby given of the consideration of recommendations, and Debbie Donnangelo at the Mid-Atlantic next meeting of the Marine Protected discuss next steps to finalize them. Council Office (see ADDRESSES) at least Areas Federal Advisory Committee Dated: January 6, 2005. five days prior to the meeting date. (MPAFAC) in the Washington, DC Eldon Hout, Dated: January 10, 2005. metropolitan area. Director, Office of Ocean and Coastal Alan D. Risenhoover, DATES: The meeting will be held Resource Management. Acting Director, Office of Sustainable Tuesday, February 15, 2005 from 9 a.m. [FR Doc. 05–746 Filed 1–12–05; 8:45 am] Fisheries, National Marine Fisheries Service. to 5:30 p.m., Wednesday, February 16, BILLING CODE 3510–08–P [FR Doc. E5–120 Filed 1–12–05; 8:45 am] from 8 a.m. to 5 p.m., and Thursday, BILLING CODE 3510–22–S February 17, 2005 from 8 a.m. to 5 p.m. These times and the agenda topics DEPARTMENT OF COMMERCE described below may be subject to DEPARTMENT OF COMMERCE change. Refer to the Web page listed National Oceanic and Atmospheric below for the most up-to-date meeting Administration National Oceanic and Atmospheric agenda. Administration ADDRESSES: The meeting will be held at [I.D. 122104D] [I.D. 011005A] the Hilton Crystal City, 2399 Jefferson Mid-Atlantic Fishery Management Davis Highway, Arlington, Virginia New England Fishery Management Council (MAFMC); Meeting; Correction 22202. Council; Public Meeting FOR FURTHER INFORMATION CONTACT: AGENCY: National Marine Fisheries AGENCY: National Marine Fisheries Lauren Wenzel, Designated Federal Service (NMFS), National Oceanic and Service (NMFS), National Oceanic and Officer, MPAFAC, National Marine Atmospheric Administration (NOAA), Atmospheric Administration (NOAA), Protected Areas Center, 1305 East-West Commerce. Commerce. Highway, Silver Spring, Maryland, ACTION: Notice of public meeting; ACTION: Public meeting. 20910. (Phone: (301) 713–3100 x136, correction. Fax: (301) 713–3110); e-mail: SUMMARY: The New England Fishery [email protected]; or visit the SUMMARY: The Trawl Survey Advisory Management Council (Council) will national MPA Center Web site at Panel, composed of representatives from hold a three-day Council meeting on https://www.mpa.gov. the Northeast Fisheries Science Center February 1–3, 2005, to consider actions SUPPLEMENTARY INFORMATION: The (NEFSC), the Mid-Atlantic Fishery affecting New England fisheries in the MPAFAC, composed of external, Management Council (MAFMC), the exclusive economic zone (EEZ). knowledgeable representatives of New England Fishery Management DATES: The meeting will be held on stakeholder groups, has been Council (NEFMC), and several Tuesday, February 1, 2005, beginning at established by the Department of independent scientific researchers, will 9 a.m. and on Wednesday and Commerce to provide advice to the hold a public meeting. Thursday, February 2 and 3, beginning Secretaries of Commerce and Interior on DATES: January 26, 2005, from noon to at 8:30 a.m. implementation of Section 4 of 5 p.m. and January 27, 2005, from 9 a.m. ADDRESSES: The meeting will be held at Executive Order 13158 on MPAs. The to 4 p.m. the Marriott Courtyard Hotel, 1000 meeting will be open to public ADDRESSES: The meeting will be held at Market Street, Portsmouth, NH 03801; participation, with a one and a half hour the Brookshire Suites (Inner Harbor), telephone (603) 436–2121. Requests for time period set aside from 4 p.m. to 5:30 120 E. Lombard Street, Baltimore, MD, special accommodations should be p.m. on Tuesday, February 15, 2004, telephone 410–625–1300. addressed to the New England Fishery
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Management Council, 50 Water Street, Executive Committee meeting. Subjects ACTION: Notice of public meeting/public Mill 2, Newburyport, MA 01950; to be covered will include hearing. telephone (978) 465–0492. recommendations for a course of action SUMMARY: The Western Pacific Fishery FOR FURTHER INFORMATION CONTACT: Paul on the recent groundfish/lobster gear Management Council (Council) will J. Howard, Executive Director, New conflict, a draft Council conservation meet by conference call in January 2005. England Fishery Management Council, and management strategy (including a During the meeting the Council will (978) 465–0492. policy for Special Access Programs), consider revising the regulatory SUPPLEMENTARY INFORMATION: joint fishery management plans and a briefing on the New England Fleet amendment under the Fishery Tuesday, February 1, 2005 Visioning Project. The Habitat Management Plan for Pelagic Fisheries Following introductions, the Council Committee chairman will provide an of the Western Pacific concerning measures to conserve sea turtles. The will receive reports from the Council update on the EFH Omnibus Council will also consider whether Chairman and Executive Director, the Amendment ι2. Council staff will give a certain exemptions from the use of long- NMFS Regional Administrator, presentation on a pilot project to handled dehookers should be provided Northeast Fisheries Science Center and develop ecosystem approaches to for particular small longliners when Mid-Atlantic Fishery Management fisheries management. Any other fishing north of the equator. More Council liaisons, NOAA General outstanding business will be addressed specific agenda topics are provided Counsel and representatives of the U.S. at the end of the day, following the under the SUPPLEMENTARY INFORMATION Coast Guard, NMFS Enforcement and Bycatch Committee Report. That section of this notice. the Atlantic States Marine Fisheries committee will forward DATES: Commission. The Council will review recommendations concerning potential The Council meeting will be the Skate Plan Development Team’s actions to reduce the bycatch of the held on January 26, 2005, beginning at annual report on the status of the 2003 year class of haddock in various 1 p.m. Hawaii-Aleutian standard time Northeast skate complex, in the context fisheries. and concluding when all business items have concluded. The public hearing will of recent management actions. The Although other non-emergency issues Scallop Committee report will occur be held during the Council meeting to not contained in this agenda may come give the public opportunity to comment. before the lunch break and will include before this Council for discussion, those ADDRESSES: The Council will meet via consideration of a modification to the issues may not be the subjects of formal conference call. The public is invited to ‘‘broken trip’’ limit rules in the Sea action during this meeting. Council participate at the Council office: 1164 Scallop Fishery Management Plan. The action will be restricted to those issues Bishop Street, Suite 1400, Honolulu, HI Council will take final action on specifically listed in this notice and any Framework Adjustment 17 to the FMP, 96813; telephone: (808) 522–8220; fax: issues arising after publication of this 808–522–8226. which includes alternatives that would notice that require emergency action FOR FURTHER INFORMATION CONTACT: require some or all vessels with general under section 305(c) of the Magnuson- category scallop permits to carry and Stevens Act, provided that the public Kitty M. Simonds, Executive Director; telephone: 808–522–8220. operate vessel monitoring system has been notified of the Council’s intent equipment. to take final action to address the SUPPLEMENTARY INFORMATION: Wednesday, February 2, 2005 emergency. Background During the Wednesday morning Special Accommodations At its 123rd meeting, the Council took session, the Council will receive a final action and recommended that the report from its Research Steering This meeting is physically accessible requirements summarized under Committee concerning 2005 research to people with disabilities. Requests for Agenda Topics (below) be implemented priorities and recommendations on sign language interpretation or other by a regulatory amendment under the NOAA Fisheries experimental fishery auxiliary aids should be directed to Paul Fishery Management Plan for Pelagic permit process and related issues. A J. Howard (see ADDRESSES) at least 5 Fisheries of the Western Pacific Groundfish Committee report will days prior to the meeting date. containing additional measures to follow, to include a schedule for Dated: January 10, 2005. conserve sea turtles. preparation of the next framework Alan D. Risenhoover, Agenda Topics adjustment to the Northeast Acting Director, Office of Sustainable Multispecies FMP, as well as a list of Fisheries, National Marine Fisheries Service. 1. Operators and owners of longline issues to be addressed; consideration of [FR Doc. E5–121 Filed 1–12–05; 8:45 am] vessels operating under general permits (vessels registered to general longline initial action on a measure to remedy BILLING CODE 3510–22–S the disapproval of the participation of permits and those that in the future will non-sector vessels in the Closed Area I be registered to American Samoa Hook Gear Haddock Special Access DEPARTMENT OF COMMERCE limited access longline permits) must Program; discussion of fishing vessel annually attend a NMFS Protected safety issues relative to the Multispecies National Oceanic and Atmospheric Species Workshop - with consideration FMP; and possible action on planning Administration of mechanisms for remote attendance. for the 2005 groundfish assessment 2. Longline vessels operating under updates and independent peer review. [I.D. 010705C] general permits must carry and use dip The status of the monkfish resource will nets, line clippers, and bolt cutters and be addressed at a Stock Assessment Western Pacific Fishery Management follow resuscitation and release Public Review Workshop late in the Council; Public Meeting and Hearing guidelines for accidentally caught afternoon on Wednesday. turtles - with an exemption for small AGENCY: National Marine Fisheries longliners (those with a freeboard of 3 Thursday, February 3, 2005 Service (NMFS), National Oceanic and feet (0.91 meters) or less) from the The morning session will begin with Atmospheric Administration (NOAA), requirement to carry and use long- a summary of the January 5 Council Commerce. handled line clippers.
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3. Non-longline fishing vessels Special Accommodations FOR FURTHER INFORMATION CONTACT: targeting Pacific pelagic management This meeting is physically accessible Amy Sloan or Tammy Adams, unit species with hooks must remove to people with disabilities. Requests for (301)713–2289. trailing gear from accidently caught sign language interpretation or other SUPPLEMENTARY INFORMATION: Permit No. turtles and follow turtle resuscitation auxiliary aids should be directed to 1072–1771–00 has been issued under and release guidelines, wherever they Kitty M. Simonds (see FOR FURTHER the authority of the Marine Mammal fish. INFORMATION CONTACT) at least five days Protection Act of 1972, as amended 4. Longline vessels operating under prior to the meeting date. (MMPA; 16 U.S.C. 1361 et seq.), and the general permits must use circle hooks, Regulations Governing the Taking and Dated: January 10, 2005. mackerel-type bait and dehookers, when Importing of Marine Mammals (50 CFR shallow-setting north of the equator. Alan D. Risenhoover, part 216). During the preparation of an Acting Director, Office of Sustainable Permit No. 1072–1771 authorizes upcoming proposed rule for the Fisheries, National Marine Fisheries Service. continued research designed to evaluate regulatory amendment, it was noted that [FR Doc. E5–132 Filed 1–12–05; 8:45 am] hearing sensitivity, memory, and the amendment’s text would require BILLING CODE 3510–22–S learning capabilities of up to seven turtle handling practices by operators of captive pinnipeds (three California sea non-longline pelagic fishing vessels as lions, Zalophus californianus; two described in 50 CFR 223.206(d)(1)(i), (ii) DEPARTMENT OF COMMERCE Pacific harbor seals, Phoca vitulina; and and (iii). However the most recent two Northern elephant seals, Mirounga Biological Opinion (BiOp) issued by National Oceanic and Atmospheric angustirostris). NMFS for the Western Pacific Pelagic Administration The permit amendment (No. 540– Fisheries on February 24, 2004, directs 1502–01) has been granted under the that these vessel operators use the [I.D. 010705B] handling practices described in 50 CFR authority of the Marine Mammal 660.32(c) and (d), in addition to those Marine Mammals; File Nos. 1072–1771 Protection Act of 1972, as amended (16 described in 50 CFR 223.206(d)(1)(iii). and 540–1502 U.S.C. 1361 et seq.), the Regulations Although the differences are minor, the Governing the Taking and Importing of AGENCY: National Marine Fisheries Council intends to consider revising the Marine Mammals (50 CFR part 216), the Service (NMFS), National Oceanic and regulatory amendment’s text to reflect Endangered Species Act of 1973, as Atmospheric Administration (NOAA), the latter practices so as to be consistent amended (ESA; 16 U.S.C. 1531 et seq.), Commerce. with the February 2004 BiOp. the regulations governing the taking, The Council’s regulatory amendment ACTION: Issuance of permit and permit importing, and exporting of endangered would also require operators of all amendment. and threatened species (50 CFR 222– longline vessels to carry and use long- 226), and the Fur Seal Act of 1966, as SUMMARY: Notice is hereby given of the handled dehookers to release turtles, amended (16 U.S.C. 1151 et seq.). following actions: Dr. Colleen when fishing north of the equator. Small The amendment extends the Reichmuth Kastak, Long Marine longliners are exempted from using expiration date of the permit from Laboratory, Institute of Marine Science, long-handled line clippers based on November 30, 2004 to November 30, University of California at Santa Cruz, concerns that using long-handled line 2005. No additional takes have been 100 Schaffer Road, Santa Cruz, CA clippers on these small vessels would be authorized. Mr. Calambokidis is 95060, has been issued a scientific unwieldy and could pose a hazard to authorized to (1) conduct aerial surveys research permit (No. 1072–1771–00); sea turtles. The Council will therefore to determine the abundance and and John Calambokidis, Cascadia consider whether a similar exemption distribution of marine mammals off the Research Collective, 218 1/2 West from the use of long-handled dehookers coasts of California, Oregon, and Fourth Avenue, Olympia, WA 98501, should be provided for these small Washington; (2) conduct vessel surveys has been issued an amendment to longliners when fishing north of the and photographic identification scientific research Permit No. 540– equator. activities to determine the abundance, A public hearing will be held during 1502–00. movements, and population structure of the Council meeting to give the public ADDRESSES: The permit, permit large whales in the North Pacific; (3) opportunity to comment before the amendment, and related documents are collect skin biopsies to determine sex, Council takes action on this agenda available for review upon written relatedness, and evaluate stock structure item. request or by appointment in the of large whales, especially blue and following office(s): humpback whales; and (4) conduct Other Business File Nos. 1072–1771 and 540–1502: tagging activities to examine the diving Although non-emergency issues not Permits, Conservation and Education behavior, feeding, and movements of contained in this agenda may come Division, Office of Protected Resources, large whales. before the Council for discussion, those NMFS, 1315 East-West Highway, Room In compliance with the National issues may not be the subject of formal 13705, Silver Spring, MD 20910; phone Environmental Policy Act of 1969 (42 Council action during this meeting. (301)713–2289; fax (301)713–0376; U.S.C. 4321 et seq.), a final Council action will be restricted to those File No. 540–1502: Northwest Region, determination has been made that the issues specifically listed in this NMFS, 7600 Sand Point Way NE, BIN activities proposed are categorically document and to any issue arising after C15700, Bldg. 1, Seattle, WA 98115– excluded from the requirement to publication of this document that 0700; phone (206)526–6150; fax prepare an environmental assessment or requires emergency action under section (206)526–6426; and environmental impact statement. 305(c) of the Magnuson-Stevens Fishery File Nos. 1072–1771 and 540–1502: Issuance of the permit amendment Conservation and Management Act, Southwest Region, NMFS, 501 West (No. 540–1502–01) as required by the provided that the public has been Ocean Blvd., Suite 4200, Long Beach, ESA, was based on a finding that such notified of the Council’s intent to take CA 90802–4213; phone (562)980–4001; permit amendment: (1) was applied for final action to address the emergency. fax (562)980–4018. in good faith; (2) will not operate to the
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disadvantage of such endangered Authority Dated: January 7, 2005. species; and (3) is consistent with the Phil Williams, purposes and policies set forth in Scientific research permits are issued Chief, Endangered Species Division, Office section 2 of the ESA. in accordance with section 10(a)(1)(A) of Protected Resources, National Marine of the ESA (16 U.S.C. 1531 et seq.) and Fisheries Service. Dated: January 7, 2005. regulations governing listed fish and Patrick Opay, [FR Doc. 05–757 Filed 1–12–05; 8:45 am] wildlife permits (50 CFR 222–226). BILLING CODE 3510–22–S Acting Chief, Permits, Conservation and NMFS issues permits based on findings Education Division, Office of Protected that such permits: (1) are applied for in Resources, National Marine Fisheries Service. good faith; (2) if granted and exercised, DEPARTMENT OF DEFENSE [FR Doc. 05–752 Filed 1–12–05; 8:45 am] would not operate to the disadvantage BILLING CODE 3510–22–S of the listed species that are the subject Office of the Secretary of the permit; and (3) are consistent with the purposes and policy of section Board of Visitors Meeting DEPARTMENT OF COMMERCE 2 of the ESA. The authority to take AGENCY: Defense Acquisition National Oceanic and Atmospheric listed species is subject to conditions set forth in the permits. University. Administration ACTION: Board of visitors meeting. Anyone requesting a hearing on the [I.D. 010605D] application listed in this notice should SUMMARY: The next meeting of the set out the specific reasons why a Defense Acquisition University (DAU) Endangered and Threatened Species; hearing on that application would be Board of Visitors (BoV) will be held at Take of Anadromous Fish appropriate (see ADDRESSES). The the Defense Acquisition University–San holding of such a hearing is at the Diego Campus. The purpose of this AGENCY: National Marine Fisheries discretion of the Assistant meeting is to report back to the BoV on Service (NMFS), National Oceanic and Administrator for Fisheries, NOAA. continuing items of interest. Atmospheric Administration (NOAA), Application Received DATES: January 26, 2005 from 0900– Commerce. 1500. ACTION: Application for scientific Permit 1515 ADDRESSES: Admiral Kidd Conference research permit 1515. Water Works Consulting (WWC) is Center, Fleet Anti-Submarine Warfare SUMMARY: Notice is hereby given that requesting a 2–year research permit to Center, Naval Base Point Loma, San NMFS has received a scientific research annually capture, handle, and release Diego, CA. permit application relating to Pacific juvenile UWR chinook salmon. The FOR FURTHER INFORMATION CONTACT: Ms. salmon. The proposed research is research would take place in an Patricia Cizmadia at (703) 805–5134. intended to increase knowledge of artificial side-channel to the Willamette SUPPLEMENTARY INFORMATION: The species listed under the Endangered River, Oregon. The purposes of the meeting is open to the public; however, Species Act (ESA) and to help guide research are to determine how such because of space limitations, allocation management and conservation efforts. side-channels function compared to of seating will be made on a first-come, DATES: Comments or requests for a natural, river-created ones and whether first served basis. Persons desiring to public hearing on the application must the side-channel provides habitat for attend the meeting should call Ms. be received at the appropriate address or native fishes. The WWC intends to Patricia Cizmadia at (703) 805–5134. fax number (see ADDRESSES) no later determine juvenile fish presence and Dated: January 4, 2005. than 5p.m. Pacific daylight-saving time abundance in the spring and late L.M. Bynum, summer of 2005 and 2006. The research on February 14, 2005. Alternate OSD Federal Register Liaison would benefit listed chinook by ADDRESSES: Officer, Department of Defense. Written comments on the determining how effectively such side- [FR Doc. 05–693 Filed 1–12–05; 8:45 am] application should be sent to Protected channels help restore salmon habitat. Resources Division, NMFS, F/NWO3, The WWC proposes to capture the fish BILLING CODE 5001–06–M 525 NE Oregon Street, Suite 500, using seines and boat electrofishing Portland, OR 97232–2737. Comments equipment. Captured fish would be DEPARTMENT OF DEFENSE may also be sent via fax to 503–230– identified, counted, checked for tags 5435 or by e-mail to and marks, and released. The WWC Office of the Secretary [email protected]. does not intend to kill any of the fish FOR FURTHER INFORMATION CONTACT: being captured, but a small number may Publication of Housing Price Inflation Garth Griffin, Portland, OR (ph.: 503– die as an unintended result of the Adjustment Under 50 U.S.C. App. § 531 231–2005, Fax: 503–230–5435, e-mail: activities. AGENCY: DoD, Office of the Under [email protected]). Permit This notice is provided pursuant to Secretary (Personnel and Readiness). application instructions are available at section 10(c) of the ESA. NMFS will ACTION: Notice. http://www.nwr.noaa.gov. evaluate the application, associated SUPPLEMENTARY INFORMATION: documents, and comments submitted to SUMMARY: The Servicemembers Civil determine whether the application Relief Act, as codified at 50 U.S.C. App. Species Covered in This Notice meets the requirements of section 10(a) § 531, prevents a landlord from evicting The following listed species of the ESA and Federal regulations. The a service member (or the service (evolutionarily significant unit) is final permit decisions will not be made member’s family) from a residence covered in this notice: until after the end of the 30–day during a period of military service Chinook salmon (Oncorhynchus comment period. NMFS will publish except by court order. The law as tshawytscha): threatened upper notice of its final action in the Federal originally passed by Congress applied to Willamette River (UWR). Register. monthly rents of $2400 or less. The law
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requires the Department of Defense to filed with the Command Judge Advocate Department enhance the quality, utility, adjust this amount annually to reflect (see ADDRESSES). and clarity of the information to be inflation, and to publish the new Brenda S. Bowen, collected; and (5) how might the amount in the Federal Register. We Department minimize the burden of this Army Federal Register Liaison Officer. have applied the inflation index collection on the respondents, including [FR Doc. 05–690 Filed 1–12–05; 8:45 am] required by the statute: the maximum through the use of information monthly rental amount for 50 U.S.C. BILLING CODE 3710–08–M technology. App. § 531 (a)(1)(A)(ii) will be $2534.32 as of January 1, 2005. Dated: January 7, 2005. Angela C. Arrington, EFFECTIVE DATE: January 1, 2005. DEPARTMENT OF EDUCATION Leader, Information Management Case FOR FURTHER INFORMATION CONTACT: Notice of Proposed Information Services Team, Regulatory Information Colonel C. Garcia, Officer of the Under Collection Requests Management Services, Office of the Chief Secretary of Defense for Personnel and Information Officer. Readiness, (703) 697–3387. AGENCY: Department of Education. Office of Elementary and Secondary SUMMARY: The Leader, Information Dated: January 3, 2005. Education L.M. Bynum, Management Case Services Team, Alternate OSD Federal Register Liaison Regulatory Information Management Type of Review: Reinstatement. Services, Office of the Chief Information Officer, Department of Defense. Title: Survey on the Use of Funds [FR Doc. 05–694 Filed 1–12–05; 8:45 am] Officer, invites comments on the proposed information collection Under Title II, Part A. BILLING CODE 5001–06–M requests as required by the Paperwork Frequency: Annually. Reduction Act of 1995. Affected Public: State, local, or tribal DEPARTMENT OF DEFENSE DATES: Interested persons are invited to government, SEAs or LEAs (primary). submit comments on or before March Reporting and Recordkeeping Hour Department of the Army 14, 2005. Burden: Responses: 800. Burden Hours: SUPPLEMENTARY INFORMATION: Section Intent To Grant an Exclusive License 4,000. 3506 of the Paperwork Reduction Act of of a U.S. Government-Owned Patent 1995 (44 U.S.C. chapter 35) requires that Abstract: This study is being conducted to inform the Department’s AGENCY: Department of the Army, DoD. the Office of Management and Budget (OMB) provide interested Federal performance indicators for the ACTION: Notice. agencies and the public an early Government Performance and Results opportunity to comment on information Act (GPRA) report for the Title II, Part SUMMARY: In accordance with 35 U.S.C. collection requests. OMB may amend or A program. 209 and 37 CFR 404.7(a)(1)(i), waive the requirement for public announcement is made of the intent to Requests for copies of the proposed consultation to the extent that public information collection request may be grant an exclusive, royalty-bearing, participation in the approval process revocable license within the geographic accessed from http://edicsweb.ed.gov, would defeat the purpose of the by selecting the ‘‘Browse Pending area of the United States of America and information collection, violate State or its territories and possessions to U.S. Collections’’ link and by clicking on Federal law, or substantially interfere link number 2663. When you access the Provisional Patent S.N. 60/533,375, filed with any agency’s ability to perform its information collection, click on December 24, 2003, entitled statutory obligations. The Leader, ‘‘Download Attachments’’ to view. ‘‘Identification of Small Molecules of Information Management Case Services Written requests for information should Inhibitors of Anthrax Factor,’’ to Team, Regulatory Information Microbiotix, Inc. with its principal place Management Services, Office of the be addressed to U.S. Department of of business at 1 Innovation Drive, STE Chief Information Officer, publishes that Education, 400 Maryland Avenue, SW., 15, Worcester, Massachusetts 01605– notice containing proposed information Potomac Center, 9th Floor, Washington, 4332. collection requests prior to submission DC 20202–4700. Requests may also be ADDRESSES: Commander, U.S. Army of these requests to OMB. Each electronically mailed to the Internet _ Medical Research and Materiel proposed information collection, address OCIO [email protected] or faxed to Command, ATTN: Command Judge grouped by office, contains the (202) 245–6621. Please specify the Advocate, MCMR–JA, 504 Scott Street, following: (1) Type of review requested, complete title of the information Fort Detrick, Frederick, MD 21702– e.g., new, revision, extension, existing collection when making your request. 5012. or reinstatement; (2) title; (3) summary Comments regarding burden and/or of the collection; (4) description of the the collection activity requirements FOR FURTHER INFORMATION CONTACT: For need for, and proposed use of, the patent issues, Ms. Elizabeth Arwine, should be directed to Kathy Axt at her information; (5) respondents and e-mail address [email protected]. Patent Attorney, (301) 619–7808. For frequency of collection; and (6) licensing issues, Dr. Paul Mele, Office of Individuals who use a reporting and/or recordkeeping burden. telecommunications device for the deaf Research & Technology Assessment, OMB invites public comment. (TDD) may call the Federal Information (301) 619–6664, both at telefax (301) The Department of Education is Relay Service (FIRS) at 1–800–877– 619–5034. especially interested in public comment 8339. SUPPLEMENTARY INFORMATION: Anyone addressing the following issues: (1) Is wishing to object to the grant of this this collection necessary to the proper [FR Doc. E5–131 Filed 1–12–05; 8:45 am] license can file written objections along functions of the Department; (2) will BILLING CODE 4000–01–P with supporting evidence, if any, within this information be processed and used 15 days from the date of this in a timely manner; (3) is the estimate publication. Written objections are to be of burden accurate; (4) how might the
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DEPARTMENT OF EDUCATION applications or re-apply in order to be and (3) improve elementary and middle considered for FY 2005 awards under schools students’ academic Office of Innovation and Improvement this program. We encourage eligible performance, including their skills in applicants to submit their applications creating, performing, and responding to Notice Reopening the Advanced as soon as possible to avoid any the arts. We intend the priority, Placement (AP) Test Fee Fiscal Year problems with filing electronic requirements, and definitions to (FY) 2005 Competition applications on the last day. The increase the amount of information on Catalog of Federal Domestic deadline for submission of applications effective models for arts education that Assistance (CFDA) Number: 84.330B. will not be extended any further. is available nationally and to integrate SUMMARY: On November 9, 2004, we Electronic Access to This Document: the arts with standards-based education published in the Federal Register (69 You may view this document, as well as programs. FR 65028) a notice inviting applications all other documents of this Department DATES: We must receive your comments for the AP Test Fee FY 2005 published in the Federal Register, in on or before February 14, 2005. competition. The original notice for this text or Adobe Portable Document ADDRESSES: Address all comments about FY 2005 competition established a Format (PDF) on the Internet at the the proposed priority, requirements, and December 13, 2004 deadline date for following site: http://www.ed.gov/news/ definitions to Diane Austin, U.S. eligible applicants to apply for funding fedregister. Department of Education, 400 Maryland under this program. To use PDF you must have Adobe Avenue, SW., room 4W214, In order to afford as many eligible Acrobat Reader, which is available free Washington, DC 20202–5943. If you applicants as possible an opportunity to at this site. If you have questions about prefer to send your comments through receive funding under this program, we using PDF, call the U.S. Government the Internet, use the following address: are reopening the AP Test Fee FY 2005 Printing Office (GPO), toll free, at 1– [email protected]. competition. The new application 888–293–6498; or in the Washington, You must include the term deadline date for the competition is DC, area at (202) 512–1530. ‘‘artsdemo’’ in the subject line of your January 24, 2005. Note: The official version of this document electronic message. DATES: Deadline for Transmittal of is the document published in the Federal FOR FURTHER INFORMATION CONTACT: Register. Free Internet access to the official Diane Austin. Telephone: (202) 260– Applications: January 24, 2005 (by 4:30 edition of the Federal Register and the Code p.m., Washington, DC time, if of Federal Regulations is available on GPO 1280 or via Internet: transmitted electronically or by hand- Access at: http://www.gpoaccess.gov/nara/ [email protected]. delivery). index.html. If you use a telecommunications device for the deaf (TDD), you may call Note: Applications for grants under the AP Dated: January 7, 2005. Test Fee program must be submitted the Federal Relay Service (FRS) at 1– electronically using the Electronic Grant Nina Shokraii Rees, 800–877–8339. Application System (e-Application) available Assistant Deputy Secretary for Innovation and Individuals with disabilities may through the Department’s e-Grants system, Improvement. obtain this document in an alternative unless a waiver is granted. For information [FR Doc. E5–129 Filed 1–12–05; 8:45am] format (e.g., Braille, large print, (including dates and times) about how to BILLING CODE 4000–01–P audiotape, or computer diskette) on submit your application electronically or to request to the contact person listed request a waiver of the electronic submission under FOR FURTHER INFORMATION requirement, please refer to Section IV. 6. DEPARTMENT OF EDUCATION CONTACT. Other Submission Requirements in the November 9, 2004 notice (69 FR 65029– Arts in Education Model Development SUPPLEMENTARY INFORMATION: 65030). and Dissemination Program Invitation To Comment FOR FURTHER INFORMATION CONTACT: AGENCY: Office of Innovation and We invite you to submit comments Madeline E. Baggett, U.S. Department of Improvement, Department of Education. regarding the proposed priority, Education, 400 Maryland Avenue, SW., ACTION: Notice of proposed priority, requirements, and definitions in this room 4W210, Washington, DC 20202– requirements, and definitions. notice. To ensure that your comments 5943. Telephone: (202) 260–2502 or by have maximum effect in developing the e-mail: [email protected]. SUMMARY: The Assistant Deputy notice of final priority, requirements, If you use a telecommunications Secretary for Innovation and and definitions, we urge you to identify device for the deaf (TDD), you may call Improvement proposes a priority, clearly the specific proposed priority, the Federal Relay Service (FRS) at 1– requirements, and definitions under the requirement or definition that each 800–877–8339. Arts in Education Model Development comment addresses. Individuals with disabilities may and Dissemination program. We may We invite you to assist us in obtain this document in an alternative use this priority and these requirements complying with the specific format (e.g., Braille, large print, and definitions for competitions in requirements of Executive Order 12866 audiotape, or computer diskette) on fiscal year (FY) 2005 and later years. We and its overall requirement of reducing request to the program contact person take this action to focus Federal regulatory burden that might result from listed in this section. financial assistance on an identified the proposed priority, requirements, and SUPPLEMENTARY INFORMATION: Any national need for the enhancement, definitions. Please let us know of any eligible applicant may apply for funding expansion, documentation, evaluation, further opportunities we should take to under this program by the deadline in and dissemination of innovative, reduce potential costs or increase this notice. Eligible applicants that cohesive models that have demonstrated potential benefits while preserving the submitted their applications for the AP that they effectively: (1) Integrate effective and efficient administration of Test Fee FY 2005 competition to the standards-based arts education into the the program. Department prior to the competition’s core elementary and middle school During and after the comment period, original deadline date of December 13, curricula; (2) strengthen standards- you may inspect all public comments 2004 are not required to re-submit their based arts instruction in these grades; about the proposed priority,
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requirements, and definitions in room Priority children by carrying out projects that 4W214, 400 Maryland Avenue, SW., serve at least one elementary or middle Proposed Priority Washington, DC, between the hours of school in which 35 percent or more of 8:30 a.m. and 4 p.m., Eastern time, We propose the following priority for the children enrolled are from low- Monday through Friday of each week this program: income families (based on data used in except Federal holidays. This priority supports projects that meeting the poverty criteria set out in enhance, expand, document, evaluate, Title I, Section 1113(a)(5) of the Assistance to Individuals With and disseminate innovative cohesive Elementary and Secondary Education Disabilities in Reviewing the models that are based on research and Act of 1965, as amended by the No Rulemaking Record have demonstrated their effectiveness in Child Left Behind Act of 2001 (ESEA)). On request, we will supply an (1) integrating standards-based arts Rationale: Studies have found that appropriate aid, such as a reader or education into the core elementary or improving the quality of arts education print magnifier, to an individual with a middle school curriculum, (2) has a particularly positive impact on disability who needs assistance to strengthening standards-based arts students from low-income backgrounds. review the comments or other instruction in the elementary or middle Unfortunately, students from low documents in the public rulemaking school grades, and (3) improving the socioeconomic backgrounds are almost record for the proposed priority, academic performance, including their twice as likely to attend arts-poor requirements, and definitions. If you skills in creating, performing, and schools. We propose this application want to schedule an appointment for responding to the arts, of students in requirement in an attempt to address the this type of aid, please contact the elementary or middle school. needs of low-income children. person listed under FOR FURTHER In order to meet this priority an INFORMATION CONTACT. applicant must demonstrate that the Proposed Eligibility Requirement We will announce the final priority, model project for which it seeks funding We propose the following eligibility requirements, and definitions in a (1) serves only elementary schools or requirement for this program: notice in the Federal Register. We will middle schools, or both and (2) is linked To be eligible to receive funding determine the final priority, to State and national standards intended under the Arts in Education Model requirements, and definitions after to enable all students to meet Development and Dissemination considering responses to this notice and challenging expectations, and to program, an applicant must be: other information available to the improving student and school (1) One or more LEAs, including Department. This notice does not performance. charter schools that are considered preclude us from proposing additional Rationale: The Arts in Education LEAs under State law and regulations, priorities, requirements, and definitions, Model Development and Dissemination that may work in partnership with one subject to meeting applicable program seeks to address the lack of or more of the following: rulemaking requirements. high-quality, research-based arts • A State or local non-profit or education programs by encouraging governmental arts organization, Note: This notice does not solicit • applications. In any year in which we choose partnerships of arts and education A State educational agency (SEA) or to use the priority, requirements, and specialists to enhance, expand, and regional educational service agency, • definitions, we invite applications through a document effective models for An institution of higher education, notice in the Federal Register. When inviting or improving arts education and student • applications, we designate the priority as achievement, including performance on A public or private agency, absolute, competitive preference, or State or local standardized tests. The institution, or organization, such as a invitational. The effect of each type of community- or faith-based organization; priority follows: program seeks to provide more communities with solid information or Absolute Priority: Under an absolute (2) One or more State or local non- priority we consider only applications that regarding innovative models for profit or governmental arts meet the priority (34 CFR 75.105(c)(3)). effectively strengthening arts Competitive Preference Priority: Under a instruction, improving students’ skills organizations that must work in competitive preference priority we give in creating, performing, and responding partnership with one or more LEAs and competitive preference to an application by to works of art, and increasing student may partner with one or more of the either (1) awarding additional points, achievement in other academic subjects. following: depending on how well or the extent to • An SEA or regional educational By proposing that projects serve which the application meets the priority (34 service agency, students in elementary or middle CFR 75.105(c)(2)(i)); or (2) selecting an • An institution of higher education, schools only, we intend for this program application that meets the competitive or priority over an application of comparable to provide a vehicle for including arts • A public or private agency, merit that does not meet the priority (34 CFR instruction in the core curriculum of institution, or organization, such as a 75.105(c)(2)(ii)). elementary and middle schools in a community- or faith-based organization. Invitational Priority: Under an invitational seamless manner. Unlike high schools, priority we are particularly interested in elementary and most middle schools do Note: If more than one LEA or arts applications that meet the invitational not have separate art classes in their organization wishes to form a consortium priority. However, we do not give an curriculum. and jointly submit a single application, they application that meets the invitational must follow the procedures for group priority a competitive or absolute preference Requirements applications described in 34 CFR 75.127 over other applications (34 CFR 75.105(c)(1)). through 34 CFR 75.129 of the Education Proposed Application Requirement Department General Administrative Discussion of Proposed Priority, We propose the following application Regulations. Requirements, and Definitions requirement for this program: Rationale: The statute encourages This program supports the To be eligible for Arts in Education collaborative activities with Federal development of, and dissemination of Model Development and Dissemination agencies or institutions involved in arts information about, model school-based funds, applicants must propose to education, arts educators, and arts education programs. address the needs of low-income organizations representing the arts,
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including State and local arts agencies Summary of Potential Costs and Dated: January 7, 2005. involved in arts education. Prior Benefits Nina Shokraii Rees, competitions under this program have Assistant Deputy Secretary for Innovation and been open to applications from a variety The potential costs associated with Improvement. of public and private education and arts the proposed priority, requirements, and [FR Doc. E5–122 Filed 1–12–05; 8:45 am] definitions in this notice are minimal organizations. We have received BILLING CODE 4000–01–P feedback from stakeholders that while the benefits are significant. collaborative programs are being Grantees may incur some costs effectively managed by such entities. In associated with completing the DEPARTMENT OF EDUCATION addition, various types of organizations application process in terms of staff and are in positions to effectively manage partner time, copying, and mailing or Professional Development for Arts and evaluate model arts integration delivery. Educators Program programs that serve needy school The benefit of the proposed priority, AGENCY: Office of Innovation and children. requirements, and definitions in this Improvement, Department of Education. notice is that grants supported under Definitions ACTION: Notice of proposed priority, this program will be able to provide requirements, and definitions. Proposed Definitions information on effective models. This SUMMARY: Several important terms associated information will be helpful to schools The Assistant Deputy with this program are not defined in the and communities looking for guidance Secretary for Innovation and authorizing statute. We, therefore, on how to improve the educational Improvement proposes a priority, propose, for the purpose of this performance of at-risk children and requirements, and definitions under the Professional Development for Arts program, to define the following terms: youth by providing arts education Arts includes music, dance, theater, services and programs—especially Educators program. We may use this priority and these requirements and media, and visual arts, including folk programs incorporating arts education definitions for competitions in fiscal arts. standards. year (FY) 2005 and later years. We take Integrating means (i) encouraging the Intergovernmental Review this action to focus Federal financial use of high-quality arts instruction in assistance on an identified national other academic/content areas and (ii) This program is subject to Executive need for professional development for strengthening the place of the arts as a Order 12372 and the regulations in 34 arts educators that focuses on the core academic subject in the school CFR part 79. One of the objectives of the development, enhancement, and curriculum. Executive Order is to foster an expansion of standards-based arts Based on research, when used with intergovernmental partnership and a instruction or that integrates arts respect to an activity or a program, strengthened federalism. The Executive instruction with other subject area means that, to the extent possible, the Order relies on processes developed by content, and to improve student State and local governments for activity or program is based on the most achievement of low-income students in coordination and review of proposed rigorous theory, research, and kindergarten through grade 12 (K–12). Federal financial assistance. evaluation available and is effective in We intend the priority, requirements, improving student achievement and This document provides early and definitions to improve the performance and other program notification of our specific plans and performance of needy children and to objectives. action for this program. increase the amount of information on Executive Order 12866 Electronic Access to This Document effective professional development for arts educators that is available This notice of proposed priority, nationally. requirements, and definitions has been You may view this document, as well reviewed in accordance with Executive as all other Department of Education DATES: We must receive your comments Order 12866. Under the terms of the documents published in the Federal on or before February 14, 2005. order, we have assessed the potential Register, in text or Adobe Portable ADDRESSES: Address all comments about costs and benefits of this regulatory Document Format (PDF) on the Internet the proposed priority, requirements, and action. at the following site: http://www.ed.gov/ definitions to Carol Sue Fromboluti, The potential costs associated with news/fedregister. U.S. Department of Education, 400 the notice of proposed priority, To use PDF you must have Adobe Maryland Avenue, SW., room 4W233, requirements, and definitions are those Acrobat Reader, which is available free Washington, DC 20202–5943. If you resulting from statutory requirements at this site. If you have questions about prefer to send your comments through and those we have determined as using PDF, call the U.S. Government the Internet, use the following address: necessary for administering this Printing Office (GPO) toll free, at 1–888– [email protected]. program effectively and efficiently. 293–6498; or in the Washington, DC, You must include the term ‘‘artspd’’ In assessing the potential costs and area at (202) 512–1530. in the subject line of your electronic benefits—both quantitative and Note: The official version of this document message. qualitative—of this notice of proposed is the document published in the Federal FOR FURTHER INFORMATION CONTACT: priority, requirements, and definitions, Register. Free Internet access to the official Carol Sue Fromboluti. Telephone: (202) we have determined that the benefits of edition of the Federal Register and the Code 205–9654 or via Internet: the proposed priority, requirements, and of Federal Regulations is available on GPO [email protected]. definitions justify the costs. Access at: http://www.gpoaccess.gov/nara/ If you use a telecommunications index.html. We also have determined that this device for the deaf (TDD), you may call regulatory action does not unduly (Catalog of Federal Domestic Assistance the Federal Relay Service (FRS) at 1– interfere with State, local, and tribal Number 84.351D Arts in Education Model 800–877–8339. governments in the exercise of their Development and Dissemination) Individuals with disabilities may governmental functions. Program Authority: 20 U.S.C. 7271. obtain this document in an alternative
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format (e.g., Braille, large print, choose to use the proposed priority, linked to State and national standards audiotape, or computer diskette) on requirements, and definitions, we invite intended to enable all students to meet request to the contact person listed applications through a notice in the challenging expectations, and to under FOR FURTHER INFORMATION Federal Register. When inviting improving student and school CONTACT. applications, we designate the priority performance. SUPPLEMENTARY INFORMATION: as absolute, competitive preference, or Rationale: It is the intent of this invitational. The effect of each type of program to provide professional Invitation To Comment priority follows: development programs for arts We invite you to submit comments Absolute Priority: Under an absolute educators that can be linked to student regarding the proposed priority, priority we consider only applications achievement, including performance on requirements, and definitions in this that meet the priority (34 CFR State or local standardized tests. While notice. To ensure that your comments 75.105(c)(3)). arts content and achievement standards have maximum effect in developing the Competitive Preference Priority: have been voluntarily adopted in many notice of final priority, requirements, Under a competitive preference priority States throughout the country, teachers and definitions, we urge you to identify we give competitive preference to an often need professional development on clearly the specific proposed priority, application by either (1) awarding how to implement education standards requirement, or definition that each additional points, depending on how both for arts programs and for programs comment addresses. well or the extent to which the designed to integrate arts with other We invite you to assist us in application meets the priority (34 CFR subject areas. The proposed priority complying with the specific 75.105(c)(2)(i)); or (2) selecting an would support projects that would requirements of Executive Order 12866 application that meets the competitive provide professional development and its overall requirement of reducing priority over an application of services that are linked to learning regulatory burden that might result from comparable merit that does not meet the standards. the proposed priority, requirements, and priority (34 CFR 75.105(c)(2)(ii)). Requirements definitions. Please let us know of any Invitational Priority: Under an further opportunities we should take to invitational priority we are particularly Proposed Application Requirement reduce potential costs or increase interested in applications that meet the We propose the following application potential benefits while preserving the invitational priority. However, we do requirement for this program: effective and efficient administration of not give an application that meets the To be eligible for Professional the program. invitational priority a competitive or Development for Arts Educators During and after the comment period, absolute preference over other Program funds, applicants must propose you may inspect all public comments applications (34 CFR 75.105(c)(1)). to carry out professional development about the proposed priority, programs for art educators of K–12 low- requirements, and definitions in room Discussion of Proposed Priority, income children and youth by 4W242, 400 Maryland Avenue, SW., Requirements, and Definitions implementing projects in schools in Washington, DC, between the hours of Through this program, the which 50 percent or more of the 8:30 a.m. and 4 p.m., eastern time, Department intends to fund model children enrolled are from low-income Monday through Friday of each week professional development programs for families (based on the poverty criteria except Federal holidays. music, dance, drama, and visual arts set out in Title I, Section 1113(a)(5) of Assistance to Individuals With educators of K–12 students in high- the Elementary and Secondary Disabilities in Reviewing the poverty schools. The purpose of this Education Act of 1965, as amended by Rulemaking Record program is to strengthen standards- the No Child Left Behind Act of 2001 based arts education programs and to (ESEA)). On request, we will supply an help ensure that all students meet Rationale: Studies have found that appropriate aid, such as a reader or challenging State academic content improving the quality of arts education print magnifier, to an individual with a standards and challenging State student has a particularly positive impact on disability who needs assistance to academic achievement standards in the students from low-income backgrounds. review the comments or other arts. We believe this poverty requirement is documents in the public rulemaking necessary in order to focus services on record for the proposed priority, Priority the most needy children. requirements, and definitions. If you Proposed Priority want to schedule an appointment for Proposed Eligibility Requirement this type of aid, please contact the We propose the following priority for We propose the following eligibility person listed under FOR FURTHER this program: requirement for this program: INFORMATION CONTACT. This priority supports professional To be eligible to receive funding We will announce the final priority, development programs for K–12 arts under the Professional Development for requirements, and definitions in a educators that use innovative Arts Educators program, an applicant notice in the Federal Register. We will instructional methods and current must be— determine the final priority, knowledge from education research and A local educational agency (LEA), requirements, and definitions after focus on— which may be a charter school that is considering responses to this notice and (1) The development, enhancement, considered an LEA, that is acting on other information available to the or expansion of standards-based arts behalf of an individual school or Department. This notice does not education programs; or schools that meets the poverty criterion preclude us from proposing additional (2) The integration of standards-based with respect to children from low- priorities, requirements, and definitions, arts instruction with other core income families that is specified in the subject to meeting applicable academic area content. application requirement elsewhere in rulemaking requirements. In order to meet this priority, an this notice, and that must work in Note: This notice does not solicit applicant must demonstrate that the partnership with one or more of the applications. In any year in which we project for which it seeks funding is following—
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(1) A State or local non-profit or interfere with State, local, and tribal Dated: January 7, 2005. governmental arts organization; governments in the exercise of their Nina Shokraii Rees, (2) A State educational agency (SEA) governmental functions. Assistant Deputy Secretary for Innovation and or regional educational service agency; Improvement. Summary of Potential Costs and (3) An institution of higher education; Benefits [FR Doc. E5–125 Filed 1–12–05; 8:45 am] or BILLING CODE 4000–01–P (4) A public or private agency, The potential costs associated with institution, or organization, including a the proposed priority, requirements, and museum, an arts education association, definitions in this notice are minimal, DEPARTMENT OF EDUCATION a library, a theater, or a community-or while the benefits are significant. faith-based organization. Grantees may incur some costs Office of Special Education and Rationale: The most effective associated with completing the Rehabilitative Services, Individuals professional development programs are application process in terms of staff and With Disabilities Education Act, as systemic and have the full support of partner time, copying, and mailing or Amended by the Individuals With school leadership. Therefore, it is delivery. Disabilities Education Improvement essential that eligibility be limited to Act of 2004 LEAs. Professional development in the The benefit of the proposed priority, area of arts education is often enhanced requirements, and definitions in this ACTION: Notice of public meeting to seek when it taps the expertise of notice is that grantees will develop comments and suggestions on regulatory professional arts organizations or other professional development programs for issues under the Individuals with entities. Accordingly, an LEA would be arts educators, especially those Disabilities Education Act (IDEA), as required to partner with one of these programs that incorporate arts education amended by the Individuals with organizations. standards and are designed to improve Disabilities Education Improvement Act the educational performance of at-risk of 2004. Definitions children and youth. SUMMARY: The Secretary announces Proposed Definitions Intergovernmental Review plans to hold the first of a series of The terms ‘‘arts educator’’ and informal public meetings to seek This program is subject to Executive comments and suggestions from the ‘‘integrate’’, which are important Order 12372 and the regulations in 34 concepts associated with this program, public prior to developing and CFR part 79. One of the objectives of the publishing proposed regulations to are not defined in the authorizing Executive order is to foster an statute. We, therefore, propose, for the implement programs under the recently intergovernmental partnership and revised Individuals with Disabilities purpose of this program, to define these strengthened federalism. The Executive terms as follows: Education Act. order relies on processes developed by Date and Time of Public Meeting: Arts educator means a teacher who State and local governments for works in music, drama, dance, or the Friday, January 28, 2005 from 3:30 p.m. coordination and review of proposed to 5:30 p.m. and from 6:30 p.m. to 8:30 visual arts. Federal financial assistance. Integrate means, in the context of p.m. projects funded under this program, to This document provides early ADDRESSES: University of Delaware, strengthen (i) the use of high-quality arts notification of our specific plans and University of Delaware Conference instruction within other academic action for this program. Center, John M. Clayton Hall, Room 106, content areas, and (ii) the place of the Electronic Access to This Document 100 Pencader Way, Newark, DE 19716. arts as a core academic subject in the FOR FURTHER INFORMATION CONTACT: Troy school curriculum. You may view this document, as well R. Justesen. Telephone: (202) 245–7468. as all other Department of Education Executive Order 12866 SUPPLEMENTARY INFORMATION: documents published in the Federal This notice of proposed priority, Register, in text or Adobe Portable Background requirements, and definitions has been Document Format (PDF) on the Internet On December 3, 2004, the President reviewed in accordance with Executive at the following site: http://www.ed.gov/ signed into law Pub. L. 108–446, the Order 12866. Under the terms of the news/fedregister. Individuals with Disabilities Education order, we have assessed the potential To use PDF you must have Adobe Improvement Act of 2004, amending the costs and benefits of this regulatory Acrobat Reader, which is available free Individuals with Disabilities Education action. at this site. If you have questions about Act (IDEA). Copies of the new law may The potential costs associated with using PDF, call the U.S. Government be obtained at the following Web site: the notice of proposed priority, Printing Office (GPO) toll free, at 1–888– http://www.gpoaccess.gov/plaws/ requirements, and definitions are those 293–6498; or in the Washington DC area index.html. resulting from statutory requirements at (202) 512–1530. Enactment of the new law provides an and those we have determined as opportunity to consider improvements necessary for administering this Note: The official version of this document in the regulations implementing the program effectively and efficiently. is the document published in the Federal IDEA (including both formula and In assessing the potential costs and Register. Free Internet access to the official edition of the Federal Register and the Code discretionary grant programs) that benefits—both quantitative and of Federal Regulations is available on GPO would strengthen the Federal effort to qualitative—of this notice of proposed Access at: http://www.gpoaccess.gov/nara/ ensure every child with a disability has priority, requirements, and definitions, index.html. available a free appropriate public we have determined that the benefits of education that— the proposed priority, requirements, and Program Authority: 20 U.S.C. 7271. (1) Is of high quality, and definitions justify the costs. (Catalog of Federal Domestic Assistance (2) Is designed to achieve the high We also have determined that this Number 84.351C Professional Development standards reflected in the No Child Left regulatory action does not unduly for Arts Educators) Behind Act and regulations.
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The Office of Special Education and FOR FURTHER INFORMATION CONTACT. The Northern Utilities, Inc., Dominion Rehabilitative Services will be holding a meeting location is accessible to Exploration Canada, Ltd. series of informal meetings during the individuals with disabilities. AGENCY: Office of Fossil Energy, DOE. first few months of calendar year 2005 Dated: January 7, 2005. to seek input and suggestions for ACTION: Notice of orders. John H. Hager, developing regulations, as needed, SUMMARY: The Office of Fossil Energy based on the Individuals with Assistant Secretary for Special Education and Rehabilitative Services. (FE) of the Department of Energy gives Disabilities Education Improvement Act notice that during December 2004, it of 2004. [FR Doc. E5–119 Filed 1–12–05; 8:45 am] This notice provides specific BILLING CODE 4000–01–P issued Orders granting authority to information about the first of these import and export natural gas, including meetings, scheduled for Newark, DE the import of liquefied natural gas. These Orders are summarized in the (see Date and Time of Public Meeting DEPARTMENT OF ENERGY earlier in this Notice). Other informal attached appendix and may be found on the FE Web site at http://www.fe.doe.gov meetings will be conducted in the Office of Fossil Energy following locations: (select gas regulation). They are also • Atlanta, GA; Orders Granting Authority To Import available for inspection and copying in • Boston, MA; and Export Natural Gas, Including the the Office of Natural Gas Regulatory • Columbus, OH; Import of Liquefied Natural Gas Activities, Docket Room 3E–033, • San Diego, CA; Forrestal Building, 1000 Independence • Laramie, WY; and In the matter of: 04–118–NG, 04–121–NG, Avenue, SW., Washington, DC 20585, • Washington, DC. 04–119–NG, 04–122–NG, 04–127–NG, 02– (202) 586–9478. The Docket Room is In subsequent Federal Register 85–NG, 04–126–NG, 04–117–NG, 04–123– open between the hours of 8 a.m. and notices, we will notify you of the NG, 04–128–NG, 04–129–NG, 04–130–NG, 4:30 p.m., Monday through Friday, specific dates and locations of each of 04–125–NG, 04–124–NG, 04–132–NG; except Federal holidays. these meetings, as well as other relevant Amerada Hess Corporation, Cascade Natural Gas Corporation, San Diego Gas & Electric Issued in Washington, DC, on January 5, information. 2005. Individuals who need Company, Keyspan Gas East Corporation, BP Energy Company, Keyspan Gas East accommodations for a disability in order R.F. Corbin, Corporation, Bay State Gas Company, Engage Manager, Natural Gas Regulatory Activities, to attend the meeting (i.e., interpreting Energy Canada, L.P., Nexen Marketing U.S.A. services, assistive listening devices, and Office of Oil and Gas Global Security and Inc., Termoelectria de Mexicali, S. de R.L. de Supply, Office of Fossil Energy. material in alternative format) should C.V., Boss Energy, Ltd., Texas Eastern notify the contact person listed under Transmission, LP, Boston Gas Company, Appendix
[DOE/FE Authority]
Import Export Order No. Date issued Importer/exporter FE Docket No. volume volume Comments
2050 ...... 12–2–04 Amerada Hess Corporation; 04–118–NG ... 100 Bcf .... 100 Bcf .... Import and export natural gas from and to Canada beginning on January 1, 2005 and extending through December 31, 2006.
2052 ...... 12–6–04 San Diego Gas & Electric Company; 04– 5 Bcf Import and export a combined total of nat- 119–NG. ural gas from and to Mexico, beginning on November 22, 2004, and extending through November 21, 2006. 2053 ...... 12–9–04 Keyspan Gas East Corporation; 04–122– 25 Bcf Import and export a combined total of nat- NG. ural gas from and to Canada, beginning on December 10, 2004, and extending through December 9, 2006. 2054 ...... 12–9–04 BP Energy Company; 04–127–NG ...... 1,100 Bcf Import and export a combined total of nat- ural gas from and to Canada and Mex- ico, beginning on December 9, 2004, and extending through December 8, 2006.
1831–A .... 12–9–04 Keyspan as East Corporation; 02–85–NG .. Vacate blanket import and export authority. 2055 ...... 12–9–04 Bay State Gas Company; 04–126–NG ...... 60 Bcf Import and export a combined total of nat- ural gas from and to Canada, beginning on April 1, 2003, and extending through March 31, 2005. 2056 ...... 12–9–04 Engage Energy Canada, L.P.; 04–117–NG 1,000 Bcf Import and export a combined total of nat- ural gas from and to Canada, and import LNG from other international sources, beginning on January 1, 2005, and ex- tending through December 31, 2006. 2057 ...... 12–9–04 Nexen Marketing U.S.A. Inc.; 04–123–NG 200 Bcf Import and export a combined total of nat- ural gas from and to Canada and Mex- ico, beginning on January 1, 2004, and extending through December 31, 2006.
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[DOE/FE Authority]
Import Export Order No. Date issued Importer/exporter FE Docket No. volume volume Comments
2058 ...... 12–21–04 Termoelectria de Mexicali, S. de R.L. de 300 Bcf Import and export a combined total of nat- C.V.; 04–128–NG. ural gas from and to Mexico, beginning on December 21, 2004, and extending through December 20, 2006.
2059 ...... 12–21–04 Boss Energy, Ltd.; 04–129–NG ...... 10 Bcf; ..... 10 Bcf; ..... Import and export natural gas from and to 5 Bcf ...... 5 Bcf ...... Canada and Mexico, beginning on De- cember 21, 2004, and extending through December 20, 2006.
2060 ...... 12–21–04 Texas Eastern Transmission, L.P.; 04– 2 Bcf Import and export a combined total of nat- 130–NG. ural gas from and to Mexico, beginning on December 17, 2004, and extending through December 16, 2006. 2061 ...... 12–22–06 Boston Gas Company; 04–125–NG ...... 10 Bcf Import and export a combined total of nat- ural gas from and to Canada, beginning on December 22, 2004, and extending through December 21, 2006. 2062 ...... 12–22–04 Northern Utilities, Inc.; 04–124–NG ...... 30 Bcf Import and export a combined total of nat- ural gas from and to Canada, beginning on January 15, 2005, and extending through January 14, 2007.
2063 ...... 12–30–04 Dominion Exploration Canada Ltd.; 04– 25 Bcf ...... Import natural gas from Canada, beginning 132–NG. on December 30, 2004, and extending through December 29, 2006.
[FR Doc. 05–713 Filed 1–12–05; 8:45 am] under the Administrative Procedure Fungicide, and Rodenticide Act BILLING CODE 6450–01–P Act, EPA responded to the petitioners (FIFRA). Since other entities may also within the 90–day timeframe be interested, the Agency has not established in TSCA for section 21 attempted to describe all the specific ENVIRONMENTAL PROTECTION petitions. EPA has responded to the entities that may be interested in this AGENCY petition by denying these requests and action. If you have any questions is announcing the public availability of regarding the applicability of this action [OPPT–2004–0132; FRL–7694–6] this response. to a particular entity, consult the Response to Petition; Notice of FOR FURTHER INFORMATION CONTACT: For technical contact person listed under Availability general information contact: Colby FOR FURTHER INFORMATION CONTACT. Lintner, Regulatory Coordinator, B. How Can I Get Copies of this AGENCY: Environmental Protection Environmental Assistance Division Document and Other Related Agency (EPA). (7408M), Office of Pollution Prevention Information? ACTION: Notice. and Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., 1. Docket. EPA has established an SUMMARY: On October 5, 2004, EPA Washington, DC 20460–0001; telephone official public docket for this action received a petition filed under section number: (202) 554–1404; e-mail under docket ID number OPPT–2004– 21 of the Toxic Substances Control Act address:[email protected]. 0132. The official public docket consists (TSCA) and section 553(e) of the For technical information contact: of the documents specifically referenced Administrative Procedure Act from Laura Bunte, Chemical Control Division in this action, including the petitioner’s People for the Ethical Treatment of (7405M), Office of Pollution Prevention request, supporting information Animals (PETA). The Physicians and Toxics, Environmental Protection submitted by the petitioners, and EPA’s Committee for Responsible Medicine Agency, 1200 Pennsylvania Ave., NW., response to the petition. Although a part (PCRM) joined the petition by a letter Washington, DC 20460–0001; telephone of the official docket, the public docket dated November 9, 2004. The petition number: (202) 564–8157; e-mail does not include Confidential Business requests that EPA revoke the TSCA address:[email protected]. Information (CBI) or other information developmental neurotoxicity test whose disclosure is restricted by statute. guideline codified at 40 CFR 799.9630 SUPPLEMENTARY INFORMATION: The official public docket is the and withdraw a harmonized test I. General Information collection of materials that is available guideline issued by the Office of for public viewing at the EPA Docket Prevention, Pesticides and Toxic A. Does this Action Apply to Me? Center, Rm. B102-Reading Room, EPA Substances (OPPTS) titled, ‘‘Health This action is directed to the public West, 1301 Constitution Ave., NW., Effects Test Guidelines: OPPTS in general, and may be of particular Washington, DC. The EPA Docket 870.6300 Developmental Neurotoxicity interest to those persons who are or may Center is open from 8:30 a.m. to 4:30 Study’’ (EPA–712–C–98–239). Although be required to conduct testing of p.m., Monday through Friday, excluding EPA believes the petitioners’ requests chemical substances under the Toxic legal holidays. The EPA Docket Center are outside the scope of TSCA section Substances Control Act (TSCA), the Reading Room telephone number 21, and thus the submission in its Federal Food, Drug, and Cosmetic Act is(202) 566–1744 and the telephone entirety is being treated as a petition (FFDCA), or the Federal Insecticide, number for the OPPT Docket, which is
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located in the EPA Docket Center, is List of Subjects FEDERAL COMMUNICATIONS (202) 566–0280. COMMISSION 2. Electronic access. You may access Environmental protection, Pesticides, this Federal Register document Toxic substances, Test guidelines. Notice of Public Information electronically through the EPA Internet Collection(s) Being Reviewed by the Dated: January 3, 2005. under theFederal Register listings Federal Communications Commission athttp://www.epa.gov/fedrgstr/. The Susan B. Hazen, for Extension Under Delegated documents referenced in Unit I.B.1 are Acting Assistant Administrator, Office of Authority Prevention, Pesticides and Toxic Substances. also accessible through the EPA Internet January 6, 2005. athttp://www.epa.gov/opptintr/ [FR Doc. 05–711 Filed 1–12–05 8:45 am] SUMMARY: The Federal Communications chemtest/dnt/index.htm. To access the BILLING CODE 6560–50–S Commission, as part of its continuing OPPTS Harmonized Test Guideline effort to reduce paperwork burden referenced in this document, go directly invites the general public and other to the guideline at http://www.epa.gov/ Federal agencies to take this opptsfrs/home/guidelin.htm/. FARM CREDIT SYSTEM INSURANCE opportunity to comment on the In addition, an electronic version of CORPORATION following information collection(s), as the public docket is available through required by the Paperwork Reduction EPA’s electronic public docket and Notice of Meeting Act (PRA) of 1995, Public Law No. 104– comment system, EPA Dockets. You 13. An agency may not conduct or may use EPA Dockets at http:// AGENCY: Farm Credit System Insurance sponsor a collection of information www.epa.gov/edocket/ to access the Corporation Board; Regular Meeting. unless it displays a currently valid index listing of the contents of the control number. No person shall be official public docket and to access SUMMARY: Notice is hereby given of the regular meeting of the Farm Credit subject to any penalty for failing to those documents in the public docket comply with a collection of information that are available electronically. System Insurance Corporation Board (Board). subject to the Paperwork Reduction Act Although not all docket materials may that does not display a valid control be available electronically, you may still DATE AND TIME: The meeting of the Board number. Comments are requested access any of the publicly available will be held at the offices of the Farm concerning (a) whether the proposed docket materials through the docket collection of information is necessary facility identified in Unit I.B.1. Once in Credit Administration in McLean, Virginia, on January 13, 2005, from 10 for the propeer performance of the the system, select ‘‘search,’’ then key in functions of the Commission, including the appropriate docket ID number. a.m. until such time as the Board concludes its business. whether the information shall have Certain types of information will not practical utility; (b) the accuracy of the be placed in the EPA Dockets. FOR FURTHER INFORMATION CONTACT: Commission’s burden estimate; (c) ways Information claimed as CBI and other Jeanette C. Brinkley, Secretary to the to enhance the quality, utility, and information whose disclosure is Farm Credit System Insurance clarity of the information collected; and restricted by statute, which is not Corporation Board, (703) 883–4009, (d) ways to minimize the burden of the included in the official public docket, TTY (703) 883–4056. collection of information on the will not be available for public viewing respondents, including the use of ADDRESSES: Farm Credit System in EPA’s electronic public docket. EPA’s automated collection techniques or Insurance Corporation, 1501 Farm policy is that copyrighted material will other forms of information technology. not be placed in EPA’s electronic public Credit Drive, McLean, Virginia 22102. DATES: Written Paperwork Reduction docket but will be available only in SUPPLEMENTARY INFORMATION: This Act (PRA) comments should be printed, paper form in the official public meeting of the Board will be open to the submitted on or before March 14, 2005. docket. To the extent feasible, publicly public (limited space available. In order If you anticipate that you will be available docket materials will be made to increase the accessibility to Board submitting comments, but find it available in EPA’s electronic public difficult to do so within the period of docket. When a document is selected meetings, persons requiring assistance time allowed by this notice, you should from the index list in EPA Dockets, the should make arrangements in advance. advise the contact listed below as soon system will identify whether the The matters to be considered at the as possible. document is available for viewing in meeting are: ADDRESSES: Direct all Paperwork EPA’s electronic public docket. Open Session Although not all docket materials may Reduction Act (PRA) comments to be available electronically, you may still A. Approval of Minutes Cathy Williams, Federal Communications Commission, Room 1– access any of the publicly available • docket materials through the docket December 2, 2004 (Regular Meeting) C823, 445 12th Street, SW., Washington, DC 20554 or via the Internet to facility identified in Unit I.B.1. EPA New Business intends to work towards providing [email protected]. electronic access to all of the publicly • Review of Insurance Premium Rates FOR FURTHER INFORMATION CONTACT: For available docket materials through Dated: January 7, 2005. additional information or copies of the information collection(s), contract Cathy EPA’s electronic public docket. Jeanette C. Brinkley, Williams at (202) 418–2918 or via the II. What Action is the Agency Taking? Secretary, Farm Credit System Insurance Internet at [email protected]. Corporation Board. This action announces the availability SUPPLEMENTARY INFORMATION: of EPA’s response to the petition. The [FR Doc. 05–686 Filed 1–12–05; 8:45 am] OMB Control Number: 3060–0996. public may access both the petition and BILLING CODE 6710–01–P Title: AM Auction Section 307(b) EPA’s response as described in Unit I.B. Submissions. of this document. Form Number: Not applicable.
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Type of Review: Extension of a ADDRESSES: Federal Communications Number Association (NENA) and the currently approved collection. Commission, 445 12th Street SW., Association of Public-Safety Respondents: Business or other for- Washington DC 20554. See Communications Officials (APCO). profit entities. SUPPLEMENTARY INFORMATION for further More specifically, we ask commenters Number of Respondents: 450. filing instructions. to identify and discuss relevant state Estimated Time Per Response: 0.5–3 FOR FURTHER INFORMATION CONTACT: activity by: (1) Specific identification hours. Contact Michael Goldstein, Wireline (citation) to a particular statute or Frequency of Response: On occasion Competition Bureau, (202) 418–0806, regulation, or proposed statute or reporting requirement. [email protected]; or Cathy regulation, in each case; (2) Total Annual Burden: 1,100 hours. Zima, Wireline Competition Bureau, identification of any corresponding state Total Annual Cost: $132,500. (202) 418–7380, [email protected]. Web page where these activities are Privacy Impact Assessment: No Users of TTY equipment, call (202) 418– presented or discussed; (3) impact(s). 0484. identification of the date any final Needs and Uses: Section 307(b) of the legislative or regulatory action became SUPPLEMENTARY INFORMATION: This Communications Act, as amended, effective or is expected to become public notice solicits comment about requires that the Commission effect a effective; (4) discussion of any the progress made by the states in fair, efficient and equitable distribution requirements placed on carriers, MLTS implementing E911 solutions for multi- of radio stations throughout the United equipment manufacturers, MLTS line telephone systems (MLTSs). When States. In the context of competitive operators, or any other persons; and (5) an emergency (i.e., 911) call is placed bidding application processing, Section discussion of how the statute and/or from a station served by an MLTS, the 307(b) is relevant when a mutually regulation is enforced. Public Safety Answering Point (PSAP) exclusive AM application group With regard to (4), commenters receiving the call will not always be consists of applications to serve should note whether any entities are able to identify the office, dormitory different communities, or when a non- specifically exempted from adopted room or other detailed location of the mutually exclusive AM application requirements imposed by the legislation caller. This problem is well known and proposes a community of license or regulations and explain the criteria has been a subject of several change. Such applications must submit for exemption. To the extent legislation Commission proceedings. In its Report supplemental information addressing or regulation was proposed but not and Order and Second Further Notice of Section 307(b) criteria. The data ultimately adopted, we invite parties to Proposed Rulemaking, Final rule; 69 FR submitted will be used to determine the explain why such action was not taken, 6578, February 11, 2004, and Proposed community having the greater need for such as cost concerns, technical rule; 69 FR 6595, February 11, 2004, the an AM radio service. complexity, and the perceived lack of Commission was concerned that ‘‘the Federal Communications Commission. demand or need for the proposed lack of effective implementation of requirements. Marlene H. Dortch, MLTS E911 could be an unacceptable Secretary. gap in the emergency call system’’ but Use of Model Legislation [FR Doc. 05–653 Filed 1–12–05; 8:45 am] declined to adopt federal rules to The Commission’s Report and Order BILLING CODE 6712–10–M address this issue, because the record and Second Further Notice of Proposed demonstrated that state and local Rulemaking states: ‘‘we believe that the governments are in a better position to Model Legislation submitted by NENA FEDERAL COMMUNICATIONS devise such rules for their jurisdictions. and APCO offers the states a valuable COMMISSION Expecting the ‘‘states to act blueprint for their own laws,’’ and ‘‘we [CC Docket No. 94–102; DA 04–3874] expeditiously in this area,’’ the strongly support the approach taken by Commission committed to releasing a the model legislation.’’ With this view State Actions To Achieve Effective public notice in a year to examine of the model legislation, we request Deployment of E911 Capabilities for states’ progress and announced its information regarding how it has Multi-Line Telephone Systems (MLTSs) intention to re-visit the E911-MLTS/ affected efforts by the states to produce caller location issue depending on the their own statutes. In particular, please AGENCY: Federal Communications results of its evaluation of state action. describe how this model legislation has Commission. Status of State Action been used in determining states’ ACTION: Notice; solicitation of approaches, how extensively this model comments. Public sources indicate that legislation has been and is being used, approximately twelve states have and its perceived shortcomings. SUMMARY: This document solicits adopted legislation addressing E911 In addition to use of this particular comments about the progress made by requirements for MLTSs. These same model legislation, we invite comment as the states in implementing E911 sources indicate that some state to whether there are any other models solutions for multi-line telephone regulatory commissions have that states have found useful in systems (MLTSs). The Commission promulgated regulations addressing developing legislation, e.g., laws passed committed to releasing a public notice these requirements. We seek public in any other state. We ask commenters on this issue in its previous documents comment about state-adopted statutes to identify such examples and analyze that revised the scope of the enhanced and regulations, as well as about their possible utility for widespread use. 911 rules to clarify which technologies proposals for action in this area that and services will be required to be may be currently under consideration Carrier Services Provided Under State capable of transmitting enhanced 911 and the anticipated time frames for Tariff information to Public Safety Answering conclusion of such proposals. We Although our primary focus is Points (PSAPs). specifically ask commenters to identify evaluating state action addressing E911/ DATES: Comments are due on or before and discuss state actions that may be MLTS issues, we also seek comment on February 28, 2005. Reply comments are based on model legislation such as that the extent to which carriers and others due on or before March 29, 2005. proposed by the National Emergency offer E911 solutions for MLTSs. It
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appears that at least one carrier is references to standards to enable us to Best Copy and Printing, Inc., Portals II, providing E911 service for MLTSs under develop a comprehensive picture of 445 12th Street, SW., Room CY–B402, tariff in at least one state, and that commonalities and differences in E911/ Washington, DC 20554, telephone 1– carrier works with individual MLTS MLTS implementation across the states. 800–378–3160, or online at http:// operators elsewhere within its footprint www.bcpiweb.com. Comment Filing Procedures to implement customer-specific Parties who choose to file by paper solutions if such are economically and Pursuant to §§ 1.415 and 1.419 of the must also send three paper copies of technically feasible. We seek comment Commission’s rules, interested parties their filing to the attention of Michael regarding the availability of E911/MLTS may file comments on or before Goldstein, Industry Analysis and services offered under tariff or otherwise February 28, 2005. Reply comments are Technology Division, Wireline both in states that have passed E911/ due on or before March 29, 2005. Competition Bureau, Federal MLTS legislation or adopted E911/ Comments may be filed using the Communications Commission, 445 12th MLTS regulations and in states that Commission’s Electronic Comment Street, SW., Room 5–A422, Washington, have not. In particular, where these Filing System (ECFS) or by filing paper DC 20554. services are offered absent state copies. See Electronic Filing of Pursuant to § 1.1206 of the legislative or regulatory action, we seek Documents in Rulemaking Proceedings, Commission’s rules, 47 CFR 1.1206, this comment regarding the reasons the 63 FR 24121, May 1, 1998. When filing proceeding will continue to be services were developed. comments, please reference CC Docket conducted as a permit-but-disclose Specifically, commenters should (1) No. 94–102. Comments may be filed proceeding in which ex parte identify the carrier and the state or electronically using the Internet by communications are permitted subject states in which that carrier offers or accessing the ECFS at http:// to disclosure. plans to offer E911 service for MLTSs; www.fcc.gov/cgb/ecfs/ and following the (2) provide links to the carrier’s instructions provided on the Web site. Federal Communications Commission. published tariffs, and identify the Generally, only one copy of an Cathy H. Zima, effective dates of those tariffs, where electronic submission must be filed. In Acting Deputy Chief, Industry Analysis and applicable; (3) identify the salient completing the transmittal screen, Technology Division. technical features of each service offered commenters should include their full [FR Doc. 05–652 Filed 1–12–05; 8:45 am] under tariff, including but not limited to name, U.S. Postal Service mailing BILLING CODE 6712–01–P which MLTS technologies are supported address, and the applicable docket (e.g., Centrex, analog PBX, ISDN PBX, number. Parties may also submit an non-ISDN digital PBX, IP–PBX, or key electronic comment by Internet e-mail. FEDERAL ELECTION COMMISSION system), which E911 MLTS-to-network To get filing instructions for e-mail technical interface standards or other comments, commenters should send an Sunshine Act Notices specifications are supported (e.g., e-mail to [email protected], and should CAMA or Primary Rate Access (PRA) include the following words in the body * * * * * ISDN), and any special requirements of the message, ‘‘get form VerDate jul<14>2003 17:46 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00031 Fmt 4703 Sfmt 4703 E:\FR\FM\13JAN1.SGM 13JAN1 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Notices 2407 (12 CFR 225.28) or that the Board has ADDRESSES: You may submit comments Approved: January 7, 2005. determined by Order to be closely to OGE on the study by any of the Marilyn L. Glynn, related to banking and permissible for following methods: Acting Director, Office of Government Ethics. • bank holding companies. Unless E-mail: [email protected]. For E-mail [FR Doc. 05–710 Filed 1–12–05; 8:45 am] otherwise noted, these activities will be messages, the subject line should BILLING CODE 6345–02–P conducted throughout the United States. include the following reference: Each notice is available for inspection ‘‘Comments Regarding Financial at the Federal Reserve Bank indicated. Disclosure Process Study.’’ DEPARTMENT OF HEALTH AND The notice also will be available for • FAX: 202–482–9237. HUMAN SERVICES inspection at the offices of the Board of • Mail, Hand Delivery or Courier: Governors. Interested persons may Office of Government Ethics, Suite 500, Centers for Disease Control and express their views in writing on the 1201 New York Avenue, NW., Prevention question whether the proposal complies Washington, DC 20005–3917, Attention: with the standards of section 4 of the Ira S. Kaye, Associate General Counsel. [Program Announcement Open Season 02060–FY05] BHC Act. Additional information on all FOR FURTHER INFORMATION CONTACT: Ira bank holding companies may be S. Kaye, Associate General Counsel, National Cancer Prevention and obtained from the National Information Office of Government Ethics, telephone: Control Program; Notice of Availability Center website at www.ffiec.gov/nic/. 202–482–9300; TDD: 202–482–9293; of Open Season Funds Unless otherwise noted, comments FAX: 202–482–9237. regarding the applications must be SUPPLEMENTARY INFORMATION: Section LOI Deadline: January 28, 2005. received at the Reserve Bank indicated Application Deadline: February 28, 8403 of the Intelligence Reform and or the offices of the Board of Governors 2005. not later than February 7, 2005. Terrorism Prevention Act of 2004, A. Federal Reserve Bank of New Public Law 108–458 (December 17, A. Purpose York (Jay Bernstein, Bank Supervision 2004), directs the Office of Government The Centers for Disease Control and Officer) 33 Liberty Street, New York, Ethics to provide a report to Congress, Prevention (CDC) announces the New York 10045–0001: within 90 days, evaluating the financial availability of fiscal year (FY) 2005 1. First BanCorp, San Juan, Puerto disclosure process for employees of the funds for an Open Season for the Rico; to acquire 100 percent of the executive branch, and recommending National Cancer Prevention and Control voting shares of Ponce General improvements to it. In order to comply Program (NCPCP) cooperative Corporation, San Juan, Puerto Rico, and with this mandate, OGE has undertaken agreement program previously thereby indirectly acquire UniBank, a study of this subject. OGE’s report will announced under Program Miami, Florida, and thereby engage in focus on whether to recommend Announcement 02060 (Henceforth operating a savings association pursuant amending the body of information that referred to as ‘‘PA 02060’’). This to section 225.28(b)(4) of Regulation Y. is statutorily required to be included on program addresses the ‘‘Healthy People the Standard Form (SF) 278 Executive Board of Governors of the Federal Reserve 2010’’ focus area(s) related to cancer. System, January 7, 2005. Branch Personnel Public Financial PA02060 was published in the Disclosure Report, as well as whether to Robert deV. Frierson, Federal Register on April 23, 2002, recommend changes to the public Volume 67, Number 78, pages 19932– Deputy Secretary of the Board. financial disclosure system itself. [FR Doc. 05–677 Filed 1–12–05; 8:45 am] 19950. Amendment 1 was published Specifically, OGE will analyze whether May 23, 2002, Amendment 2 was BILLING CODE 6210–01–S to recommend changing: the number of published January 2, 2003, and asset, income, transaction and liability Amendment 3 was published on valuation categories; the various January 20, 2004. Applicants may access OFFICE OF GOVERNMENT ETHICS reporting time periods; the dollar the amended version of PA 02060, along thresholds for reporting particular Study Evaluating, and Making with this Open Season announcement, assets, income, transactions and Recommendations for Improving, the on the CDC Web site, Internet address: liabilities; the requirements to report Financial Disclosure Process for http://www.cdc.gov. Click on most transactions, to identify the type of Employees of the Executive Branch; ‘‘Funding,’’ then ‘‘Grants and income earned, and to report the actual Opportunity for Comment Cooperative Agreements.’’ dollar amounts of particular types of Sections A.–F. of original PA 02060 AGENCY: Office of Government Ethics income; and the level of description and are superceded by the Sections A.–F. (OGE). detail required, particularly on published in this announcement. ACTION: Notice. Schedules C (liabilities and agreements The NCPCP will assist States/District or arrangements) and D (outside of Columbia/Tribes/Territories in SUMMARY: The Office of Government positions and compensation over developing, implementing, maintaining, Ethics is conducting a study, pursuant $5,000) of the SF 278 report form. enhancing, integrating, and evaluating a to the Intelligence Reform and As part of its consideration of these cancer program inclusive of cancer Terrorism Prevention Act of 2004, to important matters, OGE believes it surveillance, prevention and early evaluate and recommend improvements would be both appropriate and helpful detection programs, and which focuses to the public financial disclosure to give the public and agencies an on eliminating health disparities. The process for employees of the executive opportunity to express their views. purpose of each of the three branch. This notice indicates the Interested persons may submit programmatic components within the pendency of OGE’s study and provides comments to OGE, to be received by NCPCP follows. the public and agencies the opportunity February 11, 2005, regarding any to comment. specific part of the financial disclosure A.1. National Comprehensive Cancer DATES: Any comments from the public process study or just to give general Control Programs (NCCCP) and the agencies must be received by views on the study in order to assist The NCCCP component supports the February 11, 2005. OGE. planning and implementation of VerDate jul<14>2003 19:36 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00032 Fmt 4703 Sfmt 4703 E:\FR\FM\13JAN1.SGM 13JAN1 2408 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Notices comprehensive cancer control activities. • Other Requirements Marshall Islands, and Federally CDC defines comprehensive cancer • Evaluation Criteria recognized Indian Tribal governments control as an integrated and coordinated Please refer to these specific and Tribal organizations, urban Indian approach to reduce the incidence, component sections in PA 02060, and organizations and inter-tribal consortia morbidity and mortality of cancer amendments for information. (hereafter referred to as Tribes) whose through prevention, early detection, Special Guidelines for Technical primary purpose is to improve treatment, rehabilitation, and palliation. Assistance American Indian/Alaska Native health A.2. National Breast and Cervical and which represent the Native Conference Call: Technical assistance population in their catchment area, that Cancer Early Detection Program will be available for potential applicants (NBCCEDP) are not currently funded for NBCCEDP on a conference call that will be held on under PA 02060. The NBCCEDP component supports January 19, 2005, from 3:30 p.m. to 5:30 the development of systems to assure p.m. (Eastern time). Potential applicants B.3. Eligible for NPCR breast and cervical cancer screening for are requested to call in using only one Potential applicants that are eligible low income, underserved, and telephone line. The conference can be for components of NPCR are the health uninsured women with special accessed by calling 1–888–576–9873, departments of States or their bona fide emphasis on reaching those who are and entering the passcode 21028. agents, the Commonwealth of the geographically or culturally isolated, The purpose of the conference call is Northern Mariana Islands, American older, or members of racial/ethnic to help potential applicants to: Samoa, Guam, the Federated States of minorities. Components of the 1. Understand the process for the Micronesia, the Republic of the NBCCEDP include program Open Season Announcement for PA Marshall Islands, and academic or management; screening & diagnostic 02060 for the National Cancer nonprofit organizations designated by a services, to include case management, Prevention and Control Program; State to operate the State’s cancer tracking and follow-up; data 2. Understand the scope and intent of registry, that are not currently funded management; quality assurance/quality PA 02060 for the National Cancer under PA 02060. improvement; evaluation; partnerships; Prevention and Control Program; Note: Title 2 of the United States Code professional development and 3. Be familiar with the Public Health section 1611 states that an organization recruitment, to include public Services funding policies and described in section 501(c)(4) of the Internal education, outreach and inreach. These application and review procedures. Revenue Code that engages in lobbying components are carried out at the local, Participation in this conference call is activities is not eligible to receive Federal State and national levels through not mandatory. At the time of the call, funds constituting an award, grant or loan. collaborative partnerships with State if you have problems accessing the health agencies, community-based conference call, please call 404–639– C. Availability of Funds organizations, tribal governments, 7550. Pending availability of FY 2005 funds, universities, a variety of medical care B. Eligible Applicants approximately $1,850,000 is available in providers and related agencies and FY 2005 to fund new programs under institutions, and the business and Applicants may apply for any or all of the Open Season for PA 02060-FY05. voluntary sectors. These partners work the components within this Open Awards under PA 02060 were made together to develop, implement and Season announcement for which they for a Project Period of September 30, evaluate strategies to promote breast and are eligible and that they are not 2002 through June 29, 2007. The first cervical cancer prevention and early currently funded for under PA 02060. funding period was for the period detection, to increase access to related B.1. Eligible for NCCCP September 30, 2002 through June 29, services and to improve the quality and 2003. The second funding period was timeliness of the services. Potential applicants that are eligible for the period June 30, 2003 through for components of NCCCP are the health June 29, 2004. The third funding period A.3. National Program of Cancer departments of States or their bona fide was for the period June 30, 2004 Registries (NPCR) agents, the Commonwealth of Puerto through June 29, 2005. Awards under The NPCR component supports efforts Rico, the Virgin Islands, the this Open Season announcement will be to establish population-based cancer Commonwealth of the Northern Mariana for the Period of June 30, 2005 through registries where they do not exist and to Islands, American Samoa, Guam, the June 29, 2007, with funding for the improve existing cancer registries. Federated States of Micronesia, the period June 30, 2005 through June 29, PA 02060 and applicable Republic of the Marshall Islands, and 2006. Future budget periods will be 12- amendments, contain information that Federally recognized Indian Tribal month periods, and will begin on June is specific to the three individual governments and Tribal organizations, 30 of every year and run through June components. Section G ‘‘Specific urban Indian organizations and inter- 29 of each following year. These budget Guidance for NCCCP’’ addresses the tribal consortia (hereafter referred to as periods will occur until the expiration National Comprehensive Cancer Control Tribes) whose primary purpose is to of the project period for PA 02060, Program; Section H ‘‘Specific Guidance improve American Indian/Alaska Native which is June 29, 2007. for NCCEDP’’ addresses the National health and which represent the Native In Accordance with G.2.d. of PA 2060, Breast and Cervical Cancer Early population in their catchment area, that Amendment 4, there will be no funding Detection Program; and Section I are not currently funded for NCCCP preferences applicable to this funding ‘‘Specific Guidance for NPCR’’ under PA 02060. period. addresses the National Program of B.2. Eligible for NBCCEP All new applications will be reviewed Cancer Registries. These component through an Objective Review process. sections include specific guidance Potential applicants that are eligible C.1. Component Funding regarding: for NBCCEDP are the Virgin Islands, the • Eligibility Commonwealth of the Northern Mariana NCCCP $250,000 • Program Requirements Islands, the Federated States of NBCCEDP $0 (No Open Season Funds • Content Micronesia, the Republic of the Available for FY05) VerDate jul<14>2003 17:46 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00033 Fmt 4703 Sfmt 4703 E:\FR\FM\13JAN1.SGM 13JAN1 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Notices 2409 NPCR $250,000 C.4. Recipient Financial Participation D.4. Application Outline NCCCP—Additional Optional For specific ‘‘Recipient Financial Applicants may apply for any or all of Funding available for recipients of Participation’’ information, please refer the components within this program NCCCP Implementation Programs as to Sections G, H, and I of PA 02060 and announcement for which they are follows: amendments. eligible. Please provide specific Colorectal cancer activities $250,000 ‘‘Application Outline’’ information for C.5. Direct Assistance Ovarian cancer activities $500,000 each component as outlined in specific Prostate cancer activities $500,000 For specific ‘‘Direct Assistance’’ Sections G, H, and I of PA 02060 and Skin cancer activities $100,000 information, please refer to Sections G, amendments. H, and I of PA 02060 and amendments. C.2. Requested Budget Information E. Submission and Deadline Applicants should submit separate C.6. Funding Preferences E1. Letter of Intent budgets for each component (as well as In accordance with the ‘‘Funding separate budgets if applying for the Preference’’ section of the amended PA On or before January 28, 2004, submit Additional Optional Funding under 02060, no funding preference will be the LOI to the National Center for NCCCP) in response to this Open given for this period. For specific Chronic Disease Prevention and Control. By mail: Tanya Hicks, Program Season announcement. Each detailed ‘‘Funding Preference’’ information, Analyst, CDC National Center for budget and narrative justification please refer to Sections G, H, and I of Chronic Disease Prevention and Health should support the activities for the PA 02060 and amendments. funding period specified in this Program Promotion, 4770 Buford Hwy, NE, MS Announcement for FY 2005 support. C.7. Funding Consideration K–57, Atlanta, GA 30341–3717; or by Applications should follow the For specific ‘‘Funding Consideration’’ courier service: Tanya Hicks, Koger guidance provided under each program information, please refer to Sections G, Center, 2858 Woodcock Blvd, Davidson component in PA 02060 and applicable H, and I of PA 02060 and amendments. Bldg, Room 2081, Chamblee, GA 30341; amendments, with respect to the or by fax: 770–488–3230; or by e-mail: development and submission of an D. Content [email protected]. itemized budget and justification. D.1. Letter of Intent E.2. Application C.3. Use of Funds One Letter of Intent (LOI) is requested Submit the original and two copies of For specific ‘‘Use of Funds’’ from each applicant applying for any CDC Form 0.1246. Forms are available information, refer to Sections G, H, and component(s) of this program. The in the application kit and at the I of PA 02060 and amendments. narrative should be no more than one following Internet address: Cooperative agreement funds may be single-spaced page, printed on one side, www.cdc.gov/od/pgo/forminfo.htm. used to support personnel and to with one-inch margins, and unreduced On or before February 28, 2005, purchase equipment, supplies, and font. Your LOI will not be evaluated, but submit the original and two copies of services directly related to project will be used to assist CDC in planning the application to: Technical activities and consistent with the scope for the objective review for this program Information Management— of the cooperative agreement. and should include the announcement PA02060FY05, Procurement and Grants Funds provided under this program number, the specific component(s) and Office, Centers for Disease Control and announcement may not be used to: parts of the component, if applicable, Prevention, 2920 Brandywine Road, • Conduct research projects. for which funds are being applied, and Atlanta, GA 30341–4146. Guidance regarding CDC’s definition of the name of the principal investigator. Applications may not be submitted ‘‘research’’ should be reviewed at http: electronically at this time. //www.cdc.gov/od/ads/opspoll1.htm. D.2. Application Development Please reference Program • Supplant State or local funds, to Please refer to Sections G, H, and I of Announcement Number 02060–FY05 provide inpatient care or treatment, or PA 02060 and amendments to use the National Cancer Prevention and Control to support the construction or information in the Program Program on the mailing envelope and on renovation of facilities. Requirements, Other Requirements, and the application Standard Form 424, Applicants are encouraged to identify Evaluation Criteria sections to develop block 11. Please also make sure that and leverage mutually beneficial the application content. Your block 16 on Standard Form 424 opportunities to interact and integrate application will be evaluated using the regarding Executive Order 12372 has with other State health department criteria listed, so it is important to been completed correctly. programs that address related chronic follow them in laying out your E.3. Deadline diseases or risk factors. This may application. include cost sharing to support a shared Applications should follow the Applications must be received in the position such as a Chronic Disease guidance below with respect to page CDC Procurement and Grants Office by Epidemiologist, Health Communication limitations for each component. All 4 p.m. Eastern time on the deadline Specialist, Program Evaluator, or Policy applications should be printed on one date. If you send your application by the Analyst to work on relevant activities side, with one-inch margins, using United States Postal Service of across units/departments within the unreduced font. All materials must be commercial delivery service, you must State health department. Such activities provided in an unbound, one-sided, 81⁄2 ensure that the carrier will be able to may include, but are not limited to joint x 11″ print format, suitable for guarantee delivery of the application by planning, joint funding of photocopying (i.e., no audiovisual the closing date and time. If CDC complementary activities, public health materials, posters, tapes, etc.). receives your application after closing education, collaborative development due to: (1) Carrier error, when the and implementation of environmental, D.3. Page Limitations carrier accepted the package with a policy, systems, or community For specific ‘‘Page Limitations’’ guarantee for delivery by the closing interventions and other cost sharing information, please see Sections G, H, date and time, or (2) significant weather activities. and I of PA 02060 and amendments. delays or natural disasters, you will be VerDate jul<14>2003 17:46 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00034 Fmt 4703 Sfmt 4703 E:\FR\FM\13JAN1.SGM 13JAN1 2410 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Notices given the opportunity to submit Control, National Center for Chronic NIS design assumes that reported documentation of the carriers guarantee. Disease Prevention and Health children represent only a portion of the If the documentation verifies a carrier Promotion, Centers for Disease Control children who actually are maltreated. problem, CDC will consider the and Prevention, 4770 Buford Hwy., NE Following the implications of its application as having been received by (MS K–57), Atlanta, GA 30341–3717, assumptions, NIS estimates the scope of the deadline. Telephone number: 770–488–4880, E- the maltreated child population by CDC will not notify you upon receipt mail address: [email protected]. combining information about reported of your application. If you have a NPCR: Lois Voelker, Public Health cases with data on maltreated children question about the receipt of your Advisor, Cancer Surveillance Branch, identified by professionals (called application, first contact your courier. If Division of Cancer Prevention and ‘‘sentinels’’) who encounter them during you still have a question, contact the Control, National Center for Chronic the normal course of their work in a PGO–TIM staff at: 770–488–2700. Before Disease Prevention and Health wide range of agencies in representative calling, please wait two to three days Promotion, Centers for Disease Control communities. Sentinels are asked to after the application deadline. This will and Prevention, 4770 Buford Hwy., NE remain on the lookout for children they allow time for the applications to be (MS K–53), Atlanta, GA 30341–3717, believe are maltreated during the study processed and logged. Telephone number: 770–488–3095, E- reference period and to provide mail address: [email protected]. F. Evaluation Criteria information about those children. Dated: January 5, 2005. Children identified by sentinels and Each application will be evaluated William P. Nichols, those whose alleged maltreatment is individually will be reviewed through Acting Director, Procurement and Grants investigated by CPS during the same an Objective Review process. Office, Centers for Disease Control and period are evaluated against For specific ‘‘Evaluation Criteria’’ Prevention. standardized definitions, and only information, please see Sections G, H, [FR Doc. 05–488 Filed 1–12–05; 8:45 am] children who meet the study standards and I of PA 02060 and amendments. BILLING CODE 4163–18–P are used to develop the study estimates. G. Where To Obtain Additional The study estimates are couched in Information terms of numbers of maltreated DEPARTMENT OF HEALTH AND children, with data unduplicated so a This and other CDC announcements HUMAN SERVICES given child is counted only once. can be found on the CDC home page Confidentiality of all participants is Internet address—http://www.cdc.gov. Administration for Children and carefully protected. Click on ‘‘Funding’’ then ‘‘Grants and Families Cooperative Agreements.’’ A nationally representative sample of If you have questions after reviewing Submission for OMB Review; 120 counties will be selected and all the contents of all the documents, Comment Request local CPS agencies serving the selected counties will be identified. Plans will be business management technical Title: Fourth National Incidence assistance in the states may be obtained developed to obtain data on cases Study of Child Abuse and Neglect. investigated during the study reference from: Annie Camacho or Glynnis OMB No.: 0970–0276. Taylor, Grants Management Specialist, Description: The Department of period, September 4 to December 3, CDC Procurement and Grants Office, Health and Human Services (HHS) 2005. Sentinels in the selected counties 2920 Brandywine Road, Atlanta, GA intends to issue letters to recruit will be identified through samples of 30341–4146, Telephone number: Annie agencies for participation in the next agencies in 11 categories: county Camacho: 770–488–2735, Glynnis National Incidence Study of Child juvenile probation departments, sheriff Taylor: 770–488–2752, E-mail address: Abuse and Neglect (NIS). This will be (and/or state police) departments, Annie Camacho: [email protected], Glynnis the fourth cycle of this periodic study. public health departments, public Taylor: [email protected]. NIS–1, mandated under Public Law housing departments, municipal police Business management technical (Pub. L.) 93–247 (1974), was conducted departments, hospitals, schools, day assistance in the territories may be in 1979 and 1980 and reported in 1981. care centers, social service agencies, obtained from: Vincent Falzone, Grants NIS–2 was mandated under Pub. L. 98– mental health agencies, and shelters for Management Specialist, CDC 457 (1984), conducted in 1986 and 1987 battered women or runaway/homeless Procurement and Grants Office, 2920 and reported in 1988. NIS–3 was youth. A total of approximately 1,600 Brandywine Road, Atlanta, GA 30341– mandated under both the Child Abuse sentinel agencies will be sampled. Plans 4146, Telephone number: 770–488– Prevention, Adoption, and Family will be developed to identify staff in 2763, E-mail address: [email protected]. Services Act of 1988 (Pub. L. 100–294) these agencies who have direct contact For program technical assistance and the Child Abuse, Domestic with children to serve as sentinels contact: Violence, Adoption and Family Services during the study by submitting data on NCCCP: Leslie S. Given, M.P.A., Act of 1992 (Pub. L. 102–295), was maltreated children they encounter Public Health Advisor, NCCCP, Program conducted between 1993 and 1995 and during the study reference period. In Services Branch, Division of Cancer published in 1996. NIS–4, mandated by preparation for the study, letters will be Prevention and Control, National Center the Keeping Children and Families Safe sent to the directors of the selected for Chronic Disease Prevention and Act of 2003 (Pub. L. 108–36), will be agencies asking them to permit their Health Promotion, Centers for Disease reported in 2006. agencies to participate in NIS–4, and Control and Prevention, 4770 Buford NIS is unique in that it goes beyond describing the general nature of the data Hwy., NE (MS K–57), Atlanta, GA the abused and neglected children who collection effort. HHS will issue a 30341–3717, Telephone number: 770– come to the attention of the Child subsequent notice of proposed data 488–3099, E-mail address: [email protected]. Protective Services (CPS) system. In collection for this study after data NBCCEDP: Susan True, M.Ed., Branch contrast to the National Child Abuse collection plans are developed. Chief, Program Services Branch, and Neglect Data Systems (NCANDS), Respondents: National CPS Agencies Division of Cancer Prevention and which rely solely on reported cases, the and National Sentinel Agencies. VerDate jul<14>2003 17:46 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00035 Fmt 4703 Sfmt 4703 E:\FR\FM\13JAN1.SGM 13JAN1 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Notices 2411 ANNUAL BURDEN ESTIMATES Number of Average Instrument Number of responses per burden hours Total burden respondents respondent per response hours Letter to CPS Agencies ...... 120 1 .20 24 Letter to Sentinel Agencies ...... 1,600 1 .20 320 12,000 1 .20 2,400 Estimated Total Annual Burden Hours: 2,744. Additional Information: Copies of the of Management and Budget, Paperwork OMB No.: 0980–0017. proposed collection may be obtained by Reduction Project, Attn: Desk Officer for Description: Section 650 of the Head writing to the Administration for ACF, E-mail address: _ _ Start Act requires the Secretary of the Children and Families, Office of Katherine T. [email protected]. Department of Health and Human Administration, Office of Information Dated: January 6, 2005. Services to prepare and submit a report Services, 370 L’Enfant Promenade, SW., Robert Sargis, to the Congress at least once every two Washington, DC 20447, Attn: ACF Reports Clearance Officer. All requests Reports Clearance Officer. years. This report shall include should be identified by the title of the [FR Doc. 05–678 Filed 1–12–05; 8:45 am] information contained in the document information collection. E-mail address: BILLING CODE 4184–01–M entitled the ‘‘Head Start Program [email protected]. Information Report.’’ The Head Start OMB Comment: OMB is required to Bureau is proposing to renew approval make a decision concerning the DEPARTMENT OF HEALTH AND of this information collection document. HUMAN SERVICES collection of information between 30 Respondents: Head Start and Early and 60 days after publication of this Administration for Children and Head Start grantees and delegate document in the Federal Register. Families agencies. Therefore, a comment is best assured of having its full effect if OMB receives it Submission for OMB Review; within 30 days of publication. Written Comment Request comments and recommendations for the proposed information collection should Title: Head Start Program Information be sent directly to the following: Office Report. ANNUAL BURDEN ESTIMATES Number of Average Instrument Number of responses per burden hours Total burden respondents respondent per response hours Head Start Program Information Report ...... 2690 1 4.0 10,760 Estimated Total Annual Burden Hours: 10,760. Additional Information: Copies of the Dated: January 5, 2005. proposed collection of certain proposed collection may be obtained by Robert Sargis, information by the agency. Under the writing to the Administration for Reports Clearance, Officer. Paperwork Reduction Act of 1995 (the Children and Families, Office of [FR Doc. 05–679 Filed 1–12–05; 8:45 am] PRA), Federal agencies are required to Administration, Office of Information BILLING CODE 4184–01–M publish notice in the Federal Register Services, 370 L’Enfant Promenade, SW., concerning each proposed collection of Washington, DC 20447, Attn: ACF information, including each proposed Reports Clearance Officer. E-mail DEPARTMENT OF HEALTH AND extension of an existing collection of address: [email protected]. HUMAN SERVICES information, and to allow 60 days for public comment in response to the OMB Comment: OMB is required to Food and Drug Administration notice. This notice solicits comments on make a decision concerning the reporting requirements contained in [Docket No. 2004N–0564] collection of information between 30 existing FDA regulations governing and 60 days after publication of this Agency Information Collection temporary marketing permit document in the Federal Register. applications. Therefore, a comment is best assured of Activities; Proposed Collection; having its full effect if OMB receives it Comment Request; Temporary DATES: Submit written or electronic within 30 days of publication. Written Marketing Permit Applications comments on the collection of information by March 14, 2005. comments and recommendations for the AGENCY: Food and Drug Administration, proposed information collection should HHS. ADDRESSES: Submit electronic be sent directly to the following: Office ACTION: Notice. comments on the collection of of Management and Budget, Paperwork information to: http://www.fda.gov/ Reduction Project, Attn: Desk Officer for SUMMARY: The Food and Drug dockets/ecomments. Submit written ACF, E-mail address: Administration (FDA) is announcing an comments on the collection of [email protected]. opportunity for public comment on the information to the Division of Dockets VerDate jul<14>2003 17:46 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00036 Fmt 4703 Sfmt 4703 E:\FR\FM\13JAN1.SGM 13JAN1 2412 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Notices Management (HFA–305), Food and Drug requirement, FDA is publishing notice action will promote honesty and fair Administration, 5630 Fishers Lane, rm. of the proposed collection of dealing in the interest of consumers * * 1061, Rockville, MD 20852. All information set forth in this document. *’’. Under section 403(g) of the act (21 comments should be identified with the With respect to the following U.S.C. 343(g)), a food that is subject to docket number found in brackets in the collection of information, FDA invites a definition and standard of identity heading of this document. comments on these topics: (1) Whether prescribed by regulation is misbranded FOR FURTHER INFORMATION CONTACT: the proposed collection of information if it does not conform to such definition Peggy Robbins, Office of Management is necessary for the proper performance and standard of identity. Section 130.17 Programs (HFA–250), Food and Drug of FDA’s functions, including whether (21 CFR 130.17) provides for the Administration, 5600 Fishers Lane, the information will have practical issuance by FDA of temporary Rockville, MD 20857, 301–827–1223. utility; (2) the accuracy of FDA’s marketing permits that enable the food estimate of the burden of the proposed industry to test consumer acceptance SUPPLEMENTARY INFORMATION: Under the collection of information, including the PRA (44 U.S.C. 3501–3520), Federal and measure the technological and validity of the methodology and commercial feasibility in interstate agencies must obtain approval from the assumptions used; (3) ways to enhance Office of Management and Budget commerce of experimental packs of food the quality, utility, and clarity of the that deviate from applicable definitions (OMB) for each collection of information to be collected; and (4) information they conduct or sponsor. and standards of identity. Section ways to minimize the burden of the 130.17(c) enables the agency to monitor ‘‘Collection of information’’ is defined collection of information on in 44 U.S.C. 3502(3) and 5 CFR the manufacture, labeling, and respondents, including through the use distribution of experimental packs of 1320.3(c) and includes agency requests of automated collection techniques, or requirements that members of the food that deviate from applicable when appropriate, and other forms of definitions and standards of identity. public submit reports, keep records, or information technology. provide information to a third party. The information so obtained can be Section 3506(c)(2)(A) of the PRA (44 Temporary Marketing Permit used in support of a petition to establish U.S.C. 3506(c)(2)(A)) requires Federal Applications—21 CFR 130.17(c) and (i) or amend the applicable definition or agencies to provide a 60-day notice in (OMB Control Number 0910–0133)— standard of identity to provide for the the Federal Register concerning each Extension variations. Section 130.17(i) specifies proposed collection of information, Section 401 of the Federal Food, Drug, the information that a firm must submit including each proposed extension of an and Cosmetic Act (the act) (21 U.S.C. to FDA to obtain an extension of a existing collection of information, 341), directs FDA to issue regulations temporary marketing permit. before submitting the collection to OMB establishing definitions and standards of FDA estimates the burden of this for approval. To comply with this identity for food ‘‘[w]henever * * * such collection of information as follows: TABLE 1.—ESTIMATED ANNUAL REPORTING BURDEN1 Annual Frequency per Total Annual Hours per Re- 21 CFR Section No. of Respondents Response Responses sponse Total Hours 130.17(c) 3 2 6 25 150 130.17(i) 4 2 8 2 16 Total 166 1There are no capital costs or operating and maintenance costs associated with this collection of information. The estimated number of temporary DEPARTMENT OF HEALTH AND extension of an existing collection of marketing permit applications and HUMAN SERVICES information, and to allow 60 days for hours per response is an average based public comment in response to the on the agency’s experience with Food and Drug Administration notice. This notice solicits comments on applications received October 1, 2001, [Docket No. 2004N–0565] reporting requirements contained in through September 30, 2004, and existing FDA regulations governing information from firms that have Agency Information Collection State petitions for exemption from submitted recent requests for temporary Activities; Proposed Collection; preemption. marketing permits. Comment Request; State Petitions for Exemption From Preemption DATES: Submit written or electronic Dated: January 7, 2005. comments on the collection of Jeffrey Shuren, AGENCY: Food and Drug Administration, information by March 14, 2005. HHS. Assistant Commissioner for Policy. ADDRESSES: Submit electronic ACTION: Notice. [FR Doc. 05–672 Filed 1–12–05; 8:45 am] comments on the collection of BILLING CODE 4160–01–S SUMMARY: The Food and Drug information to: http://www.fda.gov/ Administration (FDA) is announcing an dockets/ecomments. Submit written opportunity for public comment on the comments on the collection of proposed collection of certain information to the Division of Dockets information by the agency. Under the Management (HFA–305), Food and Drug Paperwork Reduction Act of 1995 (the Administration, 5630 Fishers Lane., rm. PRA), Federal agencies are required to 1061, Rockville, MD 20852. All publish notice in the Federal Register comments should be identified with the concerning each proposed collection of docket number found in brackets in the information, including each proposed heading of this document. VerDate jul<14>2003 17:46 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00037 Fmt 4703 Sfmt 4703 E:\FR\FM\13JAN1.SGM 13JAN1 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Notices 2413 FOR FURTHER INFORMATION CONTACT: before submitting the collection to OMB when appropriate, and other forms of Peggy Robbins, Office of Management for approval. To comply with this information technology. Programs (HFA–250), Food and Drug requirement, FDA is publishing notice State Petitions for Exemption From Administration, 5600 Fishers Lane, of the proposed collection of Preemption—21 CFR 100.1(d) (OMB Rockville, MD 20857, 301–827–1223. information set forth in this document. Control Number 0910–0277)—Extension SUPPLEMENTARY INFORMATION: Under the With respect to the following PRA (44 U.S.C. 3501–3520), Federal Under section 403A(b) of the Federal collection of information, FDA invites Food, Drug, and Cosmetic Act (the act) agencies must obtain approval from the comments on these topics: (1) Whether Office of Management and Budget (21 U.S.C. 343–1(b)), States may petition the proposed collection of information (OMB) for each collection of FDA for exemption from Federal is necessary for the proper performance information they conduct or sponsor. preemption of State food labeling and ‘‘Collection of information’’ is defined of FDA’s functions, including whether standard of identity requirements. in 44 U.S.C. 3502(3) and 5 CFR the information will have practical Section 100.1(d) (21 CFR 100.1(d)) sets 1320.3(c) and includes agency requests utility; (2) the accuracy of FDA’s forth the information a State is required or requirements that members of the estimate of the burden of the proposed to submit in such a petition. The public submit reports, keep records, or collection of information, including the information required under § 100.1(d) provide information to a third party. validity of the methodology and enables FDA to determine whether the Section 3506(c)(2)(A) of the PRA (44 assumptions used; (3) ways to enhance State food labeling or standard of U.S.C. 3506(c)(2)(A)) requires Federal the quality, utility, and clarity of the identity requirement satisfies the agencies to provide a 60–day notice in information to be collected; and (4) criteria of section 403A(b) of the act for the Federal Register concerning each ways to minimize the burden of the granting exemption from Federal proposed collection of information, collection of information on preemption. including each proposed extension of an respondents, including through the use FDA estimates the burden of this existing collection of information, of automated collection techniques, collection of information as follows: TABLE 1.—ESTIMATED ANNUAL REPORTING BURDEN1 21 CFR Annual Frequency per Total Annual Re- Section Number of Respondents Response sponses Hours per Response Total Hours 100.1(d) 1 1 1 40 40 1 There are no capital costs or operating and maintenance costs associated with this collection of information. The reporting burden for § 100.1(d) is DEPARTMENT OF HEALTH AND OMB, Attn: Fumie Yokota, Desk Officer insignificant because petitions for HUMAN SERVICES for FDA, FAX: 202–395–6974. exemption from preemption are seldom FOR FURTHER INFORMATION CONTACT: submitted by States. In the last 3 years, Food and Drug Administration Peggy Robbins, Office of Management FDA has not received any new petitions; [Docket No. 2004N–0436] Programs (HFA–250), Food and Drug therefore, the agency estimates that one Administration, 5600 Fishers Lane, or fewer petitions will be submitted Agency Information Collection Rockville, MD 20857, 301–827–1223. annually. Because § 100.1(d) Activities; Submission for Office of SUPPLEMENTARY INFORMATION: In implements a statutory information Management and Budget Review; compliance with 44 U.S.C. 3507, FDA collection requirement, only the Comment Request; Medical Device has submitted the following proposed additional burden attributable to the Registration and Listing collection of information to OMB for review and clearance. regulation has been included in the AGENCY: Food and Drug Administration, estimate. Although FDA believes that Medical Device Registration and HHS. Listing—21 CFR Parts 807.22, 807.31, the burden will be insignificant, it ACTION: Notice. and 807.40 (OMB Control Number believes these information collection 0910–0387)—Extension SUMMARY: provisions should be extended to The Food and Drug Section 510 of the Federal Food, Drug, provide for the potential future need of Administration (FDA) is announcing and Cosmetic Act (the act) (21 U.S.C. a State or local government to petition that a proposed collection of 360) requires domestic establishments for an exemption from preemption information has been submitted to the engaged in the manufacture, under the provisions of section 403(A) Office of Management and Budget preparation, propagation, compounding, of the act. (OMB) for review and clearance under assembly, or processing of medical the Paperwork Reduction Act of 1995. Dated: January 7, 2005. devices intended for human use and DATES: Fax written comments on the commercial distribution register their Jeffrey Shuren, collection of information by February establishments and list the devices they Assistant Commissioner for Policy. 14, 2005. manufacture with FDA. This is [FR Doc. 05–674 Filed 1–12–05; 8:45 am] ADDRESSES: OMB is still experiencing accomplished by completing FDA Form BILLING CODE 4160–01–S significant delays in the regular mail, 2891 ‘‘Registration of Device including first class and express mail, Establishment’’ and FDA Form 2892 and messenger deliveries are not being ‘‘Medical Device Listing.’’ The term accepted. To ensure that comments on ‘‘device’’ is defined in section 201(h) of the information collection are received, the act (21 U.S.C. 321) and includes all OMB recommends that written in vitro diagnostic products and in vitro comments be faxed to the Office of diagnostic biological products not Information and Regulatory Affairs, subject to licensing under section 351 of VerDate jul<14>2003 17:46 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00038 Fmt 4703 Sfmt 4703 E:\FR\FM\13JAN1.SGM 13JAN1 2414 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Notices the Public Health Service Act (42 U.S.C. date of initial listing. The owner or geographic distribution in order to 262). The FDA Modernization Act of operator must maintain in the historical effectively allocate FDA’s field 1997 (FDAMA) added a requirement for file any labeling or advertisements in resources for these inspections and to foreign establishments to appoint a U.S. which a material change has been made identify the class of the device that agent and submit the information to anytime after initial listing, but may determines the inspection frequency. FDA on Form 2891 as part of its initial discard labeling and advertisements When complications occur with a and updated registration information. In from the file 3 years after the date of the particular device or component, addition, each year, active, registered last shipment of a discontinued device manufacturers of similar or related establishments must notify FDA of by an owner or operator. Along with the devices can be easily identified. changes to the current registration and recordkeeping requirements previously The likely respondents to this device listing for the establishment. mentioned in this document, the owner information collection will be domestic Annual changes to current registration or operator must be prepared to submit and foreign device establishments and information are preprinted on FDA to FDA all labeling and advertising U.S. agents who must register and Form 2891a and sent to registered (§ 807.31(e)). submit a device list to FDA (e.g., establishments. The form must be sent Section 807.40 (21 CFR 807.40) establishments engaged in the back to FDA’s Center for Devices and describes the role of the U.S. agent. The manufacture, preparation, propagation, Radiological Health, even if no changes U.S. agent must reside or have a compounding, assembly, or processing have occurred. Changes to listing physical place of business in the United of medical devices intended for human information are submitted on Form States, and each foreign establishment use and commercial distribution). 2892. must submit U.S. agent information as In the Federal Register of October 29, Under § 807.31 (21 CFR 807.31), each part of its initial and updated 2004 (69 FR 63156), FDA published a owner or operator is required to registration process. 60-day notice requesting public maintain an historical file containing The information collected through comment on the information collection the labeling and advertisements in use these provisions is used by FDA to provisions. No comments were received. on the date of initial listing, and in use identify firms subject to FDA’s FDA estimates the burden of this after October 10, 1978, but before the regulations and is used to identify collection of information as follows: ESTIMATED ANNUAL REPORTING BURDEN TABLE 1A.—ESTIMATED YEAR 1 ANNUAL REPORTING BURDEN1 No. of Annual Frequency Total Annual Hours Per Total 21 CFR Section FDA Form Respondents of Response Responses Response Hours 807.22(a) and 807.40 Form 2891 Initial and Updates 2,900 1 2,900 .25 725 Establishment Registration 807.22(b) Form 2892 Device Listing– 4,400 1 4,400 .50 2,200 initial and updates 807.22(a) and 807.40 Form 2891a–Registration 25,100 1 25,100 .25 6,275 Update 807.31(e) 200 1 200 .50 100 Total Year 1 Burden Hours 9,300 1 There are no capital costs or operating and maintenance costs associated with this collection of information. TABLE 1B.—ESTIMATED SUBSEQUENT YEARS ANNUAL REPORTING BURDEN1 No. of Annual Frequency Total Annual Hours Per Total 21 CFR Section FDA Form Respondents of Response Responses Response Hours 807.22(a) and 807.40 Form 2891 Initial and Updates 3,100 1 3,100 .25 775 Establishment Registration 807.22(b) Form 2892 Device Listing– 4,600 1 4,600 .50 2,300 initial and updates 807.22(a) and 807.40 Form 2891a–Registration 25,100 1 25,100 .25 6,275 Update 807.31(e) 200 1 200 .50 100 Total Year 2 and 3 Burden Hours 9,450 1 There are no capital costs or operating and maintenance costs associated with this collection of information. VerDate jul<14>2003 17:46 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00039 Fmt 4703 Sfmt 4703 E:\FR\FM\13JAN1.SGM 13JAN1 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Notices 2415 TABLE 2.—ESTIMATED ANNUAL RECORDKEEPING BURDEN No. of Annual Frequency Total Annual Hours Per 21 CFR Section Recordkeepers per Recordkeeper Records Recordkeeper Total Hours 807.31 16,200 4 64,800 .50 32,400 Total Burden Hours 32,400 The burdens are explained as follows: proposing that the food additive FDA will also place on public display The annual reporting burden hours to regulations be amended to provide for any amendments to, or comments on, respondents for registering the safe use of polyurethane polymer the petitioner’s environmental establishments and listing devices is coating in ruminant feed. assessment without further estimated to be 9,450 hours, and DATES: Submit written or electronic announcement in the Federal Register. recordkeeping burden hours for comments by March 29, 2005. If, based on its review, the agency finds respondents is estimated to be 32,400 ADDRESSES: Submit written comments that an environmental impact statement hours. The estimates cited in tables 1A, to the Division of Dockets Management is not required and this petition results 1B, and 2 of this document are based (HFA–305), Food and Drug in a regulation, the notice of availability primarily upon the annual FDA Administration, 5630 Fishers Lane, rm. of the agency’s finding of no significant accomplishment report, which includes 1061, Rockville, MD 20852. Submit impact and the evidence supporting that actual FDA registration and listing electronic comments to http:// finding will be published with the figures from fiscal year (FY) 2003. These www.fda.gov/dockets/ecomments. regulation in the Federal Register in estimates are also based on FDA FOR FURTHER INFORMATION CONTACT: accordance with 21 CFR 25.51(b). estimates of FY 2003 data from current Isabel Pocurull, Center for Veterinary Dated: January 3, 2005. systems, conversations with industry Medicine, Food and Drug Stephen F. Sundlof, and trade association representatives, Administration, 7519 Standish Pl., and from internal review of the Director, Center for Veterinary Medicine. Rockville, MD 20855, 240–453–6853, [FR Doc. 05–673 Filed 1–12–05; 8:45 am] documents referred to in tables 1A, 1B, email: [email protected]. BILLING CODE 4160–01–S and 2 of this document. SUPPLEMENTARY INFORMATION: Under the According to 21 CFR part 807, all Federal Food, Drug, and Cosmetic Act owners/operators are required to list, (section 409(b)(5) (21 U.S.C. 348(b)(5))), and establishments and U.S. agents are DEPARTMENT OF HEALTH AND notice is given that a food additive HUMAN SERVICES required to register. Each owner/ petition (FAP 2253) has been filed by operator has an average of two Alltech, Inc., 3031 Catnip Hill Pike, Food and Drug Administration establishments, according to statistics Nicholasville, KY 40356. The petition gathered from FDA’s registration and proposes to amend the food additive [Docket No. 2004D–0549] listing database. The database has regulations in part 573 Food Additives 25,100 active establishments listed in it. permitted in Feed and Drinking Water of Draft Guidance for Industry on Based on past experience, the agency Animals (21 CFR part 573) to provide Labeling Over-the-Counter Human anticipated that approximately 7,300 for the safe use of polyurethane polymer Drug Products; Questions and registrations will be processed during coating in ruminant feed. Answers; Availability the first year, and 3,100 thereafter. FDA The potential environmental impact anticipates reviewing 200 historical files of this action is being reviewed. To AGENCY: Food and Drug Administration, annually. encourage public participation HHS. Dated: January 7, 2005. consistent with regulations issued under ACTION: Notice. Jeffrey Shuren, the National Environmental Policy Act (40 CFR 1501.4(b)), the agency is SUMMARY: The Food and Drug Assistant Commissioner for Policy. Administration (FDA) is announcing the [FR Doc. 05–676 Filed 1–12–05; 8:45 am] placing the environmental assessment submitted with the petition that is the availability of a draft guidance for BILLING CODE 4160–01–S subject of this notice on public display industry entitled ‘‘Labeling OTC Human at the Division of Dockets Management Drug Products—Questions and Answers.’’ This guidance is intended to DEPARTMENT OF HEALTH AND (see ADDRESSES) for public review and assist manufacturers, packers, and HUMAN SERVICES comment. Interested persons may submit to the distributors of over-the-counter (OTC) Food and Drug Administration Division of Dockets Management (see drug products to implement the ADDRESSES) written or electronic agency’s regulation on standardized [Docket No. 2004F–0546] comments regarding this document. content and format requirements for the Submit a single copy of electronic labeling of OTC drug products. This Alltech, Inc.; Filing of Food Additive comments or two paper copies of any draft guidance discusses labeling Petition mailed comments, except that questions that have been frequently AGENCY: Food and Drug Administration, individuals may submit one paper copy. asked by manufacturers, packers, and HHS. Comments are to be identified with the distributors in implementing the new ACTION: Notice. docket number found in brackets in the requirements. The labeling examples in heading of this document. Received this draft guidance show various format SUMMARY: The Food and Drug comments may be seen in the Division and content features and suggest how Administration (FDA) is announcing of Dockets Management between 9 a.m. OTC drug monograph labeling that Alltech, Inc., has filed a petition and 4 p.m., Monday through Friday. information finalized before the new VerDate jul<14>2003 17:46 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00040 Fmt 4703 Sfmt 4703 E:\FR\FM\13JAN1.SGM 13JAN1 2416 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Notices requirements can be converted to the compliance date of the final rule. The Dated: December 28, 2004. new format. final rule covers all OTC drug and drug- William K. Hubbard, DATES: Submit written or electronic cosmetic products, whether marketed Associate Commissioner for Policy and comments on the draft guidance for under a new drug marketing Planning. industry by March 14, 2005. General application, abbreviated new drug [FR Doc. 05–696 Filed 1–12–05; 8:45 am] comments on agency guidance application, or OTC drug monograph (or BILLING CODE 4160–01–S documents are welcome at any time. product not yet the subject of a final ADDRESSES: Submit written requests for OTC drug monograph). single copies of the draft guidance to the Following issuance of the final rule, DEPARTMENT OF HEALTH AND Division of Drug Information (HFD– the agency received a number of HUMAN SERVICES 240), Center for Drug Evaluation and inquires from manufacturers seeking Health Resources and Services Research, Food and Drug guidance on how to present the labeling Administration Administration, 5600 Fishers Lane, information for their OTC drug products Rockville, MD 20857. Send one self- using the standardized content and Agency Information Collection addressed adhesive label to assist that format requirements. This draft Activities: Submission for OMB office in processing your requests. guidance discusses those inquiries and Review; Comment Request Submit written comments on the draft provides labeling examples to show guidance to the Division of Dockets various format and content features of Periodically, the Health Resources Management (HFA–305), Food and Drug the labeling requirements and suggest and Services Administration (HRSA) Administration, 5630 Fishers Lane, rm. how OTC drug monograph labeling publishes abstracts of information 1061, Rockville, MD 20852. Submit finalized before the new regulation was collection requests under review by the electronic comments to http:// issued can be converted to the new Office of Management and Budget www.fda.gov/dockets/ecomments. See format. This draft guidance also (OMB), in compliance with the the SUPPLEMENTARY INFORMATION section discusses how to list inactive Paperwork Reduction Act of 1995 (44 for electronic access to the draft ingredients that may or may not be U.S.C. Chapter 35). To request a copy of guidance document. contained in the OTC drug product. the clearance requests submitted to OMB for review, call the HRSA Reports FOR FURTHER INFORMATION CONTACT: This level I draft guidance is being Cazemiro R. Martin or Gerald M. issued consistent with FDA’s good Clearance Office on (301) 443–1129. The following request has been Rachanow, Center for Drug Evaluation guidance practices (21 CFR 10.115). The submitted to the Office of Management and Research (HFD–560), Food and draft guidance includes labeling and Budget for review under the Drug Administration, 5600 Fishers examples that are consistent with the Paperwork Reduction Act of 1995: Lane, Rockville, MD 20857, 301–827– new OTC drug products standardized 2222. labeling content and format. The draft Proposed Project: Surveys of Safety Net SUPPLEMENTARY INFORMATION: guidance represents the agency’s current Providers for the Healthy Communities thinking on how OTC drug monograph Access Program National Evaluation— I. Background labeling can be converted to the new New FDA is announcing the availability of OTC ‘‘Drug Facts’’ format labeling. It The Bureau of Primary Health Care, a draft guidance for industry entitled does not create or confer any rights for Health Resources and Services ‘‘Labeling OTC Human Drug Products— or on any person and does not operate Administration, is conducting a national Questions and Answers.’’ This is one of to bind FDA or the public. An evaluation of the Healthy Communities several draft guidances the agency is alternative approach may be used if Access Program (HCAP) as required by developing to help manufacturers, such an approach satisfies the section 340(i) of the Public Health packers, and distributors implement the requirements of the applicable statutes Service Act (42 U.S.C. 256) Public Law regulation establishing standardized and regulations. 107–251, Oct. 26, 2002. content and format requirements for the II. Comments Surveys of Safety Net Providers and labeling of all OTC drug products. Once Consortium Leaders will be performed finalized, these draft guidances will Interested persons may submit to the to provide essential information not supersede all other statements, Division of Dockets Management (see otherwise available for the national feedback, and correspondence provided ADDRESSES) written or electronic evaluation. Based on consortia response by the agency on these matters since the comments on the draft guidance. Submit rates of 70% for the provider survey and issuance of the final rule. a single copy of electronic comments or 75% for the consortia leader survey, it In the Federal Register of March 17, two copies of any mailed comments is estimated that 405 Safety Net 1999 (64 FR 13254), FDA published a except that individuals may submit one Providers and 145 Consortia Leaders final rule establishing standardized paper copy. Comments are to be will complete the surveys. content and format requirements for the identified with the docket number A preliminary review of the sampling labeling of OTC drug products (21 CFR found in brackets in the heading of this frame for safety net providers indicates 201.66). This regulation is intended to document. The draft guidance and that the allocated sample provides standardize labeling for all OTC drug received comments are available for adequate representation of all provider products so consumers can easily read public examination in the Division of types of interest. Legislatively required and understand OTC drug product Dockets Management between 9 a.m. provider members of HCAP consortia labeling and use these products safely and 4 p.m., Monday through Friday. are included in the sample, i.e., hospitals, federally qualified health and effectively. III. Electronic Access The regulation for this standardized centers, public health departments, and labeling requires manufacturers to Persons with access to the Internet public/private providers that serve the present OTC drug labeling information may obtain the document at either http:/ medically underinsured and in a prescribed order and format. The /www.fda.gov/cder/guidance/index.htm underserved. The survey results will be standardized format will require or http://www.fda.gov/ohrms/dockets/ considered along with information from revision of all labeling in use before the default.htm. other quantitative and qualitative data VerDate jul<14>2003 17:46 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00041 Fmt 4703 Sfmt 4703 E:\FR\FM\13JAN1.SGM 13JAN1 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Notices 2417 sources (including national, State and sustainability, and provider and patient would provide the evaluation with local data and information from grantee satisfaction. significant information. This survey will consortia leaders and clients) in order to The survey of the HCAP consortia be used to assess consortia leaders’ develop a Report to Congress in leaders, who typically are project perspectives on the strengths and September 2005 and a national directors, is a short Web-based survey of limitations of using consortia to evaluation report by September 2006. 12 questions that will be available strengthen the community safety net. It The survey will collect data for key through the HRSA HCAP Web site. The will query leaders on the perceived evaluation goals including coordination sample of eligible consortia includes all efficacy of the consortia approach, those who have received HCAP funding, and integration of safety net services, accomplishments, strengths, weaknesses with the exception of the most recent capacity and access issues, health care and suggestions/areas for future round of HCAP grantees. These grantees delivery, quality of care, cost savings, improvement of the program. The were excluded from the sample because they lack program experience that burden estimate is as follows: Responses Data collection Number of per respond- Total Hours per Total burden respondents ent responses response hours Provider Survey ...... 405 1 405 .33 134 Consortia Leaders Survey ...... 145 1 145 .25 36 Totals ...... 550 ...... 550 ...... 170 Request for Comments: Written representing the Department of Health and Room 8A–09, 5600 Fishers Lane, Rockville, comments and recommendations Human Services (DHHS), constituent groups, Maryland 20857, Telephone (301) 443–0582. concerning the proposed information field experts and committee members. The Dated: January 7, 2005. following topics will be addressed at the collection should be sent within 30 days Steven A. Pelovitz, of this notice to: Desk Officer, Health meeting: What are HRSA/BHPr’s Allied Health projects and what does the legislation Associate Administrator for Administration Resources and Services Administration, dictate; what is the past history, current and Financial Management. Human Resources and Housing Branch, status, and future outlook of Allied Health; [FR Doc. 05–670 Filed 1–12–05; 8:45 am] Office of Management and Budget, New and, what is the Allied Health Reinvestment BILLING CODE 4165–15–P Executive Office Building, Room 10235, Act (S. 2491/H.R. 4016—108th Congress). Washington, DC 20503. Proposed agenda items are subject to Dated: January 7, 2005. change as priorities dictate. Public Comments: Public comment will be DEPARTMENT OF THE INTERIOR Steven A. Pelovitz, permitted at the end of the Committee Associate Administrator for Administration meeting on January 31, 2005, and before Bureau of Indian Affairs and Financial Management. lunch on February 1, 2005. Oral [FR Doc. 05–671 Filed 1–12–05; 8:45 am] presentations will be limited to 5 minutes per Request for Nominations of Members BILLING CODE 4165–15–P public speaker. Persons interested in To Serve on the Bureau of Indian providing an oral presentation should submit Affairs Advisory Board for Exceptional a written request, with a copy of their Education DEPARTMENT OF HEALTH AND presentation to: Ann Bell, Public Health AGENCY: HUMAN SERVICES Fellow, Division of State, Community and Bureau of Indian Affairs, Public Health, Bureau of Health Professions, Interior. Health Resources and Services Health Resources and Services ACTION: Notice of request for Administration Administration, Room 8A–09, 5600 Fishers nominations. Lane, Rockville, Maryland 20857, Telephone Advisory Committee on (301) 443–0582. SUMMARY: Pursuant to the Federal Requests should contain the name, Advisory Committee Act (FACA) and Interdisciplinary, Community-Based address, telephone number, and any business Linkages; Notice of Meeting or professional affiliation of the person the Individuals with Disabilities desiring to make an oral presentation. Groups Education Act (IDEA), the Bureau of In accordance with section 10(a)(2) of Indian Affairs (BIA), Office of Indian the Federal Advisory Committee Act having similar interests are requested to combine their comments and present them Education Programs (OIEP), requests (Pub. L. 92–463), notice is hereby given through a single representative. The Division nominations of individuals to serve on of the following meeting: of State, Community and Public Health will the BIA Advisory Board for Exceptional Name: Advisory Committee on notify each presenter by mail or telephone of Education (Advisory Board). The BIA/ Interdisciplinary, Community-Based their assigned presentation time. OIEP will consider nominations Linkages. Persons who do not file a request in received in response to this Request for advance for a presentation, but wish to make Dates and Times: January 31, 2005, 8:30 Nominations. The SUPPLEMENTARY a.m.–5 p.m. February 1, 2005, 8:30 a.m.–5 an oral statement may register to do so at the INFORMATION p.m. February 2, 2005, 8:30 a.m.–2 p.m. DoubleTree Hotel, Rockville, MD, on January section provides committee Place: The DoubleTree Hotel, 1750 31, 2005. These persons will be allocated and membership criteria, and the Rockville Pike, Rockville, MD 20852. time as the Committee meeting agenda membership nomination form. Status: The meeting will be open to the permits. DATES: Submit nominations on or before public. For Further Information Contact: Anyone February 14, 2005. Agenda: Agenda items will include, but requiring information regarding the not be limited to: Welcome; plenary session Committee should contact Ann Bell, Division ADDRESSES: Please submit nomination on Allied Health issues as they relate to the of State, Community and Public Health, applications to Gloria Yepa, Supervisory grant programs under the purview of the Bureau of Health Professions, Health Education Specialist, BIA, OIEP, Center Committee with presentations by speakers Resources and Services Administration, For School Improvement, 500 Gold VerDate jul<14>2003 17:46 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00042 Fmt 4703 Sfmt 4703 E:\FR\FM\13JAN1.SGM 13JAN1 2418 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Notices Avenue, SW., Post Office Box 1088, appointment. The Secretary may remove (b) Nominees should have expertise Albuquerque, New Mexico 87103–1088. members from the Board at any time at and knowledge of the issues and/or FOR FURTHER INFORMATION CONTACT: his/her discretion. needs of American Indian children with Gloria Yepa, Supervisory Education (b) As required by the IDEA under disabilities. Such knowledge and Specialist, Office of Indian Education section 611(i)(5), the Board will be expertise are needed to provide advice Programs, Center for School composed of individuals involved in or and recommendations to the BIA/OIEP Improvement, (505) 248–7541. concerned with the education and regarding the needs of American Indian SUPPLEMENTARY INFORMATION: The provision of services to Indian children children with disabilities. Advisory Board was established in with disabilities. The Board (c) A summary of the candidates’ accordance with the Federal Advisory composition will reflect a broad range of qualifications (resume or curriculum Committee Act, Public Law 92–463, 5 viewpoints and will include at least one vitae) must be included with the U.S.C, Appendix 2, Section 10(a)(b). member representing each of the nomination application. Nominees must The following provides information following interests: Indian persons with have the ability to participate in about the committee objective and disabilities, teachers of children with Advisory Committee meetings, duties, membership, miscellaneous, disabilities, Indian parents or guardians Committee assignments, participate in nomination information, and of children with disabilities, service teleconference calls, and to work in membership nomination form. providers, State Education Officials, groups. Local Education Officials, State (d) The Department of the Interior is Objective and Duties Interagency Coordinating Councils (for committed to equal opportunity in the (a) Members of the Advisory Board states having Indian reservations), tribal workplace and seeks diverse Committee provide guidance, advice and representatives or tribal organization membership, but is bound by the Indian recommendations with respect to representatives, and BIA employees Preference Act of 1990, 25 U.S.C. 472. concerned with the education of special education and related services Membership Nomination Form for children with disabilities in BIA children with disabilities. The membership nomination form is funded schools in accordance with the Miscellaneous requirements of IDEA; attached to this notice. The nomination (b) Provides advice and (a) Members of the Board will not form may also be downloaded from the recommendations for the coordination receive compensation, but will be OIEP’s Web site at http:// of services within the BIA and with reimbursed for travel, subsistence and www.ENAN.BIA.EDU. other local, State and Federal agencies; other necessary expenses incurred in Dated: December 22, 2004. the performance of their duties (c) Provides advice and David W. Anderson, consistent with the provisions of 5 recommendations on a broad range of Assistant Secretary—Indian Affairs. policy issues dealing with the provision U.S.C. Chapter 57. of educational services to American (b) A member may not participate in Bureau of Indian Affairs Office of Indian children with disabilities; matters that will directly affect, or Indian Education Programs Advisory (d) Serves as an advocate for appear to affect, the financial interests Board for Exceptional Education American Indian students with special of the member or the member’s spouse Membership Nomination Form or minor children, unless authorized by education needs by providing advice Nomination Information and recommendations regarding best the Designated Federal Official (DFO). practices, effective program Compensation from employment does A. Nominations are requested from coordination strategies, and not constitute a financial interest of the individuals, organizations, and federally recommendations for improved member so long as the matter before the recognized tribes, as well as from State educational programming; committee will not have a special or Directors of Special Education (within (e) Provides advice and distinct effect on the member or the the 23 states in which BIA funded recommendations for the preparation of member’s employer, other than as part schools are located) concerned with the information required to be submitted to of a class. The provisions of this education of Indian children with the Secretary of Education under section paragraph do not affect any other disabilities. 611(i)(2)(D) of IDEA; statutory or regulatory ethical B. Nominees should have expertise (f) Provides advice and recommends obligations to which a member may be and knowledge of the issues and/or policies concerning effective inter/intra- subject. needs of American Indian children with agency collaboration, including (c) The Committee meets at least disabilities. Such knowledge and modifications to regulations, and the twice a year, budget permitting, but expertise are needed to provide advice elimination of barriers to inter/intra- additional meetings may be held as and recommendations to the BIA/OIEP agency programs and activities; and deemed necessary by the Assistant regarding the needs of American Indian (g) Reports to the BIA/OIEP Lead Secretary or DFO. children with disabilities. Supervisory Education Specialist for (d) All Committee meetings are open C. A summary of the candidates’ special education. to the public in accordance with the qualifications (resume or curriculum FACA regulations. vitae) must be included with the Membership nomination application. Nominees must Nomination Information (a) The Board will be composed of 15 have the ability to participate in members. The Assistant Secretary— (a) Nominations are requested from Advisory Committee meetings, Indian Affairs may provide the individuals, organizations, and federally Committee assignments, participate in Secretary of the Interior recognized tribes, as well as from State teleconference calls, and to work in recommendations for the Chairperson, Directors of Special Education (within groups. however, the Secretary of the Interior the 23 states in which BIA funded D. The Department of the Interior is will appoint the chairperson and other schools are located) concerned with the committed to equal opportunity in the board members. Members will serve for education of Indian children with workplace and seeks diverse Committee a term of 2 years from the date of their disabilities as described above. membership, however, is bound by the VerDate jul<14>2003 17:46 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00043 Fmt 4703 Sfmt 4703 E:\FR\FM\13JAN1.SGM 13JAN1 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Notices 2419 Indian Preference Act of 1990 (25 U.S.C. effective inter/intra-agency states having Indian reservations), tribal 472). collaboration, including modifications representatives or tribal organization to regulations, and the elimination of representatives, and BIA employees Objective and Duties barriers to inter/intra-agency programs concerned with the education of A. The Committee provides guidance, and activities. children with disabilities. advice and recommendations with G. The Committee reports to the Lead C. Members of the Board will not respect to special education and related Supervisory Education Specialist. services for children with disabilities in receive compensation, but will be Membership BIA funded schools in accordance with reimbursed for travel, subsistence and the requirements of the Individuals with A. The Board will be composed of 15 other necessary expenses incurred in Disabilities Education Act (IDEA). members. The Assistant Secretary— the performance of their duties B. The Committee provides advice Indian Affairs may provide the consistent with the provisions of 5 and recommendations for the Secretary of the Interior U.S.C. Chapter 57. coordination of services within the BIA recommendations for the Chairperson. D. A member may not participate in and with other local, State and Federal The Secretary of the Interior as required matters that will directly affect, or agencies. by IDEA will appoint all board appear to affect, the financial interests C. The Committee provides advice members. Board members will serve for of the member or the member’s spouse and recommendations on a broad range a term of 2 years from the date of their or minor children, unless authorized by of policy issues dealing with the appointment. The Secretary may remove the Designated Federal Official (DFO). provision of educational services to members from the Board at any time at Compensation from employment does American Indian children with his/her discretion. not constitute a financial interest of the disabilities. B. As required by IDEA under section member so long as the matter before the D. The Committee serves as an 611(i)(5), 111 Stat. 59, the Board will be committee will not have a special or advocate for American Indian students composed of individuals involved in or distinct effect on the member or the with special education needs by concerned with the education and member’s employer, other than as part providing advice and recommendations provision of services to Indian children of a class. The provisions of this regarding best practices, effective with disabilities. The Board paragraph do not affect any other program coordination strategies, and composition will reflect a broad range of statutory or regulatory ethical recommendations for improved viewpoints and will include at least one obligations to which a member may be educational programming. member representing each of the subject. E. The Committee provides advice following interests: Indian persons with E. The Committee meets at least twice and recommendations for the disabilities, teachers of children with a year, budget permitting, but additional preparation of information required to disabilities, Indian parents or guardians meetings may be held as deemed be submitted to the Secretary of of children with disabilities, service necessary by the Assistant Secretary or Education. providers, State Education Officials, F. The Committee provides advice Local Education Officials, State DFO. and recommends policies concerning Interagency Coordinating Councils (for BILLING CODE 4310–6W–P VerDate jul<14>2003 17:46 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00044 Fmt 4703 Sfmt 4703 E:\FR\FM\13JAN1.SGM 13JAN1 2420 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Notices VerDate jul<14>2003 17:46 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00045 Fmt 4703 Sfmt 4725 E:\FR\FM\13JAN1.SGM 13JAN1 EN13JA05.011 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Notices 2421 [FR Doc. 05–705 Filed 1–12–05; 8:45 am] BILLING CODE 4310–6W–C VerDate jul<14>2003 17:46 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00046 Fmt 4703 Sfmt 4703 E:\FR\FM\13JAN1.SGM 13JAN1 EN13JA05.012 2422 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Notices DEPARTMENT OF THE INTERIOR provide input and recommendations to • Simplified cost to construct (CTC) BIA and FHWA in developing IRR methodology (including formula Bureau of Indian Affairs Program policies and to coordinate with calculations, formula program and and obtain input from tribes, BIA, and design, and bid tab methodology); Nominations for Indian Reservation FHWA. As recommended, the • Cost elements; Roads Program Coordinating Committee will consist of 12 tribal • Over-design issues; Committee regional representatives (one from each • Inflation impacts on $1 million cap for the Indian Reservation Roads High AGENCY: Bureau of Indian Affairs, BIA region) and two non-voting Federal Priority Project (IRRHPP) and Interior. representatives (from BIA and FHWA). In addition to the 12 tribal regional Emergency Projects (including the ACTION: Notice of intent to form the representatives, the Committee will IRRHPP Ranking System and Indian Reservation Roads Program include one alternate from each BIA emergency/disaster expenditures Coordinating Committee under 25 CFR region who will attend Committee report); and 170.155–158. • meetings in the absence of the tribal The impact of including funded but non-constructed projects in the CTC SUMMARY: The Secretary of the Interior regional representative. Each tribal calculation. is requesting nominations for tribal regional representative must be a tribal regional representatives to the Indian governmental official or employee with IRR Program Coordinating Committee Reservation Roads (IRR) Program authority to act for the tribal Conduct of Business Coordinating Committee (Committee) government. The Secretary must select regional The Committee will hold two which will be established under 25 CFR meetings per fiscal year. The Committee 170. The IRR final rules amending 25 tribal representatives and alternates from nominees officially proposed by may call additional meeting(s) with the CFR 170 include establishing a consent of one-third of Committee Committee to provide input and the region’s tribes. The Secretary will appoint the initial tribal regional members or BIA or FHWA may call recommendations to the Bureau of additional meeting(s). A quorum Indian Affairs (BIA) and the Federal representatives and alternates from each BIA region to either a 1-, 2- or 3-year consists of eight voting Committee Highway Administration (FHWA) in members. The Committee will operate developing IRR Program policies and appointment in order to establish a yearly, one-third change in tribal by consensus or majority vote, as the procedures and to coordinate with and Committee determines in its protocols. obtain input from tribes, BIA, and regional representatives. All appointments thereafter will be for 3- The Committee must elect from among FHWA. the Committee membership a Chair, The Secretary will accept only year terms. To the extent possible, the Secretary must make the selection so Vice-Chair, and other officers. These nominations for tribal representatives officers will be responsible for preparing and alternates officially selected by that there is representation from a broad cross-section of large, medium, and for and conducting Committee meetings tribes in each of the 12 BIA regions as and summarizing meeting results. The stated below. small tribes. The Secretary of the Interior will provide guidance for the Committee may prescribe other duties DATES: Nominations for the IRR Program replacement of representatives. for the officers. Any Committee member Coordinating Committee tribal can submit an agenda item to the representatives and alternates must be IRR Program Coordinating Committee Committee Chair. received no later than February 28, 2005 Responsibilities at the address below. Nominations IRR Program Coordinating Committee The responsibilities of the Committee Reporting Requirements and Budget received after this date will not be are to provide input and considered. recommendations to BIA and FHWA The Committee must keep the Secretary and tribes informed through ADDRESSES: Send nominations to Mr. during the development or revision of: LeRoy Gishi, Chief, Division of • BIA/FHWA IRR Program an annual accomplishment report Transportation, Bureau of Indian Stewardship Plan; provided within 90 days after the end of Affairs, U.S. Department of the Interior, • IRR Program policy and procedures; each fiscal year. The Committee’s 1951 Constitution Avenue, NW., Mail • IRR Program eligible activities’ budget, funded through the IRR Program Stop 320–SIB, Washington, DC 20240. determinations; management and oversight funds, will • not exceed $150,000 annually. FOR FURTHER INFORMATION CONTACT: Mr. IRR Program transit policy; • IRR Program regulations; LeRoy Gishi, Chief, Division of Submitting Nominations • IRR Program management systems Transportation, Bureau of Indian policy and procedures; Tribes may nominate up to three Affairs, 1951 Constitution Avenue, NW., • IRR Program fund distribution individuals from their respective region Mail Stop 320–SIB, Washington, DC formula (under 25 CFR 170.157); and for the committee. Nominations for 20240, Telephone (202) 513–7711 or • National tribal transportation needs. alternate positions should clearly state Fax (202) 208–4696. The Committee also reviews and such. Nominees must be tribal SUPPLEMENTARY INFORMATION: The IRR provides recommendations on IRR governmental officials or employees final rules amending 25 CFR Part 170, Program national concerns, including with authority to act for the tribal effective November 13, 2004, are the implementation of 25 CFR 170, as government. Nominations must be on result of negotiated rulemaking between amended. official tribal government letterhead tribal and Federal representatives under signed by a tribal governmental official. the Transportation Equity Act for the IRR Program Coordinating Committee Nominations must include written 21st Century (TEA–21). The IRR final Role in the Funding Process authority for the nominee to act for the rules include the negotiated rulemaking The Committee will provide input tribal government, if the nominee is committee’s recommendation that the and recommendations to BIA and appointed, and include a resume Secretary of the Interior and the FHWA for: showing the nominee’s relevant Secretary of Transportation establish an • New IRR inventory data format and education and training, current job IRR Program Coordinating Committee to form; description, and professional experience VerDate jul<14>2003 17:46 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00047 Fmt 4703 Sfmt 4703 E:\FR\FM\13JAN1.SGM 13JAN1 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Notices 2423 level in the IRR program, transportation, (2) Determine the individuals entitled Act, as amended, to add allotments or or transit areas. Incomplete nominations to compensation under the Act; and interests to the second list if the will not be considered. (3) Ascertain the amount of Secretary determined that the additional To be considered, nominations must compensation to which each such allotments or interests fall within the be received by the close of business individual is entitled. provisions of sections 4(a), 4(b), or 5(c). February 28, 2005, at the location In addition, section 5(c) of the Act The first list of such additions was indicated in the ADDRESSES section. provides that the White Earth Band of published in the Federal Register on Chippewa Indians shall be compensated March 27, 1991 (56 FR 12818), and a Dated: December 29, 2004. for allotments which were granted to David W. Anderson, second list of such additions was individuals who had died prior to the subsequently published on April 11, Assistant Secretary—Indian Affairs. selection dates of their respective 1994 (59 FR 17174). The Secretary has [FR Doc. 05–727 Filed 1–12–05; 8:45 am] allotments. Under section 8(a) of the determined that certain additional BILLING CODE 4310–LY–P Act, the compensation for the taking or allotments or interests fall within the transfer of an allotment or interest is to provisions of sections 4(a), 4(b), or 5(c). be based on the fair market value of the The list included in this notice contains DEPARTMENT OF THE INTERIOR allotment or interest therein as of the these additions. date of such taking or transfer, less any Bureau of Indian Affairs The list describes additional consideration actually received at the allotments and interests, whether the List of Additional Lands Affected by time. The compensation to be paid takings or transfers apply to the allottees White Earth Reservation Land under the Act shall include interest or the heirs of inherited interests. The Settlement Act of 1985 compounded annually at 5 percent from lists characterized in the September 19, the date of the questionable taking or 1986, and March 10, 1989, publications AGENCY: Bureau of Indian Affairs, transfer, until March 24, 1986, and at as those of Partial Interests are no longer Interior. the general rate of interest earned by being published. All allotments and ACTION: Notice. Department of the Interior funds interests determined by the Secretary to thereafter. The Secretary is authorized be affected by sections 4(a), 4(b), or 5(c) SUMMARY: This notice publishes a list of to issue written notices of compensation of the Act are contained in what had additional allotments or interests on the determination to the allottees or heirs been characterized as the Master List in White Earth Chippewa Reservation in entitled to it. Such notice will describe previous publications and in this Minnesota. The Department of the the basis for the Secretary’s addition. Some of the allotments Interior, Bureau of Indian Affairs, have determination, the process whereby contained on the list include herein may determined that certain additional such compensation was determined, the represent partial interests only. The allotments or interests fall within the method of payment, and the applicable failure to include a Partial Interest List scope of sections 4(a), 4(b), or 5(c) of the time limits for judicial review of the does not mean that there are no partial White Earth Reservation Land determination. Any individual who has interests. Settlement Act of 1985. Under section already elected to file suit in the Federal The inclusion of an allotment or 7(e) of the Act, as amended, any District Court for the District of interest on this list may be judicially determination made by the Secretary to Minnesota to seek the recovery of title reviewed under the provisions of the include an allotment or interest is to an allotment or interest therein, or Administrative Procedure Act, 5 U.S.C. required to be published in the Federal damages, is barred under section 6(c) 701, et seq. Any such action must be Register. from receiving any compensation under filed in Federal District Court for the the Act. FOR FURTHER INFORMATION CONTACT: District of Minnesota and shall be The Secretary was authorized, under barred unless it is filed within 90 Gene Virden, Superintendent, section 7(a) of the Act, to publish a first calendar days of this publication. Minnesota Agency, Bureau of Indian list of allotments or interest that fall This notice is published in the Affairs, 522 Minnesota Avenue, NW., within the provisions of sections 4(a), exercise of authority delegated by the Bemidji, Minnesota 56601, Telephone 4(b), or 5(c) of the Act. The first list of Secretary of the Interior to the Assistant (218) 751–2011. allotments and interests affected by the Secretary—Indian Affairs by 209 DM 8. SUPPLEMENTARY INFORMATION: The White Act was published in the Federal Earth Reservation Land Settlement Act Register on September 19, 1986 (51 FR Dated: December 23, 2004. of 1985, Public Law 99–264 (100 Stat. 33348). The Secretary was also David W. Anderson, 61), as amended by Public Law 100–153 authorized, under section 7(c) of the Assistant Secretary—Indian Affairs. (101 Stat. 886), Public Law 100–212 Act, to publish a second list of (101 Stat. 1433), and Public Law 101– allotments and interests affected by the Instruction Sheet 301 (104 Stat. 210), provides for Act, including additions to those Each questionable taking or transfer alternative methods of resolving appearing on the first list. The has been assigned a 10, 11 or 12 disputes relative to the title to certain amendment contained in Public Law character Issue Number. In every allotments for which trust patents were 100–212 authorized the Secretary to instance, the first six characters, issued to White Earth Chippewa include and publish, as part of the F53408, are identical and denote the Indians. Sections 4(a) and 4(b) of the second list, corrections to the first list. Midwest Regional Office, Minnesota Act define circumstances by which the The list published in the Federal Agency and White Earth Indian title to an allotment may have been Register on March 10, 1989 (54 FR Reservation. The last four, five and six taken or transferred through a 10216), constitutes the second list of characters identify the specific taking or questionable means during the trust allotments and interests which was transfer. The list contains information period. The Act authorizes the Secretary determined by the Department of the regarding allotments and inherited of the Interior to: Interior to fall within the provisions of interests, in addition to those listed in (1) Identify the allotments or interests sections 4(a), 4(b), or 5(c) of the Act. previous publications, affected by the which were taken or transferred under The Secretary is also authorized, at Act, including the following identified circumstances; any time, under section 7(e)(1) of the subheadings: VerDate jul<14>2003 17:46 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00048 Fmt 4703 Sfmt 4703 E:\FR\FM\13JAN1.SGM 13JAN1 2424 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Notices Issue Number: The 10, 11 or 12 the letter O (Original Allotment) or A Ojibway Name: The name of the character number, explained above, (Additional Allotment). allottee in Ojibway, the native language which identifies the Regional Office, CO: The county in which the tract of the White Earth Band of the White Agency, Reservation and specific taking involved in the taking or transfer is Earth Band of Chippewa Indians. The or transfer affected by the Act. Where located. These are identified as Becker names are shown with phonetic there are multiple tracts of land, there (B), Clearwater (C) or Mahnomen (M) spellings. has occasionally been the need to add County. one or more letters to the Issue Number Legal Sub, SEC, TWP, and RNG: The Tracts which fall within the in order to distinguish among such legal description of the tract which is provisions of section 5(c) of the Act, tracts. Also, where a tract of land has involved with the taking or transfer by where the claimant is the White Earth been the subject of multiple takings or legal Subdivision, Section (SEC), Band, appear on the list with the White transfers by interest holders, letters have Township (TWP), and Range (RNG) Earth Band listed under the sub-heading been added to the Issue Number to numbers. Where a metes and bounds of English Name. distinguish between such takings and description is required for the legal If you wish further information about transfers. subdivision, it is described as MB allotments or interests which are Allot #: The number assigned, at the (Metes and Bounds). Further contained in this list, call or write the time of the allotment section, to the information concerning such tracts can WELSA Project office in care of the allotment comprising the tract of land be obtained from the WELSA Project Bureau of Indian affairs. The address which was involved in the taking or office in Bemidji, Minnesota. and telephone number are indicated in transfer. Many White Earth allottees, English Name: All known English the FOR FURTHER INFORMATION CONTACT after receiving an original allotment, names of the allottee, including given were granted an additional allotment, name, middle initial, middle name, section of this document. Be sure to with different numbers assigned to each. maiden name, and other English names include the complete Issue Number in To distinguish between the two which have been identified for the any correspondence with the Bureau of allotments, the numbers are preceded by allottee. Indian Affairs. LIST OF ADDITIONAL LANDS AFFECTED BY THE WHITE EARTH RESERVATION LAND SETTLEMENT ACT OF 1985 Issue number Allot No. CO Legal sub SEC TWP RNG English name Ojibwe name F53–408–0066B A–2999 .. M ...... NESE ...... 14 146 40 Nancy Pine ...... Ahgwahdaushee. F53–408–0133 ... O–0596 .. B ...... Lot 4 & SESW .. 7 142 39 Dan Brown ...... Kah we tah waush. F53–408–0135B O–0613 .. B ...... LOT 1 & SENE 23 142 41 ...... Ke way gah bow e quay. F53–408–0492 ... O–0577 .. B ...... LOTS 1 & 2 ...... 7 142 40 Mrs. Joseph Charette ...... Ayn dus. F53–408–0493B A–0507 .. B ...... E2SW ...... 16 141 39 Sophia Bellanger Benais. F53–408–0713D A–3051 .. M ...... NENW ...... 25 145 42 ...... Nay tah o say quay. N2NWNW ...... 25 145 42 S2NWNW ...... 24 145 42 F53–408–0812 ... O–2614 .. B ...... E2SW ...... 21 142 37 ...... Pugenaygeshhigoquay. F53–408–0968 ... O–4682 .. M ...... NWSW ...... 13 145 40 John/Charles LaRose ...... Omin way way ge shig. NESE ...... 14 146 40 F53–408–0968D A–2298 .. M ...... NWSW ...... 13 145 40 John/Charles LaRose ...... Omin way way ge snig. NESE ...... 14 145 40 F53–408–0995 ... O–3455 .. M ...... NESE & SENW 16 143 39 Viola Snider Saign. F53–408–0995A A–1921 .. M ...... NWSE & SWNE 16 143 39 Viola Snider Saign. F53–408–1007 ... A–3055 .. M ...... Lots 2, 7 & 8 ..... 1 146 40 Dorothy Day Dodge ...... Kah gay ge shig o quay. F53–408–1223A O–2945 .. M ...... Lots 3 & 9 ...... 30 143 42 Jack Papio ...... In de baince. F53–408–1223B O–2945 .. M ...... Lots 3 & 9 ...... 30 143 42 Jack Papio ...... In de baince. F53–408–1809A A–1224 .. M ...... E2SW ...... 33 145 41 Joseph Jourdain. F53–408–1823 ... O–1836 .. B ...... Lots 3 & 4 ...... 18 142 39 ...... Ayenub. F53–408–1824 ... O–3548 .. M ...... E2SW ...... 27 145 40 James Staples ...... Nay wah je ke shig. F53–408–1824A O–3548 .. M ...... E2SW ...... 27 145 40 James Staples ...... Nay wah je ke shig. F53–408–1869A O–2110 .. B ...... E2NW ...... 25 141 37 ...... Ahbetahwahcumigoke. F53–408–2006H A–1663 .. M ...... W2NW ...... 26 146 39 ...... Obim way way ge shig o quay. F53–408–2176 ... O–4312 .. M ...... S2NE ...... 15 146 42 ...... Nah ah bun way. F53–408–2178 ... O–3162 .. M ...... E2SE ...... 30 144 42 Joseph M. Turpin. F53–408–2180 ... O–3963 .. M ...... N2SW ...... 20 146 40 Nellie Strong ...... Ke che wauzh. F53–408–2180A O–3963 .. M ...... N2SW ...... 20 146 40 Nellie Strong ...... Ke che wauzh. F53–408–2181 ... O–4784 .. M ...... E2SE ...... 35 143 40 ...... Oge mah we gah bow. F53–408–2182 ... O–0744 .. B ...... S2NW ...... 17 141 40 Henry Mason. F53–408–2183 ... A–0656 .. B ...... W2NE ...... 35 142 39 Philomene Santwire. F53–408–2184 ... O–3868 .. B ...... E2SE ...... 26 142 39 Frank Badboy...... Odinegon. F53–408–2184A O–3868 .. B ...... E2SE ...... 26 142 39 Frank Badboy...... Odinegon...... SWSE Less 2. F53–08–2185 ..... A–2102 .. C ...... acres ...... 8 145 38 Scott LaPrairie...... Dewayayay...... SWNW ...... 9 145 38 F53–408–2187 ... O–2688 .. B ...... NENE ...... 15 142 38 ...... Aydowahcumigoquay...... Lot 4 ...... 14 142 38 F53–408–2188 ... O–0741 .. B ...... SWNW ...... 16 141 40 Catherine Mason...... Lot 1 ...... 16 141 40 F53–408–2189 ... A–2982 .. M ...... NWNE & SENW 22 144 39 ...... Mahgaid. F53–408–2189A A–2982 .. M ...... NWNE & SENW 22 144 39 ...... Mahgaid. F53–408–2189B A–2982 .. M ...... NWNE & SENW 22 144 39 ...... Mahgaid. VerDate jul<14>2003 17:46 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00049 Fmt 4703 Sfmt 4703 E:\FR\FM\13JAN1.SGM 13JAN1 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Notices 2425 [FR Doc. 05–748 Filed 1–12–05; 8:45 am] Beginning February of 2005, the Reclamation Task Group BILLING CODE 4310–W7–P MCNCA Advisory Council meetings (subcommittee) will meet in Pinedale, will be held bi-monthly on the first Wyoming, for a business meeting. Task Wednesday of every other month Group meetings are open to the public. DEPARTMENT OF THE INTERIOR through June at the same time and location. The dates for these meetings DATES: The PAWG Reclamation Task Bureau of Land Management are February 2, 2005; April 6, 2005; and Group will meet February 16, 2005, from 6 p.m. until 8 p.m. [CO–01–134–1220–241A] June 1, 2005. Additional meetings for 2005 will be determined at the February ADDRESSES: The meetings of the PAWG McInnis Canyons National meeting. Reclamation Task Group will be held in Conservation Area Advisory Council Topics of discussion for future the Lovatt Room at the Sublette County Meeting meetings will include completion of an Library. The Sublette County Library is implementation/business plan, located at 155 South Tyler Avenue, in AGENCY: Bureau of Land Management, refinement of a monitoring strategy, Pinedale. Interior. partnerships, interpretation, adaptive ACTION: Notice of meetings. management, socioeconomics, and other FOR FURTHER INFORMATION CONTACT: issues as appropriate. Dessa Dale, BLM/Reclamation TG SUMMARY: The McInnis Canyons All meetings will be open to the Liaison, Bureau of Land Management, National Conservation Area (MCNCA) public and will include a time set aside Pinedale FO, 432 E. Mill Street, PO Box Advisory Council will hold its first bi- for public comment. Interested persons 768, Pinedale WY 82941; 307–367– monthly meeting of 2005 on February 2, may make oral statements at the 5321. 2005. The meeting will begin at 3 p.m. meetings or submit written statements at and will be held at the Mesa County any meeting. Per-person time limits for SUPPLEMENTARY INFORMATION: The Administration Building; 544 Rood oral statements may be set to allow all Pinedale Anticline Working Group Avenue, Grand Junction, CO. Additional interested persons an opportunity to (PAWG) was authorized and established meetings will also be held on April 6 speak. with release of the Record of Decision and June 1 of 2005 at the same location Summary minutes of all Council (ROD) for the Pinedale Anticline Oil and the same time. Additional meetings meetings will be maintained at the and Gas Exploration and Development for 2005 will be determined at the Bureau of Land Management Office in Project on July 27, 2000. The PAWG February 2 meeting and published in Grand Junction, Colorado. They are advises the BLM on the development the Federal Register. available for public inspection and and implementation of monitoring plans DATES: The meeting will be held on reproduction during regular business and adaptive management decisions as February 2, 2005. hours within thirty (30) days following development of the Pinedale Anticline ADDRESSES: For further information or the meeting. In addition, minutes and Natural Gas Field (PAPA) proceeds for to provide written comments, please other information concerning the the life of the field. MCNCA Advisory Council, can be contact the Bureau of Land Management After the ROD was issued, Interior obtained from the MCNCA Web site at: (BLM), 2815 H Road, Grand Junction, determined that a Federal Advisory Colorado 81506; (970) 244–3000. http://www.co.blm.gov/gjra/mcnca/ mcncahome.htm, which will be updated Committees Act (FACA) charter was SUPPLEMENTARY INFORMATION: The following each Advisory Council required for this group. The charter was Colorado Canyons National meeting. signed by Secretary of the Interior, Gale Conservation Area was established on Norton, on August 15, 2002, and October 24, 2000 when the Colorado Dated: January 6, 2005. renewed on August 13, 2004. An Canyons National Conservation Area Paul H. Peck, announcement of committee initiation and Black Ridge Wilderness Act of 2000 Manager, McInnis Canyons National and call for nominations was published (the Act) was signed by the President. Conservation Area. in the Federal Register on February 21, The Act required that the Advisory [FR Doc. 05–683 Filed 1–12–05; 8:45 am] 2003, (68 FR 8522). PAWG members Council be established to provide advice BILLING CODE 4310–JB–P were appointed by Secretary Norton on in the preparation and implementation May 4, 2004. of the CCNCA Resource Management At their second business meeting, the Plan. The name was congressionally DEPARTMENT OF THE INTERIOR PAWG established seven resource-or change at the end of 2004 from Colorado Bureau of Land Management activity-specific Task Groups, including Canyons National Conservation Area to one for Reclamation. Public McInnis Canyons National Conservation [WY–100–05–1310–DB] participation on the Task Groups was Area. The MCNCA Advisory Council will Notice of Meeting of the Pinedale solicited through the media, letters, and meet on Wednesday, February 2, 2005 at Anticline Working Group’s word-of-mouth. the Mesa County Administration Reclamation Task Group The agenda for this meeting will Building; 544 Rood Avenue, Grand AGENCY: Bureau of Land Management, include information gathering and Junction, CO, beginning at 3 p.m. The Interior. discussion related to developing a reclamation monitoring plan to assess agenda topics for this meeting are: ACTION: Notice of public meeting. (1) The re-election of council officials; the impacts of development in the (2) MCNCA Resource Management SUMMARY: In accordance with the Pinedale Anticline gas field, and Plan implementation and monitoring Federal Land Policy and Management identifying who will do and who will strategy; Act (1976) and the Federal Advisory pay for the monitoring. Task Group (3) Budgetary requirements for Committee Act (1972), the U.S. recommendations are due to the PAWG upcoming fiscal years; Department of the Interior, Bureau of in February, 2005. At a minimum, (4) Public comment period; Land Management (BLM) Pinedale public comments will be heard just (5) Agenda for next meeting; Anticline Working Group (PAWG) prior to adjournment of the meeting. VerDate jul<14>2003 17:46 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00050 Fmt 4703 Sfmt 4703 E:\FR\FM\13JAN1.SGM 13JAN1 2426 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Notices Dated: January 5, 2005. Dated: January 6, 2005. DEPARTMENT OF THE INTERIOR Priscilla E. Mecham, M. Joe Tague, Field Office Manager. Acting District Manager. Bureau of Land Management [FR Doc. 05–681 Filed 1–12–05; 8:45 am] [FR Doc. 05–708 Filed 1–12–05; 8:45 am] [WY–920–1310–01; WYW145692] BILLING CODE 4310–22–P BILLING CODE 4310–33–P Notice of Proposed Reinstatement of Terminated Oil and Gas Lease DEPARTMENT OF THE INTERIOR DEPARTMENT OF THE INTERIOR AGENCY: Bureau of Land Management, Interior. Bureau of Land Management Bureau of Land Management ACTION: Notice of proposed [OR–010–1020–PK; HAG 05–0044] reinstatement and rental/royalty [WY–920–1310–01; WYW145713] reduction of terminated oil and gas Meeting Notice for the Southeast lease. Notice of Proposed Reinstatement of Oregon Resource Advisory Council Terminated Oil and Gas Lease SUMMARY: Under the provisions of 30 AGENCY: Bureau of Land Management U.S.C. 188(d) and (e), and 43 CFR (BLM), Lakeview District, Interior. AGENCY: Bureau of Land Management, 3108.2–3(a) and (b)(1), the Bureau of Interior. Land Management (BLM) received a ACTION: Meeting notice for the Southeast petition for reinstatement of oil and gas Oregon Resource Advisory Council. ACTION: Notice of proposed lease WYW145692 for lands in Big Horn reinstatement and rental/royalty County, Wyoming. The petition was SUMMARY: The Southeast Oregon reduction of terminated oil and gas filed on time and was accompanied by Resource Advisory Council (SEORAC) lease. all the rentals due since the date the will hold a meeting for all members lease terminated under the law. from 8 a.m. to 5 p.m. Pacific Time (PT), SUMMARY: Under the provisions of 30 Monday, February 7, 2005 and 8 a.m. to FOR FURTHER INFORMATION CONTACT: U.S.C. 188(d) and (e), and 43 CFR noon (PT) on Tuesday, February 8, 2005 Bureau of Land Management, Pamela J. 3108.2–3(a) and (b)(1), the Bureau of at the Fremont-Winema National Lewis, Chief, Fluid Minerals Forests, Winema Office, Conference Land Management (BLM) received a Adjudication, at (307) 775–6176. Room, 2819 Dahlia Street, Klamath petition for reinstatement of oil and gas SUPPLEMENTARY INFORMATION: The lease Falls, Oregon 97601. Members of the lease WYW145713 for lands in Big Horn has been granted a rental and royalty public may attend the meeting in County, Wyoming. The petition was reduction at rate of $2.00 per acre, or person. filed on time and was accompanied by fraction thereof, per year and 121⁄2 The meeting topics that may be all the rentals due since the date the percent, respectively. The lessee has discussed by the Council include a lease terminated under the law. paid the required $500 administrative discussion of issues within Southeast fee and $166 to reimburse the FOR FURTHER INFORMATION CONTACT: Department for the cost of this Federal Oregon related to: Election of Officers, Bureau of Land Management, Pamela J. Role and Responsibilities of RAC Register notice. The lessee has met all Lewis, Chief, Fluid Minerals the requirements for reinstatement of members; Approval of past minutes, Adjudication, at (307) 775–6176. 2005 Calendar Dates; RAC Charter the lease as set out in section 31 (d) and Changes. Work Plan Priorities, Update SUPPLEMENTARY INFORMATION: The lease (e) of the Mineral Lands Leasing Act of of the Oregon Sage-grouse Plan. has been granted a rental and royalty 1920 (30 U.S.C. 188), and the Bureau of Hydrology Presentation, Owyhee River reduction at rate of $2.00 per acre, or Land Management is proposing to reinstate lease WYW145692 effective below the dam update, North Lake fraction thereof, per year and 121⁄2 Recreation Plan update, Wild Horse and percent, respectively. The lessee has August 1, 2003, under the original terms Burro update, Fremont-Winema paid the required $500 administrative and conditions of the lease, rates cited above. BLM has not issued a valid lease National Forests grazing program fee and $166 to reimburse the affecting the lands. update, liaison reports and Federal Department for the cost of this Federal Official reports. Discussion of the Register notice. The lessee has met all Pamela J. Lewis, subcommittee priorities and roles, the requirements for reinstatement of Chief, Fluid Minerals Adjudication. meeting of subcommittees and other the lease as set out in Section 31 (d) and [FR Doc. 05–700 Filed 1–12–05; 8:45 am] issues that may come before the (e) of the Mineral Lands Leasing Act of BILLING CODE 4310–22–P Council. 1920 (30 U.S.C. 188), and the Bureau of Information to be distributed to the Land Management is proposing to Council members is requested in written reinstate lease WYW145713 effective DEPARTMENT OF THE INTERIOR format 10 days prior to the Council August 1, 2003, under the original terms meeting. Public comment is scheduled Bureau of Land Management and conditions of the lease, rates cited for 11:45 a.m. (PT) on Monday February above. BLM has not issued a valid lease [WY–920–1310–01; WYW145696] 7, 2005. affecting the lands. FOR FURTHER INFORMATION CONTACT: Notice of Proposed Reinstatement of Additional information concerning the Pamela J. Lewis, Terminated Oil and Gas Lease SEORAC meeting may be obtained from Chief, Fluid Minerals Adjudication. AGENCY: Bureau of Land Management, Pam Talbott, Contact Representative, [FR Doc. 05–699 Filed 1–12–05; 8:45 am] Interior. Lakeview Interagency Office, 1301 BILLING CODE 4310–22–P ACTION: Notice of Proposed South G Street, Lakeview, OR 97630 Reinstatement and Rental/Royalty (541) 947–6107, or [email protected] Reduction of Terminated Oil and Gas and/or from the following Web site Lease. http://www.or.blm.gov/SEOR-RAC. VerDate jul<14>2003 17:46 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00051 Fmt 4703 Sfmt 4703 E:\FR\FM\13JAN1.SGM 13JAN1 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Notices 2427 SUMMARY: Under the provisions of 30 SUPPLEMENTARY INFORMATION: The FOR FURTHER INFORMATION CONTACT: U.S.C. 188(d) and (e), and 43 CFR lessees have agreed to the amended Bryan Pittman, Field Staff Law 3108.2–3(a) and (b)(1), the Bureau of lease terms for rentals and royalties at Enforcement Ranger, BLM Lake Havasu Land Management (BLM) received a rates of $5.00 per acre or fraction Field Office, 2610 Sweetwater Avenue, petition for reinstatement of oil and gas thereof, per year and 162⁄3 percent, Lake Havasu City, Arizona 86406, (928) lease WYW145696 for lands in Big Horn respectively. The lessees have paid the 505–1200. County, Wyoming. The petition was required $500 administrative fee and SUPPLEMENTARY INFORMATION: filed on time and was accompanied by $166 to reimburse the Department for Description of Race Course Closed all the rentals due since the date the the cost of this Federal Register notice. Area: Beginning at the eastern boundary lease terminated under the law. The lessees have met all the of the Colorado River Indian Tribe FOR FURTHER INFORMATION CONTACT: requirements for reinstatement of the (CRIT) Reservation, it runs east along Bureau of Land Management, Pamela J. lease as set out in section 31(d) and (e) Shea Road, then east along the Parker- Lewis, Chief, Fluid Minerals of the Mineral Lands Leasing Act of Swansea Road to the Central Arizona Adjudication, at (307) 775–6176. 1920 (30 U.S.C. 188), and the Bureau of Project Canal (CAP), then north on the SUPPLEMENTARY INFORMATION: The lease Land Management is proposing to west side of the CAP Canal, crossing the has been granted a rental and royalty reinstate lease WYW96788 effective July canal on the county-maintained road, reduction at rate of $2.00 per acre, or 1, 2003, under the original terms and running northeast into Mineral Wash conditions of the lease and the fraction thereof, per year and 121⁄2 Canyon, then southeast on the county- percent, respectively. The lessee has increased rental and royalty rates cited maintained road, through the four- paid the required $500 administrative above. BLM has not issued a valid lease corners intersection to Midway, then fee and $166 to reimburse the affecting the lands. east on Transmission Pass Road, Department for the cost of this Federal Pamela J. Lewis, through State Trust lands located in Register notice. The lessee has met all Chief, Fluid Minerals Adjudication. Butler Valley, turning north into Cunningham Wash to North Tank; the requirements for reinstatement of [FR Doc. 05–702 Filed 1–12–05; 8:45 am] continuing back south to the the lease as set out in section 31(d) and BILLING CODE 4310–22–P (e) of the Mineral Lands Leasing Act of Transmission Pass Road and east 1920 (30 U.S.C. 188), and the Bureau of (reentering public land) within two Land Management is proposing to DEPARTMENT OF THE INTERIOR miles of Alamo Dam Road. Turns south reinstate lease WYW145696 effective and west onto the wooden power line August 1, 2003, under the original terms Bureau of Land Management road, onto the State Trust lands in and conditions of the lease, rates cited Butler Valley, turning southwest into [AZ–330–05–1232–EA, AZ–SRP–330–05–01 Cunningham Wash to the Graham Well, above. BLM has not issued a valid lease and AZ–SRP–330–05–02] affecting the lands. intersecting Butler Valley Road, then north and west onto public lands Pamela J. Lewis, Temporary Closure of Selected Public Lands in La Paz County, Arizona, proceeding west to the ‘‘Bouse Y’’ Chief, Fluid Minerals Adjudication. During the Operation of the 2005 intersection, located two miles north of [FR Doc. 05–701 Filed 1–12–05; 8:45 am] Parker 425 Desert Race Bouse, Arizona. The route then BILLING CODE 4310–22–P proceeds north, paralleling the Bouse- AGENCY: Bureau of Land Management, Midway Road to the Midway Pit. From Interior. Midway, it goes west on the north DEPARTMENT OF THE INTERIOR ACTION: Notice. boundary road of the East Cactus Plain Wilderness Area to Parker-Swansea Bureau of Land Management SUMMARY: The Bureau of Land Road. The route then goes west in Management Lake Havasu Field Office [WY–920–1310–01; WYW96788] Osborne Wash, south of the Parker- announces the temporary closure of Swansea Road to the CAP Canal, along Notice of Proposed Reinstatement of selected public lands under its the north boundary of the Cactus Plain Terminated Oil and Gas Lease administration in La Paz County, Wilderness Study Area, staying in Arizona. This action is being taken to Osborne Wash, it proceeds west in AGENCY: Bureau of Land Management, help ensure public safety and prevent Osborne Wash to the CRIT Reservation Interior. unnecessary environmental degradation boundary. ACTION: Notice of proposed during the officially permitted running Times of the Temporary Land reinstatement of terminated oil and gas of the 2005 Blue Water Resort and Closure: The Blue Water Resort and lease. Casino Parker 425 Desert Race. Areas Casino Parker 425 Desert Race closure is subject to this closure include all public in effect from 2 p.m. (m.s.t.) on Friday, SUMMARY: Under the provisions of 30 land, including county maintained February 4, 2005, through 11:59 p.m. U.S.C. 188(d) and (e), and 43 CFR roads and highways located on public (m.s.t.) on Saturday, February 5, 2004. 3108.2–3(a) and (b)(1), the Bureau of lands, that are located within two miles Land Management (BLM) received a of the designated racecourse. The Prohibited Acts petition for reinstatement of oil and gas racecourse and closure areas are The following acts are prohibited lease WYW96788 for lands in Converse described in the SUPPLEMENTARY during the temporary land closure: County, Wyoming. The petition was INFORMATION section of this notice, and 1. Being present on, or driving on, the filed on time and was accompanied by maps of the designated racecourse are designated racecourse. This does not all the rentals due since the date the maintained in the Bureau of Land apply to race participants, race officials lease terminated under the law. Management Lake Havasu Field Office, and emergency vehicles. FOR FURTHER INFORMATION CONTACT: 2610 Sweetwater Avenue, Lake Havasu 2. Vehicle parking or stopping in Bureau of Land Management, Pamela J. City, AZ 86406. areas affected by the closure, except Lewis, Chief, Fluid Minerals DATES: Blue Water Resort and Casino where such is specifically allowed Adjudication, at (307) 775–6176. Parker 425 on February 5, 2005. (designated spectator areas). VerDate jul<14>2003 17:46 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00052 Fmt 4703 Sfmt 4703 E:\FR\FM\13JAN1.SGM 13JAN1 2428 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Notices 3. Camping in any area, except in the SUMMARY: The Commission hereby gives available to persons on the designated spectator areas. notice of the scheduling of an expedited Administrative Protective Order service 4. Discharge of firearms. review pursuant to section 751(c)(3) of list for this review. A public version 5. Possession or use of any fireworks. the Tariff Act of 1930 (19 U.S.C. will be issued thereafter, pursuant to 6. Cutting or collecting firewood of 1675(c)(3)) (the Act) to determine section 207.62(d)(4) of the any kind, including dead and down whether revocation of the antidumping Commission’s rules. wood or other vegetative material. duty order on potassium permanganate Written Submissions 7. Operating any vehicle (except from China would be likely to lead to registered race vehicles), including off- continuation or recurrence of material As provided in section 207.62(d) of highway vehicles, not registered and injury within a reasonably foreseeable the Commission’s rules, interested equipped for street and highway time. For further information parties that are parties to the review and operation. concerning the conduct of this review that have provided individually 8. Operating any vehicle in the area of and rules of general application, consult adequate responses to the notice of the closure at a speed of more than 35 the Commission’s Rules of Practice and institution,2 and any party other than an mph. This does not apply to registered Procedure, part 201, subparts A through interested party to the review may file race vehicles during the race, while on E (19 CFR part 201), and part 207, written comments with the Secretary on the designated racecourse. subparts A, D, E, and F (19 CFR part what determination the Commission 9. Failure to obey any official sign 207). should reach in the review. Comments are due on or before February 3, 2005 posted by the Bureau of Land EFFECTIVE DATE: January 4, 2005. and may not contain new factual Management, LaPaz County, or the race FOR FURTHER INFORMATION CONTACT: Fred promoter. information. Any person that is neither Ruggles (202) 205–3187 or a party to the five-year review nor an 10. Parking any vehicle in a manner [email protected]), Office of that obstructs or impedes normal traffic interested party may submit a brief Investigations, U.S. International Trade written statement (which shall not movement. Commission, 500 E Street, SW., 11. Failure to obey any person contain any new factual information) Washington, DC 20436. Hearing- pertinent to the review by February 3, authorized to direct traffic, including impaired persons can obtain law enforcement officers and designated 2005. However, should the Department information on this matter by contacting of Commerce extend the time limit for race officials. the Commission’s TDD terminal on 12. Failure to observe Spectator Area its completion of the final results of its (202) 205–1810. Persons with mobility review, the deadline for comments quiet hours of 10 p.m. to 6 a.m. impairments who will need special 13. Failure to keep campsite or race (which may not contain new factual assistance in gaining access to the information) on Commerce’s final viewing site free of trash and litter. Commission should contact the Office 14. Allowing any pet or other animal results is three business days after the of the Secretary at (202) 205–2000. issuance of Commerce’s results. If to be unrestrained by a leash of not General information concerning the more than 6 feet in length. comments contain business proprietary Commission may also be obtained by information (BPI), they must conform The above restrictions do not apply to accessing its Internet server http:// with the requirements of sections 201.6, emergency vehicles and vehicles owned www.usitc.gov. The public record for 207.3, and 207.7 of the Commission’s by the United States, the State of this review may be viewed on the rules. The Commission’s rules do not Arizona, or La Paz County. Authority for Commission’s electronic docket (EDIS) authorize filing of submissions with the closure of public lands is found in 43 at http://edis.usitc.gov. Secretary by facsimile or electronic CFR part 8340, subpart 8341; 43 CFR SUPPLEMENTARY INFORMATION: means, except to the extent permitted by part 8360, subpart 8364.1; and 43 CFR section 201.8 of the Commission’s rules, part 2930. Persons who violate this Background as amended, 67 FR 68036 (November 8, closure order are subject to arrest, and On January 4, 2005, the Commission 2002). upon conviction may be fined not more determined that the domestic interested In accordance with sections 201.16(c) than $100,000 and/or imprisoned for party group response to its notice of and 207.3 of the rules, each document not more than 12 months. institution (69 FR 58955, October 1, filed by a party to the review must be Robert M. Henderson, 2004) of the subject five-year review was served on all other parties to the review Acting Field Manager, Lake Havasu Field adequate and that the respondent (as identified by either the public or BPI Office. interested party group response was service list), and a certificate of service [FR Doc. 05–731 Filed 1–12–05; 8:45 am] inadequate. The Commission did not must be timely filed. The Secretary will BILLING CODE 4310–32–P find any other circumstances that would not accept a document for filing without warrant conducting a full review.1 a certificate of service. Accordingly, the Commission Authority: This review is being conducted INTERNATIONAL TRADE determined that it would conduct an under authority of title VII of the Tariff Act COMMISSION expedited review pursuant to section of 1930; this notice is published pursuant to 751(c)(3) of the Act. section 207.62 of the Commission’s rules. [Investigation No. 731–TA–125 (Second Issued: January 10, 2005. Review)] Staff Report By order of the Commission. A staff report containing information Potassium Permanganate From China concerning the subject matter of the Marilyn R. Abbott, review will be placed in the nonpublic Secretary to the Commission. AGENCY: United States International record on January 31, 2005, and made [FR Doc. 05–738 Filed 1–12–05; 8:45 am] Trade Commission. BILLING CODE 7020–02–P ACTION: Scheduling of an expedited five- 1 A record of the Commissioners’ votes, the year review concerning the antidumping Commission’s statement on adequacy, and any 2 The Commission has found the response duty order on potassium permanganate individual Commissioner’s statements will be submitted by Carus Chemical Co. to be adequate. from China. available from the Office of the Secretary and at the Comments from other interested parties will not be Commission’s Web site. accepted (see 19 CFR 207.62(d)(2)). VerDate jul<14>2003 17:46 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00053 Fmt 4703 Sfmt 4703 E:\FR\FM\13JAN1.SGM 13JAN1 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Notices 2429 INTERNATIONAL TRADE NATIONAL SCIENCE FOUNDATION limited appearance statements from COMMISSION members of the public in connection Sunshine Act Meeting with this proceeding. [Investigation No. TA–2104–18] Agency Holding Meeting: National A. Date, Time, and Location of Science Board, Committee on Evidentiary Hearing U.S.-Central America Free Trade Education and Human Resources. Agreement: Potential Economywide The Board will conduct an evidentiary hearing on certain and Selected Sectoral Effects DATE AND TIME: January 18, 2005, 10 a.m. environmental contentions (ECs) (ET). relating to this proceeding, currently AGENCY: United States International PLACE: The National Science scheduled to include contentions NIRS/ Trade Commission. Foundation, 4201 Wilson Boulevard, PC EC–1—Impacts upon Ground and ACTION: Notice of termination of Room 110, Arlington, VA 22230, http: Surface Water; NIRS/PC EC–2—Impact investigation. //www.nsf.gov/nsb. upon Water Supplies; NIRS/PC EC–4— STATUS: This meeting will be open to the Impacts of Waste Storage; NIRS/PC EC– EFFECTIVE DATE: January 10, 2005. public. 7—Need for the Facility, beginning on MATTERS TO BE CONSIDERED: Monday, February 7, 2005, at 9:30 a.m., SUMMARY: On January 5, 2005, the in the Lea County Event Center, 5101 Commission received a letter from the Tuesday, January 18, 2005 Open Lovington Highway, Hobbs, New Office of the United States Trade Session Mexico. The hearing on these issues Representative (USTR) stating that the Open Session (10 a.m. to 11 a.m.) will continue day-to-day until USTR has withdrawn his request for a concluded. Commission report, pursuant to section Discussion of the charge for an The public is advised that, in 2104(f) of the Trade Act of 2002 (19 Industry panel on the S&E workforce. accordance with 10 CFR 2.390, part of U.S.C. 3804(f)), assessing the likely FOR FURTHER INFORMATION CONTACT: Dr. the sessions regarding each of the impact of a free trade agreement (FTA) Michael P. Crosby, Executive Officer contentions may be closed to the public with Costa Rica, El Salvador, and NSB Office Director, (703) 292– because the matters at issue may involve Guatemala, Honduras, and Nicaragua 7000, http://www.nsf.gov/nsb. the discussion of protected information. (Central America). Accordingly, the Michael P. Crosby, B. Date, Time, and Location of Oral Commission has terminated Executive Officer and NSB Office Director. Limited Appearance Statement investigation No. TA–2104–18, U.S.- [FR Doc. 05–862 Filed 1–11–05; 2:33 pm] Sessions Central America Free Trade Agreement: Potential Economywide and Selected BILLING CODE 7555–01–P These sessions will be on the Sectoral Effects, which was instituted following date at the specified location pursuant to that request. The public and times: NUCLEAR REGULATORY 1. Date: Saturday, February 12, 2005; hearing in this investigation, scheduled COMMISSION Time: Morning Session (if there is for January 18, 2005, is canceled. sufficient interest)—10 a.m. to noon Background: The Commission Atomic Safety and Licensing Board mountain standard time (m.s.t.).; instituted the investigation following [Docket No. 70–3103–ML; ASLBP No. 04– Location: Eunice Community Center, receipt of a request from the USTR on 826–01–ML] 1115 Avenue I, Eunice, New Mexico. November 17, 2004. The Commission 2. Date: Saturday, February 12, 2005; published notice of institution of the Memorandum and Order; Notice of Time: Afternoon Session (if there is investigation in the Federal Register on Hearing and of Opportunity To Make sufficient interest)—2 to 4 p.m. m.s.t.; December 28, 2004 (69 FR 77778). The Oral or Written Limited Appearance Location: Same as Session 1 above. January 5, 2005, letter from USTR noted Statements C. Participation Guidelines for Oral that the USTR had requested the report January 7, 2005. Limited Appearance Statements in light of the fact that the Dominican In the Matter of Louisiana Energy Services, Any person not a party, or the Republic had enacted a tax on beverages L.P., (National Enrichment Facility); Before representative of a party, to the sweetened with high fructose corn Administrative Judges: G. Paul Bollwerk, III, proceeding will be permitted to make an syrup (HFCS) that the United States Chairman, Dr. Paul B. Abramson, Dr. Charles oral statement setting forth his or her regarded as incompatible with the N. Kelber. position on matters of concern relating Dominican Republic’s obligations under The Atomic Safety and Licensing to this proceeding. Although these the FTA that the United States had Board hereby gives notice that it will statements do not constitute testimony entered into with Central America and convene an evidentiary hearing to or evidence, they nonetheless may help the Dominican Republic on August 5, receive testimony and exhibits and the Board and/or the parties in their 2004 (and on which the Commission allow the cross-examination of consideration of the issues in this had already provided a report). The witnesses relating to certain matters at proceeding. letter stated that the Dominican issue in this proceeding regarding the Oral limited appearance statements Republic repealed the tax on December December 2003 application of Louisiana will be entertained during the hours 29, 2004. Energy Services, L.P., (LES) for a license specified above, or such lesser time as By order of the Commission. under 10 CFR part 70 to construct and may be necessary to accommodate the speakers who are present.1 In this Issued: January 10, 2005. operate a uranium enrichment facility— the National Enrichment Facility Marilyn R. Abbott, (NEF)—to be constructed near Eunice, 1 Any members of the public who plan to attend Secretary to the Commission. either the evidentiary hearings or the limited New Mexico. In addition, the Board appearance sessions are strongly advised to arrive [FR Doc. 05–809 Filed 1–12–05; 8:45 am] gives notice that, in accordance with 10 early to allow time to pass through any security BILLING CODE 7020–02–P CFR 2.315(a), it will entertain oral Continued VerDate jul<14>2003 17:46 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00054 Fmt 4703 Sfmt 4703 E:\FR\FM\13JAN1.SGM 13JAN1 2430 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Notices regard, if all scheduled and Written requests to make an oral It is so ordered. unscheduled speakers present at a statement should be submitted to: Dated: January 7, 2005, Rockville, session have made a presentation, the Mail: Office of the Secretary, Maryland. Licensing Board reserves the right to Rulemakings and Adjudications Staff, For the Atomic Safety and Licensing terminate the session before the ending U.S. Nuclear Regulatory Commission, Board.3 times listed above. The Licensing Board Washington, DC 20555–0001. G. Paul Bollwerk III, also reserves the right to cancel the Fax: (301) 415–1101 (verification Administrative Judge. Saturday morning and/or afternoon (301) 415–1966). sessions scheduled above if there has E-mail: [email protected]. [FR Doc. 05–691 Filed 1–12–05; 8:45 am] not been a sufficient showing of public In addition, using the same method of BILLING CODE 7590–01–P interest as reflected by the number of service, a copy of the written request to preregistered speakers. make an oral statement should be sent The time allotted for each statement to the Chairman of this Licensing Board NUCLEAR REGULATORY normally will be no more than five as follows: COMMISSION minutes, but may be further limited Mail: Administrative Judge G. Paul depending on the number of written Bollwerk, III, Atomic Safety and [Docket Nos. 30–5980–EA and 30–5982–EA; requests to make an oral statement that Licensing Board Panel, Mail Stop ASLBP No. 05–835–01–EA] are submitted in accordance with T–3F23, U.S. Nuclear Regulatory section D below and/or the number of Commission, Washington, DC 20555– Safety Light Corporation; persons present at the designated times. 0001. Establishment of Atomic Safety and In addition, although an individual may Fax: (301) 415–5599 (verification Licensing Board request an opportunity to speak at more (301) 415–7405). E-mail: [email protected] and [email protected]. Pursuant to delegation by the than one session, the Licensing Board Commission dated December 29, 1972, reserves the right to defer an additional E. Submitted Written Limited published in the Federal Register, 37 FR presentation by the same individual Appearance Statements 28710 (1972), and the Commission’s until after it has heard from speakers A written limited appearance regulations, see 10 CFR 2.104, 2.202, who have not had an opportunity to 2.300, 2.303, 2.309, 2.311, 2.318, and make an initial presentation. statement may be submitted to the Board regarding this proceeding at any 2.321, notice is hereby given that an Finally, the Board anticipates holding Atomic Safety and Licensing Board is additional oral limited appearance time. Such statements should be sent to the Office of the Secretary using one of being established to preside over the statement sessions in the Hobbs, New following proceeding: Safety Light Mexico area in conjunction with the the methods prescribed above, with a copy to the Licensing Board Chairman. Corporation, Bloomsburg, Pennsylvania evidentiary hearings currently Site, (Materials License Suspension). scheduled for October and November F. Availability of Documentary This proceeding concerns a request 2005. The Board will make further Information Regarding the Proceeding for hearing submitted on December 29, information regarding those sessions Documents relating to this proceeding 2004, by Safety Light Corporation (SLC) available as the time for those hearings are available for public inspection at the in response to a December 10, 2004, draws near. Commission’s Public Document Room order from the Director of the NRC D. Submitting a Request To Make an (PDR), located at One White Flint North, Office of Nuclear Material Safety and Oral Limited Appearance Statement 11555 Rockville Pike (first floor), Safeguards suspending SLC’s two Persons wishing to make an oral Rockville, Maryland, or electronically byproduct materials licenses, effective statement who have submitted a timely from the publicly available records immediately. In addition, in a December written request to do so will be given component of NRC’s document system 29, 2004 motion, SLC asked that the priority over those who have not filed (ADAMS). ADAMS is accessible from immediate effectiveness of the NRC staff such a request. To be considered timely, the NRC Web site at http://www.nrc.gov/ order suspending SLC’s licenses be set a written request to make an oral reading-rm/adams.html (the Public aside. statement must either be mailed, faxed, Electronic Reading Room).2 Persons The Board is comprised of the or sent by e-mail so as to be received by who do not have access to ADAMS or following administrative judges: noon e.s.t. on Thursday, February 3, who encounter problems in accessing E. Roy Hawkens, Chair, U.S. Nuclear 2005. The request must specify the the documents located in ADAMS Regulatory Commission, Washington, session (morning or afternoon) during should contact the NRC PDR reference DC 20555–0001; which the requester wishes to make an staff by telephone at (800) 397–4209 or Alan S. Rosenthal, U.S. Nuclear oral statement. Based on its review of (301) 415–4737, or by e-mail to Regulatory Commission, Washington, the requests received by February 3, [email protected]. DC 20555–0001; 2005, the Licensing Board may decide G. Scheduling Information Updates Dr. Peter S. Lam, U.S. Nuclear that the Saturday morning and/or Regulatory Commission, Washington, afternoon sessions will not be held due Any updated/revised scheduling DC 20555–0001. to a lack of adequate interest in those information regarding the evidentiary All correspondence, documents, and sessions. hearing and limited appearance sessions other materials shall be filed with the can be found on the NRC Web site at administrative judges in accordance measures that may be employed. Attendees are also http://www.nrc.gov/public-involve/ with 10 CFR 2.302. requested not to bring any unnecessary hand- public-meetings/index.cfm or by calling carried items, such as packages, briefcases, (800) 368–5642, extension 5036, or (301) backpacks, or other items that might need to be 3 Copies of this memorandum and order were sent examined individually. Items that could readily be 415–5036. this date by Internet e-mail transmission to counsel used as weapons will not be permitted in the rooms for (1) applicant Louisiana Energy Services, Inc.; (2) where these sessions will be held. Also, during 2 Some documents determined to contain intervenors New Mexico Environment Department, these sessions, signs no larger than 18″ by 18″ will ‘‘sensitive’’ are publicly available only in redacted the Attorney General of New Mexico, and Nuclear be permitted, but may not be attached to sticks, form; non-sensitive documents are publicly Information and Resource Service/Public Citizen; held up, or moved about in the rooms. available in their complete form. and (3) the NRC staff. VerDate jul<14>2003 17:46 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00055 Fmt 4703 Sfmt 4703 E:\FR\FM\13JAN1.SGM 13JAN1 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Notices 2431 Issued in Rockville, Maryland, this 7th day of their trading, to February 2, 1997, the application has been made in of January 2005. Issuer’s financial year end, was 70,900. accordance with the rules of the NYSE, G. Paul Bollwerk, III, The average daily trading volume and what terms, if any, should be Chief Administrative Judge, Atomic Safety during the financial year ended imposed by the Commission for the and Licensing Board Panel. February 1, 2004 was 13,200, and protection of investors. All comment [FR Doc. 05–692 Filed 1–12–05; 8:45 am] between that financial year end and letters may be submitted by either of the BILLING CODE 7590–01–P November 29, 2004 was approximately following methods: 15,400. The average daily trading volume of the preference shares ADS Electronic Comments from April 12, 1996 to February 2, 1997 SECURITIES AND EXCHANGE • Send an e-mail to rule- COMMISSION was 84,900. The average daily trading volume during the financial year ended [email protected]. Please include the [File No. 1–14258] February 1, 2004 was 1,600, and File Number 1–14258 or; between the financial year end and Paper Comments Issuer Delisting; Notice of Application November 29, 2004 was approximately of Premier Farnell Plc To Withdraw Its 800. These declines have caused the • Send paper comments in triplicate Ordinary Shares, (5 pence each) Issuer to re-evaluate the merits of to Jonathan G. Katz, Secretary, (‘‘Ordinary Shares’’), Its $1.35 and maintaining its NYSE listing and Securities and Exchange Commission, 89.2p Cumulative Convertible Commission registration. Next, as a 450 Fifth Street, NW., Washington, DC Redeemable Preference Shares (£1 result of this re-evaluation, the Issuer 205409–0609. each) (‘‘Preference Shares’’), and the has decided to apply to terminate its American Depositary Shares NYSE listing now and may, in the All submissions should refer to File Representing the Ordinary Shares and future, seek to de-register from the Number 1–14258. This file number Preference Shares, From Listing and Commission if eligible to do so. Since should be included on the subject line Registration on the New York Stock 1996, the burden and expense of if e-mail is used. To help us process and Exchange, Inc. complying with U.S. reporting and review your comments more efficiently, registration obligations has increased please use only one method. The January 7, 2005. and would substantially increase further Commission will post all comments on On December 10, 2004, Premier by virtue of the new Commission rules the Commission’s Internet Web site Farnell Plc., a company incorporated under the Sarbanes-Oxley Act relating (http://www.sec.gov/rules/delist.shtml). under the law of England and Wales to internal financial control Comments are also available for public (‘‘Issuer’’), filed an application with the documentation. Finally, the costs of inspection and copying in the Securities and Exchange Commission maintaining the Issuer’s NYSE listing Commission’s Public Reference Room, (‘‘Commission’’), pursuant to Section and Commission registration, including 450 Fifth Street, NW., Washington, DC 12(d) of the Securities Exchange Act of the costs of management time required, 1934 (‘‘Act’’) 1 and Rule 12d2–2(d) 20549. All comments received will be for the year ending January 29, 2006 posted without change; we do not edit thereunder,2 to withdraw its ordinary would be approximately £1.3 million. shares (5 pence each) (‘‘ordinary personal identifying information from These costs do not take account of the submissions. You should submit only shares’’), its $1.35 and 89.2p cumulative opportunity cost to the Issuer of the information that you wish to make convertible redeemable preference management effort that would be available publicly. shares (£1 each) (‘‘preference shares’’), required to be dedicated to meeting the and the American Depository Shares internal control documentation The Commission, based on the (‘‘ADS’’) representing both the ordinary requirements. This would include information submitted to it, will issue shares and preference shares delays to other business initiatives. The an order granting the application after (collectively ‘‘Securities’’), from listing Issuer states that the ordinary shares the date mentioned above, unless the and registration on the New York Stock and preference shares will continue to Commission determines to order a Exchange, Inc. (‘‘NYSE’’ or be listed on the London Stock Exchange, hearing on the matter. ‘‘Exchange’’). their principal trading market. For the Commission, by the Division of The Board of Directors (‘‘Board’’) of The Issuer states in its application Market Regulation, pursuant to delegated the Issuer unanimously approved a that it has complied with the NYSE’s authority.5 resolution on December 7, 2004 to rules governing an issuer’s voluntary withdraw the Issuer’s Securities from withdrawal of a security from listing Jonathan G. Katz, listing on the NYSE. The Board states and registration by complying with all Secretary. that the following reasons factored into applicable laws in effect in England and [FR Doc. 05–704 Filed 1–12–05; 8:45 am] its decision to withdraw the Securities Wales, the jurisdiction in which the BILLING CODE 8010–01–M from the Exchange. First, the Issuer’s Issuer is incorporated. U.S. shareholder base has reduced The issuer’s application relates solely considerably since the listing of its to the Securities’ withdrawal from Securities on the NYSE and registration listing on the NYSE and from of such Securities with the Commission registration under Section 12(b) of the in 1996. Trading of the ADS on the Act,3 and shall not affect its obligation NYSE has declined considerably since to be registered under Section 12(g) of the listing. According to Thomas the Act.4 Financial Datastream, the average daily Any interested person may, on or trading volume of the ordinary shares before February 3, 2005, comment on ADS from April 12, 1996, the first day the facts bearing upon whether the 1 15 U.S.C. 781(d). 3 15 U.S.C. 78l(b). 2 17 CFR 240.12d2–2(d). 415 U.S.C. 78l(g). 5 17 CFR 200.30–3(a)(1). VerDate jul<14>2003 17:46 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00056 Fmt 4703 Sfmt 4703 E:\FR\FM\13JAN1.SGM 13JAN1 2432 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Notices SECURITIES AND EXCHANGE would be more realistic, while For the Commission, by the Division of COMMISSION providing the ISCA with sufficiently Market Regulation, pursuant to delegated 10 current capacity projections to assure authority. [Release No. 34–50973; File No. SR–OPRA– J. Lynn Taylor, 2004–06] that the OPRA System would be able to meet the capacity needs of the parties as Assistant Secretary. Options Price Reporting Authority; they may change from time to time. [FR Doc. E5–115 Filed 1–12–05; 8:45 am] BILLING CODE 8010–01–P Order Approving an Amendment to the The second purpose of the proposed Plan for Reporting of Consolidated amendment is to permit a party to the Options Last Sale Reports and Plan to either increase or decrease the Quotation Information To Amend SECURITIES AND EXCHANGE amount of additional capacity it is Guideline 2 of the Capacity Guidelines COMMISSION requesting once it has received the Adopted in Accordance With the Plan [Release No. 34–50988; File No. SR–Amex– ISCA’s initial cost estimates for OPRA 2004–97] January 6, 2005. System modifications to accommodate On October 19, 2004, the Options the capacity projections and requests of Self-Regulatory Organizations; Notice Price Reporting Authority (‘‘OPRA’’) all of the parties. Currently, Guideline 2 of Filing and Immediate Effectiveness submitted to the Securities and does not contemplate that a party would of Proposed Rule Change and Exchange Commission (‘‘Commission’’), be able to increase the amount of Amendment No. 1 Thereto by the pursuant to Section 11A of the additional capacity it is requesting at American Stock Exchange LLC To Securities Exchange Act of 1934 this stage of the process. Reduce Options Transaction Fees for (‘‘Act’’) 1 and Rule 11Aa3–2 After careful review, the Commission Exchange Specialists and Registered thereunder,2 an amendment to the Plan Options Traders for Reporting of Consolidated Options finds that the proposed OPRA Plan Last Sale Reports and Quotation amendment is consistent with the January 6, 2005. Information (‘‘OPRA Plan’’).3 The requirements of the Act and the rules Pursuant to Section 19(b)(1) of the proposed amendment would amend and regulations thereunder.5 The Securities Exchange Act of 1934 Guideline 2 of the Capacity Guidelines Commission believes that the proposed (‘‘Act’’),1 and Rule 19b–4 thereunder,2 (‘‘Guideline 2’’) adopted in accordance OPRA Plan amendment is consistent notice is hereby given that on December with the Plan. Notice of the proposal with Section 11A of the Act 6 and Rule 2, 2004, the American Stock Exchange was published in the Federal Register 11Aa3–2 thereunder 7 in that it is LLC (‘‘Amex’’ or ‘‘Exchange’’) filed with on December 9, 2004.4 The Commission appropriate in the public interest, for the Securities and Exchange received no comment letters on the the protection of investors and the Commission (‘‘Commission’’) the proposed OPRA Plan amendment. This maintenance of fair and orderly markets, proposed rule change as described in order approves the proposal. to remove impediments to, and perfect Items I, II and III below, which Items The first purpose of the proposed the mechanisms of, a national market have been prepared by the Exchange. OPRA Plan amendment is to amend system. On January 6, 2005, the Exchange filed Guideline 2 to reduce the frequency of Amendment No. 1 to the proposed rule the capacity review cycle from a Specifically, given the experience of change.3 The Commission is publishing quarterly cycle to a cycle no less the ISCA and the parties to the Plan, the this notice to solicit comments on the frequently than semi-annually. Commission finds that it is appropriate proposed rule change, as amended, from According to OPRA, based on the to extend the capacity review cycle to interested persons. experience of the Independent System no less frequently than semi-annually so Capacity Advisor (‘‘ISCA’’) and the as to provide the ISCA and the parties I. Self-Regulatory Organization’s parties to the Plan, the quarterly cycle sufficient time to complete their cycle of Statement of the Terms of Substance of the Proposed Rule Change currently required by Guideline 2 fails solicitation, discussion, revision and to take into account the amount of time review regarding capacity projections. The Exchange proposes to reduce the needed for the complete cycle of Moreover, the Commission believes that aggregate options transaction fee for solicitation, discussion, revision, and permitting the parties to increase their Exchange specialists and registered review of these projections to be requested capacity after receiving initial options traders from $0.25 per contract completed. Because of this, the ISCA costs estimates from the ISCA should side to $0.20 per contract side. The text suggested, and the parties to the Plan help to ensure that the various parties of the proposed rule change is available agreed, that a six-month cycle for the to the Plan have the flexibility they need at the Office of the Secretary, Amex, and capacity projection and review process at the Commission. in projecting and planning for their 1 15 U.S.C. 78k–1. capacity needs. II. Self-Regulatory Organization’s 2 17 CFR 240.11Aa3–2. It is therefore ordered, pursuant to Statement of the Purpose of, and 3 The OPRA Plan is a national market system plan Section 11A of the Act,8 and Rule Statutory Basis for, the Proposed Rule approved by the Commission pursuant to Section 9 Change 11A of the Act and Rule 11Aa3–2 thereunder. See 11Aa3–2 thereunder, that the proposed Securities Exchange Act Release No. 17638 (March OPRA Plan amendment (SR–OPRA– In its filing with the Commission, the 18, 1981), 22 S.E.C. Docket 484 (March 31, 1981). 2004–06) be, and it hereby is, approved. Exchange included statements The OPRA Plan provides for the collection and concerning the purpose of and basis for dissemination of last sale and quotation information the proposed rule change and discussed on options that are traded on the participant 5 In approving this proposed OPRA Plan exchanges. The six participants to the OPRA Plan amendment, the Commission has considered its 10 are the American Stock Exchange LLC, the Boston impact on efficiency, competition, and capital 17 CFR 200.30–3(29). 1 Stock Exchange, Inc., the Chicago Board Options formation. 15 U.S.C. 78c(f). 15 U.S.C. 78s(b)(1). Exchange, Inc., the International Securities 2 17 CFR 240.19b–4. 6 15 U.S.C. 78k–1. Exchange, Inc., the Pacific Exchange, Inc., and the 3 See Form 19b–4 dated January 6, 2005 7 17 CFR 240.11Aa3–2. Philadelphia Stock Exchange, Inc. (‘‘Amendment No. 1’’). In Amendment No. 1, the 4 See Securities Exchange Act Release No. 50785 8 15 U.S.C. 78k–1. Exchange clarified the effective date of the (December 2, 2004), 69 FR 71440. 9 17 CFR 240.11Aa3–2. proposed fee change. VerDate jul<14>2003 17:46 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00057 Fmt 4703 Sfmt 4703 E:\FR\FM\13JAN1.SGM 13JAN1 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Notices 2433 any comments it received on the members and other persons using 450 Fifth Street, NW., Washington, DC proposed rule change. The text of these exchange facilities. 20549–0609. statements may be examined at the All submissions should refer to File B. Self-Regulatory Organization’s places specified in Item IV below. The Number SR–Amex–2004–97. This file Statement on Burden on Competition Exchange has prepared summaries, set number should be included on the forth in Sections A, B, and C below, of The Exchange does not believe that subject line if e-mail is used. To help the the most significant aspects of such the proposed rule change will impose Commission process and review your statements. any burden on competition that is not comments more efficiently, please use necessary or appropriate in furtherance only one method. The Commission will A. Self-Regulatory Organization’s of the purposes of the Act. post all comments on the Commission’s Statement of the Purpose of, and C. Self-Regulatory Organization’s Internet Web site (http://www.sec.gov/ Statutory Basis for, the Proposed Rule rules/sro.shtml). Copies of the Change Statement on Comments on the Proposed Rule Change Received From submission, all subsequent 1. Purpose Members, Participants or Others amendments, all written statements with respect to the proposed rule The Exchange currently imposes The Exchange has neither solicited change that are filed with the transactions charges for transactions in nor received written comments on the Commission, and all written equity options executed on the proposed rule change. communications relating to the Exchange by Exchange specialists and III. Date of Effectiveness of the proposed rule change between the Exchange registered options traders Commission and any person, other than (‘‘ROTs’’). The current charges for Proposed Rule Change and Timing for Commission Action those that may be withheld from the Exchange specialist and ROTs in equity public in accordance with the options are $0.25 per contract side, The proposed rule change has become provisions of 5 U.S.C. 552, will be consisting of an options transaction fee effective pursuant to Section available for inspection and copying in 6 of $0.15, an options comparison fee of 19(b)(3)(A)(ii) of the Act and Rule 19b– the Commission’s Public Reference 7 $0.05 and an options floor brokerage fee 4(f)(2) thereunder, because the Room, 450 Fifth Street, NW., of $0.05. The Exchange proposes to proposed rule change establishes or Washington, DC 20549. Copies of the reduce the aggregate equity options changes a due, fee or other charge filing also will be available for transaction fee for Exchange specialists applicable only to a member of the inspection and copying at the principal and ROTs from the current level of Exchange. At any time within 60 days office of the Exchange. All comments $0.25 per contract side to $0.20 per of the filing of the proposed rule change, received will be posted without change; contract side effective December 2, the Commission may summarily the Commission does not edit personal 2004. Non-member market makers, i.e., abrogate the rule change if it appears to identifying information from market makers registered in the same the Commission that the action is submissions. You should submit only option class on another option necessary or appropriate in the public information that you wish to make exchange, will continue to be charged interest, for the protection of investors, available publicly. All submissions the current aggregate transaction fee of or would otherwise further the purposes should refer to File Number SR–Amex– $0.30 per contract side. The new of the Act.8 2004–97 and should be submitted on or aggregate equity options transaction fee IV. Solicitation of Comments before February 3, 2005. for Exchange specialists and ROTs will For the Commission, by the Division of consist of an options transaction fee of Interested persons are invited to submit written data, views, and Market Regulation, pursuant to delegated $0.10 per contract side, an options authority.9 comparison fee of $0.05 per contract arguments concerning the foregoing, including whether the proposed rule J. Lynn Taylor, side and options floor brokerage fee of Assistant Secretary. $0.05 per contract side. change is consistent with the Act. [FR Doc. E5–116 Filed 1–12–05; 8:45 am] The Exchange believes that the Comments may be submitted by any of proposed reduction in the equity the following methods: BILLING CODE 8010–01–P options transaction fee will benefit the Electronic Comments Exchange by providing greater incentive • Use the Commission’s Internet SECURITIES AND EXCHANGE to Exchange specialists and ROTs to comment form (http://www.sec.gov/ COMMISSION competitively quote their markets in rules/sro.shtml); or comparison to the markets made by [Release No. 34–50999; File No. SR–Amex– • Send an e-mail to rule- other options exchanges. The Exchange 2003–90] [email protected]. Please include File also believes that the reduction in the Number SR–Amex–2004–97 on the Self-Regulatory Organizations; Order equity options transaction fee will help subject line. Granting Accelerated Approval of to maintain the existing floor operations Proposed Rule Change and Paper Comments of member firms at the Amex. Amendment No. 1 Thereto by • 2. Statutory Basis Send paper comments in triplicate American Stock Exchange LLC to Jonathan G. Katz, Secretary, Relating to the Amendment of The Exchange believes that the Securities and Exchange Commission, Exchange Rule 153 proposed rule change is consistent with 4 Section 6(b) of the Act in general, and 6 15 U.S.C. 78s(b)(3)(A)(ii). January 7, 2005. furthers the objectives of Section 6(b)(4) 7 17 CFR 240.19b–4(f)(2). I. Introduction of the Act 5 in particular, regarding the 8 For purposes of calculating the 60-day period equitable allocation of reasonable dues, within which the Commission may summarily On October 9, 2003, the American fees and other charges among exchange abrogate the proposed rule change under Section Stock Exchange LLC (‘‘Amex’’ or 19(b)(3)(C) of the Act, the Commission considers that period to commence on January 6, 2005, the ‘‘Exchange’’) filed with the Securities 4 15 U.S.C. 78f(b). date the Exchange filed Amendment No. 1 to the 5 15 U.S.C. 78f(b)(4). proposed rule change. See 15 U.S.C. 78s(b)(3)(C). 9 17 CFR 200.30–3(a)(12). VerDate jul<14>2003 17:46 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00058 Fmt 4703 Sfmt 4703 E:\FR\FM\13JAN1.SGM 13JAN1 2434 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Notices and Exchange Commission (‘‘SEC’’ or of other exchange rules and the Federal would be required to enter information ‘‘Commission’’), pursuant to section securities laws. relating to any modification, 19(b)(1) of the Securities Exchange Act As part of the Order, the Options cancellation or execution of an order of 1934 (‘‘Act’’),1 and Rule 19b–4 Exchanges agreed to, and were ordered into BARS. The Exchange would then thereunder,2 a proposed rule change to to comply with, a variety of incorporate order and execution amend Amex Rule 153 relating to the undertakings. Among other things, they information in the AOF into the COATS creation of an electronic order audit agreed to, and were ordered to, design file. trail. On December 15, 2004, the and implement an accurate, time- In addition to entering a non-system Exchange submitted Amendment No. 1 sequenced, consolidated options audit order directly into BARS, the Amex has to the proposed rule change. The trail system (‘‘COATS’’) that would designed an enhancement to the BARS proposed rule change, as amended, was enable the Options Exchanges to system (called ‘‘Order Ticket’’) to published for comment in the Federal reconstruct markets promptly, facilitate order systemization by floor Register on December 22, 2004, for a 15- effectively surveil them, and enforce brokers and their clerks. The Exchange day comment period, which expired on order handling, firm quote, trading anticipates that the Order Ticket January 6, 2005.3 This order approves reporting and other rules. The Options enhancement will be available by the the proposed rule change, and Exchanges were required to complete end of the first quarter of 2005. The Amendment No. 1 thereto, on an this undertaking in five phases. The Order Ticket enhancement would allow accelerated basis. Options Exchanges have completed the floor brokers and their clerks to create first four phases. The final phase of the electronic, time stamped, handwritten II. Background undertaking to implement COATS order tickets which would be saved by The proposed rule change is intended requires that each exchange incorporate the Exchange as JPEG files. to fulfill certain of the undertakings into its audit trail all non-electronic A broker or clerk using the proposed contained in an order issued by the orders. This proposed rule change BARS Order Ticket enhancement would Commission relating to the settlement of addresses that aspect of the undertaking. select a new ‘‘Order Ticket’’ button on an enforcement action against the III. Description of Proposed Rule the booth or hand held BARS terminal, Amex, Chicago Board Options Change which would create a blank image Exchange, Inc., Pacific Exchange, Inc., template on a screen that exists on both and Philadelphia Stock Exchange, Inc. Amex Rule 153(b) currently requires the booth and hand held BARS (collectively ‘‘Options Exchanges’’) for members and member organizations to terminals. Brokers and their clerks failure to comply with their own rules systematize ‘‘immediately upon receipt’’ would write on the screen with a stylus and to enforce compliance with their orders, and modifications or and record order terms just as if they own rules by their members and persons cancellations of orders, ‘‘that are eligible were using a paper order ticket. A associated with their members 4 as is for input into the Exchange’s electronic person using the Order Ticket required by section 19(g) of the Act.5 order processing facilities’’ if such enhancement would be required to The Order found that the Options orders are not already systematized in record the following order terms on the Exchanges impaired the operations of the Exchange’s electronic order ticket prior to representing the order in 6 the options market by: (1) Following a processing facilities. To comply with the trading crowd: course of conduct under which they the COATS standard for an accurate • Buy/Sell; refrained from multiple listing a large time sequencing of option orders, • Symbol; number of options; and (2) inadequately transactions and quotations, in the • Quantity; • discharging their obligations as self- instant filing, the Exchange proposes Call/Put (calls would be assumed regulatory organizations by failing that members and member organizations unless ‘‘P’’ is written); would be required to systematize, prior • Expiration; adequately to enforce compliance with • (a) certain of their rules, including order to representation, either in BARS or in Strike (fractions would be assumed, the Order Ticket enhancement to BARS e.g., ‘‘221⁄2’’ would be written as ‘‘22’’); handling rules, that promote • competition as well as investor described below, those options orders Price term (a limit order would be protection, and (b) certain of the rules and modifications and cancellations of assumed if a price were written, e.g., prohibiting anticompetitive conduct, such orders that are not already ‘‘1.20’’ would mean a 1.20 limit. Market such as harassment, intimidation, systematized in an Amex system. The orders would be blank or represented by refusals to deal and retaliation directed obligation to systematize orders prior to a dash); • Contingencies (if applicable, e.g., at market participants who sought to act representation would commence on NH, AON, FOK, IOC, stock); competitively. In addition, the January 10, 2005. • Open/Close (close would be Commission found that the Options In the case of an order that is not systematized when it reaches the assumed unless ‘‘O’’ is written); Exchanges failed to enforce compliance • Customer/Firm/Member Market with their trade reporting rules, which Exchange, Amex proposes that a floor broker or a broker’s clerk would be Maker/Non-Member Market Maker promote transparency of the market and (customer would be assumed unless facilitate surveillance and enforcement required to systematize the order by: (1) Opening an Order Entry Template ‘‘F’’, ‘‘P’’ or ‘‘N’’ is written); (‘‘OET’’) on the Exchange’s BARS booth • Give-up. 1 15 U.S.C. 78s(b)(1). or hand held terminal; (2) entering the At the first mark on the template, the 2 17 CFR 240.19b–4. Order Ticket would be automatically 3 See Securities Exchange Act Release No. 50866 order terms into the OET; and (3) (December 16, 2004), 69 FR 76798. transmitting the order to the Amex time stamped by the Exchange’s systems 4 See Order Instituting Public Administrative Order File (‘‘AOF’’). The first keystroke to the nearest second. When the broker Proceedings Pursuant to Section 19(h)(1) of the in the OET would be captured by the or clerk finishes entering the Securities Exchange Act of 1934, Making Findings Exchange’s systems at the time of order information on the Order Ticket, he or and Imposing Sanctions, Securities Exchange Act she would be required to hit a ‘‘save’’ Release No. 43268 (September 11, 2000) and receipt. Brokers and their clerks also Administrative Proceeding File 3–10282 (the button, and the Order Ticket would be ‘‘Order’’). 6 See Securities Exchange Act Release No. 45794 assigned a specific sequence number. 5 15 U.S.C. 78s(g). (April 22, 2002), 67 FR 20849 (April 26, 2002). Once the ‘‘save’’ button is hit, the Order VerDate jul<14>2003 17:46 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00059 Fmt 4703 Sfmt 4703 E:\FR\FM\13JAN1.SGM 13JAN1 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Notices 2435 Ticket could not be modified and would and the rules and regulations comment period and no comments were be stored by the Exchange as a JPEG file. thereunder applicable to a national received. The Commission believes that Once the order is systematized in securities exchange.7 In particular the it is appropriate to accelerate approval Order Ticket, the member or member Commission finds that the proposed of the proposed rule change and organization that accepted the order rule change is consistent with section Amendment No. 1 thereto so that the would be required to transfer the order 6(b)(5) of the Act,8 which requires rule may be implemented on a timely terms into BARS so that a record of the among other things, that the Exchange’s basis to ensure prompt compliance with order may be maintained in the rules be designed to promote just and the undertakings contained in the Exchange’s AOF system and any trade equitable principles of trade, to remove Commission’s Order. information submitted to comparison. In impediments and to perfect the V. Conclusion order to enter the order into BARS, a mechanism of a free and open market floor broker or clerk would open a and a national market system, and in For all of the aforementioned reasons, BARS OET on a saved Order Ticket by general, to protect investors and the the Commission finds that the proposed selecting a new OET button within the public interest. rule change is consistent with the image. This would cause both the time The Commission believes that the requirements of the Act and the rules stamp and the sequence number from rules as proposed should allow the and regulations thereunder applicable to the Order Ticket to be automatically Exchange to comply with its obligations a national securities exchange. transferred from the Order Ticket to the under the Order in that they will result It is therefore ordered, pursuant to OET. The transfer of the time stamp and in the creation of an audit trail that section 19(b)(2) of the Act,9 that the sequence number would be done by the incorporates manual orders sent to proposed rule change (SR–Amex–2003– Exchange’s systems and could not be Amex. Specifically, the proposed rule 90) and Amendment No. 1 are approved modified by the broker or clerk. The change requires that Amex members on an accelerated basis. broker or clerk then would be required enter certain order details immediately For the Commission, by the Division of to enter the required order terms into upon receipt, prior to representation of Market Regulation, pursuant to delegated the OET and transmit the order to AOF. the order, into BARS or in the Order authority.10 The broker or clerk also would be Ticket enhancement to BARS for later Jill M. Peterson, required to enter any information integration into COATS, which the Assistant Secretary. pertaining to a modification or Commission believes should result in an [FR Doc. E5–127 Filed 1–12–05; 8:45 am] cancellation of an order, or the accurate, time-sequenced record of BILLING CODE 8010–01–P execution of an order, directly into orders. BARS from where it would be The Commission notes that the transmitted to AOF. Information Exchange has acknowledged the need SECURITIES AND EXCHANGE pertaining to order modifications and for effective and proactive surveillance COMMISSION cancellations would be required to be for activities such as trading ahead and systematized prior to representation of [Release No. 34–50994; File No. SR–CBOE– front-running in connection with the 2004–90] the revised order in the crowd. creation of its audit trail. The Exchange The Exchange further proposes that represents that it currently conducts Self-Regulatory Organizations; Notice any proprietary system approved by the automated surveillance for such of Filing and Immediate Effectiveness Exchange on the Exchange’s trading activities and will incorporate a review of Proposed Rule Change by the floor which receives orders would be of order systemization as part of such Chicago Board Options Exchange, considered an Exchange system for the surveillance. The Exchange also states Incorporated, Relating to a Delay of the purpose of systematizing those options that it intends to implement Operative Period for Rule 6.45A(c)(iii) orders and modifications and supplementary surveillance and cancellations of such orders that are not examination programs related to the January 7, 2005. already systematized in an Amex system systemization of orders requirement Pursuant to Section 19(b)(1) of the prior to representing the orders in the promptly after this requirement is Securities Exchange Act of 1934 crowd. Any proprietary system 1 instituted, which are designed to (‘‘Exchange Act’’ or ‘‘Act’’) notice is approved by the Exchange would be address, among other things, trading hereby given that on December 28, 2004, required to have the functionality to ahead and front-running. The the Chicago Board Options Exchange, comply with the requirements of Commission views effective Incorporated (‘‘CBOE’’ or ‘‘Exchange’’) COATS. surveillance as critical to the integrity of filed with the Securities and Exchange Under the proposed rule change, Commission (‘‘Commission’’) the orders for FLEX options and COATS and expects that the Exchange will inform the Commission of any proposed rule change as described in accommodation trades would not have Items I, II, and III below, which Items to be systematized prior to problems it encounters in conducting effective surveillance. have been prepared by the CBOE. The representation. Information about these Commission is publishing this notice to orders would be required to be The Commission finds good cause for accelerating approval of the proposed solicit comments on the proposed rule submitted to the Exchange on trade date change from interested persons. no later than 10 minutes after the close rule change and Amendment No. 1 of trading. The Exchange would thereto, prior to the thirtieth day after I. Self-Regulatory Organization’s maintain information submitted to it the date of the publication of notice Statement of the Terms of Substance of pertaining to FLEX options and thereof in the Federal Register. The the Proposed Rule Change Commission notes that the proposed accommodation trades in the COATS The Exchange proposes to delay rule change was noticed for a 15-day format. implementation of recently approved CBOE Rule 6.45A(c)(iii). The text of the IV. Discussion 7 In approving this proposal, the Commission has considered the proposed rule’s impact on After careful consideration, the efficiency, competition and capital formation. 15 9 15 U.S.C. 78s(b)(2). Commission finds that the proposed U.S.C. 78c(f). 10 17 CFR 200.30–3(a)(12). rule change is consistent with the Act 8 15 U.S.C. 78f(b)(5). 1 15 U.S.C. 78(b)(1). VerDate jul<14>2003 17:46 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00060 Fmt 4703 Sfmt 4703 E:\FR\FM\13JAN1.SGM 13JAN1 2436 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Notices proposed rule change is available at the promote just and equitable principles of number should be included on the Office of the Secretary, CBOE and at the trade, to prevent fraudulent and subject line if e-mail is used. To help the Commission. manipulative acts and, in general, to Commission process and review your protect investors and the public interest. comments more efficiently, please use II. Self-Regulatory Organization’s only one method. The Commission will Statement of the Purpose of, and B. Self-Regulatory Organization’s post all comments on the Commission’s Statutory Basis for, the Proposed Rule Statement on Burden on Competition Internet Web site (http://www.sec.gov/ Change CBOE does not believe that the rules/sro.shtml). Copies of the In its filing with the Commission, the proposed rule change will impose any submission, all subsequent Exchange included statements burden on competition not necessary or amendments, all written statements concerning the purpose of and basis for appropriate in furtherance of the with respect to the proposed plan the proposed rule change and discussed purposes of the Exchange Act. amendment that are filed with the any comments it received on the C. Self-Regulatory Organization’s Commission, and all written proposed rule change. The text of these Statement on Comments on the communications relating to the statements may be examined at the Proposed Rule Change Received From proposed plan amendment between the places specified in Item IV below. The Members, Participants or Others Commission and any person, other than Exchange has prepared summaries, set those that may be withheld from the forth in sections A, B, and C below, of The Exchange neither solicited nor public in accordance with the the most significant parts of such received written comments on the provisions of 5 U.S.C. 552, will be statements. The CBOE has designated proposed rule change. available for inspection and copying in this proposal as one concerned solely III. Date of Effectiveness of the the Commission’s Public Reference with the administration of the Exchange Proposed Rule Change and Timing for Section, 450 Fifth Street, NW., under Section 19(b)(3)(A)(iii) of the Commission Action Washington, DC 20549. Copies of such Act 2 and Rule 19b–4(f)(3) thereunder, 3 filing also will be available for The foregoing proposed rule change which renders the proposal effective inspection and copying at the principal will take effect upon filing with the upon filing with the Commission. The office of the CBOE. All comments Commission pursuant to Section Commission is publishing this notice to received will be posted without change; 19(b)(3)(A)(iii) of the Act 7 and Rule solicit comments on the proposed rule the Commission does not edit personal 19b–4(f)(3) thereunder,8 because it is change from interested persons. identifying information from concerned solely with the submissions. You should submit only A. Self-Regulatory Organization’s administration of the Exchange. At any information that you wish to make Statement of the Purpose of, and time within 60 days of the filing of such available publicly. All submissions Statutory Basis for, the Proposed Rule proposed rule change, the Commission should refer to File Number SR–CBOE– Change may summarily abrogate such rule 2004–90 and should be submitted on or change if it appears to the Commission On December 1, 2004, the before February 3, 2005. Commission approved a CBOE proposal that such action is necessary or that eliminated the DPM participation appropriate in the public interest, for For the Commission, by the Division of the protection of investors, or otherwise Market Regulation, pursuant to delegated entitlement in ‘‘N-second’’ group authority.9 trades.4 The Exchange anticipated in furtherance of the purposes of the Jill M. Peterson, implementing this rule change during Act. Assistant Secretary. December expiration week, however, IV. Solicitation of Comments unforeseen programming delays [FR Doc. E5–124 Filed 1–12–05; 8:45 am] necessitate postponing implementation Interested persons are invited to BILLING CODE 8010–01–P until January. In this regard, CBOE submit written data, views, and proposes to delay the operative period arguments concerning the foregoing, of recently-approved CBOE Rule including whether the proposed rule SECURITIES AND EXCHANGE 6.45A(c)(iii) until no later than January change is consistent with the Act. COMMISSION 31, 2005. Until such time that the Comments may be submitted by any of [Release No. 34–50996; File No. SR-CBOE– Exchange rectifies these programming the following methods: 2004–77] issues, DPMs will continue to be Electronic Comments Self-Regulatory Organizations; Order entitled to receive their guaranteed • participation entitlement. Use the Commission’s Internet Approving Proposed Rule Change by CBOE believes the proposed rule comment form (http://www.sec.gov/ the Chicago Board Options Exchange, rules/sro.shtml); or Inc., Relating to the Systematizing of change is consistent with the Act and • the rules and regulations under the Act Send an e-mail to rule- Orders in Connection With the applicable to a national securities [email protected]. Please include File Requirement To Design and Implement exchange and, in particular, the Number SR–CBOE–2004–90 on the a Consolidated Options Audit Trail requirements of section 6(b) of the Act.5 subject line. System Specifically, the Exchange believes the Paper Comments January 7, 2005. proposed rule change is consistent with • Send paper comments in triplicate 6 I. Introduction the Section 6(b)(5) requirements that to Jonathan G. Katz, Secretary, the rules of an exchange be designed to Securities and Exchange Commission, On November 24, 2004, the Chicago 450 Fifth Street, NW., Washington, DC Board Options Exchange, Inc. (‘‘CBOE’’ 2 15 U.S.C. 78s(b)(3)(A)(iii). or ‘‘Exchange’’) filed with the Securities 3 20549–0609. 17 CFR 240.19b–4(f)(3). All submissions should refer to File Exchange Commission (‘‘SEC’’ or 4 Exchange Act Release No. 50775 (Dec. 1, 2004), 69 FR 70731 (Dec. 7, 2004) (approving SR–CBOE– Number SR–CBOE–2004–90. This file ‘‘Commission’’), pursuant to section 2004–64). 19(b)(1) of the Securities Exchange Act 5 15 U.S.C. 78(f)(b). 7 15 U.S.C. 78s(b)(3)(A)(iii). 6 15 U.S.C. 78(f)(b)(5). 8 17 CFR 240.19b–4(f)(3). 9 17 CFR 200.30–3(a)(12). VerDate jul<14>2003 17:46 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00061 Fmt 4703 Sfmt 4703 E:\FR\FM\13JAN1.SGM 13JAN1 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Notices 2437 of 1934 (the ‘‘Act’’) 1 and Rule 19b–4 of other exchange rules and the Federal marketable orders differently than other thereunder,2 a proposed rule change to securities laws. orders so that marketable orders may be amend its rules relating to the As part of the Order, the Options represented immediately in the systematization of orders in connection Exchanges agreed to, and were ordered marketplace. Specifically, with respect with the requirement to design and to comply with, a variety of to non-electronic market and marketable implement a consolidated options audit undertakings. Among other things, they orders sent to the Exchange, CBOE trail system (‘‘COATS’’). The proposed agreed to, and were ordered to, design proposes to provide that the member rule change was published for notice and implement COATS to enable the responsible for systematizing the order and comment in the Federal Register on Options Exchanges to reconstruct must input into the Exchange’s systems December 6, 2004.3 The Commission markets promptly, effectively surveil the following specific information with them and enforce order handling, firm received 2 comment letters on the respect to a market or marketable order quote, trading reporting and other rules. proposed rule change.4 This order prior to the representation of the order: The Options Exchanges were required to (i) The option symbol; (ii) the expiration approves the proposed rule change. complete this undertaking in five month; (iii) the expiration year; (iv) the II. Background phases. The Options Exchanges have strike price; (v) buy or sell; (vi) call or completed the first four phases. The put; (vii) the number of contracts; and The proposed rule change is intended final phase of the undertaking to (viii) the Clearing Member. Any to fulfill certain of the undertakings implement COATS requires that each additional information with respect to contained in an order issued by the exchange incorporate into its audit trail the order would be inputted into the Commission relating to the settlement of all non-electronic orders. This proposed Exchange’s systems contemporaneously an enforcement action against the rule change addresses that aspect of the thereafter, which may occur after the American Stock Exchange LLC, CBOE, undertaking. representation and execution of the Pacific Exchange, Inc., and Philadelphia III. Description of Proposed Rule order. CBOE also proposes to amend Stock Exchange, Inc. (collectively Change ‘‘Options Exchanges’’) for failure to Interpretation .04 to CBOE Rule 6.73, to comply with their own rules and to To assure that all non-electronic make explicit that a broker’s orders are incorporated into COATS for enforce compliance with their own rules responsibility to immediately and Phase V, the CBOE proposes to amend by their members and persons continuously represent market and 5 CBOE Rule 6.24, which currently marketable orders would be subject to associated with their members as is requires orders to be in written form. required by section 19(g) of the Act.6 the requirement that each order must be The proposed rule change generally systematized prior to representation. The Order found that the Options would require that each order, change to In proposed new subparagraph (a)(4) Exchanges impaired the operations of an order, or cancellation of an order of CBOE Rule 6.24, the Exchange the options market by: (i) Following a transmitted to the Exchange be proposes that in the event of a course of conduct under which they ‘‘systematized,’’ in a format approved by malfunction or disruption of the refrained from multiply listing a large the Exchange, either before it is sent to Exchange’s systems such that a member number of options; and (ii) inadequately the Exchange or contemporaneously is unable to systematize an order, the discharging their obligations as self- upon receipt on the floor of the member or member organization would regulatory organizations by failing Exchange, and prior to representation of be required to use paper trade tickets to adequately to enforce compliance with the order. record order information during the (a) certain of their rules, including order CBOE proposes that each order, time period that the malfunction or handling rules, that promote change to an order, or cancellation of an disruption occurs. Upon the cessation of competition as well as investor order may be systematized in one of two the malfunction or disruption, the protection, and (b) certain of the rules ways. First, if an order, change to an member would be required to prohibiting anticompetitive conduct, order, or cancellation of an order is sent immediately resume systematizing such as harassment, intimidation, electronically to the Exchange, would be orders. In addition, the member would refusals to deal and retaliation directed considered to be systematized. Second, be required to exert best efforts to input at market participants who sought to act if an order, change to an order, or electronically into the Exchange’s competitively. In addition, the cancellation of an order that is sent to systems all relevant order information Commission found that the Options the Exchange non-electronically is input received during the time period when Exchanges failed to enforce compliance electronically into the Exchange’s there was a malfunction or disruption of with their trade reporting rules, which systems contemporaneously upon the Exchange’s systems as soon as promote transparency of the market and receipt on the Exchange and prior to possible, and in any event would be facilitate surveillance and enforcement representation, it would be considered required to input such data to be systematized. The requirement electronically into the Exchange’s would proposed to commence on 1 15 U.S.C. 78s(b)(1). systems not later than the close of 2 17 CFR 240.19b–4. January 10, 2005. With respect to non- business on the day that the 3 See Securities Exchange Act Release No. 50755 electronic orders received in the S&P malfunction or disruption ceases. (November 30, 2004), 69 FR 70482. 100 index option class (OEX), the S&P The Exchange proposes to keep the 4 See e-mail from Brian Meister, CBOE Floor 500 index option class (SPX), and the current Interpretation and Policy .02(a) Broker, O’Connor and Co., LLC, dated December 26, European-style S&P 100 index option of CBOE Rule 6.24, which permits the 2004 and Richard T. Marneris, CBOE Floor Broker, dated December 21, 2004. class (XEO), however, CBOE proposes use of hand signal communications on 5 See Order Instituting Public Administrative that the requirement to systematize the floor to, among other things, initiate Proceedings Pursuant to Section 19(h)(1) of the orders prior to representation would an order, cancel an order or to change Securities Exchange Act of 1934, Making Findings commence on March 28, 2005. material terms of an order. However, the and Imposing Sanctions, Securities Exchange Act Although the proposed rule change Exchange proposes to clarify that any Release No. 43268 (September 11, 2000) and Administrative Proceeding File 3–10282 (the generally requires that each order be initiation, cancellation, or change of an ‘‘Order’’). systematized prior to representation, the order relayed to a floor broker through 6 15 U.S.C. 78s(g). Exchange proposes to treat market and the use of hand signals also must be VerDate jul<14>2003 17:46 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00062 Fmt 4703 Sfmt 4703 E:\FR\FM\13JAN1.SGM 13JAN1 2438 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Notices systematized upon receipt in including any cancellation of or change that two commenters expressed concern accordance with paragraph (a) of CBOE to such order, be systematized in that the requirement to systematize Rule 6.24. The proposed rule change accordance with CBOE Rule 6.24. certain information prior to also deletes paragraph (b) of 10 IV. Summary of Comments representation would harm investors. Interpretation .02 as paragraph (a) of The Commission notes, however, that that interpretation is being amended to The Commission received comment only a limited amount of information delete the reference to exempt classes. letters from 2 CBOE floor brokers about an order would be required to be opposing the systematization prior to The Exchange proposes to add a new systematized prior to representation representation of an order requirement.7 Interpretation and Policy .04 to CBOE under the proposal. Moreover, the Both commenters were concerned that Rule 6.24, which states that Commission believes that the order accommodation liquidations as defined this requirement might harm customers elements proposed to be captured for in CBOE Rule 6.54 are exempted from by delaying the execution and possibly market and marketable orders should be the systematization requirement. causing the customer orders to lose the However, the Exchange commits to market. sufficient to distinguish one order from another order that a member may maintain quotation, order and V. Discussion transaction information for receive at or about the same time to accommodation liquidations in the After careful consideration, the ensure an accurate audit trail. Therefore, same format as the COATS data is Commission finds that the proposed the Commission believes that it is maintained, and will make such rule change is consistent with the Act appropriate and consistent with the information available to the SEC upon and the rules and regulations goals of investor protection to permit request. thereunder applicable to a national the capture of only the above-referenced The Exchange also proposes to add a securities exchange. In particular the order data elements prior to new Interpretation and Policy .05 to Commission finds that the proposed representation for market and CBOE Rule 6.24, which states that FLEX rule change is consistent with section marketable orders. 6(b)(5) of the Act,8 which requires options, as described in Chapter 24A of The Commission also believes that the the Exchange’s rules, are exempt from among other things, that the Exchange’s rules be designed to promote just and Exchange’s plan for recording order the requirements of the Rule. However, details in the event of a systems outage the Exchange commits to maintain as equitable principles of trade, to remove or malfunction is reasonable. In the part of its audit trail quotation, order impediments and to perfect the event of a systems outage or and transaction information for FLEX mechanism of a free and open market malfunction, floor brokers would revert options in a form and manner that is and a national market system, and in substantially similar to the form and general, to protect investors and the to the use of trade tickets and would manner as the COATS data is public interest.9 record on those tickets the times that maintained, and will make such The Commission believes that the various events occur in the life of the information available to the SEC upon rules as proposed should allow the order. Further, the Exchange would request. Exchange to comply with its obligations ensure that the information recorded on The Exchange proposes to include a under the Order in that they will result trade tickets is entered into the new Interpretation .06 to CBOE Rule in the creation of an audit trail that Exchange’s electronic systems in a 6.24, which provides that any incorporates manual orders sent to timely manner so that it can be proprietary system approved by the CBOE. Specifically, the proposed rules incorporated into the electronic audit Exchange on the Exchange’s trading will require that each order, change to trail. floor that receives orders would be an order, or cancellation of an order The Commission notes that the must be systematized prior to considered an Exchange system for Exchange has acknowledged the need representation. purposes of paragraph (a)(1) of this for effective and proactive surveillance Rule. This proposed rule would require With respect to market and marketable orders, the Exchange for activities such as trading ahead and that any proprietary system approved by front-running in connection with the the Exchange must comply with the proposes to require that floor brokers must enter only eight order data creation of its audit trail. The Exchange requirements of COATS. represents that it currently conducts Finally, the Exchange has proposed a elements into the Exchange’s systems automated surveillance for such new Interpretation .07 to CBOE Rule prior to representation. These elements 6.24, which would require that each are: (i) The option symbol; (ii) the activities and will incorporate a review order transmitted by a Market-Maker expiration month; (iii) the expiration of order systemization as part of such while on the floor, including any year; (iv) the strike price; (v) buy or sell; surveillance. The Exchange also states cancellation of or change to such order, (vi) call or put; (vii) the number of that it intends to implement must be systematized in accordance contracts; and (viii) the Clearing supplementary surveillance and with the procedures described in Member. The Exchange represents that examination programs related to the Paragraph (a) and (b) of this Rule, as limiting the number of elements that systemization of orders requirement applicable. Currently, paragraph (d) of must be entered prior to representation promptly after this requirement is CBOE Rule 6.24 requires that each order will permit marketable orders to be instituted, which are designed to transmitted by a Market-Maker while on represented immediately in the address, among other things, trading the floor, including any cancellation of marketplace as customers expect and as ahead and front-running. The or change to such order, must be members representing those orders are Commission views effective recorded legibly in a written form that obligated to do. The Commission notes surveillance as critical to the integrity of has been approved by the Exchange, and COATS and expects that the Exchange must be time stamped immediately 7 See supra Note 4. will inform the Commission of any prior to its transmission. The new 8 8 15 U.S.C. 78f(b)(5). problems it encounters in conducting 9 In approving this proposal, the Commission has effective surveillance. proposed interpretation thus would considered the proposed rule’s impact on require that each order transmitted by a efficiency, competition and capital formation. 15 Market-Maker while on the floor, U.S.C. 78c(f). 10 See supra note 4. VerDate jul<14>2003 17:46 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00063 Fmt 4703 Sfmt 4703 E:\FR\FM\13JAN1.SGM 13JAN1 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Notices 2439 VI. Conclusion II. Self-Regulatory Organization’s B. Self-Regulatory Organization’s For all of the aforementioned reasons, Statement of the Purpose of, and Statement on Burden on Competition the Commission finds that the proposed Statutory Basis for, the Proposed Rule The Exchange does not believe that rule change is consistent with the Change the proposed rule change will impose requirements of the Act and the rules In its filing with the Commission, the any burden on competition that is not and regulations thereunder applicable to ISE included statements concerning the necessary or appropriate in furtherance a national securities exchange. purpose of, and basis for, the proposed of the purposes of the Act. It is therefore ordered, pursuant to rule change and discussed any 11 C. Self-Regulatory Organization’s section 19(b)(2) of the Act, that the comments it received on the proposed Statement on Comments on the proposed rule change (SR–CBOE–2004– rule change. The text of these statements Proposed Rule Change Received From 77) is approved. may be examined at the places specified Members, Participants or Others For the Commission, by the Division of in item IV below. The ISE has prepared The Exchange has not solicited, and Market Regulation, pursuant to delegated summaries, set forth in sections A, B authority.12 does not intend to solicit, comments on and C below, of the most significant this proposed rule change. The Jill M. Peterson, aspects of such statements. Exchange has not received any Assistant Secretary. A. Self-Regulatory Organization’s unsolicited written comments from [FR Doc. E5–128 Filed 1–12–05; 8:45 am] Statement of the Purpose of, and members or other interested parties. BILLING CODE 8010–01–P Statutory Basis for, the Proposed Rule III. Date of Effectiveness of the Change Proposed Rule Change and Timing for SECURITIES AND EXCHANGE 1. Purpose Commission Action COMMISSION The foregoing rule change has become The Exchange is proposing to amend effective pursuant to section its Schedule of Fees to adopt a $.10 per [Release No. 34–50981; File No. SR–ISE– 19(b)(3)(A)(ii) of the Act 6 and Rule 19b– contract surcharge for certain 2004–38] 4(f)(2) 7 thereunder because it concerns transactions in options based on the a fee imposed by the Exchange. At any Self-Regulatory Organizations; Morgan Stanley Technology Index time within 60 days of the filing of the International Securities Exchange, Inc.; (‘‘MSH’’ or ‘‘Index’’). proposed rule change, the Commission Notice of Filing and Immediate The Exchange’s Schedule of Fees may summarily abrogate such rule Effectiveness of Proposed Rule currently has in place a surcharge fee change if it appears to the Commission Change Relating to Fee Changes item that calls for a $.10 per contract fee that such action is necessary or January 6, 2005. for transactions in certain licensed appropriate in the public interest, for Pursuant to section 19(b)(1) of the products. The Exchange has entered the protection of investors, or otherwise Securities Exchange Act of 1934 (the into a license agreement in connection in furtherance of the purposes of the ‘‘Act’’),1 and Rule 19b–4 thereunder,2 with the listing and trading of options Act. on the Index. The Exchange is adopting notice is hereby given that on December IV. Solicitation of Comments 22, 2004, the International Securities a fee for trading in these options to Exchange, Inc. (the ‘‘Exchange’’ or the defray the licensing costs. The Exchange Interested persons are invited to ‘‘ISE’’) filed with the Securities and believes that charging the participants submit written data, views, and Exchange Commission (the that trade these instruments is the most arguments concerning the foregoing, ‘‘Commission’’) the proposed rule equitable means of recovering the costs including whether the proposed rule change as described in items I, II, and of the license. However, because change is consistent with the Act. III below, which items have been competitive pressures in the industry Comments may be submitted by any of prepared by ISE. The Commission is have resulted in the waiver of the following methods: transaction fees for customers, the publishing this notice to solicit Electronic Comments comments on the proposed rule change Exchange proposes to exclude Public 4 • Use the Commission’s Internet from interested persons. Customer Orders from this surcharge fee. Accordingly, this surcharge fee will comment form (http://www.sec.gov/ I. Self-Regulatory Organization’s only be charged to Exchange members rules/sro.shtml); or Statement of the Terms of Substance of with respect to non-Public Customer • Send an e-mail to rule- the Proposed Rule Change Orders. [email protected]. Please include File No. SR–ISE–2004–38 on the subject The ISE is proposing to amend its 2. Basis line. Schedule of Fees to adopt a $.10 per contract surcharge for certain The Exchange believes that the basis Paper Comments transactions in options based on the under the Act for this proposed rule • Send paper comments in triplicate Morgan Stanley Technology Index.3 The change is the requirement under section 5 to Jonathan G. Katz, Secretary, text of the proposed rule change is 6(b)(4) of the Act that an exchange Securities and Exchange Commission, available at the Commission and the have an equitable allocation of 450 Fifth Street, NW., Washington, DC ISE. reasonable dues, fees and other charges 20549–0609. among its members and other persons All submissions should refer to File 11 15 U.S.C. 78s(b)(2). using its facilities. Number SR–ISE–2004–38. This file 12 17 CFR 200.30–3(a)(12). number should be included on the 1 15 U.S.C. 78s(b)(1). 4 Public Customer Order is defined in Exchange subject line if e-mail is used. To help the 2 17 CFR 240.19b–4. Rule 100(a)(33) as an order for the account of a Commission process and review your 3 See Securities Exchange Act Release No. 49447 Public Customer. Public Customer is defined in (Mar. 18, 2004), 69 FR 16299 (Mar. 29, 2004) Exchange Rule 100(a)(32) as a person that is not a (approving the listing and trading of options on the broker or dealer in securities. 6 15 U.S.C. 78s(b)(3)(A)(ii). Morgan Stanley Technology Index). 5 15 U.S.C. 78f(b)(4). 7 17 CFR 240.19b–4(f)(2). VerDate jul<14>2003 17:46 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00064 Fmt 4703 Sfmt 4703 E:\FR\FM\13JAN1.SGM 13JAN1 2440 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Notices comments more efficiently, please use have been prepared by NASD. NASD II. Self-Regulatory Organization’s only one method. The Commission will has designated the proposed rule change Statement of the Purpose of, and post all comments on the Commissions as ‘‘establishing or changing a due, fee Statutory Basis for, the Proposed Rule Internet Web site (http://www.sec.gov/ or other charge’’ under Section Change 3 rules/sro.shtml). Copies of the 19(b)(3)(A)(ii) of the Act and Rule 19b– In its filing with the Commission, 4 submission, all subsequent 4(f)(2) thereunder, which renders the NASD included statements concerning amendments, all written statements proposal effective upon receipt of this the purpose of and basis for the with respect to the proposed rule filing by the Commission. The proposed rule change and discussed any change that are filed with the Commission is publishing this notice to comments it received on the proposed Commission, and all written solicit comments on the proposed rule rule change. The text of these statements communications relating to the change from interested persons. may be examined at the places specified proposed rule change between the I. Self-Regulatory Organization’s in Item IV below. NASD has prepared Commission and any person, other than Statement of the Terms of Substance of summaries, set forth in sections A, B, those that may be withheld from the the Proposed Rule Change and C below, of the most significant public in accordance with the aspects of such statements. provisions of 5 U.S.C. 552, will be NASD is proposing to amend Section available for inspection and copying in 7 of Schedule A to the NASD By-Laws A. Self-Regulatory Organization’s the Commission’s Public Reference (‘‘Section 7’’) to adjust fees for filing Statement of the Purpose of, and Room. Copies of such filing also will be documents pursuant to NASD Rule 2710 Statutory Basis for, the Proposed Rule available for inspection and copying at (Corporate Financing Rule— Change Underwriting Terms and the principal office of the ISE. All 1. Purpose comments received will be posted Arrangements). Below is the text of the without change; the Commission does proposed rule change. Proposed new According to NASD, the purpose of not edit personal identifying language is italicized; proposed the proposed rule change is to amend information from submissions. You deletions are in [brackets]. Section 7 to raise the maximum fee that should submit only information that * * * * * may be charged for the filing of initial you wish to make available publicly. All documents and amendments pursuant SCHEDULE A TO NASD BY-LAWS submissions should refer to File to the Corporate Financing Rule from Number SR–ISE–2004–38 and should be * * * * * $30,500 to $75,500. NASD’s Corporate submitted by February 3, 2005. Financing Department (the Section 7—Fees for Filing Documents ‘‘Department’’) is responsible for For the Commission, by the Division of Pursuant to the Corporate Financing reviewing the proposed underwriting Market Regulation, pursuant to delegated Rule authority.8 terms and arrangements of proposed public offerings of securities for J. Lynn Taylor, (a) There shall be a fee imposed for the filing of initial documents relating to compliance with the requirements of Assistant Secretary. any offering filed with NASD pursuant NASD Rule 2710. According to NASD, [FR Doc. E5–130 Filed 1–12–05; 8:45 am] to the Corporate Financing Rule equal to the purpose of the Department’s review BILLING CODE 8010–01–P $500 plus .01% of the proposed is to provide members with, among maximum aggregate offering price or other things, regulatory guidance as to other applicable value of all securities what constitutes fair and reasonable SECURITIES AND EXCHANGE registered on an SEC registration underwriting terms and arrangements. COMMISSION statement or included on any other type Pursuant to NASD Rule 2710, the [Release No. 34–50984; File No. SR–NASD– of offering document (where not filed managing underwriter of the offering is 2004–177] with the SEC), but shall not exceed required to file certain documentation [$30,500] $75,500. The amount of filing with the Department for review. Self Regulatory Organizations; Notice fee may be rounded to the nearest Under Section 7, the current fee for of Filing and Immediate Effectiveness dollar. filings pursuant to NASD Rule 2710 is of Proposed Rule Change by the (b) There shall be an additional fee equal to $500 plus .01 percent of the National Association of Securities imposed for the filing of any proposed maximum aggregate offering Dealers, Inc. Relating to Fees for Filing amendment or other change to the price or other applicable value of all Documents Pursuant to NASD Rule documents initially filed with NASD securities registered on an SEC 2710 (Corporate Financing Rule— pursuant to the Corporate Financing registration statement or included on Underwriting Terms and Rule equal to .01% of the net increase any other type of offering document Arrangements) in the maximum aggregate offering price (where not filed with the SEC), but shall January 6, 2005. or other applicable value of all not exceed $30,500. Thus, under Pursuant to Section 19(b)(3) of the securities registered on an SEC Section 7, fees are currently capped Securities Exchange Act of 1934 registration statement, or any related with respect to offerings with an (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 Rule 462(b) registration statement, or aggregate offering price of $300 million notice is hereby given that on December reflected on any Rule 430A prospectus, or more. 3, 2004, the National Association of or included on any other type of offering In 1989, when the current fee Securities Dealers, Inc. (‘‘NASD’’) filed document. However, the aggregate of all structure was adopted, the $500 with the Securities and Exchange filing fees paid in connection with an minimum fee ensured that at least $500 Commission (‘‘SEC’’ or ‘‘Commission’’) SEC registration statement or other type would be charged for the smallest 5 the proposed rule change as described of offering document shall not exceed offerings. For larger offerings, a $30,500 in Items I, II, and III below, which Items [$30,500] $75,500. * * * * * 5 NASD supplemented the language included in this paragraph to reflect the historical purpose 8 17 CFR 200.30–3(a)(12). behind the fee structure. Telephone conversation 1 15 U.S.C. 78s(b)(3). 3 15 U.S.C. 78s(b)(3)(A)(ii). and e-mail correspondence between Shirley Weiss, 2 17 CFR 240.19b–4. 4 17 CFR 240.19b–4(f)(2). Associate General Counsel, NASD and Bradley VerDate jul<14>2003 17:46 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00065 Fmt 4703 Sfmt 4703 E:\FR\FM\13JAN1.SGM 13JAN1 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Notices 2441 cap was imposed (.01 percent of the filing of the proposed rule change for Electronic Comments aggregate offering price of $300 million immediate effectiveness. • plus a $500 minimum flat fee). Use the Commission’s Internet 2. Statutory Basis According to NASD, although the comment form (http://www.sec.gov/ rules/sro.shtml); or maximum fee was capped, NASD believes that the proposed rule • approximately 90 percent of all of the change is consistent with the provisions Send an e-mail to rule- offerings filed with NASD were at or of Section 15A(b)(5) of the Act, which [email protected]. Please include File below the cap (approximately 10 requires, among other things, that NASD Number SR–NASD–2004–177 on the percent of the offerings reviewed in rules provide for the equitable subject line. 1989 were larger than $300 million). allocation of reasonable dues, fees and Paper Comments According to NASD, a recent review of other charges among members and the corporate financing fees shows that issuers and other persons using any • Send paper comments in triplicate the current fee structure is wholly out facility or system that NASD operates or to Jonathan G. Katz, Secretary, of date. By 2004, because of the controls. NASD believes that the rule Securities and Exchange Commission, significant increase in the size of public change is consistent with Section 450 Fifth Street, NW., Washington, DC offerings over the intervening 15 years, 15A(b)(5) of the Act in that the proposed 20549–0609. NASD is only capturing approximately fees are reasonable based on the general All submissions should refer to File 75 percent of the offerings at or below increase in the size of public offerings Number SR–NASD–2004–177. This file the cap. Accordingly, NASD is and are equitably allocated among number should be included on the proposing to raise the current cap to members submitting proposed public subject line if e-mail is used. To help the place approximately 90 percent of the offerings of securities to the Department Commission process and review your offerings at or below the cap. The for compliance with the requirements of comments more efficiently, please use increase is from .01 percent of $300 NASD Rule 2710. only one method. The Commission will million to .01 percent of $750 million, post all comments on the Commission’s which would raise the cap from $30,500 B. Self-Regulatory Organization’s Internet Web site (http://www.sec.gov/ to $75,500 ($75,000, plus the $500 Statement on Burden on Competition rules/sro.shtml). Copies of the minimum flat fee). NASD believes the NASD does not believe that the submission, all subsequent proposed increase, which raises only proposed rule change will result in any amendments, all written statements the cap and not the rate imposed for the burden on competition that is not with respect to the proposed rule review of documents by the Department, necessary or appropriate in furtherance would be equitably allocated among change that are filed with the of the purposes of the Act, as amended. members underwriting the largest Commission, and all written communications relating to the public offerings. C. Self-Regulatory Organization’s proposed rule change between the Statement on Comments on the NASD proposes that the fee change Commission and any person, other than Proposed Rule Change Received From will be implemented on January 1, those that may be withheld from the 6 Members, Participants, or Others 2005. NASD plans to conduct an public in accordance with the annual review of costs and adjust the Written comments were neither provisions of 5 U.S.C. 552, will be corporate financing fee, if necessary, as solicited nor received. available for inspection and copying at of January 1 each year after appropriate the principal office of NASD. All consultation with the Board and rule III. Date of Effectiveness of the comments received will be posted filings with the Commission. NASD will Proposed Rule Change and Timing for without change; the Commission does announce the implementation date of Commission Action not edit personal identifying the proposed rule change in a Notice to The foregoing rule change has become information from submissions. You Members to be published no later than should submit only information that 30 days following Commission notice of effective pursuant to Section 19(b)(3)(A) of the Act and paragraph (f)(2) of Rule you wish to make available publicly. All submissions should refer to the File Owens, Attorney, Division of Market Regulation, 19b–4 thereunder because it establishes Commission, dated January 4, 2005. or changes a due, fee, or other charge. Number SR–NASD–2004–177 and 6 New filings received and accepted by the At any time within 60 days of the filing should be submitted on or before Department through its electronic filing system of the proposed rule change, the February 3, 2005. (COBRA) by 12 p.m., Eastern Time, on Thursday, December 30, 2004, will be processed under the Commission may summarily abrogate For the Commission, by the Division of current fee structure ($30,500 maximum fee). New such rule change if it appears to the Market Regulation, pursuant to delegated filings that have been rejected will be processed Commission that such action is authority.7 under the current fee structure if corrected, re- necessary or appropriate in the public submitted, and accepted by the Department by the J. Lynn Taylor, December 30, 2004 deadline. interest, for the protection of investors, Assistant Secretary. COBRADesk will be shut down and unavailable or otherwise in furtherance of the [FR Doc. E5–118 Filed 1–12–05; 8:45 am] for filings on Thursday, December 30, 2004, at 12 purposes of the Act. p.m., Eastern Time, to update COBRA and BILLING CODE 8010–01–P COBRADesk to accept the proposed new filing fee. IV. Solicitation of Comments COBRADesk will again be available to accept filings on Monday, January 3, 2005, at 8 a.m., Eastern Interested persons are invited to Time. COBRA will shut down at 6 p.m., Eastern Time, on Thursday, December 30, 2004, to permit submit written data, views and the Department to test the system on Friday, arguments concerning the foregoing, December 31, 2004. The Department expects that including whether the proposed rule COBRA will be accessible on Saturday, January 1, change is consistent with the Act. 2005. NASD will notify NASD users of system availability on the NASD Web site beginning on Comments may be submitted by any of December 1, 2004. the following methods: 7 17 CFR 200.30–3(a)(12). VerDate jul<14>2003 17:46 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00066 Fmt 4703 Sfmt 4703 E:\FR\FM\13JAN1.SGM 13JAN1 2442 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Notices SECURITIES AND EXCHANGE account and from $.25 to $.15 in any • Send an e-mail to rule- COMMISSION other account (i.e., firm and market [email protected]. Please include File maker accounts). However, OCC [Release No. 34–50992; File No. SR–OCC– Number SR–OCC–2004–23 on the 2004–23] neglected to change Rule 1106(a)(3), subject line. which was intended to track those Self-Regulatory Organizations; The thresholds. The purpose of this rule Paper Comments Options Clearing Corporation; Notice change is to correct the error by making • Send paper comments in triplicate a conforming, technical change to Rule of Filing and Immediate Effectiveness to Jonathan G. Katz, Secretary, 1106(a)(3). of a Proposed Rule Change Relating to Securities and Exchange Commission, OCC believes that the proposed rule a Conforming Change in Rule 450 Fifth Street, NW., Washington, DC 1106(a)(3) change is consistent with Section 17A of the Act, as amended, because it 20549–0609. January 7, 2005. facilitates the administration of an All submissions should refer to File Pursuant to Section 19(b)(1) of the existing rule. The proposed rule change Number SR–OCC–2004–23. This file Securities Exchange Act of 1934 is not inconsistent with the existing number should be included on the 1 (‘‘Act’’), notice is hereby given that on rules of OCC, including any other rules subject line if e-mail is used. To help the December 17, 2004, The Options proposed to be amended. Commission process and review your Clearing Corporation (‘‘OCC’’) filed with comments more efficiently, please use the Securities and Exchange (B) Self-Regulatory Organization’s only one method. The Commission will Commission (‘‘Commission’’) the Statement on Burden on Competition post all comments on the Commission’s proposed rule change as described in OCC does not believe that the Items I, II, and III below, which items Internet Web site (http://www.sec.gov/ proposed rule change would impose any rules/sro.shtml). Copies of the have been prepared primarily by OCC. burden on competition. The Commission is publishing this submission, all subsequent notice to solicit comments on the (C) Self-Regulatory Organization’s amendments, all written statements proposed rule change from interested Statement on Comments on the with respect to the proposed rule persons. Proposed Rule Change Received From change that are filed with the Members, Participants, or Others Commission, and all written I. Self-Regulatory Organization’s Written comments were not and are communications relating to the Statement of the Terms of Substance of proposed rule change between the the Proposed Rule Change not intended to be solicited with respect to the proposed rule change, and none Commission and any person, other than The proposed rule change makes a have been received. those that may be withheld from the conforming, technical change to OCC public in accordance with the III. Date of Effectiveness of the Rule 1106(a)(3). provisions of 5 U.S.C. 552, will be Proposed Rule Change and Timing for available for inspection and copying in II. Self-Regulatory Organization’s Commission Action Statement of the Purpose of, and the Commission’s Public Reference Statutory Basis for, the Proposed Rule The foregoing rule change has become Section, 450 Fifth Street, NW., Change effective pursuant to Section Washington, DC 20549. Copies of such 4 19(b)(3)(A)(i) of the Act and Rule 19b– filing also will be available for In its filing with the Commission, 5 4(f)(1) thereunder because it inspection and copying at the principal OCC included statements concerning constitutes a stated policy, practice or the purpose of and basis for the office of OCC and on OCC’s Web site at interpretation with respect to the http://www.optionsclearing.com. All proposed rule change and discussed any meaning, enforcement or administration comments received will be posted comments it received on the proposed of an existing rule. At any time within without change; the Commission does rule change. The text of these statements sixty days of the filing of the proposed may be examined at the places specified rule change, the Commission could have not edit personal identifying in Item IV below. OCC has prepared summarily abrogated such rule change if information from submissions. You summaries, set forth in sections (A), (B), it appeared to the Commission that such should submit only information that and (C) below, of the most significant action was necessary or appropriate in you wish to make available publicly. All 2 aspects of such statements. the public interest, for the protection of submissions should refer to File (A) Self-Regulatory Organization’s investors, or otherwise in furtherance of Number SR–OCC–2004–23 and should Statement of the Purpose of, and the purposes of the Act. be submitted on or before February 3, 2005. Statutory Basis for, the Proposed Rule IV. Solicitation of Comments Change For the Commission by the Division of Interested persons are invited to In August 2004 the Commission Market Regulation, pursuant to delegated submit written data, views, and authority.6 approved a proposed rule change that arguments concerning the foregoing, J. Lynn Taylor, reduced the exercise thresholds applied including whether the proposed rule to equity options for purposes of change is consistent with the Act. Assistant Secretary. exercise by exception processing as set Comments may be submitted by any of [FR Doc. E5–117 Filed 1–12–05; 8:45 am] forth in Rule 805.3 Specifically, the the following methods: BILLING CODE 8010–01–P thresholds were reduced from $.75 to $.25 in a clearing member’s customers’ Electronic Comments • Use the Commission’s Internet 1 15 U.S.C. 78s(b)(1). comment form (http://www.sec.gov/ 2 The Commission has modified parts of these statements. rules/sro.shtml) or 3 Securities Exchange Act Release No. 50178 (August 10, 2004), 69 FR 51343 (August 18, 2004) 4 15 U.S.C. 78s(b)(3)(A)(i). [File No. SR–OCC–2004–04]. 5 17 CFR 240.19b–4(f)(1). 6 17 CFR 200.30–3(a)(12). VerDate jul<14>2003 17:46 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00067 Fmt 4703 Sfmt 4703 E:\FR\FM\13JAN1.SGM 13JAN1 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Notices 2443 SECURITIES AND EXCHANGE (a) certain of their rules, including order include the following: 6 (1) CMTA COMMISSION handling rules, that promote information/Clearing OTP Holder or competition as well as investor OTP Firm; (2) Option symbol, [Release No. 34–50998; File No. SR–PCX– 2004–122] protection, and (b) certain of the rules expiration month, exercise price, and prohibiting anticompetitive conduct, type of option (call or put); (3) Side of Self-Regulatory Organizations; Order such as harassment, intimidation, market (buy or sell); (4) Quantity of Granting Accelerated Approval of refusals to deal and retaliation directed option contracts; (5) Any limit price, Proposed Rule Change by Pacific at market participants who sought to act stop price, or special conditions; (6) Exchange, Inc., Relating to the competitively. In addition, the Opening or closing transaction; (7) Time Implementation of a New Order Audit Commission found that the Options in force; (8) Account origin code; and (9) Trail System Exchanges failed to enforce compliance Solicited or unsolicited. with their trade reporting rules, which The details of each order that would January 7, 2005. promote transparency of the market and be required to be recorded upon receipt I. Introduction facilitate surveillance and enforcement if entered into the Electronic Tablet of other exchange rules and the Federal include the following: 7 (1) CMTA On December 14, 2004, the Pacific securities laws. information/Clearing OTP Holder or Exchange, Inc., (‘‘PCX’’ or ‘‘Exchange’’) As part of the Order, the Options Firm; (2) Option symbol, expiration filed with the Securities and Exchange month, exercise price, and type of Commission (‘‘SEC’’ or ‘‘Commission’’), Exchanges agreed to, and were ordered option (call or put); (3) Side of market pursuant to section 19(b)(1) of the to comply with, a variety of (buy or sell); (4) Quantity of option Securities Exchange Act of 1934 undertakings. Among other things, they contracts; (5) Any limit price, stop price, (‘‘Act’’),1 and Rule 19b–4 thereunder,2 a agreed to, and were ordered to, design or special conditions; and (6) Opening proposed rule change relating to the and implement an accurate, time- or closing transaction. creation of an electronic order audit sequenced, consolidated options audit The Exchange also proposes to add trail. The proposed rule change was trail system (‘‘COATS’’) that would interpretive language to make it clear published for comment in the Federal enable the Options Exchanges to that EOC and the Electronic Tablet are Register on December 22, 2004 for a 15- reconstruct markets promptly, approved formats for transmitting orders day comment period, which expired on effectively surveil them, and enforce for purposes of this Rule. In addition, January 6, 2005.3 The Commission order handling, firm quote, trading proposed PCX Rule 6.67(b) requires that received no comments on the proposed reporting and other rules. The Options orders sent to the Exchange for rule change. This order approves the Exchanges were required to complete execution must comply with the order proposed rule change on an accelerated this undertaking in five phases. The format requirements established by the basis. Options Exchanges have completed the Exchange relating to, among other first four phases. The final phase of the II. Background things, option symbol, expiration undertaking to implement COATS month, exercise price, type of option The proposed rule change is intended requires that each exchange incorporate (call or put), quantity of option to fulfill certain of the undertakings into its audit trail all non-electronic contracts, clearing member organization, contained in an order issued by the orders. This proposed rule change whether the order is to buy or sell, and Commission relating to the settlement of addresses that aspect of the undertaking. an enforcement action against the whether the order is market or limit. American Stock Exchange LLC, Chicago III. Description of Proposed Rule An exception to the requirement for Board Options Exchange, Inc., PCX, and Change recording order information into EOC or Philadelphia Stock Exchange, Inc., the Electronic Tablet is contained in (collectively ‘‘Options Exchanges’’) for The Exchange proposes to adopt new proposed PCX Rule 6.67(d). Under this failure to comply with their own rules PCX Rule 6.67(c), which would require proposed rule, if a disruption or and to enforce compliance with their that every OTP Holder or OTP Firm that malfunction to EOC or the Electronic own rules by their members and persons receives an order for execution on the Tablet or any other Exchange electronic associated with their members 4 as is Exchange immediately records the order processing system occurs, the EOC required by Section 19(g) of the Act.5 details of the order (including any or the Electronic Tablet entry The Order found that the Options modification of the terms of the order or requirement would be suspended upon Exchanges impaired the operations of cancellation of the order) into its the approval of two Trading Officials, the options market by: (1) Following a Electronic Order Capture (‘‘EOC’’) and the EOC/Electronic Tablet course of conduct under which they system, unless such order has been Contingency Reporting Procedures will refrained from multiply listing a large entered into the Exchange’s other be in effect pursuant to PCX Rule number of options; and (2) inadequately electronic order processing facilities 6.67(d)(1)(A).8 If the Exchange is still discharging their obligations as self- (e.g., orders sent electronically through able to process and disseminate quotes regulatory organizations by failing the Exchange’s MFI). OTP Holders and adequately to enforce compliance with OTP Firms would have two ways to 6 The Exchange represents that the order entry record the details of an order into EOC time and identification number are automatically assigned upon entry into EOC. 1 prior to representation in the trading 15 U.S.C. 78s(b)(1). 7 The Exchange also represents that the order 2 crowd: (1) Direct entry into the EOC 17 CFR 240.19b–4. entry time and identification number are 3 See Securities Exchange Act Release No. 50866 system, or (2) entry to an Electronic automatically assigned upon entry into the (December 14, 2004), 69 FR 76808. Tablet that enables the user to hand- Electronic Tablet. 4 See Order Instituting Public Administrative write the order information onto the 8 Under the proposed rule, OTP Holders and OTP Proceedings Pursuant to Section 19(h)(1) of the tablet, which converts the information Firms must use a backup supply of tickets to record Securities Exchange Act of 1934, Making Findings the details of the order received through non- and Imposing Sanctions, Securities Exchange Act into an electronic format. electronic means and time stamp the order of Release No. 43268 (September 11, 2000) and The details of each order that would events. Once the disruption or malfunction has Administrative Proceeding File 3–10282 (the been corrected, as determined by one Floor Official, ‘‘Order’’). be required to be recorded upon receipt OTP Holders and OTP Firms must input all orders 5 15 U.S.C. 78s(g). if directly entered into the EOC system into an EOC device using the ‘‘as-of’’ field. VerDate jul<14>2003 17:46 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00068 Fmt 4703 Sfmt 4703 E:\FR\FM\13JAN1.SGM 13JAN1 2444 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Notices accurately, then any orders received by rules be designed to promote just and proposal may be implemented on a the Exchange would be processed equitable principles of trade, to remove timely basis to ensure prompt manually through the use of paper impediments and to perfect the compliance with the undertakings tickets. In such circumstances, all other mechanism of a free and open market contained in the Commission’s Order. Exchange rules governing options and a national market system, and in V. Conclusion trading would remain in effect. general, to protect investors and the Accordingly, the Exchange proposes to public interest. For all of the aforementioned reasons, retain its existing rules that are The Commission believes that the the Commission finds that the proposed applicable to the manual processing of rules as proposed should allow the rule change is consistent with the order tickets. Exchange to comply with its obligations requirements of the Act and the rules Current PCX Rule 6.68(a) requires under the Order in that they should and regulations thereunder applicable to OTP Holder and OTP Firms to maintain result in the creation of an audit trail a national securities exchange. and preserve certain information items that incorporates manual orders sent to It is therefore ordered, pursuant to relating to the terms of each option PCX. Specifically, the proposed rule section 19(b)(2) of the Act,11 that the order. The Exchange proposes to make change requires that PCX members enter proposed rule change (SR–PCX–2004– minor technical changes to the text by certain details immediately upon 122) is approved on an accelerated renaming and renumbering certain receipt, prior to representation of the basis. information items enumerated in the order, into either EOC or the Electronic For the Commission, by the Division of Rule for clarity. The Exchange also Tablet, which the Commission believes Market Regulation, pursuant to delegated proposes language to specify that the should result in an accurate, time- authority.12 Exchange would be required to maintain sequenced record of orders. Jill M. Peterson, and preserve all electronic orders on The Commission also believes that the Assistant Secretary. behalf of OTP Holders and OTP Firms. Exchange’s plan for recording order The proposed rule change does not details in the event of a systems outage [FR Doc. E5–126 Filed 1–12–05; 8:45 am] replace existing requirements for or malfunction is reasonable. In the BILLING CODE 8010–01–P recording orders contained in this Rule. event of a systems outage or The Exchange further proposes to malfunction, floor brokers would revert SECURITIES AND EXCHANGE amend PCX Rule 6.68(b) to make it clear to the use of trade tickets and would COMMISSION that OTP Holders and OTP Firms would record on those tickets the times that be required to comply with their various events occur in the life of the [Release No. 34–50997; File No. SR–Phlx– recordkeeping obligations for orders order. Further, the Exchange would 2003–40] excepted from the EOC/Electronic ensure that the information recorded on Tablet requirements. trade tickets is entered into the Self-Regulatory Organizations; Order Finally, the Exchange proposes to add Exchange’s electronic systems in a Approving Proposed Rule Change by a Commentary .01 to PCX Rule 6.67, timely manner so that it can be the Philadelphia Stock Exchange, Inc. which provides that Cabinet Trades and incorporated into the electronic audit and Notice of Filing and Order FLEX options are exempt from the EOC trail. Granting Accelerated Approval to and Electronic Tablet Entry The Commission notes that the Amendments No. 2, 3, 4 and 5 Relating Requirements as set forth in PCX Rule Exchange has acknowledged the need to the Options Floor Broker 6.67(c). However, such trades would be for effective and proactive surveillance Management System required to be processed using manual for activities such as trading ahead and January 7, 2005. time stamped order tickets. The PCX front-running in connection with the would maintain a separate record of creation of its audit trail. The Exchange I. Introduction represents that it will implement quotes, orders and transactions related On June 2, 2003, the Philadelphia proactive and effective surveillance to such trades in the same format as the Stock Exchange, Inc. (‘‘Phlx’’ or procedures for violations of Exchange COATS data and would make such ‘‘Exchange’’), filed with the Securities information available upon Commission rules and Federal securities laws, and Exchange Commission request. including, but not limited to, rules (‘‘Commission’’ or ‘‘SEC’’) a proposed The system entry requirement prohibiting trading ahead and front proposed in this rule change would running, related to the entry of customer rule change pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 become completely operative on January orders into the EOC system. The 1 2 10, 2005. Commission views effective (‘‘Act’’) and Rule 19b–4 thereunder, to surveillance as critical to the integrity of adopt new rules relating to the IV. Discussion COATS and expects that the Exchange implementation of its Floor Broker After careful consideration, the will inform the Commission of any Management System (‘‘FBMS’’ or Commission finds that the proposed problems it encounters in conducting ‘‘System’’). On July 28, 2003, the rule change is consistent with Act and effective surveillance. Exchange filed Amendment No. 1 to the the rules and regulations thereunder The Commission finds good cause for proposed rule change. On August 7, applicable to a national securities accelerating approval of the proposed 2003, the proposed rule change, as exchange.9 In particular the rule change prior to the thirtieth day amended, was published for comment Commission finds that the proposed after the date of the publication of in the Federal Register to solicit 3 rule change is consistent with Section notice thereof in the Federal Register. comment from interested persons. No 6(b)(5) of the Act,10 which requires The Commission notes that the comments were received. among other things, that the Exchange’s proposed rule change was noticed for a 11 15 U.S.C. 78s(b)(2). 15-day comment period and that no 12 9 17 CFR 200.30–3(a)(12). In approving this proposal, the Commission has comments were received. The considered the proposed rule’s impact on 1 15 U.S.C. 78s(b)(1). efficiency, competition and capital formation. 15 Commission believes that it is 2 17 CFR 240.19b–4. U.S.C. 78c(f). appropriate to accelerate approval of the 3 See Securities Exchange Act Release No. 48265 10 15 U.S.C. 78f(b)(5). proposed rule change so that the (July 31, 2003), 68 FR 47137. VerDate jul<14>2003 17:46 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00069 Fmt 4703 Sfmt 4703 E:\FR\FM\13JAN1.SGM 13JAN1 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Notices 2445 On August 1, 2003, the Exchange accelerated approval to Amendments exchange incorporate into its audit trail submitted Amendment No. 2 to the No. 2, 3, 4, and 5. all non-electronic orders. This proposed proposed rule change.4 On August 15, rule change addresses that aspect of the II. Background 2003, the Exchange submitted undertaking. Amendment No. 3 to the proposed rule The proposed rule change is intended III. Description change.5 On October 9, 2003, the to fulfill certain of the undertakings Exchange submitted Amendment No. 4 contained in an order issued by the The Exchange proposes to effect rule to the proposed rule change.6 On Commission relating to the settlement of changes on a permanent basis to support December 14, 2004, the Exchange an enforcement action against the the implementation of its new system, submitted Amendment No. 5 to the American Stock Exchange LLC, Chicago known as FBMS. FBMS would create an proposed rule change.7 This order Board Options Exchange, Inc., Pacific accurate, time-sequenced electronic approves the proposed rule change, as Exchange, Inc. and Phlx (collectively options order audit trail for manual amended, and notices and grants ‘‘Options Exchanges’’) for failure to orders received by the Exchange’s floor comply with their own rules and to brokers enforce compliance with their own rules 4 See letter from Richard S. Rudolph, Director and A. Operation of FBMS Counsel, Phlx, to Nancy J. Sanow, Assistant by their members and persons Director, Division of Market Regulation associated with their members 8 as is FBMS is a component of AUTOM 10 (‘‘Division’’), Commission, dated July 31, 2003. In required by Section 19(g) of the Act.9 designed to enable floor brokers and/or Amendment No. 2, the Exchange represents that it The Order found that the Options their employees to enter, route and intends to implement supplementary surveillance and examination programs designed to address, Exchanges impaired the operations of report transactions stemming from among other things, trading ahead and front- the options market by: (1) Following a option orders received on the Exchange. running. course of conduct under which they Floor brokers or their employees would 5 See letter from Richard S. Rudolph, Director and refrained from multiply listing a large access the System through an electronic Counsel, Phlx, to Jennifer Colihan, Special Counsel, Division, Commission, dated August 14, 2003. In number of options; and (2) inadequately Exchange-provided handheld device on Amendment No. 3, the Exchange proposes to clarify discharging their obligations as self- which they would have the ability to that in the event that floor brokers or their regulatory organizations by failing enter the required information as set employees are required to record order information adequately to enforce compliance with forth in proposed Phlx Rule 1063(e), on trade tickets pursuant to proposed Phlx Rule 1063(e) due to a systems malfunction, they must (a) certain of their rules, including order either from their respective posts on the enter the information recorded on trade tickets into handling rules, that promote options trading floor or in the trading AUTOM for inclusion in the electronic audit trail. competition as well as investor crowd. In Amendment No. 3, the Exchange further protection, and (b) certain of the rules Specifically, proposed Phlx Rule proposes to exempt non-multiply listed index options, foreign currency, and other options traded prohibiting anticompetitive conduct, 1063(e) sets forth the requirement that a exclusively on the Exchange other than equity such as harassment, intimidation, floor broker or such floor broker’s options from the requirements of proposed Phlx refusals to deal and retaliation directed employees must, contemporaneously Rule 1063. at market participants who sought to act upon receipt of an order and prior to the 6 See letter from Richard S. Rudolph, Director and competitively. In addition, the representation of such an order in the Counsel, Phlx, to Jennifer Colihan, Special Counsel, Division, Commission, dated October 9, 2003. In Commission found that the Options crowd, record the required information Amendment No. 4, the Exchange proposes to delete Exchanges failed to enforce compliance regarding all option orders represented ‘‘options traded on the Exchange other than equity with their trade reporting rules, which by such floor broker onto the System. options’’ from the list of products it proposed to promote transparency of the market and Additionally, the proposed rule change exempt from the requirements of proposed Phlx Rule 1063(e)(ii). The Exchange also commits to facilitate surveillance and enforcement provides that upon the execution of store information regarding products exempt from of other exchange rules and the federal such an order, the floor broker would be the requirements of proposed Phlx Rule 1063 in the securities laws. required to enter the time of execution same format used for non-exempt products. Further, As part of the Order, the Options of the trade.11 the Exchange proposes to amend proposed Phlx Rule 1063 to provide that, until February 1, 2004, Exchanges agreed to, and were ordered Proposed Phlx Rule 1063(e) would the requirement that floor brokers record order to comply with, a variety of require floor brokers or their employees information into the FBMS prior to representing undertakings. Among other things, they to record the following specific such orders in the trading crowd shall not apply to agreed to, and were ordered to, design information onto the System upon complex orders or other orders if a Floor Official makes a determination that there was an influx of and implement an accurate, time- receipt of an order: (i) The order type orders at the time the floor broker received the sequenced, consolidated options audit (i.e., customer, firm, broker-dealer); (ii) order such that entry of the information required by trail system (‘‘COATS’’) that will enable the option symbol; (iii) buy, sell, or the rule is not reasonably feasible. The Exchange the Options Exchanges to reconstruct cancel; (iv) call, put, complex (i.e., also included provisions for documenting such a decision by a Floor Official. markets promptly, effectively surveil spread, straddle), or contingency order 7 In Amendment No. 5, the Exchange proposes to them and enforce order handling, firm delete the provisions in proposed Phlx Rule 1063 quote, trading reporting and other rules. 10 AUTOM is the Exchange’s electronic order that provided that until February 1, 2004, the The Options Exchanges were required to delivery, routing, execution and reporting system, requirement that floor brokers record order complete this undertaking in five which provides for the automatic entry and routing information into the FBMS prior to representing of equity option and index option orders to the such orders in the trading crowd shall not apply to phases. The Options Exchanges have Exchange trading floor. Orders delivered through complex orders or other orders if a Floor Official completed the first four phases. The AUTOM may be executed manually, or certain makes a determination that there was an influx of final phase of the undertaking to orders are eligible for AUTOM’s automatic orders at the time the floor broker received the implement COATS requires that each execution feature, AUTO–X. Equity option and order such that entry of the information required by index option specialists are required by the the rule is not reasonably feasible. Amendment No. Exchange to participate in AUTOM and its features 5 also clarifies how the Exchange would handle 8 See Order Instituting Public Administrative and enhancements. Option orders entered by order data regarding Foreign Currency Options, Proceedings Pursuant to Section 19(h)(1) of the Exchange members into AUTOM are routed to the Customized Foreign Currency Options and FLEX Securities Exchange Act of 1934, Making Findings appropriate specialist unit on the Exchange trading Options, and how the FBMS would identify the and Imposing Sanctions, Securities Exchange Act floor. broker-dealer submitting an order. Finally, Release No. 43268 (September 11, 2000) and 11 Once the floor broker executes an order using Amendment No. 5 provides that the requirements Administrative Proceeding File 3–10282 (the the System, the time of execution would be of proposed Phlx Rule 1063(e) would take effect on ‘‘Order’’). automatically recorded into the electronic audit January 10, 2005. 9 15 U.S.C. 78s(g). trail. VerDate jul<14>2003 17:46 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00070 Fmt 4703 Sfmt 4703 E:\FR\FM\13JAN1.SGM 13JAN1 2446 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Notices as described in Phlx Rule 1066; (v) ‘‘BD’’ order for the purposes of the trading crowd by the floor broker number of contracts; (vi) limit price or Exchange’s yielding requirements. automatically upon execution. Once a market order or, in the case of a trade involving a floor broker is C. System Malfunctions complex order, net debit or credit, if executed in the trading crowd, such a applicable; (vii) whether the transaction Proposed Phlx Rule 1063 would floor broker would simply indicate on is to open or close a position; and (viii) require that, in the event of a the system that the order was executed, The Options Clearing Corporation malfunction in the FBMS, floor brokers which would automatically generate an (‘‘OCC’’) clearing number of the broker- would be required to record the electronic report. dealer that submitted the order. These required information on trade tickets, The Exchange is also proposing enumerated elements of an order are and would not be permitted to represent amendments to Phlx Rule 1051 and currently written on trade tickets; the an order for execution which has not OFPA F–2 in order to address the proposed new rule would simply been time stamped with the time of situation in which a floor broker who require them to be entered onto the entry on the trading floor. Such trade initiates a transaction executes all or a System. Upon entry of the order into the tickets would be required to be time portion of the transaction against a System, the System would stamped upon the execution of such an contra-side limit order on the automatically record the time of entry, order. This reflects the current practice specialist’s limit order book.13 and will assign an identification code of recording information concerning Currently, in such a situation, the that is particular to that order for orders represented and executed by specialist manually executes the booked purposes of the electronic audit trail. options floor brokers onto trade tickets, limit order on the AUTOM System With regard to FLEX, Foreign and using time stamps to record the against the order represented by the Currency, and Customized Foreign time of receipt of an order, and the time floor broker. Upon such manual Currency Options, under proposed Phlx of execution. Once it is determined that execution, the transaction is reported Rule 1063(f), floor brokers or their such malfunction no longer exists, floor automatically by AUTOM. The proposed amendment would employees would be required to enter brokers or their employees would be require that when an order represented the above-described data elements into required to enter the required by a floor broker is executed against a the Exchange’s electronic audit trail in information that is recorded on such limit order on the book, the specialist the same electronic format as the trade tickets into AUTOM, using the must report or ensure that the portion of required information for equity and FBMS, for inclusion in the electronic the transaction represented by such index options. Floor brokers or their audit trail. specialist is reported to the tape. The employees must enter the required D. Clearing Information purpose of this provision is to address information for FLEX, Foreign Currency the situation in which an order and Customized Foreign Currency Proposed Phlx Rule 1063(e) would represented by a floor broker executes a Options into the electronic audit trail on require floor brokers or their employees booked limit order is executed by the the same business day that a specific to enter clearing information onto the specialist, in which case AUTOM event surrounding the lifecycle of an FBMS no later than five minutes after automatically reports the execution of order in FLEX, Foreign Currency, or the execution of a trade. Such clearing the booked limit order. Thus, the floor Customized Foreign Currency Options information would be required to broker in this situation would not be (including, without limitation, orders, include the account number(s) of each required to report that portion of the price or size changes, execution or contra-side participant to the floor transaction on the System, despite the cancellation) occurs. broker’s trade in the crowd and the number of contracts bought or sold, fact that the floor broker involved may B. Ticket Marking Requirements and the which would be immediately reported have in fact ‘‘initiated’’ the transaction. System via AUTOM to the clearing firm of each If the booked limit order represents the entire contra-side to the order Currently, various Exchange rules crowd participant involved in the trade. represented by the floor broker, the require floor brokers to mark trade Once the clearing information is specialist would be required to report tickets with certain notations, reported, crowd participants involved in the entire transaction. If the booked depending on the type of trade and the the trade would receive a position limit order represents a portion of the crowd participants involved. The update, enabling them to know their transaction, the specialist would be Exchange is proposing to amend its respective positions on a real-time basis required to report that portion of the rules concerning the ticket marking and to make appropriate, informed and transaction, while the floor broker requirements so that floor brokers timely hedging and transactional initiating the transaction would be would be required to enter similar decisions. responsible for reporting the remaining notations onto the System. For example, E. Trade Reporting portion of the transaction he or she the Exchange is proposing to amend Currently, Exchange members or initiated. Phlx Rule 1015 and corresponding member organizations that initiate an OFPA A–11 to require that a floor IV. Discussion options transaction are required to broker or his employees make the report the execution of such trades After careful consideration, the appropriate notice in the FBMS when within 90 seconds of the execution.12 Commission finds that the proposed an order is for the account of a broker/ The FBMS includes a feature that would rule change is consistent with Act and dealer. Also, by way of example, the report transactions executed in the the rules and regulations thereunder Exchange is proposing to amend Phlx applicable to a national securities OFPA C–3 to require in the situation in 12 Phlx Rule 1051 and OFPA F–2 currently which a floor broker represents an order provide that a member or member organization 13 The electronic ‘‘limit order book’’ is the for a market maker on another national initiating an options transaction, whether acting as Exchange’s automated specialist limit order book, securities exchange, such floor broker or principal or agent, must report or ensure that the which automatically routes all unexecuted AUTOM transaction is reported within 90 seconds of the orders to the book and displays orders real-time in his employees must so indicate on the execution to the tape. Transactions not reported order of price-time priority. Orders not delivered FBMS and must ensure that the order is within 90 seconds after execution shall be through AUTOM may also be entered onto the limit represented in the trading crowd as a designated as late. order book. See Phlx Rule 1080, Commentary .02. VerDate jul<14>2003 17:46 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00071 Fmt 4703 Sfmt 4703 E:\FR\FM\13JAN1.SGM 13JAN1 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Notices 2447 exchange.14 In particular the information into the FBMS, which will provisions of 5 U.S.C. 552, will be Commission finds that the proposed be designed to address, among other available for inspection and copying in rule change is consistent with Section things, trading ahead and front-running. the Commission’s Public Reference 6(b)(5) of the Act,15 which requires The Commission views effective Section, 450 Fifth Street, NW., among other things, that the Exchange’s surveillance relating to the use of the Washington, DC 20549. Copies of such rules be designed to promote just and FBMS as critical to the integrity of filing also will be available for equitable principles of trade, to remove COATS and expects that the Exchange inspection and copying at the principal impediments and to perfect the will inform the Commission of any office of the Exchange. All comments mechanism of a free and open market problems it encounters in conducting received will be posted without change; and a national market system, and in effective surveillance. the Commission does not edit personal general, to protect investors and the The Commission finds good cause for identifying information from public interest. approving Amendments No. 2, 3, 4, and submissions. You should submit only The Commission believes that the 5 to the proposed rule change, prior to information that you wish to make rules as proposed should allow the the thirtieth day after the date of the available publicly. All submissions Exchange to comply with its obligations publication of notice thereof in the should refer to SR–Phlx–2003–40 and under the Order in that they will result Federal Register. The Commission notes should be submitted on or before in the creation of an audit trail that that the amendments would more February 3, 2005. incorporates manual orders sent to Phlx. closely conform the Phlx’s rules to those VI. Conclusion Specifically, the proposed rules would of the other options exchanges, the rules require that Phlx floor brokers enter for which were subject to notice and For all of the aforementioned reasons, certain order details contemporaneously comment. The Commission believes that the Commission finds that the proposed upon receipt and prior to representation because the proposed amendments raise rule change is consistent with the into the FBMS. Once an order is entered no new issues of regulatory concern, it requirements of the Act and the rules into the FBMS, the System would is appropriate to accelerate approval of and regulations thereunder applicable to automatically timestamp the order as these amendments so that the rules may a national securities exchange. received by the Exchange and assign it be implemented on a timely basis. It is therefore ordered, pursuant to Section 19(b)(2) of the Act,16 that the a unique order identification number, V. Solicitation of Comments which allows the system to track the proposed rule change (SR–Phlx–2003– order through its life on the floor up to Interested persons are invited to 40), as amended, is approved, and the point of execution. Upon execution, submit written data, views, and Amendments No. 2, 3, 4, and 5 are the floor broker would enter the time arguments concerning the foregoing, approved on an accelerated basis. the execution took place. Floor brokers including whether the proposed rule For the Commission, by the Division of or their employees would then be change is consistent with the Act. Market Regulation, pursuant to delegated required to enter clearing information Comments may be submitted by any of authority.17 onto the FBMS no later than five the following methods: Jill M. Peterson, minutes after the execution of a trade. Electronic Comments Assistant Secretary. The Commission also believes that the • Use the Commission’s Internet [FR Doc. E5–123 Filed 1–12–05; 8:45 am] Exchange’s plan for recording order comment form http://www.sec.gov/ BILLING CODE 8010–01–P details in the event of a systems outage rules/sro.shtml; or or malfunction is reasonable. In the • Send an E-mail to rule- event of a systems outage or [email protected]. Please include SR– SOCIAL SECURITY ADMINISTRATION malfunction, floor brokers would revert Phlx–2003–40 on the subject line. to use of trade tickets and would record Demonstration Project for Direct on those tickets the times that various Paper Comments Payment to Non-Attorney events occur in the life of the order. • Send paper comments in triplicate Representatives Further, the Exchange would ensure to Jonathan G. Katz, Secretary, AGENCY: that the information recorded on trade Social Security Administration Securities and Exchange Commission, (SSA). tickets is entered into AUTOM so that 450 Fifth Street, NW., Washington, DC ACTION: Notice. it can be incorporated into the 20549–0609. All submissions should electronic audit trail. refer to SR–Phlx–2003–40. This file SUMMARY: Section 303 of the Social Finally, the Commission notes that number should be included on the Security Protection Act of 2004 (SSPA), the Exchange acknowledges the need for subject line if e-mail is used. To help the Public Law No. 108–203, requires the effective and proactive surveillance for Commission process and review your Commissioner of Social Security (the activities such as trading ahead and comments more efficiently, please use Commissioner) to develop and front-running. The Exchange represents only one method. The Commission will implement a five-year nationwide that it currently conducts automated post all comments on the Commission’s demonstration project that will extend surveillance for such activities and will Internet Web site http://www.sec.gov/ to certain non-attorney representatives incorporate a review of order entry into rules/sro.shtml. Copies of the of claimants under titles II and XVI of the System as part of such surveillance. submission, all subsequent the Social Security Act (the Act) the Further, the Exchange states that it also amendments, all written statements option to have approved intends to implement supplementary with respect to the proposed rule representatives’ fees withheld and paid surveillance and examination programs change that are filed with the directly from a beneficiary’s past-due related to the requirement to enter order Commission, and all written benefits. Currently, this option is communications relating to the available only to representatives who 14 In approving this proposal, the Commission has proposed rule change between the considered the proposed rule’s impact on are attorneys. Non-attorney efficiency, competition and capital formation. 15 Commission and any person, other than U.S.C. 78c(f). those that may be withheld from the 16 15 U.S.C. 78s(b)(2). 15 15 U.S.C. 78f(b)(5). public in accordance with the 17 17 CFR 200.30–3(a)(12). VerDate jul<14>2003 17:46 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00072 Fmt 4703 Sfmt 4703 E:\FR\FM\13JAN1.SGM 13JAN1 2448 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Notices representatives who wish to participate the demonstration project. A • Names and the last four digits of the in the demonstration project must meet competitive process for selecting a Social Security numbers of five the prerequisites specified in section contractor is underway. We will provide claimants for whom the applicant has 303 of the SSPA, and any additional updated information regarding the provided representational services and prerequisites that the Commissioner contract award, and further information the dates of such services (see section 4. may prescribe. The purpose of this about the prerequisites process (e.g., below for details); and notice is to provide information about when and how to apply) at our Web site • Fee payment of $1000 (see below). the prerequisites that non-attorney at http://www.socialsecurity.gov. Persons who fail to have their representatives will be required to The SSPA also requires non-attorney completed package materials satisfy and about our plans for representatives to take continuing postmarked by the application deadline administering the prerequisites process. education classes, including courses in will have their applications rejected. We will post further details about the ethics and professional conduct. This However, they may re-apply to prerequisites process (e.g., when and requirement will pertain to those non- participate in the demonstration project how to apply) on our Web site at attorney representatives who have been during a subsequent application period. http://www.socialsecurity.gov when found eligible to participate in the 2. Application fee: SSPA section they become available. demonstration project. The SSPA gives 303(c)(1) provides that the FOR FURTHER INFORMATION CONTACT: us the authority to determine the Commissioner may assess applicants a Joanne Butler, Social Security minimum amount of continuing reasonable fee to cover the costs of Administration, Office of Hearings and education required, and the standards administering the prerequisites process. Appeals, Suite 1608, 5107 Leesburg for the classes. We intend to issue a We have determined that: Pike, Falls Church, VA 22041–3255, subsequent Federal Register notice to • The fee will be $1000 (in U.S. (703) 605–8314. address this requirement. dollars) per applicant; • SUPPLEMENTARY INFORMATION: Section 1. Application periods and Applicants must include the fee 303 of the SSPA sets forth certain completion of an application: We intend payment with their application package; minimum prerequisites that non- to structure the contract for • The fee will be non-refundable attorney representatives must satisfy to administering the prerequisites process except in the following circumstance: If be eligible to participate in the for the five-year demonstration project the contractor fails to administer an demonstration project on direct with an initial year and four option examination and the failure is due to the payment of fees to non-attorneys, and years. There will be two application contractor’s fault, the contractor will be allows the Commissioner to establish periods during the initial year, with the required, as a performance penalty, to additional prerequisites that must be second examination to take place four refund the fee to those affected satisfied. Section 303 also provides that months after the first examination. applicants who do not take the the Commissioner may assess During the four option years, there will rescheduled examination; representatives reasonable fees to cover be one application period and • Acceptable forms of fee payment our costs in administering the examination per option year. A non- will be by certified check, money order, prerequisites process. attorney representative who is found not a check drawn from a private firm’s In this notice, we provide certain to be eligible to participate during one account, or credit card; details of the application process and application period will be able to re- • Applicants will pay their fees to the announce that satisfaction of a apply during any subsequent contractor; and representational experience requirement application period. • Applicants who are not found to be will be an additional prerequisite for A person applying to participate in eligible may reapply during the next participating in the demonstration the demonstration project will have to application phase, but they will pay the project. The notice also advises the complete an application form. We full fee upon reapplying. public of the amount of the fee that intend to have the form available online 3. Education and equivalent applicants will be assessed. In addition, at the contractor’s Web site for qualifications: SSPA section 303(b)(1) we provide details concerning the applicants to print out, sign (in ink), and establishes a bachelor’s degree from an specific criteria that we will use to submit. Within four weeks of the accredited institution of higher evaluate whether the applicant has opening of the application period, the education as a prerequisite for satisfied the following prerequisites: applicant must submit a complete participating in the demonstration • Qualifications equivalent to a application package. A complete project. However, this section also bachelor’s degree; application package consists of the permits applicants who do not have a • Experience in representing completed application form and: bachelor’s degree to satisfy this claimants before SSA; • Receipt from the applicant’s prerequisite based on combinations of • Liability insurance or equivalent insurance company for professional training and work experience that the insurance adequate to protect claimants liability coverage or equivalent Commissioner determines to be in the event of malpractice by the insurance in the minimum amount and equivalent to a bachelor’s degree. We representative; type specified by us (see below); have determined that any of the • Criminal background check that • Official college and/or university following combinations of education ensures a representative’s fitness to transcript(s) showing the stamp or and experience shall be equivalent to practice before the Commissioner; and raised seal of the institution, or having a bachelor’s degree: • Examination testing knowledge of otherwise establishing that it is an • If the applicant does not have a the relevant provisions of the Act and official copy; bachelor’s degree, but has three years or the most recent developments in • Official high school transcript or more of undergraduate study at an Agency and court decisions affecting GED certificate or an equivalent accredited institution of higher learning, titles II and XVI of the Act. graduation record from an official the applicant must have at least one We anticipate that we will use a source (e.g., board of education), if the year of relevant professional experience commercial contractor to assist us in applicant has not attended a college or (as defined below), at least six months determining eligibility to participate in university, of which must have involved claims for VerDate jul<14>2003 17:46 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00073 Fmt 4703 Sfmt 4703 E:\FR\FM\13JAN1.SGM 13JAN1 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Notices 2449 benefits under title II or title XVI of the to participate in this demonstration determined to be adequate to protect Act; project. In addition, attorneys who are claimants in the event of malpractice by • If the applicant has at least two, but suspended or disbarred by a State or the non-attorney representative. We less than three years of undergraduate Federal court or disqualified from have determined that applicants must study at an accredited institution of appearing before a Federal agency or have professional liability insurance for higher learning, the applicant must have program will be ineligible to participate coverage of errors and omissions at least two years of relevant in this demonstration project. committed by the non-attorney professional experience, at least one 4. Representational experience representative, with a minimum total year of which must have involved requirement: SSPA section 303(b) annual amount of coverage of $1 million claims for benefits under title II or title permits the Commissioner to establish (for all incidents in that year) plus XVI of the Act; additional prerequisites. We have coverage of $250,000 per incident. The • If the applicant has at least one, but determined that all participants in the insurance policy must be underwritten less than two years of undergraduate demonstration project (with or without by a firm that is licensed to provide study at an accredited institution of a bachelor’s degree) must have insurance in the State in which the non- higher learning, the applicant must have demonstrated experience in attorney representative conducts at least three years of relevant representing claimants before SSA. business. The policy also must provide professional experience, at least two Applicants must meet the following coverage for professional liability years of which must have involved minimum representational experience insurance claims made in those States claims for benefits under title II or XVI requirement: in which the non-attorney of the Act; or • The applicant must have provided • representative represents claimants If the applicant has less than one representational services as the before us. year of undergraduate study at an appointed representative for five An applicant who fails to submit accredited institution of higher learning, claimants within a 24-month period; proof of the required insurance before or no undergraduate education, the • The services may include the application period closes shall be applicant must have received a high representing the claimant at the time at precluded from establishing, based on school diploma or GED certificate and which SSA decided the case at any his or her current application, eligibility have at least four years of relevant administrative level or, in cases that to take the examination and to professional experience, at least two have not yet been decided, appearing as participate in the demonstration project. years of which must have involved the claimant’s representative at a However, the applicant may re-apply to claims for benefits under title II or title hearing before an SSA Administrative participate in the demonstration project XVI of the Act. Law Judge (ALJ); and during a subsequent application period. Relevant professional experience (for • The 24-month period must occur Non-attorney representatives who purposes of establishing qualifications within the 60 months preceding the establish eligibility to participate in the equivalent to a bachelor’s degree) is month in which the application was demonstration project will be required work through which the applicant has filed. to maintain their insurance coverage in demonstrated familiarity with medical The following is an example of how order to continue to receive direct fee reports and an ability to describe and to calculate the 24- and 60-month payments from SSA. assess mental and/or physical periods for establishing representational 6. Criminal background investigation: limitations. Such experience may be experience: SSPA section 303(b)(4) sets forth a • from the fields of: Teaching, counseling The applicant files his or her requirement for a criminal background or guidance, social work, personnel application in March 2005. check of each non-attorney • management, public employment The 60-month period begins on representative who applies to service, and/or nursing or other health March 1, 2000, and ends on February participate in the demonstration project care professional services. Any work 28, 2005 (the last day of the month to ensure his or her fitness to practice involving claims for benefits under title before the filing of the application). • before us. We will reject any applicant II or title XVI of the Act shall also be The 24-month period can occur at who: defined as relevant professional any time between March 1, 2000, and • Has been suspended or disqualified experience. We intend to have the February 28, 2005. For example, the from practice before SSA; contractor post on its Web site applicant would meet the requirement if • Has had a judgment or lien assessed additional information regarding he or she served as the appointed against him/her by a civil court for qualifying professional experience. representative for five separate malpractice and/or fraud; An applicant who fails to submit claimants during the period from • Has had a felony conviction; proof of a bachelor’s degree or January 2001 through December 2002. • Engages in substantial equivalent qualifications before the Applicants are required to submit misrepresentation in submitting his or application period closes shall be with their applications the names and her application and/or supporting precluded from establishing, based on the last four digits of the Social Security materials for the application; his or her current application, eligibility numbers of five claimants for whom the • Fails to pass an SSA administrative to take the examination and to applicant provided representational records check (check of SSN, etc.); or participate in the demonstration project. services during the appropriate 24- • Fails to provide documentation as However, the applicant may re-apply to month period. Applicants also are requested by SSA’s contractor to participate in the demonstration project required to provide the dates of their perform the criminal background during a subsequent application period. service for each applicant (e.g., date of investigation. An applicant may possess a law the hearing before the SSA ALJ). An applicant who fails the criminal degree (e.g., juris doctor); however, 5. Insurance requirement: SSPA background investigation will have the attorneys who already qualify to have section 303(b)(3) sets forth a opportunity to protest that finding to us. their approved representatives’ fees paid requirement that non-attorney Our action in response to the protest directly from their clients’ past-due participants have professional liability will be final and not subject to appeal. benefits pursuant to sections 206 and insurance, or equivalent insurance, 7. Passing an examination: SSPA 1631(d)(2) of the Act will be ineligible which the Commissioner has section 303(b)(2) requires that VerDate jul<14>2003 17:46 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00074 Fmt 4703 Sfmt 4703 E:\FR\FM\13JAN1.SGM 13JAN1 2450 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Notices applicants pass an examination testing DEPARTMENT OF STATE DEPARTMENT OF STATE their knowledge of the relevant [Public Notice 4930] provisions of the Act and the most [Public Notice 4956] recent developments in Agency and Notice of Meeting—United States court decisions affecting titles II and Culturally Significant Objects Imported International Telecommunication XVI of the Act. With the assistance of for Exhibition Determinations: ‘‘The Advisory Committee contractor personnel, we will develop a Kingdom of Siam: Art of Central 40- to 50-question, multiple choice Thailand, 1350–1800’’ The Department of State announces a examination. Examination details are as meeting of the ITAC. The purpose of the follows: AGENCY: Department of State. Committee is to advise the Department on matters related to telecommunication • A score of 70 will be a passing ACTION: Notice. and information policy matters in score; preparation for international meetings • The examination instrument will be SUMMARY: Notice is hereby given of the pertaining to telecommunication and written in the English language only; following determinations: Pursuant to information issues. The ITAC will meet to discuss the • We anticipate that the examination the authority vested in me by the Act of matters related to the meeting of the ITU will be administered by the contractor October 19, 1965 (79 Stat. 985; 22 U.S.C. Council’s Ad Hoc Group on Cost and will be given only once, on a 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Recovery for Satellite Network Filings weekday, in association with each that will take place 21 and 22 March application period; Restructuring Act of 1998 (112 Stat. 2681, et seq.; 22 U.S.C. 6501 note, et 2005 in Geneva, Switzerland. The ITAC • During the examination, test-takers seq.), Delegation of Authority No. 234 of meeting will be convened on 27 January will have open-book access to certain October 1, 1999, Delegation of Authority 2005 from 2 to 4 p.m. in Room 6 South reference materials that we will supply No. 236 of October 19, 1999, as (6B516) at the Federal Communications (see below for details); amended, and Delegation of Authority Commission (FCC). The FCC is located at 445 12th Street, SW., Washington, • The examination will be based No. 257 of April 15, 2003 [68 FR 19875], DC. upon situations that arise from the I hereby determine that the objects to be Members of the public will be subject areas contained in the reference included in the exhibition ‘‘The admitted to the extent that seating is materials; and Kingdom of Siam: Art of Central available and may join in the • Applicants will not be permitted to Thailand, 1350–1800,’’ imported from discussions subject to the instructions of remove the examination instrument abroad for temporary exhibition within the Chair. Entrance to the FCC is from the examination center. the United States, are of cultural controlled. Persons planning to attend significance. The objects are imported Open-book reference materials: We the meeting should arrive early enough pursuant to loan agreements with the will provide each test-taker with a copy to complete the entry procedure. One of foreign owners. I also determine that the of 20 CFR Ch. III (most recent edition), the following current photo exhibition or display of the exhibit and the Compilation of the Social identifications must be presented to objects at the Asian Art Museum, San Security Laws, Volume 1 (most recent gain entrance to the FCC: U.S. driver’s Francisco, CA, from on or about edition). We may provide additional license with your photo on it, U.S. February 18, 2005, to on or about May passport, or U.S. Government materials; if so, we will provide details 8, 2005; Peabody Essex Museum, Salem, identification. about the materials on the contractor’s MA, from on or about July 16, 2005, to Web site. Applicants will not be Dated: January 4, 2005. on or about October 16, 2005, and at permitted to bring any other items Douglas R. Spalt, possible additional venues yet to be (including reference materials) to the International Communications and determined, is in the national interest. examination center. Information Policy, Department of State. Public Notice of these Determinations is [FR Doc. 05–742 Filed 1–12–05; 8:45 am] An applicant who fails to achieve a ordered to be published in the Federal BILLING CODE 4710–45–P passing score may re-apply to Register. participate in the demonstration project FOR FURTHER INFORMATION CONTACT: For during a subsequent application period. DEPARTMENT OF STATE further information, including a list of (Catalog of Federal Domestic Assistance the exhibit objects, contact Julianne [Public Notice 4931] Program Nos. 96.001, Social Security— Simpson, Attorney-Adviser, Office of Disability Insurance; 96.002, Social the Legal Adviser, U.S. Department of Shipping Coordinating Committee; Security—Retirement Insurance; 96.004, Notice of Meeting Social Security—Survivors Insurance; and State, (telephone: (202) 453–8049). The 96.006, Supplemental Security Income) address is U.S. Department of State, SA– The Shipping Coordinating 44, 301 4th Street, SW., Room 700, Dated: December 30, 2004. Committee (SHC) will conduct an open Washington, DC 20547–0001. meeting at 9:30 a.m. on Tuesday, Fritz Streckewald, Dated: January 7, 2005. February 8, 2005, in Room 6103 of the Assistant Deputy Commissioner for Program United States Coast Guard Headquarters C. Miller Crouch, Policy for Disability and Income Security Building, 2100 2nd Street, SW., Programs. Principal Deputy Assistant Secretary for Washington, DC 20593–0001. The [FR Doc. 05–729 Filed 1–12–05; 8:45 am] Educational and Cultural Affairs, Department primary purpose of the meeting is to of State. BILLING CODE 4191–02–P prepare for the 48th session of the Sub- [FR Doc. 05–739 Filed 1–12–05; 8:45 am] Committee on Ship Design and BILLING CODE 4710–08–P Equipment (DE) to be held at the International Maritime Organization (IMO) Headquarters in London, England VerDate jul<14>2003 17:46 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00075 Fmt 4703 Sfmt 4703 E:\FR\FM\13JAN1.SGM 13JAN1 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Notices 2451 from February 21st to February 25th, DEPARTMENT OF STATE meeting. Upon request, participating by 2005. phone may be an option. For further [Public Notice 4932] The primary matters to be considered information please contact Captain include: Shipping Coordinating Committee; William Baumgartner or Lieutenant —Amendments to resolution A.744(18) Notice of Meeting Martha Rodriguez, at U.S. Coast Guard, Office of Maritime and International regarding longitudinal strength of The U.S. Shipping Coordinating tankers; Law (G–LMI), 2100 Second Street, SW., Committee (SHC) will conduct an open Washington, DC 20593–0001; e-mail —Large passenger ship safety; meeting at 10 a.m. on Tuesday, 12 April [email protected], telephone —Measures to prevent accidents with 2005 in Room 4342 at the Department (202) 267–1527; fax (202) 267–4496. lifeboats; of Transportation, 400 7th & D Streets, Dated: January 5, 2005. —Protection of fuel tanks; SW., Washington, DC 20590–0001. The —Anchoring, mooring and towing purpose of this meeting is to prepare for Clayton L. Diamond, equipment; the Ninetieth Session of the Executive Secretary, Shipping Coordinating Committee, Department of State. —Compatibility of life-saving International Maritime Organization’s appliances; (IMO) Legal Committee (LEG 90) [FR Doc. 05–744 Filed 1–12–05; 8:45 am] —Performance testing and approval scheduled from 18–29 April 2005. BILLING CODE 4710–09–P standards for SOLAS personal life- The provisional LEG 90 agenda calls saving appliances; for the Legal Committee to review the Convention for the Suppression of DEPARTMENT OF TRANSPORTATION —Review of the 2000 HSC Code and Unlawful Acts against the Safety of amendments to the DSC Code and the Maritime Navigation, 1988, and its Federal Aviation Administration 1994 HSC Code; Protocol of 1988 relating to Fixed —Consideration of IACS unified Platforms Located on the Continental Noise Exposure Map Notice: Receipt of interpretations; Shelf (SUA Convention and Protocol). Noise Compatibility Program and —Inspection and survey requirements Work on the SUA amendments will Request for Review for Missoula for accommodation ladders; occur during the first week (18–22 International Airport, Missoula, MT —Safety aspects of ballast water April) of the two week LEG 90 session. AGENCY: Federal Aviation management; Also on the agenda is the further Administration, DOT. —Revision of the Guidelines for systems examination of the draft Wreck Removal ACTION: Notice. for handling oily wastes in machinery Convention. To be addressed as well are spaces of ships (MEPC/Circ.235); the Provisions of Financial Security SUMMARY: The Federal Aviation —Development of provisions for gas- which includes a progress report on the Administration (FAA) announces its fuelled ships; work of the Joint IMO/ILO Ad Hoc determination that the noise exposure —Performance standards for protective Expert Working Group on Liability and maps (NEM) submitted by the airport coatings; Compensation regarding claims for director for Missoula International —Free-fall lifeboats with float-free Death, Personal Injury and Airport under the provisions of 49 capability; Abandonment of Seafarers; and includes U.S.C. 47501 et. seq (Aviation Safety follow-up resolutions adopted by the —Guidelines on on-board exhaust gas and Noise Abatement Act) and 14 CFR International Conference on the cleaning systems; part 150 are in compliance with Revision of the Athens Convention —Mandatory emergency towing systems applicable requirements. The FAA also relating to the Carriage of Passengers announces that it is reviewing a in ships other than tankers greater and their Luggage by Sea, 1974. The than 20,000 dwt; proposed noise compatibility program Legal Committee will examine Fair that was submitted for Missoula —Test standards for extended service Treatment of Seafarers, with a report of intervals of inflatable liferafts; International Airport under part 150 in the first session of the Joint IMO/ILO Ad conjunction with the noise exposure —Review of the Offshore Supply Vessel Hoc Expert Working Group on Fair map, and that this program will be Guidelines. Treatment of Seafarers which will take approved or disapproved on or before Hard copies of documents associated place from 17–19 January 2005. Also on July 2, 2005. the LEG 90 agenda are places of refuge, with the 48th session of DE will be EFFECTIVE DATE: The effective date of the monitoring of the implementation of the available at this meeting. To request FAA’s determination on the noise HNS Convention, and matters arising further copies of documents please exposure maps and of the start of its write to the address provided below. from the ninety-third session of the Council. Finally the committee will review of the associated noise Members of the public may attend compatibility program is January 3, this meeting up to the seating capacity review technical cooperation: subprogramme for maritime legislation, 2005. The public comment period ends of the room. Interested persons may March 4, 2005. seek information by writing to Mr. review the status of Conventions and FOR FURTHER INFORMATION CONTACT: Wayne Lundy, Commandant (G–MSE– other treaty instruments adopted as a result of the work of the Legal Dennis Ossenkop, Federal Aviation 3), U.S. Coast Guard Headquarters, 2100 Administration, Airports Division, 1601 Second Street, SW., Room 1300, Committee, in addition to allotting time to address any other issues that may Lind Ave. SW., Renton, WA, 98055– Washington, DC 20593–0001 or by 4056, telephone 425–227–2611. calling (202) 267–0024. arise on the Legal Committee’s work program. Comments on the proposed noise Dated: January 5, 2005. Members of the public are invited to compatibility program should also be Clay Diamond, attend the SHC meeting up to the submitted to the above office. Executive Secretary, Shipping Coordinating seating capacity of the room. To SUPPLEMENTARY INFORMATION: This Committee, Department of State. facilitate the building security process, notice announces that the FAA finds [FR Doc. 05–743 Filed 1–12–05; 8:45 am] those who plan to attend should call or that the noise exposure maps submitted BILLING CODE 4710–09–P send an e-mail two days before the for Missoula International Airport are in VerDate jul<14>2003 17:46 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00076 Fmt 4703 Sfmt 4703 E:\FR\FM\13JAN1.SGM 13JAN1 2452 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Notices compliance with applicable • Figure S1 at page S.4, Existing responsibility for the detailed requirements of part 150, effective Noise Exposure Map, 2003; overlaying of noise exposure contours January 3, 2005. Further, the FAA is • Figure S2 at page S.7, Future Noise onto the map depicting properties on reviewing a proposed noise Exposure Map, 2009; the surface rests exclusively with the compatibility program for that airport • Figures C9 and C10 noise airport operator that submitted those which will be approved or disapproved monitoring locations; maps, or with those public agencies and • on or before July 2, 2005. This notice Figure C11 at page C.35 Departure planning agencies with which also announces the availability of this Flight Tracks; consultation is required under section • program for public review and Figure C12 at page C.36 Arrival 47503 of the Act. The FAA has relied on Flight Tracks; comment. • the certification by the airport operator, Under 49 U.S.C., 47503 (the Aviation Table S1 at page S.2 Revised under section 150.21 of FAR part 150, Safety and Noise Abatement Act, Summary of Aviation Forecasts 2003– that the statutorily required consultation hereinafter referred to as ‘‘the Act’’), an 2023 and additional aviation activity has been accomplished. airport operator may submit to the FAA data; The FAA has formally received the • Table S3 at page S.5 Existing Land noise exposure maps which meet noise compatibility program for Use Within Existing Noise Contours applicable regulations and which depict Missoula International Airport, also 2003 presents estimates of the number non-compatible land uses as of the date effective on January 2, 2005. of persons residing with the DNL 55, 60, of submission of such maps, a Preliminary review of the submitted and 65 noise contours; description of projected aircraft • material indicates that it conforms to the Table S4 at page S.6 Future Noise requirements for the submittal of noise operations, and the ways in which such Exposure Map with Existing Land Use, operations will affect such maps. The compatibility programs, but that further 2009, presents estimates of the number review will be necessary prior to Act requires such maps to be developed of persons residing with the DNL 55, 60, in consultation with interested and approval or disapproval of the program. and 65 noise contours; The formal review period, limited by affected parties in the local community, • Appendix H in the Revised Report law to a maximum of 180 days, will be government agencies, and persons using volume and starting at page S.32 in the completed on or before July 2, 2005. the airport. Supplemental Report Consultation An airport operator who has The FAA’s detailed evaluation will be actions. conducted under the provisions of 14 submitted noise exposure maps that are • There are no properties on or CFR part 150, section 150.33. The found by the FAA to be in compliance eligible for inclusion in the National primary considerations in the with the requirements of Federal Register of Historic Places with the DNL evaluation process are whether the Aviation Regulations (FAR) part 150, 65 noise contour. promulgated pursuant to the Act, may The FAA has determined that these proposed measures may reduce the level submit a noise compatibility program maps for Missoula International Airport of aviation safety, create an undue for FAA approval which sets forth the are in compliance with applicable burden on interstate or foreign measures the operator has taken or requirements. This determination is commerce, or be reasonably consistent proposes to take to reduce existing non- effective on January 3, 2005. The FAA’s with obtaining the goal of reducing compatible uses and prevent the determination on an airport operator’s existing non-compatible land uses and introduction of additional noise exposure maps is limited to a preventing the introduction of noncompatible uses. finding that the maps were developed in additional non-compatible land uses. Interested persons are invited to The Acting Director of the Missoula accordance with the procedures comment on the proposed program with International Airport submitted to the contained in appendix A of FAR part specific reference to these factors. The FAA on January 4, 2005, noise exposure 150. Such determination does not FAA will consider all comments, other maps, descriptions and other constitute approval of the applicant’s than those properly addressed to local documentation that were January 4, data, information or plans, or constitute land use authorities, to the extent 2005, noise exposure maps, descriptions a commitment to approve a noise practicable. Copies of the noise and other documentation that were compatibility program or to fund the exposure maps, the FAA’s evaluation of produced during the Missoula implementation of that program. International Airport FAR part 150 If questions arise concerning the the maps, and the proposed noise Study dated May 2004 and a precise relationship of specific compatibility program are available for Supplemental Report dated June 2004. It properties to noise exposure contours examination at the following locations: was requested that the FAA review this depicted on a noise exposure map Federal Aviation Administration, material as the noise exposure maps, as submitted under section 47503 of the Airports Division, 1601 Lind Avenue, described in section 47503 of the Act, Act, it should be noted that the FAA is SW., Suite 315, Renton, Washington. and that the noise mitigation measures, not involved in any way in determining Helena Airports District Office, FAA to be implemented jointly by the airport the relative locations of specific Building, Suite 2, Helena, Montana. and surrounding communities, be properties with regard to the depicted Missoula International Airport, 5225 approved as a noise compatibility noise contours, or in interpreting the Highway 10 West, Missoula, Montana. Questions may be directed to the program under section 47504 of the Act. noise exposure maps to resolve individual named above under the The FAA has completed its review of questions concerning, for example, heading, FOR FURTHER INFORMATION the noise exposure maps and related which properties should be covered by CONTACT. descriptions submitted by the director the provisions of section 47506 of the of the Missoula International Airport. Act. These functions are inseparable Issued in Renton, Washington, January 3, The specific documentation determined from the ultimate land use control and 2005. to constitute the noise exposure maps planning responsibilities of local David A. Field, includes the following from the government. These local responsibilities Acting Manager, Airports Division, Northwest Missoula International Airport FAR Part are not changed in any way under part Mountain Region. 150 Study of May 2004 and 150 or through the FAA’s review of [FR Doc. 05–668 Filed 1–12–05; 8:45 am] Supplemental Report of June 2004: noise exposure maps. Therefore, the BILLING CODE 4910–13–M VerDate jul<14>2003 17:46 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00077 Fmt 4703 Sfmt 4703 E:\FR\FM\13JAN1.SGM 13JAN1 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Notices 2453 DEPARTMENT OF TRANSPORTATION FOR FURTHER INFORMATION CONTACT: Tim comments on the DOT electronic docket Adams (202) 267–8033, Sandy site. Federal Aviation Administration Buchanan-Sumter (202) 267–7271, • Fax: 1–202–493–2251. • [Summary Notice No. PE–2004–92] Office of Rulemaking (ARM–1), Federal Mail: Docket Management Facility; Aviation Administration, 800 U.S. Department of Transportation, 400 Petitions for Exemption; Summary of Independence Avenue, SW., Seventh Street, SW., Nassif Building, Petitions Received Washington, DC 20591. Room PL–401, Washington, DC 20590– This notice is published pursuant to 0001. AGENCY: Federal Aviation 14 CFR 11.85 and 11.91. • Hand Delivery: Room PL–401 on Administration (FAA), DOT. Issued in Washington, DC, on January 7, the plaza level of the Nassif Building, ACTION: Notice of petitions for 2005. 400 Seventh Street, SW., Washington, exemption received. Anthony F. Fazio, DC, between 9 a.m. and 5 p.m., Monday Director, Office of Rulemaking. through Friday, except Federal holidays. SUMMARY: Pursuant to FAA’s rulemaking Docket: For access to the docket to provisions governing the application, Petitions for Exemption read background documents or processing, and disposition of petitions Docket No.: FAA–2004–19884. comments received, go to http:// for exemption part 11 of Title 14, Code Petitioner: Orbital Sciences dms.dot.gov at any time or to Room PL– of Federal Regulations (14 CFR), this Corporation. 401 on the plaza level of the Nassif notice contains a summary of certain Section of 14 CFR Affected: 14 CFR Building, 400 Seventh Street, SW., petitions seeking relief from specified 91.223(b) and (c). Washington, DC, between 9 a.m. and 5 requirements of 14 CFR, dispositions of Description of Relief Sought: To allow p.m., Monday through Friday, except certain petitions previously received, Orbital Sciences Corporation, to operate Federal holidays. and corrections. The purpose of this its aircraft after March 29, 2005, without notice is to improve the public’s an approved terrain awareness and FOR FURTHER INFORMATION CONTACT: awareness of, and participation in, this warning system properly installed on Madeleine Kolb (425–227–1134), aspect of FAA’s regulatory activities. the aircraft. Transport Airplane Directorate (ANM– Neither publication of this notice nor [FR Doc. 05–749 Filed 1–12–05; 8:45 am] 113), Federal Aviation Administration, 1601 Lind Avenue, SW., Renton, WA the inclusion or omission of information BILLING CODE 4910–13–P in the summary is intended to affect the 98055–4056; or John Linsenmeyer (202) legal status of any petition or its final 267–5174), Office of Rulemaking (ARM– disposition. DEPARTMENT OF TRANSPORTATION 1), Federal Aviation Administration, 800 Independence Avenue, SW., DATES: Comments on petitions received Federal Aviation Administration Washington, DC 20591. must identify the petition docket [Summary Notice No. PE–2004–93] This notice is published pursuant to number involved and must be received 14 CFR 11.85 and 11.91. on or before February 2, 2005. Petitions for Exemption; Summary of Issued in Washington, DC, on January 7, ADDRESSES: You may submit comments Petitions Received 2005. [identified by DOT DMS Docket Number Anthony F. Fazio, FAA–200X–XXXXX] by any of the AGENCY: Federal Aviation following methods: Administration (FAA), DOT. Director, Office of Rulemaking. • Web site: http://dms.dot.gov. ACTION: Notice of petitions for Petitions for Exemption Follow the instructions for submitting exemption received. comments on the DOT electronic docket Docket No.: FAA–2004–19861. site. SUMMARY: Pursuant to FAA’s rulemaking Petitioner: Embraer Empresa • Fax: 1–202–493–2251. provisions governing the application, Brasileira de Aeronautica S.A. • Mail: Docket Management Facility; processing, and disposition of petitions Section of 14 CFR Affected: 14 CFR U.S. Department of Transportation, 400 for exemption, part 11 of Title 14, Code 25.901(c). Seventh Street, SW., Nassif Building, of Federal Regulations (14 CFR), this Description of Relief Sought: To Room PL–401, Washington, DC 20590– notice contains a summary of certain permit the certification of the Embraer 0001. petitions seeking relief from specified ERJ 190/CF34–10E (including the ERJ • Hand Delivery: Room PL–401 on requirements of 14 CFR. The purpose of 190–100 and ERJ 190–200 model) the plaza level of the Nassif Building, this notice is to improve the public’s airplanes without complying with the 400 Seventh Street, SW., Washington, awareness of, and participation in, this ‘‘no single failure’’ criterion of DC, between 9 a.m. and 5 p.m., Monday aspect of FAA’s regulatory activities. § 25.901(c) because the likelihood that through Friday, except Federal Neither publication of this notice nor an uncontrollable high thrust failure Holidays. the inclusion or omission of information condition will occur cannot be shown to • Federal eRulemaking Portal: Go to in the summary is intended to affect the be extremely improbable. http://www.regulations.gov. Follow the legal status of any petition or its final Docket No.: FAA–2004–19937. online instructions for submitting disposition. Petitioner: Embraer Empresa comments. DATES: Comments on petitions received Brasileira de Aeronautica S.A. Docket: For access to the docket to must identify the petition docket Section of 14 CFR Affected: 14 CFR read background documents or number involved and must be received 25.841(a)(2)(ii). comments received, go to http:// on or before February 2, 2005. Description of Relief Sought: To dms.dot.gov at any time or to Room PL– ADDRESSES: You may submit comments permit certification of the Embraer ERJ 401 on the plaza level of the Nassif identified by DOT DMS Docket Number 190/CF34–10E (including the ERJ 190– Building, 400 Seventh Street, SW., FAA–2004–19861 or FAA–2004–19937 100 and ERJ 190–200 model) airplanes Washington, DC, between 9 a.m. and 5 by any of the following methods: without meeting the requirements of p.m., Monday through Friday, except • Web Site: http://dms.dot.gov. § 25.841(a)(2)(ii), Amendment 25–87, Federal Holidays. Follow the instructions for submitting which specify the maximum cabin VerDate jul<14>2003 17:46 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00078 Fmt 4703 Sfmt 4703 E:\FR\FM\13JAN1.SGM 13JAN1 2454 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Notices altitude allowable after engine Lender (202) 267–8029, Office of b. Working Group Status Report: rotorburst. Rulemaking (ARM–1), Federal Aviation Damage Tolerance and Fatigue [FR Doc. 05–751 Filed 1–12–05; 8:45 am] Administration, 800 Independence Evaluation of Composite Rotorcraft BILLING CODE 4910–13–P Avenue, SW., Washington, DC 20591. Structure. This notice is published pursuant to c. FAA Status Report: Performance 14 CFR 11.85 and 11.91. and Handling Qualities Requirements DEPARTMENT OF TRANSPORTATION Issued in Washington, DC, on January 7, Notice of Proposed Rulemaking. 2005. Attendance is open to the public but Federal Aviation Administration Anthony F. Fazio, will be limited to the space available. [Summary Notice No. PE–2005–06] Director, Office of Rulemaking. The public must make arrangements to present oral statements at the meeting. Petitions for Exemption; Summary of Petition for Exemption Written statements may be presented to Petitions Received Docket No.: FAA–2004–19090. the committee at any time by providing Petitioner: 4/Flight Industries. 16 copies to the Assistant Chair or by AGENCY: Federal Aviation Sections of 14 CFR Affected: 14 CFR providing the copies at the meeting. Administration (FAA), DOT. 21.325(b)(3) and 21.601(c). Approximately thirty days after the ACTION: Notice of petition for exemption Description of Relief Sought: To allow meeting, minutes will be available on received. the petitioner to issue export the FAA Web site at http://www.faa.gov/ SUMMARY: Pursuant to FAA’s rulemaking airworthiness approvals for their avr/arm/arac/calendarxml.cfm?nav=6. provisions governing the application, product manufactured and located at If you are in need of assistance or processing, and disposition of petitions their facility in Montreal, Canada. The require a reasonable accommodation for for exemption, part 11 of Title 14, Code exemption would also permit issuance the meeting, please contact the person of Federal Regulations (14 CFR), this of Technical Standard Order (TSO) listed under the heading FOR FURTHER notice contains a summary of certain authorizations for products INFORMATION CONTACT. In addition, sign petitions seeking relief from specified manufactured at facilities located and oral interpretation, as well as a requirements of 14 CFR. The purpose of outside the United States. listening device, can be made available this notice is to improve the public’s [FR Doc. 05–753 Filed 1–12–05; 8:45 am] at the meeting if requested 10 calendar awareness of, and participation in, this BILLING CODE 4910–13–P days before the meeting. You may make aspect of FAA’s regulatory activities. arrangements by contacting the person Neither publication of this notice nor listed under the heading FOR FURTHER the inclusion or omission of information DEPARTMENT OF TRANSPORTATION INFORMATION CONTACT. in the summary is intended to affect the If you are unable to attend the legal status of any petition or its final Federal Aviation Administration meeting, you can access it by telephoning 817–222–4871, pass code disposition. Aviation Rulemaking Advisory 5359#. DATES: Comments on petitions received Committee Meeting on Rotorcraft must identify the petition docket Issues Issued in Washington, DC, on January 7, number involved and must be received 2004. on or before February 2, 2005. AGENCY: Federal Aviation Anthony F. Fazio, Administration (FAA), DOT. ADDRESSES: You may submit comments Executive Director, Aviation Rulemaking identified by DOT DMS Docket Number ACTION: Notice of public meeting. Advisory Committee. [FR Doc. 05–658 Filed 1–12–05; 8:45 am] FAA–2004–19090 by any of the SUMMARY: This notice announces a following methods: BILLING CODE 4910–13–P • public meeting of the FAA’s Aviation Web Site: http://dms.dot.gov. Rulemaking Advisory Committee to Follow the instructions for submitting discuss rotorcraft issues. comments on the DOT electronic docket DEPARTMENT OF TRANSPORTATION DATES: site. The meeting will be held on • Fax: 1–202–493–2251. February 7, 2005, 10:15 a.m. to 12:15 Federal Motor Carrier Safety • Mail: Docket Management Facility; p.m. P.s.t. Administration ADDRESSES: The meeting will be held at U.S. Department of Transportation, 400 [Docket No. FMCSA–2003–15015] Seventh Street, SW., Nassif Building, the Anaheim Convention Center, Room Room PL–401, Washington, DC 20590– 207–B, 800 West Katella Avenue, Policy on Availability of Information 0001. Anaheim, CA 92802, phone (714) 765– From the Commercial Driver’s License • Hand Delivery: Room PL–401 on 8950. Information System the plaza level of the Nassif Building, FOR FURTHER INFORMATION CONTACT: 400 Seventh Street, SW., Washington, Angela Anderson, Office of Rulemaking, AGENCY: Federal Motor Carrier Safety DC, between 9 a.m. and 5 p.m., Monday ARM–200, FAA, 800 Independence Administration (FMCSA), DOT. through Friday, except Federal holidays. Avenue, SW, Washington, DC 20591, ACTION: Notice of policy. Docket: For access to the docket to telephone (202) 267–9681. read background documents or SUPPLEMENTARY INFORMATION: The SUMMARY: As required by the comments received, go to http:// referenced meeting is announced Transportation Equity Act for the 21st dms.dot.gov at any time or to Room PL– pursuant to Section 10(a)(2) of the Century (TEA–21), this document 401 on the plaza level of the Nassif Federal Advisory Committee Act (Pub. informs the public of FMCSA’s policy Building, 400 Seventh Street, SW., L. 92–463; 5 U.S.C. App. II). regarding access to information in the Washington, DC, between 9 a.m. and 5 The agenda will include: Commercial Driver’s License p.m., Monday through Friday, except a. Discussion and approval of the Information System (CDLIS) by other Federal holidays. Fatigue Tolerance Evaluation of Metallic Federal agencies. FOR FURTHER INFORMATION CONTACT: John Structures proposed Regulatory and EFFECTIVE DATE: This policy is effective Linsenmeyer (202) 267–5174 or Susan Advisory Circular material package. January 13, 2005. VerDate jul<14>2003 17:46 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00079 Fmt 4703 Sfmt 4703 E:\FR\FM\13JAN1.SGM 13JAN1 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Notices 2455 FOR FURTHER INFORMATION CONTACT: licensing State shall be notified of any Mail Stop 25, Washington, DC 20590 Carol Gore, (202) 366–4013, Office of convictions of violations of any motor (telephone (202) 493–6255). Safety Programs, Federal Motor Carrier vehicle control laws in any other State. SUPPLEMENTARY INFORMATION: Safety Administration, Department of CDLIS supports these principles by Transportation, 400 Seventh Street, providing the Central Site, the Factual Background SW., Washington, DC 20590. telecommunications network, and the A review of FRA’s accident/incident SUPPLEMENTARY INFORMATION: Section operating protocols States need to data shows that, overall, the safety of 12007(e) of the Commercial Motor exchange commercial license, rail transportation continues to improve. Vehicle Safety Act (CMVSA) of 1986 conviction and safety information on However, FRA has particular concern (Pub. L. 99–570) specified four entities individual CDL drivers. Drivers who that recent accidents on Class I railroads authorized to access information from wish to review and, if necessary, correct in non-signaled territory were caused, or CDLIS. These entities were the Secretary information about them in CDLIS must apparently caused, by the failure of of Transportation, the States, an contact the State agency that issued railroad employees to return manual employer or prospective employer of a their license. (hand-operated) main track switches to person who operates a commercial their normal position, i.e., lined for the FMCSA Policy on Availability of motor vehicle (CMV), and a person who main track, after use. As a result, rather Information From CDLIS operates a CMV for an employer that than continuing their intended owns or leases a CMV or assigns It is FMCSA’s policy that another movement on the main track, trains employees to operate a CMV (49 U.S.C. Federal agency may request access to approaching these switches in a facing- § 31309(e)). This provision remained in information in CDLIS by written point direction were unexpectedly effect until Congress passed TEA–21 submission to FMCSA’s Chief Safety diverted from the main track onto the (Pub. L. 105–85) and revised the access Officer. In the request, the applicant diverging route, and consequently provision through sections 4004(a) and must state the legal basis and the need derailed. Most recently: • 4011(d) (5) (codified at 49 U.S.C. for access to CDLIS. A Federal agency On January 8, 2005, a Burlington 31106(e) and 31309(c), respectively). will be required to execute a Northern and Santa Fe Railway Sections 4004(a) and 4011(d)(5) of TEA– Memorandum of Understanding (MOU) Company (BNSF) freight train was 21 expanded CDLIS access by requiring with the Department of Transportation unexpectedly diverted onto an the Secretary of Transportation to and/or FMCSA before access to CDLIS industrial track in Bieber, California. develop a policy on making information data will be provided. The BNSF train struck two loaded grain cars, derailing seven locomotives and 14 available from CDLIS. The policy must Issued on: January 7, 2005. conform to existing Federal information cars. Two railroad employees were laws and regulations. Annette M. Sandberg, injured. Initial damages to equipment Administrator. and track are in excess of $970,000. Privacy Act Applicability [FR Doc. 05–669 Filed 1–12–05; 8:45 am] • On January 6, 2005, a Norfolk The Privacy Act of 1974 (Pub. L. 93– BILLING CODE 4910–EX–P Southern Railway Company (NS) freight 579, as amended) regulates Federal train was apparently unexpectedly information system practices regarding diverted from the main track onto an the collection, maintenance, DEPARTMENT OF TRANSPORTATION industrial lead in Graniteville, South dissemination and use of records by Carolina. The NS train struck a standing Federal executive branch agencies. Federal Railroad Administration train on the industrial lead, derailing CDLIS is not a Federal ‘‘system of three locomotives and 16 cars. One of Notice of Safety Advisory 2005–01; records,’’ as defined by the Privacy Act the derailed cars that contained chlorine Position of Switches in Non-Signaled because the records in CDLIS are not ruptured and released product. As a Territory controlled by FMCSA. Federal agencies result, eight citizens and one railroad obtaining access to CDLIS records may AGENCY: Federal Railroad employee were killed, 5,400 local be subject to the Privacy Act, if they Administration (FRA), Department of residents remain evacuated, and 234 establish a system of records with the Transportation (DOT). people have sought medical treatment. information obtained from CDLIS. Such The National Transportation Safety ACTION: Notice of safety advisory. agencies may also need to provide a Board (NTSB) began its investigation immediately and will not make its process for review and correction of SUMMARY: FRA is issuing Safety those records. Advisory 2005–01 to advise all railroads findings of probable cause for some to review their operating rules and take time. FRA has representatives at the site Availability of Information From CDLIS assisting in the investigation. By stating certain other action necessary to ensure Section 12007(c) of the CMVSA here its preliminary impression of what that train crews who operate manual directed the Secretary to establish an may have contributed to this tragic (hand-operated) main track switches in information system, now known as accident, FRA in no way intends to non-signaled territory restore the CDLIS, to exchange commercial driver supersede the NTSB’s thorough and switches to their normal position after licensing information among all the painstaking efforts that will ultimately use. FRA intends this advisory to reduce States. CDLIS includes the databases of lead to its official findings of cause. the risk of serious injury or death both fifty-one licensing jurisdictions and the FRA’s regulations (49 CFR part 217) to railroad employees and the general CDLIS Central Site, all connected by a require each railroad to instruct its public due to not restoring such telecommunications network. employees on the meaning and The CDL program was designed based switches to their normal position after application of its code of operating on these fundamental principles—that use. rules, and to periodically test its no person who operates a commercial FOR FURTHER INFORMATION CONTACT: employees to determine their level of motor vehicle shall at any time have Douglas H. Taylor, Staff Director, compliance. Railroad operating rules more than one driver’s license, that one Operating Practices Division, Office of provide that the normal position for a license shall contain that person’s Safety Assurance and Compliance, FRA, main track switch is lined and locked complete driving record, and that the 1120 Vermont Avenue, NW., RRS–11, for movement on the main track. VerDate jul<14>2003 17:46 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00080 Fmt 4703 Sfmt 4703 E:\FR\FM\13JAN1.SGM 13JAN1 2456 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Notices Another related rule provides that, particular subdivision involving crews with the conductor, that the main track where trains or engines are required to forgetting to line back main track switch or switches have been restored to report clear of the main track, such a switches and asked BNSF’s System their normal position. The engineer’s report must not be made until the Rules Department to adopt a rule change initials should be affixed to the Form as switch and derail, if any, have been to eliminate the potential for this soon as practicable after the main track secured in the normal position. Where oversight. The Rules Department then switch has been restored to its normal no signal or other system is in service issued this change across BNSF’s position. All initials required on the that indicates, through wayside or cab system. Form must be entered before any signals, or both, the possibility that a Recommended Actions member of the crew reports clear of the main track switch may be in other than limits of the main track authority. its normal position, compliance with The recent accidents have convinced these railroad operating rules is the FRA that, on an industry-wide basis, 3. Require that, at the completion of critical element in ensuring route railroad operating rules need to be each trip or tour of duty, the original integrity for main track movements. strengthened, clarified and re- Form be submitted to the designated Failure to comply with these emphasized so as to ensure that all main railroad official(s) as directed. important operating rules is the result of track switches are returned to their 4. Require that railroad officers review normal position after use, irrespective of various causes. Difficulties may be the completed Forms for accuracy. The whether or not the crew releases (clears) especially likely to arise where a train results of these reviews should be crew has exclusive authority to occupy the track warrant at that time. incorporated into the railroad’s a specific track segment until they Furthermore, it is essential that all operational tests and inspections release it for other movements, but due crewmembers communicate to each to inattention to duty, their train does other the fact that all main track program as required by 49 CFR 217.9. not return to a main track switch that switches have been properly restored 5. Ensure immediate dissemination of they may have inadvertently left lined after their use. Since this is strictly an guidance on these revised rules and for movement to a secondary track issue of ensuring that employees procedures and of the necessary Forms before going off duty. Some railroads remember to perform a simple but to all affected operating personnel. crucially important duty, FRA believes have very recently amended their FRA is considering the need for any operating rules to address this issue. that additional procedures that serve as additional action to address this Two recent examples are: reminders of that duty may be of great • On October 1, 2004, Union Pacific value. situation, such as regulatory action or Railroad Company (UP) adopted a Accordingly, FRA strongly urges all additional advisories. We are requirement that before reporting clear railroads to immediately: considering the form that any additional of the limits of a track warrant, the 1. Ensure that their operating rules action might take, its specific content, crewmember releasing the track warrant contain a provision, similar to that and any necessary variations based on must first advise the train dispatcher established on BNSF and UP, as differing types of operations. FRA’s that main track switches have been described above, that clearly requires operating practices inspectors will restored to their normal position. The train crews who operate manual (hand- determine the extent to which railroads train dispatching system prompts the operated) main track switches in non- have taken action in accordance with dispatcher to request this information if signaled territory to report to the the measures recommended in this it has not been provided by the crew. dispatcher that the main track switches advisory. These findings will be one The change was made because of a have been restored to normal position, important factor in determining FRA’s collision that occurred at Thomaston, before reporting clear of the limits of future course of action. We are Texas, on September 29, 2004. A Texas main track authority, such as a track committed to taking whatever action Mexican Railway Company (TM) crew warrant. appears necessary to prevent any further 2. Require the conductor of a train released their main track authority, in death or serious injury that might arise this case a track warrant, without crew operating in non-signaled territory to complete and sign a Switch Position from additional failures to comply with verifying that the north siding switch the basic operating rules concerning the was properly lined for the main track. Awareness Form (Form). FRA proper positioning of main track A southbound UP train entered the recommends that the Form be siding and collided with the unattended completed in ink and contain the train switches. TM train. The change was issued by symbol, date, subdivision, conductor’s In the meantime, all railroads are System General Order and was a change and engineer’s names, and a listing by strongly urged to immediately adopt to General Code of Operating Rules, name and location of each main track and comply with the measures Rule 14.7, Reporting Clear of Limits. switch operated by any member of the recommended in this advisory. • On October 31, 2004, BNSF adopted crew. The listing should contain the Issued in Washington, DC, on January 10, a requirement that the train crew report switch location and name, the time the 2005. to the train dispatcher the position of switch was reversed, the time the switch the switch that the train is using to clear was returned to the normal position, Robert D. Jamison, the main track when releasing the limits and the initials of the conductor and the Acting Administrator, Federal Railroad of their track warrant. The dispatching engineer. Entries made with respect to Administration. system will not allow a track warrant to a specific main track switch must be [FR Doc. 05–834 Filed 1–11–05; 2:37 pm] be cleared until the dispatcher confirms completed by the conductor as soon as BILLING CODE 4910–06–P the switch position through a job possible after the switch is reversed and briefing with the crew. The change was as soon as possible after the switch is not made because of any specific returned to its normal position. The incident, but rather as the result of a engineer’s initials on the Form are recommendation from BNSF’s Northern intended to serve as a cross-check California Division Safety Team. The measure to reflect that the engineer has BNSF Team had some concerns on a been advised, through a job briefing VerDate jul<14>2003 17:46 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00081 Fmt 4703 Sfmt 4703 E:\FR\FM\13JAN1.SGM 13JAN1 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Notices 2457 DEPARTMENT OF TRANSPORTATION information collection is necessary for received by December 20, 2004, would proper performance of the functions of be published in the Federal Register Maritime Administration the agency and will have practical and on the CIREN Web site: http://www- [Docket No. MARAD–2005–20070] utility, accuracy of the burden nrd.nhtsa.dot.gov/departments/nrd-50/ estimates, ways to minimize this ciren/CIREN.html. Those questions and Information Collection Available for burden, and ways to enhance the answers are listed below: Public Comments and quality, utility, and clarity of the Question: Has the total funding Recommendations information to be collected. All amount of $3 million been confirmed comments received will be available for for FY 2005? ACTION: Notice and request for examination at the above address Answer: Yes. comments. between 10 a.m. and 5 p.m. e.d.t. (or Question: The announcement does e.s.t.), Monday through Friday, except not mention cost-sharing or matching SUMMARY: In accordance with the Federal holidays. An electronic version funds. Can it be assumed that neither Paperwork Reduction Act of 1995, this of this document is available on the will be required for this grant? notice announces the Maritime World Wide Web at http://dms.dot.gov. Answer: This is a cooperative research Administration’s (MARAD’s) intention Privacy Act: Anyone is able to search agreement and it is assumed that there to request extension of approval for the electronic form of all comments will be some ‘‘in kind’’ contributions by three years of a currently approved received into any of our dockets by the the Level One Trauma Center. information collection. name of the individual submitting the Question: If cost sharing is not DATES: Comments should be submitted comment (or signing the comment, if required, would it help an application, on or before March 14, 2005. submitted on behalf of an association, though, if matching funds were provided? FOR FURTHER INFORMATION CONTACT: Rita business, labor union, etc.). You may review DOT’s complete Privacy Act Answer: Yes. Jackson, Maritime Administration, Question: Do you advise applicants to MAR–410, 400 Seventh Street, SW., Statement in the Federal Register published on April 11, 2000 (Volume contact you with project ideas before Washington, DC 20590. Telephone: submitting applications? Or only if they (202) 366–0284; FAX: (202) 366–7403; 65, Number 70; Pages 19477–78) or you may visit http://dms.dot.gov. have general questions? or e-mail: [email protected]. Answer: No. We are not looking for Copies of this collection also can be (Authority: 49 CFR 1.66.) project ideas. The announcement for obtained from that office. Dated: January 7, 2005. discretionary funding for the SUPPLEMENTARY INFORMATION: By Order of the Maritime Administrator. cooperative research agreements is very Title of Collection: U.S. Merchant Joel C. Richard, specific as to the work required. Marine Academy Candidate Application Secretary, Maritime Administration. Applicants are not required to submit any project ideas. for Admission. [FR Doc. 05–733 Filed 1–12–05; 8:45 am] Type of Request: Extension of Question: The announcement does BILLING CODE 4910–81–P currently approved information not mention this, but does this program collection. have a CFDA number? Answer: Yes—it is 20–600. OMB Control Number: 2133–0010. DEPARTMENT OF TRANSPORTATION Form Numbers: KP 2–65. Question: How competitive is this Expiration Date of Approval: Three National Highway Traffic Safety program, i.e., for the last funding cycle, years from date of approval by the Administration how many proposals were submitted Office of Management and Budget. and how many received funding? Answer: This is the first time that the Summary of Collection of Responses to Questions Received in CIREN program has issued a Request for Information: The collection consists of Response to Announcement of Proposals (RFP). During the last funding Parts I, II, and III of Form KP 2–65 (U.S. Availability of Discretionary cycle, awards were made via a letter of Merchant Marine Academy Application Cooperative Agreements for Research invitation to the existing centers to for Admission). Part I of the form is Under the Crash Injury Research and continue the work they were doing. At completed by individuals wishing to be Engineering Network (CIREN) that time, the program and database admitted as students to the U.S. AGENCY: National Highway Traffic were still in the developmental phase. Merchant Marine Academy. Safety Administration (NHTSA), DOT. Question: Is there anything else you Need and Use of the Information: The ACTION: Responses to questions received would like applicants to know? information is necessary to select the in response to the announcement of Answer: No. Applicants should best qualified candidates for the U.S. discretionary cooperative agreements to carefully read the Federal Register Merchant Marine Academy. support the research conducted under announcement to be certain of work Description of Respondents: the Crash Injury Research and requirements. As indicated in the Individuals desiring to become students Engineering Network (CIREN) and to Federal Register announcement, at the U.S. Merchant Marine Academy. increase its benefits to the public. ‘‘Interested applicants are advised that Annual Responses: 2,500. no separate application package exists Annual Burden: 12,500 hours. SUMMARY: Federal Register, Volume 69, beyond the contents of this Comments: Comments should refer to No. 235, Pages 71101–71118, announcement.’’ the docket number that appears at the announced the availability of Question: For a proposed site that top of this document. Written comments discretionary Cooperative Agreement would like to do both pediatric and may be submitted to the Docket Clerk, opportunities to provide funding to adult cases, does Level I funding require U.S. DOT Dockets, Room PL–401, 400 Level One Trauma Centers in support of that the site track 50 pediatric and 50 Seventh Street, SW., Washington, DC the Crash Injury Research and adult cases OR can the cases be mixed? 20590. Comments also may be Engineering Network (CIREN) from the Answer: The requirement is for a total submitted by electronic means via the National Highway Traffic Safety of 50 cases. Internet at http://dms.dot.gov/submit. Administration (NHTSA). The NHTSA Question: Is the software from Volpe Specifically address whether this indicated that responses to all questions (a) provided free of charge, (b) included VerDate jul<14>2003 17:46 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00082 Fmt 4703 Sfmt 4703 E:\FR\FM\13JAN1.SGM 13JAN1 2458 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Notices in the $10,000 Year 1 line item, or (c) Answer: Separate applications are not space (especially if only one 50 page should our agency include it as a required unless your work plan is application is to be submitted for all budgeted expense? different for the different performance three levels combine), can one copy of Answer: As indicated in Section XII, levels. One application is fine as long as this form suffice for all three levels? Application Contents, the $10,000 you have separate budgets for each Answer: No. These forms are not represents equipment (hardware) costs performance level. included in the 50-page limit and can be and should be added to your overall Question: If entire separate put in the appendix. Please provide budget estimate for the base year. applications are required for each Level complete copies of each form for each Software (required to run the CIREN of Effort for which the applicant is level. This assures that each cost applications only) and Volpe support is applying, do separate sets of appendices estimate for each level is a complete provided under a separate effort. need to be sent with each application or package. This also makes evaluation of Question: What impact does the loss would one set suffice for all the budget at the various levels easier. of subjects to follow-up for the Quality applications? Question: Is there a specific amount of Life 6-month and 12-month questions Answer: Separate application that we should request for the first year have on the potential funding level packages are not required. Only one set for each level? Or should just put adjustments (section V.2, paragraph 1)? of appendices are required EXCEPT for together a reasonable budget that we Answer: NHTSA is aware that budget/financial forms. think will get the job done? obtaining follow-up in a trauma study Question: If one application Answer: Specific funding levels have population is a difficult task. The encompassing all three levels is not been established. Please put together production of follow-up data is a permissible, is it mandatory? That is if a reasonable budget that you think will priority for the CIREN Program and for we get into trouble with the page limits allow you to achieve the performance NHTSA. The collection of follow-up (especially as multiple 424 forms would levels. data will be closely monitored and need to be included within the 50 page Question: In submitting a proposed addressed on a case-by-case basis. If a limit), could we instead submit entirely budget year by year for all 5 years, are site is unable to consistently collect separate 50 page applications for each of we allowed to vary the amount follow-up data in sufficient production the three funding levels? requested year by year? That is as levels, then funding would be affected. Answer: The 424 forms are not salaries increase with inflation and Question: Does the $3,000,000 total counted in the 50-page limit—put them raises, are we allowed to increase the amount available for funding include in an appendix. A single application is amount we request each year. F&A or is F&A calculated above this not mandatory. You may submit Answer: Yes. funding level? separate 50 page applications for each of Question: Is more than one Co- Answer: $3,000,000 is the total the three funding levels. Principal Investigator possible? amount of Federal funding currently Question: In Section XII. Application Answer: No. available. All Fixed and Actual costs Contents, Section 1. Supplemental Question: In Section XIII. CIREN should be included in your overall budget information is requested in System Requirements. 2. Staffing budget estimates. addition to SF424 (A and B). Is there a Requirements and Duties. It is stated Question: Are the resumes of staff particular form to use for supplemental that ‘‘No staff member assigned to this included in the 50-page limit? budget information? Is a narrative work effort may be involved in any Answer: No, you may include them as budget justification sufficient to provide police, insurance or investigative an appendix. the supplemental information? Could activities.’’ Does this apply to testifying Question: Is the SF 424 and detailed PHS 398 form be used for this? as an expert witness for insurance budget included in the 50-page limit? Answer: The SF 424 forms are companies or for any other party (e.g. as Answer: No, you may include them as required. The PHS 398 form cannot be opposed to being employed by such an appendix. used. There are no particular additional insurance companies or other parties)? Question: Do you want a separate forms. A narrative budget justification Answer: Yes. application for each performance level? (along with the SF 424 forms) is Question: If so, does this apply Answer: No, unless you are going to sufficient as long as it contains the whether or not examination of vehicles approach the work in a different dollar value and what it relates to. is involved? manner. However, We do need separate Question: Is the budget information Answer: Yes. budget estimates (SF 424 forms) for each (either Form 424 (A and B) and/or Question: If so, does this apply level. The Federal Register supplemental information or both the whether or not severely damaged Announcement states that ‘‘Separate forms and supplemental information) vehicles are involved? That is, does it budgets are requested for each Level of included in the 50-page limit? Can make a difference if testifying for an Effort for which the applicant wishes to supplemental information be placed in insurance company (or other party) is apply.’’ the appendix? restricted to examination of vehicles Question: The Federal Register Answer: Budget information and involved in crashes that would not Announcement states that ‘‘Separate forms are not included in the 50-page qualify for CIREN inclusion criteria? budgets are requested for each Level of limit. They may be placed in the Answer: Yes, it applies irrespective of Effort for which the applicant wishes to appendix along with any supplemental the severity of damage. apply.’’ Are entire separate applications budget information. Question: In reference to Section X. (e.g. entire 50 pages with an original and Question: I note that a separate Form Conflict of Interest—does testifying as 5 copies) required for each level? Or can 424 (one page) and Form 424A (two an expert witness on automobile crashes we rather make one application, with pages) are to be filled out for each level constitute a potential conflict of interest some description of contingency plans requested. However, Form 424B (two that would need to be reported? that would be used if different Levels of pages) would not seem to vary between Answer: Yes. Effort were awarded? This latter option the different levels. It is entitled Question: In reference to an would still include the separate budgets ‘‘Assurances—Non-Construction Organizational Chart. Should this be for each level, but would have only one Programs’’ and just requires a signature included in the appendices (and thus 50-page application (with copies). (no information to be provided). To save outside of the 50 page limit) or as a part VerDate jul<14>2003 17:46 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00083 Fmt 4703 Sfmt 4703 E:\FR\FM\13JAN1.SGM 13JAN1 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Notices 2459 of the main text (and thus within the 50 particular forms to use for this part? Answer: At NHTSA’s discretion, a page limit)? (other than the SF 424 for the budget?) center exceeding the expected number Answer: In the appendices. Answer: No—just the SF 424 forms— of cases in a given year may be Question: Is there any particular (SF 424, SF 424A, SF 424B). permitted to reapply for a higher level format to follow for resumes. Question: Are there any particular of support in an option year. Answer: No. requirements regarding font, font size, Question: Regarding the requirement Question: Is there any page limit for or margins? to demonstrate an understanding of the the resumes? Answer: Yes—No font smaller than 10 methodology used in electronic data Answer: No. point with one inch margins. collection systems, is this meant to be Question: Are resumes to be included Question: Regarding the SF424, Item specific to the proprietary system used as an appendix (and thus outside of the 13: Proposed Project and Item 15: by CIREN or more generic expertise in 50 page limit) or as a part of the main Estimated Funding—Should these apply data management systems? text (and thus within the 50 page limit)? to the base year or to the entire 5 year Answer: More generic expertise in Answer: As an appendix. project period? data management systems related to Question: In reference to Section XII. Answer : You should include separate scientific/engineering/medical research Application Contents; Section H: Past budgets for the base year and for each related to motor vehicle crashes. Performance and Financial option year. Question: Do the 3 letters of reference Responsibility. (1) References.—Three Question: CIREN System need to come from previous NHTSA- references are requested. Can this be Requirements. 1. General Requirements. sponsored projects or any projects? multiple persons at the same agency and Paragraph 4 states: ‘‘The Grantee CIREN Answer: Any relevant projects. who handle the same grant/contract? center shall outline a plan to establish Question: Clarify what is meant in For example, multiple people at the lines of communication among CIREN Item XIII.1 by the requirement for a plan CDC or NIH handle grants run by our crash investigators and the quality to establish lines of communication injury center. Can we list the various control team to facilitate among the CIREN crash investigators contacts at each institution as separate communication of medical technologies and the quality control team? Is it contacts or should it be one contact for relating to crash research and the expected that each CIREN site will each grant/contract? introduction of emerging technologies develop this plan independent from Answer: The three references should relating to occupant protection other sites so that each site come from three different contracts/ systems.’’ Is this something that we are communicates separately from the grants. Provided you satisfy that supposed to outline in the proposal others? minimum requirement, you may, at itself or something that will come up Answer: This is a plan that can be your election, provide more than one afterwards? detailed after awards are made. contact for each contract/grant. Answer: This is something that you However, you are free to submit your Question: We have been previously can do after awards are made. However, plans in the proposal. funded as a CIREN center. Can we list you are free to submit your plans in the Question: Provide further clarification this cooperative agreement and the proposal. on the potential scope of ‘‘special NHTSA staff who handle it as Question: Is the quality control team research programs’’ which sites may be references? mentioned here the same one that asked to contribute. (Item XIII.3.E) Will Answer: Yes—this may serve as one currently exists in Indiana? these programs be within the scope of reference. Answer: Yes. work and budget of an individual Question: On the matter of three Question: What are the approximate CIREN center? references—just to clarify: it seems that funding levels expected to be awarded Answer: Any such research projects the questions on the references for the for each center? Will these funding will be within the scope of work and ‘‘Applicant’’ pertain to the institution levels consider the expectation that the budget of an individual CIREN center. that is applying for the award and not largest portion of budgets will be Question: Provide clarification on the the individual Principal Investigator? determined by fixed costs of staffing the age limits to be used to decide who gets (e.g., it is the institution that is the necessary resources regardless of the the Pediatric Quality of Life and who ‘‘Applicant.’’) volume of cases submitted? gets an SF–36 during the 6 and 12- Answer: It pertains to the Institution Answer: Specific funding levels have month follow-up assessments. and not the individual. However, if not been established. Please put together Answer: Age limits on the Pediatric there are no relevant institutional a reasonable budget that you think will Quality of Life are ages 2 to 12. Thirteen references, individual relevant allow you to achieve the performance years and older will get an SF 36. references may be provided. levels. Question: Please confirm the Question: In Section XV. Terms and Question: Can occupants count following apparent assumptions Conditions of Award. It is stated that toward center case volumes if they are regarding inclusion criteria for adult ‘‘Prior to award, each applicant shall treated at another level 1 trauma center, and pediatric CIREN cases, based on comply with certification distinct from the CIREN site, assuming review of the tables in Appendix 1: requirements.***’’ Should these that similar quality medical data can be a. Adult criteria certifications be included with the obtained? In particular, this might be i. Can rear-seated adults or those that application? Or are they to be submitted important for cases where children and are only belted (no airbag or airbag later, in the event an award is made? If adults are treated at different hospitals. suppressed) in the front seat qualify if included with the application, I imagine Answer: No.—Not unless the Center they otherwise meet the injury criteria that they are external to the 50-page treating the occupants is part of the in frontal impacts? limit (e.g., included in the appendices)? CIREN site medical network. Answer: Currently, rear-seated adult Answer: Include the certifications Question: If a center out-performs the occupants in frontal collisions are not with the application as part of an expected number of cases in a given part of the CIREN inclusion criteria. appendix. year, can that center reapply in a However, the inclusion criteria can Question: Regarding the limit of 50 subsequent year for a higher level of change with agency priorities. Adults in pages for the application—Are there any support? the front seat that are restrained with a VerDate jul<14>2003 17:46 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00084 Fmt 4703 Sfmt 4703 E:\FR\FM\13JAN1.SGM 13JAN1 2460 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Notices belt only (no airbag or airbag by full-time, you mean that this room trauma physician or a clinically suppressed) may be included on a case- individual would be full-time at the active emergency medical physician or by-case basis with prior approval by institution and not full-time devoted to a clinically active specialist with NHTSA. CIREN Center efforts. Is this a correct experience relating to the diagnosis and ii. Do the vehicle specifications for assumption? treatment of motor vehicle injuries and rollover crashes indicate that vehicles The RFP later goes on to say that the must be closely affiliated with a Level must be BOTH CY–8 AND 214 Crash Investigator and Study One Trauma Center.’’ compliant or EITHER CY–8 OR 214 Coordinator must also be full-time. Later, the same topic is addressed: compliant? Would the same apply to these two Section XIII. CIREN System Answer: Both. personnel—that they are to be full-time Requirements. Sub-section 2. Staffing iii. Do fire-involved cases include at the institution but not necessarily Requirements and Duties. (A) Principal non-crash events or only crashes? full-time on their CIREN Center efforts? Investigator. ‘‘A full time Principal Answer: Only crashes. Non-crash fires Or are they (and their salaries) expected Investigator must be a clinically active may be included with NHTSA’s to be 100% devoted to the CIREN emergency room trauma surgeon or a permission on a case-by-case basis. program? We want to make sure we clinically active emergency medicine b. Pediatric criteria understand fully from a planning and physician or a clinically active i. Frontal crashes: Are booster seats budgeting standpoint. specialist with a minimum of five (5) included in the definition of a CRS? Answer: The Principal Investigator (or years experience relating to diagnosis Answer: Yes. the Co-Principal Investigator) must be and treatment of motor vehicle injuries ii. Do children restrained with a seat clinically active at the Level One ***’’ Further information is then belt or an airbag alone qualify for Trauma Center. NHTSA realizes that in given on the requirements for a Co- inclusion? order to be clinically active, one could Principal, including being a clinically Answer: Yes. not be dedicated 100% to the CIREN active specialist or someone with iii. Is there interest in cases with project. This also applies to your other biomechanical, engineering or airbag suppression? staff. You should budget salaries based epidemiological experience. Answer: Yes—if the case occupant is on the amount of time you feel should It seems that the two definitions are under the age of 13. be allocated to each project the staff is slightly different, in that Section IX iv. Rear crashes: Are other forms of working on. indicates that the principal OR co- restraint including belts and forward- To further clarify the 100% principal must be one of the categories facing CRS (including boosters) participation, the main PI must be of clinically active specialist. On the allowable for inclusion? available for all key components of the other hand, Section XIII indicates that Answer: At this time, these forms of CIREN process (case reviews, the principal MUST be a clinically restraints may be included on a case-by- presentation of papers, relevant active specialist, with some discretion case basis with prior approval by participant interaction with NHTSA, as to what the co-principal may be. NHTSA. peers, first responders, EMS, etc.) The Thus, to clarify, please let us know v. Rollover crashes: Please clarify why Co-PI, if part-time, must be available for whether someone such with qualifying vehicles must be 214 a portion of these key components. biomechanical, engineering or compliant. Question: What do you mean by a epidemiological experience may be Answer: CIREN concentrates on the Principal Investigator or a Co-Principal principal if the co-principal is a evaluation of the newest, safest safety Investigator must be ‘‘clinically active’’? clinically active specialist. technologies. Answer: They must see patients on a Answer: The principal investigator is Question: Is the Principal Investigator regular basis in the acute care clinical full time at the facility and should be or Co-Principal Investigator required to setting and interact with the first clinically active. The co-principal may be 100% on the project? responders when a crash victim is be part-time and may be someone with Answer: The Principal Investigator (or brought to the facility. biomechanical, engineering or the Co-Principal Investigator) must be Question: Why must the Principal epidemiological experience. The co- clinically active and full time at the Investigator or Co-Principal Investigator principal may also be clinically active. Level One Trauma Center. NHTSA be ‘‘clinically active’’? We have allowed some flexibility here— realizes that in order to be clinically Answer: It is important that there be but either the principal or co-principal active, one could not be dedicated 100% dialog about the crash circumstances investigator MUST see patients on a to the CIREN project. This also applies between the first responders and the regular basis in the acute care setting. to your other staff. You should budget principal investigator or the co- Resumes are requested as attachments to salaries based on the amount of time principal investigator. It is a goal of the proposal, and it is recommended you feel should be allocated to each CIREN to achieve not only improved that appropriate qualifications be project the staff is working on. crash/injury education for EMS contained therein for staffing To further clarify the 100% providers and physicians but also to requirements. participation, the main PI (and Co-PI if facilitate the interaction and Question: For new centers, what full-time) must be available for all key communication between these two dollar amounts should be budgeted for components of the CIREN process (case professions to utilize this information to training by Volpe regarding the use of reviews, presentation of papers, relevant improve triage, transport and treatment the CIREN database, by years 1–5, all participant interaction with NHTSA, of crash victims. costs including travel, indirects, etc? peers, first responders, EMS, etc.) The Question: This is to clarify the Answer: Classroom training costs are Co-PI, if part-time, must be available for requirements for Principal and Co- handled independently from work a portion of these key components. Principal, as described in the under the CIREN cooperative Question: In terms of personnel, the announcement in the Federal Register. agreements. However, each CIREN RFP specifies that the Principal Section IX. Eligibility Requirements, center is responsible for all related Investigator must be full-time. We are First paragraph. This states that: ‘‘The travel expenses (transportation, hotel, assuming since this person also must be Applicant’s principal or co-principal meals, etc.) for the training. Places for a full-time trauma surgeon/ED MD that, must be a clinically active emergency training can be Oklahoma City, Boston VerDate jul<14>2003 17:46 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00085 Fmt 4703 Sfmt 4703 E:\FR\FM\13JAN1.SGM 13JAN1 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Notices 2461 or Washington, DC. Please provide your documentation is provided for the Crash Question: What level of commitment estimate for this. Reimbursement shall Investigator. is required of personnel at each of the not exceed the maximum allowable per Question: Who is anticipated to three levels (30 cases v. 40 cases v. 50 diem for any area. attend training? PI, Co-PI, Program cases/year)? Travel costs for expenses incurred Coordinator? Answer: This is the information we (based on maximum allowable Answer: The training in Oklahoma are asking you to supply us. See the government per diem) are reimbursed City (and the yearly NASS update section on Staffing in the Federal under this Cooperative Agreement (as training) is only for the Crash Register announcement. part of the overall award amount). You Investigator. The one-week training on Question: What type of program will need to budget for 3 one-week trips the CIREN Database is for all staff evaluation is required? to Oklahoma City for the Crash identified as part of your facility’s Answer: If, by program evaluation, Investigator for the first year only; travel CIREN team. The PI and Co-PI are you are referring to reporting to Boston for introductory training in expected to be attend the one-week requirements, quarterly progress and the first year for all staff (one week); and training for at least one day. financial reports are required—as travel to Washington, DC and other Question: What costs should be specified in the announcement. In unspecified domestic locations for budgeted for sending a team member to addition, NHTSA evaluates each center public meetings for staff as you receive training to become a crash on a quarterly basis to determine if designate. You should also budget for a investigator? production levels are being met, and one-week NASS update training held on Answer: The training involves three funding will be adjusted if necessary, as a yearly alternating basis in either Las (3) trips (for a period of one-week each) specified in the announcement. Vegas, Nevada or Orlando, Florida. to Oklahoma City (Air Fare, Hotel/ Question: How are cases chosen? Does In the first year, there will be three (3) Meals/Incidentals). Your budget case selection have to be randomized or one week trips to Oklahoma City for estimates should reflect these trips. time frame dependent? Can we bias the your crash investigator as well as (1) one Question: Section XIII. CIREN System 30–50 cases we select to reflect a priori 4-day trip to Las Vegas for NASS Update Requirements 1. General concerns that coincide with existing Training for the crash investigator. Requirements—Discusses Quarterly research interests such as alcohol, There will be a one-week introductory Meetings and one Grand Rounds. I underage drivers, etc? training class in Boston for all new staff would like to reflect appropriate travel Answer: There are case selection involved in the CIREN project at your in the budget. Should we budget for 4 criteria for all CIREN centers specified facility. We anticipate one other meeting or 5 meetings (in the past the Grand by NHTSA—see Appendix 1. All in Washington, D.C. for staff of your Rounds replaced a Public Meeting and Centers must follow these criteria. As choosing. indicated in Appendix 1, there are a In subsequent years, there will be 1 was associated with one of the 4 Team Meetings)? very small number of cases that can be (one) 4-day trip for your crash pursued with NHTSA’s approval, based investigator to either Orlando, Florida or Answer: For the first year, there will be a one-week training meeting in on PI interest. Las Vegas, Nevada, on an alternating Question: What was the amount of the Boston for all staff, regardless of basis. We anticipate a total of three previous awards and were the prior whether you are a new or existing meetings—two public meetings—one in awards budgeted as cost per case? center. The PI and Co-PI are expected to Washington, D.C. and one elsewhere Answer: The amounts of previous attend the one-week training for at least and a Grand Rounds in Boston with staff awards were between $435,000 and one day. All other key staff is expected of your choosing. $500,000. Awards were not budgeted as to attend the entire week of training. We Question: Are the travel costs cost per case. predetermined by NHTSA? In either anticipate a ‘‘volunteer’’ meeting in May Question: What is the time frame for case what are those amounts for local in Washington, DC and one ‘‘mandatory concluding cases? All at once or rolling? and national travel? attendance’’ meeting also in Answer: See Appendix 3. You should Answer: Travel costs are not Washington, DC. For all other years, we complete your cases as soon as possible predetermined by NHTSA. Travel costs anticipate three meetings—two public since payment depends on it. The SF 36 for expenses incurred (based on meetings—one in DC and one elsewhere information will be on a rolling basis maximum allowable government per and a Grand Rounds in Boston. since follow-up information is collected diem) are reimbursed under this Question: Is OTA coded centrally? at 6-month and 12-month intervals. Cooperative Agreement (as part of the Answer: Yes, at this time with access Question: If our budget projections are overall award amount). You will need to to appropriate radiology images and higher than the amount NHTSA is able budget for 3 one-week trips to reports. to fund for any given Level, will we Oklahoma City for the Crash Question: For new centers, we don’t have the opportunity to make Investigator for the first year only; travel have a list of Tier 1&2 variables—will adjustments? to Boston for introductory training in you provide this information? This has Answer: Yes—as long as you have a the first year for all staff (one week); and implications for data access and staffing. good technical proposal. travel to Washington, D.C. and other Answer: Tier 1 data is information Question: A clerical position is not unspecified domestic locations for that is collected on the crash including specifically identified in Staffing public meetings for staff as you photos of the vehicle, scene diagrams, Requirements. If we can justify a part designate. You should also budget for a etc. (See page 71112 of the Federal time position, can we include in the one-week NASS update training held on Register Notice). Tier 1 data includes budget? a yearly alternating basis in either Las the information that is available in the Answer: Yes. Vegas, Nevada or Orlando, Florida. CIREN electronic cases that can be Question: Section XII. Application Question: What type of training is viewed on our Web site: http://www- Contents C. Trauma Registry Data, provided to new centers? nrd.nhtsa.dot.gov/departments/nrd-50/ requests trauma registry data (for 3 Answer: Training on the CIREN ciren/CIREN.html. Please refer to years) and the number of motor vehicle Database is provided for all staff; Appendix 2 for information on Tier 2 crash occupants admitted to the Trauma training on crash reconstruction/ data. Center, as well as the AIS for each VerDate jul<14>2003 17:46 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00086 Fmt 4703 Sfmt 4703 E:\FR\FM\13JAN1.SGM 13JAN1 2462 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Notices admitted occupant. I would like to Funding, Section XII Application DEPARTMENT OF TRANSPORTATION clarify the definition for each request. Contents, Letter H. Past Performance My interpretation is: (1) Number of and Financial Responsibility, #1: ‘‘At National Highway Traffic Safety MVCs admitted to Trauma Center (not least three (3) references who can attest Administration all MVCs are injured severely enough to to the past performance history and meet Registry criteria). quality of work provided by the [Docket No. NHTSA–2005–20053, Notice 1] Answer: NHTSA realizes that not all Applicant on previous assistance motor vehicle crash (MVC) victims meet agreements and/or contracts.’’ Does this Morgan Motor Company Limited the criteria for the trauma registry—that mean we provide 3 contacts that Receipt of Application for a Temporary is why we want the actual number of someone from NHTSA will phone and Exemption From Part 581 Bumper MVCs on the trauma registry. The cases discuss our performance or 3 letters Standard selected for inclusion in CIREN are the written by people who can attest to our more severe ones. performance? In accordance with the procedures of Question: Do you want the Number of Answer: You should provide three 49 CFR Part 555, Morgan Motor MVCs meeting Trauma Registry criteria persons or entities that we (NHTSA) can Company Limited (‘‘Morgan’’) has (or do you want everyone that meets contact about your performance. Please applied for a Temporary Exemption Registry criteria-gunshots etc)? provide contract/grant number, period from Part 581 Bumper Standard. The Answer: No, the Federal Register of performance and contact information. basis of the application is that announcement indicates that we only Question: On page 1 of the SF 424A compliance would cause substantial want motor vehicle crashes—no Form, the first column—asks for Grant economic hardship to a manufacturer motorcycles or pedestrians (since CIREN Program Function or Activities—is there that has tried in good faith to comply 1 does not currently collect data on these an explanation as to what functions/ with the standard. crashes). activities should be placed here? We are publishing this notice of Question: Section XII. Application Answer: Complete instructions for receipt of the application in accordance Contents C. Trauma Registry Data, filling out this form can be found on the with the requirements of 49 U.S.C. requests trauma registry data (for 3 following Web site: http:// 30113(b)(2), and have made no years) and the number of motor vehicle www.whitehouse.gov/omb/grants/ judgment on the merits of the crash occupants admitted to the Trauma sf424a.pdf. application. Question: On Page 1 of the SF 424A Center, as well as the AIS for each Form, the second column asks for the I. Background admitted occupant Do you want the AIS CFD Assistance numbers—I retrieved for all MVCs or just those meeting Founded in 1910, Morgan is a small the catalogue on line but have no clue Trauma Registry criteria (AIS is not privately owned vehicle manufacturer what numbers to place in here. producing approximately 400 to 500 assigned for non-registry patients)? Answer: It is 20–600. Answer: The Federal Register vehicles per year. The vehicles Question: On Page 1 of the SF 424A manufactured by Morgan are uniquely Announcement indicates that the AIS Form, Section B—Budget Categories—I should be provided for all cases where styled open top roadsters. In recent am assuming that the column years, the only model exported into the it is available. The request is for the numbering (1–4) are to coincide with United States was the Morgan Plus 8.2 maximum AIS per case. For example if the Grant Program Function/Activities Petitioner states that in preparing to your group admits 1000 MVC (car/truck) noted in Section A—Is this assumption occupants in a given time frame (3 correct? replace the Morgan Plus 8 with a new years) and the AIS scores are recorded. Answer: No. You need to put your model in the U.S., Morgan sought to use The following is an example of what is actual budget amount for each of these a V6 engine and a manual transmission being requested. categories in this section on the form. supplied by Ford Motor Company Max AIS1 = 300 occupants, You may also provide your detailed (Ford). However, it became apparent Max AIS2 = 250 occupants, budgets for each year on regular paper that Ford would be unable to supply a Max AIS3 = 200 occupants, for further clarification. suitable engine coupled with a manual Max AIS4 = 100 occupants, Question: Is there a definition of transmission due to the change in the Max AIS5 = 100 occupants, Federal and Non-Federal funds? production plans. The planned Morgan Max AIS6 = 50 occupants. Answer: Federal funds are those you replacement vehicle for the U.S. market could not accommodate an automatic If only severely injured patients are would receive from the Federal transmission. Because no other assigned to the Registry, provide those Government. Non-Federal Funds are alternatives were available, Morgan was AIS scores. If you have any way of those you would get from other unable to proceed with designing a determining the AIS for patients not sources—including your ‘‘in kind’’ replacement vehicle for the U.S. market. assigned to the registry, please provide contributions. Question: Can you explain the Thus, petitioner stopped selling that information also. difference in Sections D and E, which vehicles in the United States in January Question: In Section XII. Application are forecasting future budget years? of 2004. Contents—F. Prior Work Experience, Answer: Section D is your budget for After an unsuccessful attempt to can we include our prior experience as the first year. Section E is your budget a CIREN Center. manufacture a new vehicle that would for each option year. Remember—you replace the Morgan Plus 8, Morgan Answer: Yes. must submit budgets for EACH Question: In Section XII. Application turned its attention to an existing performance level. Contents H. Past Performance and vehicle designed specifically for the Financial Responsibility—Can we use Issued on: January 7, 2005. European market, the Morgan Aero 8 our past CIREN contract as a reference? Michael Perel, Answer: Yes. You may include the Acting Associate Administrator for Vehicle 1 To view the petition, please got to: http:// Safety Research. dms.dot.gov/search/searchFormSimple.cfm (Docket CIREN contract as one reference. No. NHTSA–2005–20053). Question: The RFP states in [FR Doc. 05–654 Filed 1–12–05; 8:45 am] 2 See http://www.Autosite.com/buyersguide/2004- Supplementary Information, Section V. BILLING CODE 4910–59–P morgan-plus-8.asp. VerDate jul<14>2003 17:46 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00087 Fmt 4703 Sfmt 4703 E:\FR\FM\13JAN1.SGM 13JAN1 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Notices 2463 (Aero 8).3 The petition states, that after III. Why Compliance Would Cause by permanently eliminating Morgan prolonged efforts to develop an air bag Substantial Economic Hardship and from the marketplace. As previously system and to make other changes to the How Morgan Has Tried in Good Faith stated, Morgan manufacturers unique vehicle, it was able to bring the Aero 8 To Comply With the Bumper Standard automobiles for which there is no direct into compliance with all the Federal Petitioner contends that it cannot competition or a substitute. 4. Morgan remarks that due to the motor vehicle safety standards. return to profitability unless it receives nature of the Aero 8, it will, in all However, because Aero 8 was not a temporary exemption from the bumper likelihood, be utilized infrequently and originally intended for the U.S. market standard for the Aero 8. Specifically, if each car would not travel in excess of and because the petitioner was working the exemption is granted, Morgan 3,000–4,000 miles annually. on a different vehicle intended for the anticipates a net profit of £596,923 for 5. Morgan does not anticipate selling U.S. market, this latest effort required the first year of Aero 8 being sold in the more than a 100 vehicles annually, and significant financial expenditures in a U.S. Morgan also projects that an therefore, the impact of the exemption short period of time. Petitioner states exemption would have a similar impact is expected to be minimal. that as a consequence, it has not been in the next year. If the exemption is able to develop bumpers that comply denied, Morgan will not be able to sell V. How You May Comment on Morgan with the requirements of Part 581, Aero 8 in the U.S. Resulting loss in sales Application Bumper standard. revenue will result in a projected net We invite you to submit comments on For additional information on the loss of £2,242,527. Morgan indicates the application described above. You company, please go to http:// that a temporary exemption would may submit comments [identified by www.morgan-motor.co.uk/. provide U.S. Morgan dealers with a DOT Docket Number NHTSA–2005– source of revenue. Without Aero 8 being 20053] by any of the following methods: II. Why Morgan Needs a Temporary available in the U.S., some dealers will • Web Site: http://dms.dot.gov. Exemption find it difficult to remain in business Follow the instructions for submitting and support existing customers. The Petitioner indicates that it has comments on the DOT electronic docket petitioner will also be forced to cut back site by clicking on ‘‘Help and experienced substantial economic on existing customer support in the U.S. hardship, especially in light of Information’’ or ‘‘Help/Info.’’ According to its petition, Morgan • Fax: 1–202–493–2251. decreasing sales and substantial costs examined a number of bumper solutions • Mail: Docket Management Facility, incurred in bringing Aero 8 into in order to bring the Aero 8 into U.S. Department of Transportation, 400 compliance with FMVSSs. Specifically, compliance with Part 581. First, Morgan Seventh Street, SW., Nassif Building, Morgan indicates it spent a total of considered mounting bumpers from Room PL–401, Washington, DC 20590. £8,000,000 on developing Aero 8. another Morgan vehicle onto Aero 8. • Hand Delivery: Room PL–401 on Petitioner’s financial submission shows However, because of Aero 8’s unique ≈ the plaza level of the Nassif Building, a net loss of £1,964,872 ( $3,668,648) shape, there were no structures that 400 Seventh Street, SW., Washington, ≈ for the fiscal year 2003; a net gain of would accommodate suitable bumper DC, between 9 a.m. and 5 p.m., Monday ≈ 68,082 ( $127,126) for the fiscal year mountings without interference with through Friday, except Federal 2002; and a net gain of £148,425 headlamps. Second, Morgan considered Holidays. ≈ ( $277,165) for the fiscal year 2001. installing rubber bumpers. However, • Federal eRulemaking Portal: Go to This represents a cumulative net loss for they too caused interference with http://www.regulations.gov. Follow the a period of 3 years of £1,748,365 lighting equipment. Finally, Morgan online instructions for submitting ($3,264,887).4 considered foam-based bumpers. This comments. According to the petitioner, the cost proved to be the only solution that did Instructions: All submissions must of making the Aero 8 compliant with the not result in interference with lighting include the agency name and docket bumper standard is beyond the equipment. However, it required a number or Regulatory Identification company’s current capabilities. change to front and rear aluminum body Number (RIN) for this rulemaking. Note Petitioner contends that developing and panels and chassis at a cost of that all comments received will be building a compliant bumper cannot be approximately £3,000,000. posted without change to http:// done without redesigning the entire As previously stated, Morgan plans to dms.dot.gov, including any personal body structure of the Aero 8. Morgan introduce a fully compliant Aero 8 in information provided. estimates the cost of developing a Part 2007. Docket: For access to the docket in 581-compliant bumper to be order to read background documents or IV. Why an Exemption Would Be in the comments received, go to http:// approximately £3,000,000 and could Public Interest involve significant structural dms.dot.gov at any time or to Room PL– modifications to the vehicle’s chassis. Petitioner put forth several arguments 401 on the plaza level of the Nassif in favor of a finding that the requested Building, 400 Seventh Street, SW., Morgan requests a three-year exemption is consistent with the public Washington, DC, between 9 a.m. and 5 exemption in order to develop interest. Specifically: p.m., Monday through Friday, except compliant bumpers. Petitioner 1. Petitioner notes that Aero 8 Federal Holidays. anticipates the funding necessary for complies with all Federal motor vehicle Privacy Act: Anyone is able to search these compliance efforts will come from safety standards and therefore, the the electronic form of all comments immediate sales of Aero 8 in the United exemption would not increase the safety received into any of our dockets by the States. risks on U.S. highways. name of the individual submitting the 2. Although the Aero 8 bumpers do comment (or signing the comment, if 3 A description of the Aero 8 vehicle is attached not comply with Part 581, the cost of submitted on behalf of an association, to the petition and can be viewed online at http:/ bumper repairs is comparable to business, labor union, etc.). You may /dms.dot.gov/search/searchFormSimple.cfm (Docket No. NHTSA–2005–20053). similarly priced vehicles. review DOT’s complete Privacy Act 4 All dollar values are based on an exchange rate 3. Petitioner argues that denial of the Statement in the Federal Register of £1 = $1.87 as of 11/23/2004. petition would limit consumer choices published on April 11, 2000 (Volume VerDate jul<14>2003 17:46 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00088 Fmt 4703 Sfmt 4703 E:\FR\FM\13JAN1.SGM 13JAN1 2464 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Notices 65, Number 70; Pages 19477–78) or you Docket No. MC–F–21009 to: Surface authority currently held by seller will be may visit http://dms.dot.gov. Transportation Board, 1925 K Street, surrendered. We shall consider all comments NW., Washington, DC 20423–0001. In Under 49 U.S.C. 14303(b), the Board received before the close of business on addition, send one copy of any must approve and authorize a the comment closing date indicated comments to PCSTC’s representative: transaction it finds consistent with the below. To the extent possible, we shall Stephen Flott, Flott & Co. PC, P.O. Box public interest, taking into also consider comments filed after the 17655, Arlington, VA 22216–7655. consideration at least: (1) The effect of closing date. We shall publish a notice FOR FURTHER INFORMATION CONTACT: Eric the transaction on the adequacy of of final action on the application in the S. Davis (202) 565–1608. [Federal transportation to the public; (2) the total Federal Register pursuant to the Information Relay Service (FIRS) for the fixed charges that result; and (3) the authority indicated below. hearing impaired: 1–800–877–8339.] interest of affected carrier employees. Comment closing date: February 14, PCSTC has submitted information, as SUPPLEMENTARY INFORMATION: PCSTC is 2005. a private limited liability company required by 49 CFR 1182.2, including (49 U.S.C. 30113; delegations of organized under the laws of the state of the information to demonstrate that the authority at 49 CFR 1.50. and 501.8) Delaware by CUSA, LLC (CUSA), a proposed transaction is consistent with FOR FURTHER INFORMATION CONTACT: noncarrier, which is wholly owned by the public interest under 49 U.S.C. George Feygin in the Office of Chief KBUS Holdings, LLC (KBUS), which is 14303(b). PCSTC states that the Counsel, NCC–112, (Phone: 202–366– also a noncarrier. KBUS acquired proposed transaction will have no 2992; Fax 202–366–3820; E-Mail: control of over 30 motor passenger impact on the adequacy of [email protected]). carriers formerly owned by Coach USA, transportation services available to the Issued on: January 6, 2005. Inc., and then consolidated those public, that the operations of the carrier involved will remain unchanged, that Stephen R. Kratzke, entities into the motor passenger fixed charges associated with the Associate Administrator for Rulemaking. carriers now controlled by CUSA.1 Since completing the transaction proposed transaction will not be [FR Doc. 05–656 Filed 1–12–05; 8:45 am] adversely impacted and that the BILLING CODE 4910–59–P approved by the Board in STB Docket No. MC–F–21000, PCSTC states that interests of employees of Roesch will CUSA has successfully reorganized the not be adversely impacted. Additional information, including a copy of the DEPARTMENT OF TRANSPORTATION assets and businesses acquired as a result of that transaction into a number application, may be obtained from Surface Transportation Board of federally and non-federally regulated PCSTC’s representative. On the basis of the application, the companies. Annual revenues for the [STB Docket No. MC–F–21009] Board finds that the proposed CUSA group of companies for 2004 are acquisition of assets is consistent with forecast to be $220 million. The CUSA PCSTC, LLC d/b/a Pacific Coast the public interest and should be companies in the CUSA group operate Sightseeing Tours & Charters— authorized. If any opposing comments more than 1,000 coaches and 600 other Acquisition of Assets and Business are timely filed, this finding will be revenue vehicles in 35 states and have Operations—Laidlaw Transit Services, deemed vacated and, unless a final more than 3,500 employees. PCSTC Inc. d/b/a Roesch Lines decision can be made on the record as states that the experienced senior developed, a procedural schedule will AGENCY: Surface Transportation Board. management team that CUSA now has be adopted to reconsider the ACTION: Notice tentatively approving in place has identified the acquisition of application. See 49 CFR 1182.6(c). If no finance transaction. the properties and passenger services opposing comments are filed by the operated by Roesch as a way to expand SUMMARY: CUSA PCSTC, LLC d/b/a expiration of the comment period, this its sightseeing and tour business in the Pacific Coast Sightseeing Tours & notice will take effect automatically and Southern California market. Charters (PCSTC), a motor passenger Roesch, an operating division of will be the final Board action. Board decisions and notices are carrier (MC–463273), has filed an Laidlaw, specializes in sightseeing, tour available on the Board’s Web site at application under 49 U.S.C. 14303 to and charter services in the Las Vegas, http://www.stb.dot.gov. acquire control and operate certain NV, and Southern California areas. assets of Roesch Lines (Roesch), a motor This action will not significantly According to PCSTC, Roesch has been affect either the quality of the human passenger carrier (MC–119843 (Sub-No. unable to restore its sightseeing, tour 11)) and subsidiary of Laidlaw Transit environment or the conservation of and charter business to sufficiently energy resources. Services, Inc. (Laidlaw). The transaction profitable levels in the years following was approved on an interim basis under It is ordered: September 11, 2001, and is generating 1. The proposed finance transaction is 49 U.S.C. 14303(i), and the Board is now insufficient returns on invested capital. tentatively granting permanent approved and authorized, subject to the Under the proposed transaction, PCSTC filing of opposing comments. approval. Persons wishing to oppose the seeks to permanently acquire certain application must follow the rules under 2. If timely opposing comments are assets of Roesch, that were acquired on filed, the findings made in this notice 49 CFR 1182.5 and 1182.8. If no an interim basis, including Roesch’s opposing comments are timely filed, will be deemed as having been vacated. vehicles, trade receivables, and business 3. This notice will be effective on this notice will be the final Board operations, as well as a variety of other February 28, 2005, unless timely action. assets. Once this transaction is opposing comments are filed. DATES: Comments are due February 28, consummated,2 the Federal operating 4. A copy of this notice will be served 2005. PCSTC may reply by March 14, on: (1) The U.S. Department of 2005. If no comments are received by 1 See KBUS Holdings, LLC—Acquisition of Assets Transportation, Federal Motor Carrier February 28, 2005, this notice is and Business Operations—All West Coachlines, Safety Administration, 400 7th Street, effective on that date. Inc., et al., STB Docket No. MC–F–21000 (STB served July 23, 2003). SW., Room 8214, Washington, DC ADDRESSES: Send an original and 10 2 The transaction is expected to close on or about 20590; (2) the U.S. Department of copies of any comments referring to STB January 9, 2005. Justice, Antitrust Division, 10th Street & VerDate jul<14>2003 17:46 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00089 Fmt 4703 Sfmt 4703 E:\FR\FM\13JAN1.SGM 13JAN1 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Notices 2465 Pennsylvania Avenue, NW., Dated: January 7, 2005. DEPARTMENT OF THE TREASURY Washington, DC 20530; and (3) the U.S. Tersheia Carter, Department of Transportation, Office of Acting Director, Taxpayer Advocacy Panel. Internal Revenue Service the General Counsel, 400 7th Street, [FR Doc. 05–740 Filed 1–12–05; 8:45 am] SW., Washington, DC 20590. Privacy Act of 1974; Systems of BILLING CODE 4830–01–P Records Decided: January 7, 2005. By the Board, Chairman Nober, Vice AGENCY: Internal Revenue Service, Chairman Mulvey, and Commissioner DEPARTMENT OF THE TREASURY Treasury. Buttrey. Internal Revenue Service ACTION: Notice of proposed alterations to Vernon A. Williams, an existing Privacy Act System of Secretary. Open Meeting of the Wage & Records. [FR Doc. 05–695 Filed 1–12–05; 8:45 am] Investment Reducing Taxpayer Burden SUMMARY: In accordance with the BILLING CODE 4915–01–P (Notices) Issue Committee of the requirements of the Privacy Act of 1974, Taxpayer Advocacy Panel as amended, the Department of the AGENCY: Internal Revenue Service (IRS), Treasury, Internal Revenue Service DEPARTMENT OF THE TREASURY Treasury. (IRS), is proposing to add to the categories of individuals covered by the Internal Revenue Service ACTION: Notice. system and categories of records in the system of records entitled ‘‘Treasury/ Open Meeting of the Taxpayer SUMMARY: An open meeting of the Wage IRS 34.037—IRS Audit Trail and Advocacy Panel Multilingual Initiative & Investment Reducing Taxpayer Security Records System.’’ These (MLI) Issue Committee Will Be Burden (Notices) Issue Committee of the additions will permit the IRS to monitor Conducted (Via Teleconference) Taxpayer Advocacy Panel will be system resources and enable IRS to conducted (via teleconference). The deter, deny and detect unauthorized AGENCY: Internal Revenue Service (IRS), Taxpayer Advocacy Panel is soliciting access to internal computer hardware Treasury. public comments, ideas and suggestions and software and misuse of IRS ACTION: Notice. on improving customer service at the resources to access external objects, like Internal Revenue Service. Web sites that feature pornography, SUMMARY: An open meeting of the DATES: The meeting will be held gambling, etc. The IRS is also proposing Taxpayer Advocacy Panel Multilingual Thursday, February 3, 2005 from 12 to add a routine use to the system of Initiative (MLI) Issue Committee will be p.m. to 1 p.m. e.t. records to permit disclosure to conducted (via teleconference). The contractors. Taxpayer Advocacy Panel is soliciting FOR FURTHER INFORMATION CONTACT: DATES: public comments, ideas, and Sallie Chavez at 1–888–912–1227, or Comments must be received no suggestions on improving customer (954) 423–7979. later than February 14, 2005. The service at the Internal Revenue Service. alterations to the system of records will SUPPLEMENTARY INFORMATION: Notice is be effective February 22, 2005 unless DATES: The meeting will be held hereby given pursuant to section the IRS receives comments which result Tuesday, February 8, 2005 from 3 p.m. 10(a)(2) of the Federal Advisory in a contrary determination. to 4 p.m. e.t. Committee Act, 5 U.S.C. App. (1988) ADDRESSES: Comments should be sent to that an open meeting of the Wage & FOR FURTHER INFORMATION CONTACT: Inez the Office of Governmental Liaison & Investment Reducing Taxpayer Burden E. De Jesus at 1–888–912–1227, or (954) Disclosure, Internal Revenue Service, (Notices) Issue Committee of the 423–7977. 1111 Constitution Avenue, NW., Taxpayer Advocacy Panel will be held Washington, DC 20224. Comments will SUPPLEMENTARY INFORMATION: Notice is Thursday, February 3, 2005, from 12 be made available for public inspection hereby given pursuant to section p.m. to 1 p.m. e.t. via a telephone and copying in the Internal Revenue 10(a)(2) of the Federal Advisory conference call. If you would like to Service Freedom of Information Reading Committee Act, 5 U.S.C. App. (1988) have the TAP consider a written Room, 1111 Constitution Avenue, NW., that an open meeting of the Taxpayer statement, please call 1–888–912–1227 Room 1621, Washington, DC 20224, Advocacy Panel Multilingual Initiative or (954) 423–7979, or write Sallie telephone number (202) 622–5164, (not Issue Committee will be held Tuesday, Chavez, TAP Office, 1000 South Pine a toll-free call). February 8, 2005 from 3 p.m. to 4 p.m. Island Road, Suite 340, Plantation, FL e.t. via a telephone conference call. If 33324. Due to limited conference lines, FOR FURTHER INFORMATION CONTACT: you would like to have the TAP notification of intent to participate in Colleen Murphy, 5000 Ellin Road, C8– consider a written statement, please call the telephone conference call meeting 300, Lanham, MD 20706, (202) 283– 1–888–912–1227 or (954) 423–7977, or must be made with Sallie Chavez. Ms. 4351 (not a toll-free number). write Inez E. De Jesus, TAP Office, 1000 Chavez can be reached at 1–888–912– SUPPLEMENTARY INFORMATION: The South Pine Island Rd., Suite 340, 1227 or (954) 423–7979, or post Internal Revenue Service (IRS), in Plantation, FL 33324. Due to limited comments to the Web site: http:// fulfillment of legal and regulatory conference lines, notification of intent www.improveirs.org. obligations to protect the integrity of its to participate in the telephone The agenda will include: Various IRS computing resources and to maintain conference call meeting must be made issues. the public trust, must monitor the usage with Inez E. De Jesus. Ms. De Jesus can of those resources to ensure that they be reached at 1–888–912–1227 or (954) Dated: January 7, 2005. are proper and within the scope of the 423–7977, or post comments to the Web Tersheia Carter, purpose for which users were granted site: http://www.improveirs.org. Acting Director, Taxpayer Advocacy Panel. access privileges. Review of audit trails The agenda will include the [FR Doc. 05–741 Filed 1–12–05; 8:45 am] and real time monitoring of system following: Various IRS issues. BILLING CODE 4830–01–P resources will enable IRS to deter, deny VerDate jul<14>2003 17:46 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00090 Fmt 4703 Sfmt 4703 E:\FR\FM\13JAN1.SGM 13JAN1 2466 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Notices and detect unauthorized access to Committee on Government Reform of replaced with a semicolon ‘‘;’’, and the internal computer hardware and the House of Representatives, the following routine use is added at the software and the misuse of IRS Committee on Governmental Affairs of end thereof: resources to access external objects, like the Senate, and the Office of ‘‘(8) disclose records to agency Web sites that feature pornography, Management and Budget, pursuant to contractors who need to have access to gambling, etc. appendix I to OMB Circular A–130, the records in order to perform the A new routine use is also being ‘‘Federal Agency Responsibilities for services required by the contract. proposed for this system of records to Maintaining Records About Recipients must comply with the allow disclosure of records other than Individuals,’’ dated November 30, 2000. requirements of the Privacy Act of 1974, tax returns or return information to For reasons set forth above, IRS as amended, 5 U.S.C. 552a.’’ contractors when the information is proposes to alter the system of records, necessary to perform the services of a Treasury/IRS 34.037—IRS Audit Trail * * * * * government contract for which a and Security Records System, as SAFEGUARDS: contractor has been hired. Because the follows: IRS utilizes contractor services to Description of changes: Remove the perform certain data processing TREASURY/IRS 34.037 current text and insert the following: activities, disclosure of audit trail data SYSTEM NAME: ‘‘Access controls will not be less than may be necessary under the terms of IRS Audit Trail and Security Records those described in IRM 25.10.1 those services. If disclosure is necessary, System—Treasury/IRS. Information Technology Security Policy the contractor to which disclosure is and Guidance, and IRM 1.4.6 Managers made will be subject to the same SYSTEM LOCATION: Security Handbook.’’ limitations applicable to IRS officers Description of changes: The current and employees under the Privacy Act. text is replaced with the following: RETENTION AND DISPOSAL: ‘‘National Office, Area Offices, Territory This new routine uses covers Description of changes: Remove the Offices, Campuses, Computing Centers. information other than tax returns and current text and insert the following: (See IRS appendix A for addresses of return information. Disclosure of IRS tax ‘‘Records are maintained in accordance IRS offices.)’’ returns and return information may be with record disposition handbooks, IRM made only as provided by 26 U.S.C. CATEGORIES OF INDIVIDUALS COVERED BY THE 1.15.6, Retiring and Requesting Records 6103(n). Treasury/IRS regulations at 26 SYSTEM: and IRM 1.15.17, Records Management, CFR 301.6103(n)–1 provide guidance on Description of changes: The period Records Control Schedule for the limited conditions of disclosure ‘‘.’’ at the end of sentence is replaced Information Technology.’’ permissible under section 6103(n). Other changes are being made to the with the following text: ‘‘or who have SYSTEM MANAGER(S) AND ADDRESS: notice to update the information used IRS computing equipment/ provided under ‘‘system location,’’ resources. Information monitored Description of changes: Remove the ‘‘safeguards,’’ ‘‘retention and disposal,’’ includes Internet sites accessed.’’ current text and insert the following: and ‘‘system manager and addresses.’’ CATEGORIES OF RECORDS IN THE SYSTEM: ‘‘Director, Operational Assurance, In addition, the Service will be Description of changes: The period Mission Assurance, Deputy following OMB Guidelines under which ‘‘.’’ at the end of sentence is replaced Commissioner Operations Support, Government agencies have been with the following text: ‘‘or used IRS Internal Revenue Service, Department of directed to become more efficient while computing equipment/resources.’’ the Treasury, 5000 Ellin Road, C8–300, sustaining service to customers by using Lanham, MD 20706.’’ * * * * * competitive sourcing. * * * * * The system notice was last published ROUTINE USES OF RECORDS MAINTAINED IN THE Dated: January 6, 2005. in its entirety in the Federal Register on SYSTEM, INCLUDING CATEGORIES OF USERS AND December 10, 2001 at 66 FR 63818. THE PURPOSES OF SUCH USES: Arnold I. Havens, The altered system of records report, * * * * * General Counsel. as required by 5 U.S.C. 552a(r) of the Description of changes: The period [FR Doc. 05–726 Filed 1–12–05; 8:45 am] Privacy Act, has been submitted to the ‘‘.’’ at the end of routine use (7) is BILLING CODE 4830–01–P VerDate jul<14>2003 17:46 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00091 Fmt 4703 Sfmt 4703 E:\FR\FM\13JAN1.SGM 13JAN1 2467 Corrections Federal Register Vol. 70, No. 9 Thursday, January 13, 2005 This section of the FEDERAL REGISTER SECURITIES AND EXCHANGE SECURITIES AND EXCHANGE contains editorial corrections of previously COMMISSION COMMISSION published Presidential, Rule, Proposed Rule, and Notice documents. These corrections are [Release No. 34–50928; File No. SR–BSE– [Release No. 34–50934; File No. SR–Amex– prepared by the Office of the Federal 2004–59] 2004–108] Register. Agency prepared corrections are issued as signed documents and appear in Self-Regulatory Organizations; Notice Self-Regulatory Organizations; the appropriate document categories of Filing and Immediate Effectiveness American Stock Exchange LLC; Notice elsewhere in the issue. of Proposed Rule Change by the of Filing and Immediate Effectiveness Boston Stock Exchange, Inc. To of Proposed Rule Change Relating to Amend the Exchange’s Rule Relating Odd-Lots in Nasdaq Securities to its Regulatory Transaction Fee December 27, 2004. Correction Correction In notice document 04–28669 beginning on page 126 in the issue of In notice document 05–79 beginning Monday, January 3, 2005, make the on page 412 in the issue of Tuesday, following correction: January 4, 2005 make the following On page 128, in the first column, in correction: the 10th line from the top, ‘‘January On page 414, in the first column, in 24,2009’’ should read ‘‘January 24, the 18th line from the top, ‘‘January 21, 2005’’. 2005’’ should read ‘‘January 25, 2005.’’ [FR Doc. C4–28669 Filed 1–12–05; 8:45 am] [FR Doc. C5–79 Filed 1–12–05; 8:45 am] BILLING CODE 1505–01–D BILLING CODE 1505–01–D VerDate jul<14>2003 17:49 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00001 Fmt 4734 Sfmt 4734 E:\FR\FM\13JACX.SGM 13JACX Thursday, January 13, 2005 Part II Consumer Product Safety Commission 16 CFR Parts 1633 and 1634 Standard for the Flammability (Open Flame) of Mattresses and Mattress/ Foundation Sets; Standard To Address Open Flame Ignition of Bedclothes; Proposed Rules VerDate jul<14>2003 17:56 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\13JAP2.SGM 13JAP2 2470 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules CONSUMER PRODUCT SAFETY Comments to OMB should be directed the fatalities that occur outside the room COMMISSION to the Desk Officer for the Consumer where the fire originated and about half Product Safety Commission, Office of of the fatalities that occur within the 16 CFR Part 1633 Information and Regulatory Affairs, room of origin. A mattress that reduces OMB, Washington, DC 20503. The the likelihood of reaching flashover Standard for the Flammability (Open Commission asks commenters to could significantly reduce deaths and Flame) of Mattresses and Mattress/ provide copies of such comments to the injuries associated with bedroom fires. Foundation Sets; Notice of Proposed Commission’s Office of the Secretary, [1&2] 2 Rulemaking with a caption or cover letter identifying The size of a fire is measured by its the materials as comments submitted to rate of heat release. A heat release rate AGENCY: Consumer Product Safety OMB on the proposed collection of of approximately 1,000 kilowatts Commission. information requirements for the (‘‘kW’’) leads to flashover in a typical ACTION: Notice of proposed rulemaking. proposed mattress standard. room. Tests of twin size mattresses of FOR FURTHER INFORMATION CONTACT: traditional construction (complying SUMMARY: The Commission is proposing Margaret Neily, Directorate for with the existing mattress standard in a flammability standard under the Engineering Sciences, Consumer 16 CFR 1632) without bedclothes have authority of the Flammable Fabrics Act Product Safety Commission, measured peak heat release rates that that would address open flame ignition Washington, DC 20207; telephone (301) exceeded 2,000 kW in less than 5 of mattresses and mattress and 504–7530. minutes. Tests of traditional king size foundation sets (‘‘mattresses/sets’’). The SUPPLEMENTARY INFORMATION: mattresses measured nearly double that Commission currently has a peak rate of heat release. [2] flammability standard that addresses A. Background Fire modeling and available test data ignition of mattresses by cigarettes. On October 11, 2001, the Commission show that as a room fire grows, a layer However, that standard does not address issued an advance notice of proposed of accumulating hot gases and smoke mattress fires ignited by open flames. rulemaking (‘‘ANPR’’) concerning the thickens downward from the ceiling. The proposed standard sets performance open flame ignition of mattresses/ For fires exceeding 600 kW, this layer requirements based on research bedding. 66 FR 51886. The ANPR was typically descends to less than three feet conducted by the National Institute of the result of the staff’s evaluation of fire from the floor. Heat release rates Standards and Technology (‘‘NIST’’). data over the course of several years and exceeding 500 kW are generally Mattresses/sets that comply with the petitions filed by Whitney Davis, considered to pose a serious threat of proposed requirements will generate a director of the Children’s Coalition for incapacitation and of igniting nearby smaller size fire, thus reducing the Fire-Safe Mattresses (‘‘CCFSM’’). items. [2] The objective of the proposed possibility of flashover occurring. These Although the Commission has an standard is to limit the size of mattress/ improved mattresses should result in existing mattress flammability standard bedding fires to below 1,000 kW for a significant reductions in deaths and that addresses ignition by cigarettes, 16 period of time by reducing the heat injuries associated with mattress fires. CFR Part 1632, no current Commission release from the bed, specifically the Due to the interaction of mattresses and standard directly addresses open flame mattress and foundation, and by bedclothes discussed herein, elsewhere ignition of mattresses. The most reducing the likelihood that other in today’s Federal Register the common open flame sources are objects in the room will become Commission is publishing an advance lighters, candles and matches. The involved in the fire. notice of proposed rulemaking to begin Commission is now issuing a notice of rulemaking on bedclothes. Research has shown that the mattress, proposed rulemaking (‘‘NPR’’) foundation and bedclothes operate as a DATES: Written comments in response to proposing a flammability standard to system in bedroom fires. Often the first this document must be received by the address open flame ignition of item ignited is bedclothes, which then 1 Commission not later than March 29, mattresses. ignite the mattress. The gas burners 2005. Comments on elements of the Characteristics of mattress/bedding used in the proposed test method are proposed rule that, if issued in final fires. A burning mattress generally designed to represent burning form would constitute collection of provides the biggest fuel load in a bedclothes. Research has indicated that information requirements under the typical bedroom fire. Once the mattress bedclothes themselves can contribute Paperwork Reduction Act, may be filed ignites, the fire develops rapidly significantly to fires, even reaching heat with the Office of Management and creating dangerous flashover conditions. release rates of up to 800 kW. [2&13] Budget (‘‘OMB’’) and with the Flashover is the point at which the Because of the role of bedclothes in Commission. Comments will be entire contents of a room are ignited mattress fires, the Commission is received by OMB until March 14, 2005. simultaneously by radiant heat, making initiating a rulemaking on bedclothes ADDRESSES: Comments should be filed conditions in the room untenable and through an ANPR that is published by email to [email protected]. safe exit from the room impossible. At elsewhere in today’s Federal Register. Comments also may be filed by flashover, room temperatures typically The Commission received numerous telefacsimile to (301)504–0127 or exceed 600–800 C (approximately 1100– comments on the mattress ANPR mailed, preferably in five copies, to the 1470 F). In these conditions, carbon concerning the role of bedclothes and Office of the Secretary, Consumer monoxide rapidly increases, and oxygen the need for a rule addressing them. Product Safety Commission, is rapidly depleted. Mattress fires that These comments are discussed in Washington, DC 20207–0001, or lead to flashover are responsible for section J of this document. delivered to the Office of the Secretary, about two-thirds of all mattress Consumer Product Safety Commission, fatalities. This accounts for nearly all of 2 Numbers in brackets refer to documents listed Room 502, 4330 East-West Highway, at the end of this notice. They are available from 1 Commissioner Thomas H. Moore issued a the Commission’s Office of the Secretary (see Bethesda, Maryland; telephone (301) statement, a copy of which is available from the ‘‘Addresses’’ section above) or from the 504–7530. Comments should be Commission’s Office of the Secretary or from the Commission’s Web site (http://www.cpsc.gov/ captioned ‘‘Mattress NPR.’’ Commission’s Web site, http://www.cpsc.gov. library/foia/foia.html). VerDate jul<14>2003 17:56 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 E:\FR\FM\13JAP2.SGM 13JAP2 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules 2471 NIST research. The industry’s Sleep Section 4 also sets forth the process upholstered furniture which does not Products Safety Council (‘‘SPSC’’), an by which the Commission may issue a contain a mattress. However, the affiliate of the International Sleep flammability standard. As required in Commission could decide to address Products Association (‘‘ISPA’’), section 4(g), the Commission has issued mattress pads or other top of the bed sponsored a research program at the an ANPR. 66 FR 51886. 15 U.S.C. items in its rulemaking on bedclothes. National Institute of Standards and 1193(g). The Commission has reviewed Under the proposed standard, the Technology (‘‘NIST’’) to better the comments submitted in response to mattress must be tested with its understand mattress/bedding fires and the ANPR and now is issuing a notice corresponding foundation if the establish the technological basis for of proposed rulemaking (‘‘NPR’’) mattress and foundation are offered for future performance requirements of a containing the text of the proposed rule sale as a set. A foundation is a ticking standard. NIST has conducted extensive along with alternatives the Commission covered structure used to support a research, which has become the basis has considered and a preliminary mattress. for California’s open flame mattress regulatory analysis. 15 U.S.C. 1193(i). According to ISPA, the top four standard (Technical Bulletin or ‘‘TB’’ The Commission will consider producers of mattresses and foundations 603) and for the Commission’s proposed comments provided in response to the account for almost 60 percent of total standard. NPR and decide whether to issue a final U.S. production. In 2001, there were 639 The NIST research showed that a full- rule along with a final regulatory establishments producing mattresses in scale test is the most reliable method for analysis. 15 U.S.C. 1193(j). The the U.S. [10] measuring fire performance of Commission cannot issue a final rule Mattresses and foundations are mattresses/sets because they contain unless it makes certain findings and typically sold as sets. However, more many materials in a complex includes these in the regulation. The mattresses are sold annually than construction. Because the order of Commission must find: (1) If an foundations; some mattresses are sold as materials, method of assembly, quantity applicable voluntary standard has been replacements for existing mattresses of materials, and quality of construction, adopted and implemented, that (without a new foundation) or are for among other factors, can affect fire compliance with the voluntary standard use in platform beds or other beds that behavior, the complete product may is not likely to adequately reduce the do not require a foundation. ISPA perform differently in a fire than the risk of injury, or compliance with the estimated that the total number of U.S. individual components would. Based on voluntary standard is not likely to be conventional mattress shipments was its research, NIST drafted a full-scale substantial; (2) that benefits expected 21.5 million in 2002, and is estimated test method for mattresses that uses a from the regulation bear a reasonable to be 22.1 million in 2003 and 22.8 pair of gas burners to represent burning relationship to its costs; and (3) that the million in 2004. These estimates do not bedclothes as the ignition source. Both regulation imposes the least include futons, crib mattresses, juvenile the Commission’s proposed standard burdensome alternative that would mattresses, sleep sofa inserts, or hybrid and California’s TB 603, use this test adequately reduce the risk of injury. 15 water mattresses. These ‘‘non- method. [1&2] U.S.C. 1193(j)(2). In addition, the conventional’’ sleep surfaces are Overview of the proposed standard. Commission must find that the standard estimated to comprise about 10 percent With certain exceptions explained in (1) is needed to adequately protect the of total annual shipments of all sleep section G below, the proposed standard public against the risk of the occurrence products. The value of mattress and requires manufacturers to test of fire leading to death, injury or foundation shipments in 2002, specimens of each of their mattress significant property damage, (2) is according to ISPA, was $3.26 and $1.51 prototypes (designs) before mattresses reasonable, technologically practicable, billion respectively. [10] based on that prototype may be and appropriate, (3) is limited to fabrics, The expected useful life of mattresses introduced into commerce. If a mattress related materials or products which can vary substantially, with more and foundation are offered for sale as a present unreasonable risks, and (4) is expensive models generally set, the mattress must be tested with the stated in objective terms. 15 U.S.C. experiencing the longest useful lives. corresponding foundation. The 1193(b). Industry sources recommend prototype specimens are tested using a replacement of mattresses after 10 to 12 pair of gas burners as the ignition C. The Product years of use, but do not specifically source. The mattress and corresponding The proposed standard applies to estimate the average life expectancy. In foundation, if any, must not exceed a mattresses and mattress and foundation the 2001 mattress ANPR, the 200 kW peak heat release rate at any sets (‘‘mattresses/sets’’). Mattress is Commission estimated the expected time during the 30 minute test, and the defined as a resilient material, used useful life of a mattress at about 14 total energy released must be less than alone or in combination with other years. To estimate the number of 15 megajoules (‘‘MJ’’) for the first 10 materials, enclosed in a ticking and mattresses in use for analysis of the minutes of the test. The proposed intended or promoted for sleeping upon. proposed rule, the Commission used standard is discussed in greater detail in This includes adult mattresses, youth both a 10 year and 14 year average section G of this document. mattresses, crib mattresses (including product life. Using CPSC’s Product portable crib mattresses), bunk bed Population Model, the Commission B. Statutory Authority mattresses, futons, flip chairs without a estimates the number of mattresses This proceeding is conducted permanent back or arms, sleeper chairs, currently in use (i.e., in 2004) to be 233 pursuant to Section 4 of the Flammable and water beds and air mattresses if million mattresses using a ten-year Fabrics Act (‘‘FFA’’), which authorizes they contain upholstery material average product life, and 302.6 million the Commission to initiate proceedings between the ticking and the mattress mattresses using a fourteen-year average for a flammability standard when it core. Mattresses used in items of product life. [8&10] finds that such a standard is ‘‘needed to upholstered furniture such as According to industry sources, queen protect the public against unreasonable convertible sofa bed mattresses are also size mattresses are the most commonly risk of the occurrence of fire leading to included. Not included as mattresses used. In 2002, queen size mattresses death or personal injury, or significant are: sleeping bags, mattress pads, or were used by 34 percent of U.S. property damage.’’ 15 U.S.C. 1193(a). other items used on top of the bed, or consumers. Twin and twin XL are used VerDate jul<14>2003 17:56 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 E:\FR\FM\13JAP2.SGM 13JAP2 2472 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules by 31.2 percent of U.S. consumers, Among the addressable casualties, NIST had previously estimated that a followed by full and full XL (21 open flame fires accounted for about heat release rate that may cause percent), king and California king (11 140 deaths (32 percent) and 1,050 flashover for an ordinary sized room is percent), and all other sizes (2.6 injuries (49 percent) annually. Smoking about 1000 kW. Thus, a mattress that percent). The average manufacturing fires accounted for 210 deaths (48 contributes more than 500 kW at the price in 2002 was $152 for a mattress percent) and about 640 injuries (30 same time as bedclothes are and $86 for a foundation. Thus, the percent) annually. Children younger contributing 400 kW could lead to average manufacturing price of a than age 15 accounted for an estimated flashover. NIST conducted additional mattress/foundation set was about $238 120 addressable deaths (27 percent) and tests concerning bedclothes for CPSC, in 2002. Although there are no readily 500 addressable injuries (23 percent) which are discussed later in this available data on average retail prices annually. Adults age 65 and older section. [2] for mattress/foundation sets by size, accounted for an estimated 120 Other objects in the same room. Part ISPA reports that sets selling under addressable deaths (27 percent) and 250 of the NIST study assessed the potential $500 represent 40.7 percent of the addressable injuries (12 percent) of a bed fire to ignite other objects in the market. Sets selling for between $500 annually. [3] same room. Other objects become and $1000 represent 39.2 percent of the involved by either direct flame E. NIST Research market. [10] impingement or by fire generated The top four manufacturers of Overview. NIST has conducted radiation. Although the location of mattresses and foundations operate extensive research on mattress/bedding objects in a bedroom is highly variable, about one-half of the 639 U.S. fires for SPSC and the Commission. their potential involvement is establishments producing these SPSC sponsored several phases of significantly influenced by their shape products. The remainder of the research at NIST to gain an and properties relating to ease of establishments are operated by smaller understanding of the complex fire ignition. NIST concluded from this firms. According to the Statistics of U.S. scenario involving mattresses and to research that further reducing the heat Businesses Census Bureau data for 2001, develop an effective test method to release rate from the bed could reduce there were 557 mattress firms operating evaluate a mattress’s performance when the potential for ignition of other objects these 639 establishments. According to it is exposed to an open flame ignition and therefore reduce their contribution the same data source, all but twelve source. The first phase of the research to the overall heat release rate. [2] mattress firms had less than 500 program, known as Flammability Modeling. NIST used fire modeling to employees. If one considers a firm with Assessment Methodology for Mattresses, explore the effect that heat and toxic fewer than 500 employees to be a small involved four main objectives: (1) gases from bed fires can have business, then 97.8 percent (557–12/ Evaluating the behavior of various throughout a home. Fire modeling is an 557) of all mattress firms are small combinations of bedclothes, (2) analytical tool that uses mathematical businesses. [9&10] The potential impact characterizing the heat impact imposed calculations to predict real-world fire of the proposed standard on these small on a mattress by bedclothes, (3) behavior. NIST used this modeling to businesses is discussed in section M of developing burners to simulate burning corroborate test data exploring the this document. bedclothes, and (4) testing the burners predicted levels of heat and toxic gases for the room of origin and outside the D. Risk of Injury on different mattress designs to ensure their consistency. NIST’s findings, room of origin. The modeling suggested Annual estimates of national fires and published in NISTIR 6498, established that untenable fire conditions would fire losses involving ignition of a the basis for an appropriate test method occur within the room, with little mattress or bedding are based on data and the next phase of the research difference between a small and large from the U.S. Fire Administration’s program. [2] 3 room, at 10 minutes and 25 MJ. [2] National Fire Incident Reporting System Phase 2 of the NIST research focused Gas burners’ correspondence to (‘‘NFIRS’’) and the National Fire on (1) analyzing the hazard by bedclothes. In addition to the research Protection Administration’s (‘‘NFPA’’) estimating the peak rate of heat release discussed above, NIST conducted annual survey of fire departments. The from a mattress with an improved separate studies for CPSC. One series of most recent national fire loss estimates design, (2) measuring a burning tests evaluated improved mattress indicated that mattresses and bedding mattress’s ability to involve nearby designs and further supported the were the first items to ignite in 19,400 items in the room, and (3) assessing (in correlation between full scale mattress residential fires attended by the fire a limited way) bedclothes and their tests with the NIST gas burners and service annually during 1995–1999. contribution to mattress fire hazards. actual bedclothes. The study, NISTIR These fires resulted in 440 deaths, 2,230 This testing used mattresses with 7006–Flammability Test of Full-Scale injuries and $273.9 million in property improved flammability properties while Mattresses: Gas Burners Versus Burning loss each year. Of these, the staff the flammability properties of Bedclothes, found that mattress designs considers an estimated 18,500 fires, 440 bedclothes remained unchanged. [2] showing good performance when tested deaths, 2,160 injuries, and $259.5 The findings from Phase 2 are detailed with burners also exhibited significantly million property loss annually to be in NIST Technical Note 1446, improved performance when tested addressable by the proposed standard. Estimating Reduced Fire Risk Resulting with burning bedclothes. [2] Addressable means the incidents were from an Improved Mattress Interaction between mattresses and of a type that would be affected by the Flammability Standard. bedclothes. NIST’s work for CPSC also proposed standard solely based on the Bedclothes. During phase 2, NIST reinforced observations from previous characteristics of the fire cause (i.e., a conducted tests on twin and king size NIST research on the interaction fire that ignited a mattress or that mattresses with corresponding size between the mattress and bedclothes. ignited bedclothes which in turn ignited bedclothes. In some tests, the bedclothes NISTIR 7006. Tests on improved the mattress). For example, an incident contributed up to 400 kW to the fire. mattress designs with burning that involved burning bedclothes and bedclothes as the ignition source tend to occurred in a laundry room would not 3 NIST publications can be found at NIST’s Web have two distinct heat release rate be considered addressable. [3] site, (http://fire.nist.gov/bfrlpubs/). peaks. The first peak is predominantly VerDate jul<14>2003 17:56 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 E:\FR\FM\13JAP2.SGM 13JAP2 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules 2473 from the burning bedclothes, while the box spring sets and futons. TB 603 is crib mattresses, youth mattresses). It second is predominantly from the expected to go into effect January 1, also refers to a glossary of terms where mattress and foundation. In tests of good 2005 and applies to items manufactured these items are further defined. performing mattress designs, NIST for sale in California. The California Specifically excluded from the found the second peak (i.e., from the standard incorporates the same test definition of mattress are mattress pads, mattress/foundation) to be comparable methodology as the Commission’s pillows and other top of the mattress or lower than the first peak (i.e., from proposed standard. Both are based on items, upholstered furniture which does the bedclothes) and to occur appreciably testing and research conducted at NIST. not contain a mattress, and juvenile or later. [2] Both TB 603 and the Commission’s other product pads. Mattress pads and Mattress size. In another study proposed standard require that other top of the bed items may be conducted by NIST in 2004 for CPSC, mattresses not exceed a 200 kW peak addressed in the Commission’s NIST found that a twin size mattress heat release rate during the 30 minute rulemaking on bedclothes. made in a design that yields a very low test. However, the Commission’s Like the Commission’s existing peak heat release rate (less than 50 kW) proposed standard requires that mattress standard, the proposed tested with gas burners behaves mattresses not exceed a total heat standard allows an exemption for one- essentially the same as a queen or king release of 15 MJ in the first ten minutes of-a-kind mattresses and foundations if size mattress of the same design. of the test, while TB 603 sets test criteria they are manufactured to fulfill a Mattress designs that yield a moderate of 25 MJ in the first 10 minutes of the physician’s written prescription or heat release rate peak (greater than 100 test. manufactured in accordance with kW, but less than 200 kW) tend to The Commission believes that the comparable medical therapeutic behave the same for the first 30 minutes research NIST has conducted, discussed specifications. in twin size and king size. After ignition above, establishes the most appropriate 3. Test Method with the burners, the fire is localized basis for an open flame mattress The proposed standard uses the full (i.e., its spread is limited) and is not standard. Several comments on the scale test method developed by NIST in affected by the mattress size. [2] ANPR also expressed this view (see the course of its research. Based on the NIST evaluated the same mattress section J of this document). designs and sizes with burning NIST work, the Commission believes bedclothes. NIST found the mattress G. The Proposed Standard that a full scale test is necessary because of the complexities of mattress size to have an apparent effect during 1. General these tests due to the differences in the construction. Testing individual size and fuel load of bedclothes. In tests The proposed standard sets forth components will not necessarily reveal of ‘‘well performing’’ mattress designs performance requirements that each the likely fire performance of the with burning bedclothes, the early heat mattress/set must meet before being complete mattress. release rate peak when testing a king introduced into commerce. The test Under the proposed standard, the size mattress was triple that when method is a full scale test based on the specimen (a mattress and corresponding testing a twin size mattress. This was NIST research discussed above. The foundation if they are to be offered for driven by the burning bedclothes. mattress specimen (a mattress or sale together as a set) is exposed to a Mattress designs that showed a mattress and foundation set, usually in pair of T-shaped gas burners. The moderate heat release rate peak when a twin size) is exposed to a pair of T specimen is to be no smaller than twin tested with gas burners resulted in more shaped propane burners and allowed to size, unless the largest size mattress or serious fires when tested with burning burn freely for a period of 30 minutes. set produced of that type is smaller than bedclothes, especially in king size The burners were designed to represent twin size, in which case the largest size mattresses. [2] burning bedclothes. Measurements are must be tested. taken of the heat release rate from the The burners impose a specified local F. Existing Open Flame Standards specimen and energy generated from the heat flux simultaneously to the top and In the mattress ANPR the staff fire. The proposed standard establishes side of the mattress/set for a specified reviewed 13 existing tests or standards two test criteria, both of which the period of time (70 seconds for the top relevant to open flame hazards mattress/set must meet in order to burner and 50 seconds for the side associated with mattresses/bedding. comply with the standard: (1) The peak burner). The burners were designed to These included Technical Bulletin rate of heat release for the mattress/ represent the local heat flux imposed on (‘‘TB’’) 129, TB 121, and TB 117 from foundation set must not exceed 200 kW a mattress by burning bedclothes. The California, the Michigan Roll-up Test, at any time during the 30 minute test; heat flux and burner duration were and Boston Fire Department (‘‘BFD’’) and (2) The total heat release must not derived from data obtained from 1X–11, as well as standards from ASTM exceed 15 MJ for the first 10 minutes of burning a wide range of bedding items. International (formerly the American the test. As discussed above, NIST test results Society for Testing and Materials) using the burners have been shown to 2. Scope (ASTM E–1474 and ASTM E–1590), correlate with results obtained with Underwriters Laboratories (UL 1895 and The proposed standard applies to bedclothes. UL 2060), the National Fire Protection mattresses and mattress and foundation The proposed standard allows the test Association (NFPA 264A and NFPA combinations sold as sets. Mattress is to be conducted either in an open 267) and the United Kingdom (British defined, as it is in the existing mattress calorimeter or test room configuration. Standard (‘‘BS’’) 6807 and BS 5852). 66 standard at 16 CFR 1632, as ‘‘a resilient Tests have shown that either FR 51886. material or combination of materials configuration is acceptable. Although As directed by California Assembly enclosed by a ticking (used alone or in room effects (i.e., the size and Bill 603, California’s Bureau of Home combination with other products) characteristics of the room) can be a Furnishings and Thermal Insulation intended or promoted for sleeping factor in mattress flammability (‘‘CBHF’’) adopted Technical Bulletin upon.’’ The proposed standard lists performance, test data show that room 603 (‘‘TB 603’’), an open flame fire several types of mattresses that are effects do not become an issue until a standard for mattresses and mattress/ included in this definition (e.g., futons, fire reaches about 300 to 400 kW. VerDate jul<14>2003 17:56 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 E:\FR\FM\13JAP2.SGM 13JAP2 2474 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules Because the proposed standard limits to the fire. The Commission believes However, as discussed above, after 30 the peak rate of heat release to 200 kW, that the types of ticking (i.e, the minutes, test variability increases, costs room effects should not be an issue in outermost fabric or material that covers increase, and substantially fewer the test. Preliminary analysis of data the mattress) currently used on technologically feasible design from the inter-laboratory study mattresses can continue to be used with approaches are available to meet the (discussed in section I) does not suggest the 15 MJ/10 minute criteria. [2] This test. Most importantly, it is unclear from any significant differences between tests will allow manufacturers considerable available data that much additional based on either test configuration. The flexibility in their mattress designs benefit would accrue with a 60 minute NIST test method allowed a third test because they should be able to change test. configuration, essentially a smaller test tickings without affecting the mattresses 5. Prototype Testing room than described in the proposed performance under the test method, standard. However, in addition to safety except in the unusual case where the The proposed standard requires, with concerns, using the burners in the ticking itself is part of the fire resistance certain exceptions, that mattress smaller size room is awkward. Only one design. manufacturers must test specimens laboratory in the country uses this California’s TB 603 prescribes a 25 MJ representative of their mattress/set configuration. Therefore, the limit in the first 10 minutes of the test. prototype (design) before introducing a Commission decided to propose only However, NIST research, supported by mattress/set into commerce. Mattresses the two configurations. fire modeling, has shown that untenable then produced based on the prototype fire conditions can occur in a room from mattress must be identical in all 4. Test Criteria a fire producing 25 MJ in the first 10 material aspects of their components, The proposed standard establishes minutes of a test. This represents the materials, and method of construction to two test criteria that the specimen must total contribution from all possibly the prototype. The term ‘‘manufacturer’’ meet to pass the test. The peak rate of involved items. That is, a fire that is defined as ‘‘an individual plant or heat release must not exceed 200 kW at reaches a size of 25 MJ within 10 factory at which mattresses and/or any time during the 30 minute test, and minutes could limit a person’s ability to mattress and foundation sets are the total heat release must not exceed 15 escape the room. According to the manufactured or assembled.’’ The MJ during the first 10 minutes of the mattress industry and available test definition includes importers. As in the test. [2&8] data, there are numerous existing mattress standard (16 CFR part Setting the peak rate of heat release technologically feasible approaches to 1632), this definition refers to the limit at 200 kW (during the 30 minute mattress designs for meeting the establishment where the mattress is test) ensures a less flammable mattress, proposed 15 MJ /first 10 minute limit. produced or assembled, not the reducing the contribution from the [2] company. Thus, the plant or factory mattress, while taking into account that The 30 minute test duration is related producing or assembling the mattress/ bedclothes and other room contents are to, but not equivalent to, the estimated set is required to conduct prototype likely to contribute to the fire. time required to permit discovery of the testing. This is also true for importers. Numerous technologically feasible fire and allow escape under typical fire However, there are three exceptions to mattress designs are available that can scenarios. A mattress complying with this requirement. meet the 200 kW criterion. Limiting the the proposed criteria under the 30 A manufacturer is allowed to sell a peak rate of heat release represents a minute test is estimated to provide an mattress/set based on a prototype that significant improvement in performance adequate time for discovery of and has not been tested if the prototype compared to the 16 CFR part 1632 escape from the fire under certain differs from a qualified prototype (one cigarette ignition standard for mattresses conditions or assuming the bedclothes that has been tested and meets the and will have the most impact on do not contribute to the extent of posing criteria) only with respect to: (1) The available escape time. A peak rate of a hazardous condition early in the fire. mattress/foundation size (e.g twin, heat release lower than 200 kW could Compared to current scenarios, this is a queen, king etc.); (2) the ticking, unless limit the mattress design approaches substantial increase in estimated escape the qualified ticking has characteristics that would meet the standard, thus time. The effectiveness of the estimated that are designed to improve the increasing costs. [2&8] We note that escape time is based on timely escape mattress’s test performance; and/or (3) California’s TB 603 also prescribes a 200 from the potentially hazardous any other component, material or kW peak rate of heat release. conditions. [2&3] method of construction, provided that The proposed standard requires that Multiple test results indicate that a the manufacturer can show, on an the total heat release in the first 10 large number of mattress designs (using objectively reasonable basis, that such minutes of the test must not exceed 15 a range of fire retardant barrier change will not cause the prototype to MJ. This early limit ensures that the technologies) can perform well in tests exceed the specified test criteria. The mattress will have little involvement in with gas burners for 30 minutes. Many third numbered option allows a the fire initially and provides a of the tested designs are able to meet the manufacturer to construct and test a substantial increase in escape time by proposed test criteria for 30 minutes, ‘‘worst case’’ prototype and rely on it to slowing the rate of fire growth and but perform erratically after 30 minutes. cover a range of related designs without severity. The mattress’s initial The number of failures, test variability, having to perform additional testing. If performance is important because if the and performance unreliability increases a manufacturer chooses to take this mattress becomes significantly involved after 30 minutes. A substantial range of approach, he/she must maintain records in the early stages of the fire, this will technologically feasible and viable documenting that the change(s) will not greatly limit the time a person has to solutions and design choices exist that cause the prototype to exceed the test escape. [2] meet the proposed test criteria for 30 criteria (see § 1633.11(b)(4) of the The proposed 15 MJ limit in the first minutes. [2] We note that California’s proposed rule). 10 minutes takes into account that TB 603 also includes a 30 minute test When conducting prototype testing, bedclothes, and possibly other items, duration. the manufacturer must test a minimum will be burning during this initial The Commission considered of three specimens of the prototype in period and will contribute significantly proposing a 60 minute test duration. accordance with the test method VerDate jul<14>2003 17:56 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 E:\FR\FM\13JAP2.SGM 13JAP2 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules 2475 described, and all of the mattresses/sets manufacturer can show (on an 9. Other Requirements: Labeling, One of must meet both of the test criteria objectively reasonable basis) will not a Kind Exemption, and Policy on discussed above. If any one prototype cause the prototype to exceed the Renovation of Mattresses specimen that the manufacturer tests specified test criteria. Under the proposed standard, each fails the specified criteria, the prototype 7. Quality Assurance Requirements mattress/set must bear a permanent is not qualified (even if the label stating the name and location of manufacturer chooses to test more than Research and testing indicates that the manufacturer, the month and year of three specimens). manufacture, the model identification, The Commission believes that three small variations in construction of a prototype identification number, and a specimens is the appropriate minimum mattress/set (e.g. missed stitching number for testing. Numerous research around the side of the mattress) can certification that the mattress complies studies have typically used replicates of affect the fire performance of a mattress. with the standard. By placing the three for tests using the developed gas Therefore, the proposed standard certification on the mattress, the burners. This is also the number contains strict requirements for quality manufacturer is attesting that the industry has generally used as it has assurance. Each manufacturer must specific mattress would comply with researched and developed options for implement a quality assurance program the test criteria if tested. meeting the requirements of California’s to ensure that the mattresses/sets it The proposed standard allows an exemption for a one-of-a-kind mattress/ TB 603. Preliminary analysis of the produces are identical in all material set if it is manufactured in response to inter-laboratory study also indicates that respects to the prototype on which they a physician’s written prescription or three replicates are appropriate to are based. This means that at a manufactured in accordance with accurately characterize mattress minimum, manufacturers must: (1) Have performance. [2] Moreover, because comparable medical therapeutic controls in place on components and specifications. small changes in mattresses’ materials to ensure that they are construction or components can affect Subpart C of the proposed standard identical to those used in the prototype; restates the policy clarification on their flammability, testing more than (2) designate a production lot that is one mattress will provide a better renovation of mattresses that is in represented by the prototype; and (3) indication of their performance. [1] Subpart C of the existing mattress inspect mattresses/sets produced for standard (16 CFR Part 1632). The policy 6. Pooling sale. The Commission is not requiring statement informs the public that The proposed standard allows for one manufacturers to conduct testing of mattresses renovated for sale are or more manufacturers to rely on a given production mattresses. However, the considered by the Commission to be prototype. Under this approach, one Commission recognizes the value of newly manufactured for purposes of the manufacturer would conduct (or cause such testing as part of a quality requirements of the proposed standard. to be conducted) the full prototype assurance program. Therefore, the H. Effectiveness Evaluation testing required (testing three prototype Commission encourages manufacturers specimens), obtaining passing results, to conduct random testing of mattresses/ To determine the potential and the other manufacturer(s) may then sets that are produced for sale. effectiveness of the proposed standard, produce mattresses/sets represented by CPSC staff conducted an effectiveness that prototype so long as they conduct 8. Recordkeeping evaluation, focusing primarily on one confirming test on a specimen they reduction of deaths and injuries. The The proposed standard requires produce. If the mattress/set fails the staff’s analysis is explained in detail in manufacturers to maintain certain confirming test, the manufacturer must the memorandum ‘‘Residential Fires take corrective measures, and then records to document compliance with Involving Mattresses and Bedding.’’ [3] perform a new confirmation test that the standard. This includes records The evaluation was based primarily on must meet the test criteria. If a concerning prototype testing, pooling review of CPSC investigation reports confirmation test specimen fails to meet and confirmation testing, and quality that provided details of the occupants’ the test criteria, the manufacturer of that assurance procedures and any situations and actions during the fire. specimen must also notify the associated testing. The required records Staff reviewers identified criteria that manufacturer of the pooled prototype must be maintained for as long as affected the occupants’ ability to escape about the test failure. Pooling may be mattresses/sets based on the prototype the fires they had experienced. The staff used by two or more plants within the are in production and must be retained used these criteria to estimate same firm or by two or more for three years thereafter. percentage reductions in deaths and independent firms. As discussed in the The purpose of these recordkeeping injuries expected to occur under the initial regulatory flexibility analysis, requirements is to enable manufacturers much less severe fire conditions pooling should reduce testing costs for anticipated with improved designs of to keep track of materials, construction smaller companies. Once they have mattresses that would comply with the methods and testing. Thus, if a conducted a successful confirmation proposed standard. The staff then manufacturer produced a mattress/set test, pooling firms can produce applied these estimated reductions to mattresses based on a pooled prototype that failed to meet the test criteria, he/ national estimates of mattress/bedding and may continue to do as long as any she should be able to use the records to fire deaths and injuries to estimate changes to the mattresses based on the determine the prototype on which the numbers of deaths and injuries that pooled prototype are limited to the three failing mattress was based, as well as could be prevented with the proposed discussed above: (1) Size of the the components and method of standard. [3] mattress/foundation; (2) the ticking, construction that were used. This As stated in section D of this unless the qualified ticking has information would help the document, the most recent national fire characteristics that are designed to manufacturer correct the problem that loss estimates indicated that mattresses improve the mattress’s test performance, caused the mattress to fail the test and bedding were the first items to and/or (3) any component, material or criteria. ignite in 19,400 residential fires method of construction that the attended by the fire service annually VerDate jul<14>2003 17:56 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 E:\FR\FM\13JAP2.SGM 13JAP2 2476 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules during 1995—1999. These fires resulted proposed requirements if the test ended The proposed standard is designed to in 440 deaths, 2,230 injuries and $273.9 at 30 minutes, but appeared to perform address the identified hazard of million in property loss each year. Of erratically after 30 minutes. [2] flashover resulting from open flame these, the staff considers an estimated The preliminary analysis, supported ignition of mattresses, usually from 18,500 fires, 440 deaths, 2,160 injuries, by earlier data, suggests that significant burning bedclothes. Under the proposed and $259.5 million property loss variability exists among currently standard, mattresses and mattress/sets annually to be addressable by the available mattress designs. Although are exposed to gas burners, simulating proposed standard (i.e., of the type that products appear to be moving toward burning bedclothes. Mattresses are the proposed standard could affect consistency, manufacturers clearly need required to meet two performance based on the characteristics of the fire). to control components, materials, and criteria that minimize the possibility of [3] methods of construction. Thus, quality or delay flashover for a period of time. Overall, CPSC staff estimates that the assurance measures, as required in the Mattresses must not exceed 200 kW proposed standard may be expected to proposed rule, are important. [2] peak heat release rate during the 30 prevent 80 to 86 percent of the deaths The inter-lab study was only recently minute test, and the total heat released and 86 to 92 percent of the injuries completed, and the discussion above is must be less than 15 MJ for the first 10 presently occurring in addressable based on the staff’s preliminary analysis minutes of the test. mattress/bedding fires attended by the of the results. A final report on the inter- 2. Comment. Most commenters fire service. Applying these percentage lab study is expected by the end of 2004 endorsed the direction of the mattress reductions to 1998–2002 estimates of and will be available to the public. flammability test development research addressable mattress/bedding fire J. Response to Comments On the ANPR underway at NIST and encouraged the losses, staff estimates potential CPSC to issue a technologically reductions of 310 to 330 deaths and On October 11, 2001, the Commission practicable, reasonable standard. More 1,660 to 1,780 injuries annually in fires published an ANPR in the Federal recent commenters suggest California attended by the fire service when all Register. 66 FR 51886. During the TB 603 be adopted as the federal existing mattresses have been replaced comment period, the Commission standard. with mattresses meeting the new received sixteen written comments from Response. CPSC agrees with the standard. There may also be reductions businesses, associations and interested technical approach suggested by the in property damage resulting from the parties representing various segments of NIST research. A majority of the proposed standard, but data are not the mattress and bedding industries. commenters agreed that preventing sufficient for the staff to quantify this After the close of the comment period, flashover from mattress fires would impact. [3] the Commission received a number of appropriately address the risk and that additional comments, including one a full scale test with an ignition source I. Inter-Laboratory Study from the California Bureau of Home comparable to burning bedclothes could An inter-laboratory study was Furnishings and Thermal Insulation achieve that objective. They strongly conducted with the support of the urging the Commission to adopt supported the NIST approach and SPSC, NIST, and participating California’s TB 603 as a federal discouraged the adoption of any existing laboratories to explore the sensitivity, standard. Significant issues raised by all standards. repeatability, and reproducibility of the of these comments are discussed below. Before California’s adoption of TB NIST test method. All of the [14&15] 603, one commenter suggested using a participating labs conducted multiple modification of the small-scale British tests of eight different mattress designs. Mattress Comments test, BS 5852, for smoldering and The mattress designs varied critical 1. Comment. Commenters agree that flaming ignition of upholstered elements (e.g., the barrier—sheet or the hazards associated with mattress furniture seating composites. However, high-loft, the type of mattress—single or fires appear to be clearly identified. All a full-scale rather than small-scale test double-sided) and the style of mattress of the commenters support the need for is generally considered the most reliable (e.g., tight or pillow top). [2] an open flame standard for mattresses method for measuring performance of a Preliminary analysis of the data does and initiation of federal rulemaking. product that contains many materials in not suggest either unreasonable Response. CPSC agrees that mattress a complex construction, such as a sensitivities (i.e., significantly different and bedding fires continue to be one of mattress. NIST research confirmed that test results when minor variations in the major contributors to residential fire a full-scale test of the mattress was test procedure are made) or practical deaths and civilian injuries among needed to measure its performance limitations in the test protocol. The products within CPSC’s jurisdiction. when exposed to burning bedclothes or preliminary analysis suggests that some The most recent national fire loss the representative set of gas burners. mattress designs perform more estimates indicate that mattresses and NIST’s comprehensive, scientifically consistently than others. The type of bedding were the first items to ignite in based research program was designed to barrier appears to have a significant 19,400 residential fires attended by the address the open-flame ignition of impact on the performance and fire service annually during 1995— mattresses and bedclothes under repeatability of performance of all 1999. These fires resulted in an controlled conditions closely mattress designs tested. However, the estimated 440 deaths, 2,230 injuries, resembling those of real-life fire uniformity of other components and the and $273.9 million property loss scenarios. The program focused on manufacturing process can also affect annually. In these fires, the bedclothes understanding the dynamics of fires the variability in fire performance. [2] are most frequently ignited by a small involving mattress and bedclothing The inter-lab tests also appear to open flame source. The burning bedding assemblies and on developing an confirm earlier observations that then creates a large open-flame source appropriate and technologically mattresses constructed with currently igniting the mattress and creating practicable methodology to effectively available barrier technologies are able to dangerous flashover conditions, the measure the hazard. limit the fire severity for a substantial point when the entire room and its NIST subsequently prepared a test but not indefinite time. Most of the contents are ignited simultaneously by method which the state of California tested mattress designs could meet the radiant heat. incorporated into their TB 603, VerDate jul<14>2003 17:56 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 E:\FR\FM\13JAP2.SGM 13JAP2 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules 2477 ‘‘Requirements and Test Procedure for reproducibility of the test protocol. applications in many consumer Resistance of a Mattress/Box Spring Set While the final report is not yet products. There are also flame resistant to a Large Open-Flame’’ in 2004. The available, preliminary analysis of the (FR) materials that may be used for proposed standard is also based on the data does not suggest either mattress barriers that have other test method developed by NIST. unreasonable sensitivities or practical consumer product applications. For Research on mattress and bedclothes limitations in the test protocol. example, melamine resins, which can be fires conducted by NIST for CPSC and The Commission’s proposed standard used in FR barriers, are also used in the industry provides the basis for the is similar to California’s TB 603. The many laminated counter tops. test criteria specified in the proposed proposed standard and TB 603 use the Based on available data, the standard. Manufacturers and suppliers same test method and limit the peak rate Commission believes that there are have demonstrated that mattress designs of heat release of a mattress or mattress/ available options for meeting the complying with these performance foundation to 200 kW. TB 603 also standard without posing an criteria and suitable for the residential limits the size of the fire produced in unacceptable health risk to consumers market can be produced. the first 10 minutes of the test to 25 MJ. or significantly affecting the 3. Comment. One commenter According to NIST research, untenable environment. Moreover, as described in requested the exclusion of certain fire conditions could occur in a room section N of this preamble, even if a product categories, such as mattresses from a fire of this size. Unlike TB 603, method used by some manufacturers to used for therapeutic reasons and in the staff’s draft proposed standard meet the standard were suspected of healthcare environments, from an open requires that the mattress contribute no posing an unacceptable risk, there flame standard. more than 15 MJ to the early fire would be regulatory and other Response. The proposed standard scenario. This ensures that the mattress mechanisms that can be used to control includes all mattresses, including those will have little involvement in the fire that particular method. The staff is used in or as part of upholstered for the specified period of time. This planning to conduct migration and furniture items. ‘‘One-of-a-kind’’ lower limit partially compensates for exposure studies on various FR mattresses and foundations are defined the contribution of an uncertain chemicals that could be used to meet as physician prescribed mattresses to be combination of burning bedclothes on the standard. used in connection with the treatment the bed, helping to preserve tenable The commenter suggested labeling of or management of a named individual’s conditions for egress. chemically treated components as a physical illness or injury. These 5. Comment. Two commenters possible requirement of the standard, to products may be exempted from testing recognize the sophistication and inform consumers of the materials used. under the proposed standard in complexity of the test method used in The Commission questions whether accordance with the rules established by California TB 603 and potentially in a such information would be of practical the Commission. The proposed standard federal standard. They suggest that value to consumers. Simply stating that requires them to be permanently labeled CPSC explore laboratory accreditation a mattress component has been with a warning statement indicating that programs to insure test labs are properly chemically treated does not indicate to the mattress and foundation have not qualified to conduct this complex test. the consumer whether the mattress been tested under the standard and may Response. The interlaboratory study poses any health risk or not. The be subject to a large fire if exposed to may identify laboratory practices, proposed standard requires an open flame. equipment, and other related factors manufacturers to maintain records 4. Comment. In October 2003 the that must be controlled to ensure specifying details of all materials, California Bureau of Home Furnishings consistent and accurate test results. The including flame retardant treatments (CBHF) urged the Commission to adopt report and findings of the study will be applied and inherently flame resistant their new standard, TB 603. available to the public; and appropriate materials, used in each mattress design Subsequently, a number of commenters guidance can be provided to interested (prototype). This will allow expressed written support for adopting laboratories. While accrediting test identification of relevant mattresses and the TB 603 test methodology and laboratories is not a CPSC function, the mattress/sets if an unacceptable risk is performance criteria. Commission supports industry and identified. CBHF claimed that harmonization of commercial laboratory development of 7. Comment. Another commenter California and federal standards would such a program. recommended test provisions in the avoid a number of potential problems. 6. Comment. A commenter expressed standard that address the long term They noted potential problems such as concerns about environmental impact durability of the flame retardant possible federal preemption and and consumer sensitivity to flame chemicals used in mattresses to ensure negative impacts on interstate retardants that may be used in they continue to meet the fire commerce. Since TB 603 is a newly mattresses, whether topically applied or performance requirements. developed methodology, CBHF integrated into fibers. The commenter Response. It is expected that most suggested that an inter-laboratory study recommends requiring a label that manufacturers will use some kind of be conducted before a potential discloses the use of flame retardants in flame resistant barrier material to adoption of TB 603 by CPSC. They the mattress and provides a source of protect the mattress components with noted that data obtained from an inter- more specific information. the greatest combustible fuel load from laboratory study would verify the Response. Mattress fire performance exposure to an open flame. Flame credibility of the test method. can be improved by incorporating fire resistant barriers for mattresses may take Response. An inter-laboratory study retardant chemicals into component several forms, including ticking fabrics, was conducted with the support of materials or by using materials that are woven and non-woven interlinings, and SPSC, NIST, CBHF, and other inherently fire resistant. Flame retardant battings. It is likely that these barriers participating laboratories to collect chemicals are already widely used in will be made with an inherently flame additional data and confirm the test other applications. More than one resistant fiber (e.g., para-aramid or protocol developed by NIST. A number billion pounds of different flame fiberglass) or by treatment with flame of laboratories participated in the study retardant chemicals are currently used retardant chemicals, many of which are to evaluate sensitivity, repeatability, and annually in the United States, including incorporated within the fiber, foam, or VerDate jul<14>2003 17:56 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 E:\FR\FM\13JAP2.SGM 13JAP2 2478 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules other material. At this point in the objective of the standard can be met in the occupancy. Even with more time, development of technologies that may with the performance criteria specified: in such circumstances, the fire be used to meet TB 603 or the proposed maximum 200 kW peak heat release rate continues to progress, and the chances standard, the staff has seen no evidence during the 30-minute test and maximum of rescue are unpredictable. that suggests that changes in these 15 MJ total heat release in the first 10 Based on the preliminary regulatory materials over time will occur or affect minutes of the test. Laboratory tests of analysis, the expected benefits of the fire performance. currently marketed crib mattresses of proposed standard, incorporating a 30- 8. Comment. One commenter which the Commission is aware show minute test, are greater than the costs. expressed concerns about the unacceptable performance in one or The regulatory analysis also considered potentially severe economic impact of a both of these fire performance measures. alternatives to the proposed standard, federal regulation, similar to TB 603, on Like full-size mattresses, these crib including a 60-minute test; neither this small businesses. mattresses would also need to be nor the other alternatives was shown to Response. The Commission improved to meet the requirements of increase expected net benefits. acknowledges that the cost of testing, the proposed standard. 11. Comment. A few commenters record keeping, and quality control/ 10. Comment. One commenter expressed the need to maintain quality assurance programs could be suggested that a 60-minute test duration protection from the threat from cigarette disproportionately higher for small is needed in the standard to allow for ignitions while considering an open businesses. While these costs are fire and rescue workers to respond and flame standard. estimated to be a little over one dollar help occupants escape. Response. The standard that per mattress per year for average-sized The commenter notes that the longer addresses cigarette ignition resistance, establishments, they could be test time will allow emergency the Standard for the Flammability of substantially higher for some small responders to assist vulnerable citizens Mattresses and Mattress Pads, codified mattress producers. The proposed to escape fires involving mattresses and as 16 CFR part 1632, remains in effect standard, however, allows bedding. They report that response manufacturers to pool their prototype times can vary widely among local unless it is modified or revoked by the qualification and testing, and thus these circumstances, from approximately 16 Commission in a separate rulemaking costs can be mitigated. Moreover, if minutes to an hour or more. proceeding. If such a rulemaking manufacturers produce mattress/set Response. To estimate the proposed occurred, the Commission would constructions for longer than a year or standard’s potential effectiveness, the thoroughly evaluate the need for use a worst-case prototype to represent staff reviewed in-depth investigations maintaining both an open flame other mattress constructions, these costs that provided detailed information standard and the standard for cigarette will be lower. It is also expected that about fires that ignited mattresses and ignition resistance. some barrier suppliers or independent bedding, details of the occupants’ Bedclothes Comments laboratories would be willing to do the situation, and occupants’ actions during testing and quality control/assurance the fire. Most investigations also Comment. Most of the commenters programs for small producers in included documentation from the fire refer to the impact of burning exchange for a small charge. Therefore, department that attended the fire. The bedclothes on mattress/bedding fires the proposed standard is expected to in-depth investigations involved fires and express opinions on the potential minimize the impact on small occurring during 1999–2004, and scope of an open flame mattress businesses, while maintaining the included a total of 195 deaths and 205 standard. Some commenters urge the benefits resulting from the standard. injuries. In some of these cases, even Commission to limit the scope of a The Commission is requesting with traditional mattresses and bedding, standard to mattresses while opposing comments from small businesses on the other members of the household present commenters recommend that either the expected economic impact of the at the time of the fire and emergency scope be expanded to incorporate requirements of the proposed standard responders arriving within as little as 5 bedclothes or bedclothes should have and the proposed effective date of 12 minutes were able to rescue victims. ignition standards of their own. months after publication of the final With improved mattresses, those Commenters in support of regulating rule in the Federal Register. complying with the 30-minute test bedclothes believe that studying the 9. Comment. One commenter reported specified in the proposed standard, the impact of burning bedclothes is that some juvenile or crib mattresses, fire growth is slowed considerably and appropriate and would assist in the while meeting the 200 kW peak rate of flashover conditions are delayed, development of better performing, safer heat release requirement, produce large making successful rescue efforts of products. They note that bedclothes amounts of flaming droplets that have family members and emergency contribute to the intensity and spread of the potential for spreading flames responders more likely. The the original ignition source often beyond the mattress. TB 603 does not Commission estimates that 310 to 330 involved in mattress fires. Therefore, address these flaming droplets. deaths and 1,660 to 1,780 injuries burning bedclothes become a significant Response. The objective of the resulting from mattress and bedding ignition source to the mattress and proposed standard is to reduce the size fires could be prevented annually by the impact the burning characteristics of the of mattress/bedding fires and, thereby proposed standard. A maximum mattress and foundation. They further reduce the likelihood of or delay the additional 80 deaths and 280 injuries, note that bedclothes alone have been development of flashover conditions in considered addressable by the draft shown to generate a fire large enough to the room. Based on research conducted standard, might be further reduced with pose a hazard and can alone be the by NIST, performance criteria were a 60-minute test. However, actual cause of ignition to nearby items. developed to limit the size of the reductions would likely be much lower. According to these commenters, mattress fire and reduce the likelihood This is because those considered likely improving the flammability of certain of it involving other objects in the room. to die or be injured in conditions bedding items, such as filled items, is The Commission believes that, while associated with a proposed 30 minute economically feasible. One commenter the proposed standard may be less test are those incapable of acting on claims that mattress fires cannot be effective in isolated circumstances, the their own and with no potential rescuer adequately addressed without also VerDate jul<14>2003 17:56 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 E:\FR\FM\13JAP2.SGM 13JAP2 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules 2479 considering the flammability of Ignitions of Mattresses,’’ addresses this A typical innerspring mattress bedclothes. requirement. [8] construction might include ticking; In support of limiting the scope to binding tape fabric; quilt cushioning 1. Introduction mattresses and not regulating with one or more separate layers; quilt bedclothes, some commenters identify There were an estimated 18,900 fires backing fabric; thread; cushioning with bedding items as an uncontrolled where the first item ignited was one or more separate layers; flanging; variable. They claim that there is no mattress/bedding in 1998 (the last year spring insulator pad; spring unit; and way to predict the type of bedclothes for which detailed data comparable to side (border) panels. Options for that may be involved in an incident at previous years are available). These fires meeting the standard include the use of any given time; the number and type of caused an estimated 2,260 civilian one or a combination of the following: items used by consumers is indefinable injuries, 410 deaths, and $255.4 million fire resistant ticking; chemically treated and consumers select items based on in property losses. As discussed or otherwise fire resistant filling season, fashion, and climate. In elsewhere in this document, NIST has products; or a fire blocking barrier addition, according to these conducted extensive research and (either a sheet style barrier, sometimes commenters, there is no objective developed a test methodology to test called a fabric barrier, or a high-loft method to determine if consumers open flame ignition of mattresses. barrier, sometimes called a fiber barrier). would use regulated bedclothes; there is California Technical Bulletin (TB) The fire blocking barrier is placed either little data to suggest that regulating 603, which is based on the use of NIST directly between the exterior cover some selected items will have an impact test burners designed to mimic the local fabric of the product and the first layer on the hazard; and flammability thermal insult (heat flux levels and of cushioning materials, or beneath one performance should not be based on duration) imposed by burning or more ‘‘sacrificial’’ layers that can what consumers may or may not use as bedclothes, is scheduled to become burn without reaching the proposed bedclothes. These commenters also state effective in California January 1, 2005. heat release constraints. that most U.S. textile manufacturers TB 603 requires all mattress/foundation There are already over twenty already voluntarily test for small open sets, mattresses intended to be used different vendors of fire resistant flame ignition of bedclothes using without a foundation, and futons to materials associated with the ASTM voluntary test methods. They meet the following pass/fail criteria: (1) production of mattresses, including assert that the additional burden and The peak heat release rate (‘‘PHRR’’) barriers, ticking, foam, tape, and thread. expense of any regulation on bedclothes does not exceed 200 kW during the 30 These materials include chemically would be substantial and could not be minute test, and (2) the total heat release treated cotton, rayon, and/or polyester, justified. does not exceed 25 mega joules (MJ) in melamine, modacrylic, fiberglass, Response. The Commission notes that the first 10 minutes of the test. aramid (Kevlar’’), or some combination bedclothes substantially contribute to Large mattress manufacturers may of them. The cost of using sheet barriers the complexity and magnitude of the eventually produce TB 603-compliant is higher than using high-loft barriers, mattress fire hazard. In laboratory tests mattresses for sale nationwide, because since sheet barriers are thin and peak heat release rates as high as 800 of legal liability and production therefore could not be substituted for an kW were observed from some larger logistics. In the short-run, however, existing foam or cushioning layer. There bedclothes items. This presents a clear some manufacturers may limit their sale is also concern that some sheet barriers, risk of flashover; and this heat release of TB 603-complying mattresses to unlike high-loft barriers, may reduce the rate is much higher than that allowed California. Sealy’s president and CEO comfort of the sleeping surface. for a mattress/set in the proposed said that ‘‘[they] plan to be ready by the To qualify a prototype, three standard. The extent to which end of this year [2004] if a national mattresses/sets must be tested and must bedclothes can be modified in a manner retailer wants the same product’’ with pass the test requirements. To obtain a that is technologically practicable and fire resistant technology, but will not passing result, each mattress/set must economically feasible is unclear at this convert all production by January 2005 pass a 30 minute test, where the PHRR time. However, reducing the (Furniture Today, March, 10, 2004). does not exceed 200 kW and the total contribution of certain high fuel load Smaller producers are more likely to heat release does not exceed 15 MJ in bedding items to a mattress/bedding fire wait until they have a better idea of the first 10 minutes of the test. If any of is desirable. The Commission is issuing enforcement efforts in California, or the sets fail, the problem must be an ANPR for a bedclothes flammability until a federal standard is adopted. The corrected, the prototype must be standard. The Commission believes that mattress industry, represented by ISPA, retested and pass the test (in triplicate). such a standard could increase the supports the development of a Manufacturers may sell any mattress/set likelihood that mattress/bedding fire mandatory federal standard (Furniture based on a qualified prototype. losses are effectively reduced. Today, May, 10, 2004). A Federal Manufacturers may also sell a mattress/ standard would eliminate the set based on a prototype that has not K. Preliminary Regulatory Analysis uncertainty that may result from having been tested if that prototype differs from The Commission has preliminarily different flammability standards for a qualified prototype only with respect determined to issue a rule establishing different states. to (1) mattress/foundation size; (2) a flammability standard addressing the ticking, unless the ticking of the open flame ignition of mattresses. 2. The Proposed Standard: Scope and qualified prototype has characteristics Section 4(i) of the FFA requires that the Testing Provisions designed to improve performance on the Commission prepare a preliminary The proposed standard will apply to burn test; and/or (3) any component, regulatory analysis for this action and all mattresses, where the term mattress material, or method of construction that that it be published with the proposed means a ticking (i.e., an outer layer of the manufacturer can demonstrate, on rule. 15 U.S.C. 1193(i). The following fabric) filled with a resilient material an objectively reasonable basis, will not discussion, extracted from the staff’s used alone or in combination with other cause the prototype to exceed the test memorandum titled ‘‘Preliminary products intended or promoted for criteria specified above. Regulatory Analysis of a Draft Proposed sleeping upon. This definition is If one or more establishments (plants Standard to Address Open-Flame discussed further in section G.2. above. within the same firm) or independent VerDate jul<14>2003 17:56 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 E:\FR\FM\13JAP2.SGM 13JAP2 2480 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules firms choose to ‘‘pool’’ prototypes, then Manufacturers of bedclothes may also 4. Characteristics of Mattresses Used in each pooling plant or firm is required to be affected by the proposed standard. U.S. Households test one mattress/set for confirmation Sales of bedclothes may increase or testing. If that set fails, then the plant or decrease based on whether consumers The total number of U.S. conventional firm will need to test another mattress/ view bedclothes as complements or mattress shipments was 21.5 million in set after correcting its production to substitutes for a new mattress/set 2002 and is estimated to be 22.1 in 2003 make sure that it is identical to the (complements are goods generally and 22.8 in 2004. Mattress shipments original prototype. consumed together, substitutes have grown at an average rate of three A pooling firm may sell other generally substitute for each other). For percent over the period 1981 to 2004. mattresses that have not been tested by example, if people tend to buy all parts Unconventional mattresses (including the pooling firm if they differ from the of a new bed (mattress, foundation, and futons; crib mattresses; juvenile pooled prototype only with respect to bedclothes consisting of a comforter, mattresses; sleep sofa inserts; and (1) mattress/set size; (2) ticking, unless pillows, and sheets) at the same time, hybrid water mattresses) are estimated the ticking of the qualified prototype then an increase in the quantity of to be about ten percent of the total has characteristics designed to improve mattresses sold would cause an increase market. This yields an estimated total performance on the burn test; and/or (3) in sales of bedclothes. If, alternatively, number of mattresses produced any component, material, or method of people tend to have a fixed budget from domestically of 25.3 million in 2004. construction that the manufacturer can which to buy all mattresses and bedding The value of mattress and foundation demonstrate, on an objectively items, then an increase in the quantity shipments in 2002, according to ISPA, reasonable basis, will not cause the of mattresses sold would lead to a was $3.26 and $1.51 billion prototype to exceed the test criteria decrease in sales of bedclothes. Also, if respectively. specified above. the decision to buy a new mattress (or The CPSC Product Population Model mattress/set) involves buying a mattress (PPM) estimate of the number of 3. Products and Industries Potentially that is much thicker than the one Affected mattresses in use in different years is currently in use, then consumers will based on available annual sales data and According to ISPA, the mattress most likely buy new sheets (and an estimate of the average product life producers’ trade organization, the top possibly matching pillowcases and of a mattress. Industry representatives four producers of mattresses account for other bedclothes items) to fit the new assert that the average consumer almost sixty percent of total U.S. thicker mattress. replaces a mattress/set after ten years. A production. In total, there are 639 If the cost increase is relatively small 1996 CPSC market study estimated the establishments (as of 2001) that produce or there is no resulting increase in the average expected life of a mattress to be mattresses in the U.S., using the U.S. price of a mattress/set, then the demand 14 years. The PPM estimates the number Department of Commerce NAICS (North for bedclothes will only be affected if of (conventional and non-conventional) American Industry Classification consumers place a higher value on the mattresses in use in 2004 to be 233 System) Code 33791 for mattresses. The safer mattress and replace their current million mattresses, using a 10-year top four producers account for about mattress sooner than they would have average product life, and 302.6 million half of the number of all these with no standard in place. An increased mattresses, using a 14-year average establishments. The number of demand for the safer (and thicker, if the product life. These two numbers are establishments has been declining over current mattress is relatively old) later used to estimate the pre-standard time due to mergers and buy-outs. Total mattress will likely result in an baseline risk and the expected benefits employment in the industry, using the increased demand for sheets that fit the of the proposed standard. NAICS Code 33791, was 25,500 workers newer mattresses. This effect, however, in 2001. is not directly resulting from the This analysis focuses principally on queen-size mattresses because they are The mattress manufacturing industry adoption of the proposed standard since the most commonly used. In 2002 has three key supplying industries: the thickness of the mattress need not be spring and wire product manufacturing, increased by the presence of either type queen-size mattresses were used by 34 broad-woven fabric mills, and foam of barrier. It is the result of the increased percent of U.S. consumers. Following products manufacturing. Depending on utility some consumers may derive from the queen-size are the sizes: Twin and the type of fire resistant barrier chosen the safer mattress and the consequent Twin XL (31.2 percent), Full and Full by different manufacturers, the demand increase in demand for bedclothes. The XL (21 percent), King and California for foam padding for mattresses might increased demand for safer mattresses King (11 percent), and all other (2.6 decline if it were replaced by the high- would most probably lead to an increase percent). ISPA data reflect that the loft barrier in the construction of the in sales and employment in the spring average size of a mattress is increasing. mattress and foundation. This would be and wire products, broad-woven fabric, The average manufacturing price in offset by an increase in the demand for and foam products industries, as well as 2002 was $152 for a mattress of average the high-loft barrier. If sheet barriers in the mattress and bedclothes size and $86 for a foundation of average were chosen by some mattress industries. size. Hence the average manufacturing producers, then sales of, and Other producers that could price of a mattress/set was about $238 employment by, the sheet barrier potentially be affected, if the price in 2002. suppliers would increase. Since the change associated with producing There are no readily available data on sheet barriers would not replace other compliant mattresses is significant, are average retail prices for mattress/ inputs, there would most likely be no those of other substitute products, like foundation sets by size. ISPA, however, offsetting effect on other industries. airbeds, waterbeds, * * * etc. that reports that mattress/foundation sets Fiberglass, melamine, and aramid contain no upholstered material and selling for under $500 represent 40.7 producers may also be affected to the would, therefore, not be covered by the percent of the market. Mattress/ extent that they are used to produce fire proposed standard. Their sales may foundation sets selling for between $500 resistant materials used in mattress increase as a proportion of total bedding and $1000 represent 39.2 percent of the production. products. market. VerDate jul<14>2003 17:56 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4702 E:\FR\FM\13JAP2.SGM 13JAP2 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules 2481 5. Trends in Mattress/Bedding staff study of fire investigations from reports were initiated from death Residential Fires, Deaths, Injuries, and 1999–2004. Risk reductions are then certificates with follow-up Property Losses calculated on a per-mattress-in-use basis documentation from the fire Open-Flame Ignition. The staff based on estimates of the number of department. This resulted in a total of estimates average annual mattress/ mattresses in use. The monetary value 195 deaths and 205 injuries in the bedding fires from open-flame ignitions of expected benefits per mattress is investigations to be evaluated. The (including candles, matches and derived using current (i.e., 2004) distribution of mattress ignition sources lighters) to have been 8,367 and 6,367 estimates for the value of a statistical was not representative of all fires life and the average cost of a mattress involving mattresses and thus the data over the 1993–95 and 1996–98 periods fire injury. To derive the monetary value were weighted to match the NFIRS- respectively. This represents a reduction of expected benefits over the life of a based national fire data distributions. of 23.9 percent. The resulting average mattress, the expected annual benefits Evaluations of the fire incidents by mattress/bedding deaths, injuries, and are discounted (using a three percent CPSC staff reviewers used the results of property losses from open-flame discount rate), and then summed over NIST testing (Ohlemiller, 2004; ignitions have decreased by 28.2 the expected life of the mattress. The Ohlemiller and Gann, 2003; Ohlemiller percent, 22.1 percent, and 5.6 percent analysis considers mattress lives of 10 and Gann, 2002) conducted to assess the respectively, over the 1993 to 1998 and 14 years. hazard produced from burning period. When adjusted for inflation, the The potential benefits of the proposed mattresses and bedclothes. Specifically, decrease in the value of property losses standard consist of the reduction in the evaluations were based on the becomes 37.7 percent. deaths, injuries, and property damage expectation that occupants in bed when Smoking Material Ignition. The staff that would result. Since the objective of the fire ignited but able to escape the estimates average annual mattress/ the proposed standard is to reduce the burning bedclothes in the first three to bedding fires from smoking material likelihood of flashover or increase the five minutes faced a minimal hazard. ignition (including cigarettes, cigars, time before flashover occurs, and not to Occupants in direct contact with and pipes) to have been 7,733 and 6,067 reduce fires, changes in property losses burning bedclothes for a longer period over the 1993–95 and 1996–98 periods associated with the proposed standard (5 to 10 minutes) would be subject to respectively. This represents a reduction are hard to quantify. Property losses are potentially hazardous levels of heat of 21.6 percent over the 1993 to 1998 expected to decline but the extent of the release. If the burning bedclothes did period. Average annual deaths, injuries, decline cannot be quantified. not ignite other non-bedding items or and property losses due to mattress/ Consequently, for purposes of this produce flashover at this time, heat bedding smoking material ignitions analysis, no reduction in property losses release would subside temporarily and have decreased by 4.7 percent, 19.7 is assumed. That is, all expected then begin to increase as the percent, and 9.7 percent, respectively, benefits from the proposed standard are involvement of the mattress increased. over the same period. When adjusted for in the form of prevented deaths and These conditions would allow inflation, the decrease in the value of injuries. This underestimates net occupants 10 to 15 minutes to escape property losses becomes 40.4 percent. benefits, since there will likely be some the room of origin before the situation Other Ignition Sources. The staff benefits from reduced property losses. in the room would become untenable. estimates average annual mattress/ The proposed standard is expected to Since the proposed standard is expected bedding fires from other ignition reduce the likelihood of flashover to slow the rate of fire spread and hence sources (including sparks, embers, or resulting from fires started by smoking increase escape time, assuming that flames escaping from fueled equipment, materials or other ignition sources, as bedclothes do not contribute enough arcs or sparks from electric equipment, well as those started by open-flame heat to pose a hazardous condition, it small torches, hot embers, and ignition. Fires, injuries, and property was assumed that no deaths would fireworks, heat escaping from fueled losses resulting from smoking material occur among people who were outside equipment, molten material, short ignition and other ignitions, and deaths the room of origin at the time of circuit arc, and heat overloaded from smoking material ignition are ignition, unless they entered the room equipment) to have been 8,633 and lower for the 1996–98 period than the later or were incapable of exiting on 7,767 over the 1993–95 and 1996–98 1993–95 period. (Deaths from other their own. The analysis focused on periods respectively. This represents a ignition sources are more than 50 reduction of deaths and injuries because reduction of 10 percent over the 1993 to percent higher). Any additional the proposed standard is designed to 1998 period. Average annual injuries reduction in these figures due to the limit fire intensity and spread rather and inflation-adjusted property losses proposed open-flame ignition standard than prevent ignition. have decreased by 13.8 percent and 38.7 will translate into societal benefits, as Each investigation was evaluated by percent respectively. Average annual will be discussed in the benefit-cost CPSC staff reviewers to identify the deaths increased by 51.7 percent (from analysis (Section 8). features related to the occurrence of a 97 to 147). This increase offsets the Estimates of the effectiveness of the death or injury once the fire was ignited. decrease in deaths resulting from open- proposed standard are based on a CPSC These included casualty age, casualty flame and smoking material ignition staff evaluation of in-depth investigation location when the fire started (at the fires. The annual average number of reports of fires (including details of the point of ignition, in the room of origin deaths from all ignition sources occupants’ situations and actions during but not at the point of ignition, or remained unchanged over the period, the fire) occurring in 1999–2004 in outside the room of origin), whether the equal to 510. which a mattress or bedding was the casualty was asleep, or suffered from first item to ignite, the fire was of the additional conditions likely to increase 6. Expected Benefits of the Proposed type considered addressable by the the time needed to escape, whether the Standard proposed standard, and a civilian death casualty engaged in fighting the fire, and The expected benefits of the proposed or injury resulted. Most of the whether a rescuer was present. All of standard are estimated as reductions in investigations also included these conditions were used to determine the baseline risk of death and injury documentation from the fire department a range for the likelihood that each from all mattress fires, based on a CPSC that attended the fire. Some incident individual death or injury would have VerDate jul<14>2003 17:56 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 E:\FR\FM\13JAP2.SGM 13JAP2 2482 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules been prevented had the draft proposed mattress are 1.02 to 1.09 deaths and 5.49 7. Expected Costs of the Proposed standard been in effect. Percentage to 5.88 injuries per million mattresses. Standard reductions of deaths (injuries) within Annual risk reductions resulting from This section presents the expected subcategories of heat source and age the proposed standard are used to resource costs associated with the group were applied to equivalent derive the monetary benefits from proposed standard. Resource costs are subcategories of the national estimates reduced deaths and injuries. The costs that reflect the use of a resource based on the NFIRS and NFPA data for estimated reduction in the risk of death that would have been available for other 1995–1999. The estimated reductions is multiplied by the value of a statistical uses had it not been used in conjunction per category were summed and the life (and divided by a million) to derive with the production of mattresses overall percentage reductions were compliant with the proposed standard. calculated as the percent of addressable a first-year monetary estimate for the range of benefits from lives saved per These costs include material and labor deaths (or injuries) that would have costs; testing costs; costs to wholesalers, been prevented if the likelihood of mattress. Based on the existing literature, a value of a statistical life of distributors, and retailers; costs of flashover were reduced in the first 30 producers’ information collection and five million dollars is assumed (Viscusi, minutes and victims had 10 to 15 record keeping; costs of quality control/ 1993). The estimated reduction in the minutes of escape time. quality assurance programs; and The staff indicates that the proposed risk of injury is similarly used to derive compliance and enforcement costs. The standard is expected to reduce all the range of first-year monetary benefits effect on retail prices will be discussed addressable deaths from mattress/ from injuries prevented. The benefits in Section 8. bedding fires by 80 to 86 percent and from preventing an injury (the cost of an Material and Labor Costs. To comply reduce all addressable injuries from injury) in 2004 are estimated to average with the proposed standard, the mattress/bedding fires by 86 to 92 about $179,300, based on Miller et. al. construction of most mattress/sets will percent. The results vary only slightly (1993). The first-year benefits associated include a barrier technology with by source of ignition. These estimated with preventing deaths and injuries improved fire performance. This barrier effectiveness percentages result in the equal $7.93 to $8.45 for an estimated may be thick (high-loft) or thin (sheet). prevention of an estimated 310 to 330 mattress life of 10 years and $6.11 to High-loft barriers are generally used to deaths and 1660 to 1780 injuries $6.51 for an estimated mattress life of 14 replace some of the existing non-woven annually, for the 1998–2002 period. years. fiber, foam, and/or batting material, The staff’s analysis presents the Lifetime benefits are derived by leading to a smaller increase in costs than sheet barriers, which constitute an estimated annual deaths and injuries projecting annual benefits for the life of addition to production materials (and that are expected to be prevented by the the mattress and summing the costs). proposed standard, based on average discounted (at a rate of 3 percent) figures for 1998–2002. For purposes of According to several barrier producers stream of annual benefits (measured in and mattress manufacturers, the price of this analysis, it is assumed that the constant dollars). The number of annual deaths and injuries prevented by a high-loft barrier that would make a mattresses in use is projected to grow at mattress comply with the proposed the proposed standard equal the average a rate of zero to three percent, based on annual deaths and injuries prevented for standard, defined to have a width of 88 the average growth rate for the 1981– the 1998–2002 period. The analysis is to 92 inches, is $3.00 to $5.00 per linear 2002 period. Since the number of deaths conducted as if the standard went into yard. The high-loft barrier replaces the and injuries are implicitly assumed to effect in 2004. All dollar estimates are currently-used polyester batting, which remain constant over time, a positive based on constant 2004 dollars. A costs an average of $0.50 to $1.70 per growth rate of mattresses in use implies discount rate of 3 percent and average linear yard. Hence, the net increase in expected lives of a mattress of 10 and a declining risk over time. The lower the cost attributed to the use of the high- 14 years are also assumed. end of the ranges for estimated (10 and loft barrier is $1.30 to $4.50 per linear 14 years) lifetime benefits correspond to The estimated ranges of deaths and yard, which translates to a net increase injuries prevented are calculated by a 3 percent projected growth rate and in barrier-related manufacturing costs of applying the range of percent reductions the lower end of the effectiveness $7.80 to $27.00 for a queen-size 4 to average addressable deaths and ranges. The upper end of the ranges for mattress/set. The queen-size is used for injuries for the period 1998–2002. estimated (10 and 14 years) lifetime all the cost estimates, because it is the Staff’s analysis also presents the risk benefits correspond to a zero percent mode size, used by 34 percent of reduction in deaths and injuries that projected growth rate and the upper end consumers in 2002. would result from the proposed of the effectiveness ranges. For an According to several barrier producers standard (per million mattresses). Based expected mattress life of 10 years, the and mattress manufacturers, the price of on the estimated number of mattresses resulting expected lifetime benefits of a sheet barrier that would make a in use (described in Section 4) and an saved lives associated with the mattress comply with the proposed average expected life of 10 years, the proposed standard equal $51.70 to standard is $4.00 to $6.00 per linear annual reduction in the risk of death $62.22 per mattress. The corresponding yard. Because of its different texture, the equals 1.33 deaths per million benefits of prevented injuries equal sheet barrier would generally not $9.93 to $12.03. Hence, for an expected replace any of the materials being used mattresses (310 deaths divided by the 5 estimated 233 million mattresses in use mattress life of 10 years, the expected in the construction of the mattress/set. total lifetime benefits of a compliant in 2004) to 1.42 per million mattresses 4 mattress equal $61.66 to $74.25. For an This calculation is based on the assumption that (330 deaths / 233 million mattresses). a queen-size mattress/set requires six linear yards The estimated reduction in the risk of expected mattress life of 14 years, total of the barrier mateiral to be used in the two (top injury, similarly calculated, equals 7.12 benefits equal $59.88 to $75.71 per and bottom) panels of the mattress and the side to 7.64 injuries per million mattresses mattress. The sensitivity analysis panels of both the mattress and foundation. Some producers are able to use less than six linear yards, for an estimated 10-year life of a section below examines how the results which reduces their cost per queen mattress/set. mattress. The estimated risk reductions might change when a discount rate of 5 The only exception to this might involve using for an estimated 14-year life of a seven percent is used. a sheet barrier in the side panel of the mattress and VerDate jul<14>2003 17:56 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4702 E:\FR\FM\13JAP2.SGM 13JAP2 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules 2483 This translates to $24.00 to $36.00 for a (so that they can compete with other the first year of production will be queen-size mattress/set. The large barriers available for sale). Hence the reduced. Pooling testing results across difference in the net cost of the two total materials and labor costs will most establishments and/or firms will further barrier types suggests that if a barrier’s likely be closer to the lower end of the reduce the average cost of testing per fire performance is not a function of its estimated range. mattress. On an annual basis testing type, most manufacturers will use high- Costs of Prototype and Confirmation costs will be further reduced because loft barriers, the less costly alternative. Testing. Each mattress/set prototype is prototypes need only be tested in the A large mattress manufacturer also required to be tested in triplicate for year they are first developed. indicated that mattresses produced with prototype qualification. According to Cost of Information Collection and sheet barriers in the top panel of the industry representatives, the cost of Record Keeping. In addition to mattress (as opposed to the side panels) testing per twin-size mattress/set may be prototype testing, the proposed standard may be less comfortable. about $500: the sum of the average cost will require detailed documentation of In addition to the increase in material of the materials and shipping ($100) and all tests performed and their results costs due to the use of a barrier, costs the cost of the use of the lab ($400). including video or pictures; prototype will increase due to the use of fire- Hence, the cost of testing three or production identification number; resistant (FR) thread for tape stitching. mattresses/sets for prototype date and time of test; and name and According to several thread producers, qualification equals $1500. location of testing facility; test room the cost of FR thread is $0.41 to $0.60 Additionally, if some mattress/set conditions; and test data for as long as per queen-size mattress/set. Given that prototypes do not pass the first time, the prototype is in production and for the cost of nylon (non-FR) thread is then the cost will be higher, because three years after its production ceases. about $0.10 per queen-size mattress/set, additional tests will be done after action Manufacturers are also required to keep the net increase in costs per queen-size is taken to improve the resistance of the records of a unique identification mattress/set due to the use of FR thread prototype. If 10 percent of mattresses are number for the qualified prototype and is $0.31 to $0.50. retested, then the average cost of testing a list of the unique identification Costs may also increase due to a prototype would be 10 percent higher, numbers of each prototype based on the slightly reduced labor productivity. or $1650. This cost is assumed to be qualified prototype and a description of Based on industry estimates of an incurred no more than once per the materials substituted and/or the size average of two labor hours for the establishment for each prototype. It is change. Moreover, they are required to production of a queen-size mattress/set, expected that a qualified prototype will document the name and supplier of and a 10 percent reduction in labor be used to represent a mattress each material used in construction of a productivity and an industry average construction (e.g., single-sided pillow prototype and keep physical samples of hourly wage rate of $11.50, the cost top) with all other prototypes using the the material. Additionally, they are increase due to reduced labor same construction (with different size required to identify the details of the productivity is about $2.30. and different ticking materials) being application of any fire retardant The increase in the materials and based on the qualified prototype. If treatments and/or inherently fire labor costs of a mattress, is thus equal companies pool their prototype resistant fibers employed relative to to $10.41 ($7.80 barrier cost + $0.31 definitions across different mattress components. This thread cost + $2.30 labor cost) to $29.80 establishments or different companies, documentation is in addition to ($27 barrier cost + $0.50 thread cost + testing costs would be smaller as all but documentation already conducted by $2.30 labor cost) for a high-loft barrier one of the firms/establishments mattress manufacturers in their efforts and $26.61 ($24.00 barrier cost + $0.31 producing to the specification of a to meet the cigarette standard. Detailed thread cost + $2.30 labor cost) to $38.80 pooled prototype will burn one mattress testing documentation will be done by ($36 barrier cost + $0.50 thread cost + (for the confirmation test) instead of the test lab and is included in the $2.30 additional labor cost) for a sheet three (for the prototype test). The estimated cost of testing. Based on CPSC barrier.6 Various types of high-loft and probability of a mattress failing a Office of Compliance staff estimates, all sheet barriers are widely available for confirmation test is small. Therefore, it requirements of the proposed standard sale and therefore it is expected that is expected that the average cost of are expected to cost an establishment those whose prices are at the upper end testing per mattress will be lower for about 110 minutes, or 1.3 hours, per of the range will either not be produced firms and/or establishments that pool qualified prototype. Assuming that (because mattress manufacturers will their results than for those that do not. every establishment will produce 20 not buy them) or their prices will drop If manufacturers test every mattress different qualified prototypes, the construction (e.g., single-sided pillow increase in record keeping costs is about foundation. Because the existence of cushioning top, double-sided pillow-top, tight-top, $935 (110 minutes × 20 qualified along the side of the mattress and foundation would euro-top, * * * etc.), which is prototypes × $25.50 in average civilian probably not be noticed or missed by consumers, substitution of the sheet barrier for the material estimated, based on conversations with workers’ compensation per hour) per currently being used in the side panel may be manufacturers, to average about twenty establishment per year. (Note that implemented to reduce the cost of using the sheet per manufacturer, for every pooling among establishments or using barrier. The side panel is small, relative to the size establishment in a given year, then their of the entire surface area of a mattress/set, and its a qualified prototype for longer than one possibly different construction is therefore not average testing cost per mattress would year will reduce this estimate.) This included in the cost calculation. This leads to a approximately equal 92.5 cents ($1650 × translates to an average cost of 2.6 cents slight over-estimation of the cost of the sheet barrier 20 constructions × 639 establishments/ per mattress for an average and consequently the relative cost of using a sheet 22.8 million conventional mattresses) instead of a high-loft barrier. establishment, with average output of 6 Some producers are also using an FR mattress per mattress for the first year of 35,681 conventional mattresses. edge binding tape, which costs an average of $2.52 production. If manufacturers use a Cost of Quality Control/Quality per mattress, while a non-FR tape costs an average qualified prototype of the least fire- Assurance Programs. To ensure that all of $1.68. This makes the net increase in costs, due resistant mattress/set construction mattresses are produced to the to using FR edge binding tape, equal to $0.84. This cost is not added to the total production costs, (‘‘worst case’’) to represent other prototype specification across all because it is not required for the mattress to pass mattress/set constructions, then the factories and over the years for which a the burn test. average cost of testing per mattress for production line exists, mattress VerDate jul<14>2003 17:56 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4702 E:\FR\FM\13JAP2.SGM 13JAP2 2484 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules manufacturers will need a thorough complying with the proposed standard discretion of the investigator and, well-documented quality control/ will not be bigger than a similar therefore an accurate assumption about assurance program. The top 12 mattress mattress produced before the standard the number of samples collected and producers (with a market share of becomes effective, storage and sent for a burn test cannot be made. If, almost 80 percent) have existing quality transportation costs are not expected to based on inspection, samples from 10 control programs which could be increase. Inventory financing costs will percent of all inspected establishments modified to fit the new standard with increase by the average cost of were to be collected and sent to a lab for minimal additional costs. Smaller borrowing money, applied to the a burn test, and if samples representing producers, whose quality control wholesale price of a mattress over the 5 qualified prototypes are taken from programs are less detailed or non- average inventory holding time period. each of these establishments, then the existent, will incur some incremental Since most mattress producers use just- total cost of CPSC testing will be costs as a result of the proposed in-time production and have small $157,500 (5 qualified prototypes × standard. These incremental costs will inventories, this additional cost will $1,500 (the cost of testing up to 3 be small for each manufacturer and less probably not exceed ten percent of the mattresses for each qualified prototype) when measured per mattress. (See the increase in production cost (which is × 21 (10 percent of 213 inspected section on impact of the proposed the sum of material, labor, testing, establishments)). These assumptions standard on small businesses for a record keeping, and quality assurance about frequency of testing yield an description of their cost of quality costs). A ten percent mark-up is, expected cost of testing per control and quality assurance therefore, being used to measure the establishment of $246.48 ($157,500/ programs.) cost to wholesalers, distributors, and 639). Additionally, although the proposed retailers. This yields a resource cost to Therefore the expected total CPSC standard does not require production wholesalers, distributors, and retailers wage and testing costs associated with testing, it encourages random equal to $1.15 to $3.98 per mattress/set. the proposed standard per production testing to assure Retail prices may increase by more than establishment per year equal $1,145.59 manufacturers that their mattresses the ten percent mark-up. Section 8 ($899.11 + $246.48). With an average continue to meet the requirements of the discusses the impact of the proposed production of 35,681 mattresses per rule, as a possible component of the standard on retail prices of mattresses. establishment (22.8 million mattresses quality control/quality assurance Costs of Compliance and divided by 639 establishments), the program. Assuming that an average of 3 Enforcement. Compliance and average CPSC wage and testing costs mattress/foundation constructions will enforcement costs refer to the costs equal 3.2 cents per mattress ($1,145.59/ be tested per establishment per year incurred by CPSC to ensure that 35,681). These costs are expected to yields an estimated cost of production manufacturers are complying with the decrease over time as manufacturers testing of about $1500. Based on this proposed standard. Based on past learn the requirements of the proposed assumption, the estimated cost of testing experience with the existing mattress standard. mattress/foundation sets for quality standard, the estimated CPSC inspection Total Resource Costs. Therefore total assurance purposes, therefore, equals time spent per location (establishment) resource costs (including material costs, 4.2 cents per mattress ($1500/35,681) for equals 33 hours for inspection and 6 labor costs, costs of prototype and an average establishment. hours for sample collection. This yields confirmation testing, paperwork The labor needed to meet the quality a cost per inspection of about $1,664.52 collection and record keeping costs, assurance measures required by the (39 hours × $42.68, the average wage costs of quality control/quality standard is estimated by CPSC Office of rate for CPSC inspectors). Additionally, assurance programs, production testing Compliance staff to be 224 minutes per compliance officers spend an average of costs, costs to wholesalers, distributors, establishment per prototype per year. 20 hours per case, making their cost and retailers, and costs of compliance Assuming that every establishment will equal to $1,032.80 (20 hours × $51.64, and enforcement) are estimated to range produce 20 qualified prototypes, the the average hourly wage rate for from $12.63 to $43.86 per mattress. This increase in labor costs associated with compliance officers). This yields an range includes both the high-loft and quality assurance requirements of the average compliance and enforcement sheet barriers. The section on the impact proposed standard is about $1904 (224 total labor cost of $2,697.32 per of the proposed standard on small minutes × 20 qualified prototypes × inspected establishment per year. businesses and other small entities $25.50 average civilian workers’ It should be noted that the expected discusses how costs of testing and compensation per hour) per cost per establishment, if less than one quality control/quality assurance establishment per year. (Note that hundred percent of establishments are programs may differ for small pooling among establishments or using inspected every year, equals the cost per businesses and strategies that small a qualified prototype for longer than one inspected establishment times the manufacturers might adopt to reduce year will reduce this estimate.) This probability that a given establishment these costs. yields an average cost of 5.3 cents per will be inspected. Though the Projected Future Costs. It is possible mattress for an average establishment, probability that a given establishment that costs associated with the standard with average output of 35,681 will be inspected in a given year is not will decline over time. A supplier of fire mattresses. Hence total costs of quality known, assuming that a third of all resistant barriers predicts that the price assurance/quality control programs may establishments will be inspected (i.e., of the barriers will decline by 40 percent average about 9.5 cents (4.2 + 5.3) per about 213 establishments) yields a in the next two years, due to decreased conventional mattress per year. compliance and enforcement total uncertainty and increased competition. Costs to Wholesalers, Distributors, expected labor cost of $899.11 (They have already dropped and Retailers. An added cost of the ($2,697.32 × (1⁄3)) per establishment per significantly since TB603 was proposed standard is the increase in year. proposed.) The increase in labor costs costs to wholesalers, distributors, and In addition to labor costs, CPSC will due to decreased productivity is retailers in the form of additional incur testing costs. It should be noted expected to be temporary and be storage, transportation, and inventory that the decision to collect samples after reduced when workers get more training financing costs. Since a mattress an inspection visit is made at the and/or the older machines get replaced VerDate jul<14>2003 17:56 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4702 E:\FR\FM\13JAP2.SGM 13JAP2 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules 2485 with newer machines that are more 8. Benefits and Costs of the Proposed from 10 to 14 years, while using the 3 capable of handling the FR thread and Standard percent discount rate, expands the material used in fire resistant barriers. This section compares benefits and positive range of net benefits, it does not Moreover, as noted above, prototype costs of the proposed standard, presents affect the conclusion regarding net testing costs are expected to decline a sensitivity analysis, and highlights the benefits. A further increase of the after the first year of the standard. impact of the proposed standard on expected life of a mattress similarly The proposed standard references an retail prices, small businesses, children, would not affect the estimate of net effective date of twelve months and the environment. The sensitivity benefits. For example, using the Product following publication of a final rule. analysis examines the effect of changing Population Model estimate of the The costs reported here are based on the some of the assumptions used earlier. number of mattresses in use based on an assumption that supplier companies The analysis shows that net benefits expected mattress life of 18 years (equal will be able to maintain existing continue to be positive under a to 367.1 million mattresses) yields net capacity. If federal standards for reasonable range of assumptions about benefits of $14.42 to $64.49 per bedclothes and upholstered furniture the death and injury effectiveness of the mattress, using a discount rate of 3 were mandated at the same time and proposed standard, the reduction in percent. input producers were not given enough injuries resulting from the proposed Net benefits are also positive using time to increase their capacity, input standard, the value of a statistical life discount rates of 3 and 7 percent. Using prices would rise in the short-run estimate, the discount rate, or the a 3 percent discount rate, net benefits because of increased demand for the FR expected mattress life. per mattress equal $17.79 to $61.62 for material used by all three industries. The expected aggregate lifetime an average life of 10 years and $16.01 Unquantifiable Costs. A mattress benefits associated with one year’s to $63.08 for an average life of 14 years. manufacturer indicated that in response production of mattresses (25.3 million Using a 7 percent discount rate, net to an FR mattress standard, the number units) using a discount rate of three benefits per mattress equal $9.36 to of models/styles produced may be cut percent and an expected 10-year $50.88 for an average life of 10 years by half. If this response is typical, then mattress life are $1.56 to $1.88 billion and $5.15 to $48.26 for an average life there may be a reduction in consumers’ ($61.66 to $74.25 per mattress × 25.3 of 14 years. Assuming a larger discount utility, because of the reduction in million mattresses). The corresponding rate reduces net benefits, because future mattress types that they would have to expected aggregate costs of the proposed benefits reaped over the life of the choose from. Others indicate that there standard are $0.32 to $1.11 billion mattress contribute less to total benefits. will be an aversion to producing double- ($12.63 to $43.86 times 25.3 million). Net benefits are based on an estimated sided mattresses, because it would be The resulting net aggregate benefits value of a statistical life equal to $5 harder for them to pass the burn test. equal $0.45 to $1.56 billion ($17.79 to million. Changing the estimate used for Double-sided mattresses possibly have a $61.62 times 25.3 million). For a the value of a statistical life does not longer expected life than single-sided mattress life of 14 years (and a 3 percent have a major impact on the results. For ones. To the extent that consumers discount rate), aggregate lifetime example, if $3 million, the lower bound prefer double-sided mattresses to single- benefits, costs, and net benefits of the estimate in Viscusi (1993), is used as an sided mattresses, the shift away from proposed standard associated with one estimate of the value of a statistical life, producing double-sided mattresses year of production are $1.52 to $1.92, net benefits become -$2.90 to $36.73 per imposes a non-monetary cost. Though $0.32 to $1.11, and $0.41 to $1.60 mattress (using a 3 percent discount rate unquantifiable, this reduction in choices billion respectively. The expected and an estimated mattress life of 10 7 of construction type and design is an benefits of the proposed standard will years). Alternatively, a $7 million added cost to consumers of the accrue for a long period of time and estimate, the higher bound estimate in proposed standard. discounted net benefits will, therefore, Viscusi (1993), yields net benefits equal Another unquantifiable cost is the be much greater than net benefits to $38.48 to $86.51 per mattress (using possible increase in liability insurance associated with only the mattress a 3 percent discount rate and an faced by mattress manufacturers. production in the first year the standard estimated mattress life of 10 years). Because the draft proposed standard becomes effective. Changing the estimate used for the measures the performance of the entire Sensitivity Analysis. The previous cost of injury will have minimal impact mattress when exposed to fire, and not analysis compares benefits and costs of on the results, because the share of its individual components, liability will the proposed standard using expected benefits from reduced injuries is 16 be shared by input suppliers and mattress lives of 10 and 14 years, a percent of total benefits. Hence, even if mattress manufacturers. Industry discount rate of 3 percent, an expected there were no reduction in injuries from representatives expect that effectiveness rate of the proposed the proposed standard, the net benefits manufacturers’ liability insurance will standard of 80 to 86 percent of deaths would be $7.86 to $49.59 per mattress increase to reflect the additional and 86 to 92 percent of injuries, an (using a mattress life of 10 years and a possibility of litigation. This increase, estimated value of a statistical life of 5 3 percent discount rate). however, cannot be quantified because million dollars, and an estimated cost of The analysis assumes that the of the novelty of this performance test. injury of $179,300. This section effectiveness of the proposed standard Compliance of more mattress firms with examines the effect of changing any of ranges from 80 to 86 percent for deaths the California TB 603 standard may these assumptions on the expected net and 86 to 92 percent for injuries. The enable us to estimate the additional benefits of the proposed standard. 7 The range for net benefits was derived by liability insurance. Notice that any Comparing expected benefits and subtracting the upper end of the cost range from the increase in liability insurance faced by costs of the proposed standard, it is lower end of the benefits range to get the lower end FR input suppliers will be included in clear that net benefits are expected to be of the range for net benefits and subtracting the the price charged for the FR inputs and positive (i.e., expected total benefits lower end of the cost range from the higher end of the benefits range to get the higher end of the range does not add to the total increase in exceed expected costs) for an average for net benefits. Because of this method, both ends resource cost that is expected to result mattress life of 10 or 14 years. Though of the range for net benefits are a very unlikely from the proposed standard. increasing the expected mattress life occurrence. VerDate jul<14>2003 17:56 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4702 E:\FR\FM\13JAP2.SGM 13JAP2 2486 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules net benefits will remain positive, with a curve is unaffected, the equilibrium Impact on Small Businesses and lower effectiveness rate. For example, price will reflect the price elasticity of Other Small Entities. The increase in assuming an effectiveness rate of demand (i.e. the sensitivity of the material and labor costs to meet the preventing death of only 55 percent change in the quantity demanded to the proposed standard is not likely to be yields net benefits of $1.86 to $39.84 per change in price) as well as the shift in dependent on a firm’s size and will mattress and aggregate net benefits of 50 supply. In the short-run, consumers therefore not disproportionately affect million to 1.01 billion dollars from all have a relatively elastic demand curve, small businesses. The cost imposed mattresses produced the first year the because they can always postpone the disproportionately (per unit produced) proposed standard is mandated (using a purchase of a durable good, and on small businesses will be the cost of mattress life of 10 years, a 3 percent therefore the increase in the equilibrium testing, information collection and discount rate, and the same price is expected to be much lower than record keeping and quality control/ effectiveness for injuries as used in the the increase in the supply price (what quality assurance programs. While these baseline analysis). Also, assuming a producers would want to sell the same costs are estimated to be a little over one smaller number of deaths and injuries number of mattress/sets for). Because of dollar per mattress per year for average- before the proposed standard is the relatively high elasticity of demand, sized establishments, they could be mandated (a smaller baseline risk) sales are likely to decrease in the short- substantially higher for small mattress would still result in positive net run. In the long-run, the demand curve manufacturers. The proposed rule benefits. A 25 percent reduction in is less elastic, and therefore the includes measures that these baseline death and injury risks yields equilibrium price and quantity (sales) manufacturers can use to minimize the net benefits of $2.38 to $43.06 per will be higher than the short-run price testing burden. Furthermore, firms with mattress and aggregate net benefits of and quantity. more than one establishment, or $60 million to $1.09 billion from all Given the availability of mattresses different firms, may be able to reduce mattresses produced the first year the whose retail prices will not increase and these costs by pooling their testing and mattress standard is mandated (using a the competitive nature of the industry, quality control programs over all mattress life of 10 years, a 3 percent it is possible that, on average, prices establishments or firms. discount rate, and the estimated will rise by about twice the costs Use of pooling across establishments effectiveness measures used in the associated with the standard (i.e., retail and firms would ameliorate the impact baseline analysis). price mark-up will average about twice of the proposed standard on small Impact on Retail Prices. One of the the increase in manufacturing costs). businesses. By getting together across top four mattress manufacturers in the Under this assumption, consumers different states and regions, small industry has re-merchandised its would pay an additional $22.91 ($11.46 manufacturers who do not share a product lines to lower the costs of other × 2) to $79.69 ($39.85 × 2) per mattress/ common market (and therefore do not materials so that total costs (and prices) set (compared to the price they would compete with each other) can resemble are the same as they were before the have paid for a current mattress that a large producer in their testing and production of mattresses that comply quality control/quality assurance efforts does not comply with the proposed with TB603. Other manufacturers have and therefore reduce their costs per standard.8 Assuming that the demand indicated that they will have to increase mattress. It is also expected that some curve for mattresses is unaffected by the their price which, according to some barrier suppliers would be willing to do draft proposed standard, some manufacturers and based on reported the testing and quality control/ consumers will choose not to purchase traditional industry mark-ups, might assurance programs for small (or at least delay the purchase of) a new translate to an increase in the retail manufacturers in exchange for a small mattress/set. These consumers who price to consumers that could reach charge, which will be similar to the delay or choose not to purchase a new approximately four-fold the increase in average cost per mattress for large set will not be getting the value (or manufacturer’s costs. Hence the average businesses, because the volume of increase in the price at which mattress benefits) that they would have gained output will be large. manufacturers are willing to sell their from purchasing a new set. This loss, Impact on the Environment. The products (supply price) will be though difficult to quantify, is extraction, processing, refinement, and anywhere between the price of a similar sometimes measured as a loss in conversion of raw materials to meet the mattress without FR material and that consumer surplus (McCloskey, 1982). proposed standard involve energy price plus four times the increase in the It is unlikely, however, that the post- consumption, labor, and the use of costs of production. Given the presence standard demand curve for mattresses potentially toxic chemicals. Most of at least one company that will not will be the same as the current demand. manufacturing has some impact on the increase the price, it is unlikely that the Early 2004 market observations indicate environment, and manufacturing fire new average price will be close to the consumer and retail enthusiasm about resistant mattresses is no exception. higher end of the range because of the fire resistant mattresses already Because the proposed standard is a competition for market share among available for sale (Furniture Today, performance standard, it does not manufacturers. April 26th, 2004.) If this enthusiasm restrict manufacturers’ choice of fire The market (equilibrium) price is generally reflects consumers’ resistant materials and methods that determined by the intersection of preferences, then the demand for could be used in the production of consumers’ willingness to buy and mattresses may increase. This would mattresses. There appear to be several producers’ willingness to sell the tend to offset any reduction in mattress economically viable options to meet the product at different prices. The value sales and possible losses in consumer standard that, based on available the equilibrium price will take (relative surplus. information, do not impose health risks to the price before the introduction of to consumers or significantly affect the fire resistant mattress/sets) will be 8 These cost figures include labor and material environment. (See discussion at Section affected by the change in the demand costs; testing costs; record-keeping costs; and N of this preamble.) quality assurance program costs. They do not and supply curves for fire resistant include the costs to wholesalers, distributors, and Impact on Children. Deaths and mattress/sets and their relative retailers or compliance costs because they are not injuries among children constitute a elasticities. Assuming that the demand incurred by the manufacturers. substantial proportion of mattress- VerDate jul<14>2003 17:56 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4702 E:\FR\FM\13JAP2.SGM 13JAP2 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules 2487 related fire losses, and of the potential resource costs to manufacturers of a net benefits may not justify the large benefits of the proposed standard. A queen mattress/foundation set by $15.06 increase in retail price that would result CPSC staff report, based on a field to $50.65 compared to non-complying from a stricter standard. investigation study in 1995 to learn products (i.e., those not conforming to A bedding official estimated that such more about cigarette-ignited fires and the proposed standard.) 9 Adding the price increases may result in reduction open-flame fires, found that 70 percent costs to wholesalers, distributors, and in sales of 25 percent or more of open-flame fires involved child play retailers, the costs of testing, quality (Furniture/Today, July 21, 2004). The and that child play was involved in 83 control/assurance programs, record- larger increase in prices (compared to percent of the 150 deaths of children keeping, and CPSC compliance efforts, the less strict test requirements) and the less than five years of age. A National yields a total resource cost of the stricter resulting reduction in sales could drive Association of State Fire Marshals 1997 standard (150 kW and 60 minutes) of some of the smaller manufacturers out study also indicated that 66 percent of $16.59 to $55.74 (costs to manufacturers of business. (The stricter standard is the small open-flame ignitions were {$15.06 to $50.65} + cost to wholesalers, more likely to require replacing some reportedly started by children under the distributors, and retailers, equal to 10% existing machines to accommodate the age of 15 (21 percent by children under of costs to manufacturers {$1.51 to denser barrier material, which would be 5). $5.06} + 3.2 cents CPSC compliance disproportionately more costly for For virtually all of the fires started by costs) per mattress. This represents a smaller firms whose machinery is older children less than 15 years of age, the marginal increase in costs of $3.96 and less sophisticated.) Since mattresses ignition was not witnessed by an adult ($16.59¥$12.63) to $11.88 are durable goods, one would expect a (Boudreault and Smith, 1997). Reducing ($55.74¥$43.86) over the costs larger drop in sales in the short-run, as the likelihood of flashover in the first 30 associated with the proposed consumers choose to keep their old minutes of the fire may therefore benefit standard.10 mattresses longer than before. This children disproportionately, as it allows Such increase in costs would likely would make the reduction in sales more enough time for adults to detect the fire result in consumers facing higher pronounced in the short-run, increasing and save young children in close mattress prices. Based on traditional the likelihood that some firms may exit proximity to the fire. Also children industry mark-ups, the new price may the market. Moreover, if a large number between 5 and 9 who sometimes do not reflect a two- to four-fold increase over of consumers choose to extend the life cooperate with adults and run away the increase in production costs, of their mattresses for a longer time from adults to other parts of the depending on the relative elasticity of period, it will take longer to achieve the occupancy will have enough time to be demand and supply for mattresses. This benefits expected to be associated with found and rescued by an adult. yields a total increase in the average the safer mattresses. The Epidemiology staff’s price of a queen mattress/set of $30.11 Alternative Total Heat Released in the memorandum shows that, based on (2 × $15.06) to $202.58 (4 × $50.65). First Part of the Test. TB 603 limits the national fire estimates for the years Potential benefits of the stricter standard total heat released during the first 10 1995–1999, children younger than 15 could be higher than the proposed minutes of the test to 25 MJ. The accounted for 27 percent of addressable standard, but the extent is uncertain. proposed standard’s stricter limit (15 MJ deaths and 23 percent of addressable Given an effectiveness rate of greater in the first 10 minutes) reduces the injuries. They also indicate that the than 80 percent of the proposed expected size of the initial fire and proposed standard would reduce deaths standard, the additional benefits of hence allows consumers a greater and injuries to children ages 5 and stricter test requirements are limited. chance to escape the fire and get out of younger by 85 to 92 percent and 80 to Assuming that the stricter standard the room, even if the room never 87 percent respectively. Deaths and could eliminate 50 percent of the reaches flashover. The effectiveness injuries to children ages 5 to 14 were remaining deaths and injuries (i.e., it rates presented in the analysis are based estimated to be reduced by 94 to 97 could save 39 additional lives and on the stricter criterion. Using the TB percent and 88 to 94 percent prevent 136 additional injuries), then an 603 criterion (25 MJ in the first 10 respectively. This represents a total of additional benefit of about $7.66 per minutes) would likely reduce estimated 100 to 110 deaths of children less than mattress would be expected. This benefits (the estimated reductions in 15 years of age per year for the 1995– additional benefit, however, would deaths and injuries), without having any 1999 period. It also represents 410 to come with additional costs (discussed significant effect on costs. According to 440 injuries to children less than 15 above) and therefore may reduce net several producers, mattresses that use years of age for the same period. benefits. Moreover, a small increase in existing barrier technology release total heat that is far below the 25 MJ 9. Alternatives to the Proposed Standard 9 The lower end of the range is based on barrier requirement of TB 603. Therefore, using Alternative Maximum Peak Heat price of one supplier, whose capacity is expected the TB 603 criterion for the total heat Release Rate (PHRR) and Test Duration. to meet 25 to 30 percent of the whole market demand in the short run. The next cheapest released would not change costs but The initial California TB 603 proposal alternative costs $24 for the barrier material alone. could potentially reduce the benefits required the duration of the test to last 10 These cost estimates (and the resulting and, hence, the net benefits of the 60 minutes with a maximum PHRR of marginal increase) should be viewed as proposed standard. 150kW. After receiving comments on approximate since no extensive tests of the barriers Moreover, because of the small fuel have been conducted for 60 minutes, as most this proposal, the California Bureau of manufacturers are focused on meeting the less strict load of ticking materials currently being Home Furnishings and Thermal requirements. Input suppliers generally do not used, the lower total heat release Insulation changed the criterion to a assemble and test large numbers of mattresses, and requirement allows the production of may therefore underestimate reduced labor mattress/sets based on a prototype that maximum of 200 kW PHRR in the first productivity and/or reduced output per machine 30 minutes, the requirement for both the (compared to a maximum PHRR of 200 kW for a has not been tested so long as it differs federal proposed standard and the 30-minute test) due to handling the thicker denser from the qualified prototype only with current TB 603. barrier. A number of mattress producers estimate respect to ticking and the ticking Increasing the duration of the test and that to meet the stricter standard, manufacturing material is not part of the fire resistance costs would increase (over those of non-compliant reducing the PHRR would, according to mattresses) by $50 to $70 for a queen-sized set solution. Requiring a test for every several input suppliers, increase the (Furniture/Today, July 21, 2004). prototype with a different ticking was VerDate jul<14>2003 17:56 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4702 E:\FR\FM\13JAP2.SGM 13JAP2 2488 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules rejected because of the magnitude of the earlier effective date may result in Labeling Requirements. The burden it would impose on small higher input costs to manufacturers. Commission could require labeling on manufacturers who do not produce large More importantly, it is expected that mattresses to warn consumers in lieu of numbers of any one prototype and who smaller manufacturers will be a standard. Labeling is not considered would have been disproportionately disproportionately affected, as they are an effective option for reducing the risk adversely affected by these more likely to wait to invest in of fires. Since mattress labels are usually requirements. development efforts until the covered by bedclothes and may not be Alternative Testing Requirements. technology is developed by larger firms, seen by the mattress users, labeling The proposed standard requires or until the proposed standard becomes mattresses is likely to be an ineffective prototype testing (of three mattress/sets) effective. A later effective date (longer means of warning consumers. Moreover, before a manufacturer starts production than twelve months) could reduce fires started by children who cannot of a given mattress design and a expected net benefits as more fires, read or do not change the bed sheets confirmatory test of one mattress if more deaths, and injuries associated with will not be reduced by a labeling than one establishment or firm are mattresses would occur between the requirement. Hence, while labeling pooling their results. Manufacturers date of publication in the Federal costs are probably negligible, labels are may sell a mattress/set based on a Register and the date the standard unlikely to reduce mattress fires. prototype that has not been tested if that becomes effective. The staff is unaware Labeling of chemically treated prototype differs from the qualified of evidence that small manufacturers components has been suggested as a prototype only with respect to: (1) would be negatively impacted by a possible requirement of the draft Mattress/foundation size; (2) ticking, twelve months period relative to a standard, to inform consumers of the unless the ticking of the qualified longer period, such as eighteen or materials used. The costs of such prototype has characteristics designed twenty-four months. The Commission is labeling would also be negligible, since to improve the performance on the burn requesting comments from small existing mattresses have labels and test; and/or (3) any component, businesses on the expected economic producers could probably add a material, or method of construction that impact of the effective date and other description of the chemical treatment (if the manufacturer can demonstrate on an requirements of the proposed rule (see any) to the existing label. Labeling of objectively reasonable basis will not section M of this document below). chemically treated components could cause the prototype to exceed the test Taking No Action or Relying on a provide small unquantifiable benefits to criteria. Though production testing (i.e., Voluntary Standard. If the Commission consumers as it would provide some random burning of mattress/sets to chose to take no action, California may additional information. However, ensure that all production units meet attempt to enforce its standard despite because a label would only provide the the standard) is encouraged by the the Commission General Counsel’s name of any chemical treatment without proposed standard under quality position on preemption. Larger any information about whether the assurance program requirements, it is producers are already moving to comply treatment has any potential health not required. The individual with California’s standard. They also effects, it would be of little practical use manufacturer’s decision on whether to want to avoid product liability claims for the consumer. Information on the conduct production testing (and if so, at associated with selling mattresses with use of chemically treated components what frequency) will clearly depend on different fire resistance in other areas of is, however, required as part of the the efficacy of his/her quality assurance/ the country. Three of the largest four record keeping requirements of the control efforts. producers plan to meet TB 603 standard. As an alternative, the proposed nationwide by the end of 2005. Some L. Paperwork Reduction Act Federal standard could, like TB 603, small California manufacturers may omit testing or prototype definition have a smaller incentive to meet TB 603 The proposed standard will require requirements. Without testing, however, than a Federal standard. Small manufacturers (including importers) of it might be difficult for manufacturers to manufacturers who do not sell in mattresses/sets to perform testing and know whether their mattresses will California may similarly have no maintain records of their testing and comply with the standard. incentive to sell mattresses that meet TB quality assurance efforts. For this Alternatively, the standard could 603 requirements in other parts of the reason, the rule proposed below require production testing with a country. Hence, expected aggregate net contains ‘‘collection of information specified frequency. This specification, benefits associated with the draft requirements,’’ as that term is used in however, could result in unnecessary proposed standard are higher than the the Paperwork Reduction Act, 44 U.S.C. costs if they are not justified given the net benefits that might result under 3501–3520. Therefore, the proposed rule quality control measures generally California TB 603 even if it could be is being submitted to the Office of undertaken by manufacturers in the enforced in the face of preemption Management and Budget (‘‘OMB’’) in absence of the proposed standard. concerns. accordance with 44 U.S.C. 3507(d) and Requiring more tests per establishment, No effort has been undertaken to implementing regulations codified at 5 prototype, or enterprise will increase develop a voluntary standard. CFR 1320.11. The estimated costs of the estimated costs per mattress and Furthermore, industry representatives these requirements are discussed below. could reduce net benefits. support a mandatory standard to level Costs of Prototype and Confirmation Alternative Effective Date. The the playing field among domestic Testing. According to industry proposed effective date is twelve producers (large and small) and representatives, the cost of testing per months from the date of publication of importers. If a voluntary standard were twin-size mattress/set may be about the final rule in the Federal Register. developed, the economic burden would $500: the sum of the average cost of the Given the length of time needed to fall primarily on the larger firms (who materials and shipping ($100) and the ensure the availability of inputs for the would likely be the first to comply), cost of the use of the lab ($400). Hence, production of barrier materials, their market shares could be reduced the cost for testing three specimens as availability of barriers for mattress and benefits to consumers (in terms of required by the proposed rule producers, and a sufficient volume of reduced deaths and injuries) would mattresses equals $1500. This cost is inventories at retailers’ showrooms, an likely decline accordingly. assumed to be incurred no more than VerDate jul<14>2003 17:56 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4702 E:\FR\FM\13JAP2.SGM 13JAP2 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules 2489 once per establishment for each producers, whose quality control this document (see section G.2. above). prototype. If manufacturers test every program is less detailed or non-existent, Options that manufacturers may choose mattress construction (e.g., single-sided will incur some incremental costs as a in order to meet the proposed standard pillow top, double-sided pillow-top, result of the proposed standard. These include one or a combination of the tight-top, euro-top, * * * etc.), which is incremental costs will be small for each following: fire resistant ticking; estimated, based on conversations with manufacturer and less when measured chemically treated or otherwise fire manufacturers, to average about 20 per per mattress. (See the section on impact resistant filling products; or a fire manufacturer, for every establishment in of the proposed standard on small blocking barrier (either a sheet style a given year, then the estimated businesses for a description of their cost barrier or a high-loft barrier, sometimes industry testing cost per establishment of quality control and quality assurance called a fiber barrier). per year would approximately equal programs.) For each qualified prototype, three $30,000. The total number of Additionally, the proposed standard mattresses/sets must be tested and must establishments producing conventional encourages random production testing pass the test requirements. To obtain a mattresses in 2001 was 639. Using an to assure manufacturers that their passing result, each mattress/set must estimated number of 739 producers of mattresses continue to meet the pass a 30 minute test, where the PHRR both conventional and unconventional requirements of the rule. Assuming that does not exceed 200 kW and the total mattresses, the annual cost to all an average of 3 mattress/set heat release does not exceed 15 MJ in (conventional and unconventional) constructions will be tested per the first 10 minutes of the test. A failure mattress producers is $22.17 million. establishment per year yields an of any of the sets would require that the Cost of information collection and estimated cost of production testing of problem be corrected and the prototype recordkeeping. In addition to prototype about $1500. The labor needed to meet be retested and pass the test (in testing, the proposed standard will the quality assurance measures required triplicate). Manufacturers may sell any require detailed documentation of by the standard is estimated by CPSC mattress/foundation set based on a prototype identification and testing Office of Compliance staff to be 224 qualified prototype. Manufacturers may records, model and prototype minutes per establishment per qualified also sell a mattress/set based on a specifications, inputs used, name and prototype per year. Assuming that every prototype that has not been tested if that location of suppliers, and confirmation establishment will produce twenty prototype differs from a qualified test record, if establishments choose to different qualified prototypes, the prototype only with respect to (1) pool a prototype. This documentation is increase in labor costs associated with mattress/foundation size; (2) ticking, in addition to documentation already quality assurance requirements of the unless the ticking of the qualified conducted by mattress manufacturers in draft proposed standard is about $1904 prototype has characteristics designed their efforts to meet the cigarette (224 minutes × 20 qualified prototypes to improve performance on the burn standard. Detailed testing × $25.50 average civilian workers’ test; and/or (3) any component, documentation will be done by the test compensation per hour) per material, or method of construction that lab and is included in the estimated cost establishment per year. Hence total the manufacturer can demonstrate, of testing. Based on CPSC Office of costs of quality assurance/quality based on an objectively reasonable Compliance staff estimates, all control programs may average about basis, will not cause the prototype to requirements of the proposed standard $3,404 ($1500+1904) per establishment exceed the test criteria specified above. If one or more establishments (plants are expected to cost an establishment per year. This translates to an annual within the same firm) or independent about 110 minutes, or 1.3 hours, per cost to all (conventional and firms choose to ‘‘pool’’ prototypes, then qualified prototype. Assuming that unconventional) mattress producers of each pooling plant or firm is required to every establishment will produce 20 $2,515,556 ($3,404 × 739). different qualified prototypes, the conduct a confirmation test for one increase in record keeping costs is about M. Initial Regulatory Flexibility mattress/set it produces locally. If that $935 (110 minutes × 20 prototypes × Analysis set fails, then its producer cannot sell $25.50 in average civilian workers’ mattresses based on that prototype 1. Introduction compensation per hour) per unless it successfully tests another establishment per year. (Note that The Regulatory Flexibility Act mattress/set after correcting its pooling among establishments or using (‘‘RFA’’) generally requires that agencies production to make sure that it is a prototype qualification for longer than review proposed rules for their potential identical to the original prototype. A one year will reduce this estimate.) This economic impact on small entities, pooling firm may sell other mattresses translates to an annual cost to all including small businesses. Section 603 that have not been tested by the pooling (conventional and unconventional) of the RFA calls for agencies to prepare firm if they differ from the pooled mattress producers of $690,965 ($935 × and make available for public comment prototype only with respect to (1) 739). an initial regulatory flexibility analysis mattress/foundation size; (2) ticking, Cost of quality control/quality describing the impact of the proposed unless the ticking of the qualified assurance programs. To ensure that all rule on small entities and identifying prototype has characteristics designed mattresses are produced to the impact-reducing alternatives. to improve performance on the burn prototype specification across all Accordingly, staff prepared an initial test; and/or (3) any component, factories and over the years for which a regulatory flexibility analysis for the material, or method of construction that production line exists, mattress mattress proposed rule. 9 A summary of the manufacturer can demonstrate, manufacturers will need a thorough that analysis follows. based on an objectively reasonable well-documented quality control/ basis, will not cause the prototype to assurance program. The top 12 mattress 2. Impact on Small Businesses and exceed the test criteria specified above. producers (with a market share of Other Small Entities Manufacturers are required to keep almost 80 percent) have a existing Summary of proposed requirements. records of all tests performed and their quality control programs which could The proposed standard will apply to results, including video or pictures, be modified to fit the new standard with all mattresses and mattress and prototype identification number, date minimal additional costs. Smaller foundation sets, as discussed earlier in and time of test, name and location or VerDate jul<14>2003 17:56 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4702 E:\FR\FM\13JAP2.SGM 13JAP2 2490 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules testing facility for as long as the been tested extensively and is known to 3. Alternatives and Their Possible Effect prototype is in production and for three meet the standard. The price smaller on Small Businesses years after its production ceases. firms pay to cover the development and Alternatives considered by the Manufacturers are also required to keep testing costs borne by the supplier will Commission are discussed in the records of a unique identification not disproportionately impact them, Preliminary Regulatory Analysis section number for the qualified prototype and because it is not measured relative to of this preamble (Section K). As a list of the unique identification their small output, but relative to the discussed therein, increasing the numbers of all other prototypes based supplier’s output. Other smaller firms duration of the test and reducing the on the qualified prototype, together with may combine their development efforts PHRR would increase costs without a description of the material substituted to be able to benefit from dividing the necessarily increasing benefits. This and/or size change. Moreover, they are costs over a larger number of firms. would necessitate an increase in costs. required to document the name and Finally, small mattress producers who Staff estimates the marginal increase in supplier of each material used in do not assemble the mattress panels, but costs to be $3.96 to $11.88 over the costs construction and keep physical samples buy them from a panel supplier are of the proposed standard. Although a of the material. Additionally, they are stricter standard might increase benefits, required to identify the details of the effectively acting as a large producer by any increase is likely to be small since application of any flame retardant combining all their output. This is the proposed standard has an treatments and/or inherently flame because the panel supplier will be effectiveness rate of 80 percent. retardant fibers employed relative to responsible for including a barrier in the An increase in costs would likely mattress components. Finally, they are panel assembly and will pass that cost result in an increase in mattress prices. required to have an adequate quality on to the mattress producers, again not A bedding official estimated that such assurance program in place. disproportionately impacting the small Impact on small businesses. The producers who buy the already price increases may result in reduction proposed standard covers manufacturers assembled panels. in sales of 25% or more (Furniture/ Today, July 21, 2004). The larger and importers of mattresses. There were The cost imposed disproportionately 557 mattress firms and 639 mattress increase in prices (compared to the less (per unit produced) on small businesses strict test) and the resulting reduction in establishments in 2001, according to the will be the cost of testing, information Statistics of U.S. businesses, Census sales could drive some of the smaller collection and record keeping, and producers out of business. (A stricter Bureau data. All but the largest twelve quality control/quality assurance firms had less than 500 employees. The standard would be more likely to programs. While the regulatory analysis U.S. Small Business Administration’s require replacing some existing estimates these costs to be a little over Office of Advocacy defines a small machines, to accommodate the denser business as one that is independently one dollar per mattress per year for barrier material, which would be owned and operated and not dominant average-sized establishments, they disproportionately more costly for in its fields. A definition that is used could be substantially higher for small smaller firms, whose machinery is older frequently and is less subject to mattress producers. If manufacturers use and less sophisticated.) Since mattresses interpretation is a firm with fewer than a prototype qualification to produce are durable goods, one would expect a 500 employees. The latter definition mattress/set constructions for longer larger drop in sales in the short-run than classifies 97.8 percent ((557 ¥ 12)/557) than a year, or if they use a worst-case in the long-run, as consumers choose to of all mattress firms as small businesses. prototype to represent other mattress keep their old mattresses longer than Average employment per firm for the constructions, these costs will be lower. before. This would make the reduction whole industry is 45.8 employees. Furthermore, firms with more than one in sales more pronounced in the short- Average employment for the 1–4 establishment may be able to reduce run, increasing the likelihood that some employees per enterprise group, which these costs by pooling their testing and firms may exit the market. Moreover, if represents 22.98 percent of all firms, is quality control programs over all a large number of consumers choose to 2.4 employees. Average employment for establishments. Small independent extend the life of their mattresses for a the fewer than twenty employees per firms could also pool their testing to longer time period, it will take longer to enterprise group, which represents reduce their costs per mattress. achieve the benefits expected to be associated with the safer mattresses. 61.22 percent of all firms, is 6.2 Use of pooling across establishments employees. Hence more than half of As discussed in the preliminary and firms would ameliorate the impact mattress firms have fewer than twenty regulatory analysis, the Commission of the proposed standard on small employees. also considered a different criterion for In addition to domestic producers, businesses. By getting together across the total heat released during the first 10 importers will be affected by the different states and regions, small minutes of the test, i.e., 25 MJ instead proposed standard. Imported mattresses manufacturers who do not share a of the 15 MJ the Commission is represent less than two percent of total common market (and therefore do not proposing. Using the 25 MJ criterion U.S. shipments. compete with each other) can resemble would likely reduce estimated benefits The increase in material and labor a large manufacturer in their testing and (the estimated reductions in deaths and costs of the proposed standard quality control/quality assurance efforts injuries), without having any significant (estimated to be $10.41 to $38.80 per and therefore reduce their costs per effect on costs. According to several mattress) is not likely to be dependent mattress. It is also expected that some producers, mattresses that use existing on a firm’s size and will therefore not barrier suppliers would be willing to do barrier technology release total heat that adversely affect small businesses. Larger the testing and quality control/ is far below the 25 MJ level. firms are bearing all the capital assurance programs for small Moreover, because of the small fuel investment costs of research and manufacturers in exchange for a small load of ticking materials currently being development, sharing some of these charge, which will be similar to the used, the lower total heat release costs with input suppliers. Most smaller average cost per mattress for large requirement allows the production of firms are waiting to buy from the businesses, because the volume of mattress/sets based on a prototype that suppliers a barrier solution, which has output will be large. has not been tested so long as it differs VerDate jul<14>2003 17:56 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00022 Fmt 4701 Sfmt 4702 E:\FR\FM\13JAP2.SGM 13JAP2 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules 2491 from the qualified prototype only with Another possible option would be to • Twelve month effective date respect to ticking and the ticking is not require labeling on mattresses to warn Also, it would be most useful to part of the fire resistance solution. consumers in lieu of a standard. receive comments on ways in which the Requiring a test for every prototype with However, as discussed in the proposal could be modified to reduce a different ticking was rejected because Preliminary Regulatory Analysis, any costs or burdens for small entities, of the magnitude of the burden it would labeling is not likely to be effective at and whether and how technological impose on small producers who do not reducing mattress-related deaths and developments could reduce the costs for produce large numbers of any one injuries. small entities of complying with the prototype and would have been A final possible option might be to set rule. a later effective date for small adversely affected by these N. Environmental Considerations requirements. companies. If needed, this could allow The Commission also considered smaller companies more time to prepare General. Usually, CPSC rules alternative testing requirements. The for the standard since they are less establishing performance requirements proposed standard requires prototype likely to be currently preparing for are considered to ‘‘have little or no potential for affecting the human testing (of three specimens of mattress/ California’s similar TB 603. However, environment,’’ and environmental sets) before a manufacturer starts the Commission has no evidence at this assessments are not usually prepared for production of a given mattress design time that a split effective date is these rules (see 16 CFR 1021.5 (c)(1)). and a confirmatory test of one mattress necessary. However, in order to meet this standard, if a firm is producing a mattress based 4. Conclusion many manufacturers will need to on a prototype produced by another Almost all mattress firms would be change some materials that they use to manufacturer in a pooling arrangement. considered small businesses, using the manufacture mattresses: either using Although production testing (i.e. Small Business Administration more inherently flame resistant burning mattress/sets to ensure that definition. Material and labor costs for materials or incorporating flame production units meet the standard) is all firms are expected to initially retardant (FR) chemicals into their encouraged by the proposed standard increase on average by $10–$39 dollars products. Therefore, the Commission under quality assurance program per mattress set produced. These cost concluded that a more thorough requirements, it is not required. The increases are expected to be borne consideration of the potential for individual manufacturer’s decision on equally by all firms and hence do not environmental impacts is warranted. the need for and frequency of have an adverse impact on the smaller The staff’s analysis contained in the production testing will clearly depend mattress producers. These costs are memorandum ‘‘Preliminary on the efficacy of its quality assurance/ expected to decline in the future due to Environmental Assessment of a Draft control efforts. improved technology of producing fire Proposed Open-Flame Ignition As an alternative, the Federal retardant materials and increase Resistance Standard for Mattresses,’’ [7] standard could, like TB 603, omit competition among input suppliers. concludes that since the proposed testing requirements. However, without Although testing and recordkeeping standard states performance testing, it might be difficult for requirements may have a requirements, manufacturers will have manufacturers to know whether their disproportionate impact on small several options for meeting the mattresses will comply with the manufacturers, the proposed standard requirements of the proposed standard. standard. Alternatively, the standard allows manufacturers to pool test Although there are still some unsettled could require production testing with a results, to vary their tickings without questions, there appear to be numerous specified frequency. This specification, new prototype testing (unless the promising methods that manufacturers however, could result in unnecessary ticking had characteristics designed to could use without posing an costs if they are not justified given the improve performance on the specified unacceptable health risk to consumers quality control measures generally mattress test), and to make other or significantly affecting the undertaken by producers in the absence changes in their prototype without new environment. Moreover, even if a of the proposed standard. Requiring prototype testing if the change does not chemical used by some manufacturers more tests per establishment, prototype, negatively effect the mattress’s ability to were shown to pose an unacceptable or enterprise will increase the estimated meet the test criteria. These options risk to human health or the costs per mattress and could reduce net should minimize burdens on small environment, there would be various benefits. businesses. regulatory and other mechanisms that The Commission also could have The Commission requests comments could be used to remove the chemical chosen to take no action. In this on any or all of the provisions in the from applications where it poses a risk. situation, the larger producers would proposed rule with regard to : (1) The Possible approaches to meet the probably follow TB 603 for all their impact of the provisions (including any proposed standard. The standard does mattresses, not just those sold in benefits and costs), if any, on small not prescribe the means that California, in order to avoid product entities and (2) what alternatives, if any, manufacturers must use to meet the liability claims. Some small California the Commission should consider, as standard. The staff expects, however, manufacturers may decline to meet TB well as the costs and benefits of those that most manufacturers will use some 603 on the basis that it is preempted by alternatives to small entities in light of kind of flame resistant barrier to protect the existing federal standard. Small the above analysis. The Commission is the mattress components with the manufacturers who do not sell in particularly interested in information greatest combustible fuel loads from the California may have no incentive to with regard to the impact of the flames. These barriers may be fabric, meet TB 603 requirements throughout following aspects of the proposed rule: batting, or other materials that are either the country. Hence, expected aggregate • Prototype and confirmation testing inherently flame resistant or that have net benefits associated with the draft requirements been treated with flame retardant proposed standard are higher than the • Quality Control/quality assurance chemicals. [6&7] net benefits that might result under program requirements Because manufacturers are now California TB 603. • Recordkeeping requirements evaluating their alternatives, the staff VerDate jul<14>2003 17:56 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4702 E:\FR\FM\13JAP2.SGM 13JAP2 2492 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules does not know the methods that each workers involved in manufacturing analysis concludes that there are FR manufacturer will use to meet the protective apparel, carpets, and chemicals and flame resistant materials proposed standard. Therefore, the staff’s transportation upholstery may already that, based on currently available data, analysis attempts to provide some be exposed to these chemicals as are the are not expected to pose unacceptable context for considering the consumers of the products. Some of risks to the environment and that are environmental impacts of the standard. these FR chemicals and materials may widely used in other applications. [7] More definitive conclusions should be already be used in mattress and bedding In accordance with the National possible as more information applications. For example, boric acid is Environmental Policy Act (‘‘NEPA’’), concerning the methods that already used to treat cotton batting in the Executive Director of CPSC has manufacturers will use to meet the mattresses and futons. [6&7] issued a Finding of No Significant standard becomes available. Possible regulatory protections. Some Impact (‘‘FONSI’’) for the proposed How the proposed standard could chemicals that have been used for their mattress standard. The FONSI is based affect the environment. About 25 fire resistant properties have been on the staff’s Environmental million mattresses are sold annually, determined to have unacceptable Assessment, which has been and most will probably require some adverse impacts on health and the summarized above. The FONSI changes in materials used or environment in some applications (e.g., concludes that there will be no construction to meet the standard. TRIS (2,3,-dibromopropyl) phosphate, significant impacts on the quality of the These changes, such as the pentabromodiphenyl oxide (‘‘PBDPO’’) human environment as a result of the incorporation of a flame resistant barrier and octabromodiphenyl oxide proposed mattress flammability or other materials, will increase the (‘‘BDPO’’)). [7] standard. The Commission requests manufacture of fire resistant materials or The U.S. Environmental Protection comments on both the Environmental FR chemicals. This could mean Agency (EPA) has the authority to Assessment and the FONSI.11 increased exposure to such chemicals regulate the use of toxic chemicals O. Executive Order 12988 for workers and consumers. under the Toxic Substances Control Act Additionally, at the end of their useful (TSCA) (15 U.S.C. 2601 et seq.). EPA According to Executive Order 12988 lives, the mattresses/sets will be also monitors and promotes research (February 5, 1996), agencies must state disposed of. Potential environmental into potential toxic or environmental the preemptive effect, if any, of new impacts will vary depending on the effects of chemicals which it believes regulations. method the manufacturer used to meet could pose environmental risks. With The FFA provides that, generally, if the standard and the potential for the regard to flame retardants, the EPA is the Commission issues a flammability particular FR chemicals used to persist developing a significant new use rule standard for a fabric, related material or in the environment. [7] (SNUR), under section 5(a)(2) of TSCA, product under the FFA, ‘‘no State or FR chemicals widely in use, but new which is expected to cover the use of political subdivision of a State may applications possible. Many FR several flame retardants in residential establish or continue in effect a chemicals are widely used. In the U.S., upholstered furniture. A SNUR would flammability standard or other the consumption of flame retardant require chemical manufacturers and regulation for such fabric, related chemicals is estimated to be over 1 importers to report scientific data to the material or product if the standard or billion pounds annually and is EPA so that EPA may determine other regulation is designed to protect increasing. This includes various fire whether controls on the use of the against the same risk of the occurrence retardant chemicals based on bromine, chemical may be warranted. There is of fire with respect to which the antimony, chlorine, phosphorous, expected to be some overlap between standard or other regulation under this nitrogen, and boron. Additionally, there the flame retardants that will be covered Act is in effect unless the State or are some fibers where the FR chemical by the SNUR for use in upholstered political subdivision standard or other is incorporated into the polymer of the furniture and flame retardants that can regulation is identical to the Federal fiber itself or that are inherently fire be used in mattresses. standard other regulation.’’ 15 U.S.C. resistant. These include some Decabromodiphenyl oxide (DBDPO), for 1203(a). Upon application to the modacrylic, melamine, and para-aramid example, can be used as a backcoating Commission, a State or political fibers. in upholstery fabric or on fire resistant subdivision of a State may be exempted Because the chemicals and materials barriers for mattresses. Additional from this preemptive effect if that would be used to meet a mattress activities by EPA, The National compliance with the State or political standard are already being used in other Toxicology Program (NTP) of the subdivision requirement would not applications, the manufacture of these Department of Health and Human cause the fabric, related material or materials will not create new impacts, Services (DHHS), and the Occupational product to be in violation of any FFA though it could intensify effects that are Safety and Health Administration standard or regulation, and the State or already occurring. A mattress (OSHA) can provide information about political subdivision’s standard (1) flammability standard could result in any adverse health effects of FR provides a significantly higher degree of some FR chemicals or flame resistant chemicals and take actions to limit their protection from the risk of occurrence of materials being used in applications use if necessary. [6&7] Work by the fire than the FFA standard and (2) does where they have not been used before. National Research Council of the not unduly burden interstate commerce. This would result in some new National Academy of Sciences on Id. 1203(c)(1). In addition, the Federal exposure patterns for these materials. selected flame-retardant chemicals is an government, or a State or local For example, workers in mattress additional source of information on government, may establish and continue factories could be exposed to the these FR chemicals. [16] in effect a non-identical flammability chemicals as could the ultimate Conclusion. The staff’s environmental standard or other regulation for the consumers. However, these new analysis examines some of the methods exposure patterns may be similar to manufacturers might use to meet the 11 Both of these documents are available from the Commission’s Office of the Secretary (see ones that are already occurring since proposed standard and discusses what ‘‘Addresses’’ section above) or from the these chemicals are widely used in is known about their potential toxicity Commission’s web site (http://www.cpsc.gov/ other applications. For example, and possible environmental impact. The library/foia/foia.html). VerDate jul<14>2003 17:56 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00024 Fmt 4701 Sfmt 4702 E:\FR\FM\13JAP2.SGM 13JAP2 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules 2493 Federal, State or local government’s should allow sufficient time for aggregate lifetime net benefits for all own use if it provides a higher degree manufacturers to develop products for mattresses produced in the first year of of protection than the FFA standard. Id. nationwide markets that will meet the the standard of $450 to $1,560 million 1203(b). Thus, with the exceptions proposed requirements. The from the standard. Thus, the noted above, the proposed open flame Commission requests comments, Commission preliminarily finds that the standard for mattresses would preempt especially from small businesses on the standard is needed to adequately protect non-identical state or local mattress proposed effective date and the impact the public from the unreasonable risk of flammability standards designed to it would have on them. the occurrence of fire. The standard is reasonable, protect against the same risk of the Q. Proposed Findings occurrence of fire. technologically practicable, and The issue of preemption has been Section 1193(a) and (j)(2) of the FFA appropriate. Through extensive research raised with regard to the proposed require the Commission to make certain and testing, NIST developed a test standard because of California’s TB 603. findings when it issues a flammability method to assess the flammability of In a letter to the Bureau Chief of standard. The Commission must find mattresses ignited by an open flame. California’s Bureau of Home that the standard: (1) Is needed to The test method represents the typical Furnishings and Thermal Insulation, adequately protect the public against the scenario of burning bedclothes igniting dated April 9, 2003, the Commission’s risk of the occurrence of fire leading to a mattress. Based on NIST’s testing, the General Counsel has taken the position death, injury or significant property standard establishes criteria that will that CPSC’s existing federal Standard for damage; (2) is reasonable, reduce the fire intensity of a burning the Flammability of Mattresses (16 CFR technologically practicable, and mattress, allowing more time for 1632) preempts California’s TB 603. appropriate; (3) is limited to fabrics, occupants to escape before flashover That conclusion was based on related materials or products which occurs. NIST testing has also legislative history and CPSC’s General present unreasonable risks; and (4) is demonstrated that mattresses can be Counsel Advisory Opinion 289 (Dec. 8, stated in objective terms. Id. 1193(b). In constructed with available materials and 1983) indicating that if federal and state addition, the Commission must find construction that will meet the test requirements are both designed to that: (1) If an applicable voluntary criteria. Therefore, the Commission address the same risk (i.e., the standard has been adopted and finds that the standard is reasonable, occurrence of fire), the federal standard implemented, that compliance with the technologically practicable, and will have preemptive effect even if the voluntary standard is not likely to appropriate. two standards use different ignition adequately reduce the risk of injury, or The standard is limited to fabrics, sources. compliance with the voluntary standard related materials, and products that Legislative history of the FFA’s is not likely to be substantial; (2) that present an unreasonable risk. The preemption provision states: benefits expected from the regulation standard applies to mattresses and bear a reasonable relationship to its mattress and foundation sets. It is a [A] State standard designed to protect costs; and (3) that the regulation performance standard. Thus, it neither against the risk of injury from a fabric imposes the least burdensome requires nor restricts the use of catching on fire would be preempted by a requirement that would prevent or particular fabrics, related materials or Federal flammability standard covering the same fabric even though the Federal adequately reduce the risk of injury. The products. Manufacturers may choose the flammability standard called for tests using last three findings must be included in materials and methods of construction matches and the State standard called for the regulation. Id. 1193(j)(2). These that they believe will best suit their tests using cigarettes. When an item is findings are discussed below. business and result in mattresses that covered by a Federal flammability standard, The standard is needed to adequately can meet the specified test criteria. As * * * a different State or local flammability protect the public against unreasonable discussed above, the Commission requirement applicable to the same item will risk of the occurrence of fire. National concludes that current mattresses be preempted since both are designed to fire loss estimates indicate that present an unreasonable risk. Therefore, protect against the same risk, that is the mattresses and bedding were the first the Commission finds that the standard occurrence of or injury from fire. items to ignite in 19,400 residential fires is limited to fabrics, related materials, H.R. Rep. No. 1022, 94th Cong., 2d Sess. attended by the fire service annually and products that present an 29 (1976). The Commission believes that during 1995–1999. These fires resulted unreasonable risk. this legislative history indicates that the in 440 deaths, 2,230 injuries and $273.9 Voluntary standards. The proposed standard would preempt non- million in property loss each year. Of Commission is not aware of any identical state requirements addressing these, the staff considers an estimated voluntary standard in existence that the flammability of mattresses. 18,500 fires, 440 deaths, 2,160 injuries, adequately and appropriately addresses and $259.5 million property loss the specific risk of injury addressed by P. Effective Date annually to be addressable by the this standard. Thus, no findings The Commission proposes that the proposed standard. The Commission concerning compliance with and rule would become effective one year estimates that the standard will prevent adequacy of voluntary standards are from publication of a final rule in the 80 to 86 percent of deaths and 86 to 92 necessary. Federal Register and would apply to percent of the injuries occurring with Relationship of Benefits to Costs. The mattresses entering the chain of these addressable mattress/bedding Commission estimates that the total distribution on or after that date. The fires. Thus, the Commission estimates lifetime benefits of a mattress complying Commission is aware that many that when all mattresses have been with this standard will range from $62 mattress manufacturers are modifying replaced by ones that comply with the to $74 per mattress (based on a 10 year their products to comply with standard, 310 to 330 deaths and 1,660 mattress life and 3% discount rate). The California’s TB 603 which prescribes to 1,780 injuries will be avoided Commission estimates that total requirements that are similar to this annually as a result of the standard. resource costs of the standard will range proposed rule and will become effective The regulatory analysis explains that from $13 to $44 per mattress. This January 1, 2005. Thus, the Commission the Commission estimates lifetime net yields net benefits of $18 to $62 per believes that a one-year effective date benefits of $18 to $62 per mattress or mattress. The Commission estimates VerDate jul<14>2003 17:56 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4702 E:\FR\FM\13JAP2.SGM 13JAP2 2494 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules that aggregate lifetime benefits 1633.2 Definitions. subject to the requirements of the associated with all mattresses produced 1633.3 General requirements. standard. the first year the standard becomes 1633.4 Prototype testing requirements. (2) One-of-a-kind mattresses and effective range from $1,560 to $1,880 1633.5 Prototype pooling and confirmation foundations may be exempted from testing requirements. testing under this standard in million, and that aggregate resource 1633.6 Quality assurance requirements. costs associated with these mattresses 1633.7 Mattress test procedure. accordance with § 1633.13(c). range from $320 to $1,110 million, 1633.8 Findings. (c) Applicability. The requirements of yielding net benefits of about $450 to 1633.9 Glossary of terms. this part 1633 shall apply to each ‘‘manufacturer’’ (as that term is defined $1,560 million. Therefore, the Subpart B—Rules and Regulations Commission finds that the benefits from in § 1633.2(i)) of mattresses and/or the regulation bear a reasonable 1633.10 Definitions. mattress and foundation sets which are relationship to its costs. 1633.11 Records. manufactured for sale in commerce. 1633.12 Labeling. Least burdensome requirement. The 1633.13 Tests for guaranty purposes, § 1633.2 Definitions. Commission considered the following compliance with this section, and ‘‘one In addition to the definitions given in alternatives: alternative maximum peak of a kind’’ exemption. heat release rate and test duration, section 2 of the Flammable Fabrics Act alternative total heat released in the first Subpart C—Interpretations and Policies as amended (15 U.S.C. 1191), the 10 minutes of the test, mandatory 1633.14 Policy clarification on renovation following definitions apply for purposes production testing, a longer effective of mattresses. of this part 1633. (a) Mattress means a resilient material date, taking no action, relying on a Figure 1 to Part 1633—Test Assembly, Shown in Furniture Calorimeter or combination of materials enclosed by voluntary standard, and requiring (Configuration A) a ticking (used alone or in combination labeling alone. As discussed in the Figure 2 to Part 1633—Test Arrangement in with other products) intended or preamble above and the regulatory × × 3.05m 3.66m (10 ft 12 ft) Room promoted for sleeping upon. analysis, these alternatives are expected (Configuration B) (1) This term includes, but is not to increase costs without increasing Figure 3 to Part 1633—Details of Horizontal limited to, adult mattresses, youth Burner Head benefits, or significantly reduce the mattresses, crib mattresses (including benefits expected from the rule. Figure 4 to Part 1633—Details of Vertical Burner Head portable crib mattresses), bunk bed Therefore, the Commission finds that mattresses, futons, flip chairs without a the standard imposes the least Figure 5 to Part 1633—Details of Burner Stand-off permanent back or arms, sleeper chairs, burdensome requirement that would Figure 6 to Part 1633—Burner Assembly and water beds or air mattresses if they adequately reduce the risk. Showing Arms and Pivots (Shoulder contain upholstery material between the R. Conclusion Screws), in Relation to, Portable Frame ticking and the mattress core. Mattresses Allowing Burner Height Adjustment For the reasons stated in this used in or as part of upholstered Figure 7 to Part 1633—Elements of Propane furniture are also included; examples preamble, the Commission preliminarily Flow Control for Each Burner finds that an open flame flammability Figure 8 to Part 1633—Jig for Setting are convertible sofa bed mattresses, standard for mattresses and mattress Mattresses and Foundation Sides in corner group mattresses, day bed and foundation sets is needed to Same Plane mattresses, roll-away bed mattresses, adequately protect the public against the Figure 9 to Part 1633—Burner Placements on high risers, and trundle bed mattresses. Mattress/Foundation See § 1633.9 Glossary of terms, for unreasonable risk of the occurrence of Figure 10 to Part 1633—Jig for Setting fire leading to death, injury, and definitions of these items. Burners at Proper Distances from (2) This term excludes mattress pads, significant property damage. The Mattress/Foundation mattress toppers (items with resilient Commission also preliminarily finds Figure 11 to Part 1633—Diagrams for filling, with or without ticking, intended that the standard is reasonable, Glossary of Terms to be used with or on top of a mattress), technologically practicable, and Appendix A to Part 1633—Calibration of sleeping bags, pillows, liquid and appropriate. The Commission further Propane Flowmeters gaseous filled tickings, such as water finds that the standard is limited to the Appendix B to Part 1633—Burner Operation beds and air mattresses that contain no fabrics, related materials and products Sequence upholstery material between the ticking which present such unreasonable risks. Authority: 15 U.S.C. 1193, 1194. and the mattress core, upholstered List of Subjects in 16 CFR Part 1633 Subpart A—The Standard furniture which does not contain a mattress, and juvenile product pads Consumer protection, Flammable § 1633.1 Purpose, scope, and applicability. materials, Labeling, Mattresses and such as car bed pads, carriage pads, mattress pads, Records, Textiles, (a) Purpose. This Part 1633 establishes basket pads, infant carrier and lounge Warranties. flammability requirements that all pads, dressing table pads, stroller pads, For the reasons stated in the mattress and mattress and foundation crib bumpers, and playpen pads. See preamble, the Commission proposes to sets must meet before sale or § 1633.9 Glossary of terms, for amend Title 16 of the Code of Federal introduction into commerce. The definitions of these items. Regulations by adding a new part 1633 purpose of the standard is to reduce (b) Foundation means a ticking to read as follows: deaths and injuries associated with covered structure used to support a mattress fires by limiting the size of the mattress or sleep surface. The structure PART 1633—STANDARD FOR THE fire generated by a mattress or mattress may include constructed frames, foam, FLAMMABILITY (OPEN-FLAME) OF and foundation set during a thirty box springs, or other materials, used MATTRESSES and MATTRESS AND minute test. alone or in combination. FOUNDATION SETS (b) Scope. (1) All mattresses and all (c) Ticking means the outermost layer mattress and foundation sets, as defined of fabric or related material of a mattress Subpart A—The Standard in § 1633.2(a) and § 1633.2(b), of any or foundation. It does not include any Sec. size, manufactured or imported after other layers of fabric or related materials 1633.1 Purpose, scope and applicability. [the effective date of this standard] are quilted together with, or otherwise VerDate jul<14>2003 17:56 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00026 Fmt 4701 Sfmt 4702 E:\FR\FM\13JAP2.SGM 13JAP2 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules 2495 attached to, the outermost layer of fabric mattress, such as springs, foam, water (b) Notwithstanding the requirements or related material. bladder, air bladder, or resilient filling. of paragraph (a) of this section, a (d) Upholstery material means all manufacturer may sell or introduce into material, either loose or attached, § 1633.3 General requirements. commerce a mattress or mattress and between the mattress ticking and the (a) Summary of test method. The test foundation set based on a prototype that core of a mattress, if a core is present. method set forth in § 1633.7 measures has not been tested according to (e) Edge seam means the seam or the flammability (fire test response § 1633.3(b) if that prototype differs from border edge of a mattress or foundation characteristics) of a mattress specimen a qualified prototype only with respect that joins the top and/or bottom with by exposing the specimen to a specified to: the side panels. flaming ignition source and allowing it (1) Mattress/foundation size (e.g., (f) Tape edge means an edge seam to burn freely under well-ventilated, twin, queen, king); made by using binding tape to encase controlled environmental conditions. (2) Ticking, unless the ticking of the and finish raw edges. The flaming ignition source shall be a qualified prototype has characteristics (g) Binding tape means a fabric strip pair of propane burners. These burners (such as chemical treatment or special used in the construction of some edge impose differing fluxes for differing fiber composition) designed to improve seams. times on the top and sides of the performance on the test prescribed in (h) Seam thread means the thread specimen. During and after this this part; and/or used to form stitches in construction exposure, measurements shall be made (3) The manufacturer can features, seams, and tape edges. of the time-dependent heat release rate demonstrate, on an objectively (i) Manufacturer means an individual from the specimen, quantifying the reasonable basis, that a change in any plant or factory at which mattresses energy generated by the fire. The rate of component, material, or method of and/or mattress and foundation sets are heat release must be measured by means construction will not cause the manufactured or assembled. For of oxygen consumption calorimetry. prototype to exceed the test criteria purposes of this Part 1633, an importer (b) Test criteria. When testing the specified in § 1633.3(b). is considered a manufacturer. mattress or mattress and foundation set (c) All tests must be conducted on (j) Prototype means a specific design in accordance with the test procedure specimens that are no smaller than a of mattress and corresponding set forth in § 1633.7, the specimen shall twin size, unless the largest size foundation, if any, which, except as comply with both of the following mattress or mattress and foundation set permitted by § 1633.4(b), is the same in criteria: produced is smaller than a twin size, in all material respects as, and serves as a (1) The peak rate of heat release shall which case the largest size must be model for, production units intended to not exceed 200 kilowatts (‘‘kW’’) at any tested. be introduced into commerce. time within the 30 minute test; and (d)(1) If each of the three specimens (k) Prototype pooling means a (2) The total heat release shall not meets both the criteria specified in cooperative arrangement whereby one exceed 15 megajoules (‘‘MJ’’) for the first § 1633.3(b), the prototype shall be or more manufacturers may rely on a 10 minutes of the test. In the interest of qualified. If any one (1) specimen fails prototype produced by a different safety, the test operator should to meet the test criteria of § 1633.3(b), manufacturer. discontinue the test and record a failure the prototype is not qualified. (l) Production lot means any quantity if a fire develops to such a size as to (2) Any manufacturer may produce of finished mattresses or mattress and require suppression for the safety of the mattresses and foundations, if any, for foundation sets that are produced in a facility. sale in reliance on prototype tests production interval defined by the (c) Testing of mattress and performed before [the effective date of manufacturer, and are intended to corresponding foundation. Mattresses to this Standard], provided that such tests replicate a specific prototype that be offered for sale with a foundation were conducted in accordance with all complies with this part 1633. shall be tested with that foundation. requirements of this section and (m) Confirmation test means a pre- Mattresses to be offered for sale without § 1633.7 and yielded passing results market test conducted by a a foundation shall be tested alone. according to the test criteria of manufacturer that is relying on a pooled (d) Compliance with this standard. § 1633.3(b). prototype produced by another Each mattress or mattress and manufacturer. A confirmation test must foundation set sold or introduced into § 1633.5 Prototype pooling and be conducted in accordance with the commerce after [the effective date of this confirmation testing requirements. procedures set forth in § 1633.7 to standard] shall meet the test criteria (a) Prototype pooling. One or more confirm that the manufacturer can specified in paragraph (b) of this section manufacturers may rely on a prototype produce a mattress and corresponding and otherwise comply with all produced by another manufacturer foundation, if any, that is identical to applicable requirements of this part provided that: the prototype in all material respects. 1633. (1) The prototype meets the (n) Specimen means a mattress and requirements of § 1633.4; and corresponding foundation, if any, tested § 1633.4 Prototype testing requirements. (2) The mattresses or mattress and under this part. (a) Except as otherwise provided in foundation sets being produced based (o) Twin size means any mattress with paragraph (b) of this section, each on the prototype have components, the dimensions 38 inches (in) (96.5 manufacturer shall cause three materials, and methods of construction centimeters (cm)) x 74.5 in. (189.2 cm), specimens of each prototype to be tested that are identical in all material respects all dimensions may vary by ± 1⁄2 in. (± according to § 1633.7 and obtain passing to the prototype except as otherwise 1.3 cm) test results according to § 1633.3(b) permitted by § 1633.4(b). (p) Qualified prototype means a before selling or introducing into (b) Confirmation testing. Any prototype that has been tested in commerce any mattress or mattress and manufacturer (‘‘Manufacturer B’’) accordance with § 1633.4(a) and meets foundation set based on that prototype, producing mattresses or mattress and the criteria stated in § 1633.3(b). unless the manufacturer complies with foundation sets in reliance on a (q) Core means the main support the prototype pooling and confirmation prototype produced by another system that may be present in a testing requirements in § 1633.5. manufacturer (‘‘Manufacturer A’’) shall VerDate jul<14>2003 17:56 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00027 Fmt 4701 Sfmt 4702 E:\FR\FM\13JAP2.SGM 13JAP2 2496 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules cause to be tested in accordance with forth in § 1633.3(b), the manufacturer exiting from the room is caught by a § 1633.7 at least one (1) specimen shall cease production and distribution hood system instrumented for heat produced by Manufacturer B of each in commerce of such mattresses and/or release rate measurements. The room prototype of Manufacturer A upon mattress and foundation sets until shall have no openings permitting air which said Manufacturer B is relying. corrective action is taken. infiltration other than a doorway The tested specimen must meet the (2) Corrective actions. A manufacturer opening 0.97 m ± 6.4 mm by 2.03 m ± criteria under § 1633.3(b) before must take corrective action when any 6.4 mm (38 in by 80 in) located as Manufacturer B may sell or introduce mattress or mattress and foundation set indicated in Figure 2 of this part and any mattresses or mattress and is manufactured or imported for sale other small openings as necessary to foundation sets based on the pooled fails to meet the flammability test make measurements. Construct the test prototype. criteria set forth in § 1633.3(b). room of wood or metal studs and line (c) Confirmation test failure. (1) If the it with fire-rated wallboard or calcium § 1633.7 Mattress test procedure. confirmation test specimen fails to meet silicate board. Position an exhaust hood the criteria of § 1633.3(b), the (a) Apparatus and test materials (1) outside of the doorway so as to collect manufacturer thereof shall not sell any Calorimetry. The rate of heat release all of the combustion gases. There shall mattress or mattress and foundation set must be measured by means of oxygen be no obstructions in the air supply to based on the same prototype until that consumption calorimetry. The the set-up. manufacturer takes corrective measures, calibration should follow generally (2) Location of test specimen. The tests a new specimen, and the new accepted practices for calibration. The location of the test specimen is shown specimen meets the criteria of calorimetry system shall be calibrated at in Figure 2 of this part. The angled a minimum of two (2) calibration points, § 1633.3(b). placement is intended to minimize the (2) If a confirmation test specimen at 75 kW and 200 kW. interaction of flames on the side (2) Testroom. The testroom must have fails to meet the criteria of § 1633.3(b), surfaces of the test specimen with the either Test Configuration A or B. the manufacturer thereof must notify the room walls. One corner of the test (i) Test Configuration A. (an open specimen shall be 13 centimeters (cm) manufacturer of the prototype of the test calorimeter (or furniture calorimeter)). failure. to 17 cm from the wall and the other In this configuration, the specimen to be corner shall be 25 cm to 30 cm from the § 1633.6 Quality assurance requirements. tested is placed under the center of an wall. The test room shall contain no (a) Quality assurance. Each open furniture calorimeter. Figure 1 of other furnishings or combustible manufacturer shall implement a quality this part shows the test assembly atop materials except for the test specimen. assurance program to ensure that a bedframe and catch surface. The (3) Bed frame. For twin size mattresses and mattress and foundation specimen shall be placed under an open mattresses, the specimen shall be placed sets manufactured for sale are identical hood which captures the entire smoke on top of a welded bed frame (1.90 m in all material respects to the prototype plume and is instrumented for heat by 0.99 m by 115 mm high; 75 in by 39 on which they are based. At a minimum release rate measurements. The area in by 4.5 in high) made from 38 mm (1.5 these procedures shall include: surrounding the test specimen in an in) steel angle. The frame shall be (1) Controls, including incoming open calorimeter layout shall be completely open under the foundation inspection procedures, of all mattress sufficiently large that there are no heat except for two crosspieces, 25 mm wide and mattress and foundation set re-radiation effects from any nearby (1 in) at the 1⁄3 length points. If testing components and materials to ensure that materials or objects. The air flow to the a size other than twin, the relationship they are identical in all material test specimen should be symmetrical of the mattress to the frame shall be respects to those used in the prototype; from all sides. The air flow to the comparable to that specified in this (2) Designation of a production lot calorimeter hood shall be sufficient to paragraph. that is represented by the prototype; and ensure that the entire fire plume is (4) Catch pan. The bed frame feet (3) Inspection of mattresses and captured, even at peak burning. Skirts shall rest on a surface of either calcium mattress and foundation sets produced may be placed on the hood periphery to silicate board or fiber cement board, 13 for sale sufficient to demonstrate that help assure this plume capture, if mm (0.5 in) thick, 2.11 m by 1.19 m (83 they are identical to the prototype in all necessary, though they must not be of in by 47 in). The board serves as a catch material respects. such an excessive length as to cause the surface for any flaming melt/drip (b) Production testing. Manufacturers incoming flow to disturb the burning material falling from the bed assembly are encouraged to conduct, as part of the process. Skirts must also not heat up to and may be the location of a pool fire quality assurance program, random the point that they contribute significant that consumes such materials. This testing of mattresses and mattress and re-radiation to the test specimen. The air surface must be cleaned between tests to foundation sets being produced for sale supply to the hood shall be sufficient avoid build-up of combustible residues. according to the requirements of that the fire is not in any way limited Lining this surface with aluminum foil §§ 1633.3 and 1633.7. or affected by the available air supply. to facilitate cleaning is not (c) Failure of mattresses produced for The fire plume should not enter the recommended since this might increase sale to meet flammability standard. (1) hood exhaust duct. Brief (seconds) fire intensity via reflected radiation. Sale of mattresses and foundations. If flickers of flame that occupy only a (5) Ignition source. (i) General. The any test performed for quality assurance minor fraction of the hood exhaust duct ignition source shall consist of two T- yields results which indicate that any inlet cross-section are not a problem shaped burners as shown in Figures 3 mattress or mattress and foundation set since they do not signify appreciable and 4 of this part. One burner impinges of a production lot does not meet the suppression of flames. flames on the top surface of the criteria of § 1633.3(b), or if a (ii) Test Configuration B. The test mattress. The second burner impinges manufacturer obtains test results or room shall have dimensions 3.05 meters flames on the side of the mattress and other evidence that a component or (m) ± 25 millimeters (mm) by 3.66 m ± on the side of the foundation. Each of material or construction/assembly 25 mm by 2.44 m ± 25 mm (10 feet (ft) the burners shall be constructed from process used could negatively affect the by 12 ft by 8 ft) high. The specimen is stainless steel tubing (12.7 mm diameter test performance of the mattress as set placed within the burn room. All smoke with 0.89 ± 0.5 mm wall thickness; 0.50 VerDate jul<14>2003 17:56 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00028 Fmt 4701 Sfmt 4702 E:\FR\FM\13JAP2.SGM 13JAP2 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules 2497 in diameter with 0.035 ± 0.002 in wall). in OD, about 3.2 in long) of copper (viii) Flow control system. Each Each burner shall incorporate a stand- tubing shall be placed in the inlet gas burner shall have a flow control system off foot to set its distance from the test line just before the burner to facilitate of the type shown in Figure 7 of this specimen surface (Figure 5 of this part). making the burner nominally parallel to part. Propane gas from a source such as Both burners shall be mounted with a the test specimen surface (by a a bottle is reduced in pressure to mechanical pivot point but the side procedure described in this paragraph). approximately 70 kilopascals (‘‘kPa’’) burner is locked in place to prevent The copper tube on the top surface (20 pounds per square inch gage movement about this pivot in normal burner must be protected from excessive (‘‘psig’’)) and fed to the system shown usage. The top burner, however, is free heat and surface oxidation by wrapping in Figure 8 of this part. The gas flow to to rotate about its pivot during a burner it with a suitable layer of high the burner is delivered in a square-wave exposure and is lightly weighted so as temperature insulation. Both copper manner (constant flow with rapid onset to exert a downward force on the tubes are to be bent by hand in the and termination) by means of the mattress top through its stand-off foot so burner alignment process. They must be solenoid valve upstream of the that the burner follows a receding top replaced if they become work-hardened flowmeter. An interval timer (accurate surface on the test specimen (Figure 6 or crimped in any way. The gas inlet to ± 0.2 s) determines the burner flame of this part). The combination of burner lines (12.7 mm OD stainless steel duration. The pilot light assures that the stand-off distance and propane gas flow tubing; 0.50 in) serve as arms leading burner will ignite when the solenoid rate to the burners determines the heat back to the pivot points and beyond, as valve opens 2. The gas flow shall be set flux they impose on the surface of the shown in Figure 6 of this part. The using a rotameter type of flowmeter, test specimen so that both of these length to the pivot for the top burner with a 150 mm scale, calibrated for parameters are tightly controlled. shall be approximately 1000 mm (40 in). propane. When calibrating the (ii) Top surface burner. The T head of (v) Frame. Figure 6 shows the frame flowmeter, take into account that the the top surface burner (horizontal that holds the burners and their pivots, flow resistance of the burner holes burner, Figure 3 of this part) shall be which are adjustable vertically in causes a finite pressure increase in the ± ± 305 2 mm (12 0.08 in) long with gas height. All adjustments (burner height, flowmeter above ambient. (If a tight plugs in each end. Each side of the burner arm length from the pivot point, calibration at one atmosphere is T shall contain 17 holes equally spaced counterweight positions along the provided by the manufacturer, the over a 135 mm length (8.5 mm ± 0.1 mm burner arm) are facilitated by the use of ± flowmeter reading, at the internal apart; 0.333 0.005 in). The holes on knobs or thumbscrews as the set screws. pressure existing in the meter, required each side shall begin 8.5 mm (0.33 in) The three point footprint of the burner to get the flow rates listed in this from the centerline of the burner head. frame, with the two forward points on paragraph must be corrected, typically The holes shall be drilled with a #56 wheels, facilitates burner movement and by the square root of the absolute drill and are to be 1.17 mm to 1.22 mm burner stability when stationary. pressure ratio. This calls for measuring (0.046 in to 0.048 in) in diameter. The (vi) Arms. The metal arms attached to ° the actual pressure in the flow meters holes shall be pointed 5 out of the the burners shall be attached to a when set near the correct flow values. plane of the Figure. This broadens the separate gas control console by flexible, A value roughly in the range of 1 kPa width of the heat flux profile imposed reinforced plastic tubing.1 The gas to 3 kPa—5 in to 15 in of water—can be on the surface of the test specimen. control console is mounted separately expected.) Useful guidelines for (iii) Side surface burner. The T head so as to facilitate its safe placement calibration are provided in Appendix A of the side surface burner (vertical outside of the test room throughout the of this part. burner) shall be constructed similarly to test procedure. The propane gas lines the top surface burner, as shown in (ix) Gas flow rate. Use propane gas running between the console and the with a known net heat of combustion of Figure 4 of this part, except that its burner assembly must be anchored on ± 46.5 ± 0.5 MJ/kg (nominally 99% to overall length shall be 254 2 mm (10 the assembly before running to the ± 100% propane). Each burner has a 0.08 in). Each side of the burner head burner inlet arms. A 1.5 m ± 25 mm (58 shall contain 14 holes spaced evenly ± specific propane gas flow rate set with ± in 1 in) length of flexible, reinforced its respective, calibrated flowmeter. The over a 110 mm length (8.5 mm 0.1 mm tubing between the anchor point and the apart; 0.333 ± 0.005 in). The holes shall gas flow rate to the top burner is 12.9 end of each burner inlet allows free ± be drilled with a #56 drill and are to be liters per minute (‘‘L/min’’) 0.1 L/min movement of the top burner about its at a pressure of 101 ± 5 kPa (standard 1.17 mm to 1.22 mm (0.046 in to 0.048 pivot point. The top burner arm shall in) in diameter. The holes shall be atmospheric pressure) and a ° have a pair of moveable cylindrical temperature of 22 ± 3 °C. The gas flow pointed 5 out of the plane of the Figure. counterweights that are used, as (iv) Burner stand-off. The burner rate to the side burner is 6.6 ± 0.05 L/ described below, to adjust the stand-off on each burner shall consist of min at a pressure of 101 ± 5 kPa downward force on the stand-off foot. a collar fixed by a set screw onto the (standard atmospheric pressure) and a (vii) Burner head. Each burner head temperature of 22 ± 3 °C. For the inlet tube of the burner head (Figure 5 shall have a separate pilot light of this part). The collar shall hold a 3 flowmeters supplied with the burner consisting of a 3 mm OD (1⁄8in OD) mm diameter stainless steel rod having assembly, the black float setting for the copper tube with an independently- top burner is expected to be in the 85 a 12.7 mm by 51 mm by (2–2.5 mm) controlled supply of propane gas. The thick (0.5 in by 2 in by (0.08–0.10) in mm to 95 mm range. For the side tube terminates within 10 mm of the thick) stainless steel pad welded on its burner, the expected range for the black center of the burner head. Care must be end with its face (and long axis) parallel float is 115 m to 125 mm. The total heat taken to set the pilot flame size small to the T head of the burner. The foot pad release rate of the burners is 27 kW. enough so as not to heat the test shall be displaced about 10 mm to 12 specimen before the timed burner mm from the longitudinal centerline of 2 If the side burner, or more commonly one half exposure is begun. the burner head so that it does not rest of the side burner, fails to ignite quickly, adjust the position of the igniter, bearing in mind that propane on the test specimen in an area of peak 1 Fiber-reinforced plastic tubing (6 mm ID by 9.5 is heavier than air. The best burner behavior test heat flux. A short section (9.5 mm outer mm OD; 1⁄4 inch ID by 3⁄4 inch OD) made of PVC assessment is done against an inert surface (to diameter (‘‘OD’’), about 80 mm long; 3⁄8 should be used. spread the gas as it would during an actual test). VerDate jul<14>2003 17:56 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00029 Fmt 4701 Sfmt 4702 E:\FR\FM\13JAP2.SGM 13JAP2 2498 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules (b) Conditioning. Remove the (e) Location of the gas burners. Place The location shall be within 30 cm (1 specimens from any packaging prior to the burner heads so that they are within ft) of the longitudinal center of the conditioning. Specimens shall be 300 mm (1 ft) of the mid-length of the mattress. The intended location of the conditioned in air at a temperature mattress. The general layout for the stand-off foot of the top burner shall not greater than 18 °C (65 °F) and a relative room configuration is shown in Figure be in a dimple or crease caused by the humidity less than 55 percent for at 2 of this part. For a quilted mattress top quilting of the mattress top. Press the least 48 continuous hours prior to test. the stand-off foot pad must alight on a platen laterally inward from the edge of Specimens shall be supported in a high, flat area between dimples or the mattress so that its side makes manner to permit free movement of air quilting thread runs. The same is to be contact with either the top and bottom around them during conditioning. true for the side burner if that surface is tape edge or the vertical side of the (c) Test preparation. (1) General. quilted. If a specimen design presents a mattress.4 Use a 20 cm (8 in) strip of Horizontal air flow at a distance of 0.5 conflict in placement such that both duct tape (platen to mattress top) to m (20 in) on all sides of the test burners cannot be placed between local hold the platen firmly inward in this specimen at the mattress top height depressions in the surface, the top position. shall be ≤ 0.5 m/s. If there is any visual burner shall be placed at the highest flat (ii) With both burner arms horizontal evidence that the burner flames are surface. (pinned in this position), fully retract being shifted around during their (f) Burner set-up. The burners shall be the stand-off feet of both burners and, if exposure durations, the burner regions placed in relation to the mattress and necessary, the pilot tubes as well 5. must be enclosed on two or more sides foundation surfaces in the manner (Neither is to protrude past the front by at least a triple layer of screen wire. shown in Figure 9 of this part, i.e., at the face of the burner tubes at this point.) The screen(s) for the top burner shall sit nominal spacings shown there and with Move the burner assembly forward on the mattress top but must be far the burner tubes nominally parallel 3 to (perpendicular to the mattress) until the enough away (typically 30 cm or more) the mattress surfaces on which they vertical burner lightly contacts the sheet so as not to interfere or interact with impinge. Since the heat flux levels seen metal platen. Adjust the height of the flame spread during the burner by the test specimen surfaces depend on vertical burner on its vertical support exposure. The screen for the side burner burner spacing, as well as gas flow rate, column so as to center the tube on the will require a separate support from care must be taken with the set-up crevice between the mattress and the below. All screens shall be removed at process. foundation. (This holds also for pillow the end of the 70 second exposure (g) Burner alignment procedure. (1) top mattress tops, i.e., ignore the crevice interval. Preparation. Complete the following between the pillow top and the main (2) Specimen. Remove the test before starting the alignment procedure: body of the mattress.) 6 Adjust the specimen from the conditioning room (i) Check that the pivot point for the height of the horizontal burner until it immediately before it is to be tested. Be mattress top burner feed tube and the sits lightly on top of the sheet metal sure the bed frame is approximately two metal plates around it are clean and platen. Its burner arm should then be centered on the catch surface. Place the well-lubricated so as to allow smooth, horizontal. specimen on the bed frame. Carefully free movement. (iii) Move the horizontal burner in/out center them on the bed frame and on (ii) Set the two burners such that the (loosen the thumb screw near the pivot ° each other. The mattress shall be 5 out-of-plane angling of the flame jets point) until the outer end of the burner centered on top of the foundation (see makes the jets on the two burners point tube is 13 mm to 19 mm (1⁄2 in to 3⁄4 in) Figure 1 of this part). However, in order slightly toward each other. from the corner bend in the platen (this to keep the heat flux exposure the same (iii) Check the burner stand-off feet for is facilitated by putting a pair of lines for the sides of the two components, if straightness and perpendicularity on the top of the platen 13 mm and 19 the mattress is 1 cm to 2 cm narrower between foot pad and support rod and mm from the bend and parallel to it). than the foundation, the mattress shall to see that they are clean of residue from Tighten the thumb screw. be shifted so that the side to be exposed a previous test. (iv) Make the horizontal burner is in the same plane as the foundations. (iv) Have at hand the following items parallel to the top of the platen (within to assist in burner set-up: the jig, shown 1 Refer to Figure 8 of this part. A product 3 mm, ⁄8 in over the burner tube length) having an intended sleep surface on in Figure 10 of this part, for setting the by bending the copper tube section only one side shall be tested with the stand-off feet at their proper distances sleeping side up so that the sleeping from the front of the burner tube; a 3 4 Mattresses having a convex side are treated surface is exposed to the propane mm thick piece of flat stock (any separately since the platen cannot be placed in the burner. material) to assist in checking the above manner. Use the platen only to set the top (d) Burner flow rate/flow timer parallelness of the burners to the burner parallelness. Set the in/out distance of the top burner to the specification in the paragraph confirmation. Just prior to moving the mattress surfaces; and a 24 gage (g)(2)(iii). Set the side burner so that it is burner adjacent to the test specimen, stainless steel sheet metal platen that is approximately (visually) parallel to the flat side briefly ignite each burner at the same 30 mm (12 in) wide, 610 mm (24 in) surface of the foundation below the mattress/ time, and check that the propane flow long and has a sharp, precise 90° bend foundation crevice once its foot is in contact with the materials in the crevice area. The burner will to that burner is set at the appropriate 355 mm (14 in) from one 30 mm wide not be vertical in this case. If the foundation side level on its flowmeter to provide the end. is also non-flat, set the side burner vertical (± 3 mm, flows listed in paragraph (a)(5)(ix) of (2) Alignment. (i) Place the burner as above) using a bubble level as a reference. The this section. Check that the timers for assembly adjacent to the test specimen. side surface convexities will then bring the bowed out sections of the specimen closer to the burner the burner exposures are set to 70 Place the sheet metal platen on the tube than the stand-off foot. seconds for the top burner and 50 mattress with the shorter side on top. 5 The pilot tubes can normally be left with their seconds for the side burner. For a new ends just behind the plane of the front of the burner burner assembly, check the accuracy of 3 The top burner will tend to be tangential to the tube. This way they will not interfere with the gas flow timers against a stop watch mattress surface at the burner mid-length; this positioning of the tube but their flame will readily orientation will not necessarily be parallel to the ignite the burner tubes. at these standard time settings. Set pilot overall average mattress surface orientation nor will 6 For tests of the mattress alone, set the side flows to a level that will not cause them it necessarily be horizontal. This is a result of the burner mid-height equal to the lower tape edge of to impinge on sample surfaces. shape of the mattress top surface. the mattress. VerDate jul<14>2003 20:07 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00030 Fmt 4701 Sfmt 4702 E:\FR\FM\13JAP2.SGM 13JAP2 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules 2499 appropriately. Note: After the platen is burner. The outer end of the burner tube spans, start the video lights and video removed in paragraph (g)(2)(vii), the should extend at least 6 mm to 12 mm camera and data logging systems two burner tube may not be horizontal; this (1⁄4 in to 1⁄2 in) out beyond the minutes before burner ignition (or, if not is normal. For mattress/foundation uppermost corner/edge of the mattress using video, take a picture of the setup). combinations having nominally flat, so that the burner flames will hit the (4) Start the burner exposure by vertical sides, the similar adjustment for tape edge. (For a pillow top mattress, activating power to the burner timers. the vertical burner is intended to make this means the outer edge of the pillow Also start a 30 minute timer of the test that burner parallel to the sides and top portion and the distance may then duration. If not using video, one photo vertical. Variations in the shape of be greater than 6 mm to 12 mm.) If this must be taken within the first 45 mattresses and foundations can cause is not the case, move the burner seconds of starting the burners. the platen section on the side to be non- assembly (perpendicular to the mattress (5) When the burners go out (after 70 flat and/or non-vertical. If the platen is side)—not the horizontal burner alone— seconds for the longer exposure), flat and vertical, make the vertical until it is. Finally, move the vertical carefully lift the top burner tube away burner parallel to the side of the platen burner tube until its stand-off foot just from the specimen surface, producing as (± 3 mm) by bending its copper tube touches the side of the mattress and/or little as possible disturbance to the section as needed. If not, make the side the foundation. (Use the set screw near specimen. Remove the burner assembly burner parallel to the mattress/ the vertical burner pivot.) from the specimen area to facilitate the foundation sides by the best visual (ix) Make sure all thumbscrews are video camera view of the full side of the estimate after the platen has been adequately tightened. Care must be specimen. In the case of the room-based removed. taken, once this set-up is achieved, to configurations, remove the burner (v) Move the burner assembly avoid bumping the burner assembly or assembly from the room to protect it. perpendicularly back away from the disturbing the flexible lines that bring Remove all screens. mattress about 30 cm (1 ft). Set the two propane to it. (i) Video recording/photographs. stand-off feet to their respective (x) If there is any indication of flow Place a video or still frame camera so as to have (when the lens is zoomed out) distances using the jig designed for this disturbances in the test facility which just slightly more than a full-length purpose. Install the jig fully onto the cause the burner flames or pilot flames view of the side of the test specimen burner tube (on the same side of the to move around, place screens around being ignited, including a view of the tube as the stand-off foot), with its side the burners so as to minimize these flame impingement area while the edges parallel to the burner feed arm, at disturbances 9. These screens (and any burner assembly is present. The view about the position where one end of the holders) must be far enough away from must also include the catch pan so that foot will be. Loosen the set screw and the burners (about 30 cm or more for the it is clear whether any melt pool fire in slide the foot out to the point where it top, less for the side) so that they do not this pan participates significantly in the is flush with the bottom end of the jig. interact with the flames growing on the growth of fire on the test specimen. The Tighten the set screw. Make sure the specimen surfaces. For the top surface camera shall include a measure of long axis of the foot is parallel to the burner, at least a triple layer of window elapsed time to the nearest 1 second for burner tube. It is essential to use the screen approximately 30 cm high sitting video and 1 minute for still frame correct side of the spacer jig with each vertically on the mattress top (Figure 9 within its recorded field of view burner. Double check this. The jig must of this part) has proved satisfactory. For (preferably built-in to the camera). For be clearly marked. the side burner at least a triple layer of the room-based configuration, the (vi) Set the downward force of the screen approximately 15 cm wide, required full-length view of the sample horizontal burner. Remove the retainer formed into a square-bottom U-shape may require an appropriately placed pin near the pivot. While holding the and held from below the burner has window, sealed with heat resistant burner feed arm horizontal using a proved satisfactory. Individual glass, in one of the room walls. Place the spring scale 7 hooked onto the laboratories will have to experiment camera at a height just sufficient to give thumbscrew holding the stand-off foot, with the best arrangement for a view of the top of the specimen while move the small and/or large weights on suppressing flow disturbances in their remaining under any smoke layer that the feed tube appropriately so that the facility. may develop in the room. The specimen spring scale reads 170 g to 225 g (6 oz (xi) Proceed with the test (see Test shall be brightly lit so that the image to 8 oz). Procedure in paragraph (h) of this (vii) Remove the sheet metal platen does not lose detail to over-exposed section and Appendix B of this part). flames. This will require a pair or more (and tape holding it). (h) Running the test. (1) Charge the (viii) Hold the horizontal burner up of 1 kW photo flood lights illuminating hose line to be used for fire suppression the viewed side of the specimen. The while sliding the burner assembly with water. forward until its stand-off foot just lights may need to shine into the room (2) Ignite the pilot lights on both from the outside via sealed windows. touches the mattress and/or the burners and make sure they are small foundation 8, then release the horizontal (j) Cessation of test. (1) The heat enough as to not heat the test specimen release rate shall be recorded and video/ surfaces significantly. photographs taken until either 30 7 An acceptable spring scale has a calibrated (3) With the calorimetry system fully spring mounted within a holder and hooks on each minutes has elapsed since the start of end. operational, after instrument zeroes and the burner exposure or a fire develops 8 The foot should depress the surface it first of such size as to require suppression contacts by no more than 1 mm to 2 mm. This is burners too close to the vertical mattress/foundation for the safety of the facility. best seen up close, not from the rear of the burner sides, it will be necessary to use the spacer jig assembly. However, if a protruding tape edge is the (rather than the stand-off foot) above or below this (2) Note the time and nature of any first item contacted, compress it until the foot is in crevice to set the proper burner spacing. Compress unusual behavior that is not fully within the plane of the mattress/foundation vertical sides. the mattress/foundation surface 1 mm to 2 mm the view of the video camera. This is The intent here is that the burner be spaced a fixed when using the jig for this purpose. most easily done by narration to a distance from the vertical mattress/foundation 9 The goal here is to keep the burner flames sides, not from an incidental protrusion. Similarly, impinging on a fixed area of the specimen surface camcorder. if there is a wide crevice in this area which would rather than wandering back and forth over a larger (3) Run the heat release rate system allow the foot to move inward and thereby place the area. and datalogger until the fire has been VerDate jul<14>2003 20:07 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00031 Fmt 4701 Sfmt 4702 E:\FR\FM\13JAP2.SGM 13JAP2 2500 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules fully out for several minutes to allow Commission finds that an open flame (o) Infant carrier and lounge pad. Pad the system zero to be recorded. standard for mattresses with the testing to cushion a baby in an infant carrier. requirements and criteria that are (p) Mattress foundation. This is a § 1633.8 Findings. specified in the Commission rule is the ticking covered structure used to (a) General. In order to issue a least burdensome requirement that support a mattress or sleep surface. The flammability standard under the FFA, would prevent or adequately reduce the structure may include constructed the FFA requires the Commission to risk of injury for which the regulation is frames, foam, box springs or other make certain findings and to include being promulgated. materials used alone or in combination. these in the regulation, 15 U.S.C. (q) Murphy Bed. A style of sleep 1193(j)(2). These findings are discussed § 1633.9 Glossary of terms. system where the mattress and in this section. (a) Absorbent pad. Pad used on top of foundation are fastened to the wall and (b) Voluntary standards. No findings mattress. Designed to absorb moisture/ provide a means to retract or rotate the concerning compliance with and body fluids thereby reducing skin bed assembly into the wall to release adequacy of a voluntary standard are irritation, can be one time use. more floor area for other uses. necessary because no relevant voluntary (b) Basket pad. Cushion for use in an (r) Pillow. Cloth bag filled with standard addressing the risk of injury infant basket. resilient material such as feathers, that is addressed by this regulation has (c) Bunk beds. A tier of beds, usually down, sponge rubber, urethane, or fiber been adopted and implemented. two or three, in a high frame complete used as the support for the head of a (c) Relationship of benefits to costs. with mattresses (see Figure 11 of this person. The Commission estimates the potential part). (s) Playpen pad. Cushion used on the total lifetime benefits of a mattress that (d) Car bed. Portable bed used to carry bottom of a playpen. complies with this standard to range a baby in an automobile. (t) Portable crib. Smaller size than a from $62 to $74 per mattress (based on (e) Carriage pad. Cushion to go into a conventional crib. Can usually be a 10 year mattress life and a 3% baby carriage. converted into a playpen. discount rate). The Commission (f) Chaise lounge. An upholstered (u) Quilted means stitched with estimates total resource costs of the couch chair or a couch with a chair thread or by fusion through the ticking standard to range from $13 to $44 per back. It has a permanent back rest, no and one or more layers of material. mattress. This yields net benefits of $18 arms, and sleeps one (see Figure 11). (v) Roll-away-bed. Portable bed which to $62 per mattress. The Commission (g) Convertible sofa. An upholstered has frame that folds with the mattress estimates that aggregate lifetime benefits sofa that converts into an adult sized for compact storage. associated with all mattresses produced bed. Mattress unfolds out and up from (w) Sleep lounge. Upholstered seating the first year the standard becomes under the seat cushioning (see Figure section is mounted on a frame. May effective range from $1,560 to $1,880 11). have bolster pillows along the wall as million, and that aggregate resource (h) Corner groups. Two twin size backrests or may have attached costs associated with these mattresses bedding sets on frames, usually headrests (see Figure 11). range from $320 to $1,110 million, slipcovered, and abutted to a corner (x) Stroller pad. Cushion used in a yielding net benefits of about $450 to table. They also usually have loose baby stroller. $1,560 million. Accordingly, the bolsters slipcovered (see Figure 11). (y) Sofa bed. These are pieces in Commission finds that the benefits from (i) Crib bumper. Padded cushion which the back of the sofa swings down the regulation bear a reasonable which goes around three or four sides flat with the seat to form the sleeping relationship to its costs. inside a crib to protect the baby. Can surface. All upholstered. Some sofa beds (d) Least burdensome requirement. also be used in a playpen. have bedding boxes for storage of The Commission considered the (j) Daybed. Daybed has foundation, bedding. There are two types: The one- following alternatives: Alternative usually supported by coil or flat springs, piece, where the back and seat are maximum peak heat release rate and test mounted between arms on which upholstered as a unit, supplying an duration, alternative total heat released mattress is placed. It has permanent unbroken sleeping surface; and the two- in the first 10 minutes of the test, arms, no backrest, and sleeps one (see piece, where back and seat are mandatory production testing, a longer Figure 11). upholstered separately (see Figure 11). effective date, taking no action, relying (k) Dressing table pad. Pad to cushion (z) Sofa lounge—(includes glideouts). on a voluntary standard, and requiring a baby on top of a dressing table. Upholstered seating section is mounted labeling alone (without any performance (l) Drop-arm loveseat. When side arms on springs and in a frame that permit it requirements). The alternatives of taking are in vertical position, this piece is a to be pulled out for sleeping. Has no action, relying on a voluntary loveseat. The adjustable arms can be upholstered backrest bedding box that is standard (if one existed) requiring lowered to one of four positions for a hinged. Glideouts are single sleepers labeling alone are unlikely to adequately chaise lounge effect or a single sleeper. with sloping seats and backrests. Seat reduce the risk. Requiring a criterion of The vertical back support always pulls out from beneath back and evens 25 MJ total heat release during the first remains upright and stationary (see up to supply level sleeping surface (see 10 minutes of the test instead of 15 MJ Figure 11). Figure 11). would likely reduce the estimated (m) Futon. A flexible mattress (aa) Studio couch. Consists of benefits (deaths and injuries reduced) generally used on the floor that can be upholstered seating section on without having much effect on costs. folded or rolled up for storage. It usually upholstered foundation. Many types Both options of increasing the duration consists of resilient material covered by convert to twin beds (see Figure 11). of the test from 30 minutes to 60 ticking. (bb) Studio divan. Twin size minutes and decreasing the peak rate of (n) High riser. This is a frame of sofa upholstered seating section with heat release from 200 kW to 150 kW seating height with two equal size foundation is mounted on metal bed would likely increase costs significantly mattresses without a backrest. The frame. Has no arms or backrest, and without substantial increase in benefits. frame slides out with the lower mattress sleeps one (see Figure 11). Requiring production testing would also and rises to form a double or two single (cc) Trundle bed. A low bed which is likely increase costs. Therefore, the beds (see Figure 11). rolled under a larger bed. In some lines, VerDate jul<14>2003 17:56 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00032 Fmt 4701 Sfmt 4702 E:\FR\FM\13JAP2.SGM 13JAP2 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules 2501 the lower bed springs up to form a intervals, starting at 5 minutes and (d) Quality assurance records. In double or two single beds as in a high ending at 30 minutes), with the addition to the records required by riser (see Figure 11). prototype identification number or paragraph (a) of this section, the (dd) Tufted means buttoned or laced production lot identification number of following quality assurance records through the ticking and upholstery the mattress or mattress foundation set, shall be maintained: material and/or core, or having the date and time of test, and name and (1) A written copy of the ticking and loft material and/or core location of testing facility clearly manufacturer’s quality assurance drawn together at intervals by any other displayed. procedures. method which produces a series of (b) Prototype records. In addition to (2) Records of any production tests depressions on the surface. the records specified in paragraph (a) of performed. Production test records must (ee) Twin studio divan. Frames which this section, the following records be maintained and shall include in glide out (but not up) and use seat related to prototype testing shall be addition to the requirements of cushions, in addition to upholstered maintained: paragraph (a) of this section, an assigned foundation to sleep two. Has neither (1) Unique identification number for production lot identification number arms nor back rest (see Figure 11). the qualified prototype and a list of the and the identification number of the (ff) Flip or sleeper chair. Chair that unique identification numbers of each prototype associated with the specimen unfolds to be used for sleeping, prototype based on the qualified tested. typically has several connecting fabric prototype. (3) For each prototype, the number of covered, solid foam core segments. (2) A detailed description of all mattresses or mattress and foundation materials, components, and methods of sets in each production lot based on that Subpart B—Rules and Requirements construction for each prototype mattress prototype. or prototype mattress and foundation (4) The duration of manufacture of the § 1633.10 Definitions. set. Such description shall include at a production lot, i.e., the start and end (a) Standard means the Standard for minimum, the specifications of all dates of production of that lot. the Flammability (Open-Flame) of materials and components, name and (5) Component, material and assembly Mattresses and Foundations (16 CFR location of each material and records. Every manufacturer conducting part 1633, subpart A). component supplier, and a physical tests and/or technical evaluations of (b) The definition of terms set forth in sample of each material and component components and materials and/or § 1633.2 of the standard shall also apply of the prototype. methods of construction must maintain to this subpart. (3) A list of which models and detailed records of such tests and evaluations. § 1633.11 Records. production lots of mattresses or mattress and foundation sets are represented by (e) Record retention requirements. (a) Test and manufacturing records— each prototype identification number. The records required under this section General. Every manufacturer (including (4) Where a prototype is not required shall be maintained by the manufacturer importers) or other person initially to be tested before sale, pursuant to (including importers) for as long as introducing into commerce mattresses § 1633.4(b), the prototype identification mattresses/foundations based on the or mattress and foundation sets subject number of the qualified prototype on prototype in question are in production to the standard, irrespective of whether which the mattress to be offered for sale and shall be retained for 3 years guarantees are issued relative thereto, is based, and, at a minimum, the thereafter. Records shall be available shall maintain the following records: manufacturing specifications and a upon the request of Commission staff. (1) Test results and details of each test description of the materials substituted § 1633.12 Labeling. performed by or for that manufacturer and/or the size change, photographs or (including failures), whether for (a) Each mattress or mattress/ physical specimens of the substituted foundation set subject to the standard prototype, confirmation, or production, materials, and documentation based on in accordance with § 1633.7. Details shall bear a permanent, conspicuous, objectively reasonable criteria that the and legible label containing: shall include: Location of test facility, change in any component, material, or type of test room, test room conditions, (1) Name of the manufacturer; method of construction will not cause (2) Location of the manufacturer, prototype or production identification the prototype to exceed the test criteria including street address, city and state; number, and test data including the specified in § 1633.3(b). (3) Month and year of manufacture; peak rate of heat release, total heat (5) Identification, composition, and (4) Model identification; release in first 10 minutes, a graphic details of the application of any flame (5) Prototype identification number depiction of the peak rate of heat release retardant treatments and/or inherently for the mattress; and and total heat release over time. These flame resistant fibers or other materials (6) A certification that the mattress records shall include the name and employed in mattress components. complies with this standard. signature of person conducting the test, (c) Pooling confirmation test records. (b) The information required on labels the date of the test, and a certification With respect to pooling confirmation by this section shall be set forth by the person overseeing the testing as testing, records shall be maintained to separately from any other information to the test results and that the test was show: appearing on such label. Other carried out in accordance with the (1) The prototype identification information, representations, or Standard. For confirmation tests, the number assigned by the original disclosures, appearing on labels identification number must be that of prototype manufacturer. required by this section or elsewhere on the prototype tested. (2) Name and location of the the item, shall not interfere with, (2) Video and/or a minimum of eight prototype manufacturer. minimize, detract from, or conflict with photographs of the testing of each (3) Copy of prototype test records, and the required information. mattress or mattress and foundation set, records required by paragraph (b)(2) of (c) No person, other than the ultimate in accordance with § 1633.4 (one taken this section. consumer, shall remove or mutilate, or before the test starts, one taken within (4) A list of models of mattresses, and/ cause or participate in the removal or 45 seconds of the start of the test, and or mattress and foundation sets, mutilation of, any label required by this the remaining six taken at five minute represented by the prototype. section to be affixed to any item. VerDate jul<14>2003 17:56 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00033 Fmt 4701 Sfmt 4702 E:\FR\FM\13JAP2.SGM 13JAP2 2502 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules § 1633.13 Tests for guaranty purposes, than 0.5 inch (1.27 cm) in height and all clarification will better protect the compliance with this section, and one of a letters on the label shall be in a color public against the unreasonable risk of kind exemption. which contrasts with the background of fires leading to death, personal injury or (a) Tests for guaranty purposes. the label. The warning statement which significant property damage, and assure Reasonable and representative tests for appears on the label must also be that purchasers of renovated mattresses the purpose of issuing a guaranty under conspicuously displayed on the invoice receive the same protection under the section 8 of the Flammable Fabrics Act, or other sales papers that accompany Flammable Fabrics Act as purchasers of 15 U.S.C. 1197, for mattresses or the mattress in commerce from the new mattresses. mattress and foundation sets subject to manufacturer to the final point of sale (c) For purposes of this subpart, the standard shall be the tests performed to a consumer. mattress renovation includes a wide to show compliance with the standard. (2) The manufacturer of a mattress or range of operations. Replacing the (b) Compliance with this section. No mattress and foundation set exempted ticking or batting, stripping a mattress to person subject to the Flammable Fabrics from testing under this paragraph shall, its springs, rebuilding a mattress, or Act shall manufacture for sale, import, in lieu of the records required to be kept replacing components with new or distribute, or otherwise market or by §1633.10, retain a copy of the written recycled materials, are all part of the handle any mattress or mattress and prescription or other comparable process of renovation. Any one, or any foundation set which is not in written medical therapeutic combination of one or more, of these compliance with the provisions under specification for such mattress during a steps in mattress renovation is subpart B of this part. period of three years, measured from the considered to be mattress manufacture. (c) ‘‘One of a kind’’ exemption for date of manufacture. (d) If the person who renovates the physician prescribed mattresses. (1)(i) A (3) For purposes of this subpart the mattress intends to retain the renovated mattress or mattress and foundation set term physician shall mean a physician, mattress for his or her own use, or if a manufactured in accordance with a chiropractor or osteopath licensed or customer or a renovator merely hires the physician’s written prescription or otherwise permitted to practice by any services of the renovator and intends to manufactured in accordance with other State of the United States. take back the renovated mattress for his comparable written medical therapeutic or her own use, ‘‘manufacture for sale’’ specification, to be used in connection Subpart C—Interpretations and has not occurred and such a renovated with the treatment or management of a Policies mattress is not subject to the mattress named individual’s physical illness or standard. injury, shall be considered a ‘‘one of a § 1633.14 Policy clarification on (e) However, if a renovated mattress is kind mattress’’ and shall be exempt renovation of mattresses. sold or intended for sale, either by the from testing under the standard (a) Section 3 of the Flammable Fabrics renovator or the owner of the mattress pursuant to § 1633.7 thereof: Provided, Act (15 U.S.C. 1192) prohibits, among who hires the services of the renovator, that the mattress or mattress and other things, the ‘‘manufacture for sale’’ such a transaction is considered to be foundation set bears a permanent, of any product which fails to conform ‘‘manufacture for sale’’. conspicuous and legible label which to an applicable standard issued under (f) Accordingly, mattress renovation is states: the Act. The standard for the Flammability (Open-Flame) of considered by the Commission to be WARNING: This mattress or mattress and ‘‘manufacture for sale’’ and, therefore, foundation set may be subject to a large fire Mattresses and Foundations in subpart A of this part, issued pursuant to the subject to the open-flame Mattress if exposed to an open flame. It was Standard, when renovated mattresses manufactured in accordance with a Act, provides that, with certain physician’s prescription and has not been exceptions, mattresses must be tested are sold or intended for sale by a tested under the Federal Standard for the according to a prescribed method. The renovator or the customer of the Flammability (Open-Flame) of Mattresses standard does not exempt renovation; renovator. and Foundation Sets (16 CFR part 1633). nor does it specifically refer to (g) A renovator who believes that (ii) Such labeling must be attached to renovation. certain mattresses are entitled to one-of- the mattress or mattress and foundation (b) The purpose of this subpart is to a-kind exemption, may present relevant set so as to remain on or affixed thereto inform the public that mattresses facts to the Commission and petition for for the useful life of the mattress or renovated for sale are considered by the an exemption. Renovators are expected mattress and foundation set. The label Commission to be mattresses to comply with all the testing must be at least 40 square inches (250 manufactured for sale and, therefore, requirements of the open-flame Mattress sq. cm) with no linear dimension less subject to the requirements of the open- Standard until an exemption is than 5 inches (12.5 cm). The letters in flame Mattress Standard. The approved. the word ‘‘WARNING’’ shall be no less Commission believes that this policy BILLING CODE 6355–01–P VerDate jul<14>2003 17:56 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00034 Fmt 4701 Sfmt 4702 E:\FR\FM\13JAP2.SGM 13JAP2 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules 2503 VerDate jul<14>2003 17:56 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00035 Fmt 4701 Sfmt 4725 E:\FR\FM\13JAP2.SGM 13JAP2 EP13JA05.000 2504 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules VerDate jul<14>2003 17:56 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00036 Fmt 4701 Sfmt 4725 E:\FR\FM\13JAP2.SGM 13JAP2 EP13JA05.001 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules 2505 VerDate jul<14>2003 17:56 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00037 Fmt 4701 Sfmt 4725 E:\FR\FM\13JAP2.SGM 13JAP2 EP13JA05.002 2506 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules VerDate jul<14>2003 17:56 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00038 Fmt 4701 Sfmt 4725 E:\FR\FM\13JAP2.SGM 13JAP2 EP13JA05.003 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules 2507 VerDate jul<14>2003 17:56 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00039 Fmt 4701 Sfmt 4725 E:\FR\FM\13JAP2.SGM 13JAP2 EP13JA05.004 2508 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules VerDate jul<14>2003 17:56 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00040 Fmt 4701 Sfmt 4725 E:\FR\FM\13JAP2.SGM 13JAP2 EP13JA05.005 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules 2509 VerDate jul<14>2003 17:56 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00041 Fmt 4701 Sfmt 4725 E:\FR\FM\13JAP2.SGM 13JAP2 EP13JA05.006 2510 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules VerDate jul<14>2003 17:56 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00042 Fmt 4701 Sfmt 4725 E:\FR\FM\13JAP2.SGM 13JAP2 EP13JA05.007 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules 2511 VerDate jul<14>2003 17:56 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00043 Fmt 4701 Sfmt 4725 E:\FR\FM\13JAP2.SGM 13JAP2 EP13JA05.008 2512 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules VerDate jul<14>2003 17:56 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00044 Fmt 4701 Sfmt 4725 E:\FR\FM\13JAP2.SGM 13JAP2 EP13JA05.009 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules 2513 BILLING CODE 6355–01–C 3. The gas pressure downstream of the propane gas flow rate using the recorded time Appendix A: Calibration of Propane rotameters that are installed in the control and number of rotations (total flow in that Flowmeters box of the burner assembly is maintained time). Use the pressure and temperature near atmospheric pressure (only a few readings to convert to standard conditions. 1. Once the assembly of the burner is millimeters of water above atmosphere). Repeat this measurement for two additional completed and all the connecting points are Therefore, the best location to place the meter setting to allow for calibrating the checked for gas leakage, the most critical task diaphragm test meter for gas flow calibration flowmeter throughout the range of interest. is ensuring the exact flow rates of propane is right downstream of the control box. The Plot the flow versus meter reading, fit a best into the top and side burners, as described pressure at the propane tank must be set at line (possibly quadratic) through these points to find the meter setting for a flow of 12.9 in the test protocol. The gas flow rates are 20 ± 0.5 pounds per square inch gage (psig). ± LPM at the above ‘‘standard’’ conditions. specified at 12.9 Liters per minute (LPM) Calibration Procedure: ± Repeat this procedure for ‘‘Burner 2’’ using 0.1 LPM and 6.6 LPM 0.05 LPM for the top Install the diaphragm test meter (DTM) and side burners (Burners 1 and 2), three meter readings to find the setting that ± downstream of the control box in the line for gives a flow rate of 6.6 LPM at the standard respectively, at a pressure of 101 5 the top burner. Check all connecting points kiloPascal (kPa) (standard atmospheric conditions. After completion of the for gas leakage. Open the main valve on the calibration, re-set the timers to 70 and 50 pressure) and a temperature of 22 ± 3° ± propane tank and set a pressure of 20 0.5 seconds. Centigrade (C). The rotameters that are psig. Set the timers in the control box for 999 installed in the control box of the burner seconds (or the maximum range possible). Appendix B: Burner Operation Sequence assembly need to be calibrated for accurate Record the barometric pressure. Turn the 1. Starting point: AC power on (red knob measurement of these flow rates. ‘‘Burner 1’’ switch to ON and ignite the top out); propane pressure set to 20 psig at bottle; 2. The most practical and accurate method burner. Allow the gas to flow for 2–3 minutes timers set to 70 s (top burner) and 50 s (side of measuring and calibrating the flow rate of until the DTM is stabilized. Record the burner); flowmeters pre-set to values that gases (including propane) is use of a pressure and temperature in the DTM. Use a give the requisite propane gas flow rates to diaphragm test meter (also called a dry test stopwatch to record at least one minute each burner. Pilot tubes set just behind front meter). A diaphragm test meter functions worth of complete rotations while counting surface of burners; pilot flow valves set for based on positive displacement of a fixed the number of rotations.1 Calculate the ca. 2 cm flames. volume of gas per rotation and its reading is 2. Position burner on test specimen and therefore independent of the type of the gas 1 With a diaphragm test meter well-sized to this remove sheet metal platen. being used. The gas pressure and application, this should be more than five rotations. temperature, however, can have significant A one liter per rotation meter will require 10 to 15 than the minimum of one minute recording time impact on the measurement of flow rate. rotations for the flow measurements and greater specified here. VerDate jul<14>2003 17:56 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00045 Fmt 4701 Sfmt 4702 E:\FR\FM\13JAP2.SGM 13JAP2 EP13JA05.010 2514 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules 3. Place screens around both burners. 10. Terrance R. Karels, EC, to Margaret L. to address small open flame ignition of 4. Open pilot ball valves one at a time and Neily, ES, ‘‘Updated Mattress Market bedclothes. ignite pilots with hand-held flame; adjust Information,’’ October 5, 2004. DATES: Comments and submissions flame size if necessary being very careful to 11 Memorandum from Linda Smith EPI, avoid a jet flame that could prematurely ‘‘Involvement of Bedclothes in Residential must be received by March 14, 2005. ignite the test specimen (Beware: after a long Mattress Fires,’’ May 2004. ADDRESSES: Comments should be interval between tests the low pilot flow rate 12. Terrance R. Karels, EC, to Margaret L. mailed, preferably in five copies, to the will require a long time to displace air in the Neily, ES, ‘‘Bedding Market Information,’’ Office of the Secretary, Consumer line and achieve the steady-state flame size.) October 5, 2004. Product Safety Commission, 5. Open both burner ball valves. 13. Memorandum from Allyson Tenney, Washington, DC 20207–0001, or 6. Start test exposure by simultaneously ES, to Margaret Neily, Engineering Sciences, delivered to the Office of the Secretary, turning on power to both timers (timers will ‘‘Bedclothes Flammability,’’ October 29, Consumer Product Safety Commission, turn off burners at appropriate times). 2004. Room 502, 4330 East-West Highway, 7. Check/adjust propane flow rates (DO 14. Memorandum from Martha A. Kosh, THIS ESSENTIAL TASK IMMEDIATELY. OS, to ES, ‘‘Standard to Address Open Flame Bethesda, Maryland; telephone (301) Experience shows the flow will not remain Ignition of Mattresses/Bedding; ANPR,’’ List 504–0800. Comments also may be filed the same from test-to-test in spite of fixed of comments on CF 02–1, December 13, 2001. by telefacsimile to (301) 504–0127 or by valve positions so adjustment is essential.) 15. Memorandum from Martha A. Kosh, email to [email protected]. Comments 8. After burners are out: OS, to ES, ‘‘Standard to Address Open Flame should be captioned ‘‘Bedclothes a. Lift top burner and back assembly away Ignition of Mattresses/Bedding; ANPR ANPR.’’ from specimen. (Revised),’’ List of comments on CF 02–1, FOR FURTHER INFORMATION CONTACT: b. Turn off power to both timers. September 27, 2004. c. Remove screens. 16. National Research Council (2000). Margaret Neily, Directorate for d. Turn off pilots at their ball valves. Toxicological Risks of Selected Flame- Engineering Sciences, Consumer Product Safety Commission, Dated: December 22, 2004. Retardant Chemicals (Washington, DC, National Academy Press). Washington, DC 20207; telephone (301) Todd Stevenson, 504–0508, extension 1293. [FR Doc. 05–416 Filed 1–12–05; 8:45 am] Secretary, Consumer Product Safety SUPPLEMENTARY INFORMATION: Commission. BILLING CODE 6355–01–P A. Background List of Relevant Documents An existing flammability standard for 1. Briefing memorandum from Margaret CONSUMER PRODUCT SAFETY mattresses addresses ignition of Neily, Project Manager, Directorate for COMMISSION Engineering Sciences, to the Commission, mattresses and mattress pads by ‘‘Notice of Proposed Rulemaking for Mattress 16 CFR Part 1634 cigarettes. 16 CFR Part 1632. On October Flammability (Open Flame) and Options for 11, 2001, the Commission published an Addressing Bedclothes Involvement in Standard To Address Open Flame advance notice of proposed rulemaking Mattress/Bedding Fires,’’ November 1, 2004. Ignition of Bedclothes; Advance Notice (‘‘ANPR’’) addressing open flame 2. Memorandum from Allyson Tenney, ES, ignition of mattresses. 66 FR 51886. to Margaret Neily, Engineering Sciences, of Proposed Rulemaking ‘‘Background and Technical Rationale for That ANPR was the result of several AGENCY: Consumer Product Safety Draft Proposed Standard for Open Flame years of evaluation by Commission staff Mattress Flammability,’’ October 29, 2004. Commission. and petitions on mattress flammability 3. Memorandum from Linda Smith and ACTION: Advance Notice of proposed submitted by Whitney Davis, Director of David Miller, EPI, ‘‘Residential Fires rulemaking. the Children’s Coalition for Fire-safe Involving Mattresses and Bedding,’’ October Mattresses. As explained in the ANPR, 2004. SUMMARY: The Commission is the Sleep Products Safety Council 4. Memorandum from Carolyn Meiers, considering issuing a flammability (‘‘SPSC’’), an affiliate of the ESHF, to Margaret Neily, Project Manager, standard that would address open flame International Sleep Products ‘‘Criteria for Judging Effectiveness of ignition of bedclothes. (Commissioner Proposed Mattress Standard,’’ October 14, Association (‘‘ISPA’’), sponsored a 2004. Thomas H. Moore issued a statement, a research program at the National 5. Memorandum from Carolyn Meiers, copy of which is available from the Institute of Standards and Technology ESHF, to Margaret Neily, Project Manager, Commission’s Office of the Secretary or (‘‘NIST’’). The NIST research program ‘‘Human Behavior in Fire,’’ October 7, 2004. from the Commission’s Web site, has provided a great deal of technical 6. Memorandum from Treye Thomas and http://www.cpsc.gov.) Elsewhere in information about mattress fires, Patricia Brundage, HS, ‘‘Qualitative today’s Federal Register, the including the role of bedclothes in such Assessment of Potential Risk from the Use of Commission is proposing a flammability fires. Flame Retardant Chemicals in Mattresses,’’ standard that addresses open flame As noted in the mattress ANPR, October 25, 2004. ignition of mattresses/foundations. mattresses generally are not used alone, 7. Memorandum from Robert Franklin, EC, to Margaret L. Neily, ES, ‘‘Preliminary Research indicates that in mattress fires but are covered by bedding or Environmental Assessment of a Draft the mattress and bedclothes operate bedclothes, whose presence Proposed Open-Flame Ignition Resistance together as a system. Thus, the significantly affects the character of the Standard for Mattresses,’’ October 21, 2004. Commission believes that a fire. In most incidents a small open 8. Memorandum from Soumaya Tohamy, flammability standard for bedclothes in flame initially ignites the bedding, and EC, to Margaret Neily, Project Manager, addition to one for mattresses may be these materials serve as a larger ignition ‘‘Preliminary Regulatory Analysis of a Draft appropriate. The Commission invites source for the mattress. Because few Proposed Standard to Address Open Flame comments concerning the risk of injury materials can resist such a large ignition Ignitions of Mattresses,’’ October 27, 2004. identified in this notice, the regulatory source, the typical approach of 9. Memorandum from Soumaya Tohamy, EC, to Margaret Neily, Project Manager, alternatives being considered, and other preventing ignition of a mattress ‘‘Initial Regulatory Flexibility Analysis of a possible alternatives. The Commission through a product performance standard Draft Proposed Standard to Address Open also invites submission of any existing may not be fully adequate for an open Flame Ignitions of Mattresses,’’ October 27, standard or statement of intention to flame mattress standard. Therefore, the 2004. modify or develop a voluntary standard Commission has taken the approach in VerDate jul<14>2003 17:56 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00046 Fmt 4701 Sfmt 4702 E:\FR\FM\13JAP2.SGM 13JAP2 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules 2515 its proposed mattress standard of pillowcases and blankets. CBHF only Reporting System data and the National limiting the fire intensity in order to regulates filled bedclothing. Fire Protection Association’s annual minimize the possibility of or delay At the present time, the Commission survey). These fires resulted in 440 flashover for a period of time in is not limiting this rulemaking to any deaths, 2,230 injuries and $273.9 mattress/bedding fires. Flashover occurs particular bedclothes. The Commission million in property loss each year. Open when a fire becomes so intense that all intends that during the course of flame ignition sources accounted for 35 exposed surfaces ignite nearly rulemaking it will evaluate continuing percent of these fires and smoking simultaneously, and the fire quickly research to determine which bedclothes material sources accounted for 30 spreads through the structure. have the greatest impact on mattress percent of the fires. The remaining fires In response to the mattress ANPR, the fires. The Commission requests included a variety of ignition sources Commission received comments both in comments on particular bedclothes that including heat sources too close to the favor of the Commission regulating should be included in or excluded from bed. Based on these data alone, it is very bedclothes and against such regulation. a proposed bedclothes standard. difficult to determine whether the first Those opposed to regulating bedclothes At the request of CBHF, the American item ignited was a mattress or an item argued that bedclothes are an Textiles Manufacturers Institute of bedclothes. uncontrolled variable and there is no (‘‘ATMI’’) conducted a survey in 2003 of The primary source for information way to predict the type of bedclothes its members about the U.S. market for on the involvement of various that may become involved in a fire filled bedding products. The 12 firms bedclothes items in mattress fires is incident. They also stated that there surveyed reportedly account for 80% of CPSC’s in-depth investigations. Staff would be no objective method to the U.S. market for these products. analyzed 241 investigated fire incidents determine if consumers were using Although these firms are located in the that occurred between January 2000 and regulated bedclothes, there is little data U.S., many of their products are June 2003. These investigations were indicating that regulating some bedding manufactured outside the U.S. based on a variety of initial sources, items would have an impact on the According to U.S. Department of NEISS hospital emergency room reports, hazard, and flammability performance Commerce 2002 import statistics, newspaper clippings, and fire should not be based on what consumers perhaps 90% of all quilts and department reports. may (or may not) use as bedclothes. comforters, and perhaps 20% of all bed Unless someone witnessed the fire Those in favor of regulating bedclothes pillows are imported. According to the ignition, it was often difficult to argued that bedclothes are a significant ATMI survey, the most common fill determine whether the mattress or a ignition source for mattress fires and material for bedclothes is polyester (not bedclothes item, such as a pillow or significantly affect the burning flame-resistant). Some of the improved blanket, ignited first. When the initial characteristics of the mattress and fill materials being developed for ignition was not observed and reported, foundation. They also asserted that mattresses could also be used for staff determined what ignited first based bedclothes can generate a fire large bedclothes. Use of barrier fabrics or on the reported scenario. For example, enough to pose a hazard on their own, flame resistant outer fabrics are other if a lamp fell on a blanket on the top and that improving the flammability of approaches that could be used to surface of the bed, the incident was certain bedclothes, such as filled items, improve fire performance of bedclothes. classified as igniting the blanket first. is economically feasible. A trade publication, ‘‘Home Textiles Based on this evaluation, it was As discussed below, the Commission Today,’’ reported in its 2003 annual determined that a non-electric believes that regulating bedclothes may business issue that the top five firms bedclothes item ignited first in 190 of be appropriate. Bedclothes contribute marketing comforters and bedspreads 235 fires (81 percent). However, in 75 substantially to the complexity and sold about $1.1 billion in the U.S. in percent of those bedclothes’ ignitions it magnitude of the mattress fire hazard. 2002, essentially unchanged from 2001. was not possible to determine the type The NIST research has shown that, even The top five makers of down comforters of bedclothes involved. Among with mattresses that would meet the reported sales of about $303 million in incidents for which a specific item was Commission’s proposed open flame 2002. reported, sheets, blankets, and mattress standard, certain bedclothes Mattress pads are constructed of the comforters/quilts were the items cited have produced near flashover same types of foam used in mattresses most frequently. Ignition sources conditions in laboratory tests. and filled bedding products. They can included cigarette lighters (primarily also contribute significantly to mattress/ children playing), candles, smoking B. The Products bedding fires. Foam mattress pads may materials, and other nearby heat The term ‘‘bedclothes’’ can include a be made with a flat surface, an ‘‘egg sources. Although the investigations variety of products, such as sheets, crate’’ design, or with ‘‘memory foam’’ could not provide information on which blankets, mattress pads, pillows, that contours to the body. Egg crate pads types of bedclothes were more likely to comforters, and similar products that retail for $10 to $50 each. Industry ignite, they did show that most are used as covering on a bed. Products sources estimate that perhaps 4 to 5 bedclothes items that were present did that contain fibrous or other materials million egg crate pads are sold annually. ignite at some point during the fire. are called ‘‘filled’’ bedding. Because of Memory pads, which retail for $100 or D. Statutory Provisions their greater mass or fuel load, filled more, sell about 3 million units products are likely to contribute more annually. Section 4 of the Flammable Fabrics significantly to a mattress fire than Act (‘‘FFA’’) authorizes the Commission unfilled products, such as sheets and C. Risk of Injury to initiate proceedings for a blankets. California’s Bureau of Home The most recent national fire loss flammability standard when it finds that Furnishings and Thermal Insulation estimates indicated that mattresses and such a standard is ‘‘needed to protect (‘‘CBHF’’) has issued a draft Technical bedding were the first items to ignite in the public against unreasonable risk of Bulletin 604 that specifies an open 19,400 residential fires attended by the the occurrence of fire leading to death flame standard for filled bedding fire service annually during 1995–1999 or personal injury, or significant products. The draft TB 604 does not (based on data from the U.S. Fire property damage.’’ 15 U.S.C. 1193(a). cover textiles, such as sheets, Administration’s National Fire Incident That section also sets forth the process VerDate jul<14>2003 17:56 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00047 Fmt 4701 Sfmt 4702 E:\FR\FM\13JAP2.SGM 13JAP2 2516 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules by which the Commission can issue a posed by a bedclothes item or its mattress fire hazards. The same set of flammability standard. The Commission contribution to a residential mattress/ bedclothes was used on mattresses of first must issue an advance notice of bedding fire. varying heat release rate performance. proposed rulemaking (‘‘ANPR’’) which: The bedclothes were tested with a king F. California’s Rulemaking (1) Identifies the fabric or product and sized mattress that had contributed very the nature of the risk associated with the In 2001, the California legislature little heat release rate in prior testing fabric or product; (2) summarizes the passed Assembly Bill 603 (‘‘AB 603’’), without bedclothes. The result was a regulatory alternatives under which mandated that CBHF issue peak heat release rate of 400kW, consideration; (3) provides information regulations by January 2004 that would primarily from the bedclothes. While about existing relevant standards and require that mattresses and box springs this scenario would not readily cause reasons why the Commission does not meet a test for open-flame resistance. flashover, it is important to note that preliminarily believe that these AB 603 also stated: ‘‘If the bureau this result assumes little involvement standards are adequate; (4) invites [CBHF] concludes that other bedding from the mattress. interested persons to submit comments contributes to mattress fires, the SPSC expanded its research at NIST concerning the identified risk of injury, regulations shall require the other to examine filled bedclothes (such as regulatory alternatives being considered, bedding to be flame retardant under the comforters, pillows, and mattress pads). and other possible alternatives; (5) resistance to open-flame test.’’ Based on This research tested bedclothes invites submission of an existing their own research and that conducted constructed of a variety of filling and standard or portion of a standard as a by NIST, CBHF determined that cover materials to assess the effect of proposed regulation; and (6) invites regulation of filled bedding products— material changes on the flammability submission of a statement of intention such as comforters, pillows, and behavior. The study evaluated two to modify or develop a voluntary mattress pads—is necessary. CBHF has design changes: One involved replacing standard to address the risk of injury. 15 been working with a multi-disciplinary polyester fiberfill with a modified, U.S.C. 1193(g). task force to develop a proposed lower heat release fiber of a comparable If, after reviewing comments and standard for these bedding items. CBHF loft; the other involved using a barrier- submissions responding to the ANPR, prepared a draft standard (TB 604) that type cover to protect the polyester the Commission determines to continue was discussed in the Task Force in fiberfill. These design changes were the rulemaking proceeding, it will issue 2003. However, it was withdrawn examined using three different mattress a notice of proposed rulemaking. This because of technical problems with the and foundation designs: One notice must contain the text of the test method. CBHF issued a new draft of representing current mattress/ proposed rule along with alternatives the TB 604 standard on October 1, 2004, foundation construction and the other the Commission has considered and a and scheduled a Task Force meeting for two using experimental, improved preliminary regulatory analysis. 15 November 18, 2004, to discuss it. CBHF designs. U.S.C. 1193(i). Before issuing a final has stated that it expects to open formal The report on this bedclothes study rule, the Commission must prepare a rulemaking at the end of the year and was published in February 2003, NIST final regulatory analysis, and it must hold hearings on the proposal in Technical Note 1449. According to the make certain findings concerning any January or February 2005. NIST report, for a mattress standard to relevant voluntary standard, the be most effective, the performance of the G. Technical Research on Bedclothes relationship of costs and benefits of the entire bedding system (that is, the rule, and the burden imposed by the As discussed in the mattress ANPR, mattress/foundation and the bedclothes) regulation. Id. 1193(j). The Commission several research projects have examined must be taken into consideration. The also must provide an opportunity for open-flame ignited mattress and study showed that the bedclothes and interested persons to make an oral bedding fires. Some of this research the mattress/foundation function as a presentation before the Commission provides a better understanding of the system and that the improved mattress issues a final rule. Id. 1193(d). contribution of bedclothes to these fires. pads, pillows and comforters resulted in The Sleep Product Safety Council major improvements in the performance E. Existing Open Flame Standards (‘‘SPSC’’) sponsored several phases of of the system. This was indicated by a Currently, there are no mandatory research at NIST. One of the focuses lower peak heat release rate or a longer flammability requirements for during Phase 1 was to evaluate the fire time to peak. residential bedclothes in the United behavior of various combinations of A related research project conducted States. A few voluntary standards apply bedclothes. Twelve different for CPSC by NIST reinforced one of the to bedding items. ASTM D4151–92 combinations of bedclothes sets ranging conclusions of the bedclothes study (2001) measures ease of ignition and from very light (two sheets and a pillow) discussed above. A portion of the tests surface flame spread of blankets. to heavy (two sheets, a pillow, a using conventional bedclothes showed Underwriters Laboratories (‘‘UL’’) has a mattress pad, one blanket, and one that, as mattress designs improve, two standard for electric blankets. A heavy weight filled comforter) were separate peak heat release rates occur. European standard, ISO 12952— burned on an inert, twin-size mattress The first observed peak appears to be Textiles—Burning behaviour of bedding made of fiberglass. The peak heat dominated by the bedclothes, while the items, Parts 1–4, specifies a general test release rates varied from 50kW to second is dominated by the mattress/ method for assessing the ignitability of 200kW. Combinations without a foundation. Good mattress designs bedding items. The test method calls for comforter were typically under 100kW. tended to have a peak heat release rate observation of progressive smoldering Peak heat release rate is basically a appreciably later in the test and and/or flaming when a bedding measure of the intensity of the fire comparable to or less than the peak specimen is exposed to a small propane produced by these items. Further tests dominated by the bedclothes. burner. The test relates only to were conducted on a range of A more recent study conducted for ignitability of the bedding material combinations of bedclothes. CPSC by NIST included a series of tests under the specific conditions of the test. Part of Phase 2 of the NIST work using the same bedclothes combination None of these tests appears adequate to included a limited assessment of on twin, queen, and king size measure or address the specific hazard bedclothes and their contribution to mattresses. The tests were conducted in VerDate jul<14>2003 17:56 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00048 Fmt 4701 Sfmt 4702 E:\FR\FM\13JAP2.SGM 13JAP2 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules 2517 a room environment to evaluate any H. Invitation To Comment 2. Frequency of cleaning or laundering of various bedclothes items resulting room effects, which generally In accordance with section 4(g) of the over their useful lives. begin to occur at heat release rates of FFA, the Commission invites comments about 300 to 400kW. The early heat on this notice. Specifically, the Dated: December 22, 2004. release rate peaks, driven primarily by Commission invites the following types Todd Stevenson, burning bedclothes, tripled from twin of comments. Secretary, Consumer Product Safety size to king size. Larger size bedclothes 1. Comments concerning the risk of Commission. combinations on good performing injury identified in this notice, the List of Relevant Documents mattress designs (those with peak heat regulatory alternatives discussed above, 1. Briefing memorandum from Margaret release rates less than 50kW when and other alternatives to address the risk tested with burners and no bedclothes) Neily, Project Manager, Directorate for of injury; Engineering Sciences, to the Commission, showed heat release rate peaks up to 2. The submission of an existing ‘‘Notice of Proposed Rulemaking for Mattress 800 kW, occurring 7 to 8 minutes after standard or portion of a standard as a Flammability (Open Flame) and Options for ignition. This is much higher than rates proposed rule; Addressing Bedclothes Involvement in allowed for mattresses/foundations 3. The submission of a statement of Mattress/Bedding Fires,’’ November 1, 2004. under CPSC’s proposed mattress intention to modify or develop a 2. Memorandum from Linda Smith, EPHA, standard. On mattress designs that voluntary standard to address the risk of to Margaret Neily, Engineering Sciences, ‘‘Involvement of Bedclothes in Residential yielded a moderate heat release rate injury identified in the notice along Fires Mattress Fires,’’ May 2004. peak with burners, the bedclothes with a description of a plan to modify 3. Memorandum from Terrance R. Karels, resulted in more serious fires. This or develop the standard. EC, to Margaret L. Neily, ES, ‘‘Bedding study shows that a combination of some In addition, the Commission is Market Information,’’ October 5, 2004. bedclothes with even a well performing interested in obtaining further 4. Memorandum from Allyson Tenney, ES, mattress/foundation (that would meet information about the following issues to Margaret Neily, Project Manager, that may influence the flammability of ‘‘Bedclothes Flammability,’’ October 29, CPSC’s proposed mattress standard) 2004. could still cause flashover in a room. bedclothes. 1. Cleaning and laundering methods [FR Doc. 05–415 Filed 1–12–05; 8:45 am] of bedclothes; BILLING CODE 6355–01–P VerDate jul<14>2003 17:56 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00049 Fmt 4701 Sfmt 4702 E:\FR\FM\13JAP2.SGM 13JAP2 Thursday, January 13, 2005 Part III Department of Agriculture Agricultural Marketing Service 7 CFR Part 927 Winter Pears Grown in Oregon and Washington; Recommended Decision and Opportunity To File Written Exceptions to Proposed Amendments to Marketing Agreement and Order No. 927; Proposed Rule VerDate jul<14>2003 18:35 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\13JAP3.SGM 13JAP3 2520 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules DEPARTMENT OF AGRICULTURE contacting Jay Guerber, Marketing Order Bartlett pears, under one program: Administration Branch, Fruit and Marketing Order 927. If this proposal Agricultural Marketing Service Vegetable Programs, AMS, USDA, 1400 were implemented, Marketing Order Independence Avenue SW., Stop 0237, 931 would be terminated. The 7 CFR Part 927 Washington, DC 20250–0237; telephone: amendments would also add pears for [Docket No. AO–F&V–927–A1; FV04–927–1 (202) 720–2491, fax: (202) 720–8938. processing to the order, and would PR] SUPPLEMENTARY INFORMATION: Prior update various provisions of the order. documents in this proceeding: Notice of The Committees proposed Winter Pears Grown in Oregon and Hearing issued on March 24, 2004, and amendments to marketing order 927 Washington; Recommended Decision published in the March 30, 2004, issue include: and Opportunity To File Written of the Federal Register (69 FR 16501). 1. Expanding the definition of pears to Exceptions to Proposed Amendments This action is governed by the include all varieties of pears classified to Marketing Agreement and Order No. provisions of sections 556 and 557 of as summer/fall pears in addition to 927 title 5 of the United States Code and is winter pears; adding Concorde, therefore excluded from the Packham, and Taylor s Gold pears to the AGENCY: Agricultural Marketing Service, requirements of Executive Order 12866. current list of winter pear varieties; and USDA. adding a third category of pears which ACTION: Proposed rule and opportunity Preliminary Statement would include varieties not classified as to file exceptions. Notice is hereby given of the filing summer/fall or winter pears. This with the Hearing Clerk of this amendment would extend program SUMMARY: This recommended decision recommended decision with respect to coverage to all pears grown in Oregon invites written exceptions on proposed the proposed amendment of Marketing and Washington. amendments to the marketing agreement Agreement and Order 927 regulating the 2. Revising the definition of size to and order (order) for winter pears grown handling of winter pears grown in include language currently used within in Oregon and Washington. The Oregon and Washington, and the the industry. amendments are jointly proposed by the opportunity to file written exceptions 3. Extending the order’s coverage to Winter Pear Control Committee and the thereto. Copies of this decision can be pears for processing by revising the Northwest Fresh Bartlett Marketing obtained from Melissa Schmaedick, definition of handle, and adding Committee, which are responsible for whose address is listed above. definitions of processor and process. local administration of orders 927 and This recommended decision is issued 4. Establishing districts for pears for 931, respectively. Marketing Agreement pursuant to the provisions of the processing. This amendment would and Order No. 931 regulates the Agricultural Marketing Agreement Act divide the order s production area into handling of fresh Bartlett pears grown in of 1937, as amended (7 U.S.C. 601 et two districts for pears for processing: Oregon and Washington. The seq.), hereinafter referred to as the Act, one being the State of Oregon and the amendments would combine the winter and the applicable rules of practice and other being the State of Washington. pear and fresh Bartlett orders into a procedure governing the formulation of 5. Dissolving the current Winter Pear single program under marketing order marketing agreements and orders (7 CFR Control Committee and establishing two 927, and would add authority to assess part 900). new administrative committees: the pears for processing. All of the The proposed amendments are based Fresh Pear Committee and the Processed proposals are intended to streamline on the record of a public hearing held Pear Committee (Committees). This industry organization and improve the on April 13 and 14, 2004, in Yakima, proposal would add a public member administration, operation, and Washington and on April 16, 2004, in and public alternate member seat to functioning of the program. Portland, Oregon. Notice of this hearing both of the newly established DATES: Written exceptions must be filed was published in the Federal Register Committees and would remove Section by February 14, 2005. on March 30, 2004 (69 FR 16501). The 927.36, Public advisors. The notice of hearing contained order Committees would coordinate ADDRESSES: Written exceptions should changes proposed by both the Winter administration of Marketing Order 927, be filed with the Hearing Clerk, U.S. Pear Control Committee and the with each Committee setting Department of Agriculture, room 1081– Northwest Fresh Bartlett Marketing assessments and administering program S, Washington, DC 20250–9200, Committee, which are responsible for functions specific to their commodity. Facsimile number (202) 720–9776 or local administration of orders 927 and Coordinated administration would www.regulations.gov. All comments 931, respectively. Marketing order 927 allow each Committee to make should reference the docket number and regulates the handling of winter pears decisions on behalf of the commodity the date and page number of this issue grown in Oregon and Washington. they represent, yet combine of the Federal Register. Comments will Marketing order 931 regulates the administrative functions, when be made available for public inspection handling of Bartlett pears in the same applicable, to maximize efficiencies and in the Office of the Hearing Clerk during production area. minimize program costs. regular business hours, or can be viewed At a joint meeting of the Winter Pear Additionally, related changes would at: http://www.ams.usda.gov/fv/ Control Committee and the Northwest be made to order provisions governing moab.html. Fresh Bartlett Pear Marketing nomination and selection of members FOR FURTHER INFORMATION CONTACT: Committee on November 13, 2003, both and their alternates, terms of office, Melissa Schmaedick, Marketing Order Committees voted unanimously to eligibility for membership, and quorum Administration Branch, Fruit and recommend amendments to Marketing and voting requirements, to reflect the Vegetable Programs, Agricultural Order 927. The amendments are proposed dual committee structure. Marketing Service, USDA, Post Office intended to streamline industry and 6. Authorizing changes in the number Box 1035, Moab, UT 84532, telephone: program organization by placing both of Committee members and alternates, (435) 259–7988, fax: (435) 259–4945. Marketing Order 927, regulating the and allowing reapportionment of Small businesses may request handling of winter pears, and Marketing committee membership among districts information on this proceeding by Order 931, regulating the handling of and groups (i.e., growers, handlers, and VerDate jul<14>2003 18:35 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 E:\FR\FM\13JAP3.SGM 13JAP3 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules 2521 processors). Such changes would two Federal marketing orders and two authority would allow the committees require a Committee recommendation State commissions. If this proposal were more flexibility in responding to and approval by the Department. implemented, the two federal programs industry changes over time that may 7. Adding authority to establish would be combined under one federal merit adjustments in committee assessment rates for each category of program that would also assume structure. These recommendations pears, including: Summer/fall pears, functions similar to those under the would be based on an assessment of winter pears, and all other pears. In current state programs. Witnesses stated several industry indicators and would addition, rates of assessment could be that the state programs would likely be require approval by the Department. different for fresh pears and pears for dissolved if this proposal were Witnesses stated that the order’s processing in each category, and could implemented. assessment structure should also be include supplemental rates on Witnesses explained that the proposal revised. Specifically, witnesses individual varieties. would require expanding the definition advocated adding authority to establish 8. Adding authority for container of pears under 927 to include all assessment rates for each category of marking requirements for fresh pears. varieties of pears grown in the pears, including: Summer/fall pears, 9. Removing the order provision production area. The proposed winter pears, and all other pears. In allowing grower exemptions from amendments would also include addition, rates of assessment could be regulation. This is a tool no longer used revising the definition of handle, and different for fresh pears and pears for by the industry and, thus, is considered adding definitions for process and processing in each category, and could obsolete. processor. include supplemental rates on 10. Amending § 927.70, Reports, to Witnesses stated that expanding the individual varieties. The Fresh Pear update order language regarding scope of the order to include pears for Committee would recommend confidentiality requirements to conform processing would require a restructuring assessment rates for fresh pears and the to language under the Act. of the order s administrative committee. Processed Pear Committee would 11. Clarifying inspection requirements The new committee structure would recommend assessment rates for pears and adding authority to eliminate those include one committee with oversight for processing. requirements if an alternative, adequate for all fresh pear activities, and a second Proponents of this amendment stated method of ensuring compliance with committee with oversight for all that authority to establish assessment quality and size standards in effect activities related to pears for processing. rates by category would allow the under the order can be developed. Additionally, witnesses spoke in favor committees to maintain different 12. Eliminating the current of amending order provisions governing assessment levels for each category of exemptions for pears for processing and nomination and selection of members Northwest pears (based on different for pears shipped to storage warehouses. and their alternates, terms of office, budget needs), as well as providing the 13. Providing that separate eligibility for membership, and quorum committees with additional flexibility continuance referenda be held every 6 and voting requirements to reflect the through the ability to apply years for fresh pears and processing proposed dual committee structure. supplemental rates of assessments for pears. The order’s production area, the individual varieties within each 14. Adding the authority for the States of Oregon and Washington, category. Supplemental rates would be Committees to conduct post-harvest would remain the same under the used to fund specific research or research, in addition to production proposed amendments. However, the promotional efforts for individual research and promotion (including paid subdivision of the production area into varieties, whereas categorical advertising). districts would be different for pears for assessment rates would be used to fund 15. Updating several order provisions processing than for fresh pears. While activities for an entire category of pears. to make them more current. four districts would be established for Witnesses explained that authority for 16. Revising order provisions to fresh pears, pears for processing would production research and promotion, reflect the two-committee structure only have two districts: the State of including paid advertising, currently being recommended for administration Oregon and the State of Washington. exists under marketing order 927. of the program. Witnesses also proposed adding a Expanding the order’s definition of Twenty-one industry witnesses public member and public alternate pears to include summer/fall varieties testified at the hearing. These witnesses member seat to both of the newly and pears for processing would extend represented fresh winter and summer/ established committees. The public those authorities to all Northwest pears. fall pear producers and handlers, and member and his or her alternate would In addition, witnesses stated their processors of summer/fall pears in the be residents of the production area, and support for adding the authority to production area. All witnesses would have no financial ties to the conduct post-harvest research. Post- supported the Committees production, handling or processing of harvest research could include activities recommended changes; no opposition pears. Witnesses stated that this such as storage and treatment of pears was present at the hearing. proposal would also result in the between the field and the marketplace. Witnesses addressed the need to removal of § 927.36, Public advisors, as Proponents stated that the authority for simplify the operations of the Northwest unnecessary, since the public advisors production and post-harvest research, pear industry by combining the would be replaced by public members and promotion activities including paid activities of the fresh winter pear, the of the committees. advertising, would enhance the order’s fresh summer/fall pear and the Witnesses favored adding authority to ability to support Northwest pear processed pear industries under a single the order to allow the committees, each growers, handlers and processors. federal marketing order. Witnesses independently, to recommend changes In discussing the order’s authority to stated that the proposed amendments in the number of committee members regulate fresh pears, witnesses would streamline pear industry and alternates of each committee, as supported adding authority to establish activities, including assessment well as recommend reapportionment of container marking regulations. collection, administration, regulation, committee membership among districts Witnesses stated that this authority, promotion, and research. The three and groups (i.e., growers, handlers, and which could include the use of generic industries are currently regulated under processors). Witnesses stated that this industry logos, would provide the VerDate jul<14>2003 18:35 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 E:\FR\FM\13JAP3.SGM 13JAP3 2522 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules industry with a marketing tool to (5) Whether to terminate the current Material Issue Number 1—Revision of enhance the presentation of fresh Winter Pear Control Committee, to the Definition of Pears Northwest pears in the marketplace. establish two new administrative Section 927.4 of the order should be Witnesses also advocated adding committees (the Fresh Pear Committee amended to include all varieties of pears authority to recommend modification or and the Processed Pear Committee), to grown in the States of Oregon and elimination of inspection requirements add a public member and public Washington. This amendment would provided that an alternative method of alternate member seat to both of the entail adding a category for all pear ensuring compliance with quality and newly established committees, to varieties characterized as summer/fall size standards were developed. Any remove § 927.36, Public advisors, and to varieties, and would add the Concorde, alternative system would have to be make related changes to order Packham and Taylor s Gold varieties to approved by the Department through provisions governing nomination and the current list of pear varieties the rulemaking process. selection of members and their characterized as winter pear varieties. In Witnesses stated their approval of the alternates, terms of office, eligibility for addition, a third category of pears Committees’ recommendations to: membership, and quorum and voting should be added that would include all Eliminate the current exemption for requirements; varieties not classified as summer/fall or pears for processing and for pears (6) Whether to add authority for the winter pears, that are grown within the shipped to storage warehouses as this proposed committees to recommend production area. provision is considered obsolete; changes in the number of committee The winter pear order currently remove the order provision allowing members and alternates, and the defines pears as any and all of the grower exemptions from regulation as allocation of membership among groups Beurre D’Anjou, Beurre Bosc, Winter this tool is also no longer used by the and districts; Nelis, Doyenne du Comice, Forelle, and industry; and, amend § 927.70, Reports, (7) Whether to add authority for the Seckel varieties of pears. It also includes to add confidentiality provisions of the committees to recommend rates of any other varieties or subvarieties order concerning the handling of assessment for pears by category characterized as winter pears that are information provided to the Committees (summer/fall pears, winter pears, and all grown in the production area and are and to specify in the order provisions other pears) and supplemental rates of recognized by the committee and that handlers maintain records for at assessment by variety; approved by the Department. least two years. (8) Whether to add authority for The proposed amendment would Finally, witnesses supported container marking requirements for broaden the scope of Federal marketing requiring continuance referenda as a fresh pears; order 927 to cover all pears produced means of determining grower sentiment (9) Whether to remove § 927.54, within the production area. Witnesses on the order’s operations. As proposed, Exemption Certificates, which allows stated that without this proposed separate continuance referenda would grower exemptions from regulations; change in the definition of pears be held every 6 years for the fresh pear (10) Whether to amend § 927.70, covered by marketing order 927, all and processing pear provisions of the Reports, to add confidentiality other proposed amendments would not order (each independently). provisions concerning the handling of be possible as they entail bringing the At the conclusion of the hearing, the information provided to the Committees fresh winter and summer/fall pear Administrative Law Judge stated that and to specify in the order provisions industries and the processed pear the final date for interested persons to that handlers maintain records for at industry under one Federal regulatory file proposed findings and conclusions least two years; program. or written arguments and briefs based According to the record, there are (11) Whether to add authority to on the evidence received at the hearing eight principal varieties of pears grown recommend modification or elimination would be June 1, 2004. The deadline in the States of Washington and Oregon. of inspection requirements, provided was subsequently extended to June 16, These pear varieties are split into that an alternative, USDA approved 2004. One brief on behalf of the joint categories of summer/fall and winter method of ensuring compliance with Winter Pear Control Committee and the pears. These references stem from the order quality and size standards could Northwest Fresh Bartlett Marketing differences in the crop harvest and be used; Committee was filed. The brief marketing cycles of the different contained an overview of the industry’s (12) Whether to eliminate current varieties. proposals and reiterated support for exemptions for pears for processing and Winter pears, such as the red and amending the order. for pears shipped to storage warehouses; green Anjou, Bosc, Comice, Seckel, (13) Whether to provide that separate Material Issues Forelle, Concorde, Packham and continuance referenda be held every 6 Taylor’s Gold varieties, are typically The material issues presented on the years for fresh pears and processing harvested in early September. Winter record of hearing are as follows: pears; pear varieties are generally able to be (1) Whether to amend the definition (14) Whether to add authority for the stored longer than summer/fall varieties, of ‘‘pears’’ to include all varieties of proposed committees to conduct post- and thus can be sold throughout the pears grown in the production area; harvest research, in addition to winter, spring and summer. The (2) Whether to revise the definition of production research and promotion marketing season for Comice, Seckel, ‘‘size’’ to reflect current industry usage (including paid advertising); and and Forelle generally runs through of the term; (15) Whether to update several order April. The marketing season for Bosc (3) Whether to add authority to provisions to make them more current. pears extends into May, and Anjou regulate pears for processing, by pears can be available into July or later. Findings and Conclusions revising the definition of ‘‘handle’’, and Summer/fall varieties include the adding definitions of ‘‘processor’’ and The following findings and Bartlett and Starkrimson pear varieties. ‘‘process’’; conclusions on the material issues are Summer/fall pears are harvested in late (4) Whether to establish districts for based on evidence presented at the summer and are marketed throughout pears for processing; hearing and the record thereof. the fall, sometimes into January. Bartlett VerDate jul<14>2003 18:35 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 E:\FR\FM\13JAP3.SGM 13JAP3 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules 2523 pears can either be red or green, with Proponents of this amendment stated marketing order 927 was established, the green Bartlett being more prevalent that this amendment, in conjunction the standard western pear box was the in the marketplace. Bartlett pears are with the proposed amendments common receptacle used for packing also the variety of pear that is most discussed in later material issues, would fresh pears. Over time, different forms of commonly used for processing. The help to improve the orderly marketing packing containers with different Starkrimson variety is a summer/fall of product within the industry. dimensions have evolved. Thus, this variety that has recently become more To illustrate the interaction of the definition no longer accurately reflects important in the overall volume of pear different pear industries, witnesses used the variety of containers used within the production in Oregon and Washington. the example of a large crop of Bartlett industry. Witnesses also indicated that pears. In this example, communication Alternatively, witnesses proposed that establishing an ‘‘other’’ category would between the fresh and processing sides the definition be revised to include be prudent in the event that future of the pear industry would be helpful in language describing a 44-pound net varieties of pears were developed that assuring timely movement of a weight standard box or container do not fall into the other established perishable product and maximizing equivalent. According to the record, categories. The industry would gain returns for that product. Crop estimates industry currently describes a 44-pound flexibility in responding to new and harvest information, for example, box as a standard container, and uses developments in the Oregon and could be shared between the fresh and this definition to measure crop size and Washington pear industry by providing processed committees to anticipate changes in crop volumes from year to for the structure to classify such pears market distribution strategies for the year. appropriately for program purposes. large crop. The committees would Witnesses also explained that, given This would allow the industry to avoid facilitate information sharing at the the proposal to add authority to regulate having to pursue amendment of the administrative, grower and handler pears for processing to the order, a size marketing order in the future, if new levels to enhance coordination of fresh definition solely based on a fresh pear varieties of pears are developed that are and processed industry activities. For packing box would not be appropriate. not considered winter or summer/fall example, potential overflow from the Witnesses proposed a size definition pears. fresh market needs to be able to move that would also include a physical USDA is also recommending that efficiently to the processed industry in measurement: The greatest transverse § 927.4, the definition of pears proposed order to prevent loss of product. Timely diameter of the pear taken at right by industry, be revised to include movement of a perishable product is angles to a line running from the stem language stating that all pears with the essential to securing the highest grower end. Proponents of the revised genus name ‘‘Pyrus’’ produced within return for that product. definition stated that a diameter-based the production area would be included Similarly, witnesses stated that definition would accurately describe under the order. This language was also regulating all varieties of pears (winter pear sizes in both the fresh and included in the brief filed by the joint and summer/fall) under one marketing processed pear industries, and would Winter Pear Control Committee and the order would synchronize activities and more accurately reflect current sizing Northwest Fresh Bartlett Marketing facilitate inter-industry discussions and procedures and technology. As one Committee in support of the proposed decision-making. witness stated, the physical description amendments to marketing order 927. There was no opposition testimony on for measuring pears provides the basis Accordingly, USDA recommends this issue. For the above reasons, it is for determining what size actually goes revising § 927.4, Pears, to include the recommended that section 927.4 be into a box. Representatives from the genus name ‘‘Pyrus’’ in the definition. amended to include all pears pear processing industry also explained Witnesses stated that this proposed characterized as winter and summer/fall that processors require a minimum- amendment would provide the basis for varieties and subvarieties grown within diameter size of 21⁄4 inches for pears for many of the other proposed the production area. A category for all processing. Thus, the revised definition amendments discussed later in this pears not classified as either winter or of size would better reflect current document. The industry intends to summer/fall pears should also be practices of both industries. expand the scope of Federal marketing established. USDA recommends There was no opposition testimony on order 927 to include all varieties of including a reference to the genus name this issue. For the above reasons, it is pears grown in Oregon and Washington, ‘‘Pyrus’’ as part of this definition. recommended that § 927.5, Size, be to regulate both fresh pears and pears A conforming change is needed in the revised to more accurately reflect the for processing, as well as to establish title of 7 CFR Part 927. It is proposed to contemporary definition used within two administrative committees for local be revised to ‘‘Pears Grown in Oregon the industry. oversight and administration of the and Washington’’ to reflect the fact that Material Issue Number 3—Adding order. In order to effectuate these the program no longer would cover only Authority to Regulate Pears for changes, the definition of pears needs to winter pears. be amended to provide authority to Processing regulate all pears under one order. This Material Issue Number 2—Revision of Federal marketing order 927 should would be accomplished by amending the Definition of Size be amended to include authority to the order’s definition of pears. Section 927.5, Size, should be revised regulate pears for processing by revising Witnesses explained that the winter, to reflect contemporary definition of the § 927.7, Handler, and § 927.8, Ship or summer/fall, fresh and processed pear term as used by the industry today. handle. These terms should be amended industries are closely inter-related. Witnesses explained that the current to include persons receiving pears for Growing, harvesting, packing, definition of ‘‘size’’ in the order is processing. In addition, definitions of processing and marketing activities of outdated as it defines size according the ‘‘processor’’ and ‘‘process’’ should be all of these industries impact each other number of pears that can be packed in added to the order to further clarify the to the extent that regulating them under a standard western pear box. A standard amended terms ‘‘handler’’ and ‘‘ship or one Federal marketing order would be western pear box is described as a box handle.’’ logistically beneficial for the Oregon that is 18 inches long, 111⁄2 inches wide The order currently does not include and Washington pear industry. and 81⁄2 inches deep. At the time authority to regulate pears for VerDate jul<14>2003 18:35 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 E:\FR\FM\13JAP3.SGM 13JAP3 2524 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules processing. However, the regulation of and stated that coordination of reorganization of entities representing pears for processing is authorized under marketing and research efforts is processed pear interests, reducing the the Act and, therefore, can be added as essential to maintaining market share in number of regulatory entities from two a provision of marketing order 927. an increasingly competitive to one. Assessment collection would be Given the proposal described in marketplace. Moreover, witnesses simplified, but the level of assessment is Material Issue 1, revising the definition explained that combining fresh and not expected to increase or decrease of ‘‘pears,’’ the authority to regulate processed pear activities under one significantly. According to the hearing pears for processing would apply to all program would represent a natural record, current assessments equal pear varieties grown in the states of progression of the long-existing roughly $5 per ton of pears received for Oregon and Washington. cooperation between the two industries. processing. There are five processing plants in the According to the record, pear growers Handler assessments would be levied production area, with one in Oregon in Oregon and Washington have a 50- on the first individual receiving pears and four in Washington. Seventy five year history of dedicated funding to from the producer for packing or percent of the processing tonnage promote canned pears to consumers and processing. For example, if a producer produced within the production area foodservice users. Formal support of the were to transport pears directly to a originates from the State of Washington, processed pear industry began in 1954 processor, that processor would be with 73 percent of the total located in with the establishment of the Pacific considered the first handler and would the Yakima area. Processed pear Northwest Canned Pear Service be responsible for submitting the production totaled 842.2 million (PNCPS), a non-profit marketing appropriate assessment to the pounds in the 2001/2002 crop year, organization funded through voluntary administrative committee. If a producer compared to 1086.3 million pounds of grower assessments. delivers pears to a packinghouse, where fresh pear production in the same year. The PNCPS continues to operate pre-sizing or grading for fresh market According to the hearing record, under the direction of growers from may take place prior to selecting adding authority to regulate pears for Washington and Oregon through two tonnage to be directed to the processor, processing would complement the State grower organizations: the then the packinghouse would be Oregon and Washington pear industries’ Washington State Fruit Commission and considered the first handler and would desire to coordinate and streamline the Oregon Bartlett Pear Commission. be responsible for the assessment industry-wide research, promotion, and The two State organizations annually amount due. If a producer were to administrative activities. To accomplish approve a budget based on a per-ton deliver pears to a packinghouse or this, the definition of ‘‘handle’’ should assessment on pears delivered to processing facility outside of the be expanded to include receiving pears processors. This mandatory assessment production area, then the producer for processing. Processing would be is collected from shippers and would be considered the first handler. defined as canning, reducing to processors by both organizations, and The definition of handler would concentrate, freezing, dehydrating, provides the funds for the PNCPS to exclude any person receiving pears pressing or pureeing pears, or in any operate through an annually approved solely for the purpose of transporting other way converting pears contract. them to a packinghouse or processor, commercially into a processed product. Due to the mandatory collection of such as a contract carrier. A processor would be any person who marketing dollars from Washington and Subject to approval by the commercially processes pears. Oregon Bartlett pear growers who sell Department, Federal processed pear Most pear producers within the their tonnage for processing, all of those assessments could be allocated to a production area produce both winter growers are members of the PNCPS. promotional organization to conduct and summer/fall pear varieties for both Each of the two State grower promotional activities on a contract the fresh and processed product organizations appoints board members basis, much like the current contractual markets. Record evidence indicates that to the PNCPS board of directors. arrangement between the PNCPS and the fresh and processed product markets In addition, processor members pay the State commissions. Record evidence compliment each other, as the latter an annual associate membership fee and demonstrated that promotional provides a market for product that pay assessments on pears transported to activities, such as consumer education cannot be profitably distributed in the the Northwest for processing from campaigns, distributor rebate programs, fresh market. Combining the activities of California, Idaho, or Canada. Associate and other marketing, such as recipe the fresh and the processed pear processor members include all five pear development, have helped to sustain a industries under a single Federal processors operating in the production stable market share for processed pears. marketing order would facilitate area. In spite of increasing competition from communication among industry Witnesses testified, if implemented, imported pears and a growing participants and would allow for more the proposal to include regulatory preference among consumers for take- efficient marketing and research. authority for pears for processing could out or fast food meal service, demand Representatives of the processed pear lead to the dissolution of the two State for processed pear products has industry testifying at the hearing stated commissions. Collection of assessments remained relatively stable over the past their support for adding authority to and administration of the marketing three decades. regulate pears for processing under the order program would become the The record evidence shows that over order. Witnesses stated that a Federal responsibility of the proposed Processed the last three years, imported canned marketing order would provide a stable, Pear Committee, described and pears have become an increasingly unified, and constant vehicle to discussed under Material Issue 5. competitive challenge to the Northwest accomplish industry production and Witnesses did not expect the canned pear industry. Witnesses cited marketing objectives, mainly promoting proposed change in the structure of imports from China, South Africa and consumption of fresh and processed processed pear organizations to result in Australia as the industry’s top three Northwest pears, and increasing grower a change to the combined federal and foreign competitors, with imported returns. Witnesses expanded on the state assessments that handlers are product accounting for nearly 10 many benefits they believed would currently paying. The proposed percent of domestic canned pear sales. result from collective industry action, amendment is expected to result in a Promotional activities geared towards VerDate jul<14>2003 18:35 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 E:\FR\FM\13JAP3.SGM 13JAP3 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules 2525 large-volume end users, including if such authority might be desirable at Yakima, Mid-Columbia and Wenatchee. school foodservice, health care, and some point in the future, processors The Medford and Yakima Districts each other on-site foodservice operators and responded that they would be prepared have two grower and two handler distributors, have helped the Northwest to pursue amendment of the order at members, and the Mid-Columbia and processed pear industry to maintain a such time. Thus, authority for grade and Wenatchee Districts each have two stable share of these market sectors. size regulation is not included as part of grower and one handler members. There Witnesses stated that incorporating this proposal. is also one non-voting public advisor. processed pears under the Federal Based on the record testimony and the Geographically, these districts are marketing order for Oregon and reasons outlined above, § 927.7, nearly identical to the winter pear Washington pears would assist the Handler, and § 927.8, Ship or handle, districts, with the exception of the industry and assure that promotional should be amended to include the division of production along the activities continue to receive activity of receiving pears for Columbia River Gorge and southern coordinated industry support. processing. In addition, two new Oregon. The differences in district Information presented at the hearing definitions should be added to the committee representation reflect the suggests that over the past century a order: § 927.14, Processor, and § 927.15, regional differences in summer/fall pear number of factors have converged to Process. No opposition to these production and winter pear production. change consumer food consumption proposed amendments was presented at According to the record, the proposed patterns and encourage the emerging the hearing. Fresh Pear Committee districts are based dominance of food service over the on the existing structure of the Winter Material Issue Number 4—Districts retail sector. In an increasingly Pear Control Committee, which has demanding work-life environment, Section 927.11, Districts, should be been updated several times and which many consumers are becoming amended to include two sets of accurately represents the interests of the increasingly dependent on dining out or representative districts: one for fresh fresh summer/fall pear industry. The purchasing prepared foods. With pear production and one for processed proposed fresh district structure also consumers turning to foodservice with pear production. This section of the borrows from the Northwest Fresh their food dollars, canned pear order needs to be revised to reflect the Bartlett Marketing Committee in that it consumption has moved away from the proposed establishment of two divides the State of Washington along a home and into foodservice operations. administrative committees: the Fresh more logical division of County lines. As a result, representatives from the Pear Committee and the Processed Pear The proposed districts for the Fresh PNCPS explained that current Committee, discussed in Material Issue Pear Committee are as follows: The promotional activities related to this 5. The geographic boundaries of the Medford District would include all of sector are largely oriented towards total production area under Marketing the Counties in the State of Oregon consumer education and public Order 927, which includes the states of except for Hood River and Wasco relations efforts via food editors and Oregon and Washington, would not Counties; the Mid-Columbia District nutrition professionals, and consumer change. would include Hood River and Wasco retail promotion. According to the Marketing order 927 currently defines Counties in the State of Oregon and the record, consumer promotion efforts, four districts for fresh winter pear Counties of Skamania and Klickitat in including lifestyle brochures, production. Given the proposal to the State of Washington; the Wenatchee newspaper recipe releases and expand marketing order coverage to all District would include the Counties of consumer newsletters, have helped to varieties of pears produced and handled King, Chelan, Okanogan, Douglas, stabilize home consumption. in the fresh and processed pear Grant, Lincoln, and Spokane in the State While witnesses stated that industries of Oregon and Washington, of Washington, and all other Counties in promotional activities are essential to these representative districts need to be Washington lying north thereof; and, the the continued vitality of the processed adjusted. The proposed amendment Yakima District would include all of the pear industry, they also expressed their would retain a four-district division of State of Washington not included in the view that grade and size regulatory the production area for fresh pear Wenatchee District or in the Mid- authority for processed pears should not production, but would slightly modify Columbia District. be included under the order. In other the current district boundaries to reflect Record evidence indicates that the words, supporters of this proposal only the addition of summer/fall pear most significant change in the proposed favored regulatory oversight of the varieties. In addition, two districts for fresh pear district structure occurs in collection of assessments on pears for processed pears would be established. Oregon, with fresh pear representation processing for the use of funding These would be defined along State being shifted from the Mid-Columbia research and promotion. This boundary lines, with Oregon as one District to the Medford District. amendment would not include district and Washington as the other. Witnesses explained that growers from authority to establish grade and size The current Winter Pear Control this area specifically asked to be regulations for pears for processing. Committee consists of 12 members included in Medford instead of Mid- Representatives from the processed allocated among 4 geographic districts: Columbia to better reflect the pear industry stated that during the Medford, Yakima, Mid-Columbia and distribution of fresh production in drafting of the proposal to amend Wenatchee. The Medford and Yakima Oregon. The shift in district boundaries marketing order 927 to include pears for Districts each have one grower and one would also result in more opportunities processing, processors were polled by handler member, and the Mid-Columbia for industry members from this region to members of the Winter Pear Control and Wenatchee Districts each have two participate as members of the Committee regarding support for grade grower and two handler members. There committee. and size regulatory authority. Given that is also a non-voting public advisor. According to the record, there are the processed pear industry currently The current Northwest Fresh Bartlett roughly 350 fresh pear producers in operates under established USDA grades Marketing Committee, which represents Hood River County, Oregon, and less and standards, processors opted against Oregon and Washington summer/fall than 40 fresh pear producers in Medford including this authority in the proposed fresh production, has 14 members County, Oregon. The area subject to the amendment. When asked at the hearing allocated among 4 districts: Medford, proposed shift in district boundaries is VerDate jul<14>2003 18:35 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 E:\FR\FM\13JAP3.SGM 13JAP3 2526 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules known as the Willamette Valley region in the States of Oregon and Washington Material Issue Number 5—Termination and has less than 40 fresh pear and more fairly gauge regional of the Winter Pear Control Committee producers. Given the distribution of production differences. and Establishment of the Fresh Pear fresh pear producers in Oregon, the According to the record, processed Committee and the Processed Pear proposal to merge Willamette Valley pear production has historically been Committee producers into the Medford District identified by Oregon and Washington The marketing order should be would improve representation of that State boundaries. Representation of amended to create two administrative area on the committee. The Medford processed pear industry interests and committees: the Fresh Pear Committee Districts average annual production of collection of mandatory State and the Processed Pear Committee. winter pears has decreased over the past assessments have been conducted by Conforming changes should be made for five years by approximately 10.8 respective State commissions: the all sections related to committee percent, or from 1.127 million boxes (10 Oregon Bartlett Pear Commission in establishment, nomination, selection, year average) to 1 million boxes (five voting, eligibility and tenure. These year average). Average annual Oregon and the Washington Stone Fruit changes should all reflect a two- production of summer/fall pear varieties Commission in Washington. committee structure, where each over the same time period has fallen 13 The proposed Processed Pear committee has authority to act percent, from 269 thousand boxes (10 Committee, further discussed under independently. year average) to 234 thousand boxes Material Issue 5, would initially be The order is currently structured (five year average). At the time, average made up of 10 members allocated around the Oregon and Washington annual production of summer/fall between 2 districts. One district would fresh winter pear industry, with the varieties in the Mid-Columbia District encompass the entire State of Winter Pear Control Committee have increased by nearly 10 percent, Washington. Because processed pear responsible for local administration of growing from 868 thousand boxes (10 production in this district would the program. The proposal to expand year average) to 951 thousand boxes (5 represent 75 percent of total processed order coverage to all pear varieties year average). Mid-Columbia average pear production in the production area, produced within the production area, annual production of winter pears has committee member representation and to both the fresh and processed remained fairly stable over this period, would include two grower members, decreasing by only one half of a percent. product industries, necessitates two handler members and two processor modification of this structure. Thus, expanding the Medford District members. would allocate a portion of the current All witnesses at the hearing supported The other district would encompass Mid-Columbia District production to including both winter and summer/fall the State of Oregon and would be that district, and would expand the pool pears, in addition to all pear varieties allocated committee representation of of Medford District industry not classified as either, under marketing representatives eligible to serve on the one grower member, one handler order 927. Witnesses explained that committee. member, and one processor member. consolidation would eliminate a The proposal to redefine Wenatchee (The public member would represent confusing and inefficient system District to include King, Grant and the production area at-large.) This currently comprised of two Federal Lincoln Counties, and all other Counties proposed structure meets the existing marketing orders and two State in Washington lying north thereof, is language in the Act, which requires commissions. These four programs also the result of a shift in boundary representation of processors and would be replaced with an updated lines. The total amount of commercial producers to be equal. single marketing program, which would fresh production represented in this Growers and processors testifying at benefit producers, handlers, and district would not significantly change. the hearing stated their support for the processors. However, the re-designation would proposed processed pear districts and Witnesses also advocated the allow for a better division of production indicated that representation by State establishment of two administrative between districts in Washington if offered an equitable division of bodies: One for the fresh industry and production in the northern part of the production interests on the proposed one for the processed industry. Witnesses explained that while the two State were to grow in the future. administrative committee. While industries were both dependent on the Witnesses stated that under the Oregon only represents 25 percent of same production of pears, the proposed district boundaries the State of total production area production, administrative needs of the two Washington would be divided witnesses agreed that the entire State industries were different. Managing the geographically into two districts. should be included in the same district two sides of the pear industry, fresh and The proposed fresh pear district to provide the Oregon processed pear processed, would require two differing boundaries and corresponding industry a separate district. allocation of committee member approaches. From promotional activities representation, discussed in Material Given the record evidence and the to customers, trade factors to shelf life, Issue 5, are also validated by seasonal reasons outlined above, USDA and consumer trends to cultural production summaries. A review of recommends that § 927.11, Districts, be practices in the orchards, pears for the production statistics by district covering amended as proposed. This amendment fresh market differ from pears for 10 years presented at the hearing would create two sets of representative processing. indicate that the Wenatchee and Mid- districts under the order: one for fresh According to the record, the ability for Columbia Districts are the largest pears and one for processed pears. The the fresh and processed industries to producers of both fresh winter and proposed amendment reflects current recommend assessment levels, maintain summer/fall varieties, and therefore industry operations and ensures separate financial records, and establish merit a larger committee representation equitable representation of producers, reserves independently based on than the Medford and Yakima Districts. handlers and processors of pears in the specific promotional objectives, is very The proposed district boundaries offer a States of Oregon and Washington. No important. However, the two more accurate geographical opposition to this proposal was given at committees would have the ability to representation of fresh pear production the hearing. work together in many areas, such as VerDate jul<14>2003 18:35 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 E:\FR\FM\13JAP3.SGM 13JAP3 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules 2527 funding of research that benefits all public member would be better able to business in the district that they pears, and compiling statistical reports. represent consumer interests. represent. Officers or employees of a Witnesses stated that the proposed Sections 927.21 and 927.22, which corporate or limited liability corporation amendments to the marketing order outline provisions for the nomination should be eligible to serve as would provide a unified program for all and selection of committee members, representatives of their employer. pears under one marketing order, yet should be amended to include language Section 927.27, Term of office, should recognizes the differences in the specific to the two proposed be amended to replace all references to objectives of the two industries. For administrative committees. Nomination the Winter Pear Control Committee with these reasons, § 927.20, Establishment and selection of Fresh and Processed the Fresh Pear and Processed Pear and membership, should be amended to Pear Committee members and their Committee. The terms of office of create a Fresh Pear Committee and a respective alternates would operate members and alternates should be for 2 Processed Pear Committee. similarly to the current nomination and years beginning on July 1. About one- The proposed Fresh Pear Committee selection system for the Winter Pear half of committee membership of each should consist of 13 members of whom Control Committee. Committee committee ends each June 30. This 6 should be growers, 6 should be members would be elected for provision would allow for staggered handlers and 1 should be a public nomination at a meeting of their peers. terms of office and would ensure that member. For each member there should This means that growers would be only one-half of each committee rotates be two alternates, designated as the elected at growers’ meetings, handlers tenure each year, thus providing for a ‘‘first alternate’’ and the ‘‘second would be elected at meetings of continuation of experience among alternate,’’ respectively. Each fresh pear handlers, and processors would be committee members. district, described in Material Issue 4, elected at meetings attended by Tenure limitations should be the same should be represented by one grower processors. under the revised order as they member and one handler member, Advance notices of these meetings currently are for the winter pear except that the Mid-Columbia District would be placed in the local media, and committee members. This section states all eligible members of that peer group and the Wenatchee District, which that no member should serve more than could be nominated for selection to the should be represented by two grower three consecutive 2-year terms unless committees. After an individual is members and two handler members. specifically exempted by the nominated, and accepts that The committee should recommend a Department. Members and alternate nomination, a statement containing public member to the Department once members should continue to serve until background information and the industry representatives are their respective successors are qualified acknowledgement of their willingness to nominated and appointed by the to serve on the committee and are serve would be submitted to the USDA. Department. selected. Ultimately, committee member The proposed Processed Pear nominees would be selected and Section 927.33, Procedure, describes Committee should consist of 10 appointed as committee members by quorum and voting requirements for members of whom 3 should be growers, USDA. committee action at meetings. The 3 should be handlers, 3 members shall Sections 927.23 and 927.24 govern language in this section should be be processors, and 1 should be a public voting and eligibility requirements for revised to reflect the proposed Fresh member. For each member there should committee members. Again, these and Processed Pear Committees and be two alternates, designated as the sections are based on the language should provide for a 75-percent ‘‘first alternate’’ and the ‘‘second currently in place for the Winter Pear attendance rate for a quorum for each alternate,’’ respectively. District 1, the Control Committee. These sections committee. All decision-making at State of Washington, should be should be revised to reflect the committee meetings should require the represented by two grower members, proposed dual committee structure. concurring vote of at least 75 percent of two handler members and two processor Voting guidelines stipulate that only those members present, including members. District 2, the State of Oregon, growers, handlers or processors, alternates serving in the place of any should be represented by one grower respectively, should vote for their peers. members. member, one handler member and one Moreover, an individual should When asked how procedural aspects processor member. The committee participate only in the election held in of the order would be impacted given a should recommend a public member to the district in which he or she produces, change in a committee size, witnesses the Department once the industry handles or processes pears. Individuals stated that administration of the order representatives are nominated and would be entitled to cast only one vote should continue to be conducted as appointed by the Department. on behalf of his or her self, his or her currently outlined. If a committee size The proposal to add a voting public agents, partners, affiliates, subsidiaries, were to change in terms of total number member to each administrative and representatives. While each person of members, witnesses felt that the 75 committee is new to the order. Prior to may vote as a grower, handler or percent requirement for both quorum the proposed amendments, the Winter processor, they would not be able to and committee action should be Pear Control Committee did have the vote as a combination thereof. Thus, if maintained. authority to appoint a public advisor. a person were a pear producer, handler According to the hearing record, However, the public advisor did not and processor, he or she would have to witnesses supported the use of current have voting rights. Witnesses supported choose whether to participate in the marketing order 927 language as a the addition of a voting public member producer, handler or processor member model for the administrative as they anticipated that a non-industry nominations. Likewise, a producer who functioning of the proposed Fresh and perspective would contribute the grows pears in more than one district Processed Pear Committees. Witnesses committee discussions and decision- would have to choose the district in noted that marketing order 927 has a making. Under the proposed which he or she wishes to participate. long history of effectively meeting the amendments, the public member would In order to be eligible to serve as a needs of the Oregon and Washington not be allowed to have financial committee member, a grower, handler or fresh winter pear industry. Therefore, interests in the pear industry. Thus, the processor must conduct their respective few changes to the provisions of the VerDate jul<14>2003 18:35 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 E:\FR\FM\13JAP3.SGM 13JAP3 2528 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules above-described sections were adapting to the changing character of Currently, the order provides for an proposed. the Oregon and Washington pear assessment rate for winter pears, and Record evidence supports the industry is important to the supplemental assessment rates for proposed changes in §§ 927.20 to administration of the order. Witnesses individual varieties and subvarieties of 927.24, 927.27, and 927.33 described stated that, ultimately, the order’s winter pears, to be established. Rates of above. No opposition to these ability to remain effective over time assessment are recommended to the amendments was offered at the hearing. would be reliant on its ability to change Department for approval. If authority to Numerous conforming changes are with the needs of the industry. In this establish rates of assessment for needed to reflect the proposed dual regard, witnesses proposed adding summer/fall and other pear varieties, as committee structure. These proposed authority to the order that would allow well as supplemental rates of revisions would, for the most part, for committee size and structure to be assessment, were incorporated under replace all references to the ‘‘Winter considered, and recommendations for the order, they, too, would be subject to Pear Control Committee’’ or ‘‘Control change to be made. approval by USDA. Assessments are Committee’’ with references to the Witnesses testified that careful used to fund the administrative ‘‘Fresh Pear Committee,’’ the ‘‘Processed industry analysis would lead to sound functions of the committee, in addition Pear Committee,’’ or both. Another recommendations to USDA regarding to any research and promotional change needed in several sections is any change in committee size or activities authorized under the order. adding reference to processor committee structure. If the authority to change the According to the record, supplemental members in addition to producer and size of the committees were added to rates of assessment would be used for handler members. Such conforming the order, the committees could, at expenses specific to an individual changes are needed in §§ 927.9 Fiscal regular meetings, review the current variety or subvariety of pear. period; 927.26 Qualifications; 927.28 structure of the committees using the Witnesses stated that three different Alternates for members; 927.29 points of consideration mentioned base assessments would best serve the Vacancies; 927.30 Compensation and above. Upon completing this analysis, industry. Historically, fresh winter pear expenses; 927.31 Powers; 927.32 Duties; the committees could make a varieties have paid higher assessments 927.34 Right of the Secretary; 927.35 recommendation to USDA for a change than fresh summer/fall pears. Pears for Funds and other property; 927.40 in the size of the committee. processing have been assessed at yet a Expenses; 927.43 Use of funds; 927.45 Recommendations would be made by different level, and could feasibly have Contributions; 927.50 Marketing policy; each committee individually for the differential assessments for winter, 927.52 Prerequisites to segment of the industry that they summer/fall or other varieties over time. recommendations; 927.53 Notification; represent. Implementation of this Moreover, while the proposed 927.75 Liability; 927.79 Proceedings authority would allow such changes to amendments would result in unifying after termination; and 927.80 be pursued through the informal the programs for winter pears and Amendments. Additionally one heading rulemaking process. summer/fall pears varieties under one should be changed from ‘‘Control Given the changes that the Oregon marketing order, (and one, combined Committee’’ to ‘‘Administrative and Washington pear industry has seen fiscal year) separate base assessment Bodies.’’ over time, flexibility to change the size rates would allow for differences in the of the committees in step with the budget requirements for each category. Material Issue Number 6—Adding evolving needs of the industry would be Winter pears have a distinct season from Authority for Changes in Committee an important tool. It would allow the summer/fall pears, and thus present Size and Membership Allocation committees to focus on the increasing distinct, identifiable costs. The Section 927.20 of the order should be competitiveness in the market while operational differences of each category revised to add authority for the minimizing costs and maximizing reflect the need for maintaining committees, each individually, to efficiency. differences in base assessment rates in recommend changes in committee size Record evidence supports amending order to generate adequate funds cover and structure. The intent of this the order to add authority to change category-specific costs. proposal is to provide the committees committee size and structure. This According to the record, the base with a tool to more efficiently respond amendment would allow each assessment for pears classified as to the changing character of the Oregon committee, given due analysis and ‘‘other’’ is intended for the future needs and Washington State pear industry. In consideration of key factors and USDA of the industry as new varieties or recommending any such changes, the approval, to more quickly adapt to subvarieties of the genus Pyrus are following would be considered: (1) changes within the industry. There was developed that do not fit under either Shifts in acreage within districts and no opposition to the above proposal. ‘‘winter pear’’ or ‘‘summer/fall pear.’’ within the production area during Accordingly, USDA is proposing that Besides the differences between fresh recent years; (2) the importance of new § 927.20 be amended. and processed pears, witnesses stated production in its relation to existing that it would be important to provide districts; (3) equitable relationship Material Issue Number 7—Assessment each committee with the authority to between Committee membership and and Supplemental Assessment Rates establish varying rates of assessment on the various districts; (4) economies to Section 927.41, Assessments, should a variety-specific basis. This authority result from more efficient be amended to allow the Fresh Pear and would provide the committees with administration due to redistricting or Processed Pear Committees to flexibility to ensure that variety-specific reapportionment of members within recommend rates of assessment for each projects could be undertaken as special districts; and (5) other relevant factors. category of pears, including summer/fall promotional or research needs develop. Testimony indicates that significant pears, winter pears, and all other pears. Having the ability to add a changes have occurred in both the In addition, rates of assessment could be supplemental rate of assessment to a production base and industry different for fresh pears and pears for specific variety, without raising demographics of the pear industry since processing in each category, and could assessments for all other pears, would the order was implemented. These include supplemental rates on allow the committee to address those changes suggest that flexibility in individual varieties. needs without requiring funding by VerDate jul<14>2003 18:35 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 E:\FR\FM\13JAP3.SGM 13JAP3 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules 2529 entities not involved with the of imported pears and other like changes or additions. Thus, the production or handling of that variety. products have caused increased proposed change is not expected to According to the record, a competition for the consumer’s negatively affect the costs associated supplemental rate of assessment for attention in the marketplace. Pear with handling fresh pears. The proposed Anjou pears currently exists under supply and utilization figures from the amendment would only authorize marketing order 927. Funds generated USDA’s Economic Research Service container marking specifications; it by this supplemental assessment are show that imports have accounted for would not impose any new regulatory used to address research and production between 20 and 23 percent of U.S. requirements on Oregon or Washington issues specific to ethoxyquin use to stop domestic fresh pear consumption in fresh pear handlers. Authority to scald, a defect found almost exclusively recent years. Imports from Argentina regulate container pack or size is also in Anjou pears. Anjou growers testifying and Chile are the most prevalent. Use of not included as part of this proposal. at the hearing indicated their support of a generic pear logo, by the Northwest Any specific recommendation by the this supplemental assessment and stated Pear Bureau, the promotional Committee to implement this authority that without the resulting extra revenue, organization representing Oregon and would be subject to analysis through the research and registration of ethoxyquin Washington fresh pears, has been informal rulemaking process. chemicals essential to the industry helpful in promoting pears to Record evidence supports amending would be unavailable. Without the consumers. If the proposed container the order to include container marking flexibility of a supplemental assessment, marking authority were implemented, authority. This amendment would allow witnesses stated that the lack of funding the Fresh Pear Committee could expand the Fresh Pear Committee to and loss in investments of Anjou the use of this logo or develop similar recommend, and USDA to implement, production could have resulted in an promotional marking requirements. container marking requirements through industry crisis. Witnesses also explained that the informal rulemaking procedure. No Record evidence supports amending handlers, in packing to the varying opposition to the above proposal was the marketing order to authorize demands of their customers, are using voiced at the hearing. Accordingly, establishment of rates of assessment for an increasing number of different types USDA proposes that § 927.51 be each category of pears, including of containers. Pear sizes have amended. summer/fall pears, winter pears, and all traditionally been associated with the other pears. In addition, rates of number of pears that fit into a western Material Issue Number 9—Removal of assessment could be different for fresh standard box (see Material Issue 2). Grower Exemption Certificates pears and pears for processing in each However, since the western standard Section 927.54, Exemption category, and could include box is no longer ‘‘standard’’, certificates, should be removed from the supplemental rates on individual determining the size of pear packed order as it is obsolete and no longer varieties or subvarieties. There was no cannot be simply calculated by counting used by the industry. This section opposition to the above proposal. the number of pears in the container. provides authority for the issuance of Accordingly, the Department is For this reason, handlers testifying at exemption certificates to growers who proposing that § 927.41 be amended. the hearing stated that container would be prevented from shipping marking would be helpful in reducing product under a grade or size regulation Material Issue Number 8—Adding confusion in the marketplace. If pear implemented under the order. A grower Authority for Container Marking size were required to be marked on all receiving such an exemption certificate Requirements containers packed, regardless of the would be allowed to ship a quantity of Section 927.51, Issuance of container size or shape, this information the variety being regulated equal to the regulations and modification, would be more readily available to average shipping quantity of that variety suspension, or termination thereof, consumers. This information would also for the district in which he or she should be amended to provide authority allow for easier price comparisons produces. for container marking regulations for between differing containers holding the According to the record, grade and fresh pears. This authority would allow same size pear. size regulations for pears other than the the Fresh Pear Committee to Witnesses offered the following Anjou pear variety have only been recommend mandatory marking or example of regulating 180-size pears to implemented once in the history of labeling requirements on containers describe how container-marking marketing order 927, in 1977. Witnesses used in the packing or handling of fresh authority could be beneficial to the fresh stated that the practical use of this pears grown in Oregon and Washington. pear industry: exemption clause at that time was Any committee recommendation would If the Fresh Pear Committee were to deemed ineffective. Consequently, it be subject to review and approval of the determine that, for example, size 180 was recommended by the committee Secretary. pears are not profitable to the grower, a that this authority be eliminated. The order currently authorizes the regulation eliminating that size from the For the above reasons, the Department establishment of grade, size and quality marketplace could be implemented. The agrees that § 927.54 should be removed regulations, but does not include committee could also implement a from the order. container-marking authority. Witnesses container-marking requirement stated that this authority, which would mandating the marking of product size Material Issue Number 10— include the use of generic industry on all fresh pear containers. In this case, Confidentiality and Record Retention logos, would provide the industry with container marking would facilitate Requirements a marketing tool to enhance the better identification of the size of pears The Fresh Pear Committee and the presentation of fresh Northwest pears in in containers and better communication Processed Pear Committee should, each the marketplace. of size of product to customers. independently, have authority to According to the record, the Testimony indicated that fresh establish handler reporting industry’s ability to deliver a packing facilities are already configured requirements, subject to USDA consistently graded, sized, weighed, and for labeling and container marking. approval. Section 927.70, Reports, marked product has become steadily Witnesses noted that there would be should be further revised to include more important. The growing presence little, if any, need for equipment language spelling out confidential VerDate jul<14>2003 18:35 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 E:\FR\FM\13JAP3.SGM 13JAP3 2530 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules treatment of handler information production process, and the results are important that the program maintain its submitted to the committees under the certified by Federally licensed integrity and that any quality or size mandatory reporting requirements of inspectors. The record shows that in regulation in effect are not this section. recent years, the Federal-State compromised. Confidentiality would help protect Inspection Service has developed Witnesses at the hearing did not handlers against any disclosure of effective, less costly alternatives to the provide specific examples of any information that might adversely affect end-line inspection program. One alternatives. However, they supported or reveal a handler’s competitive alternative is the ‘‘Partners in Quality’’ maximum flexibility in the order to position. The proposed amendment program, a documented quality allow the industry to take advantage of would also add language providing that assurance system. Under this program, any innovative procedures that may be handlers must retain shipping and individual packing houses must available in the future. As previously disposition records of pears handled for demonstrate and document their ability discussed, such procedures would two years. The record retention to pack product that meets all relevant require USDA approval. requirement would allow the quality requirements. Effectiveness of According to the hearing record, the committees access to information in the the program is verified through integrity of the industry s commitment event that handler reports need to be periodic, unannounced audits of each to comply with grade and size verified. packer’s system by USDA-approved regulations would not be compromised. According to the record, Oregon and auditors. The authority to recommend Washington winter and summer/fall Another program recently developed alternatives to mandatory inspection pear handlers currently submit reports is the Customer Assisted Inspection would be a practical tool for the under marketing orders 927 and 931. Program (CAIP). Under CAIP, USDA industry. It would allow grade and size Information submitted in accordance inspectors oversee the in-line sampling standards to be maintained, yet could with reporting requirements provides and inspection process performed by allow for time and cost-saving the data necessary for such things as trained company staff. USDA oversight opportunities. annual production by variety, shipment ranges from periodic visits throughout One witness offered the example of volumes during the season, and historic the day to a continuous on-site current quality regulations in effect for comparisons. In turn, the committees presence. Anjou pears. All Anjou pears shipped Witnesses at the hearing testified that use industry reports to determine domestically prior to November 1st the fresh pear industry should be able promotion, sales and marketing must have a pressure reading of 14 to utilize any method of inspection activities. Information gathered from pounds or below and have been cooled these reports is also used to calculate acceptable to the Federal-State Inspection Service. These alternative to at least 35 degrees. This regulation assessments and conduct compliance requires that the fruit be inspected. audits. methods have been developed by USDA Handlers currently pay 121⁄2 cents per Witnesses stated that adding the as a means of reducing costs to industry. hundredweight for this inspection. At requirement for record retention for two Individual pear handlers could choose times, they lose time due to delays in years would formalize current industry the method of inspection best suited to the inspection process. Handler practices and would update order their operations. The language of witnesses also indicated that delays language to conform to the Act. § 927.60 is proposed to be revised to For the reasons described above, make this clarification. could be longer for smaller shippers that § 927.70, Reports, should be amended to Witnesses also testified that the do not have inspectors stationed at their include confidentiality and record Committee should be authorized to warehouses. Witnesses explained that if retention requirements. No opposition recommend modification or elimination alternative forms of inspection were to this proposal was voiced at the of the inspection requirement if it is allowed, grade and size regulation could hearing. able to devise an alternative means of be more economically implemented. ensuring compliance with any quality Record evidence supports amending Material Issue Number 11—Inspection and size standards in effect under the § 927.60 to clarify that any inspection Requirements order. Any alternative system would program developed by the Federal-State Section 927.60, Inspection and have to be approved by the Department Inspection Service may be utilized by certification, should be amended to through the informal rulemaking fresh pear handlers under the order. clarify current inspection requirements process. Additionally, it would have to Additionally, that section should be and add authority for the Fresh Pear provide adequate assurance that amended to add authority for the Fresh Committee to recommend elimination of handlers under the program were in Pear Committee to recommend those requirements under certain compliance with program requirements. modification or elimination of the circumstances. The Agricultural Marketing Service is inspection requirement provided that an Section 927.51 of the order authorizes responsible for ensuring that all adequate method of ensuring the establishment of grade, size and handlers regulated under a marketing compliance with quality and size quality requirements for fresh order program are in compliance with requirements can be developed. This shipments of pears. Section 927.60 any regulations that are in effect. amendment would allow the Fresh Pear requires that each shipment of fresh Marketing order administrative Committee to recommend, and USDA to pears be inspected and certified by the committees have the responsibility of implement, time and cost-saving Federal-State Inspection Service. The locally administering marketing order mechanisms for handlers without primary purpose of the inspection and programs, which includes monitoring compromising product quality in the certification requirement is to ensure industry s compliance with order marketplace. compliance with any regulations in requirements, and reporting any The proposed language of 927.60, effect under the authority of § 927.51. violations to the Department for Inspection and certification, has been Traditionally, the pear industry has enforcement measures. revised somewhat from what appeared used end-line inspection procedures. While the Department supports and in the Notice of Hearing to clarify the Under this scenario, samples of packed encourages innovation and development intent of the pear industry, as testified pears are examined at the end of the of cost-saving procedures, it is at the hearing. VerDate jul<14>2003 18:35 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4702 E:\FR\FM\13JAP3.SGM 13JAP3 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules 2531 Material Issue Number 12—Elimination held every 6 years. Witnesses supported research would complement the already of Obsolete Exemption Provisions the need for maintaining the referendum existing authorities, as it would focus on Section 927.65, Exemption from process and stated that this practice a section of the pear crop to market flow regulation, allows pears shipped for should be extended to both fresh and that, until now, has not benefited from certain purposes to be exempt from processed pears. research activities. For example, handling regulations in effect under the The record shows that producers improved storage techniques could order as well as from assessments. This should have an opportunity to benefit the pear industry by decreasing section should be amended by deleting periodically vote on whether a the loss of product due to storage, or by obsolete provisions. marketing order should continue. increasing the storability of product to Currently pears shipped for Continuance referenda provide an help prolong the marketing season. consumption by charitable institutions, industry with a means to measure Funding for these activities would come distribution by relief agencies, or producer support for the program. from assessments and would be subject conversion into by-products are exempt Experience has shown that programs to approval by the Department. from regulation. Since this decision need significant industry support to Authority for promotion, including recommends extending program operate effectively. Continuance would paid advertising, also currently exists coverage to pears for processing, the require a favorable vote of at least two- under the order. Given the proposal to third purpose listed needs to be deleted. thirds of those voting, or at least two- add summer/fall pear varieties to the Additionally, paragraph (c) of thirds of the volume represented in the scope of the order, the already existing § 927.65 provides authority for the referendum. This is the same as that for authority for paid advertising would be committee, with the approval of USDA, issuance and amendment of an order. applied to these varieties if the to designate storage warehouses within The USDA believes that producers proposed amendments were the production area. Pears shipped to should have an opportunity to implemented. Witnesses stated that those storage warehouses would be periodically vote on whether the these promotional activities, including exempt from any regulatory provisions marketing order should continue, and paid generic advertising, have in effect under the order. This authority that the costs in time and money are historically been beneficial in boosting has never been used. As such, the well worth the periodic producer sales and maintaining market share. record supports deleting this provision feedback afforded by such referenda. Witnesses also expressed that as unnecessary. The administrative Accordingly, the record evidence research and promotion activities were committees would retain the authority supports the requirement that such likely to be more effective and cost- (provided in § 927.65(b)) to designate referenda be conducted. efficient under the proposed dual- types of shipments that should be Record evidence supports the committee structure as the industry exempt from regulations (including amendment of §§ 927.78 to require would be able to better coordinate needs payment of assessments). Such separate continuance referenda for fresh and resources. Promotional authority for exemptions could only be implemented and processed pears. No opposition to both commodities, fresh and processed with USDA approval through informal this proposal was received at the pears, should include market research rulemaking. hearing. and development projects, as well as This proposal also recommends marketing promotion, including paid Material Issue Number 14—Adding advertising. In the absence of this revising the language in § 927.64 Authority for Post-Harvest Research paragraphs (a) and (b), to reflect the dual proposed change, the effectiveness of committee structure described in Section 927.47, Research and the total pear marketing program would Material Issue 5. The amended language development, should be amended to be limited by the inability to use all would replace all references to the include authority for post-harvest available tools when promoting pears ‘‘Winter Pear Control Committee’’ in research. In addition, the language in grown in the Northwest. this section with ‘‘the Fresh Pear this section should be revised to reflect Record evidence indicates that, in the Committee or the Processed Pear the proposed dual committee structure. past, pear-related research has been Committee.’’ All references to the Winter Pear supported by a number of industry Given the above-described reasons, Control Committee should be revised to organizations, State commissions, and the Department agrees that § 927.64 reference the proposed Fresh and Federal marketing orders. With the should be amended by removing Processed Pear Committees. proposed consolidation of all pears paragraph (c) from the order and The order currently contains authority under one marketing order, it is updating language in paragraphs (a) and for production research and marketing essential that both committees have the (b) to reflect to the proposed dual research, but does not contain specific authority to collect and allocate research committee structure. No opposition to authority for post-harvest research. assessment dollars to ensure that the this proposal was presented at the Examples of post-harvest research necessary funding continues to be hearing. include developing improved storage, available for specific projects supported handling and packaging technologies. by the industry. To this end, witnesses Material Issue Number 13— Witnesses supported the need for stated that research benefits everyone. Continuance Referenda research in this area and discussed the As an example, research that leads to Section 927.78, Termination, should benefits currently brought to the improved pack-outs or improved be amended to provide for separate industry through production and market storability would likely increase grower continuance referenda for fresh pears research. returns and provide a better product on and pears for processing every 6 years. Witnesses stated that research and store shelves, to the benefit of the A vote to discontinue the program with promotion have been beneficial in consumer. respect to fresh pears would not result assisting the pear industry to improve Given the reasons outlined above, in discontinuance of the order with crop yields and enhance marketability § 927.47, Research and promotion, respect to pears for processing, and vice and market distribution of their product. should be amended to include authority versa. As a result, pears have been able to for post-harvest research. In addition, Marketing order 927 currently retain a viable role in an increasingly changes should be made in the language requires that continuance referenda be competitive market. Post-harvest of this section to reflect the proposed VerDate jul<14>2003 18:35 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 E:\FR\FM\13JAP3.SGM 13JAP3 2532 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules dual-committee structure representing Interested persons were invited to large producer (a substantially different both fresh and processed pears. No present evidence at the hearing on the definition from what the SBA uses). opposition to this proposal was voiced probable regulatory and informational There are 55 handlers that handle at the hearing. impact of the proposed amendments to fresh pears produced in Oregon and the order on small businesses. The Washington; 73 percent of these fall into Material Issue Number 15—Updating of record evidence is that most of the the SBA definition of ‘‘small business. Order Provisions proposed amendments are designed to There are five processing plants in the Marketing order 927 contains several enhance industry efficiencies and production area, with one in Oregon sections that should be amended to reduce costs, thereby improving grower and four in Washington. All five better reflect current industry returns. processors are larger than the SBA’s operations. These amendments are The record indicates that there are definition of small business. According largely considered housekeeping approximately 1,850 pear growers in to information presented by processors changes, as they are intended to simply Oregon and Washington. Of that total, testifying at the hearing, roughly 90 update language rather than alter the 1,345 growers report Bartlett or other percent of pears received for processing meaning of order provisions in any way. summer/fall pear production, and 1,753 come from small grower entities. Section 927.1, Secretary, should be growers report winter pear production. The proposals put forth at the hearing revised to include the modern definition Two-year average NASS figures (the would streamline industry organization, of this term. The revised definition 2002 crop year and preliminary figures but would not result in a significant recognizes officers or employees of the for 2003) provides the following change in industry production, harvest Department of Agriculture as delegates production profile for Washington and or distribution activities. In discussing of the Secretary of Agriculture. Oregon, respectively: bearing acres, the impacts of the proposed Section 927.3, Person, should be 24,800 and 17,600; yield per acre, 16.8 amendments on small growers and revised to make this definition tons and 11.8 tons; annual production, handlers, witnesses indicated that the consistent with that in the Act. 417,500 tons and 207,500 tons. Total changes are expected to result in lower Section 927.6, Grower, should be acres planted in pears for Washington costs. If implemented, the amendments revised to recognize the term and Oregon (including non-bearing would result in the consolidation of ‘‘producer’’ as a synonymous term. acres) in 2002 were 26,586 and 22,822, marketing orders 927 and 931, Section 927.44, Collection of respectively. Average Washington and regulating fresh winter pears and assessments, should be removed as Oregon pear pack-out for the 10-year summer/fall pears, respectively. being obsolete and inconsistent with period from 1993/94 to 2002/03 was Program coverage would also be USDA policy. 14,639,225 standard boxes, compared to extended to pears for processing. The Section 927.77, Effective time, should 13,476,829 standard boxes for 1989/90– combined programs would be be revised by removing the date 1998/99. administered by two new administrative ‘‘August 26, 1939’’ as obsolete. Summing average Washington and committees, one for fresh pears and one No opposition to these amendments Oregon pear acreage for 2002 and 2003, for pears for processing. Cost savings was voiced at the hearing. Accordingly, and dividing by the number of growers could occur as a result of more efficient USDA proposes that the above- (1,850), the estimated average acreage coordination of administrative activities described sections be amended. per grower in the two-state area is 26.7 between the two proposed committees. total acres and 22.9 bearing acres. Small Business Consideration Record evidence indicates the According to the 1997 Agricultural proposal to revise the order s inspection Pursuant to the requirements set forth Census, the average Oregon and provisions may result in cost savings for in the Regulatory Flexibility Act (RFA), Washington pear grower had handlers. Handlers within the the Agricultural Marketing Service approximately 23 and 15 total acres, production area typically have about 75 (AMS) has considered the economic respectively. The sum of average percent of their product inspected on a impact of this action on small entities. Washington and Oregon pear voluntary basis. The remaining 25 Accordingly, AMS has prepared this production for 2002 and 2003, divided percent represents the amount of initial regulatory flexibility analysis. by the number of growers, yields an additional product that would be The purpose of the RFA is to fit estimated average production per required to be inspected if regulations regulatory actions to the scale of grower in the two-state area of 338 tons were in effect. business subject to such actions so that (676,000 pounds). Handler witnesses also reported that small businesses will not be unduly or The average fresh market grower inspection costs average 121⁄2 cents per disproportionately burdened. Marketing return for the two States has been hundredweight, with a $9.00 minimum orders and amendments thereto are between 20 and 22 cents per pound in fee. In addition to paying the inspection unique in that they are normally recent years, and between 10 and 12 fee, handlers may also experience brought about through group action of cents per pound for processing. delays in shipments while waiting for essentially small entities for their own Estimated 2-year average pear sales inspection to be completed. Handlers benefit. Thus, both the RFA and the Act revenue per grower in the production indicated that such delays could be are compatible with respect to small area is approximately $101,000, which longer for smaller shippers that do not entities. is between 1⁄7 and 1⁄8 of the revenue that have inspectors regularly stationed at Small agricultural producers have would qualify a grower to be a large their warehouses. This proposal seeks to been defined by the Small Business grower according to the SBA definition reduce these costs by allowing Administration (SBA)(13 CFR 121.201) (if based on pear sales alone). According alternatives to mandatory inspection. as those having annual receipts of less to the hearing record, roughly 75 Traditionally, the pear industry has than $750,000. Small agricultural percent of the fresh pear producers in used end-line inspection procedures. service firms, which include handlers the States of Oregon and Washington Under this scenario, samples of packed regulated under the order, are defined as qualify as small producers. One witness pears are examined at the end of the those with annual receipts of less than stated that a 1,000-acre farm represents production process, and the results are $5,000,000. the threshold between a small and a certified by Federally licensed VerDate jul<14>2003 18:35 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4702 E:\FR\FM\13JAP3.SGM 13JAP3 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules 2533 inspectors. The record shows that in Witnesses explained that the winter, of those committees. The benefit of recent years, the Federal-State summer/fall, fresh and processed pear adding a non-industry, consumer Inspection Service has developed industries are closely inter-related. perspective to committee deliberations effective, less costly alternatives to the Growing, harvesting, packing, and decision-making could prove very end-line inspection program. One processing and marketing activities of beneficial. Witnesses stated that this alternative is the Partners in Quality these industries all impact each other. additional perspective would improve program, a documented quality Thus, bringing all industry segments the committees understanding of the assurance system. Under this program, together under a single marketing consumer in the marketplace and could individual packing houses must program would be beneficial for the enhance committee activities aimed at demonstrate and document their ability Oregon and Washington pear industry. increasing consumer demand for Oregon to pack product that meets all relevant Proponent witnesses stated that the and Washington pears. quality requirements. Effectiveness of combined amendments, if implemented, The addition of a public member to the program is verified through would help to improve the orderly each committee is not expected to result periodic, unannounced audits of each marketing of product within the in any substantial cost increases. While packer’s system by USDA-approved industry. these members would be entitled to auditors. Similarly, coordinated marketing and reimbursement for certain expenses Another program recently developed distribution efforts for fresh varieties allowed for under the order, this is the Customer Assisted Inspection that appear in the marketplace expense is neither different nor any Program (CAIP). Under CAIP, USDA simultaneously would assist in more burdensome than the current inspectors oversee the in-line sampling maximizing grower returns from each reimbursement arrangement for and inspection process performed by variety. While the industries currently committee members. trained company staff. USDA oversight undertake coordinated marketing and Interested persons were invited to ranges from periodic visits throughout promotional activities, witnesses stated present evidence at the hearing on the the day to a continuous on-site that combining these industries would probable regulatory and informational impact of the proposed amendments to presence. Witnesses at the hearing further synchronize activities and the order on small entities. The record testified that the fresh pear industry facilitate industry discussions and evidence is that most of the should be able to utilize any method of decision-making. The amendments would add authority amendments are designed to reduce inspection acceptable to the Federal- to assess summer/fall pear handlers and costs. While some of the proposals State Inspection Service. These undertake promotional activities on could impose some minimal costs, those alternative methods have been their behalf in a manner similar to that costs would be outweighed by the developed by USDA as a means of done currently for winter pears. When benefits expected to accrue to the reducing costs to industry. If this asked if assuming this authority would Oregon and Washington pear industry. amendment were implemented, be acceptable to the summer/fall pear Current information collection individual pear handlers could choose industry, witnesses supported requirements for Part 927 are approved the method of inspection best suited to promotional activities, including paid by OMB under OMB number 0581– their operations, thereby possibly generic advertising, as a way to boost 0089. Any changes in those reducing costs associated with sales and maintain market share. requirements as a result of this inspection. Post-harvest research would also proceeding would be submitted to OMB Additionally, the authority to benefit the pear industries by focusing for approval. Witnesses stated that eliminate inspection requirements could on a section of the pear crop-to-market existing forms could be adequately have handler cost implications. flow that, until now, has not benefited modified to serve the needs of the However, any increase or decrease in from research activities. Improved proposed fresh and processed pear costs could not be determined until storage techniques resulting from committees. While conforming changes specific alternative methods are industry-funded post-harvest research to the forms would need to be made developed to assure compliance with could benefit the pear industry by (such as changing the name of the any quality and size standards in effect. decreasing the loss of product due to committee), the functionality of the The proposal to authorize container storage, or by increasing the storability forms would remain the same. marking requirements is not expected to of product to help prolong the As with all Federal marketing order result in significant cost increases for marketing season. programs, reports and forms are fresh pear handlers. Testimony A significant market-facilitating periodically reviewed to reduce indicated that packing facilities are function carried out by the current information requirements and already configured for labeling and marketing order committees is the duplication by industry and public container marking. Witnesses noted that collection of statistical data. That sector agencies. there would be little, if any, need for function would continue under the USDA has not identified any relevant equipment changes or additions. Thus, amended marketing order and the Federal rules that duplicate, overlap or the proposed change is not expected to authority to collect information would conflict with this proposed rule. These have any adverse financial impact extend to additional varieties that are amendments are designed to enhance related to handling fresh pears. It should currently produced. Flexibility is the administration and functioning of be noted that the proposed amendment provided for including other varieties in the marketing order to the benefit of the would only grant the committees the future. Witnesses emphasized the industry. authority to recommend container importance and value of collecting and Committee meetings regarding these markings; implementation of this disseminating accurate statistical proposals as well as the hearing dates authority could be done through information to enable industry were widely publicized throughout the informal rulemaking in the future. The participants to make economic and Oregon and Washington fresh and amendment itself would therefore not marketing decisions. processed pear industries, and all impose any new regulatory The proposal to establish two interested persons were invited to requirements on Oregon or Washington administrative committees also includes attend the meetings and the hearing and fresh pear handlers. the addition of a public member to each participate in deliberations on all issues. VerDate jul<14>2003 18:35 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4702 E:\FR\FM\13JAP3.SGM 13JAP3 2534 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules All committee meetings (both of the General Findings Recommended Further Amendment of Winter Pear Committee and the The findings hereinafter set forth are the Marketing Agreement and Order Northwest Bartlett Pear Committee) and supplementary to the findings and For the reasons set out in the the hearing were public forums and all determinations which were previously preamble, 7 CFR part 927 is proposed to entities, both large and small, were able made in connection with the issuance of be amended as follows: to express views on these issues. the marketing agreement and order; and Finally, interested persons are invited to all said previous findings and PART 927—PEARS GROWN IN submit information on the regulatory determinations are hereby ratified and OREGON AND WASHINGTON and informational impacts of this action affirmed, except insofar as such findings on small businesses. and determinations may be in conflict 1. The authority citation for 7 CFR A 30-day comment period is provided with the findings and determinations set part 927 continues to read as follows: to allow interested persons to respond forth herein. Authority: 7 U.S.C. 601–674. to this proposal. Thirty days is deemed (1) The marketing agreement and 2. Revise the heading of part 927 to appropriate so that this rulemaking may order, as amended, and as hereby read as set forth above. be completed prior to the beginning of proposed to be further amended, and all 3. Revise § 927.1 to read as follows: the 2005 crop year, beginning July 1, of the terms and conditions thereof, 2005. All written exceptions timely would tend to effectuate the declared § 927.1 Secretary. received will be considered and a policy of the Act; Secretary means the Secretary of grower referendum will be conducted (2) The marketing agreement and Agriculture of the United States, or any before these proposals are implemented. order, as amended, and as hereby officer or employee of the Department of proposed to be further amended, Civil Justice Reform Agriculture who has been delegated, or regulate the handling of pears grown in to whom authority may hereafter be The amendments to Marketing the production area in the same manner delegated, the authority to act for the Agreement and Order 927 proposed as, and are applicable only to, persons Secretary. herein have been reviewed under in the respective classes of commercial Executive Order 12988, Civil Justice and industrial activity specified in the 4. Revise § 927.3 to read as follows: Reform. They are not intended to have marketing agreement and order upon retroactive effect. If adopted, the § 927.3 Person. which a hearing has been held; Person means an individual proposed amendments would not (3) The marketing agreement and partnership, corporation, association, preempt any State or local laws, order, as amended, and as hereby legal representative, or any other regulations, or policies, unless they proposed to be further amended, are business unit. present an irreconcilable conflict with limited in their application to the this proposal. smallest regional production area which 5. Revise § 927.4 to read as follows: The Act provides that administrative is practicable, consistent with carrying § 927.4 Pears. proceedings must be exhausted before out the declared policy of the Act, and parties may file suit in court. Under (a) Pears means and includes any and the issuance of several orders applicable all varieties or subvarieties of pears with section 608c(15)(A) of the Act, any to subdivisions of the production area handler subject to an order may file the genus Pyrus that are produced in the would not effectively carry out the production area and are classified as: with USDA a petition stating that the declared policy of the Act; order, any provision of the order, or any (4) The marketing agreement and (1) Summer/fall pears including obligation imposed in connection with order, as amended, and as hereby Bartlett and Starkrimson pears; the order is not in accordance with law proposed to be further amended, (2) Winter pears including Beurre D, and request a modification of the order prescribe, insofar as practicable, such Anjou, Beurre Bosc, Doyenne du or to be exempted therefrom. A handler different terms applicable to different Comice, Concorde, Forelle, Winter is afforded the opportunity for a hearing parts of the production area as are Nelis, Packham, Seckel, and Taylor’s on the petition. After the hearing, USDA necessary to give due recognition to the Gold pears; and would rule on the petition. The Act differences in the production and (3) Other pears including any or all provides that the district court of the marketing of pears grown in the other varieties or subvarieties of pears United States in any district in which production area; and not classified as summer/fall or winter the handler is an inhabitant, or has his (5) All handling of pears grown in the pears. or her principal place of business, has production area as defined in the (b) The Fresh Pear Committee and/or jurisdiction to review USDA’s ruling on marketing agreement and order, is in the the Processed Pear Committee, with the the petition, provided an action is filed current of interstate or foreign approval of the Secretary, may recognize not later than 20 days after the date of commerce or directly burdens, new or delete obsolete varieties or the entry of the ruling. obstructs, or affects such commerce. subvarieties for each category. A 30-day comment period is provided 6. Revise § 927.5 to read as follows: Rulings on Briefs of Interested Persons to allow interested persons to respond § 927.5 Size. Briefs, proposed findings and to this proposal. Thirty days is deemed conclusions, and the evidence in the appropriate so that this rulemaking may Size means the number of pears record were considered in making the be completed prior to the 2005–2006 which can be packed in a 44-pound net findings and conclusions set forth in season. All written exceptions timely weight standard box or container this recommended decision. To the received will be considered and a equivalent, or as ‘‘size’’ means the extent that the suggested findings and grower referendum will be conducted greatest transverse diameter of the pear conclusions filed by interested persons before these proposals are implemented. taken at right angles to a line running are inconsistent with thefindings and from the stem to the blossom end, or conclusions of this recommended List of Subjects in 7 CFR Part 927 such other specifications more decision, the requests to make such Marketing agreements, Winter pears, specifically defined in a regulation findings or to reach such conclusions Reporting and recordkeeping issued under this part. are denied. requirements. 7. Revise § 927.6 to read as follows: VerDate jul<14>2003 18:35 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4702 E:\FR\FM\13JAP3.SGM 13JAP3 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules 2535 § 927.6 Grower. (4) Yakima District shall include all of member and one handler member, Grower is synonymous with producer the State of Washington, not included in except that the Mid-Columbia District and means any person engaged in the the Wenatchee District or in the Mid- and the Wenatchee District shall be production of pears, either as owner or Columbia District. represented by two grower members and as tenant. (b) For the purpose of committee two handler members. 8. Revise § 927.7 to read as follows: representation, administration and (b) A Processed Pear Committee application of provisions of this subpart consisting of 10 members is established § 927.7 Handler. as applicable to pears for processing, to administer order provisions relating Handler is synonymous with shipper districts shall be defined as follows: to the handling of pears for processing. and means any person (except a (1) The State of Washington. Three members of the Processed Pear common or contract carrier transporting (2) The State of Oregon. Committee shall be growers, three pears owned by another person) who, as (c) The Secretary, upon members shall be handlers, three owner, agent, broker, or otherwise, ships recommendation of the Fresh Pear members shall be processors, and one or handles pears, or causes pears to be Committee or the Processed Pear member shall represent the public. For shipped or handled by rail, truck, boat, Committee, may reestablish districts each member there shall be two or any other means whatsoever. within the production area. alternates, designated as the ‘‘first 9. Revise § 927.8 to read as follows: 12. Revise § 927.13 to read as follows: alternate’’ and the ‘‘second alternate’’, § 927.8 Ship or handle. § 927.13 Subvariety. respectively. District 1, the State of Ship or handle means to sell, deliver, Subvariety means and includes any Washington, shall be represented by two consign, transport or ship pears within mutation, sport, or other derivation of grower members, two handler members the production area or between the any of the varieties covered in § 927.4 and two processor members. District 2, production area and any point outside which is recognized by the Fresh Pear the State of Oregon, shall be represented thereof, including receiving pears for Committee or the Processed Pear by one grower member, one handler processing: Provided, That the term Committee and approved by the member and one processor member. (c) The Secretary, upon ‘‘handle’’ shall not include the Secretary. Recognition of a subvariety recommendation of the Fresh Pear transportation of pear shipments within shall include classification within a Committee or the Processed Pear the production area from the orchard varietal group for the purposes of votes Committee may reapportion members where grown to a packing facility conducted under § 927.52. located within the production area for 13. Add a new § 927.14 to read as among districts, may change the number preparation for market or delivery for follows: of members and alternates, and may processing. change the composition by changing the 10. Revise § 927.9 to read as follows: § 927.14 Processor. ratio of members, including their Processor means any person who as alternates. In recommending any such § 927.9 Fiscal period. owner, agent, broker, or otherwise, changes, the following shall be Fiscal period means the period commercially processes pears in the considered: beginning July 1 of any year and ending production area. (1) Shifts in pear acreage within June 30 of the following year or such 14. Add a new § 927.15 to read as districts and within the production area may be approved by the Secretary follows: during recent years; pursuant to a joint recommendation by (2) The importance of new pear the Fresh Pear Committee and the § 927.15 Process. production in its relation to existing Processed Pear Committee. Process means to can, concentrate, districts; 11. Revise § 927.11 to read as follows: freeze, dehydrate, press or puree pears, (3) The equitable relationship or in any other way convert pears between membership and districts; § 927.11 District. commercially into a processed product. (4) Economies to result for growers in District means the applicable one of 15. Revise the undesignated center promoting efficient administration due the following—described subdivisions heading preceding § 927.20 to read as to redistricting or reapportionment of of the production area covered by the follows: members within districts; and provisions of this subpart: (5) Other relevant factors. (a) For the purpose of committee Administrative Bodies 17. Revise § 927.21 to read as follows: representation, administration and 16. Revise § 927.20 to read as follows: application of provisions of this subpart § 927.21 Nomination and selection of as applicable to pears for the fresh § 927.20 Establishment and membership. members and their respective alternates. market, districts shall be defined as There are hereby established two Grower members and their respective follows: committees to administer the terms and alternates for each district shall be (1) Medford District shall include all provisions of this subpart as specifically selected by the Secretary from nominees the counties in the State of Oregon provided in §§ 927.20 through 927.35: elected by the growers in such district. except for Hood River and Wasco (a) A Fresh Pear Committee, Handler members and their respective counties. consisting of 13 individual persons as alternates for each district shall be (2) Mid-Columbia District shall its members is established to administer selected by the Secretary from nominees include Hood River and Wasco counties order provisions relating to the handling elected by the handlers in such district. in the State of Oregon, and the counties of pears for the fresh market. Six Processor members and their respective of Skamania and Klickitat in the State members of the Fresh Pear Committee alternates shall be selected by the of Washington. shall be growers, six members shall be Secretary from nominees elected by the (3) Wenatchee District shall include handlers, and one member shall processors. Public members for each the counties of King, Chelan, Okanogan, represent the public. For each member committee shall be nominated by the Douglas, Grant, Lincoln, and Spokane in there shall be two alternates, designated Fresh Pear Committee and the Processed the State of Washington, and all other as the ‘‘first alternate’’ and the ‘‘second Pear Committee, each independently, counties in Washington lying north alternate,’’ respectively. Each district and selected by the Secretary. The Fresh thereof. shall be represented by one grower Pear Committee and the Processed Pear VerDate jul<14>2003 18:35 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4702 E:\FR\FM\13JAP3.SGM 13JAP3 2536 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules Committee may, each independently, which he or she is nominated and § 927.29 Vacancies. prescribe such additional qualifications, selected. Each processor member and To fill any vacancy occasioned by the administrative rules and procedures for each of their alternates shall be a failure of any person selected as a selection for each candidate as it deems processor, or an officer or employee of member or as an alternate for a member necessary and as the Secretary approves. a processor, who processes pears in the of the Fresh Pear Committee or the 18. Revise § 927.22 to read as follows: production area. Processed Pear Committee to qualify, or in the event of death, removal, § 927.22 Meetings for election of 21. Revise § 927.26 to read as follows: nominees. resignation, or disqualification of any § 927.26 Qualifications. qualified member or qualified alternate (a) Nominations for members of the Any person prior to or within 15 days for a member, a successor for his or her Fresh Pear Committee and their after selection as a member or as an unexpired term shall be nominated and alternates shall be made at meetings of alternate for a member of the Fresh Pear selected in the manner set forth in growers and handlers held in each of Committee or the Processed Pear §§ 927.20 to 927.35. If nominations to the districts designated in § 927.11 at Committee shall qualify by filing with fill any such vacancy are not made such times and places designated by the the Secretary a written acceptance of the within 20 days after such vacancy Fresh Pear Committee. person’s willingness to serve. occurs, the Secretary may fill such (b) Nominations for grower and 22. Revise § 927.27 to read as follows: vacancy without regard to nominations. handler members of the Processed Pear 25. Revise § 927.30 to read as follows: Committee and their alternates shall be § 927.27 Term of office. made at meetings of growers and The term of office of each member § 927.30 Compensation and expenses. handlers held in each of the districts and alternate member of the Fresh Pear The members and alternates for designated in § 927.11 at such times and Committee and the Processed Pear members shall serve without places designated by the Processed Pear Committee shall be for two years compensation, but may be reimbursed Committee. Nominations for processor beginning July 1 and ending June 30: for expenses necessarily incurred by members of the Processed Pear Provided, That the terms of office of them in the performance of their Committee and their alternates shall be one-half the initial members and respective duties. made at a meeting of processors at such alternates shall end June 30, 2006; and 26. Revise § 927.31 to read as follows: time and place designated by the that beginning with the 2005–2006 § 927.31 Powers. Processed Pear Committee. fiscal period, no member shall serve The Fresh Pear Committee and the 19. Revise § 927.23 to read as follows: more than three consecutive two-year Processed Pear Committee shall have terms unless specifically exempted by § 927.23 Voting. the following powers to exercise each the Secretary. Members and alternate Only growers in attendance at independently: members shall serve in such capacities meetings for election of nominees shall (a) To administer, as specifically for the portion of the term of office for participate in the nomination of grower provided in §§ 927.20 to 927.35, the which they are selected and have members and their alternates, and only terms and provisions of this subpart: qualified and until their respective handlers in attendance at meetings for (b) To make administrative rules and successors are selected and have election of nominees shall participate in regulations in accordance with, and to qualified. The terms of office of the nomination of handler members and effectuate, the terms and provisions of successor members and alternates shall their alternates, and only processors in this subpart; and be so determined that one-half of the attendance for election of nominees (c) To receive, investigate, and report total committee membership ends each shall participate in the nomination of to the Secretary complaints of violations June 30. processor members and their alternates. of the provisions of this subpart. A grower may participate only in the 23. Revise § 927.28 to read as follows: 27. Revise § 927.32 to read as follows: election held in the district in which he § 927.28 Alternates for members. or she produces pears, and a handler § 927.32 Duties. may participate only in the election The first alternate for a member shall The duties of the Fresh Pear held in the district in which he or she act in the place and stead of the member Committee and the Processed Pear handles pears. Each person may vote as for whom he or she is an alternate Committee, each independently, shall a grower, handler or processor, but not during such member’s absence. In the be as follows: a combination thereof. Each grower, event of the death, removal, resignation, (a) To act as intermediary between the handler and processor shall be entitled or disqualification of a member, his or Secretary and any grower, handler or to cast one vote, on behalf of himself, her first alternate shall act as a member processor; his agents, partners, affiliates, until a successor for the member is (b) To keep minutes, books, and subsidiaries, and representatives, for selected and has qualified. The second records which will reflect clearly all of each nominee to be elected. alternate for a member shall serve in the the acts and transactions. The minutes, 20. Revise § 927.24 to read as follows: place and stead of the member for books, and records shall be subject at whom he or she is an alternate any time to examination by the § 927.24 Eligibility for membership. whenever both the member and his or Secretary or by such person as may be Each grower member and each of his her first alternate are unable to serve. In designated by the Secretary; or her alternates shall be a grower, or an the event that a member of the Fresh (c) To investigate, from time to time, officer or employee of a corporate or Pear Committee or the Processed Pear and to assemble data on the growing, LLC grower, who grows pears in the Committee and both that member’s harvesting, shipping, and marketing district in which and for which he or alternates are unable to attend a conditions relative to pears, and to she is nominated and selected. Each meeting, the member may designate any furnish to the Secretary such available handler member and each of his or her other alternate member from the same information as may be requested; alternates shall be a handler, or an group (handler, processor, or grower) to (d) To perform such duties as may be officer or employee of a handler, serve in that member’s place and stead. assigned to it from time to time by the handling pears in the district in and for 24. Revise § 927.29 to read as follows: Secretary in connection with the VerDate jul<14>2003 18:35 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4702 E:\FR\FM\13JAP3.SGM 13JAP3 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules 2537 administration of section 32 of the Act § 927.34 Right of the Secretary. Secretary finds are reasonable and likely to amend the Agricultural Adjustment The members and alternates for to be incurred by the Fresh Pear Act, and for other purposes, Public Act members and any agent or employee Committee or the Processed Pear No. 320, 74th Congress, approved appointed or employed by the Fresh Committee during a fiscal period. The August 24, 1935 (49 Stat. 774), as Pear Committee or the Processed Pear payment of assessments for the amended; Committee shall be subject to removal maintenance and functioning of the (e) To cause the books to be audited or suspension by the Secretary at any Fresh Pear Committee or the Processed by one or more competent accountants time. Each and every regulation, Pear Committee may be required under at the end of each fiscal year and at such decision, determination, or other act this part throughout the period such other times as the Fresh Pear Committee shall be subject to the continuing right assessments are payable irrespective of or the Processed Pear Committee may of the Secretary to disapprove of the whether particular provisions thereof deem necessary or as the Secretary may same at any time, and, upon such are suspended or become inoperative. (b)(1) Based upon a recommendation request, and to file with the Secretary disapproval, shall be deemed null and of the Fresh Pear Committee or other copies of any and all audit reports void, except as to acts done in reliance available data, the Secretary shall fix made; thereon or in compliance therewith prior to such disapproval by the three base rates of assessment for pears (f) To appoint such employees agents, Secretary. that handlers shall pay on pears and representatives as it may deem 30. Revise § 927.35 to read as follows: handled for the fresh market during necessary, and to determine the each fiscal period. Such base rates shall compensation and define the duties of § 927.35 Funds and other property. include one rate of assessment for any each; (a) All funds received pursuant to any or all varieties or subvarieties of pears (g) To give the Secretary, or the of the provisions of this subpart shall be classified as summer/fall; one rate of designated agent of the Secretary, the used solely for the purposes specified in assessment for any or all varieties or same notice of meetings as is given to this subpart, and the Secretary may subvarieties of pears, classified as the members of the Fresh Pear require the Fresh Pear Committee or the winter; and one rate of assessment for Committee or the Processed Pear Processed Pear Committee and its any or all varieties or subvarieties of Committee; members to account for all receipts and pears classified as other. Upon (h) To select a chairman of the Fresh disbursements. recommendation of the Fresh Pear Pear Committee or the Processed Pear (b) Upon the death, resignation, Committee or other available data, the Committee and, from time to time, such removal, disqualification, or expiration Secretary may also fix supplemental other officers as it may deem advisable of the term of office of any member or rates of assessment on individual varieties or subvarieties categorized and to define the duties of each; and employee, all books, records, funds, and other property in his or her possession within the above-defined assessment (i) To submit to the Secretary as soon belonging to the Fresh Pear Committee classifications to secure sufficient funds as practicable after the beginning of or the Processed Pear Committee shall to provide for projects authorized under each fiscal period, a budget for such be delivered to his or her successor in § 927.47. At any time during the fiscal fiscal year, including a report in office or to the Fresh Pear Committee or period when it is determined on the explanation of the items appearing Processed Pear Committee, and such basis of a Fresh Pear Committee therein and a recommendation as to the assignments and other instruments shall recommendation or other information rate of assessment for such period. be executed as may be necessary to vest that different rates are necessary for 28. Revise § 927.33 to read as follows: in such successor or in the Fresh Pear fresh pears or for any varieties or subvarieties, the Secretary may modify § 927.33 Procedure. Committee or Processed Pear Committee full title to all the books, records, funds, those rates of assessment and such new (a) Quorum and voting. A quorum at and other property in the possession or rate shall apply to any or all varieties or a meeting of the Fresh Pear Committee under the control of such member or subvarieties that are shipped during the or the Processed Pear Committee shall employee pursuant to this subpart. fiscal period for fresh market. consist of 75 percent of the number of (2) Based upon a recommendation of committee members, or alternates then § 927.36 [Removed] the Processed Pear Committee or other serving in the place of any members, 31. Remove § 927.36, Public advisors. available data, the Secretary shall fix respectively. Except as otherwise 32. Revise § 927.40 to read as follows: three base rates of assessment for pears provided in § 927.52, all decisions of the that handlers shall pay on pears § 927.40 Expenses. Fresh Pear Committee or the Processed handled for processing during each Pear Committee at any meeting shall The Fresh Pear Committee and the fiscal period. Such base rates shall require the concurring vote of at least 75 Processed Pear Committee are include one rate of assessment for any percent of those members present, authorized, each independently, to or all varieties or subvarieties of pears including alternates then serving in the incur such expenses as the Secretary classified as summer/fall; one rate of place of any members. finds may be necessary to carry out their assessment for any or all varieties or functions under this subpart. The funds subvarieties of pears, classified as (b) Mail voting. The Fresh Pear to cover such expenses shall be acquired winter; and one rate of assessment for Committee or the Processed Pear by the levying of assessments as any or all varieties or subvarieties of Committee may provide for members provided in § 927.41. pears classified as other. Upon voting by mail, telecopier or other 33. Revise § 927.41 to read as follows: recommendation of the Processed Pear electronic means, telephone, or Committee or other available data, the telegraph, upon due notice to all § 927.41 Assessments. Secretary may also fix supplemental members. Promptly after voting by (a) Assessments will be levied only rates of assessment on individual telephone or telegraph, each member upon handlers who first handle pears. varieties or subvarieties categorized thus voting shall confirm in writing, the Each handler shall pay assessments on within the above-defined assessment vote so cast. all pears handled by such handler as the classifications to secure sufficient funds 29. Revise § 927.34 to read as follows: pro rata share of the expenses which the to provide for projects authorized under VerDate jul<14>2003 18:35 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4702 E:\FR\FM\13JAP3.SGM 13JAP3 2538 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules § 927.47. At any time during the fiscal expense authorized under this part and projects may provide for any form of period when it is determined on the to cover necessary expenses of marketing promotion, including paid basis of a Processed Pear Committee liquidation in the event of termination advertising. The expense of such recommendation or other information of this part. Any such excess not projects shall be paid from funds that different rates are necessary for retained in a reserve or applied to any collected pursuant to §§ 927.41 and pears for processing or for any varieties outstanding obligation of the person 927.45. Expenditures for a particular or subvarieties, the Secretary may from whom it was collected shall be variety or subvariety of pears shall modify those rates of assessment and refunded proportionately to the persons approximate the amount of assessments such new rate shall apply to any or all from whom it was collected. Upon and voluntary contributions collected varieties or subvarieties of pears that are termination of this part, any funds not for that variety or subvariety of pears. shipped during the fiscal period for required to defray the necessary 39. Revise § 927.50 to read as follows: processing. expenses of liquidation shall be (c) Based on the recommendation of disposed of in such manner as the § 927.50 Marketing policy. the Fresh Pear Committee, the Processed Secretary may determine to be (a) It shall be the duty of the Fresh Pear Committee or other available data, appropriate: Provided, That to the extent Pear Committee to investigate, from the Secretary may establish additional practical, such funds shall be returned time to time, supply and demand base rates of assessments, or change or pro rata to the persons from whom such conditions relative to pears and each modify the base rate classifications funds were collected. grade, size, and quality of each variety defined in paragraphs (a) and (b) of this (b) All funds received pursuant to the or subvariety thereof. Such section. provisions of this part shall be used investigations shall be with respect to (d) The Fresh Pear Committee or the solely for the purpose specified in this the following: Processed Pear Committee may impose part and shall be accounted for in the (1) Estimated production of each a late payment charge on any handler manner provided in this part. The variety or subvariety of pears and of who fails to pay any assessment within Secretary may at any time require the each grade, size, and quality thereof; the time prescribed. In the event the Fresh Pear Committee or the Processed (2) Prospective supplies and prices of handler thereafter fails to pay the Pear Committee and its members to pears and other fruits, both in fresh and amount outstanding, including the late account for all receipts and processed form, which are competitive payment charge, within the prescribed disbursements. to the marketing of pears; time, the Fresh Pear Committee or the 35. Revise § 927.43 to read as follows: (3) Prospective exports of pears and Processed Pear Committee may impose imports of pears from other producing an additional charge in the form of § 927.43 Use of funds. areas; interest on such outstanding amount. From the funds acquired pursuant to (4) Probable harvesting period for The Fresh Pear Committee or the § 927.41 the Fresh Pear Committee and each variety or subvariety of pears; Processed Pear Committee, with the the Processed Pear Committee, each (5) The trend and level of consumer approval of the Secretary, shall independently, shall pay the salaries of income; prescribe the amount of such late its employees, if any, and pay the (6) General economic conditions; and payment charge and rate of interest. expenses necessarily incurred in the (7) Other relevant factors. (e) In order to provide funds to carry performance of the duties of the Fresh (b) On or before August 1 of each year, out the functions of the Fresh Pear Pear Committee or the Processed Pear the Fresh Pear Committee shall Committee or the Processed Pear Committee. recommend regulations to the Secretary Committee prior to commencement of if it finds, on the basis of the foregoing shipments in any season, handlers may § 927.44 [Removed] investigations, that such regulation as is make advance payments of assessments, 36. Remove § 927.44, Collection of provided in § 927.51 will tend to which advance payments shall be unpaid assessments. effectuate the declared policy of the act. credited to such handlers and the 37. Revise § 927.45 to read as follows: (c) In the event the Fresh Pear assessments of such handlers shall be Committee at any time finds that by adjusted so that such assessments are § 927.45 Contributions. reason of changed conditions, any based upon the quantity of each variety The Fresh Pear Committee or the regulation issued pursuant to § 927.51 or subvariety of pears handled by such Processed Pear Committee may accept should be modified, suspended, or handlers during such season. Further, voluntary contributions but these shall terminated, it shall so recommend to the payment discounts may be authorized only be used to pay expenses incurred Secretary. by the Fresh Pear Committee or the pursuant to § 927.47. Furthermore, such 40. Revise § 927.51 to read as follows: Processed Pear Committee upon the contributions shall be free from any approval of the Secretary to handlers encumbrances by the donor and the § 927.51 Issuance of regulations; and Fresh Pear Committee or the Processed modification, suspension, or termination making such advance assessment thereof. payments. Pear Committee shall retain complete 34. Revise § 927.42 to read as follows: control of their use. (a) Whenever the Secretary finds, 38. Revise § 927.47 to read as follows: from the recommendations and § 927.42 Accounting. information submitted by the Fresh Pear (a) If, at the end of a fiscal period, the § 927.47 Research and development. Committee, or from other available assessments collected are in excess of The Fresh Pear Committee or the information, that regulation, in the expenses incurred, the Fresh Pear Processed Pear Committee, with the manner specified in this section, of the Committee or the Processed Pear approval of the Secretary, may establish shipment of fresh pears would tend to Committee may carryover such excess or provide for the establishment of effectuate the declared policy of the act, into subsequent fiscal periods as a production and post-harvest research, or he or she shall so limit the shipment of reserve: Provided, That funds already in marketing research and development such pears during a specified period or the reserve do not exceed approximately projects designed to assist, improve, or periods. Such regulation may: one fiscal period’s expenses. Such promote the marketing, distribution, (1) Limit the total quantity of any reserve may be used to cover any and consumption of pears. Such grade, size, quality, or combinations VerDate jul<14>2003 18:35 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4702 E:\FR\FM\13JAP3.SGM 13JAP3 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules 2539 thereof, of any variety or subvariety of members in accordance with the prescribe rules and regulations pears grown in any district and may following: Each member shall have one modifying or eliminating the prescribe different requirements vote as an individual and, in addition, requirement for mandatory inspection applicable to shipments to different shall have a vote equal to the percentage and certification of shipments: export markets; of the vote of the district represented by Provided, That an adequate method of (2) Limit, during any period or such member; and such district vote ensuring compliance with quality and periods, the shipment of any particular shall be computed as soon as practical size requirements is developed. grade, size, quality, or any combination after the beginning of each fiscal period 44. Revise § 927.65 to read as follows: thereof, of any variety or subvariety, of on either: pears grown in any district or districts (1) The basis of one vote for each § 927.65 Exemption from regulation. of the production area; and 25,000 boxes (except 2,500 boxes for (a) Nothing contained in this subpart (3) Provide a method, through rules varieties or subvarieties with less than shall limit or authorize the limitation of and regulation issued pursuant to this 200,000 standard boxes or container shipment of pears for consumption by part, for fixing markings on the equivalents) of the average quantity of charitable institutions or distribution by container or containers, which may be such variety or subvariety produced in relief agencies, nor shall any assessment used in the packaging or handling of the particular district and shipped be computed on pears so shipped. The pears, including appropriate logo or therefrom during the immediately Fresh Pear Committee or the Processed other container markings to identify the preceding three fiscal periods; or Pear Committee may prescribe contents thereof. (2) Such other basis as the Fresh Pear regulations to prevent pears shipped for (b) Whenever the Secretary finds, Committee or the Processed Pear either of such purposes from entering from the recommendations and Committee may recommend and the commercial channels of trade contrary information submitted by the Fresh Pear Secretary may approve. The votes so to the provisions of this subpart. Committee, or from other available allotted to a member may be cast by (b) The Fresh Pear Committee or the information, that a regulation should be such member on each recommendation Processed Pear Committee may modified, suspended, or terminated relative to the variety or subvariety of prescribe rules and regulations, to with respect to any or all shipments of pears on which such votes were become effective upon the approval of fresh pears grown in any district in computed. the Secretary, whereby quantities of order to effectuate the declared policy of 42. Revise § 927.53 to read as follows: pears or types of pear shipments may be the act, he or she shall so modify, exempted from any or all provisions of suspend, or terminate such regulation. If § 927.53 Notification. this subpart. the Secretary finds, from the (a) The Fresh Pear Committee shall 45. Revise § 927.70 to read as follows: recommendations and information give prompt notice to growers and § 927.70 Reports. submitted by the Fresh Pear Committee, handlers of each recommendation to the or from other available information, that Secretary pursuant to the provisions of (a) Upon the request of the Fresh Pear a regulation obstructs or does not tend § 927.50. Committee or the Processed Pear to effectuate the declared policy of the (b) The Secretary shall immediately Committee, and subject to the approval act, he or she shall suspend or terminate notify the Fresh Pear Committee of the of the Secretary, each handler shall such regulation. On the same basis and issuance of each regulation and of each furnish to the aforesaid committee, in like manner, the Secretary may modification, suspension, or respectively, in such manner and at terminate any such modification or termination of a regulation and the such times as it prescribes, such suspension. Fresh Pear Committee shall give prompt information as will enable it to perform 41. Revise § 927.52 to read as follows: notice thereof to growers and handlers. its duties under this subpart. (b) All such reports shall be held § 927.52 Prerequisites to § 927.54 [Removed] under appropriate protective recommendations. 42–a. Remove § 927.54, Exemption classification and custody by the Fresh (a) Decisions of the Fresh Pear Certificate. Pear Committee or the Processed Pear Committee or the Processed Pear 43. Amend § 927.60 by revising Committee, or duly appointed Committee with respect to any paragraph (a) and adding a new employees thereof, so that the recommendations to the Secretary paragraph (c) to read as follows: information contained therein which pursuant to the establishment or § 927.60 Inspection and certification. may adversely affect the competitive modification of a supplemental rate of position of any handler in relation to assessment for an individual variety or (a) Handlers shall ship only fresh other handlers will not be disclosed. subvariety of pears shall be made by pears inspected by the Federal-State Compilations of general reports from affirmative vote of not less than 75 Inspection Service or under a program data submitted by handlers are percent of the applicable total number developed by the Federal-State authorized subject to the prohibition of of votes, computed in the manner Inspection Service: except, that such disclosure of individual handlers hereinafter described in this section, of inspection and certification of identities or operations. all members. Decisions of the Fresh Pear shipments of pears may be performed by (c) Each handler shall maintain for at Committee pursuant to the provisions of such other inspection service as the least two succeeding years such records § 927.50 shall be made by an affirmative Fresh Pear Committee, with the of the pears received and of pears vote of not less than 80 percent of the approval of the Secretary, may disposed of, by such handler as may be applicable total number of votes, designate. Promptly after shipment of necessary to verify reports pursuant to computed in the manner hereinafter any pears, the handler shall submit, or this section. prescribed in this section, of all cause to be submitted, to the Fresh Pear 46. Revise § 927.75 to read as follows: members. Committee a copy of the inspection (b) With respect to a particular variety certificate issued on such shipment. § 927.75 Liability. or subvariety of pears, the applicable * * * * * No member or alternate for a member total number of votes shall be the (c) The Fresh Pear Committee may, of the Fresh Pear Committee or the aggregate of the votes allotted to the with the approval of the Secretary, Processed Pear Committee, nor any VerDate jul<14>2003 18:35 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4702 E:\FR\FM\13JAP3.SGM 13JAP3 2540 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Proposed Rules employee or agent thereof, shall be held Provided, That such majority has during all funds and property on hand, together personally responsible, either such period produced more than 50 with all books and records of the Fresh individually or jointly with others, in percent of the volume of fresh pears for Pear Committee or the Processed Pear any way whatsoever, to any party under market or pears for processing, Committee and of the joint trustees, to this subpart or to any other person for respectively, in the production area. such person as the Secretary shall errors in judgment, mistakes, or other Such termination shall be effective only direct; and, upon the request of the acts, either of commission or omission, if announced on or before the last day Secretary, execute such assignments or as such member, alternate for a member, of the then current fiscal period. other instruments necessary and agent or employee, except for acts of (d) The Secretary shall conduct a appropriate to vest in such person full dishonesty, willful misconduct, or gross referendum within every six-year period title and right to all of the funds, negligence. beginning on the date this section property, or claims vested in the Fresh 47. Revise § 927.76 to read as follows: becomes effective, to ascertain whether Pear Committee or the Processed Pear continuance of the provisions of this § 927.76 Agents. Committee or in said joint trustees. subpart applicable to fresh pears for The Secretary may name, by (c) Any funds collected pursuant to market or pears for processing are this subpart and held by such joint designation in writing, any person, favored by producers of pears for the including any officer or employee of the trustees or such person over and above fresh market and pears for processing, the amounts necessary to meet Government or any bureau or division respectively. The Secretary may in the Department of Agriculture to act outstanding obligations and the terminate the provisions of this subpart expenses necessarily incurred by the as his or her agent or representative in at the end of any fiscal period in which connection with any of the provisions of joint trustees or such other person in the the Secretary has found that performance of their duties under this this subpart. continuance of this subpart is not 48. Revise § 927.77 to read as follows: subpart, as soon as practicable after the favored by producers who, during a termination hereof, shall be returned to § 927.77 Effective time. representative period determined by the the handlers pro rata in proportion to The provisions of this subpart and of Secretary, have been engaged in the their contributions thereto. any amendment thereto shall become production of fresh pears for market or (d) Any person to whom funds, effective at such time as the Secretary pears for processing in the production property, or claims have been may declare, and shall continue in force area: Provided, That termination of the transferred or delivered by the Fresh until terminated in one of the ways order shall be effective only if Pear Committee or the Processed Pear specified in § 927.78. announced on or before the last day of 49. Amend § 927.78 by revising the then current fiscal period. Committee or its members, upon direction of the Secretary, as provided paragraphs (b), (c), and (d) to read as * * * * * follows: 50. Revise § 927.79 to read as follows: in this section, shall be subject to the same obligations and duties with § 927.78 Termination. § 927.79 Proceedings after termination. respect to said funds, property, or * * * * * (a) Upon the termination of this claims as are imposed upon the (b) The Secretary shall terminate or subpart, the members of the Fresh Pear members or upon said joint trustees. suspend the operation of any or all of Committee or the Processed Pear 51. Revise § 927.80 to read as follows: the provisions of this subpart whenever Committee then functioning shall he or she finds that such operation continue as joint trustees for the § 927.80 Amendments. obstructs or does not tend to effectuate purpose of liquidating all funds and Amendments to this subpart may be the declared policy of the act. property then in the possession or under proposed from time to time by the Fresh (c) The Secretary shall terminate the the control of the Fresh Pear Committee Pear Committee or the Processed Pear provisions of this subpart applicable to or the Processed Pear Committee, Committee or by the Secretary. fresh pears for market or pears for including claims for any funds unpaid processing at the end of any fiscal or property not delivered at the time of Dated: January 5, 2005. period whenever the Secretary finds, by such termination. Kenneth C. Clayton, referendum or otherwise, that such (b) The joint trustees shall continue in Associate Administrator, Agricultural termination is favored by a majority of such capacity until discharged by the Marketing Service. growers of fresh pears for market or Secretary; from time to time account for [FR Doc. 05–579 Filed 1–12–05; 8:45 am] pears for processing, respectively: all receipts and disbursements; deliver BILLING CODE 3410–02–P VerDate jul<14>2003 18:35 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00022 Fmt 4701 Sfmt 4702 E:\FR\FM\13JAP3.SGM 13JAP3 Thursday, January 13, 2005 Part IV Department of Homeland Security Transportation Security Administration 49 CFR Part 1572 Hazmat Fee Rule: Fees for Security Threat Assessments for Hazmat Drivers; Final Rule VerDate jul<14>2003 18:02 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\13JAR2.SGM 13JAR2 2542 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Rules and Regulations DEPARTMENT OF HOMELAND J. Petersen, Hazmat Program Office, Transportation (DOT), operating under SECURITY TSA–19, Transportation Security the direction of the Under Secretary of Administration Headquarters, 601 South Transportation for Security. As of March Transportation Security Administration 12th Street, Arlington, VA 22202; 1, 2003, pursuant to the Homeland telephone: (571) 227–2215; e-mail Security Act of 2002, TSA became an 49 CFR Part 1572 [email protected]. agency of the Department of Homeland [Docket No. TSA–2004–19605; Amendment For billing questions: Randall Fiertz, Security (DHS), and the functions of the No. 1572–5] Office of Revenue, TSA–14, Under Secretary were ultimately Transportation Security Administration assigned to the Assistant Secretary of RIN 1652–AA33 Headquarters, 601 South 12th Street, Homeland Security for TSA.2 TSA Arlington, VA 22202; telephone: (571) continues to possess the statutory Hazmat Fee Rule: Fees for Security 227–2323; e-mail: [email protected]. authority that ATSA established. ATSA Threat Assessments for Hazmat For legal questions: Dion Casey, granted to the Assistant Secretary Drivers Office of Chief Counsel, TSA–2, responsibility for security in all modes AGENCY: Transportation Security Transportation Security Administration of transportation.3 Administration (TSA), Department of Headquarters, 601 South 12th Street, ATSA authorizes TSA to identify Homeland Security (DHS). Arlington, VA 22202; telephone: (571) individuals who pose a threat to 4 ACTION: Final rule. 227–2663; e-mail: [email protected]. transportation security. This authority SUPPLEMENTARY INFORMATION: includes conducting background checks SUMMARY: In response to recent statutory on individuals in the transportation requirements, the Transportation Abbreviations and Terms Used in This industries. The background checks may Security Administration (TSA) is Document include collecting fingerprints to establishing a fee for security threat ATF—Bureau of Alcohol, Tobacco, determine if an individual has a assessments that TSA is required to Firearms, and Explosives criminal conviction or the use of a name perform on individuals who apply for or AAMVA—Association of American and other identifying characteristics to renew a hazardous materials Motor Vehicle Administrators determine whether an individual has endorsement for a commercial driver’s ATSA—Aviation and Transportation committed international criminal license. TSA also is establishing a fee Security Act offenses or immigration offenses. for collection and transmission of BLS—Bureau of Labor Statistics Based on his functions, duties, and fingerprints and biographical BTS—Bureau of Transportation powers, the Assistant Secretary is information, which is necessary to Statistics situated to determine whether sufficient perform the security threat assessments. CDL—commercial driver’s license cause exists to believe that an TSA intends to use fees collected under CDLIS—Commercial Drivers License individual poses a threat to this rule to pay for the costs of the Information System transportation security. security threat assessments and the CFR—Code of Federal Regulations A. USA PATRIOT Act costs of collection and transmission of CHRC—criminal history records check The Uniting and Strengthening fingerprints and biographical DHS—Department of Homeland America by Providing Appropriate information. Security Tools Required to Intercept and DATES: This rule is effective January 31, DMV—Department of Motor Vehicles DOT—Department of Transportation Obstruct Terrorism (USA PATRIOT) Act 2005. 5 FBI—Federal Bureau of Investigation was enacted on October 25, 2001. ADDRESSES: You may obtain an FMCSA—Federal Motor Carrier Safety Section 1012 of the USA PATRIOT Act electronic copy of this final rule using Administration amended 49 U.S.C. Chapter 51 by the Internet by— HME—hazardous materials adding a new section 5103a titled, (1) Searching the Department of endorsement ‘‘Limitation on issuance of hazmat Transportation’s electronic Docket ICE—Bureau of Immigration and licenses.’’ Management System (DMS) web page Customs Enforcement Section 5103a(a)(1) provides: (http://dms.dot.gov/search); IFR—interim final rule A State may not issue to any individual a (2) Accessing the Government NPRM—notice of proposed rulemaking license to operate a motor vehicle Printing Office’s web page at http:// transporting in commerce a hazardous _ PRA—Paperwork Reduction Act www.access.gpo.gov/su docs/aces/ SEA—Safe Explosives Act material unless the Secretary of aces140.html; or Transportation has first determined, upon TSA—Transportation Security receipt of a notification under subsection (3) Visiting TSA’s Law and Policy Administration web page at http://www.tsa.dot.gov/ (c)(1)(B), that the individual does not pose a I. Background security risk warranting denial of the license. public/index.jsp. Section 5103a(a)(2) subjects license In addition, copies are available by On September 11, 2001, several renewals to the same requirements. writing or calling the individual in the terrorist attacks were perpetrated against Section 5103a(c) requires the Attorney FOR FURTHER INFORMATION CONTACT the United States. Those attacks resulted section. Make sure to identify the docket General, upon the request of a State in in catastrophic human casualties and connection with issuance of a hazardous number of this rulemaking. property damage. In response to those You may also review the public materials endorsement (HME) for a attacks, Congress passed the Aviation commercial driver’s license (CDL), to docket in person in the Docket Office and Transportation Security Act between 9 a.m. and 5 p.m., Monday carry out a background records check of (ATSA), which established the the individual applying for the through Friday, except Federal holidays. Transportation Security Administration The Docket Office is on the plaza level 1 (TSA). TSA was created as an agency 2 of the Department of Transportation. Section 403 of Pub. L. 107–296, November 25, within the Department of 2002, 116 Stat. 2135, codified at 6 U.S.C. 203. FOR FURTHER INFORMATION CONTACT: For 3 49 U.S.C. 114(d). payment eligibility questions, such as 1 Pub. L. 107–71, November 19, 2001, 115 Stat. 4 4 49 U.S.C. 114(f)(2). who is required to pay the fees: George 597. 5 Pub. L. 107–56, October 25, 2001, 115 Stat. 272. VerDate jul<14>2003 18:02 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\13JAR2.SGM 13JAR2 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Rules and Regulations 2543 endorsement and, upon completing the United States Code, by adding several 5, 2003 (May 5 IFR), discussed below, check, to notify the Secretary of categories to the list of persons who may in coordination with the Federal Motor Transportation of the results. The not lawfully ‘‘ship or transport any Carrier Safety Administration (FMCSA) Secretary of Transportation then explosive in or affecting interstate or and Research and Special Programs determines whether the individual foreign commerce’’ or ‘‘receive or Administration (RSPA), agencies within poses a security threat warranting denial possess any explosive which has been the DOT. of the endorsement. The Secretary of shipped or transported in or affecting Transportation delegated the interstate or foreign commerce.’’ Prior to C. The May 5, 2003 Interim Final Rule responsibilities of Section 5103a to the the amendment, 18 U.S.C. 842(i) To comply with the mandates of the Under Secretary of Transportation for prohibited the transportation of USA PATRIOT Act, and to trigger the Security.6 Pursuant to section 403 of the explosives by any person under exception in 18 U.S.C. 845(a)(1) for the Homeland Security Act of 2002, these indictment for or convicted of a felony, transportation of explosives, TSA issued responsibilities transferred to the a fugitive from justice, an unlawful user an interim final rule in coordination Secretary of Homeland Security.7 The or addict of any controlled substance, and any person who had been with FMCSA and RSPA on May 5, Secretary then delegated these 13 responsibilities to the Assistant adjudicated as a mental defective or 2003. The May 5 IFR established Secretary of Homeland Security for committed to a mental institution. The security threat assessment standards for TSA. amendment added three new categories determining whether an individual The background records check must to the list of prohibited persons: aliens poses a security threat warranting denial consist of: (1) A check of the relevant (with certain limited exceptions), of an HME. Under the May 5 IFR, TSA criminal history databases; (2) in the persons dishonorably discharged from determined that an individual poses a case of an alien, a check of the relevant the armed forces, and former U.S. security threat if he or she: (1) Is an databases to determine the status of the citizens who have renounced their alien (unless he or she is a lawful alien under U.S. immigration laws; and citizenship. Individuals who violate 18 permanent resident) or a U.S. citizen (3) as appropriate, a check of the U.S.C. 842(i) are subject to criminal who has renounced his or her U.S. relevant international databases through prosecution.11 These incidents are citizenship; (2) is wanted or under Interpol-U.S. National Central Bureau or investigated by the Bureau of Alcohol, indictment for certain felonies; (3) was other appropriate means.8 As explained Tobacco, Firearms, and Explosives convicted or found not guilty by reason in further detail below, TSA is (ATF) of the Department of Justice and of insanity of any of certain felonies in performing a more comprehensive referred, as appropriate, to the United military or civilian court within the past check than required by Section 5103a, States Attorneys. 7 years or was released from including a review of pertinent However, 18 U.S.C. 845(a)(1) provides incarceration for committing any of the databases to determine whether an an exception to section 842(i) for ‘‘any specified felonies within the past 5 individual poses a security threat. TSA aspect of the transportation of explosive years; (4) has been adjudicated as a has the authority to perform such materials via railroad, water, highway, mental defective or involuntarily comprehensive checks under ATSA.9 or air which are regulated by the United committed to a mental institution; or (5) States Department of Transportation and B. Safe Explosives Act is considered to pose a security threat agencies thereof, and which pertains to based on a review of pertinent Congress enacted the Safe Explosives safety.’’ Under this exception, if DOT databases. Act (SEA) on November 25, 2002.10 regulations address the transportation Sections 1121–1123 of the SEA security issues of persons engaged in a The May 5 IFR also established amended section 842(i) of title 18, particular aspect of the safe conditions under which an individual transportation of explosive materials, who has been determined to be a 6 68 FR 10988 (March 7, 2003). then those persons are not subject to security threat may appeal the 7 Pub. L. 107–296, November 25, 2002. prosecution under 18 U.S.C. 842(i) determination, and the procedures that 8 The National Crime Prevention and Privacy while they are engaged in the TSA follows when considering an Compact (Compact), codified at 42 U.S.C. 14616, transportation of explosives in establishes the Compact Council, which is commerce.12 13 68 FR 23852. The rule was codified at 49 CFR authorized to establish legal criteria governing parts 1570 and 1572. On the same date, FMCSA criminal history record checks for non-criminal This exception was triggered when issued a companion rule prohibiting States from justice purposes. The Compact Council is composed TSA issued an interim final rule on May issuing, renewing, transferring, or upgrading a CDL of 15 members, appointed by the Attorney General. with an HME unless TSA has first determined that As a general rule, the Compact requires the 11 The penalty for violation of 18 U.S.C. 842(i) is the individual applying for the HME does not pose submission of fingerprints for purposes of gaining up to ten years imprisonment and a fine of up to access to criminal history databases for non- $250,000. a security threat warranting denial of the HME. 68 criminal justice purposes. 12 Explosives are among the categories of FR 23844. Because FMCSA is a part of DOT, and 9 See 49 U.S.C. 114(f). substances that are defined as hazardous materials because the FMCSA and TSA rules regulate the 10 Pub. L. 107–296, November 25, 2002, 116 Stat. under DOT regulations. See 49 CFR 383.5 and transport of hazardous materials, including 2280, codified at 18 U.S.C. 842. 173.50. explosives, with regard to safety, the exception in 18 U.S.C. 845(a)(1) was triggered. VerDate jul<14>2003 18:02 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 E:\FR\FM\13JAR2.SGM 13JAR2 2544 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Rules and Regulations appeal.14 In addition, the May 5 IFR technical amendment required the available on the TSA Web site at provided a waiver process for those States either to submit fingerprints and http://www.tsa.gov/public/interapp/ individuals who otherwise could not applicant information by April 1, 2004, editorial/editorial_1735.xml. obtain an HME due to a disqualifying or request an extension of time and felony conviction or mental defect.15 produce a fingerprint collection plan by E. Fee Authority Finally, the May 5 IFR prohibited an April 1, 2004. All States were required On October 1, 2003, Congress enacted individual from holding, and a State to have the fingerprint collection legislation directing TSA to collect from issuing, renewing, or transferring program in place as of December 1, reasonable fees to cover the costs of 2004. an HME for a driver unless the providing credentialing and background individual has met the TSA security In response to the November 2003 technical amendment, a majority of the investigations in the transportation threat assessment standards or has been field, including implementation of the granted a waiver.16 The May 5 IFR was States asked for an extension of time, USA PATRIOT Act requirements.23 to take effect in November 2003.17 because they were not ready to begin Section 520 of the Department of In the May 5 IFR, TSA requested and collecting applicant information or Homeland Security Appropriations Act, received comments from the States, fingerprints by April 1, 2004. Therefore, 2004 (2004 Appropriations Act) labor organizations, and representatives on April 6, 2004, TSA published a final authorizes TSA to collect fees to pay for of the trucking industry. In addition, rule removing the April 1 date and TSA held working group sessions with establishing January 31, 2005, as the the following costs: Conducting or the States to discuss potential date on which States must begin obtaining a criminal history records fingerprinting systems that would complying with the requirements.20 check (CHRC); reviewing available law enforcement databases, commercial achieve the statutory requirements, but D. Hazmat Program Rule would not adversely impact the States. databases, and records of other Based on the comments received and On November 24, 2004, TSA issued governmental and international the working sessions with the States, an interim final rule, titled ‘‘Security agencies; reviewing and adjudicating TSA issued a technical amendment in Threat Assessment for Individuals requests for waivers and appeals of TSA November 2003 to extend the date on Applying for a Hazardous Materials decisions; and any other costs related to which fingerprints and applicant Endorsement for a Commercial Driver’s performing the background records information must be submitted.18 A License’’ RIN 1652-AA17 (the Hazmat check or providing the credential. 21 majority of the States could not Program Rule). In the Hazmat Program Section 520 of the 2004 Rule, TSA made several amendments to implement the program by November, Appropriations Act mandates that any the May 5 IFR. TSA also required States and TSA was not able to set the fee fee collected be available for to choose between the following two levels through rulemaking to cover expenditure only to pay for the costs fingerprint and applicant information TSA’s implementation costs.19 This incurred in providing services in collection options: (1) The State collects connection with performing the 14 and transmits the fingerprints and Under the May 5 IFR, an individual could background check or providing the appeal a determination if the individual believes applicant information of individuals that he or she does not meet the criteria warranting who apply for or renew an HME; or (2) credential. The fee must remain revocation. For example, an individual could the State allows an entity approved by available until expended. appeal because he or she believes the criminal record to be incorrect, or if the individual’s TSA (TSA agent) to collect and transmit F. Fee NPRM conviction for a disqualifying criminal offense was the fingerprints and applicant pardoned, expunged, or overturned on appeal. information of such individuals. TSA On November 10, 2004, TSA issued a 15 Such individuals were permitted to apply for required States to notify TSA in writing notice of proposed rulemaking (Fee a waiver if they could demonstrate that they are NPRM) to propose a fee for the security rehabilitated or are no longer a danger to of their choice by December 27, 2004. themselves or others. TSA noted that if a State did not notify threat assessments that TSA is required 16 In the interim final rule issued on November TSA in writing of its choice by that date, to perform on individuals who apply for 24, 2004 (Hazmat Program Rule), discussed herein, TSA would assume that the State had or renew an HME for a CDL (Threat TSA amended the May 5 IFR to permit a driver who chosen the second option and would Assessment Fee).24 The Fee NPRM also successfully completes the TSA security threat assessment and receives an HME in one State to work with the State to establish a proposed a fee for the collection and transfer the HME to another State without system for a TSA agent to collect transmission of fingerprints and other undergoing another TSA security threat assessment fingerprints and applicant information HME applicant information necessary to until the date the HME would expire in the issuing in the State. The Hazmat Program Rule perform the security threat assessments State. For instance, if the renewal period in Virginia is once every 4 years, a driver who obtains his HME requires a State to operate under the (Information Collection Fee). The Fee in Virginia in 2005 and moves to West Virginia in option it chooses until at least February NPRM also proposed that HME 2006, where the renewal period is once every 5 1, 2008. applicants remit the fee required by the years, is required to undergo a new security threat Seventeen States opted to collect and assessment in 2009 in West Virginia, rather than Federal Bureau of Investigation (FBI) for within 30 days of moving into West Virginia or in transmit fingerprints and applicant performing the CHRC on behalf of 2010. FMCSA’s regulations require renewing the information. The remaining 34 States government agencies for non- HME at least once every five years, so drivers across opted to allow a TSA agent to perform government applicants. In addition, the the country have nearly identical renewal periods. those services.22 Information on which (49 CFR 383.141(d)). Thus, there is no risk that any Fee NPRM proposed procedures for driver will go more that five years without a States have chosen which option is States and entities approved by TSA to security threat assessment. collect, handle, and remit to TSA those 17 An exception to this effective date was a credentialing until October 1, 2003, per section 520 fees. TSA requested public comment on provision in the May 5 IFR that required any holder of the 2004 Homeland Security Appropriations Act of an HME who had committed a disqualifying (Pub. L. 108–90, October 1, 2003, 117 Stat. 1137). all aspects of the Fee NPRM. offense to surrender the HME to the State by 20 69 FR 17969 (April 6, 2004). September 2003. 21 69 FR 68720 (November 24, 2004). 23 Department of Homeland Security 18 68 FR 63033 (November 7, 2003). 22 TSA notes that as defined in the Hazmat Appropriations Act, 2004, Section 520, Pub. L. 108– 19 Congress did not grant TSA the statutory Program Rule, the term ‘‘State’’ includes the District 90, October 1, 2003, 117 Stat. 1156 (6 U.S.C. 469) authority required for rulemaking to set and collect of Columbia. Thus, for purposes of the hazmat (2004 Appropriations Act). fees for costs related to background checks and program there are 51 States. 24 69 FR 65332, November 10, 2004. VerDate jul<14>2003 18:02 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 E:\FR\FM\13JAR2.SGM 13JAR2 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Rules and Regulations 2545 II. Response to Public Comments assessments for hazmat drivers that TSA on the volume of applicants that the TSA received approximately 25 performed prior to full implementation TSA agent serves. comments on the Fee NPRM from of the hazmat program. Moreover, TSA Part two of the proposed fee range individual commercial drivers, labor notes that certain overhead costs that was $36 for the threat assessment organizations, trucking industry directly support the program, such as (Threat Assessment Fee). In accordance associations, State Departments of those for human resources, financial with the mandates of the USA PATRIOT Motor Vehicles, associations reporting and accounting, and TSA Act and the SEA, the threat assessment representing the agricultural, chemical, executive management support, have consists of TSA reviewing the explosives, and petroleum industries, not been included in the user fees. information collected and determining whether the individual poses a security and associations representing State B. Amount of the Fees governments. The discussion below threat. The Threat Assessment Fee also groups the comments by issue. Several commenters stated that the included costs associated with appeals estimated total fee range of $83–$103 is and waivers. A. Responsibility for the Fees unreasonable. They noted that the Part three of the proposed fee range Labor organizations and individual proposed fees are significantly higher was the FBI fee for conducting a drivers commented that drivers should than fees for security threat assessments fingerprint-based criminal history not bear the full cost of the threat in other transportation-related records check (FBI Fee). This fee is set assessments conducted under the programs, such as the security threat by the FBI and is currently at $22, or Hazmat Program Rule. They noted that assessments TSA proposed for $24 if a State submits the fingerprints to the statute authorizing TSA to collect individuals requiring unescorted access the FBI. fees for threat assessments (Section 520 to air cargo (air cargo handlers) ($39) 27 As noted earlier, other background of the 2004 Appropriations Act) does and drivers seeking certification under check programs have different not require TSA to collect the fees from the Free and Secure Trade (FAST) Congressionally-mandated requirements the driver. They argued that the fees program ($50). They questioned why and thus have different costs. For should be divided among all of the TSA is requiring the trucking industry example, the proposed air cargo affected parties, including employers to absorb higher fees. program would require air cargo and the Federal Government. TSA notes that while there are some handlers to undergo one of the TSA notes that the May 5 IFR similarities to other Federal Government following: A name-based security threat specified that the driver or the driver’s background check programs, each assessment; or, if otherwise required, a employer was responsible for paying the program is unique. Differences in cost fingerprint-based CHRC or another TSA- fee charged by the entity that collected arise due to the legal requirements approved security threat assessment.28 the driver’s fingerprints and generated associated with certain background The hazmat program requires drivers to the driver’s criminal history.25 The checks as well as the differences in how undergo both a fingerprint-based CHRC Hazmat Program Rule contains a similar the agency requiring the background and a name-based security threat provision specifying that the HME check is able to collect fingerprints and assessment, as well as checks of their applicant or the applicant’s employer is other information needed from the mental capacity and citizenship or responsible for the TSA and FBI fees.26 population being checked. There are immigration status (emphasis added).29 The Hazmat Program Rule provides that also differences in the legislative These additional checks were required the driver or the driver’s employer is authorities and appropriations allocated under the USA PATRIOT Act and the responsible for paying the required fees. to agencies for supporting the programs. SEA. In addition, the proposed air cargo Some commenters noted that a These differences determine whether program does not contain waiver commercial driver’s employer typically the programs are totally funded through provisions, while the hazmat program pays the commercial driver’s licensing appropriated funding, partially funded does. TSA believes that the waiver fees. Whether the driver or the driver’s through user fees, or fully funded procedures are an important part of the employer pays the fees is a matter that through user fees. hazmat program; these procedures must be resolved between drivers and As noted in the Fee NPRM, the total recognize that individuals who have their employers. proposed fee range of $83 to $103 per committed a disqualifying crime may be As for the Federal Government applicant for the hazmat driver threat rehabilitated to the point that they may subsidizing the fees, when Congress assessment included three parts. Part be trusted to transport hazmat. The costs enacted Sec. 520 of the 2004 one was for the collection and associated with adjudicating waiver Appropriations Act it expressed its transmission of fingerprints and other requests are a large part of the costs of intent that TSA seek user fee funding to applicant information (Information the hazmat program. For these reasons, cover the costs of providing Collection Fee). This service will either the costs associated with the hazmat credentialing and background be provided directly by individual program are significantly higher than investigations in the transportation States or by a TSA agent who will be the costs associated with the proposed field. The hazmat program is an located at various sites within each security threat assessments for air cargo example of a credentialing and State. If a TSA agent provided this handlers. background investigation program that service, the proposed Information One commenter suggested that TSA was intended to be supported by user Collection Fee was estimated at $25– charge separate fees to HME applicants fees. That said, TSA has subsidized the $45. The Fee NPRM explained that if a program to some extent by bearing the State provides this service, the fee for 28 See 49 CFR 1544.228(a), 1546.213(a), and 1548.15(a). Under the proposed air cargo program costs of the name-based threat this service could be higher or lower an air cargo handler would have to undergo the than the proposed $25–$45 range. The name-based threat assessment, and pay the 25 49 CFR 1572.5(b)(2)(iii). See also the discussion Fee NPRM explained that the final fee proposed $39 fee, only if he or she was not required in the preamble of the May 5 IFR. 68 FR at 23859 level for information collection and to undergo a fingerprint-based CHRC or another (May 5, 2003). transmission would depend primarily security threat assessment approved by TSA. The 26 49 CFR 1572.11(d)(3). See also the discussion proposed $39 fee would cover only the cost of the in the preamble of the Hazmat Program Rule. 69 FR name-based security threat assessment. at 68732 (November 24, 2004). 27 69 FR 65258 (November 10, 2004). 29 See 49 CFR 1572.5(c). VerDate jul<14>2003 18:02 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 E:\FR\FM\13JAR2.SGM 13JAR2 2546 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Rules and Regulations who use the appeal or waiver perform background checks and provide drivers who receive notification of procedures. Making this change would credentialing-related services. Section disqualification. Thus, the threat require creating a new process. TSA is 520 further directs that fees must be assessment costs estimated in the Fee not establishing a separate fee collection ‘‘reasonably related to the costs of NPRM were not understated. process for appeals and waivers at this providing services in connection with With regard to the legality and time. TSA may do so in the future, if the activity or item for which the fee is appropriateness of including contractor experience with the hazmat program charged.’’ 30 Recoverable costs via user profits as part of TSA’s costs for fee suggests that separating these fees fees costs may include both the costs of recovery, TSA notes that § 15.404–4 of would be appropriate. accessing various law enforcement, title 48 of the Federal Acquisition Another example is the FAST governmental and commercial Regulation (FAR) specifically allows program, which involves efforts by the databases, adjudication costs and ‘‘any profit for contractors providing goods United States, Canada, and Mexico to other costs related to providing the and services to the Government, subject improve the efficiency of screening and credential or performing the background to Federal cost accounting standards. As clearing commercial traffic at the shared record check.’’ 31 Thus, TSA’s user fee such, contractor cost proposals usually borders. The FAST program is a may include infrastructure and other contain a profit component in the rates voluntary initiative operated by U.S. start-up costs required to implement or a fee, and the Government Customs and Border Protection (CBP) TSA’s hazmat driver security threat contracting officer must determine that that provides an expedited customs and assessment program. TSA has chosen all the cost elements, including fee, in immigration process at the borders for not to include certain general overhead the proposal are fair and reasonable approved truck drivers. To be approved costs that could be applied to calculate before awarding a contract. In TSA’s for the FAST program, a driver must be the agency’s full costs of implementing contract award process to the TSA agent admissible to the U.S. and must not the program. As previously stated, these for the Information Collection Fee, TSA have been convicted of a criminal costs include costs associated with has determined the contractor’s charges offense or been found in violation of human resources, financial reporting to be fair and reasonable. Costs are customs or immigration law. The driver and accounting, and TSA executive determined to be fair and reasonable by must submit fingerprints and other management support. evaluating several factors such as the information, such as proof of citizenship With respect to the possible future use Government’s Independent Cost and work history. Drivers who are not of the hazmat driver program Estimate (ICE) developed for evaluating approved for the FAST program are infrastructure for other programs, if TSA this activity, the costs for similar required to follow normal CBP implements other background check services, including historical costs, and procedures at the borders. programs that leverage the infrastructure the comparison of costs in various The $50 fee for the FAST program is that was created for the hazmat proposals under a competitive an application fee, rather than a threat program, TSA will re-evaluate its procurement award process. Thus, it is assessment fee. Drivers must also pay hazmat user fees and adjust them appropriate that TSA’s costs to provide the FAST fee each time any information accordingly. background check related services on the FAST card must be changed, or under Sec. 520 of the 2004 Homeland D. Cost Estimates if the driver loses the card and requires Security Appropriations Act (Pub. L. a replacement. In addition, CBP uses Several commenters stated that TSA 108–90), include contractor profit/fee as appropriated funding to subsidize the likely underestimated the threat provided under both the FAR and the costs of conducting the required assessment costs because the agency did Transportation Security background checks. As noted above, in not include costs associated with Administration’s Acquisition section 520 of the 2004 Appropriations appeals and waivers. They also noted Management System. Act, Congress directed TSA to fund that allowing a private entity to collect E. Missing Criminal Prosecution credentialing and background fingerprints and applicant information Disposition Information investigation programs, such as the on behalf of TSA (TSA agent) or the hazmat program, with user fees. States (an entity that contracts with a States and State associations State that chooses to collect fingerprints commented that States will have to play C. Infrastructure Costs and applicant information) necessarily a role in providing to TSA information Labor organization and trucking implies that the agent will make a profit. regarding the disposition of criminal industry associations objected to the They argued that Section 520 of the prosecutions that may be missing from inclusion of infrastructure costs in the 2004 Appropriations Act does not FBI records. They noted that FBI records fee structure. They noted that the Threat permit TSA to include private profit of State criminal offenders are often Assessment Fee structure includes the costs as part of the costs recoverable by incomplete, particularly with regards to costs of creating and maintaining fees. disposition information. They stated databases, disaster recovery, and other TSA notes that the threat assessment that as a result, TSA will need to call start-up costs. They argued that these costs estimated in the Fee NPRM did upon State courts and criminal justice costs should not be passed along to include the estimated costs to TSA agencies to provide that information, drivers because they are not part of associated with handling appeals and which could impose considerable performing the security threat requests for a waiver. Moreover, in the burdens on States. They argued that assessment or providing the HME. They Regulatory Evaluation for the Hazmat TSA should compensate States for suggested that the Federal Government Program Rule, TSA estimated the likely providing this information. should absorb these costs. Finally, some cost to drivers in terms of time for both The Hazmat Program Rule provides commenters objected to paying for the HME threat assessment process and HME applicants an opportunity to infrastructure that TSA has stated may the appeal/waiver process for those submit evidence of the final disposition be used for other programs. of a criminal case in those instances Section 520 of the 2004 Homeland 30 Department of Homeland Security where disposition information is Appropriations Act, 2004, section 520, Pub. L. 108– Security Appropriations Act grants TSA 90, October 1, 2003, 117 Stat. 1156 (6 U.S.C. 469) missing or unresolved. Thus, the burden the authority to recover infrastructure (2004 Appropriations Act). of demonstrating that an open offense or and other start-up costs necessary to 31 Id. warrant is not disqualifying is placed on VerDate jul<14>2003 18:02 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 E:\FR\FM\13JAR2.SGM 13JAR2 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Rules and Regulations 2547 the HME applicant rather than State proposed in the Fee NPRM. They argued density of the HME applicant authorities. TSA recognizes there may that there is no security reason to allow population, geographic dispersion be instances in which an applicant may for such State participation in a Federal throughout the State, and the urban- seek information on an open disposition program. They also claimed that a rural mix in the State. TSA has by turning to State agencies for nationwide Federal fingerprint and developed performance standards for assistance, and that this may result in applicant information collection system the TSA agent that will collect costs to State agencies in looking up old would be less expensive than the fingerprints and applicant information records for missing dispositions. proposed joint Federal-State collection in those States that opt for a TSA agent Nothing in the Hazmat Program Rule or system because a higher volume of to provide those services, and those this final rule prevents States from applicants would reduce costs. They performance standards are incorporated recovering those costs from HME suggested that TSA establish only one into the contract between TSA and the applicants, if they are authorized to do fee for fingerprint and information agent. TSA will monitor the program so under their own State law. collection nationwide. throughout the duration of the contract TSA notes that although the hazmat and determine the need for additional or F. Impact of Fees on Drivers and Small program is mandated by Federal law, varied collection sites should the need Businesses the State is the licensing body for for service improvement be identified. Several commenters stated that the drivers who are State residents, and the total amount of the fees would have a State has both authority and a clear I. Hazmat Program Rule substantial negative impact on the interest in licensing standards. Many of the comments to the Fee availability of drivers qualified to Regulation of commercial drivers has NPRM discussed aspects of the Hazmat transport hazardous materials. They traditionally been a combined State- Program Rule. For example, trucking argued that the trucking industry is Federal effort. While the Federal industry associations encouraged TSA already experiencing a shortage of Government sets minimum standards, to ensure that hazmat drivers not be qualified drivers, and that the proposed including through Federal Motor Carrier required to undergo multiple threat fees would exacerbate that problem. Safety Administration (FMCSA) and assessments for different programs, such They also argued that any substantial TSA rules, States are responsible for as the Transportation Worker reduction in the number of qualified most activities in determining that Identification Credential (TWIC). Labor drivers will have a detrimental impact applicants qualify, and for issuing organizations commented that TSA on the trucking industry as a whole, and licenses. should require Mexican and Canadian an even more pronounced impact on TSA considers States to be essential drivers to undergo the same security small businesses (especially small rural partners in the hazmat program, and threat assessments as U.S. drivers. State businesses) because small businesses some States have infrastructure in place associations recommended that the are less able to reimburse drivers for the that can help implement the hazmat security threat assessment include a cost of obtaining an HME. They believe program and a desire to do so. Because check of State criminal history records. that TSA has failed to meet its States want to perform this function, Although these comments are obligation under the Regulatory and to preserve strong State-Federal directed at aspects of the Hazmat Flexibility Act (RFA) to ensure that relationships in this area, TSA will not Program Rule, TSA is providing small businesses are not substantially prevent States from choosing to collect preliminary responses in this final rule. burdened by Federal regulations. fingerprints and applicant information TSA may reexamine these issues when TSA considered all of the in accordance with the Hazmat Program promulgating the final Hazmat Program requirements of the RFA in this Rule. Rule. rulemaking. TSA responds to comments With respect to the concern that on compliance with the RFA in the H. Performance Standards for TSA hazmat drivers may be subjected to Regulatory Flexibility Determination Agents multiple threat assessments, TSA section below and in the separate Industry associations commented that recognizes that there may be Regulatory Analysis document provided an HME applicant’s costs of providing overlapping security threat assessment to the docket. With respect to this information and fingerprints to a TSA and identification verification specific comment, TSA notes that the agent could vary depending on the requirements for certain transportation expected reduction in HME holders is proximity of the agent to the applicants, workers and is making every effort to not likely to have a significant impact the agent’s hours of operation, and the minimize duplication. TSA noted this on businesses that depend on qualified tolerance allowed for agent error. They in the preamble of the Hazmat Program hazmat drivers. It is anticipated that argued that this could cause delays in Rule, particularly concerning drivers most of the drivers who will allow their the HME application approval process, who transport hazardous material for HME to lapse as a result of this final rule which would negatively impact the the defense and nuclear industries. TSA rarely transport hazmat. See Section V. trucking industry as well as industries invited comment on the issue in the ‘‘Hazmat Driver Population’’ of the final that rely on the trucking industry to Hazmat Program Rule, and stated that rule for more discussion of the supply their customers. They suggested the agency plans to implement an anticipated reduction in HME holders. that TSA establish performance acceptance process for comparable standards for TSA agents collecting threat assessments that are completed G. Allowing States To Collect fingerprints and applicant information. by other agencies or for other purposes. Fingerprints and Applicant Information TSA is mindful of the need to ensure TSA notes that the TWIC program is Industry associations requested that adequate performance standards and intended to implement the threat TSA reconsider its decision to allow oversight in selecting appropriate assessment process for workers in all States to collect fingerprints and locations to provide, to the extent modes of transportation who need applicant information, and to charge a possible, a consistent application of unescorted access to secure areas of fee for those services. They noted that service in rural and urban areas. In transportation facilities. TSA plans that States, under State fee authority, could order to establish the number and type once a driver has successfully charge higher fees for those services of sites, TSA will take into completed the TSA security threat than the Information Collection Fee consideration the overall population, assessment for an HME, and holds a VerDate jul<14>2003 18:02 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 E:\FR\FM\13JAR2.SGM 13JAR2 2548 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Rules and Regulations current HME, the driver will not be TSA believes that a CHRC adds value to requirements of the final rule; and (2) required to undergo a new security a security threat assessment. Thus, TSA collect and remit to the FBI its user fee threat assessment if TSA requires believes that it is important to conduct (FBI Fee) to perform a CHRC in drivers to obtain a TWIC. TSA will, as CHRCs as part of the hazmat program accordance with established FBI appropriate, coordinate with other security threat assessment. procedures. Nothing in the final rule programs that may affect hazmat drivers TSA must require drivers to submit prohibits the State, under its own fee to minimize the duplication of threat their fingerprints, because, as noted authority, from collecting a fee assessments. above, the Compact generally requires determined by the State to cover its With respect to the suggestion that fingerprints for the purpose of gaining costs of collecting and transmitting TSA require foreign drivers to undergo access to criminal history databases for fingerprints and applicant information. the same security threat assessments as non-criminal justice purposes. However, TSA notes that a State may not collect U.S. drivers, TSA regulations at 49 CFR as the security programs administered a fee for its own costs under TSA’s fee 1572.201 require Canadian drivers who by TSA mature, TSA intends to leverage authority. transport explosives from Canada to the resources and take other steps in an A State that opts to permit a TSA U.S. to submit certain information to effort to ease the costs and burdens of agent to collect and transmit Transport Canada, which conducts a the programs while maintaining a high fingerprints and applicant information background check and determines level of security. is not required to collect and remit to whether the drivers are properly Commenters were concerned that the TSA any fees under this final rule licensed. Drivers who are not listed by TWIC requirements would be (emphasis added). Rather, a TSA agent Transport Canada as completing these duplicative, that is, that drivers who will: (1) Collect and remit to TSA the steps are not authorized to enter the were approved under the hazmat Threat Assessment Fee; (2) collect and U.S. with explosives shipments. Also, program would need to undergo another keep the Information Collection Fee; TSA checks these names against certain threat assessment under the TWIC and (3) collect and remit to TSA the FBI watch lists to determine whether they program. TSA has determined that Fee for forwarding to the FBI. After may pose a threat to security. drivers who are approved under the discussions with the FBI, TSA decided TSA will address threat assessments hazmat program will not have to submit to add a requirement that the TSA agent for hazmat drivers from Canada and to another threat assessment under the remit the FBI fee to TSA for forwarding Mexico in the future. Consultations are TWIC program. TSA is also considering to the FBI, as the FBI intends to bill TSA ongoing between U.S. and Canadian other alternatives to reduce the time for the CHRCs the FBI will perform for officials, and DHS intends to begin and/or cost of the hazmat threat TSA. discussions on this issue with the assessment. The fees are as follows: Information appropriate agencies in Mexico. Collection Fee $38 (in States where a With respect to the suggestion that the III. Summary of the Final Rule TSA agent collects fingerprints and TSA threat assessment include a check To comply with the mandates of applicant information), Threat of State criminal history records, TSA Section 520 of the 2004 Appropriations Assessment Fee $34, and FBI Fee $22 (if notes that it would be difficult and Act, as well as the mandates of the USA TSA agent collects) or $24 (if State costly for TSA to conduct an effective PATRIOT Act and the SEA, in this final collects). search of State criminal history records. rule (final rule or Hazmat Fee Rule) TSA Pursuant to the Chief Financial Commercial drivers often travel from is establishing user fees for individuals Officers Act of 1990, DHS/TSA is State to State, making it difficult for who apply for or renew an HME, and required to review these fees no less 33 TSA to know which State criminal thus are required to undergo a security than every two years. Upon review, if history records to search. TSA also threat assessment in accordance with 49 it is found that the fees are either too notes that searching State records would CFR part 1572. TSA is establishing the high (that is, total fees exceed the total add significantly to the cost of the following two new user fees, in addition cost to provide the services) or too low program, which would necessitate an to the FBI Fee 32 for performing the (that is, total fees do not cover the total increase in the Threat Assessment Fee. CHRC on behalf of government agencies costs to provide the services), TSA may However, TSA notes that the Hazmat for non-governmental applicants: (1) A propose changes to the fees. In addition, Program Rule does not prevent a State fee to cover TSA’s costs of performing as DHS and TSA identify and from searching its own criminal history and adjudicating security threat implement additional efficiencies across records. If a State checks its criminal assessments, appeals, and waivers numerous threat assessment and history records and forward any (Threat Assessment Fee); and (2) a fee credentialing programs, any resulting pertinent information to TSA during an to cover the costs of collecting and cost savings will be incorporated into applicant’s security threat assessment, transmitting fingerprints and applicant the fee levels accordingly. TSA will use the information. TSA information (Information Collection In this final rule, TSA is making the encourages States to provide such following changes to the Fee NPRM: Fee). • information. Under the final rule, a State that opts TSA is placing the fee procedures and requirements in 49 CFR part 1572, J. Relationship to the TWIC Program to collect fingerprints and applicant information itself in accordance with rather than 49 CFR part 1522. TSA Industry associations and labor the Hazmat Program Rule is required to: initially intended to have a separate part organizations suggested that TSA (1) Collect and remit to TSA the Threat for fee rules, but has since determined conduct only name-based security threat Assessment Fee in accordance with the that placing fee rules in the same part assessments without fingerprint-based as the rules governing the programs that CHRCs, or defer CHRCs until the TWIC 32 The FBI is authorized to establish and collect the fees support is easier for requirements are implemented. fees to process fingerprint identification records stakeholders to locate. Thus, TSA TSA considered conducting only and name checks for non-criminal justice, non-law decided to place the Hazmat Fee Rule in name-based threat assessments. enforcement employment and licensing purposes the same part as the Hazmat Program that may be used for salaries and other expenses However, the USA PATRIOT Act incurred in providing these services. See title II of Rule. mandates that TSA conduct a check of Pub. L. 101–515, November 5, 1990, 104 Stat. 2112, relevant criminal history databases, and codified in a note to 28 U.S.C. 534. 33 31 U.S.C. 3512. VerDate jul<14>2003 18:02 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 E:\FR\FM\13JAR2.SGM 13JAR2 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Rules and Regulations 2549 • As noted above in the response to processing, reduce processing time, and receiving more current cost estimates for comments, TSA is specifying in the increase flexibility in the workflow. manpower and off-site processing, final rule that the driver or the driver’s Thus, the total five-year lifecycle additional notifications, and related employer is responsible for paying the program costs for the information threat assessment applicant support required fees. systems cost component category has services. Increases in adjudication costs • TSA is changing the name of the risen from total five-year cost estimates for increased labor costs of contract and main infrastructure support system from of $10.8 million to $15.1 million (see Federal adjudicators and Federal legal the Hazardous Materials Endorsement Figure 2 for a complete listing of cost support were offset by decreases in Screening Gateway (HMESG) to the estimates). Some of these cost Federal and contracting program Screening Gateway. The Screening adjustments include the following: support (please see Figure 2 for a Gateway is the information system —$400,000 was invested to provide the complete listing of cost estimates). Some platform that will allow TSA to submit, Screening Gateway the capability to of these cost adjustments include the receive, and integrate security threat ‘‘translate’’ or read certain State following: assessment information from a variety of criminal history records. —TSA is adding $750,000 in costs to Federal, State, and other sources in Additionally, $75,000 in recurring pay for interim data entry and order to help make security threat costs will be required to maintain and communication of adjudication assessment determinations. The new support this capability. This will results for those States that did not name better reflects the mission of this allow the Screening Gateway to more choose the TSA Agent for the period information system platform, which efficiently interpret the results of of February 2005 through July 2005. TSA expects may include security threat certain criminal history records and To allow sufficient time for States to assessment processing for a variety of complete a cursory automated implement system upgrades, TSA will threat assessment and credentialing screening of information on the provide these temporary alternative programs in the future, including TWIC, applicant. This is a cost-effective methods for data transfer to help Air Cargo, and Registered Traveler. solution to translating criminal ensure the volume of applicants can • TSA is reducing the estimated history records into a format that can be processed quickly and efficiently. number of applicants expected to be be more expeditiously read and —TSA is also removing the costs for an processed in the first year by 70,000 to Interpol connection and an Interpol compensate for the effect the of processed by the Screening Gateway. —$5.9 million was added over the five- Liaison Officer. TSA intends to use program’s phased-in approach. As a year program lifecycle for applicant Interpol information when result of a population reduction, and appropriate, but at present, TSA has without any other changes to the costs, help desk support services. This will ensure that drivers applying for the decided to not seek a direct the fee generally would have increased connection to Interpol. If TSA’s because the costs would have been TSA threat assessment will be able to check the status of their application, experience with the hazmat program shared among a smaller population. indicates that a direct Interpol However, TSA has reduced other as well as provide information and support during the waiver and/or connection with liaison support expected program costs, and thus would enhance the security threat various components of the fee, and as a appeals process. —Other information system cost assessment, TSA will review the cost result is able to reduce the total Threat implications of adding such services. Assessment fee from $36 to $34 (despite estimates have decreased since the Fee NPRM was published. For In sum, TSA has reduced the total the decrease in estimated population). estimated five-year program lifecycle • TSA is removing the costs example, cost estimates have costs from $72.42 million to $65.76 associated with the use of commercial decreased from $3.1 million to $1.6 million, a decrease of $6.66 million. As data sources for terrorist threat analysis. million over five years for the disaster a result, based on the total estimated At present, TSA has decided not to recovery system. TSA has identified costs divided by the total estimated five- employ commercial data sources in the existing resources since publishing year population of HME new applicants, terrorist threat analysis because TSA has the Fee NPRM and intends to leverage renewals, and transfers, TSA has not yet concluded that these data this advantage to reduce the costs of reduced the Threat Assessment Fee sources would significantly augment the the disaster recovery system. from $36 to $34 ($65.76 million divided threat analysis process. If TSA’s • TSA is increasing office-related by 1,952,000 = $34). experience with the hazmat program costs by $3.9 million over the five-year indicates that the use of commercial program. Costs were driven up IV. Hazmat Driver Population data sources would enhance the security primarily by a $3.2 million increase for TSA estimates that there are currently threat assessment, TSA will review the off-site mail and digitized processing 2.7 million HME holders throughout the cost implications of adding such data after receiving updated cost estimates, United States. This estimate is based on sources. In the Fee NPRM, TSA adjusting for a significant increase in the results of the initial name-based estimated the cost of using commercial anticipated appeals, and a new terrorist threat assessment recently data sources to be $1.7 million per year requirement to notify drivers of a performed by TSA on the entire current (depending on annual applicant Determination of No Security Threat. In population of HME holders.34 Each volume) for a five-year program lifecycle the Fee NPRM, TSA proposed to notify State and the District of Columbia cost total of $8.6 million. drivers only of negative adjudication submitted to TSA the names of all • TSA is adding $1.35 million in results (i.e., determination of threat current (not expired) holders of HMEs. start-up costs and approximately $3 warranting disqualification). However, million in costs for years 1 through 5 for in response to States’ comments, TSA 34 In July 2004, TSA used HME applicant names system and infrastructure costs and has decided to notify drivers of all and biographical data to conduct threat assessments system programming costs. These threat determinations (see Figure 2 for a on all current HME holders. The threat assessment increased costs include programming complete listing of cost estimates). included entering names and biographical data in • the National Crime Information Center (NCIC) modifications to the Screening Gateway TSA is decreasing Federal and database and other databases, such as terrorism that add significant enhancements in contractor labor costs by $6.2 million watch lists. TSA noted its intent to conduct these adjudication, appeal, and waiver over the five-year program lifecycle after threat assessments in the May 5 IFR. VerDate jul<14>2003 19:39 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 E:\FR\FM\13JAR2.SGM 13JAR2 2550 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Rules and Regulations This estimate was based on an actual Industry representatives that TSA holder population resulting from the head count, rather than a statistical contacted predict at least some decrease first year of operations after the Hazmat sampling or other estimate. However, in the HME population as a result of Program Rule takes effect on January 31, the DOT’s Bureau of Transportation TSA’s security threat assessment 2005. This is the date when new HME Statistics (BTS) and the U.S. Department regulation. The same industry applicants will be required to submit of Commerce’s U.S. Census Bureau have representatives further concur that fingerprints, biographical information, historically estimated the number of current CDL driver shortages across the and fees. Applicants seeking to renew drivers carrying hazardous materials commercial trucking industry, coupled expiring HMEs will be subject to the (those drivers either carrying primarily with the fact that drivers are not fingerprint, biographical information, hazardous materials or carrying such on typically paid any wage premium and fee submission requirements a regular basis) to be in the range of specifically for carrying hazardous beginning May 31, 2005. 500,000–800,000.35 TSA believes this materials, further support TSA’s TSA expects to receive a prorated disparity between the total current prediction that there will be some total of 360,000 new and renewal number of HME holders and estimated reduction of total HME holders due to applications in the first year after ‘‘active’’ or ‘‘dedicated’’ drivers of TSA’s security threat assessment January 31, 2005.38 In the second and hazardous materials suggests that a process. significant portion of the HME holder Empirical data suggest that there has third years, TSA estimates a 5 percent population rarely, if ever, transports been a decline in total HME holders annual HME population decline each hazardous materials. since early 2003. A recent TSA survey year, for a total of approximately Due to the additional cost, effort, and of certain State motor vehicle 410,000 and 390,000 total new and the prospect of disqualification for administrators, representing renewal applicants, respectively. After certain felony offenses resulting from approximately 20 percent of the 2.7 the third year, TSA estimates that the this security threat assessment, TSA million total HME records from the regulatory-induced adjustment on the expects that a certain number of current States, revealed a one-year weighted HME holder population will have been HME holders who do not regularly average decline of 17 percent from early fully realized. Thus, in the fourth and transport hazardous materials will 2003 to early 2004.37 TSA believes this fifth years, TSA estimates a modest choose not to renew their HME over the decline is due, at least in part, to the annual growth in renewals and new course of the five-year renewal period. prospect of TSA’s security threat applications, in line with that of overall TSA bases this assumption on recent assessment regulation (announced estimated domestic non-farm discussions with various trucking publicly in the May 5 IFR). With the employment growth, at 1 percent industry representatives that will be imposition of the new fees requirement, annually. Thus, TSA expects affected by TSA’s security threat TSA estimates that there will be a approximately 394,000 and 398,000 assessment requirement, including further 20 percent decline in the HME total new applicants and renewals, trucking associations, union leaders, respectively, in the fourth and fifth and individual trucking companies.36 organizations: American Trucking Association; years. The total five-year new and Estes Express Lines; International Brotherhood of renewal applicants for whom TSA 35 ‘‘Transportation Statistics Annual Reports, Teamsters; Motor Freight Carriers’ Associations; expects to perform security threat 2001’’, p. 120; ‘‘Transportation Statistics Annual National Private Truck Council; National Tank assessments will thus be approximately Truck Carriers, Inc.; and the Truckload Carriers Reports, 2003’’, p. 106; ‘‘Commodity Flow Survey: 1.952 million. Hazardous Materials’’, U.S. Department of Association. Transportation, Bureau of Transportation Statistics, 37 This sample survey decline in total HME U.S. Census Bureau, Economic Census, 1997, p. 9; holders from 2003 to 2004 is also supported by the 38 Due to the Hazmat Program Rule’s May 31, ‘‘Vehicle Inventory and Use Survey’’, U.S. decrease in total HME records in the Federal Motor 2005, compliance date for renewals and transfers, Department of Commerce, U.S. Census Bureau, Carrier Safety Administration’s (FMCSA) 360,000 is the prorated portion of TSA’s annual 1997. In reaching this estimate, TSA extrapolated Commercial Drivers License Information System estimation of 432,000 applicants in the first 1997–2003 data and applied it to current hazardous (CDLIS) database. In early 2003, FMCSA reported program year. The 432,000-applicant estimate is materials volume, driver, and truck estimates. to TSA that the CDLIS contained approximately 3.5 calculated by reducing 2.7 million HMEs by 20 36 To estimate the volume of HME holders million total HME holders. TSA published this percent, for a total of 2,160,000, and then dividing expected to submit to the TSA security threat earlier estimate of 3.5 million total HME holders in by 5 to calculate an even distribution of TSA’s five- assessment processes, TSA conducted phone the May 5 IFR. In May 2004, FMCSA reported year renewal cycle requirement. HME estimates for interviews during the months of June and July 2004 approximately 2.7 million HME holders in the subsequent recurring years are calculated with representatives from the following CDLIS. accordingly. VerDate jul<14>2003 19:39 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 E:\FR\FM\13JAR2.SGM 13JAR2 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Rules and Regulations 2551 V. Fee Program Overview required States to choose one of the are responsible for establishing their The fee program for the security threat following two options for collection and own State fee, in accordance with their assessment consists of three parts, transmission of fingerprints and State user fee authority and discussed below: (A) The Information applicant information: requirements. TSA’s Information (1) Collect and transmit fingerprints Collection Fee for the collection and Collection Fee may not be the same as and applicant information itself, either transmission of fingerprints and the fees States may establish for through a State agency, such as the State applicant information; (B) the Threat performing these services. The DMV or State law enforcement agencies, Assessment Fee for the security threat Information Collection Fee will not or by contracting with a third party; or include the fee charged by FBI to assessment and associated notification, (2) Allow a TSA agent to collect and process fingerprint identification adjudication, appeal, and waiver transmit fingerprints and applicant records. processes; and (C) the FBI Fee for information. checking applicants’ fingerprints against B. Threat Assessment Fee 1. Cost of Information Collection the FBI’s CHRC database to identify past For the TSA security threat criminal offenses as reported to FBI. As noted above, in those States that assessment process, each applicant’s Each of these fees is structured to have chosen to allow a TSA agent to information will be checked against recover the Federal Government’s cost collect and transmit fingerprints and multiple databases and other of performing these functions. applicant information, TSA will hire a information sources so TSA can TSA notes that some States have contractor agent to provide those determine whether the applicant poses opted to collect and transmit services. Based on TSA’s research of a security threat that warrants denial of fingerprints and applicant information, both commercial and Government the HME. This check searches for and charge a user fee for those services fingerprint and information collection potential security threats, immigration under their own user fee authority. In services, as well as a competitive status, past criminal activity and mental those States, HME applicants will be bidding and acquisition process, TSA incompetence. TSA will perform all of required under the final rule to remit to has concluded that the per applicant the threat assessment functions. The the State, for transmission to the Federal cost to collect and transmit fingerprints threat assessment includes an appeal Government, only the Threat and other required applicant data process for individuals who believe the Assessment Fee and FBI Fee. Nothing in electronically is $38. This also includes records on which TSA bases its this final rule prohibits the State from the costs for required administrative determination are incorrect. In addition, collecting a fee determined by the State support, quality control, and chain of TSA will administer a waiver process under the State’s own fee authority to custody assurance. for applicants who seek a waiver of cover its costs of collecting and 2. Information Collection Fee disqualification. Individuals whom TSA transmitting fingerprints and applicant has determined pose a security threat information. TSA notes that a State may Based on the above costs, TSA based on reviews of pertinent databases, not collect a fee pursuant to TSA’s fee concludes that the per applicant fee for or who are not in the U.S. lawfully, are information collection and transmission authority to reimburse the State’s own not eligible for a waiver.39 costs. will be $38. This fee will only apply to A discussion of the three fees follows. those HME applicants in States that 1. Start-Up Costs have chosen to have a TSA agent A. Information Collection Fee TSA’s effort to conduct security threat perform information collection and assessments on drivers with an HME As set forth in the Hazmat Program transmission, as well as related will require ‘‘start-up’’ costs and annual Rule, the security threat assessment administrative support. States that ‘‘recurring’’ costs for checks conducted process requires all drivers who apply choose to perform the information in years after January 31, 2005. The for or renew an HME to submit collection and transmission functions fingerprints and other biographical themselves, and charge a fee to recover 39 These threat assessment standards are information. The Hazmat Program Rule the costs of performing these services, contained at 49 CFR part 1572. VerDate jul<14>2003 18:02 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 E:\FR\FM\13JAR2.SGM 13JAR2 ER13JA05.013 2552 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Rules and Regulations start-up costs will consist of all the costs access to information systems from TSA estimates that the total annual associated with start-up activities AAMVA, an adjudication helpdesk recurring costs for performing threat necessary to implement the program. system, and support capability to keep assessments will be $14.35 million for The start-up costs include the systems, applicants informed on the status of the first year (i.e., from January 31, 2005 personnel, and resources TSA will be their threat assessments; (ii) $360,000 to January 30, 2006) and between $11.62 required to bring on-line to conduct for contract personnel to perform million and $11.86 million per year for security threat assessments on various program management functions the second through fifth years.40 applicants renewing or newly applying in support of program operations; and Recurring costs will include the costs of: for a CDL with an HME. (iii) $60,000 for office costs, including continued development and lifecycle Regardless of whether a State or a program travel. TSA notes that certain maintenance of information systems; TSA agent collects and transmits start-up overhead costs that directly disaster recovery infrastructure, fingerprints and applicant information, support the program, such as those for digitization of applicant biographical TSA must implement and maintain the human resources, most financial data; the use of databases containing appropriate systems, resources, and systems, accounting and budgeting citizenship, international criminal personnel to ensure that fingerprints support costs and TSA executive history, and other data necessary to and applicant information are ‘‘linked,’’ management time, have not been perform a security threat assessment; and that TSA can receive and act on the included in the user fees. See Figure 2 Federal and contractor personnel to results of the security threat assessment. below for additional details. perform all program office functions, TSA will be required to have the including support of State’s activities in necessary resources to perform the 2. Recurring Costs the program along with compliance security threat assessments and process assurance; Federal and contractor This section summarizes TSA’s appeals, requests for waivers, and support to perform security threat estimated costs of completing security notification (to the driver and the assessments, and to administer and threat assessments on individuals who appropriate State) of all results. In document adjudications, appeals, and apply for or renew an HME for each year addition, TSA must be capable of waivers; 41 and office costs, including after January 31, 2005. Recurring costs archiving the results of these actions for office space, notification mailing costs, represent the resources necessary for the purpose of drivers newly applying and required program travel. See Figure TSA to perform ongoing security threat or renewing their HME application in 2 for additional cost details. future years (in the case of drivers who assessments on drivers applying for or successfully appealed a TSA renewing an HME as well as to maintain 3. Threat Assessment Total Costs background check or were granted a program infrastructure (e.g., technical Based on its population and cost waiver). systems). As previously stated, TSA estimates assumptions, TSA concludes TSA estimates that the total start-up estimates that the population of drivers that the total of start-up and the first five cost for the hazmat program will be who apply for or renew an HME will be years’ recurring costs will be $65.76 $4.44 million. This estimate includes: (i) 360,000 drivers for the prorated first million. Recurring costs are not adjusted $4.02 million for all information year (due to the phased in approach for inflation. All figures are rounded to systems costs, including the whereby HME renewal and transfer the nearest thousand. development and deployment of TSA’s applicants must comply with TSA’s Screening Gateway—an information program requirements beginning May BILLING CODE 4910–62–P system platform that will allow TSA to 31, 2005). Pursuant to the Hazmat 40 All cost and fee estimates in recurring years are submit, receive, and integrate security Program Rule, State Departments of not adjusted for inflation. threat assessment information from a Motor Vehicles (DMVs) will be 41 As the Hazmat Program matures, and TSA variety of Federal, State, and other prohibited from issuing or renewing an gains experience with the appeals and waiver sources in order to help make security HME until TSA has notified the State processes, the agency may need to adjust these threat assessment determinations—as that the driver (based on a security processes. If TSA adjusts the appeals or waiver well as related network and threat assessment) does not pose a process, the agency’s costs may increase or communication support costs, including security threat. decrease, which would necessitate an adjustment in the Threat Assessment Fee. VerDate jul<14>2003 18:02 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 E:\FR\FM\13JAR2.SGM 13JAR2 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Rules and Regulations 2553 BILLING CODE 4910–62–C VerDate jul<14>2003 18:02 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 E:\FR\FM\13JAR2.SGM 13JAR2 ER13JA05.016 2554 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Rules and Regulations 4. Threat Assessment Fee Calculation C. FBI Fee VII. Section by Section Analysis TSA will charge a fee to recover most As part of the security threat TSA did not receive any substantive of its security threat assessment start-up assessment, TSA will use FBI’s CHRC public comments on the fee collection costs as well as all recurring costs. The process. The FBI is authorized to procedures proposed in the Fee NPRM, start-up costs include non-recurring establish and collect fees to process and so has made very few revisions to costs required to perform the security fingerprint identification records and those procedures in the final rule. threat assessments that include name checks for non-criminal justice, Section 1572.301 establishes the fingerprint submission. Because these non-law enforcement employment and applicability of this part and definitions costs cannot be recovered prior to the licensing purposes that may be used for of terms used in this part. This part full implementation of the Hazmat salaries and other expenses incurred in applies to States that issue an HME, Program, and because all HME providing these services.44 Pursuant to individuals who apply for a new or recipients benefit from the services Criminal Justice Information Services renewed HME, and entities that collect provided as a result of the infrastructure (CJIS) Information Letter 93–3 (October fees from such individuals on behalf of and capabilities that TSA must develop 8, 1993), this fee is currently set at $24. TSA. to implement the Hazmat Program, TSA CJIS Information Letter 93–3 provides The terms ‘‘commercial driver’s proposes to amortize the start-up costs that ‘‘State Identification Bureaus and license,’’ ‘‘endorsement,’’ and over a five-year period to recover these other agencies that channel user-fee ‘‘hazardous materials’’ are used as one-time costs equitably. fingerprint cards to the FBI and account defined in FMCSA regulations. The term ‘‘day’’ is defined as a This amortization period coincides for the fees on a monthly basis will calendar day. with the requirement in the FMCSA continue to retain $2 of the payment to The term ‘‘FBI Fee’’ is defined as the companion rule 42 to the May 5 IFR 43 help offset handling costs.’’ Thus, in fee required for the cost of the FBI to that States mandate a five-year those States that have opted to allow a process fingerprint identification maximum renewal period for the HMEs. TSA agent to collect and transmit records and name checks. Thus, a five-year amortization period fingerprints and applicant information, The term ‘‘hazardous materials means the start-up costs will be borne the FBI fingerprint processing charge endorsement’’ is defined as the by all individuals who either currently (FBI Fee) will be $22. States that have authorization for an individual to hold an HME or who apply for an HME chosen to collect and transmit transport hazardous materials in in that five-year period. TSA notes that fingerprints and applicant information commerce, which must be issued on the the amortization is done by totaling all on their own may charge $24 (the $22 individual’s commercial driver’s start-up costs and the five-year annual FBI Fee plus the $2 handling costs), as license. recurring costs and dividing by 1.952 long as it is consistent with CJIS The term ‘‘Information Collection million requests for a new or renewed Information Letter 93–3. The fingerprint Fee’’ is defined as the fee required for HME—the total number expected in the processing user fee is set by the FBI, and the cost of collecting and transmitting first five years. (See Figure 1). the amount is subject to change. fingerprints and other applicant Based on the estimated costs in Figure VI. Total Fees information under 49 CFR part 1572. 2, TSA has calculated the per applicant The term ‘‘State’’ is defined as a U.S. Threat Assessment Fee as follows: In this final rule, TSA establishes the State or the District of Columbia. TSA’s estimated start-up costs of $4.44 following fees for HME applicants who The term ‘‘Threat Assessment Fee’’ is million, added to the estimated sum of submit fingerprints and applicant defined as the fee required for the cost the first five years’ annual recurring information to a TSA agent: of TSA adjudicating security threat costs of $61.32 million, equal a total of (1) Information Collection and assessments, appeals, and waivers $65.76 million. These total costs are Transmission Fee: $38. under 49 CFR part 1572. then divided by the 1.952 million total (2) Threat Assessment Fee: $34. The term ‘‘TSA agent’’ is defined as estimated number of applicants for a an entity approved by TSA to collect new or renewed HME over the first five (3) FBI Fee: $22. fingerprints in accordance with 49 CFR years after January 31, 2005. This Thus, the total fees for such part 1572 and fees in accordance with calculation results in an estimated cost applicants are $94. this subpart. to each applicant of $33.69, which is Under the final rule, in States that Sections 1572.303 through 1572.399 rounded up to $34 per applicant. have opted to collect and transmit are reserved. As noted above, States that have fingerprints and applicant information Section 1572.401 requires a State that chosen to collect and transmit on their own, HME applicants will be collects fingerprints and applicant fingerprints and applicant information required to pay the $34 Threat information under 49 CFR part 1572 to under the Hazmat Program Rule are still Assessment Fee and an FBI Fee of $22 collect, handle, and remit to TSA the required to collect the Threat or $24, depending on the amount Threat Assessment Fee in accordance Assessment Fee on behalf of TSA and charged by the State. TSA assumes that with the procedures in § 1572.403. The remit it to TSA in accordance with the such applicants also will be required State also is required to collect and final rule. In States that have chosen to under State user fee authority to pay to remit to the FBI the FBI Fee in allow a TSA agent to collect and the State a fee to cover the State’s costs accordance with established FBI transmit fingerprints and applicant of collecting and transmitting procedures. After discussions with the information under the Hazmat Program fingerprints and applicant information. FBI, TSA added this requirement to the Rule, the TSA agent is required to That fee may vary from State to State. final rule because the FBI intends to bill collect this fee on behalf of TSA and Thus, TSA cannot estimate the total fees States for CHRCs it will perform in remit it to TSA in accordance with the for such applicants. accordance with procedures already final rule. established by FBI and the States. 44 See Title II of Pub. L. 101–515, November 5, Section 1572.401 also requires a TSA 42 68 FR 23843 (May 5, 2003). 1990, 104 Stat. 2112, codified in a note to 28 U.S.C. agent that collects fingerprints and 43 68 FR 23852 (May 5, 2003). 534. applicant information under 49 CFR VerDate jul<14>2003 18:02 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 E:\FR\FM\13JAR2.SGM 13JAR2 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Rules and Regulations 2555 part 1572 to collect the Information Paragraph 1572.403(c) establishes application pursuant to part 1572 to the Collection Fee, Threat Assessment Fee, requirements for the handling of Threat TSA agent. It also establishes the Threat and FBI Fee in accordance with Assessment Fees collected by the States Assessment Fee at $34, the FBI Fee at procedures approved by TSA. A TSA prior to remittance to TSA. Because the $22, and the Information Collection Fee agent also is required to remit to TSA States are collecting the Threat at $38. the Threat Assessment Fee and the FBI Assessment Fees on behalf of TSA, the Paragraph 1572.405(b) states that a Fee in accordance with procedures fees are considered to be held in trust TSA agent will collect the fees required approved by TSA. for the beneficial interest of the United under this section when an individual Section 1572.403 describes the States. Thus, States are required to submits an application pursuant to 49 procedures a State is required to follow safeguard all Threat Assessment Fees CFR part 1572. A TSA agent will: (1) if the State chooses to collect and collected until they are remitted to TSA. Collect and remit to TSA the Threat transmit fingerprints under the Hazmat In addition, States are required to Assessment Fee; (2) collect and keep the Program Rule. Section 1572.403 pertains account for Threat Assessment Fees Information Collection Fee; and (3) only to the collection of the Threat separately. However, States are collect and remit to TSA the FBI Fee for Assessment Fee to cover TSA’s costs permitted to commingle such fees with forwarding to the FBI. and the FBI Fee to cover the costs of the other sources of revenue. Paragraph 1572.405(c) requires that CHRC.45 Nothing in this regulation Paragraph 1572.403(d) establishes fees remitted under this section be prohibits a State from collecting procedures for the remittance of Threat remitted to TSA by check, money order, additional fees, under its own user fee Assessment Fees to TSA. States are wire or any payment method acceptable authority, to cover its costs of collecting required to remit all Threat Assessment to TSA in the future. Payments must be and transmitting fingerprints and Fees collected under this part to TSA on made in U.S. currency and made applicant information at the time the a monthly basis. Every month, TSA will payable to the ‘‘Transportation Security State collects the TSA Threat issue an invoice to each State based on Administration.’’ It also specifies that Assessment Fee and the FBI Fee from the number of HME applications the TSA will not issue any refunds of fees HME applicants. State has sent to TSA. For example, if submitted under this section. Finally, it Paragraph 1572.403(a) requires States a State sends TSA 100 HME specifies that applications submitted to impose the Threat Assessment Fee applications during the month of under 49 CFR part 1572 are processed and the FBI Fee when an individual February, TSA will bill the State $3400 only upon receipt of all applicable fees. submits an application to the State for (100 × $34). The State is required to pay Paperwork Reduction Act a new or renewed HME in compliance the invoice in full within 30 days of the with 49 CFR part 1572. It also date that TSA sends the invoice to the The Paperwork Reduction Act of 1995 establishes the TSA Threat Assessment State. (PRA) (44 U.S.C. 3501–3520), as Fee at $34. Finally, it requires the The payments must be remitted to amended, requires consideration of the individual applying for the HME, or that TSA by check, money order, wire, or impact of paperwork and other individual’s employer, to remit the any other payment method acceptable to information collection burdens imposed Threat Assessment Fee and the FBI Fee TSA in the future. Payments must be on the public. As provided by the PRA, to the State in which the individual is made in U.S. currency and made an agency may not conduct or sponsor, applying for the HME, in a form and payable to the ‘‘Transportation Security and a person is not required to respond manner approved by TSA and the State. Administration.’’ States are allowed to to, a collection of information unless it Paragraph 1572.403(b) requires each retain any interest that accrues on the displays a currently valid Office of State to collect the Threat Assessment principal amounts of the Threat Management and Budget (OMB) control Fee and the FBI Fee from an individual Assessment Fees between the date of number. TSA has determined that there at the time the individual submits an collection and the date the fees are are no new information collection application for a new or renewed HME. remitted to TSA, which shall not be requirements associated with this final TSA expects that as States become fully more than 30 days after the date on rule. operational for purposes of this part, which TSA sends the invoice to the TSA notes that the Hazmat Program TSA will be receiving names frequently State. Rule requires drivers to submit their and far in advance of the States Paragraph (d) also specifies that TSA fingerprints and other biographical remitting the Threat Assessment Fee. accept fees only from a State, not from information. Those requirements may be Therefore, it is vital that the States an individual HME applicant. TSA will considered an information collection collect the Threat Assessment Fee under not issue any fee refunds, and, if a State burden under the PRA. Since they are this part from the applicant as the does not remit the Threat Assessment imposed under the Hazmat Program application is submitted. In addition, Fees, TSA may decline to process any Rule, they are discussed in that paragraph 1572.403(d)(8) provides that HME applications from that State. TSA rulemaking. reserves the right to take any other TSA does not envision issuing any Regulatory Analyses refunds. Once the application is appropriate action against delinquent received by TSA, analysis of the States, as necessary. Changes to Federal regulations must application will commence Section 1572.405 describes the undergo several economic analyses. immediately. Therefore, TSA incurs the procedures that an HME applicant is First, Executive Order 12866 directs costs of performing the analysis required to follow if a TSA agent each Federal agency to adopt a immediately. Paragraph 1572.403(b)(2) collects fingerprints and applicant regulation only if the agency makes a clarifies that once TSA receives an information under the Hazmat Program reasoned determination that the benefits application from a State for a security Rule. Paragraph 1572.405(a) requires an of the intended regulation justify its threat assessment in accordance with 49 individual applying for an HME, or that costs. Second, the Regulatory Flexibility CFR part 1572, the State is liable for the individual’s employer, to remit the Act of 1980 (5 U.S.C. 605(b)) requires Threat Assessment Fee. Threat Assessment Fee, FBI Fee, and agencies to analyze the economic Information Collection Fee to the TSA impact of regulatory changes on small 45 As noted above, the FBI currently allows States agent, in a form and manner approved entities. Third, the Trade Agreements to charge $24 for the FBI CHRC. by TSA, when the individual submits an Act (19 U.S.C. 2531–2533) prohibits VerDate jul<14>2003 18:02 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 E:\FR\FM\13JAR2.SGM 13JAR2 2556 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Rules and Regulations agencies from setting standards that because there is significant public companion interim final rule, titled create unnecessary obstacles to the interest in security issues since ‘‘Security Threat Assessment for foreign commerce of the United States. September 11, 2001, as well as the Individuals Applying for a Hazardous In developing U.S. standards, the Trade background check requirements in the Materials Endorsement for a Agreement Act requires agencies to Hazmat Program Rule. Commercial Driver’s License’’ RIN 1652- consider international standards, where This final rule responds to the AA17 (Hazmat Program Rule), the costs appropriate, as the basis of U.S. requirements of section 520 of the 2004 of those procedures were catalogued in standards. Fourth, the Unfunded Appropriations Act by establishing fees that rule’s attendant regulatory Mandates Reform Act of 1995 (Public for the background checks TSA is evaluation. Law 104–4) requires agencies to prepare required to perform by section 1012 of The total administrative and labor a written assessment of the costs, the USA PATRIOT Act and sections costs of the Hazmat Fee Rule, however, benefits, and other effects of final rules 1121–1123 of the SEA. The final rule are a function of how each State decides that include a Federal mandate likely to establishes two fees: A user fee to cover to fulfill the requirements of the Hazmat result in the expenditure by State, local, the HME security threat assessment Program Rule. In complying with the or tribal governments, in the aggregate, program and associated costs (Threat Hazmat Program Rule, each State must or by the private sector, of $100 million Assessment Fee) and a user fee to cover either collect and forward all or more annually (adjusted for the costs of collecting and transmitting fingerprints, applicant information, and inflation). fingerprints and applicant information fees to TSA and the FBI, or allow an In conducting these analyses, TSA has (Information Collection Fee). The entity approved by TSA to complete determined: amount of the fees are $34 (Threat these tasks. States were required to 1. This rule is not economically Assessment Fee) and $38 (Information significant, as neither the costs nor notify TSA in writing of their choice by Collection and Transmission Fee) per December 27, 2004. benefits exceed $100 million annually. HME applicant. There will also be a $22 The Hazmat Program Rule was 2. This rule is a ‘‘significant fee to cover FBI’s CHRC. regulatory action’’ as defined in the published on November 24, 2004, and TSA has prepared a full regulatory Executive Order because there is 17 States notified TSA that they will opt evaluation for this final rule, which is significant public interest in security to collect all requisite fees and applicant available for review in the docket of this issues since September 11, 2001. information and then pass that 3. Both threshold tests and a Final matter. The regulatory evaluation information along to TSA and the FBI. Regulatory Flexibility Analysis show examines the costs and benefits of the In constant 2004 U.S. dollars, the total the rule will not have a significant final rule establishing fees for security ten year cost for this aspect of the direct impact on a substantial number of threat assessments that TSA is required program is estimated to be small entities. to perform on individuals who apply for approximately $900,000. 4. The rule will impose no significant or renew an HME for a CDL. The results of the evaluation are summarized below. The remaining 34 States will allow a barriers to international trade. TSA-approved agent to perform all 5. The rule will not impose an Costs required fingerprint, fee and unfunded mandate on State, local, or information collection duties. For this tribal governments, or on the private The costs that result from the aspect of the program, the ten-year cost sector in excess of $100 million implementation of the Hazmat Fee Rule of the Fee Rule is estimated to be $1.3 annually. are the administrative and labor costs related to determining an equitable level million. The total ten-year cost for this Executive Order 12866 Assessment for the Transportation Security final rule, therefore, is estimated to be Executive Order 12866, ‘‘Regulatory Administration’s threat assessment fee; $2.2 million in constant 2004 U.S. Planning and Review’’ (58 FR 51735, remitting and processing that fee; and dollars. Discounted, the rule is October 4, 1993), provides for making remitting and processing the Federal estimated to cost $1.6 million over the determinations whether a regulatory Bureau of Investigation’s criminal ten-year horizon. action is ‘‘significant’’ and therefore history record check fee. The costs Two summary tables provide an subject to OMB review and to the identified in this regulatory evaluation overview of the cost estimates. See requirements of the Executive Order. are not the costs of completing threat Figures 2 and 3. A detailed discussion TSA has determined that this action is assessments or criminal history record of the cost estimates can be found in the a significant regulatory action within checks. Because those identity vetting Cost of Compliance Section of this the meaning of Executive Order 12866 procedures are mandated by a evaluation. VerDate jul<14>2003 18:02 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 E:\FR\FM\13JAR2.SGM 13JAR2 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Rules and Regulations 2557 Benefits Final Regulatory Flexibility Assessment An analysis of the rule’s impact on small entities, as well as responses to The Regulatory Flexibility Act of 1980 There are several qualitative benefits comments on the analysis that TSA (RFA), as amended, was enacted by realized from the implementation of the prepared for the Fee NPRM, is Hazmat Fee Rule. Primarily, the Hazmat Congress to ensure that small entities (small businesses, small not-for-profit contained in the Final Regulatory Fee Rule provides a funding mechanism Evaluation, which is available in the for the Hazmat Program Rule, which organizations, and small governmental jurisdictions) are not unnecessarily or docket of this rulemaking. Based on that regulates the population of drivers with analysis, TSA has determined that the hazardous materials endorsements. By disproportionately burdened by Federal regulations. The RFA requires agencies rule will have an impact on a creating a set of fees, TSA ensures that substantial number of small entities. the cost of regulation is not the sole to review rules to determine if they have ‘‘a significant economic impact on a However, TSA has determined that the responsibility of the Federal substantial number of small entities.’’ impact on entities affected by the rule Government. TSA determined that TSA has determined that this final rule will not be significant. Accordingly, creating a fee rule was the most efficient will not have a significant economic TSA hereby certifies that this rule will and cost effective way to fund the impact on a substantial number of small not have a significant economic impact aforementioned Hazmat Program Rule. entities. VerDate jul<14>2003 18:02 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 E:\FR\FM\13JAR2.SGM 13JAR2 ER13JA05.014 ER13JA05.015 2558 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Rules and Regulations on a substantial number of small Mexico to ensure that any adverse (42 U.S.C. 6362). TSA has determined entities. impacts on trade are minimized. that this rulemaking is not a major regulatory action under the provisions Unfunded Mandates Assessment Executive Order 13132 (Federalism) of the EPCA. Section 202 of the Unfunded Executive Order 13132 requires TSA Mandates Reform Act of 1995 (UMRA) to develop an accountable process to List of Subjects in 49 CFR Part 1572 requires Federal agencies to prepare a ensure ‘‘meaningful and timely input by Fees, Commercial driver’s license, written assessment of the costs, benefits, State and local officials in the Criminal history background checks, and other effects of proposed or final development of regulatory policies that Explosives, Hazardous materials, Motor rules that include a Federal mandate have federalism implications.’’ ‘‘Policies carriers, Motor vehicle carriers, Security likely to result in the expenditure by that have federalism implications’’ is measures, Security threat assessment. State, local, or tribal governments, in the defined in the Executive Order to aggregate, or by the private sector, of include regulations that have The Amendments more than $100 million in any one year ‘‘substantial direct effects on the States, I For the reasons set forth in the (adjusted for inflation with base year of on the relationship between the national preamble, the Transportation Security 1995). Before promulgating a rule for government and the States, or on the Administration amends chapter XII of which a written assessment is needed, distribution of power and title 49, Code of Federal Regulations, as section 205 of UMRA generally requires responsibilities among the various follows: TSA to identify and consider a levels of government.’’ reasonable number of regulatory Subchapter D—Maritime and Land TSA has analyzed this final rule Transportation Security alternatives and adopt the least costly, under the principles and criteria of most cost-effective, or least burdensome Executive Order 13132. TSA notes that PART 1572—CREDENTIALING AND alternative that achieves the objective of various statutes mandate the BACKGROUND CHECKS FOR LAND the rule. The provisions of section 205 requirements of this final rule, TRANSPORTATION SECURITY do not apply when they are inconsistent including the USA PATRIOT Act, SEA, with applicable law. Moreover, section and section 520 of the Homeland I 1. The authority citation for part 1572 205 allows TSA to adopt an alternative Security Appropriations Act of 2004. is revised to read as follows: other than the least costly, most cost- Moreover, the Federal Government, Authority: 49 U.S.C. 114, 5103a, 40113, effective, or least burdensome primarily through the Federal Motor and 46105; 18 U.S.C. 842, 845; Sec. 520, Pub. alternative if the agency publishes with Carrier Safety Administration, is already L. 108–90, 117 Stat. 1156 (6 U.S.C. 469). the final rule an explanation of the substantially involved in establishing I 2. Add new subparts D and E to part reasons that alternative was not conditions for the issuance of an HME. 1572 as follows: adopted. Accordingly, TSA has determined that TSA has determined that this rule this action will not have a substantial Subpart D—Fees for Security Threat will not result in the expenditure by direct effect on the States, on the Assessments for Individuals State, local, or tribal governments, in the relationship between the national Sec. aggregate, or by the private sector, of Government and the States, or on the 1572.301 Scope and definitions. more than $100 million annually. distribution of power and 1572.303–1572.399 [Reserved] International Trade Impact Assessment responsibilities among the various Subpart E—Fees for Security Threat levels of government, and therefore will Assessments for Hazmat Drivers The Trade Agreement Act of 1979 not have federalism implications. 1572.401 Fee collection options. prohibits Federal agencies from However, TSA determined that the 1572.403 Fee procedures for collection by establishing any standards or engaging Hazmat Program Rule has federalism States. in related activities that create implications.46 In the preamble of the 1572.405 Fee procedures for collection by unnecessary obstacles to the foreign Hazmat Program Rule, TSA noted that TSA agents. commerce of the United States. both TSA and FMCSA coordinated with Legitimate domestic objectives, such as Subpart D—Fees for Security Threat the States in the development of the Assessments for Individuals safety, are not considered unnecessary rule. obstacles. The statute also requires § 1572.301 Scope and definitions. consideration of international standards Environmental Analysis and, where appropriate, that they be the (a) Scope. This part applies to: TSA has reviewed this proposal for (1) States that issue a hazardous basis for U.S. standards. purposes of the National Environmental materials endorsement for a commercial TSA has assessed the potential effect Policy Act of 1969 (NEPA) (42 U.S.C. of this rulemaking and has determined driver’s license; 4321–4347) and has determined that (2) Individuals who apply for or that it will have only a domestic impact this action will not have a significant renew a hazardous materials and therefore no effect on any trade- effect on the human environment. The endorsement for a commercial driver’s sensitive activity. This final rule will final rule will only implement a fee license and must undergo a security impact only individuals applying for a structure for commercial drivers who threat assessment under 49 CFR part State-issued HME, not individuals with transport hazardous materials, and thus 1572; and an HME issued by Canada or Mexico. As will have no environmental (3) Entities who collect fees from such noted above, TSA has implemented a consequences. individuals on behalf of TSA. program for Canadian drivers who Energy Impact (b) Terms. As used in this part: transport explosives into the U.S. TSA Commercial driver’s license (CDL) is is also consulting with Canada and TSA has assessed the energy impact used as defined in 49 CFR 383.5. Mexico on requiring threat assessments of this proposal in accordance with the Day means calendar day. for Canadian and Mexican drivers who Energy Policy and Conservation Act Endorsement is used as defined in 49 transport hazmat into the U.S., and will (EPCA) Public Law 94–163, as amended CFR 383.5. continue to do so. TSA will also FBI Fee means the fee required for the continue to consult with Canada and 46 See 69 FR 68741 (November 24, 2004). cost of the Federal Bureau of VerDate jul<14>2003 18:02 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 E:\FR\FM\13JAR2.SGM 13JAR2 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Rules and Regulations 2559 Investigation to process fingerprint applicant information under 49 CFR (2) A State must remit to TSA full identification records and name checks. part 1572, and the procedures an payment for the invoice within 30 days Hazardous materials means any individual who applies for a new HME after TSA sends the invoice. material that has been designated as or renewal of an existing HME for a CDL (3) TSA accepts Threat Assessment hazardous under 49 U.S.C. 5103 and is in that State, must follow for collection Fees only from a State, not from an required to be placarded under subpart and transmission of the Threat individual applicant for an HME. F of 49 CFR part 172 or any quantity of Assessment Fee and the FBI Fee. (4) A State may retain any interest a material listed as a select agent or (a) Imposition of fees. (1) The that accrues on the principal amounts toxin in 42 CFR part 73. following Threat Assessment Fee is collected between the date of collection Hazardous materials endorsement required for TSA to conduct a security and the date the Threat Assessment Fee (HME) means the authorization for an threat assessment under 49 CFR part is remitted to TSA in accordance with individual to transport hazardous 1572 for an individual who applies for paragraph (d)(2) of this section. materials in commerce, which must be a new HME or renewal of an existing (5) A State may not retain any portion issued on the individual’s commercial HME: $34. of the Threat Assessment Fee to offset driver’s license. (2) The following FBI Fee is required the costs of collecting, handling, or Information Collection Fee means the for the FBI to process fingerprint remitting Threat Assessment Fees. fee required in this part for the cost of identification records and name checks (6) Threat Assessment Fees remitted collecting and transmitting fingerprints required under 49 CFR part 1572: the to TSA by a State must be in U.S. and other applicant information under fee collected by the FBI under 28 U.S.C. currency and made payable to the 49 CFR part 1572. 534. ‘‘Transportation Security State means a State of the United (3) An individual who applies for a Administration.’’ States or the District of Columbia. new or renewed HME, or the (7) Threat Assessment Fees must be Threat Assessment Fee means the fee individual’s employer, must remit to the remitted by check, money order, wire or required in this part for the cost of TSA State the Threat Assessment Fee and the any other payment method acceptable to adjudicating security threat FBI Fee, in a form and manner approved TSA. assessments, appeals, and waivers by TSA and the State, when the (8) TSA will not issue any refunds of under 49 CFR part 1572. individual submits the application for Threat Assessment Fees. (9) If a State does not remit the Threat TSA agent means an entity approved the HME to the State. Assessment Fees for any month, TSA by TSA to collect and transmit (b) Collection of fees. (1) A State must may decline to process any HME fingerprints and applicant information collect the Threat Assessment Fee and applications from that State. in accordance with 49 CFR part 1572 FBI Fee when an individual submits an and fees in accordance with this part. application to the State for a new HME § 1572.405 Fee procedures for collection or renewal of an existing HME. by TSA agents. §§ 1572.303–1572.399 [Reserved] (2) Once TSA receives an application This section describes the procedures Subpart E—Fees for Security Threat from a State for a security threat that an individual who applies for a Assessments for Hazmat Drivers assessment under 49 CFR part 1572, the new HME or renewal of an existing State is liable for the Threat Assessment HME for a CDL must follow if a TSA § 1572.401 Fee collection options. Fee. agent collects and transmits the (a) State collection and transmission. (3) Nothing in this subpart prevents a Information Collection Fee, Threat If a State collects fingerprints and State from collecting any other fees that Assessment Fee, and FBI Fee. applicant information under 49 CFR a State may impose on an individual (a) Imposition of fees. (1) The part 1572, the State must collect and who applies for a new HME or renewal following Information Collection Fee is transmit to TSA the Threat Assessment of an existing HME. required for a TSA agent to collect and Fee in accordance with the (c) Handling of fees. (1) A State must transmit fingerprints and applicant requirements of § 1572.403. The State safeguard all Threat Assessment Fees information in accordance with 49 CFR also must collect and remit the FBI Fee from the time of collection until part 1572: $38. in accordance with established remittance to TSA. (2) The following Threat Assessment procedures. (2) All Threat Assessment Fees are Fee is required for TSA to conduct a (b) TSA agent collection and held in trust by a State for the beneficial security threat assessment under 49 CFR transmission. If a TSA agent collects interest of the United States in paying part 1572 for an individual who applies fingerprints and applicant information for the costs of conducting the security for a new HME or renewal of an existing under 49 CFR part 1572, the agent threat assessment required by 49 U.S.C. HME: $34. must— 5103a and 49 CFR part 1572. A State (3) The following FBI Fee is required (1) Collect the Information Collection holds neither legal nor equitable interest for the FBI to process fingerprint Fee, Threat Assessment Fee, and FBI in the Threat Assessment Fees except identification records and name checks Fee in accordance with procedures for the right to retain any accrued required under 49 CFR part 1572: The approved by TSA; interest on the principal amounts fee collected by the FBI under 28 U.S.C. (2) Transmit to TSA the Threat collected pursuant to this section. 534. Assessment Fee in accordance with (3) A State must account for Threat (4) An individual who applies for a procedures approved by TSA; and Assessment Fees separately, but may new or renewed HME, or the (3) Transmit to TSA the FBI Fee in commingle such fees with other sources individual’s employer, must remit to the accordance with procedures approved of revenue. TSA agent the Information Collection by TSA and the Federal Bureau of (d) Remittance of fees. (1) TSA will Fee, Threat Assessment Fee, and FBI Investigation. generate and provide an invoice to a Fee, in a form and manner approved by State on a monthly basis. The invoice TSA, when the individual submits the § 1572.403 Fee procedures for collection will indicate the total fee dollars application required under 49 CFR part by States. (number of applicants times the Threat 1572. This section describes the procedures Assessment Fee) that are due for the (b) Collection of fees. A TSA agent that a State that collects fingerprints and month. will collect the fees required under this VerDate jul<14>2003 18:02 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 E:\FR\FM\13JAR2.SGM 13JAR2 2560 Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Rules and Regulations section when an individual submits an (2) Fees required under this section be processed only upon receipt of all application to the TSA agent in must be remitted by check, money applicable fees under this section. accordance with 49 CFR part 1572. order, wire or any other payment Issued in Arlington, Virginia, on January (c) Remittance of fees. (1) Fees method acceptable to TSA. 10, 2005. required under this section that are (3) TSA will not issue any refunds of Carol DiBattiste, remitted to a TSA agent must be made fees required under this section. Acting Assistant Secretary of Homeland Security for TSA. in U.S. currency and made payable to (4) Applications submitted in the ‘‘Transportation Security accordance with 49 CFR part 1572 will [FR Doc. 05–773 Filed 1–11–05; 9:50 am] Administration.’’ BILLING CODE 4910–62–P VerDate jul<14>2003 18:02 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 E:\FR\FM\13JAR2.SGM 13JAR2 i Reader Aids Federal Register Vol. 70, No. 9 Thursday, January 13, 2005 CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING JANUARY Federal Register/Code of Federal Regulations At the end of each month, the Office of the Federal Register General Information, indexes and other finding 202–741–6000 publishes separately a List of CFR Sections Affected (LSA), which aids lists parts and sections affected by documents published since Laws 741–6000 the revision date of each title. 96...... 460 Presidential Documents 3 CFR Executive orders and proclamations 741–6000 Proclamations: 10 CFR The United States Government Manual 741–6000 7859...... 1159 30...... 2001 7860...... 2321 Other Services Proposed Rules: Executive Orders: 40...... 2053 Electronic and on-line services (voice) 741–6020 13332 (Superseded by Privacy Act Compilation 741–6064 71...... 312 EO 13368)...... 1147 709...... 1383 Public Laws Update Service (numbers, dates, etc.) 741–6043 13368...... 1147 710...... 1383 TTY for the deaf-and-hard-of-hearing 741–6086 13369...... 2323 Administrative Orders: 11 CFR ELECTRONIC RESEARCH Presidential 111...... 3 World Wide Web Determinations: No. 2004-48 of 13 CFR Full text of the daily Federal Register, CFR and other publications September 20, 125...... 1655 is located at: http://www.gpoaccess.gov/nara/index.html 2004 ...... 1783 Federal Register information and research tools, including Public No. 2005-12 of 14 CFR Inspection List, indexes, and links to GPO Access are located at: December 10, 13...... 1812 http://www.archives.gov/federallregister/ 2004 ...... 1785 No. 2005-13 of 21...... 2325 E-mail December 14, 23...... 1326 FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is 2004 ...... 1 25 ...... 675, 1161, 1163, 2009, an open e-mail service that provides subscribers with a digital No. 2005-16 of 2325 form of the Federal Register Table of Contents. The digital form January 4, 2005 ...... 1787 29...... 2011 of the Federal Register Table of Contents includes HTML and 39.....7, 10, 261, 265, 677, 679, PDF links to the full text of each document. 5 CFR 680, 684, 685, 687, 690, 1169, 1172, 1176, 1178, To join or leave, go to http://listserv.access.gpo.gov and select Proposed Rules: 213...... 1833 1180, 1182, 1184, 1328, Online mailing list archives, FEDREGTOC-L, Join or leave the list 1329, 1332, 1335, 1336, (or change settings); then follow the instructions. 315...... 1833 353...... 1068 1338, 1340, 1655, 1815, PENS (Public Law Electronic Notification Service) is an e-mail 530...... 1068 2330, 2333, 2336, 2339 service that notifies subscribers of recently enacted laws. 531...... 1068 47...... 240 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html 550...... 1068 49...... 240 and select Join or leave the list (or change settings); then follow 575...... 1068 65...... 1634 the instructions. 610...... 1068 71 ...... 1342, 1343, 2342, 2343, 630...... 1068 2344, 2345, 2346, 2347, FEDREGTOC-L and PENS are mailing lists only. We cannot 2348 respond to specific inquiries. 7 CFR 97...... 691, 1186 Reference questions. Send questions and comments about the 301...... 249 Proposed Rules: Federal Register system to: [email protected] 926...... 1995 39 ...... 51, 317, 725, 727, 729, The Federal Register staff cannot interpret specific documents or 983...... 661 731, 733, 735, 737, 1211, regulations. 1466...... 1789 1215, 2057, 2060, 2062, 1486...... 253 2064, 2066, 2067, 2070, 2370 FEDERAL REGISTER PAGES AND DATE, JANUARY 1924...... 1325 2902...... 1792 71 ...... 1396, 1397, 1399 1–248...... 3 Proposed Rules: 257...... 2372 97...... 1835 249–660...... 4 15 CFR 661–1160...... 5 925...... 1837 742...... 2348 1161–1324...... 6 927...... 2520 982...... 1839 774...... 2348 1325–1654...... 7 985...... 2027 996...... 693 1655–1788...... 10 1160...... 2032 Proposed Rules: 1789–1994...... 11 1205...... 2034 30...... 2072 1995–2324...... 12 710...... 1216 2325–2560...... 13 8 CFR 711...... 1216 241...... 661 712...... 1216 1240...... 661 713...... 1216 1241...... 661 714...... 1216 715...... 1216 9 CFR 716...... 1216 93...... 460 717...... 1216 94...... 460 718...... 1216 95...... 460 719...... 1216 VerDate jul 14 2003 20:16 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00001 Fmt 4712 Sfmt 4712 E:\FR\FM\13JACU.LOC 13JACU ii Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Reader Aids 720...... 1216 200...... 1750 38 CFR 414...... 41 721...... 1216 242...... 1750 Proposed Rules: 415...... 41 722...... 1216 17...... 1841 416...... 41 723...... 1216 25 CFR 419...... 41 724...... 1216 Proposed Rules: 39 CFR 422...... 41 725...... 1216 542...... 1840 111...... 1346 423...... 41 726...... 1216 424...... 41 26 CFR 501...... 705, 1348 727...... 1216 425...... 41 728...... 1216 1...... 704, 2012 40 CFR 426...... 41 729...... 1216 20...... 295 52 ...... 22, 1663, 1664, 1824, 428...... 41 904...... 740 301 ...... 295, 704, 2012 2358 432...... 41 602...... 704 16 CFR 62...... 1668 433...... 41 Proposed Rules: 63...... 1670 434...... 41 Proposed Rules: 1 ...... 746, 749, 1400, 2075 81...... 944, 1664 436...... 41 Ch. 1 ...... 2074 31...... 767 82...... 1972 439...... 41 1633...... 2470 301...... 2075, 2076 180 ...... 706, 708, 1349, 1357 445...... 41 1634...... 2514 27 CFR 271...... 1825 450...... 41 Proposed Rules: 452...... 41 17 CFR 7...... 194 51...... 1314, 1640 453...... 41 171...... 2350 25...... 194 52 ...... 53, 1640, 1673, 2085 533...... 298 210...... 1506 62...... 1674 228...... 1506 28 CFR 552...... 298 80...... 640, 646 1835...... 2022 229...... 1506 570...... 1659 81...... 1673 230...... 1506 1852...... 2022 29 CFR 93...... 323 232...... 1506 194...... 2101 239...... 1506 1910...... 1112 271...... 1842 49 CFR 240...... 1506 1915...... 1112 372...... 1674 15...... 1379 242...... 1506 1926...... 1112 24...... 590 245...... 1506 41 CFR Proposed Rules: 171...... 2367 249...... 1506 4000...... 2080 102–42...... 2318 172...... 2367 Proposed Rules: 4010...... 2080 173...... 2367 200...... 1503 42 CFR 201...... 1503 31 CFR 175...... 2367 Proposed Rules: 199...... 50 230...... 1503 Proposed Rules: 9...... 1843 240...... 1503 92...... 2081 224...... 144 242...... 1503 47 CFR 579...... 2022 33 CFR 571...... 299 249...... 1503 1...... 556 1520...... 1379 270...... 1503 27...... 17 15...... 1360 1572...... 2542 110...... 2353 27...... 1189 18 CFR 117 ...... 1187, 1343, 2355 64...... 720, 2360 Proposed Rules: 35...... 265 165 ...... 20, 1187, 1345, 2017, 73 ...... 25, 723, 724 229...... 2105 358...... 284 2019, 2355, 2357 76...... 25 238...... 2105 Proposed Rules: Proposed Rules: Proposed Rules: 571...... 2105 284...... 319 117...... 773 64 ...... 60, 61, 62 572...... 2105 151...... 1400 73...... 63, 775 598...... 2105 20 CFR 165...... 1400 76...... 63 404...... 11 50 CFR 408...... 11 34 CFR 48 CFR 416...... 11 Proposed Rules: Ch. 3 ...... 38 17 ...... 426, 1190, 1286, 1940 300...... 1673 206...... 2361 222...... 1830 21 CFR 303...... 1673 225...... 2361 224...... 1830 510...... 2352 252...... 2361 226...... 1830 36 CFR 520 ...... 1817, 1818, 2352 401...... 41 229...... 2367 1304...... 291 219...... 1022, 1023 403...... 41 622...... 300 1306...... 291 Proposed Rules: 404...... 41 635...... 302 1310...... 291, 294 242...... 1216 405...... 41 648 ...... 303, 1686, 2023 Proposed Rules: 406...... 41 Proposed Rules: 357...... 741 37 CFR 407...... 41 17...... 1858, 2244 1...... 1818 408...... 41 100...... 1216 24 CFR 3...... 1818 410...... 41 226...... 325 Proposed Rules: Proposed Rules: 411...... 41 229...... 776 81...... 1774 404...... 1403 413...... 41 648...... 68, 2108 VerDate jul 14 2003 20:16 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00002 Fmt 4712 Sfmt 4712 E:\FR\FM\13JACU.LOC 13JACU Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Reader Aids iii REMINDERS TRANSPORTATION Alaska; fisheries of ENERGY DEPARTMENT The items in this list were DEPARTMENT Exclusive Economic Federal Energy Regulatory editorially compiled as an aid Federal Aviation Zone— Commission to Federal Register users. Administration Aleutian Islands pollock; Electric rate and corporate Inclusion or exclusion from Aircraft products and parts; comments due by 1-21- regulation filings: 05; published 12-7-04 this list has no legal certification procedures: Virginia Electric & Power [FR 04-26835] significance. Armed Forces surplus Co. et al.; Open for aircraft; large Pollock; comments due by comments until further reciprocating-engine 1-18-05; published 11- notice; published 10-1-03 RULES GOING INTO powered airplanes; type 16-04 [FR 04-25431] [FR 03-24818] EFFECT JANUARY 13, certification; correction; COURT SERVICES AND 2005 published 1-13-05 ENVIRONMENTAL OFFENDER SUPERVISION PROTECTION AGENCY Airworthiness directives: AGENCY FOR THE Air programs: AGRICULTURE Airbus; published 12-9-04 DISTRICT OF COLUMBIA DEPARTMENT Boeing; published 12-9-04 Semi-annual agenda; Open for Stratospheric ozone protection— Food Safety and Inspection Empresa Brasileira de comments until further Service Aeronautica, S.A. notice; published 12-22-03 Essential use allowances [FR 03-25121] allocation; comments Food for human consumption: (EMBRAER); published 12-9-04 DEFENSE DEPARTMENT due by 1-21-05; Food labeling— Empresa Brasileira de Acquisition regulations: published 12-22-04 [FR Uniform compliance date; Aeronautica, S.A. 04-27994] published 12-14-04 Information technology (EMBRAER); correction; equipment; government Air quality implementation COMMERCE DEPARTMENT published 1-4-05 inventory screening; plans; approval and Industry and Security Rolls-Royce plc; published comments due by 1-21- promulgation; various Bureau 12-29-04 05; published 11-22-04 States: Export administration TRANSPORTATION [FR 04-25811] Kentucky; comments due by regulations: DEPARTMENT Pilot Mentor-Protege 1-18-05; published 12-17- Commerce Control List— Federal Highway Program; Open for 04 [FR 04-27657] Australia Group Administration comments until further Missouri; comments due by understandings and Engineering and traffic notice; published 12-15-04 1-18-05; published 12-17- intersessional decision; operations: [FR 04-27351] 04 [FR 04-27662] clarifications, National bridge inspection Telecommunications Environmental statements; corrections, and standards; published 12- services— availability, etc.: Chemical Weapons 14-04 Basic agreements; Coastal nonpoint pollution Convention membership comments due by 1-21- control program— additions; correction; COMMENTS DUE NEXT 05; published 11-22-04 Minnesota and Texas; published 1-13-05 WEEK [FR 04-25812] Open for comments COMMODITY FUTURES Clauses update; until further notice; TRADING COMMISSION AGRICULTURE comments due by 1-21- published 10-16-03 [FR National Futures Association; DEPARTMENT 05; published 11-22-04 03-26087] [FR 04-25813] review of disciplinary, Agricultural Marketing Superfund program: membership denial, Service EDUCATION DEPARTMENT National oil and hazardous registration, and member Cotton classing, testing and Postsecondary education: substances contingency responsibility actions standards: Higher education plan— decisions; amendments; Classification services to discretionary grant National priorities list published 1-13-05 growers; 2004 user fees; programs; selection update; comments due DEFENSE DEPARTMENT Open for comments until criteria; comments due by by 1-19-05; published Acquisition regulations: further notice; published 1-21-05; published 12-22- 12-20-04 [FR 04-27550] 04 [FR 04-28021] Australia and Morocco; free 5-28-04 [FR 04-12138] National priorities list trade agreements; AGRICULTURE ENERGY DEPARTMENT update; comments due published 1-13-05 DEPARTMENT Meetings: by 1-19-05; published HEALTH AND HUMAN Animal and Plant Health Environmental Management 12-20-04 [FR 04-27551] SERVICES DEPARTMENT Inspection Service Site-Specific Advisory Water pollution control: Board— Food and Drug Interstate transportation of National Pollutant Discharge Administration animals and animal products Oak Ridge Reservation, Elimination System— (quarantine): TN; Open for comments Animal drugs, feeds, and Concentrated animal Brucellosis in swine— until further notice; related products: feeding operations in Validated brucellosis-free published 11-19-04 [FR New Mexico and Levamisole powder for oral States; list additions; 04-25693] solution; published 1-13- Oklahoma; general comments due by 1-18- ENERGY DEPARTMENT 05 permit for discharges; 05; published 11-18-04 Energy Efficiency and Open for comments Sponsor name and address [FR 04-25600] Renewable Energy Office until further notice; changes— Plant-related quarantine, Commercial and industrial published 12-7-04 [FR Alstoe, Ltd.; published 1- domestic: equipment; energy efficiency 04-26817] 13-05 Oriental fruit fly; comments program: Water pollution; effluent HOUSING AND URBAN due by 1-18-05; published Test procedures and guidelines for point source DEVELOPMENT 11-16-04 [FR 04-25390] efficiency standards— categories: DEPARTMENT COMMERCE DEPARTMENT Commercial packaged Meat and poultry products FHA programs; introduction: National Oceanic and boilers; Open for processing facilities; Open Tax credit proceeds; Atmospheric Administration comments until further for comments until further distribution; published 12- Fishery conservation and notice; published 10-21- notice; published 9-8-04 14-04 management: 04 [FR 04-17730] [FR 04-12017] VerDate jul 14 2003 20:16 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00003 Fmt 4712 Sfmt 4711 E:\FR\FM\13JACU.LOC 13JACU iv Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Reader Aids FEDERAL drugs with regard to their LABOR DEPARTMENT MD Helicopters, Inc.; COMMUNICATIONS microbiological effects on Wage and Hour Division comments due by 1-21- COMMISSION bacteria of human health Practice and procedure: 05; published 11-22-04 concern; Open for [FR 04-25542] Common carrier services: Service Contract Act wage comments until further Interconnection— determinations; publication Rolls-Royce Corp.; notice; published 10-27-03 Incumbent local exchange through Internet website; comments due by 1-21- [FR 03-27113] carriers unbounding title and statutory citations 05; published 11-22-04 obligations; local Medical devices— changes and regional [FR 04-25794] competition provisions; Dental noble metal alloys offices list update; Airworthiness standards: wireline services and base metal alloys; comments due by 1-18- Special conditions— offering advanced Class II special 05; published 12-16-04 Raytheon Aircraft Co. telecommunications controls; Open for [FR 04-27422] Model MU-300-10 and comments until further capability; Open for NATIONAL ARCHIVES AND 400 airplanes; notice; published 8-23- comments until further RECORDS ADMINISTRATION comments due by 1-20- 04 [FR 04-19179] notice; published 12-29- Records management: 05; published 12-21-04 04 [FR 04-28531] HOMELAND SECURITY [FR 04-27824] DEPARTMENT Media neutral records Spectrum use; elimination of schedules; comments due Class E airspace; comments Coast Guard barriers to development of by 1-18-05; published 11- due by 1-18-05; published secondary markets; Anchorage regulations: 19-04 [FR 04-25691] 12-17-04 [FR 04-27688] comments due by 1-18- Maryland; Open for VOR Federal airways; INTERIOR DEPARTMENT 05; published 12-27-04 comments until further comments due by 1-18-05; [FR 04-27790] notice; published 1-14-04 National Indian Gaming published 12-3-04 [FR 04- Radio stations; table of [FR 04-00749] Commission 26585] assignments: Drawbridge operations: Management contract TRANSPORTATION Kentucky; comments due by Louisiana; comments due by provisions: DEPARTMENT 1-18-05; published 12-15- 1-18-05; published 11-17- Minimum internal control Research and Special 04 [FR 04-27445] 04 [FR 04-25490] standards; comments due Programs Administration FEDERAL ELECTION Virginia; comments due by by 1-18-05; published 12- Food safety regulations: 1-04 [FR 04-26041] COMMISSION 1-18-05; published 12-2- Safeguarding food from Corporate and labor 04 [FR 04-26520] NUCLEAR REGULATORY contamination during organization activity: HOUSING AND URBAN COMMISSION transportation; comments Trade association’s separate DEVELOPMENT Environmental statements; due by 1-20-05; published segregated fund; payroll DEPARTMENT availability, etc.: 12-21-04 [FR 04-27904] deduction contributions; Grants: Fort Wayne State TREASURY DEPARTMENT comment request; Home Investment Developmental Center; Fiscal Service comments due by 1-21- Partnerships Program; Open for comments until Checks drawn on U.S. 05; published 12-22-04 homeownership further notice; published Treasury; indorsement and [FR 04-27971] affordability requirements; 5-10-04 [FR 04-10516] payment; comments due by Designations, reports, and amendments; comments SMALL BUSINESS 1-18-05; published 10-19-04 statements; timely filing by due by 1-21-05; published ADMINISTRATION [FR 04-23279] priority mail, express mail, 11-22-04 [FR 04-25753] Disaster loan areas: TREASURY DEPARTMENT and overnight delivery INTERIOR DEPARTMENT Maine; Open for comments Alcohol and Tobacco Tax service; comments due by Fish and Wildlife Service until further notice; and Trade Bureau 1-21-05; published 12-22-04 Endangered and threatened published 2-17-04 [FR 04- [FR 04-27972] Alcoholic beverages: species permit applications 03374] Wine; materials authorized HEALTH AND HUMAN Recovery plans— OFFICE OF UNITED STATES for treatment of wine and SERVICES DEPARTMENT Paiute cutthroat trout; TRADE REPRESENTATIVE juice; processes Food and Drug Open for comments Trade Representative, Office authorized for treatment of Administration until further notice; of United States wine, juice, and distilling Food additives: published 9-10-04 [FR Generalized System of material; comments due Irradiation in the production, 04-20517] Preferences: by 1-18-05; published 11- processing and handling Migratory bird permits: 2003 Annual Product 19-04 [FR 04-25739] of food; comments due by Connecticut; Federal Review, 2002 Annual 1-20-05; published 12-21- falconry standard Country Practices Review, LIST OF PUBLIC LAWS 04 [FR 04-27868] compliance; comments and previously deferred Food for human consumption: due by 1-19-05; published product decisions; This is the first in a continuing 12-20-04 [FR 04-27775] Food labeling— petitions disposition; Open list of public bills from the Nutrient content claims; INTERIOR DEPARTMENT for comments until further current session of Congress general principles; Native American Graves notice; published 7-6-04 which have become Federal comments due by 1-18- Protection and Repatriation [FR 04-15361] laws. It may be used in 05; published 11-18-04 Act; implementation: TRANSPORTATION conjunction with ‘‘PLUS’’ [FR 04-25529] Future applicability DEPARTMENT (Public Laws Update Service) Human drugs: procedures; comments Federal Aviation on 202–741–6043. This list is Radioactive drugs for due by 1-18-05; published Administration also available online at http:// research uses; meeting; 10-20-04 [FR 04-23179] Airworthiness directives: www.archives.gov/ comments due by 1-16- LABOR DEPARTMENT Boeing; comments due by federal—register/public—laws/ 05; published 10-5-04 [FR Occupational Safety and 1-18-05; published 11-16- public—laws.html. 04-22354] Health Administration 04 [FR 04-25191] A cumulative List of Public Reports and guidance State plans: McCauley Propeller Laws for the second session documents; availability, etc.: Oregon; comments due by Systems; comments due of the 108th Congress will Evaluating safety of 1-18-05; published 12-16- by 1-21-05; published 11- appear in the issue of January antimicrobial new animal 04 [FR 04-27565] 22-04 [FR 04-25543] 31, 2005. VerDate jul 14 2003 20:16 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00004 Fmt 4712 Sfmt 4711 E:\FR\FM\13JACU.LOC 13JACU Federal Register / Vol. 70, No. 9 / Thursday, January 13, 2005 / Reader Aids v The text of laws is not GPO Access at http:// listserv.gsa.gov/archives/ published in the Federal www.gpoaccess.gov/plaws/ publaws-l.html Register but may be ordered index.html. Some laws may Public Laws Electronic not yet be available. in ‘‘slip law’’ (individual Notification Service Note: This service is strictly pamphlet) form from the H.R. 241/P.L. 109-1 (PENS) for E-mail notification of new Superintendent of Documents, To accelerate the income tax laws. The text of laws is not U.S. Government Printing benefits for charitable cash available through this service. Office, Washington, DC 20402 contributions for the relief of PENS is a free electronic mail PENS cannot respond to (phone, 202–512–1808). The victims of the Indian Ocean notification service of newly specific inquiries sent to this text will also be made enacted public laws. To tsunami. (Jan. 7, 2005; 119 address. available on the Internet from Stat. 3) subscribe, go to http:// VerDate jul 14 2003 20:16 Jan 12, 2005 Jkt 205001 PO 00000 Frm 00005 Fmt 4712 Sfmt 4711 E:\FR\FM\13JACU.LOC 13JACU